Linda Kendray v New South Wales Land and Housing Corporation

Statutory framework

1. The legislation relevant to this internal appeal is the Residential Tenancies Act 2010 NSW (the RT Act) and the Civil and Administrative Appeal Tribunal Act 2013 (NSW) (the CAT Act). The orders which are the subject of this internal appeal were made by the Tribunal under s 87 of the RT Act.
2. Section 87 of the RT Act provides: Breach of agreement (1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach. Note : Section 152 sets out additional matters to be considered if the residential tenancy agreement is a social housing tenancy agreement.
3. There is no dispute Ms Kendray's tenancy was pursuant to a social housing tenancy agreement. As such s 152 of the RT Act applies. Section 152 provides: Termination by Tribunal of social housing tenancy agreements for breach (1) In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant: (a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement. (2) This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act.
4. Part 6 of the CAT Act deals with appeals. Section 80(2)(b) of the CAT Act provides that an internal appeal may be made to the Appeal Panel of the Tribunal as of right in respect of a final or ancillary decision on a question of law but with the leave of the Appeal Panel on any other grounds. Relevantly, cl 12 of Schedule 4 of the CAT Act provides that, for the purposes of s 80(2)(b), the Appeal Panel may grant leave to appeal in respect of a decision made by the Consumer and Commercial Division but only if satisfied that the appellant may have suffered a "substantial miscarriage of justice" because the decision was not fair and equitable or against the weight of evidence or significant new evidence is available that was not available at the hearing
5. There is no contest that the Appeal Panel has jurisdiction to determine this internal appeal. The key issue is whether an error of law was made by the Tribunal below in terminating the residential tenancy agreement and making an order for possession and, if not, whether Ms Kendray should nonetheless be given leave to appeal the decision on grounds that she may have suffered a substantial miscarriage of justice.

Grounds of appeal and submissions of the parties

1. In her Notice of Appeal, Ms Kendray set out her grounds of appeal as follows: Because this time I have done nothing wrong with the shade cover I put up two years ago when Housing NSW did the same thing tried to kick me out, they Housing approved it and gave back my lease. And further: This is not about what I did in the backyard 2 year ago, this is about the builder's (sic) and the way they did some of the work and I was always ringing Luke at housing NSW.
2. This was amplified in a document attached to the Notice which, in summary, raised the following complaints: 1. Ms Kendray had been living at the premised for the past 19 years with her 6 children. 2. She had been trying to improve the condition of the property but had ongoing disputes with the respondent about the work that needed to be done. The respondent had not completed the work. There were problems with mould, drainage and asbestos in the walls. 3. The respondent had discriminated against her when she complained. 4. Ms Kendray had erected an outdoor structure two years ago which she did at her own expense but without council consent because she did not think it was needed. 5. The house was very old, run down and needed ongoing maintenance. This was unhealthy for the children.
3. Ms Kendray included photographs to demonstrate her concerns, which showed, amongst other things, mould on and damage to the walls, floors and carpet, cracked tiles and mushrooms growing inside the house.
4. In further written material provided, Ms Kendray submitted that the respondent was wrongly trying to evict her because she had complained about repairs to the property and the workmen who came to the site. She had bi-polar disorder and depression and ongoing battles with the respondent. Ms Kendray said she had not attended the last hearing because she did not realise the hearing was listed. She had complied with the orders and would take down the structure.
5. In its Reply, the respondent submitted that the appeal was without merit, setting out the "key points" as follows:

