Makowska v St George Community Housing Ltd

REASONS FOR DECISION

1. Ms Makowska ('the appellant') has appealed to the Appeal Panel of the Tribunal, pursuant to s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) from the decision of a Senior Member in the Consumer and Commercial Division concerning her application to the Tribunal for an order for compensation under s 187(1)(d) of the Residential Tenancies Act 2010 (NSW) ('the Act') (see Makowska v St George Community Housing Ltd (Civil and Administrative Tribunal (NSW), 25 November 2020, unrep). We will refer to Ms Makowska as the appellant throughout this decision.
2. The appellant is the tenant of an apartment in a multi floor residential block ('the premises') pursuant to a social housing tenancy agreement under the Act.
3. The proceedings arise out of allegations made by the appellant concerning the behaviour of AEJ, who is a tenant in another apartment, namely apartment 24 in the premises.

Facts

1. In setting out the facts of this matter, we will confine ourselves largely to a discussion of those sets of proceedings which are directly relevant to this appeal. We note, however, that there have been many more sets of proceedings in the Tribunal between the appellant and the landlord in relation to the premises. There have also been proceedings between the appellant and her neighbour.
2. On 7 May 2018, the appellant commenced proceedings in the Tribunal against the New South Wales Land and Housing Corporation ('the LAHC'), a body constituted under the Housing Act 1985 (NSW) (repealed), which was then her landlord under a social housing tenancy agreement entered into on 13 September 1989 with respect to the apartment. Those proceedings were numbered, by the Tribunal, SH 18/20556.
3. On 18 July 2018, the Tribunal made the following orders in SH 18/20556 ('the 18 July 2018 orders'): 1. By consent, the Landlord must comply with Section 50(3) of the Residential Tenancies Act 2010 and the terms of the residential tenancy agreement by taking all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of Zofia Makowska in using the residential premises. 2. By consent, the Landlord shall remove all remaining items from the common property stairwell in the vicinity of the applicant Zofia Makowska's unit on or before 31 July 2018. 3. By consent, the Landlord shall take all reasonable steps to ensure that the tenants of unit 24 do not behave in a manner and do not place any items upon the common property stairwell that will interfere with the reasonable peace, comfort or privacy of Zofia Makowska using the residential premises. 4. The claim for compensation is dismissed.
4. On 19 September 2018, the appellant commenced further proceedings against the LAHC, numbered SH 18/40606. The respondent sought an order under s 187(1)(b) of the Act, together with payment of compensation of $400, which she later amended to $1,000. The grounds for the application were said to be the breach of orders 1 and 3 of the 18 July 2018 orders, arising from 13 acts of alleged antisocial behaviour by AEJ.
5. On 7 January 2019, the Tribunal dismissed the proceedings numbered SH 18/40606.
6. On 14 January 2019, the appellant commenced proceedings numbered SH 19/02131 against the LAHC. It is these proceedings which eventually became the proceedings the subject of the decision appealed from in the present matter. In proceedings SH 19/02131, the appellant sought: Section 187(1)(b) - An order that requires an action in performance of residential tenancy agreement Section 187(1)(d) - An order as to compensation $1000
7. The stated grounds for the application in SH 19/02131 were as follows: I am lodging this application for breach of orders "1" and "3" made by Tribunal Member S Hennings on 18 July 2018 with respect to SH 18/20556 for the following reasons: (1) Mon 3 Dec 2018 Strange man waiting for tenant of unit 24 beside their door. (2) Tue 4 Dec Box and rubbish bag left in common area by tenant of unit 24. (3) Thu 6 Dec Washing machine cycle vibration from unit 24's kitchen at 1:45 am. (4) Sat 8 Dec Rubbish bag left in common area by tenant of unit 24. (5) Sat 15 Dec 12pm Washing machine box left in common area by tenant of unit 24. (6) Tue 18 Dec Loud kitchen activities by unit 24 from 11pm. (7) Fri 21 Dec Box and plastic container left in common area by tenant of unit 24. (8) Fri 21 Dec Loud behaviour in the stairwell in the afternoon by tenant of unit 24. (9) Sat 22 Dec Gathering in the common area garden outside my windows in the afternoon by tenant of unit 24 and visitors. Loud stairwell noises throughout the night from them, and then loud kitchen activities, including use of vacuum cleaner from 11pm. (10) Sun 23 Dec Rubbish bag left in common area by tenant of unit 24. (11) Sun 23 Dec Sound of ejecting water from unit 24 kitchen at 1pm. (12) Sun 23 Dec Unauthorised work in kitchen. Loud, vibrating noises from the use of power tools 8:30 to 9:30pm. (13) Tues 25 Dec Washing machine cycle vibration from unit 24's kitchen at 1am. (14) Sat 29 Dec Unauthorised work in kitchen with power tools. Afternoon. (15) Sun 30 Dec Unauthorised work in kitchen with power tools. Afternoon. (16) Sun 30 Dec Two bags of clothes left in common area by tenant of unit 24. (17) Mon 31 Dec Rubbish bag left in common area by tenant of unit 24. (18) Tue 1 Jan 2019 Rubbish bags left in common area by tenant of unit 24. (19) Thu 3 Jan Two rubbish bags and cartons left in common area by tenant of unit 24. (20) Mon 14 Jan Shopping bag left in common area by tenant of unit 24.
