McDonald v McDonald

The Proceedings below

1. The proceedings before the Tribunal concerned an application by Mr McDonald, the respondent to the appeal, to terminate a residential tenancy agreement entered into by him, as the landlord, and Mrs Moa McDonald, his ex-wife and appellant, as tenant. The premises were located in Tempe in NSW.
2. The respondent sought a termination order pursuant to s 85 of the Residential Tenancies Act, 2010 (the RT Act) following the service of a notice seeking to terminate the tenancy on 90 days notice. For reasons that will become apparent later, it is relevant to understand that the application to terminate the tenancy was not due to the non-payment of rent.
3. As stated above, the orders made by the Tribunal were by consent. The making of those orders followed the conciliation of the matter between the parties, as is usual, with the Tribunal conciliator. The Conciliation Agreement Form, signed by the conciliator, the appellant and the respondent was in evidence before us (Exhibit C). At item 1 of that agreement it was stated that the arrears of rent were agreed as "nil". At item 7 of that agreement it is noted that the "…tenancy agreement between the parties will end today and the Tenant will vacate the premises on: 11/6/16". At item 8 of that agreement it was stated that there would be no occupation fee payable by the appellant until she vacated the premises.
4. Following the conciliation, the Tribunal made the consent orders reflecting the agreement reached as evidenced in the Conciliation Agreement Form and signed by the conciliator and the parties.

Events subsequent to the Tribunal proceedings- an appeal out of time

1. Following the Tribunal making the consent orders, the appellant did not vacate the premises. On 19 August 2016 the respondent filed a request for a warrant for possession of the premises. It was then that the appellant took steps to appeal from the consent orders.
2. The Notice of Appeal was filed on 28 August 2016 seeking to set aside the orders made by consent on 23 March 2016. In the Notice of Appeal, the appellant raised, for the first time, that she was not a tenant at the premises. The effect of this is that she is asserting that the Tribunal therefore had no jurisdiction to make the orders, by consent or otherwise.
3. Being a residential tenancy matter, and thus residential proceedings, any appeal must be lodged within 14 days from the day on which the appellant was notified of the decision: (Rule 25(4)(b) Civil and Administrative Rules 2014). The appellant said she first became aware of the orders on 24 June 2016 when she attended the NCAT offices and saw them. Accordingly, accepting that as the first she became aware of the orders, the Notice of Appeal ought to have been filed by 8 July 2016. The appellant therefore requires an extension of time to file the Notice of Appeal.
4. The principles by which an extension of time is granted pursuant to s 41 of the Civil and Administrative Tribunal Act (NSW) 2013 (the CAT Act) are well known: see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. Matters to be considered are the period of the delay, the reason for the delay, the prospects of success of the person seeking the extension and the prejudice, if any to the other party. In considering the issue of extension of time, we are conscious of the fact that the appellant was, and remains, unrepresented and that whilst she appeared to understand most matters relatively well, English is not her first language.
5. In this case, the period of delay is from 8 July to 28 August 2016, some 7 weeks. Whilst that is not an insignificant delay, we do not think it is so long so as to mean that no extension can be granted. In respect to the reason for the delay, the appellant says that she was not made aware of the orders. She had sought documents with respect to the title to the premises. She sought documents in respect to Family Court proceedings between the parties some years ago. It was only when she became aware that she was to be evicted that she sought to appeal. Whilst these may not be matters that a legally represented party would necessarily be able to rely upon on such an application, in the circumstances of this case, we are prepared to give the appellant more leeway.
6. As to her prospects of success, she says that she was never a tenant at the premises. She raised many issues as to why she says that was so - many of which need not be determined. However, importantly, the issues she raised on appeal had not been determined by the Tribunal. They were important issues which went to the jurisdiction of the Tribunal to make the consent orders and to whether the appellant was denied procedural fairness in the Tribunal. It was necessary to hear evidence of those matters on the appeal. Whilst, for the reasons below, we have decided to dismiss the appeal, we do not think the appellant's arguments were so hopeless that we could have rejected them outright without hearing her evidence.
7. We also note that the respondent, being legally represented, did not make any submission that there should not be an extension of time or that he was prejudiced in any way.
8. In these circumstances, although it is finely balanced, we have decided to extend the time to appeal until the date that Notice of Appeal was filed, namely 28 August 2016.