• The Tenant has not removed the unauthorised and non-compliant structure and continues to breach her tenancy agreement.
• The unauthorised structure is unsafe and presents a significant safety risk to the occupants (including children). Failure to have the structure remove from the dwelling mat (sic) result in serious injury or death.
• The Tenant has not brought the external and internal areas of the property up to an acceptable condition and continues to breach her tenancy agreement.
• Housing NSW did not approve the structure to be built at the dwelling
• The Tenant has been provided with demands from both Housing NSW and the NCAT to remove the structure and clean up the property.
• The Tenant has a history of not providing access to the property and parts of the property for the purposes of inspections and access by contractors who have been hampered in completing assessment of the property and in the course of carrying out their duties.
• The Tenant was informed of the latest NCAT hearing where the decision to terminate her tenancy was made and chose to not attend. She was she has not given reasons why she did not attend or supplied evidence to justify her non-attendance and rehearing/appeal.
• The Tenant has failed to freely engage with Housing NSW and officers of NSW Community Services and has been recalcitrant in cooperating with these services.
• Housing NSW has recently expended approximately $35,000 in upgrading and repairing rental damage at the property. The Tenant has advised Housing NSW that some of the recent upgrade work has already been damaged however Ms Kendray has refused access for this damaged to be inspected.

1. The respondent further submitted that the appeal should be rejected because Ms Kendray had not provided any evidence to support her contention she had complied with the orders, the grounds on which she was appealing were unclear, Ms Kendray admitted to having the structure built and has refused to remove it and external areas of the property are in an "appalling condition."
2. In oral submissions at the hearing, counsel for the respondent submitted that leave to appeal should not be granted because there was evidence that the breaches of the residential tenancy agreement were serious, there was evidence Ms Kendray had been notified of the hearing date in the Tribunal below yet there was no satisfactory explanation for her non-appearance, a specific performance order had been made on 6 February 2014 and Ms Kendray had failed to comply with the order even though she had been given a second chance. There was no substantial miscarriage of justice and any concerns Ms Kendray had about workmen and the repair of the premises were independent of the issues raised by the respondent in the proceedings which were the subject of the orders made on 14 August 2014. In particular, the respondent relied upon the chronology of events and photographs which showed the condition of the property in the months prior to the hearing.

The decision at first instance

1. The orders made by the Tribunal on 6 February 2014 are relevant because the hearing on 14 August 2014 resulted from the respondent relisting the matter for non-compliance with these orders. The orders made on 6 February 2014 were as follows: 1. The tenant must comply with the terms of the residential tenancy agreement by keeping the residential property in a reasonable state of cleanliness both inside and out. 2. The tenant must comply with the terms of the residential agreement by; 1. removing or causing removal of the structure added to the residential premises without the landlords written permission on the basis that the structure is structurally unsound on before 14th of February 2. restore the property to a state of cleanliness to comply with clause 14 of the lease to keep the residential premises reasonably clean on before 6th June 2014. 1. Leave is granted to the landlord to apply to relist the application before the Tribunal in the event there was non-compliance with these orders.
2. The reasons of the Tribunal in respect of the orders made on 14 August 2014 were brief and were in the following terms: 1. The Tribunal is satisfied that notice of today's hearing has been served on the respondent and in the interests of justice the application should be dealt with notwithstanding the respondent not appearing. Reasons The file contains a copy of a notice of today's hearing addressed to the respondent and the Tribunal has regard to the contents of the statutory declaration made by the Divisional Registrar on 30-Jul-2014. The evidence is that the tenant has been verbally advised of the hearing date by an officer of the landlord. The matter is a serious one. 2. The Residential Tenancy Agreement is terminated in accordance with s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. Failure to keep premises reasonably clean, to notify the landlord of damage, to obtain the landlord's consent to installation of a fixture, to allow the landlord access. Reasons a) the tenant has failed to comply with orders directed to remedying the alleged breaches made on 6-Feb-2014; b) the tenants actions/inaction is damaging the property; c) there may be a risk to health because of the condition of the property; d) the evidence establishes that the breaches regarding cleanliness, notification of damage and installation of a fixture with prior approval are serious; e) the tenant has refused to allow the landlord access to parts of the premises f) the history of the matter is such that the Tribunal has no reason to believe the breaches will be remedied. 3. The Residential Tenancy Agreement is terminated on 04-Sep-2014 and possession is to be given to the landlord on the date of termination. 4. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 5. The landlord is to advise the tenant in writing by the delivery of a letter to the premises by 6:00pm on 14-Aug-2014 of the orders made today.

