Latimer v Latimer

NCAT Appeal Panel|2022-03-16

Introduction

This appeal arises out of a decision published on 6 December 2021 in the Consumer & Commercial Division of the Tribunal when the Tribunal was exercising its jurisdiction under the Residential Tenancies Act 2010 (NSW) (the RT Act).
The proceedings below concerned two separate applications. The first application was lodged by David Latimer (the Respondent to this appeal). The respondents to that application were two of the current Appellants (Kylie and Megan Latimer). That application sought a declaration under s 115 of the RT Act that a termination notice had no effect because it was a retaliatory notice. That application was dismissed and there is no appeal from the dismissal.
The second application (RT21/45882) was brought by Kylie Latimer and the Respondent was David Latimer. That application sought a declaration under s 11 of the RT Act to the effect that the Respondent's occupancy of certain premises at Wattle Grove NSW was not under a residential tenancy agreement. Alternatively, the application sought an order terminating the tenancy and granting exclusive possession to the owner of the property, Anne Latimer. That application was also dismissed.
The factual background essentially concerns a family dispute. One of the Appellants, Anne Latimer, is the mother of Kylie and David and the mother-in-law of Megan. It is not disputed that Anne suffers from dementia having been diagnosed with Alzheimer's disease, and that in 2017 she appointed Kylie and Megan as her attorneys under an Enduring Power of Attorney dated 30 May 2017. At the same time she also appointed those two people as her guardians under an Enduring Guardian by which they were given authority to make certain decisions on her behalf, jointly and severally.
At first instance Megan was added to the proceedings to become a co-applicant with Kylie, and in the appeal proceedings Anne has been added as a co-appellant.
The basic facts are that in September 2019 David returned from living in China and took up residence in the Wattle Grove premises with Anne and in so doing provided care to her, in addition to the care undertaken by other members of the family. In August 2021 Kylie removed Anne from those premises and Anne now lives with Kylie at Kylie's home. David has continued to reside in the Wattle Grove premises but since August 2021 has provided no care with respect to Anne. The desire of the two Appellants, Kylie and Megan, is to obtain vacant possession of the Wattle Grove premises so that Anne may be returned there with appropriate levels of care or alternatively so that the property might be rented at a commercial rental so as to derive an income to support Anne's care.

Summary of Decision under Appeal

Omitting some of the facts referred to above, the decision under appeal (the Decision) may be summarised as follows: 1. David contends that he was providing care to Anne and that under s 9 of the RT Act he has a Residential Tenancy Agreement. He also contends that on 20 May 2020 he and Anne entered into a Residential Tenancy Agreement. A copy of the agreement was provided to the Tribunal on 23 November 2021: [4] of the Decision. It is dated 22 May 2020 and the reference to 20 May appears to be a typographical error. 2. On 28 September 2021 Kylie issued a Notice of Termination under the RT Act. The Tribunal found that that notice was a Notice of Termination of a periodic tenancy without a reason requiring 90 days' notice to be given, but that only 30 days had been given for David to vacate: [5]. 3. At [11] the Tribunal referred to the contention made by Kylie that Anne did not have mental capacity to enter into the Residential Tenancy Agreement dated 20 May 2020 and the Tribunal said that there was "medical evidence provided that supports the proposition that the landlord [Anne] may have lacked the capacity around that period". The Tribunal went on to say the following: "However, it is clear that the landlord remained in the property with David until she was removed. The agreement was that David provide care arrangements. There is behaviour on the parties that at least there was acceptance of an arrangement. On a balance of probability, I am inclined to accept that there was a Residential Tenancy Agreement as per the terms of the Agreement." 4. At [12] the Tribunal stated that "If there is no basis for the agreement, the counter proposition is that it was a license to occupy". The Tribunal then found that the "landlord did not have capacity to provide a license to occupy." 5. At [16] the Tribunal stated that although a landlord is required to provide only 30 days' notice under s 84 of the RT Act, this notice was issued under s 85. The notice being under s 85 requires 90 days' notice to be given, whereas in fact only 30 days' notice has been given. At [17] the Tribunal found that the notice was not valid. 6. At [18] the Tribunal referred to a second Notice of Termination, which had been issued under s 109 of the RT Act. That section concerns premises that are destroyed or become wholly or partly uninhabitable by reason of a cause that does not involve a breach of the residential tenancy agreement. The Tribunal then stated that there was evidence that the Agreement "presents hardship to the landlord". The Tribunal stated that it was not satisfied that there was hardship because the landlord had been removed from the subject premises by one of the guardians and that therefore there cannot be a claim "that the hardship caused by that action tantamounts [sic] to frustration of the Agreement." 7. At [19] the Tribunal referred to an application for non-publication of the proceedings under s 64 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and made an order prohibiting disclosure of the name of any person subject of the proceedings or who provided evidence in the proceedings.

