Loch v New South Wales Land and Housing Corporation

Background 4Ms Loch applied to the Tribunal under s 190 of the Residential Tenancies Act 2010 (NSW) in relation to alleged breaches of her residential tenancy agreement. She sought orders including orders for compensation and repairs to the premises. 5The matter was listed for hearing on 16 June 2014 at Tweed Heads. On the day of the hearing the Tribunal invited the parties to attempt to resolve the matter by conciliation. A representative of NSW Land and Housing Corporation made an offer to Ms Loch that the proceedings be resolved by an agreement that: Rent is to abate for the period of 13 weeks from today. The respondent will give the applicant 48 hours notice of any access to the premises sought by its officers, authorised representative or contractors to inspect the premises and/or carry out any works 6After this offer had been conveyed, Ms Loch attempted to telephone the Tenants Advice and Advocacy Service but was not able to make contact. She went back into the hearing room. The Tribunal Member gave her a further opportunity to telephone the Tenants Advice and Advocacy Service. Again Ms Loch was unable to make contact. She then told the Member that she would accept the offer of settlement. 7Ms Loch signed a written agreement and the Tribunal made the following orders: By consent, in full and final settlement of SH 14/13980 the parties agree a)Rent is to abate for a period of 13 weeks from today b)The respondent will give the applicant 2 days' notice of any access to the premises by an officer, contractor or authorised representative of the respondent to inspect the premises and/or carry out works. 8Ms Loch says that she was confused and intimidated by the conciliation with the NSW Land and Housing Corporation and became upset and disoriented. She says that as she was walking down the steps outside the building after the hearing, she realised that because she was paying $100 a week in rent, the amount she would receive would be approximately $1300 and not $3,000 as she had assumed. She returned to the hearing room to ask for the orders to be revoked. The Member told her that it was not possible and that she could seek a re-hearing or appeal. The Member added that she should get advice.

Grounds of appeal 9Ms Loch has appealed on a question of law and has asked for leave to appeal on other grounds: NCAT Act, s 80(2)(b). In relation to appeals from the Consumer and Commercial Division, leave to appeal on grounds other than a question of law can only be granted in the limited circumstances set out in Schedule 4, cl 12: (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 10A consent order is an order of the Tribunal and is binding on the parties in the same way as a decision given after a contested hearing: Kinch v Walcott [1929] AC 483; Frackelton v McQueen; Re a Solicitor [1910] St R Qd 1. It is an "internally appealable decision" as defined in s 32 of the NCAT Act. 11It is not surprising, since Ms Loch is self-represented, that she has not articulated the grounds of appeal in a way that clearly identifies a question of law. While the Appeal Panel must remain impartial, we intervened in an attempt to ensure that the real issues in dispute were determined justly, quickly and cheaply: NCAT Act, s 36(1). In this case that involved considering whether the Consumer and Commercial Division made any error of law which would require that the appeal be allowed: Barghouthi v Transfield Pty ltd [2002] FCA 666 at [10]; XYZ v State Trustees Limited & Anor [2006] VSC 444 at [43]. We should also determine whether leave should be granted to appeal on grounds other than a question of law. 12Two potential grounds of appeal which we have identified are non-compliance with s 59 of the NCAT Act and the possibility that Ms Loch was subjected to undue influence, duress or misrepresentation in agreeing to settle her claim. We will deal with each of those matters in turn.