Preliminary issue - extension of time

1. Under rule 25(4) of the Civil and Administrative Tribunal Rules 2014 an internal appeal against a decision in a residential tenancy matter must be instituted within 14 days of the date on which the appellant was notified of the decision. Section 41 of the CAT Act provides that the Tribunal may extend time for the doing of act. On the assumption Ms Kendray was notified of the decision on 14 August 2014 (and there is no evidence to the contrary) any appeal would have had to be lodged by 28 August 2014. Ms Kendray's appeal was lodged on 2 September 2014, which is 5 days out of time. She therefore needs an extension of time to lodge the appeal.
2. The relevant principles to be applied in the exercise of the discretion to extend time were considered by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The matters to be considered include the length of any delay, the reasons for the delay, whether the appellant has a fairly arguable case and the extent of any prejudice suffered by the respondent. It is for the applicant of the extension of time to establish that strict compliance with the rules would constitute an injustice (Gallo v Dawson [1990] HCA 30; (1990) 93 ALR; (1990) 64 ALJR 458).
3. Ms Kendray did not give any explanation for her delay but did not appear to understand her appeal had been lodged out of time.
4. The Appeal Panel decided to extend time and in so doing had regard to the following:

• The period of the delay was short;
• Ms Kendray was self-represented and appeared to have little understanding of the appeal process or time limits but nonetheless filed the appeal promptly;
• There was no prejudice identified by the respondent resulting from the delay; and
• The material before the Appeal Panel disclosed there was a fairly arguable case to challenge the decision, for the reasons outlined in more detail later in this decision.

1. The Appeal Panel was satisfied in the circumstances of this case that to insist on strict compliance with the rules would be an injustice and accordingly decided to give Ms Kendray an extension of time to lodge her appeal.

Does the appeal raise a question of law?