8. On 14 February 2019, the Tribunal dismissed the SH 19/02131 proceedings.
9. The appellant appealed to the Appeal Panel from the decision at first instance in SH 18/40606 in January 2019, and the appeal was numbered AP 19/03967.
10. The appellant appealed to the Appeal Panel from the decision at first instance in SH 19/02131 in February 2019 and the appeal was numbered AP 19/09903.
11. AP 19/03967 and AP 19/09903 were disposed of by the Appeal Panel on 7 June 2019 with these orders: (1) Appeal AP 19/03967 is dismissed. (2) Appeal AP 19/09903 is upheld. The decision of the Tribunal in SH 19/02131 is quashed. The proceedings are remitted to the Consumer and Commercial Division for hearing by a different Member.
12. When the proceedings in SH 19/02131 were remitted to the Consumer and Commercial Division in AP 19/09903, those proceedings were given a new number, being SH 19/27219.
13. A directions hearing was conducted in the Consumer and Commercial Division of the Tribunal in SH 19/27219 on 12 August 2019. The appellant attended the directions hearing. At the directions hearing, Ms Mai appeared for the LAHC and the appellant appeared for herself. Issues concerning access to documents produced in response to a summons issued at the request of the appellant were discussed. Ms Mai requested that St George Community Housing Ltd ('St George') be substituted for the LAHC as the respondent to the proceedings. The Tribunal Member indicated that this would involve the removal of the LAHC as the respondent, and asked the appellant if she consented to the change of respondent. The appellant replied "I have no objection". The Tribunal Member made the following orders (in addition to an order concerning access to documents produced): 1. St George Community Housing is joined as a respondent. 2. NSW LAND AND HOUSING CORPORATION is removed as a respondent.
14. The Tribunal made further directions on 29 August 2019, including the following: 2. The applicant has leave to amend the claim by 12 September 2019 by sending a copy of the amended claim to the Tribunal and the respondent and including: - a list of each monetary item claimed (the Tribunal notes that the applicant increases her compensation claim from $1,000 to $5591.25 -a list of each order sought against the landlord and why.
15. The Tribunal noted, on its directions: B. The Amended Application is in relation to matters that have arisen from 3 December 2018 to date; C It is recommended to the applicant that she obtain the advice of a tenants advisory service to assist her with the Amended Application and any further evidence.
16. A hearing proceeded in the Consumer and Commercial Division of the Tribunal on 30 October 2019. St George had not filed any evidence and did not attend the hearing, despite having been notified of the hearing date in writing. The matter proceeded. The respondent was ordered to pay to the appellant the sum of $2,402.64 by way of compensation for breach of the obligation to give quiet enjoyment of the premises.
17. On 22 November 2019, St George made an application to the Tribunal to set aside or vary the decision in SH 19/27219.
18. On 18 December 2019, the Tribunal made an order setting aside the order made in SH 19/27219 on 30 October 2019. The proceedings were therefore re-enlivened. They were given yet another number, namely SH 19/56856.
19. On 9 July 2020, the Tribunal made the following order, with brief reasons, in SH 19/56856: 2. Leave is granted to the applicant to amend the claim to seek compensation of $4418.58 and $107, being the Cost of this Application. The claim relates to an alleged breach by the landlord of section 50 of the Residential Tenancies Act 2010. The period of the alleged breach is from 14 January 2019. The application by the tenant to amend the name of the respondent to include NSW Land and Housing Corporation is refused for the following reasons: Section 44 of the NCAT Act provides that the Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. The Tribunal is not satisfied that NSW Land and Housing Corporation should be joined as a party. NSW Land and Housing Corporation are no longer the landlord. The Tribunal is unable to make an order against NSW Land and Housing Corporation under the Residential Tenancies Act 2010. The Tribunal is not satisfied that NSW Land and Housing have any interest in the proceedings.
20. SH 19/56856 was heard in the Consumer and Commercial Division by telephone. The appellant tendered a folder of documents and a USB stick containing audio-visual footage. St George tendered a bundle of documents. There was no oral evidence.
21. One of the documents tendered by the appellant is a notice dated 1 April 2019 addressed to her, as the tenant of the premises, from the New South Wales Land and Housing Corporation in respect of SH 19/02131. The notice says: (Community housing provider: St George Community Housing Limited) You are given notice under section 12 of the Conveyancing Act 1919, that the New South Wales Land and Housing Corporation has assigned its entire right title and interest in the above proceedings to the above community housing provider, and on that basis, the above community housing provider will continue the above proceedings in substitute for the New South Wales Land and Housing Corporation.