Compliance with s 59 13The powers of the Tribunal to make orders giving effect to any agreed settlement reached between the parties are set out in s 59 of the NCAT Act. (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if: (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. (2) The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement. 14We gave the parties a copy of this provision at the hearing because neither party had referred to it in their written submissions. 15Rule 37 of the Civil and Administrative Tribunal Rules 2014 (NSW) sets out the matters that the Tribunal may take into account when exercising settlement powers in relation to "vulnerable persons". Although Ms Loch mentioned that she suffers from an anxiety disorder and has been a victim of domestic violence, there was no evidence either before the Tribunal at first instance or the Appeal Panel, that Ms Loch is a "vulnerable person" as defined in Rule 37. 16The Tribunal complied with s 59(1)(a) of the NCAT Act. The terms of the settlement were in writing, signed by both parties and lodged with the Tribunal. Whether or not the Tribunal complied with s 59(1)(b) is a more complicated issue. 17When making orders giving effect to any agreed settlement, the Tribunal is under a statutory obligation to ensure that it only makes orders that are within its power to make. As well as being codified in s 59(1)(b), this is a fundamental principle of the common law: Thomson Australia Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163. 18Ms Loch's application to the Tribunal seeking compensation was made under s 190 of the Residential Tenancies Act. That provision applies to alleged breaches of a residential tenancy agreement. The orders that the Tribunal is empowered to make for such a breach are those listed in s 187: (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders: (a) an order that restrains any action in breach of a residential tenancy agreement, (b) an order that requires an action in performance of a residential tenancy agreement, (c) an order for the payment of an amount of money, (d) an order as to compensation, (e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement, (f) an order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined, (g) an order that requires rent paid to the Tribunal to be paid towards the cost of remedying a breach of the residential tenancy agreement or towards the amount of any compensation, (h) an order directing a landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations, (i) a termination order or an order for the possession of premises, (j) an order directing a landlord or landlord's agent to give a former tenant or person authorised by a former tenant access to residential premises for the purpose of recovering goods of the former tenant or fixtures that the former tenant is entitled to remove. (2) Without limiting the Tribunal's power to make an order as to compensation, the Tribunal may order compensation to be paid for the following: (a) loss of rent, (b) any other breach of a residential tenancy agreement, (c) loss or damage suffered by a person as a result of inaccurate, ambiguous or out-of-date information being listed about the person on a residential tenancy database. 19NSW Land and Housing Corporation submitted that the Tribunal's first order relating to rent abatement was either "an order for the payment of an amount of money" under s 187(1)(c) or "an order as to compensation" under s 187(1)(d). 20The order was not "an order for the payment of an amount of money" because no monetary amount is mentioned in the order. Consequently, to comply with s 59(1)(b) of the NCAT Act, the first order must meet the description of "an order as to compensation". 21That phrase has been the subject of very little judicial consideration and, as far as we are aware, none on the issue of whether a rent abatement order is "an order as to compensation". The cases have focused on questions such as whether damages for disappointment, stress and anxiety come with the meaning of that phrase: Free v Thomas [2009] NSWSC 642 at [19]; Blackington Pty Limited v Leonard Hogg [2007] NSWSC 266 at [47]. 22Section 187(2) provides a non-exhaustive list of the kinds of matters for which compensation can be awarded. That list includes breach of a residential tenancy agreement. The Shorter Oxford English Dictionary defines "compensation" as "recompense for loss or damage". The words "as to" have been interpreted by the High Court when determining the meaning of a similar phrase, "an order as to costs": Re JJT; Ex Parte Victoria Legal Aid [1998] HCA 44. Gaudron J at [2] interpreted that phrase more broadly than the phrase "an order for costs". Kirby J at [41] also made the point that in the absence of a legislative indication to the contrary, that phrase should not be construed narrowly. 23The first order was for the rent to "abate" for 13 weeks. Rent "abates' under s 43(2) as a matter of law if residential premises under a residential tenancy agreement are: (a) otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or (b) cease to be lawfully usable as a residence, or (c) appropriated or acquired by any authority by compulsory process. 24Given the specific circumstances in which rent abates under s 43, the Tribunal's decision to express the order in terms of an abatement of rent was unorthodox. The Member was not bound by the terms of the parties' written agreement and could have made orders in terms consistent with, but not identical to, the terms of the agreed settlement: NCAT Act, s 59(1)(b). 25Nevertheless, the term "order as to compensation" should be interpreted broadly. As long as the purpose of the order is to recompense the tenant for loss or damage in accordance with what is claimed in the application, the order will be "an order as to compensation". The order does not have to be expressed as a monetary amount. 26The Tribunal had power to make the order that it made in this case and there has been no breach of s 59(1)(b). Ms Loch's appeal on this ground is dismissed.