The Appeal

The Appellants filed a Notice of Appeal on 20 December 2021 and an Amended Notice of Appeal on 3 February 2022. The Amended Notice of Appeal contained an additional ground of appeal (ground 6). Both grounds 1 and 6 assert that the Tribunal erred in finding that the Residential Tenancy Agreement dated 20 May 2020 was a valid agreement. No unfairness arises (or was alleged by the Respondent) as a consequence of the amendment and we will proceed on the basis of the grounds contained in the Amended Notice of Appeal.
The grounds of appeal may be summarised as follow: 1. Ground 1: the Tribunal erred by finding that the Residential Tenancy Agreement of 22 May 2020 is valid. 2. Ground 2: the Appellants had sought, in the alternative, an order under s 93 of the RT Act that the Residential Tenancy Agreement be terminated (ie. by reason of hardship to the landlord) and the Tribunal erred in failing to consider or giving any adequate reasons for not making such an order. 3. Ground 3: the Tribunal erred in failing to consider or give any adequate reasons in relation to the order sought by the Appellants, in the alternative, that termination of the Residential Tenancy Agreement should be made under s 92 of the RT Act. That section concerns the power of the Tribunal to terminate a Residential Tenancy Agreement for threat, abuse, intimidation or harassment. 4. Ground 4: the Tribunal erred in failing to take account of relevant considerations, and taking into account irrelevant considerations. 5. Ground 5: the Tribunal erred in its consideration of the Appellants' application for an order, in the alternative, under s 109 of the RT Act. That section permits the Tribunal to terminate a Residential Tenancy Agreement where the agreement has been frustrated. The Appellants contend that the Tribunal erred in conflating the Appellants' submissions in respect of hardship with the submissions in respect of frustration. 6. Ground 6: the Tribunal erred by failing to provide adequate reasons for the conclusions reached that there was a valid Residential Tenancy Agreement contrary to s 11 of the RT Act and if there was such an agreement that it should not have been terminated under s 109 because it was frustrated.
The Respondent filed a Reply opposing the appeal.

Appellants' Submissions

In the following paragraphs we summarise the effect of the Appellants' submissions in support of the appeal.
In support of ground 6 (in which the contention is made that the Tribunal's reasons were inadequate) the Appellants contend that the reasoning was both inadequate and internally inconsistent. The Tribunal acknowledged that there was medical evidence confirming no capacity and made that finding explicitly with respect to the reference to the possibility of a licence to occupy. The Appellants sought to rely upon fresh evidence, namely an opinion of Dr Sarah Baldwin dated 12 December 2021. We divert to say that generally fresh evidence is not permitted on an appeal but we may admit fresh evidence if justice so requires or if it can be established that the fresh evidence was not reasonably available for consideration at the hearing at first instance. We reject the letter of Dr Baldwin on two bases. First, we are of the opinion that it is not necessary to have consideration to it in coming to the view that we take with respect to the merits of this appeal (as we reveal in the following paragraphs). The second consideration is that there is no evidence as to why the doctor could not have seen Anne earlier in time and thus why the opinion could not have been provided before the hearing which occurred on 6 December 2021. The Appellants contend that the Decision is internally inconsistent in finding that there was no capacity to provide a licence to occupy but at the same time affirming the validity of the written tenancy agreement.
The Tribunal found that Anne had entered into an "arrangement" by which the Respondent could live in the house and found that the terms of that arrangement were contained in the written tenancy agreement. However, the reasons for reaching that conclusion were not explained. Furthermore, there was no explicit finding that the Residential Tenancy Agreement was valid and therefore enforceable. Rather, the Tribunal found that it was "inclined to accept that there was a Residential Tenancy Agreement as per the terms of the Agreement". That conclusion fails to provide a process of reasoning to support it.
Further, the Tribunal failed to consider evidence and submissions in support of the proposition that Anne did not have capacity at the time the Residential Tenancy Agreement was signed by her in May 2020. The Tribunal found the presence of such evidence at [11] and [12]. Further, the terms of the agreement do not make sense from Anne's point of view, given that care was not only being provided by the Respondent but also by two of the three Appellants and other adult children of Anne. Furthermore, the existence of the agreement was not produced or referred to until very close to the hearing of the proceedings before the Tribunal notwithstanding that the Respondent's occupancy of the subject premises had been an issue between the parties for a significant prior period.
Further, the position of the Respondent was inconsistent with the terms of agreement in that the Respondent had paid an arbitrary rental rather the amount required under the agreement (which was $100 per month). The agreement was internally inconsistent in that it expressly limited the rented premises to one-bedroom, but used terms that contemplate that the tenant have exclusive use of the entire property including to the exclusion of the landlord.
The Appellants' submissions also submit that the Tribunal's decision with respect to the application for an order under s 93 concerning alleged hardship suffered by the landlord was not adequately reasoned. A similar submission was made with respect to the Appellants' submissions concerning frustration and the application for an order under s 109. Further, the Tribunal did not address at all the Appellants' application under s 92, concerning alleged threats, abuse, intimidation or harassment by the Respondent.
In support of the submissions concerning grounds 1 and 4 of the Amended Notice of Appeal the Appellant submitted that if the Tribunal had taken into account relevant considerations, the only finding available was that there was no binding Residential Tenancy Agreement. This was so because Anne had no capacity to enter into the alleged agreement as acknowledged in [11] and explicitly found in [12] with respect to the possible grant of a licence to occupy.
Further the Appellants submitted that the conduct of the parties was inconsistent with the terms of the agreement . No payments were made by the Respondent until September and October 2021. Further, the Respondent used the property beyond the bedroom and did not provide adequate care to Anne. The Appellants contend that the terms of the agreement were unworkable as they did not deal with anything other than the bedroom and denied Anne an income stream that would have funded her need for professional care. The usual steps taken before a Residential Tenancy Agreement is entered into were not undertaken. That is to say no tenant information sheet was provided and there was no condition report prepared.
The Appellants contend that the Appeal Panel should declare, in accordance with s 11 of the RT Act, that the purported agreement is not a Residential Tenancy Agreement.
The balance of the Appellants' submissions deal with the submissions made on the alternative basis. That is to say, the Appellants contend that if the Appeal Panel finds for the existence of an agreement under the RT Act, then the agreement should have been or should be terminated by reason of the provisions of s 93 of the RT Act or by reason of s 92 or s 109.