1. Ms Kendray's grounds of appeal, as expressed in her Notice of Appeal and written submissions, do not raise any easily identifiable question of law. Furthermore, she did not complete the Notice of Appeal form correctly and did not specify whether or not she was seeking leave to appeal. Ms Kendray nonetheless provided detailed written submissions which raised issues about longstanding disputes between her and the respondent and, in essence, contended that the Tribunal below should not have terminated her lease in circumstances where the premises were in a poor state of repair. She also submitted that the action by the respondent against her in relation to the outdoor shade structure was taken because she had complained about the respondent's workers.
2. Ms Kendray represented herself in the proceedings. In her written material, Ms Kendray contended she has bi-polar disorder and depression. While no medical evidence was provided to support this claim, it was apparent from Ms Kendray's written submissions and presentation at the hearing that she had difficulty in focussing on and understanding the nature of an internal appeal or the issues that were relevant to the determination of the appeal. She was repetitive, raised irrelevant matters and her oral submissions were generally non-responsive to the issues she was asked to address, albeit not deliberately so. It was also apparent she did not have legal assistance in the preparation of her Notice of Appeal and submissions.
3. The Tribunal must give effect to the guiding principle when exercising functions under the CAT Act, which is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 36(1)). This is reinforced by s 38(4) which provides that the Tribunal is required to act with "as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."
4. The Appeal Panel is mindful that it may be difficult for self-represented appellants, particularly those with mental health issues, to clearly express their grounds of appeal or, even more challenging, identify a question of law. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the reasons of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. We note that the Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice." [emphasis added]
5. The thrust of Ms Kendray's submissions were to the effect that the decision was not fair and equitable and against the weight of evidence. She provided photographs to support her claims. The Appeal Panel therefore discerned that Ms Kendray was seeking leave to appeal on the basis that she may have suffered a substantial miscarriage of justice on one or more of the grounds set out in cl 12 of Schedule 4 of the CAT Act.
6. The difficulty in this matter is that the reasons of the Tribunal below are brief. On the face of it, they do not comply with s 62(3) of the RT Act, which provides as follows: (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.
7. The reasons set out findings made but do not disclose the evidence on which the findings are based and they do not set out the reasoning process that lead the Tribunal to the conclusions it made or the Tribunal's understanding of the applicable law. There is a reference to s 87 but not to s 152 of the RT Act.
8. The Tribunal found that Ms Kendray had not complied with the orders made by the Tribunal on 6 February 2014 and had breached her residential tenancy agreement by failing to keep the premises reasonably clean, failing to notify the respondent of damage to the premises and installing a fixture without prior approval. These breaches were found to be serious. However, there was no finding by the Tribunal that the breaches were sufficient to justify termination of the agreement in the circumstances of the case, as required by s 87(4)(b) of the RT Act. Nor do the reasons refer to the matters set out in s 152, which are mandatory considerations in so far as they may be relevant to the social housing tenancy agreement. This raises a further question as to whether the Tribunal properly considered the matters set out in ss 87 and 152 when exercising its discretion to terminate the lease.
9. There can be no contest that the adequacy of reasons and compliance with s 62 of the CAT Act raises a question of law. Similarly, the question of whether the Tribunal erred in failing to take into account a relevant consideration in the exercise of discretion, being the matters referred to in ss 87 and 152 of the RT Act, is also a question of law: House v King (1936) 55CLR 499 and Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297. However, neither Ms Kendray nor the respondent raised the adequacy of the reasons of the Tribunal below as a possible ground of appeal during the hearing or in their submissions. Nor was there any question raised about whether the Tribunal had miscarried in the exercise of its discretion.
10. To form a view about whether the Tribunal miscarried in the exercise of its discretion or whether there may have been a substantial miscarriage of justice, the Appeal Panel must examine the reasons for decision. The reasons disclose potential errors of law. However, the issues were identified by the Appeal Panel after the hearing and the respondent did not have the opportunity to make submissions in response. Given these issues were potentially adverse to the respondent's case to afford procedural fairness, the respondent was invited to address these matters in supplementary submissions.