Internal Appeal

1. The Civil and Administrative Tribunal Act 2013 provides, in s 80(2)(b) for an appeal to be made to the Appeal Panel, by a party to proceedings, from a first instance decision of the Tribunal in those proceedings, as of right on a question of law.
2. The appellant has appealed on questions of law.

The Tribunal's decision in SH 19/56856 and the grounds of appeal

1. On 25 November 2020, the Tribunal dismissed SH 19/56856 and made no order as to costs.
2. In her appeal, the appellant sets out the following grounds: Notwithstanding that unchallenged evidence existed before the Tribunal that the respondent could have applied the Antisocial Behaviour Management Policy against the subject tenant for the purpose of having taken a reasonable step in respect of the order under challenge, the Tribunal suffered an error of law in circumstances where it misconstrued the test for "all reasonable steps" as relating to "some" or "various" rather than "all" steps. Alternatively, the Tribunal failed to identify that the respondent could have applied the reasonable step of the Antisocial Behaviour Management Policy Notwithstanding that there was evidence before the Tribunal of an assignment of the previous landlord's contractual obligations to the respondent, the Tribunal suffered an error of law in circumstances where it failed to act according to equity and good conscience under section 38(4) of Civil and Administrative Tribunal Act 2013 in so far as its decision to separate the matter along the 1 April 2019 date had caused circumstances in the nature of nonjoinder to eventuate. Alternatively, the Tribunal caused the appellant to suffer prejudice in circumstances where it failed to act according to equity and good conscience under section 38(4) of Civil and Administrative Tribunal Act 2013 after contradicting itself impermissibly by separating the respondent's liability along the 1 April 2019 date in circumstances after it initially denied the appellant's request to join the previous landlord to the proceedings.