Respondent's Submissions

The submissions of the Respondent are summarised in the following paragraphs below.
The Respondent submits that the Appellants do not refute the provisions of the RT Act that the Respondent argued "require, create and/or confirm a valid tenancy agreement". The Respondent submits that the Tribunal merely found that Anne "may" have lacked capacity and it is for the Appellants to discharge the onus of establishing lack of capacity at the relevant time. The reports of Dr Baldwin, (one being dated 15 September 2021 which was part of the Appellants' evidence and the other dated 12 December 2021 which we have refused to admit for the purposes of this appeal) cannot explain the mental capacity of Anne at the time of the entry into the May 2020 agreement (16 months earlier).
The Respondent submits that there was ample evidence to establish that Kyle,Megan and another sibling requested the Respondent to provide care for Anne from November 2019 and that extensive full-time caregiving and housekeeping was undertaken by the Respondent.
The Respondent referred to the submission of the Appellant that [12] of the Decision was inconsistent when compared to [11]. The Respondent submits that when referring to a licence the Tribunal was not referring to "basic legal permissions" and was intending to refer to a "comprehensive residence agreement that avoids offending residential tenancy law". In the context of [12] the Tribunal was referring to "an understanding or expertise in residential contract law that few people possess". We confess that it is difficult to make sense of this Delphic submission.
The Respondent submitted that the Appellants' case focuses on "one side of the agreement" as though it was an "arm's-length financial negotiation about market rates" but overlooks the "genuine purpose and overwhelming benefit of having a volunteer family full-time carer".
The balance of the Respondent's submissions deal with whether the agreement was validly terminated by reference to the provisions of the RT Act. Given our views about whether there was a legally binding agreement regulated by the RT Act as set out in the balance of this decision, it is unnecessary to deal with the balance of the Respondent's submissions.
At the hearing of the appeal the Respondent also relied upon s 9 of the RT Act and submitted that an arrangement falling under that section had been made by him with one of the Appellants (Kylie) and not with Anne.