Supplementary submissions of the respondent

1. The respondent made the following submissions, which were persuasive, detailed and warrant careful consideration because they go to the crux of the matter: 1. Section 87 of the RT Act addresses breach of the residential tenancy agreement. Section 87(5) lists the matters that the Tribunal may consider when determining whether the circumstance of the case warrant the exercise of the Tribunal's discretion to make a termination order. The Tribunal is not required to address each of the considerations listed, only those factors determined by the Tribunal to be relevant. 2. The reasons disclose that the Tribunal deemed relevant and considered the following matters: 1. The nature of the breach (s 87(5)(a)): The Tribunal characterised the matter is a serious one and characterised the breaches regarding cleanliness, notification of damage and installation of a fixture without approval as serious. 2. Any steps taken by the tenant to remedy the breach (s 87(5)(c)): The Tribunal considered the appellant's failure to remedy the breach, including the appellant's failure to comply with the specific performance orders made by the Tribunal on 6 February 2014 and the appellant's refusal to allow the respondent access to the premises. 3. Any steps taken by the landlord about the breach (s 87(5)(d)): The Tribunal noted that the respondent had attempted to access the premises but was refused access. The Tribunal also had regard to the previous specific performance orders made by the Tribunal in response to the respondent's application for breach. 4. The previous history of the tenant (s 87(5)(e)): The Tribunal had regard to the specific performance orders made by the Tribunal on 6 February 2014. 1. Section 152 of the RT Act sets out the additional matters to be considered by the Tribunal where breach a social housing tenancy agreement as alleged. The Tribunal is not required to address each of the considerations listed that only those factors determined to be relevant. 2. The reasons disclose that the Tribunal deemed relevant and considered the following matters in relation to s 152: 1. Any serious adverse effects on neighbouring residents (s 152(1)(a)): Consideration of this matter was said to be subsumed by the Tribunal's findings that there may be a risk to health because of the condition of the property. 2. Whether any breach was a serious one (s 152(1)(b)): The Tribunal considered the seriousness of the breaches and determined that the evidence established that the breaches regarding cleanliness, notification of damage and installation of a fixture without prior approval were serious. 3. Whether, given the behaviour or likely behaviour of the tenant, a failure to terminate would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk (s 152(1)(b)): Consideration of this matter was said to be subsumed by the Tribunal's findings that there may be a risk to health because of the condition of the property and that there was no reason to believe the breaches would be remedied. 4. The landlord's responsibility to other tenants (s 152(1)(c)): The Tribunal's consideration of the landlord's responsibility to other tenants was subsumed by the Tribunal's finding that there may be risk to health because of the condition of the property. 5. Whether the tenant was in breach of an order of the Tribunal (s 152(1)(d)) and the history of the tenancy concerned (s 152(1)(e)): The Tribunal clearly considered the specific performance orders made by it in relation to the agreement and found the appellant had failed to comply with orders directed to remedy the alleged breaches. This was expressly referred to in the reasons. 1. In determining whether the obligation to give reasons had been discharged the following must be borne in mind: 1. In assessing reasons, it is not best approached with an "eye keenly attuned to the perception of error": Minister For Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 2. Substantial compliance with the obligation to give reasons is required not perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal [1982] FCA 58 and P v Child Support Registrar [2015] FCA 116. 3. The reasons need not deal with every detail of the evidence but must set out those parts of the evidence which are important for the conclusions arrived at: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 77 ALR 577 and P v Child Support Registrar. 4. The reasons as a whole should be considered rather than any isolated part. If the decision as a whole disclose is sufficient consideration of the important facts, evidence and law, then the court will not uphold the appeal: O'Brien v Repatriation Commission (1984) 1 FCR 472. 5. It is a mistake to conclude simply from the fact that the Tribunal does not refer, or does not refer in detail, to some aspect particular aspect of the case that it has escaped the attention of the Tribunal. 1. Having regard to these principles and the decision as a whole, the respondent submitted that the decision disclosed sufficient consideration of the important facts, evidence and law such that the Tribunal has complied with the obligation under s 62(3). In particular, the decision makes it clear that the Tribunal: 1. considered whether the appellant had been duly served with the hearing notice, considered the nature of the application and, in determining it to be a serious matter, proceeded to determine the application in the absence of the appellant; 2. understood the nature of the application; 3. made findings of fact on the evidence before it and, in particular considered that the agreement had been breached because of the conduct of the part of the appellant in failing to keep the premises clean, failing to notify the respondent of damage to the property, failing to obtain the respondent's consent to install a fixture and failing to allow the respondent access to the premises; and 4. considered the matters listed in ss 87(5) and 152(1) and therefore understood and applied the relevant provisions of the RT Act.