All reasonable steps

1. From the first two paragraphs of the grounds of appeal, and from her written and oral submissions, we understand the appellant to be arguing that the decision of the Tribunal at first instance was affected by an error or errors of law in that the Tribunal misinterpreted the requirement for a landlord to undertake "all reasonable steps" to preserve her reasonable peace, comfort and privacy, or quiet enjoyment, as a tenant.
2. In her grounds of appeal and in her submissions, the appellant focussed upon the Antisocial Behaviour Management Policy. The appellant argued that St George had failed to use the procedure set out in the Antisocial Behaviour Management Policy, which is a document published by the Department of Communities and Justice, in dealing with AEJ, the other tenant of the premises who, the appellant alleges, has engaged in activities which interfere with the appellant's quiet enjoyment of her apartment and the common areas.
3. The appellant argued that the 18 July 2018 orders (set out in [6]) oblige St George to take 'all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of Zofia Makowska in using the residential premises'. The appellant argued that St George had not implemented the process provided for in the Antisocial Behaviour Management Policy, and thus could not be said to have taken all reasonable steps.
4. The version of the Antisocial Behaviour Management Policy which is before us sets out some definitions of terms, and then describes the process the Department of Communities and Justice will undertake when dealing with allegations of antisocial behaviour of varying levels of seriousness.
5. The Antisocial Behaviour Management Policy is a policy document of the Department of Communities and Justice. It does not bind St George.
6. St George was not a party to the proceedings in which the 18 July 2018 orders were made. St George is not bound by those orders.
7. The Act, in s 50, provides for an obligation by St George to protect the appellant's reasonable peace, comfort or privacy: (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement.
8. At first instance, the Tribunal discussed Mr S v Director of Housing (Residential Tenancies) [2009] VCAT 2615 (Mr S's case), in which the meaning of s 67 of the Residential Tenancies Act 1997 (Vic), which says 'A landlord must take all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises during the tenancy agreement', was discussed by the Victorian Civil and Administrative Tribunal (VCAT). VCAT said, at [37]: All reasonable steps have been determined to be a matter of fact, after taking into account all of the circumstances and must be considered objectively rather than just through the eyes of the parties. A useful consideration is, what steps could the Director have taken, but did not take?
9. This Tribunal is not, of course, bound by decisions of VCAT, but they can sometimes provide a useful guide. The Tribunal at first instance considered that VCAT's statement quoted in [36] above was applicable to s 50(3) of the Act. We agree.
10. The Tribunal examined the steps taken by St George in relation to the appellant's complaints about her neighbour, which culminated in St George seeking a termination of its social housing tenancy agreement with the neighbour.
11. The Tribunal considered whether, in all the circumstances, termination could have been sought sooner, had the scheme under s 154C of the Act been invoked by St George. The Tribunal concluded that taking that course would not have resulted in an earlier application for termination. The Tribunal determined that St George was not in breach of the term of the social housing tenancy agreement provided for in s 50(3) of the Act and clause 15.3 of Schedule 1 of the Residential Tenancies Regulation 2019. No challenge has been made to the Tribunal's analysis of the steps taken, except for the assertion that the procedure in the Antisocial Behaviour Management Plan should also have been implemented.
12. The appellant relied upon the decision of VCAT in McC v Director of Housing (Residential Tenancies) [2009] VCAT 2748 (McC's case). McC's case concerned an order by VCAT which required the landlord to 'take all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises at all times'. In McC's case, VCAT set out the passage from Mr S's case in [36] above, and considered whether the steps taken by the landlord constituted 'all reasonable steps', viewed objectively in all of the circumstances. VCAT identified several points in time at which it considered that the landlord should have taken action in response to indications of concern by the complainant but failed to do so. VCAT said: I note also that the order requires the DOH [the landlord] to take "all" reasonable steps, not "some" or "various", but "all". This is a significant obligation imposed on the DOH, an obligation which in my view has not been satisfied by the conduct of DOH after the Order was made.
13. The appellant argued, in effect, that this passage means that a landlord must literally do everything possible which is not unreasonable. We reject this interpretation in relation to s 50(3) of the Act. We consider that 'all reasonable steps' is intended to encompass all of the steps that it is reasonable for a landlord to take in all of the circumstances, viewed objectively. This may involve the landlord choosing between different, reasonable steps from time to time. It is not to be expected that a landlord will all at once impose a barrage of measures, at great expense and effort, to address a mild complaint of minor anti-social behaviour. The requirement inserted into the residential tenancy agreement by s 50(3) of the Act for the landlord to take 'all reasonable steps' will be met if the landlord's response to a complaint is timely and proportional in all of the circumstances. The precise steps which will fulfil the requirement will obviously vary from case to case.
14. The Tribunal at first instance found that the steps taken by St George in this matter constituted 'all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises'. That finding was not affected by any error of law.