Consideration

In our view, the appeal must be upheld and the dismissal of the application brought by two of the Appellants set aside. The reasons for coming to that view are set out in the following paragraphs.
We agree with the Appellants' submissions with respect to ground 6 in that the reasoning of the Tribunal was both inadequate and internally inconsistent. The Respondent had alleged that there were two agreements which gave him protection under the RT Act. The first agreement was an agreement under s 9, and the second was the written tenancy agreement of 22 May 2020. The Tribunal did not address the question of whether there was an agreement under s 9. The Tribunal stated that it was "inclined to accept that there was a residential tenancy agreement as per the terms of the agreement of 20 May 2020". The Tribunal went on to find that Anne did not have capacity to provide a licence to occupy. It is difficult to understand how the lack of capacity for a licence could nevertheless lead to the finding (implicitly made) that Anne had capacity to enter into the 22 May 2020 agreement.
Putting aside the inconsistency between the implicit finding for mental capacity with respect to the 22 May 2020 agreement and the opposite finding with respect to the licence, the basis for the finding that there was capacity with respect to the 22 May 2020 agreement was that there was "behaviour on the parties that at least there was acceptance of an arrangement". In our view, the finding of an arrangement based upon unspecified behaviour is an inadequate justification for the implicit finding that the 22 May 2020 agreement was a binding agreement regulated by the RT Act. The terms of the alleged agreement were not considered and had that occurred a different conclusion may have been arrived at as we explain later in these reasons.
Further, the Tribunal referred to the medical evidence that it stated supported the proposition that Anne may have lacked capacity and made no finding or explanation as to why that evidence was to be disregarded other than to say that Anne remained in the property pursuant to an agreement that the Respondent was to provide care arrangements. An arrangement for the Respondent to provide care arrangements does not explain why the medical evidence relevant to Anne's mental capacity was disregarded, and indeed the arrangement with the Respondent to provide care arrangements is consistent with the medical evidence.
Ground 6 is upheld and it follows that there is no need for the other grounds of the appeal to be considered.
Accordingly, we propose to order that the order made by the Tribunal at first instance dismissing the application of Kyle and Megan be set aside.
It follows from the above that it is necessary either for the application to be remitted to the Consumer & Commercial Division of the Tribunal or pursuant to s 81(2) of the NCAT Act we may determine the application. We are of the opinion that we have sufficient evidence before us to enable us to determine the application and in the following paragraphs consider the application.
There is ample evidence that when the Respondent returned from China in November 2019 he and others of Anne's children agreed to share care arrangements for Anne which included provision for the Respondent to reside in Anne's home at Wattle Grove. Kylie's email of 12 November 2019 sets out a care plan and in that email she states her opinion, which is that "Mum is not capable of doing things on her own anymore despite her perceived willingness to suggest she can. Mum should not leave the house alone. Public transport is a no go. Mum must be accompanied by a chaperone - family member, known friend or carer". The email contains a lengthy and detailed description of what is required for Anne's care. The Respondent's email a month later (17 December 2019) to two of the Appellants and his brother states that Anne is "unable to make legally-binding decisions, such as to open a bank account".
By letter dated 10 February 2021 solicitors acting for Kylie and Megan wrote to the Respondent asserting that the Respondent's occupancy of the subject premises was "by invitation only". The Respondent replied by letter dated 6 April 2021 in which he stated "my situation is best covered by section 9" of the RT Act.
Section 9 is in the following terms: 9 Employee and caretaker arrangements (1) An agreement or arrangement under which a person is given the right to occupy premises for the purpose of a residence in return for, or as part of remuneration for, carrying out work in connection with the premises or the person's employment is taken to be a residential tenancy agreement. (2) This section applies even if the premises are part of premises referred to in section 7 or other premises exempted from this Act by the regulations, (3) However, this section does not apply to a person employed as a manager or another full-time employee in a community within the meaning of the Residential (Land Lease) Communities Act 2013.
In our view, s 9 is not applicable to the circumstances set out above. Section 9 requires that there be an agreement or arrangement under which a person is given the right to occupy premises "in return for, or as part of remuneration for, carrying out work in connection with the premises or the person's employment". In this case there was no contract of employment alleged. Nor has it been alleged that there was an agreement for the carrying out of work in connection with the premises. All that has been alleged by the Respondent is that he agreed to live with Anne at her premises and care for her in conjunction with care offered by others. In our view, the arrangement was an arrangement amongst family members having no legal effect. In other words the Respondent was not under a legal obligation to provide care.
In our view the agreement of 22 May 2020 is not binding upon Anne because we are satisfied that at that time she did not have the requisite level of mental capacity to enter into a binding agreement. Any thought that Anne may have experienced a recovery since the emails referred to above, dated towards the end of 2019, can be set aside when one considers the email from the Respondent's brother, Tony, dated 23 May 2020 (coincidently within a day of the date of the 22 May 2020 agreement) in which Tony reports on a recent assessment of Anne's condition. He records that the doctor is confident that Anne's' "capacity completely gone." The Respondent's evidence at first instance confirmed that he was aware that in May 2020 Anne had dementia (Transcript pT74 l 151).