Duress, undue influence and misrepresentation 27At common law, the grounds for setting aside a consent order are the same as those for setting aside the agreement on which it is based: Bernard Cairns, Australian Civil Procedure (8th ed, 2009 Law Book Co) at 418. In Harvey v Phillips (1956) 95 CLR 235, the High Court said, at 243-4, that: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. 28These are also ground which may lead the Appeal Panel to conclude that it should set aside a consent order. 29If a party intends to rely on grounds such as duress, undue influence or misrepresentation, it will be necessary to provide evidence of the facts which support that ground. Ms Loch provided some very limited evidence in her Notice of Appeal. She elaborated on that evidence at the hearing. Mr Ford, an advocate and investigator from NSW Land and Housing Corporation, also gave evidence. 30We have summarised the evidence below noting any areas of dispute: (1)Before the hearing Ms Loch felt stressed because the taxi was late, she was attempting to photocopy documents for the hearing and she was accompanied by her son who has Asperger's. (2)At the commencement of the hearing the Member asked the parties whether there was any chance that the matters could be settled without a hearing. Each party agreed to attempt conciliation of the dispute. (3)There were four people from NSW Land and Housing Corporation at the hearing: Mr Ford; Ms Vanio, Senior Client Services Officer, Ms Strong and Mr Eggin. (4)Mr Ford told Ms Loch that she could not speak to Ms Strong or Mr Eggin. The reason for that was that Ms Strong and Mr Eggin would be called as witnesses for NSW Land and Housing Corporation if the hearing proceeded. Because Ms Loch had a good relationship with Mr Eggin she wanted to discuss any settlement proposal with him. (5)Mr Ford did most of the talking but Ms Vanio made the offer to Ms Loch of 13 weeks rent abatement and 2 days' notice for repair work. (6)Ms Loch felt intimidated when Mr Ford said she could 'take it or leave it' and by his 'smart-aleck' manner. She said he 'scoffed' at her saying she was not even able to file and serve her documents on time. Mr Ford denies saying 'take it or leave it', intimidating Ms Loch or scoffing at her. (7)Ms Loch said that she would like to contact the Tenancy Advice and Advocacy Service before considering the offer and she telephoned them but was not able to speak to anyone in that office. (8)There was a conversation about the amount of rent Ms Loch was paying either during the negotiation or in the hearing room after the negotiation. (9)After the offer had been made, Ms Loch went to the hearing room and asked the Tribunal member whether she could have time to attempt to contact the Tenants Advice and Advocacy Service again. She was given an opportunity to do so but was unable to make contact. She also told the Member that she was confused. (10)Mr Loch returned to the hearing room and told the Member that she would accept the offer. The Tribunal Member then made the orders set out above. (11)When leaving the building and walking down the steps outside, Ms Loch realised that rent abatement for 13 weeks would only amount to around $1300, not to $3,000 which is the figure she had in her mind. (12)On 16 June 2014 the landlord complied with Ms Loch's request that the rent abatement payment be credited to her rental account. (13)On 17 June 2014 Ms Loch contacted the landlord requesting that the rent abatement payment, which amounted to $1,285.50, be paid in cash. (14)On 18 June 2014 Ms Loch sent another email requesting that the money instead be paid as a lump sum. (15)On 26 June 2014 Ms Loch sent the landlord details of her bank account. (16)The landlord processed the payment over the following weeks and on 11 July a direct deposit was made to that account for $1,285.50. 31We find that Ms Loch felt flustered at the beginning of the hearing and was not able to contact the Tenants Advice and Advocacy Service. She wanted to speak to Mr Eggins because she felt comfortable with him. There was a reasonable explanation for Mr Ford refusing to allow Ms Loch to speak to Mr Eggins. None of these matters constitute duress, undue influence or misrepresentation. 32In view of Mr Ford's denials and the absence of any corroborating evidence, we are not satisfied, on the balance of probabilities, that he said 'take it or leave it' or acted in a 'smart-aleck' manner. We are satisfied that Ms Loch interpreted his communications as being belittling and demeaning, but even if that is how she felt, we are not satisfied, from an objective point of view, that Mr Ford applied duress or undue influence in an attempt to get her to agree to the offer of settlement. She signed the agreement voluntarily. 33Ms Loch assumed that the compensation amounted to $3,000 but no-one misled her by telling her that was the figure. She was asked how much she was paying in rent either during the negotiation or when appearing before the Member. While it is unfortunate that the precise amount of the settlement was not stated in the written agreement or the orders, no-one misrepresented to her that she would be receiving $3,000. 34We accept that one reason Ms Loch accepted the payment of the money, rather than complaining straight away was that she had received advice that doing so would not affect her appeal rights. 35Ms Loch feels aggrieved and regretful because she made a decision that she does not consider to be in her best interests. While she did not have the benefit of independent legal advice at the time, her decision to settle her claim was made voluntarily. It did not involve any undue influence, duress or misrepresentation on the part of the Tribunal, Mr Ford or any other officer of NSW Land and Housing Corporation. 36We are not satisfied that the Tribunal made an error of law or that there has been a substantial miscarriage of justice because the consent orders were not "fair and equitable". In those circumstances the appeal on a question of law is dismissed and leave is refused for Ms Loch to appeal on other grounds.

Costs 37Each party applied for costs. Under s 60 of the Civil and Administrative Tribunal Act, the general rule is that parties pay their own costs. There must be "special circumstances" justifying an award of costs before the Appeal Panel will make a costs order. (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. 38NSW Land and Housing Corporation submitted that costs should be awarded under s 60(3)(e) because Ms Loch's appeal is misconceived or lacking in substance. Ms Loch submitted that the NSW Land and Housing Corporation should pay her costs because no-one told her that the appeal would be heard in Sydney and she is out of pocket in relation to her travel expenses. 39While Ms Loch's appeal has been dismissed, we did not summarily dismiss it as lacking in substance or misconceived. If Ms Loch had been able to prove that Mr Ford said the words she attributed to him or acted in the way she alleged, the Appeal Panel may have found that there was an error of law or a substantial miscarriage of justice justifying leave being granted. NSW Land and Housing Corporation's application for costs is refused. 40The fact that Ms Loch felt obliged to travel to Sydney for the hearing is not a basis on which NSW Land and Housing Corporation should be ordered to pay her travel costs. Her application for costs is also refused. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 16 December 2014