Consideration - adequacy of reasons and exercise of discretion

1. The nature and extent of the obligation to give written reasons under the general law and pursuant to s 62 was discussed by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [43] to [64]. Relevantly, the Appeal Panel referred to Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 in which Basten JA observed at [48] as follows: When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality.
2. In this case, the Tribunal provided written reasons and was therefore obliged to comply with the requirements set out in s 62(3) of the CAT Act.
3. The reasons record findings that there were breaches of the residential tenancy agreement, these breaches were serious and Ms Kendray had failed to comply with the orders made on 6 February 2014. There is reference to "the evidence", without specifying the evidence relied on by the respondent or considered by the Tribunal.
4. The evidence before the Tribunal below included photographs of the property (apparently taken in June and July 2014) showing rubbish outside the property, dirt and mould on walls and floors, damage to a wall and graffiti on a door inside the house covering more than half the door. The respondent also relied on photographs of the property which were apparently taken in November 2013 and were the basis for the original application filed in January 2014. These photographs showed rubbish and cans around the outside of the property, a large structure covered by shade cloth, rubbish in a bedroom and graffiti on an internal door. The photographs of June and July 2014 showed rubbish outside but the area was considerably cleaner than as portrayed in the November 2013 photographs. However, it was otherwise difficult to compare the photographs to assess the extent of any improvement following the orders made on 6 February 2014.
5. The respondent relied on an 'Adverse Contact Notice' from Albury Police dated 28 June 2014, which was before the Tribunal below and was served by the respondent in response to the directions made by the Appel Panel. The report was handwritten and included the following: Domestic incident. Police arrived. The house on the outside is putrid and resembles a rubbish tip. This being a health hazard, police refused to go inside, however, had the victim open the front door. The mess continued inside the house. The smell coming from the property is also putrid.
6. Ms Kendray objected to this report being tendered because it arose out of a domestic violence incident involving one of her children who she said had a medical condition. There was no evidence before the Appeal Panel about the circumstances leading to the incident and the author of the report was not available to give evidence. Relevantly, this report was not referred to in the reasons.
7. Even if little weight is given to this report, the balance of the evidence before the Tribunal at first instance (as provided to the Appeal Panel) was to the effect that the premises were not clean (either inside or outside), there was damage and graffiti to the walls and the unauthorised structure had not been removed. As such, the findings of the Tribunal about the condition of the property and the breaches of the residential tenancy agreement were therefore reasonably open to the Tribunal.
8. We accept the respondent's submission that Ms Kendray's assertion that the premises were in a poor state of repair is not relevant to the finding there was a serious breach of the residential tenancy agreement by Ms Kendray or the finding that she had failed to comply with the Tribunal orders of 6 February 2014.
9. Notwithstanding this, the critical issue is whether the reasons meet the minimum standard contemplated by Resource Pacific Pty Ltd v Wilkinson and by the Appeal Panel in Collins v Urban and comply with s 62(3) of the CAT Act.
10. In our view they do not.
11. As observed by Young JA in NSW Land and Housing Corp v Thurlow [2010] NSWCA 11 at [15] in an appeal against a decision by the former Consumer Trader and Tenancy Tribunal to terminate a social housing tenancy under similar provisions in the previous legislation: It is a very serious matter for a person to be threatened with the loss of his or her home. The legislation, the Residential Tenancies Act 1987, treats it as a serious matter.
12. This was not a simple residential tenancy dispute. The proceedings before the Tribunal were about the right of Ms Kendray to continue to occupy the premises where she has lived for a number of years as a social housing tenant. The RT Act treats this as a serious matter and requires the Tribunal to be satisfied that the breach is sufficient to justify termination in the circumstances of the case. There was no finding by the Tribunal to this effect. Moreover, the Tribunal must have regard to the matters in s 152(1) of the RT Act insofar as they are relevant. There was no reference in the reasons to this provision or to any of the matters enumerated in the provision.
13. The matters that may be considered by the Tribunal in considering the circumstances of the case are those set out in s 87(5) of the RT Act. The matters that must be considered, where they are relevant, are those set out in s 152(1).
14. The respondent submitted that it can be discerned from the reasons, while not expressly stated, that the Tribunal had regard to the matters referred to in sections 87(5) and 152(1) because of the findings set out at paragraphs (a) to (f) of the reasons.