In our view the above evidence is sufficient for us to find that we are more than satisfied that at the time the 22 May 2020 agreement was signed Anne had no mental capacity to enter into that agreement or indeed any other legally binding agreement. If any doubt existed about that finding further satisfaction can be derived by considering the terms of the agreement itself. It is for a term of three years (until 1 May 2023). Given Anne's declining circumstances it is difficult to see how a term of three years could benefit her. It provides for rent to be paid at $100 per month but goes on to provide that the rent may be paid by "domestic care or work in lieu of payment at rate of $10 per hour". That has the effect that the Respondent had no monetary obligation to Anne after he had undertaken 10 hours work per month. Although he may have provided care much more extensively than that (and indeed he contends that it was a full-time occupation) that commitment was entirely voluntary in the sense that it did not involve working off a monetary obligation. Further, the premises which are rented are described as the whole of the residential address which includes "room 2 only (next to laundry)". That description of the residential premises is difficult to align with the Respondent's contention that he had exclusive use of one room only as well as the obligation to care for Anne by having access to the balance of the house. In other words, it does not appear to recognise Anne's rights to occupy the premises.
There was evidence before the tribunal that the market rental for the premises was in the region of $570 to $650 per week. If we accept $600 per week as market rent (that being approximately $2400 per month) it is clear that the alleged agreement denied Anne's opportunity to earn a considerable income for three years which may have become necessary to support her care if her condition required removal to a nursing home. This consideration reflects, in our view, that Anne did not enter into the agreement at a time when she was in command of her mental faculties.
A further feature of concern when assessing the Respondent's contention that the agreement of 22 May 2020 was a binding agreement is that he did not rely upon it until August 2021 (his contention) or November 2021 (the Appellants' contention). It was not relied upon in the Respondent's letter to the Appellants' solicitors referred to above. When questioned at the appeal hearing as to why the agreement had not been disclosed earlier he said that he did not wish to inflame family tensions. Given that two of the other parties had been appointed attorneys under a power of attorney as well as guardians of Anne one would have thought that candour and transparency might have assisted rather than hindered family relationships. The lack of transparency is consistent with the possibility that the Respondent himself did not regard the agreement of 22 May 2020 as having a binding effect on himself and his mother and that only chose to rely upon it when he thought he might be required to give up occupation of the premises.
Although a Notice of Termination was issued it was made clear that it was issued against the possibility that the Tribunal might find, contrary to the primary position of the applicants that there was no tenancy agreement, that there was a residential tenancy agreement. That is made clear in the covering letter dated 26th September 2021 to the Notice to Terminate dated 28th September 2021 in which it is stated that the existence of right to exclusive occupation is not conceded. The conduct of the Appellants is not inconsistent with their stance that there was no residential tenancy agreement and that they are entitled to a declaration to that effect under s11.
Section 11 of the RT Act is in the following terms: 11 Declaration by Tribunal The Tribunal may, on application by the Secretary or another person, make an order declaring that a specified agreement is, or is not, a residential tenancy agreement to which this Act applies or that specified premises are, or are not, premises to which this Act applies.
Having regard to all of the evidence referred to above we are satisfied that it is appropriate in this case to make declarations as sought by the Appellants.
The Appellants seek an order under 64 of the NCAT Act that the names of the parties and witnesses not be disclosed. Such an order was made at first instance. Whilst we understand that the Appellants would prefer not have a family dispute made public there is the fundamental principle that legal proceedings should be open and transparent . Section 64 requires us to be satisfied that by reason of the confidential nature of any evidence or matter it is desirable to prohibit or restrict disclosure of the names of a party or other person. We are not so satisfied and decline to make such an order.
The Appellants seek costs of the appeal and we will make appropriate directions for the parties to file and serve evidence and submissions on costs (which should address whether it is appropriate for us to dispense with a hearing on costs and decide costs on the basis of the written submissions).

Orders

Accordingly, the orders we make as follows: 1. Appeal upheld. 2. The dismissal order made on 10 December 2021 in respect of application number RT21/45882 is set aside. 3. Pursuant to section 11 of the Residential Tenancies Act 2010 (NSW) (the RT Act) it is declared that neither the residential tenancy agreement contended for by the Respondent under s 9 of the RT Act nor the alleged residential tenancy agreement contended for by the Respondent and bearing date 22 May 2020 is an agreement to which the RT Act applies. 4. Pursuant to s 11 of the RT Act it is declared that the Respondent's occupancy of the subject premises is not a residential tenancy agreement. 5. The Appellants must within 21 days file and serve evidence and submissions in support of an application for an order that the Respondent pay the Appellants costs of the appeal. 6. Within 21 days thereafter the Respondent must file and serve evidence and submissions in opposition.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2022

Administrative Tribunal Act 2013(NSW)

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (2)

Cited By (2)