LAHC and joinder

1. The Tribunal at first instance determined that St George is not liable for the actions of LAHC with respect to the appellant's lease prior to 1 April 2019. The Tribunal determined, in effect, that a crystallised obligation under the lease, as a matter of contract law, cannot be assigned from one person to another. It can be transferred by a novation, but there is no evidence, and no suggestion, that a novation agreement has been entered into.
2. The Tribunal found that the notice provided to the appellant dated 1 April 2019 did not, and could not, operate as an assignment by LAHC to St George of LAHC's past obligations to the appellant. The Tribunal determined that St George is not liable for the actions of LAHC in relation to the residential tenancy agreement prior to 1 April 2019. We agree.
3. The appellant does not argue that St George is liable for the actions of LAHC. As we understand it, the appellant is arguing that she has been deprived of the opportunity to hold LAHC, as her landlord during the period from 3 December 2018 (the first incident complained of in her initiating application) to 1 April 2019 (the date of the assignment by LAHC to St George), accountable for its alleged actions (or alleged lack of action) in relation to her complaints about her neighbour.
4. We consider that the proceedings numbered SH 19/02131, SH 19/27219 and SH 19/56856 are, in reality, a single action, twice remitted from the Appeal Panel and once re-enlivened by the setting aside of a finalising order granting the appellant's application for compensation. The constant re-numbering is an administrative practice of the Consumer and Commercial Division, which cannot affect the characterisation of the proceedings.
5. We bear in mind the Civil and Administrative Tribunal Act 2013, s 36 which provides: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
6. As we understand it, the real issue which the appellant seeks to raise in the last two paragraphs of her grounds of appeal concerns the order made on 12 August 2019 in SH 19/27219, by which LAHC was removed as a respondent in the action which she had commenced on 14 January 2019, namely SH 19/02131. It also concerns the refusal by the Tribunal on 9 July 2020 in SH 19/56856 to grant the appellant's application to join LAHC as a party. Because these proceedings are, in reality, one action, despite the three numbers, the application to join LAHC as a party was really an application to re-join LAHC as a party.
7. In effect, the appellant is arguing that, by the removal of LAHC as a respondent and the subsequent refusal to re-join LAHC to the proceedings, the appellant has been deprived of her opportunity to hold LAHC to account and to seek compensation under s 187(1)(d) of the Act in relation to her complaints against her neighbour from 3 December 2018 to 1 April 2019.
8. As we have set out above in [16], on 12 August 2019, before making the order removing LAHC as a respondent, the Tribunal member asked the appellant if she consented to that order. The appellant said that she had no objection.
9. Subsequently, it has become clear that, until she read the finalising decision of the Tribunal at first instance in this matter, the appellant was under the impression that the notice of assignment dated 1 April 2019, served upon her by the LAHC, transferred to St George the obligations of LAHC as the landlord to her as the tenant. It was on that mistaken basis that she raised no objection to LAHC being removed as a respondent to her proceedings. Later, when the appellant began to be concerned that the period prior to 1 April 2019 was being considered in a manner different from the period subsequent to that date, she sought to re-join LAHC as a respondent, but was refused permission to do so.
10. The appellant has been unrepresented throughout these proceedings. In other proceedings in the Tribunal commenced by the appellant concerning the premises, St George has been substituted for LAHC as the respondent without any impact, from the appellant's point of view, on the conduct of those proceedings. She may well have come to view that substitution was a matter of formality, having no affect upon her substantive rights. The notice served upon the appellant, which is set out at [24] above, says 'the above community housing provider will continue the above proceedings in substitute for the New South Wales Land and Housing Corporation'. Those words have the potential to create the impression that St George would be substituting in all respects for the LAHC. There was no mention that some of the obligations of the LAHC under the social housing tenancy agreement had not been assigned, so that St George would not be substituted in relation to them.
11. The Civil and Administrative Tribunal Act 2013 provides, in s 38(4) and (5): (4) The Tribunal is 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. (5) The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
12. These provisions make it clear that the Tribunal is obliged to accord procedural fairness to the parties before it.
13. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550, Mason J said, at p 584: What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting.
14. At p 587, Mason J said: In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. FAI is one illustration. Cole v. Cunningham [1942] ArgusLawRp 77; (1983) 49 ALR 123, is another, as are Reg. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida [1970] EWCA Civ 7; (1970) 2 QB 417, at p 431; and Daganayasi v. Minister of Immigration (1980) 2 NZLR 130.
15. In Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, the Full Federal Court, comprising Northrop, Miles and French JJ said at 590-591: It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
16. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1: [2003] HCA 6 at [37], Gleeson J said: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
17. At the directions hearing on 12 August 2019, neither Ms Mai, who appeared for the LAHC, nor the Tribunal member, drew the appellant's attention to the fact that the substitution of St George for LAHC in the proceedings would have an impact on her ability to claim compensation in relation to the period prior to 1 April 2019. It may be that the issue simply did not occur to either of them. However, the substitution limited the ambit of the appellant's claim and she was clearly unaware of that.
18. The appellant was not accorded procedural fairness at the directions hearing of 12 August 2019 in that she was not made aware of a critical issue, namely that the substitution of St George as the respondent to her action could limit the ambit of her claim. This gave rise to a practical injustice.
19. At the directions hearing on 9 July 2020, the Tribunal member refused the appellant's application to join LAHC to the action as a respondent on the basis set out in [22] above, namely that LAHC: …are no longer the landlord. The Tribunal is unable to make an order against NSW Land and Housing Corporation under the Residential Tenancies Act 2010. The Tribunal is not satisfied that NSW Land and Housing have any interest in the proceedings.
20. The Act says, in s 187(1)(d): 187 Orders that may be made by Tribunal (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 - … (d) an order as to compensation, …
21. The Act says, in s 189: 189 Application of provisions relating to Tribunal (1) A provision of this Act that enables a landlord or tenant to apply for an order by the Tribunal and the Tribunal to make an order also applies, where appropriate, to a former landlord or a former tenant. (2) (Repealed)
22. The Tribunal member on 9 July 2020 made an error of law. The Tribunal had, and has, the ability to make an order against LAHC under the Act, including an order for compensation, if the grounds for the making of such an order are established, notwithstanding that it is no longer the appellant's landlord.
23. Both the denial of procedural fairness on 12 August 2019 and the erroneous interpretation of the Act on 9 July 2020 unfairly deprived the appellant of the opportunity to pursue her claim against LAHC for the period from 3 December 2018 to 1 April 2019.