15. While we accept that the adequacy of reasons should not be approached with an "eye keenly attuned to the perception of error," the respondent seeks to attribute findings, reasoning and evidence to the decision at first instance that is, on any view, overly generous.
16. For instance, it is submitted the Tribunal took into account s 87(5)(c), being any steps taken by the tenant to remedy the breach, because of the finding the Tribunal made that Ms Kendray had failed to comply the orders of 6 February 2014 and had refused the landlord access to the premises. However, these findings do not of themselves constitute a finding about steps taken by Ms Kendray. Ms Kendray may have taken significant steps but still failed to comply with the orders of 6 February 2014. The reasons are silent on this matter. A further difficulty is that the Tribunal has not set out the basis for these findings or the evidence relied on to support the findings. It was apparent from the evidence below that some steps were taken to comply because the photographs, provided by the respondent, suggest there was improvement in the condition of premises, albeit modest. There was no discussion of this issue in the reasons.
17. Similarly, it is submitted that the Tribunal took into account s 87(5)(b), being the previous history of the tenant, because of the finding that the Tribunal had regard to the breach of the specific performance orders of the Tribunal on 6 February 2014. However, there was no discussion in the reasons about the previous history of Ms Kendray, nor is it apparent that there was evidence about her prior history over and above the evidence relating to the breach of the specific performance orders. This was clearly a relevant consideration. The previous history of Ms Kendray, any previous breaches, the impact on neighbouring residents and whether Ms Kendray's breach was wilful would have been relevant to the exercise of discretion under s 87(4) as informed by the mandatory considerations in s 152. For instance, if Ms Kendray had been a tenant for nearly 19 years, as she contends, and had substantially complied with her various residential tenancy agreements over this period, this may have been a factor that would weigh against termination. Conversely, if there was evidence Ms Kendray had repeatedly breached her residential tenancy agreements, this would weigh in favour of termination.
18. The reasons either do not disclose whether these matters were considered, or if they were, the evidentiary basis for the finding is not apparent.
19. We also note that there was no material before the Tribunal at first instance, nor were there findings, to support submissions by the respondent in the Reply about matters that may well have been relevant to the exercise of discretion under the RT Act. For instance, it was submitted the respondent had spent approximately $35,000 in upgrading and repairing rental damage to the property, this work had already been damaged and Ms Kendray had refused access for this damaged to be inspected. There was no evidence or findings about this. It was submitted Ms Kendray had failed to "freely engage with Housing NSW and officers of NSW Community Services and has been recalcitrant in cooperating with these services." There was no evidence or findings about the services offered or the failure.
20. In summary, the reasons do not disclose sufficient detail about the basis for the findings of fact, the relevant law, how the law applied to the facts and, importantly, the basis on which the discretion to terminate was exercised. The respondent cannot make good the reasons by doing the work the Tribunal should have done. As observed by Hidden J in CIC Allianz Australia v Daniel Luke McDonald & ors [2012] NSWSC 887 at [14] it was impermissible for Counsel to "enunciate the reasons the assessor might have given in arriving at the conclusion he did" when "the assessor himself did not express any such reasons." His Honour set aside the assessment certificate of the assessor which was the subject of the appeal stating: Whether there was material upon which he could have arrived at his conclusion, of course, is not a matter I am called upon to decide in these proceedings. The fact remains that in his reasons the assessor failed to deal with the report, which was an important part of Allianz's case in response to an equally important part of Mr McDonald's claim.
21. The exercise of a statutory discretion, in this case s 87(4) of the RT Act, may only be overturned in limited circumstances (refer BZE v NSW Public Guardian [2015] NSWCATAP 64 at [15] citing House v The King and Hannaford v Commonwealth Bank of Australia as to the grounds). However, whether a decision can or should be overturned is dependent on the party seeking to challenge the decision, and indeed the appellant tribunal, understanding the basis on which the discretion was exercised. In this case, this cannot be clearly discerned from the reasons. In these circumstances, the inadequacy of the reasons has the potential to "render effectively worthless any appeal right" (refer Collins v Urban at [49]).
22. Accordingly, the appeal is allowed.
23. The Appeal Panel did not have sufficient evidence to rehear this matter under s 80(3) and the most appropriate course is to remit the proceedings for reconsideration to the Consumer and Commercial Division. 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: 14 July 2015