Conclusion

1. The appellant's appeal in relation to the alleged failure by St George to take 'all reasonable steps' is dismissed. The Tribunal's reasoning in relation to that issue was not affected by any error of law.
2. In relation to the appellant's appeal in relation to the Tribunal's refusal to join LAHC to the proceedings, in so far as that part of the appeal can be characterised as an appeal against an interlocutory decision, then leave is required and so is an extension of time. In all of the circumstances, it is appropriate that leave be granted and an extension of time also be granted. Plainly, the impact of that decision was not evident until the Tribunal's decision at first instance was delivered.
3. The unfairness experienced by the appellant is best addressed by orders being made in relation to the refusal to join LAHC on 9 July 2020. There will then be no utility in interfering with the order made on 12 August 2019.
4. The most practical way of addressing the situation created is to remit the matter to the Consumer and Commercial Division for the purpose only of dealing first with the question of whether LAHC should be joined to the proceedings, which now involve only a claim for compensation for the events of 3 December 2018 to 1 April 2019. LAHC must be given notice of that application and given an opportunity to be heard. In the event that LAHC is joined to the proceedings, then the Tribunal should proceed to hear and decide the compensation claim for the period of 3 December 2018 to 1 April 2019.

Orders

1. We make the following orders: 1. In so far as the appeal challenges the decision at first instance in relation to the liability or culpability of St George Community Housing Ltd concerning the question of whether it took all reasonable steps to ensure that the other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises, the appeal is dismissed. 2. In so far as the appeal challenges the refusal of the Tribunal to join the New South Wales Land and Housing Corporation as a party to the proceedings for the purpose of determining whether the appellant is entitled to compensation from the New South Wales Land and Housing Corporation under s 187(1)(d) of the Residential Tenancies Act 2010: 1. Leave is granted to appeal against that refusal, 2. An extension of time within which to appeal is granted to 8 December 2020. 1. The decision of 9 July 2020 to refuse to join the New South Wales Land and Housing Corporation to the proceedings is set aside. 2. The following issues are remitted to the Consumer and Commercial Division of the Tribunal: 1. The issue of whether the New South Wales Land and Housing Corporation should be joined to the proceedings under s 44(1) of the Civil and Administrative Tribunal Act 2013; 2. In the event that the New South Wales Land and Housing Corporation is joined to the proceedings, the issue of whether the New South Wales Land and Housing Corporation should pay compensation to the appellant in relation to the events of 3 December 2018 to 1 April 2019 set out by the appellant in her application to the Tribunal filed on 14 January 2019. 1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the publication of the name of the applicant's neighbour whose conduct is the subject of these proceedings, or any information tending to identify that neighbour, is prohibited.

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

Amendments 07 July 2021 - Order 5 added. Publication restriction text added. 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: 07 July 2021