The Nature of the Appeal

1. As has been stated, the appellant seeks to set aside the orders made by consent on 23 March 2016. In the Notice of Appeal the appellant contends that at no time was she a tenant at the premises. She said at no times did a residential tenancy agreement exist and she has never paid rent. She asserts that she was forced and pressured into giving a date for her to vacate the premises.
2. She asserts that the Tribunal has been given "misleading" information (that she was a tenant) which allowed it to make an "unfair decision". The Notice of Appeal also states that on the day the orders were made, she had no knowledge she was at a hearing. She said she was misled by her ex-husband and the Tribunal ought to have realised this and she should have been taken to a separate room and had explained to her the situation and the orders she was apparently consenting to.
3. The appellant seeks orders that the Appeal Panel "dismiss/withdraw" the proceedings below and set aside the orders made "so that she can commence Court proceedings in regard to the fraudulent signature on the Transfer of title" [of the premises].
4. The appellant does not dispute that her signature appears on the Conciliation Agreement Form. That form records the agreement on which the consent orders are founded. However, the appellant now says that there was never a residential tenancy agreement between her and the respondent in respect to the premises the subject of the orders. If that is right, the Tribunal had no power to make the orders it did. We regard this as raising a question of law, such that no leave to appeal is required.
5. Further, in so far as the appellant now asserts that she was misled when answering questions and that the Tribunal ought to have appreciated that fact, we take her as asserting that in so far as the making of the consent orders is concerned, she was denied procedural fairness. This in effect goes to the existence of an agreement founding the consent orders and is a question of law (see Roney v NSW Land and Housing Corporation [2015] NSWCATAP 269 at [41]; Yuen v Thom [2016] NSWCATAP 243 at [8]-[9]).
6. The appellant sought to introduce fresh evidence on appeal. There may be a question as to whether the appeal is an appeal by way of rehearing or an appeal de novo (see the discussion in Yuen v Thom [2016] NSWCATAP 243 at [15]-[22]). The resolution of that question may effect whether, and if so the extent to which, fresh evidence ought to be received on the appeal.
7. Here, as in Yuen v Thom the essence of the grounds sought to be relied upon by the appellant is that the Tribunal proceeded to make consent orders when it had no power to do so - either because there was no residential tenancy agreement on foot or that the consent of the appellant to the making of the orders was truly absent.
8. As the Appeal Panel held in Yuen v Thom (at [18]) the appeal is thus not an appeal de novo. However, the Appeal Panel can, and in our opinion should, in this case hear fresh evidence (even though the appeal is on questions of law) as the question before it is whether the Tribunal had jurisdiction to make the consent orders the subject of the appeal. That question turns on whether or not there existed a residential tenancy agreement such that the Tribunal's jurisdiction to make a termination order pursuant to s 85 of the RT Act was enlivened. The question also turns on whether (assuming there existed a residential tenancy agreement) there was in truth an agreement to terminate that agreement as reflected in the Conciliation Agreement Form.
9. The answer to the jurisdictional question must depend on evidence which was logically not before the Tribunal. As such, the Appeal Panel decided to hear fresh evidence on the appeal. That evidence was in the form of sworn testimony by the appellant and other documentary material.
10. We should also note that if the appellant satisfied us that the Tribunal did not have the power to make the consent orders and if otherwise appropriate, the Appeal Panel has the power to set those orders aside (see the discussion in Yuen v Thom, ibid. at [31]-[40] and Prenc v Stojcevski [2016] NSWCATAP 244 at [ 43]-[45]).

The Appellant's evidence

1. The appellant relied on a bundle of material filed with the registry on 4 October 2016 (marked Exhibit A). The appellant also sought to rely on a bundle of material filed with the Tribunal on 7 November 2016 (Exhibit B). Those bundles contained some material that was objected to on the grounds of relevance. We admitted it as provisionally relevant and indicated we would deal with more specifically with the documents in those exhibits when we assessed the material and in light of the sworn evidence of the appellant.
2. The appellant gave sworn evidence. Whilst she seemed to understand most things, she said she required and assistance of an interpreter and Mr Latu was sworn.
3. The Appeal Panel informed the appellant that the matters on which she should concentrate in her oral evidence related to whether there was a residential tenancy agreement and the circumstances by which she came to sign the conciliation form on 23 March 2016. Much of the written material provided by the appellant by way of submissions and in Exhibits A and B dealt with previous Family Court proceedings between the parties and recent Supreme Court proceedings commenced by the appellant.
4. In respect to the Family Court proceedings, the documents evidenced that the decree nisi for the dissolution of the marriage was made on 31 August 1999. There were other documents dealing with the financial agreement reached by the parties and reflected in consent orders made by the Family Court. The appellant was, as we understood her, now seeking to challenge some of the Family Court orders at least in so far as they dealt with the premises, on the basis that they were obtained by fraud. We informed the appellant that the Appeal Panel had no power to set aside or otherwise interfere with these orders.
5. The appellant has recently commenced Supreme Court proceedings having lodged caveats over the premises and another property owned by the respondent. Orders have been made in those proceedings, including extending the caveat lodged by the appellant over the premises and those proceedings have been stood over until 2 December 2016. We informed the appellant that the issues before the Supreme Court could not be determined by the Appeal Panel. We informed the appellant that our role was to determine the appeal brought by her from the orders of the Tribunal made 23 March 2016 but she was free to pursue whatever remedies she sought in the Supreme Court.

The appellant's evidence in respect to the residential tenancy agreement

1. The appellant gave evidence that she was not, and never had been, a tenant at the premises. She said she had never paid rent for the premises. She had lived there since 2011 with one of her children. She said she thought she owned the premises with the respondent, although that evidence was totally at odds with the orders made in the Family Court and with a Transfer showing she transferred the premises to the respondent "pursuant to Family Court orders". That Transfer was in evidence and dated 18 August 1998.
2. The appellant said that some time in 2011 the respondent came to the premises. Her evidence was that he said that if anything happened at the premises she was responsible - in that she was responsible for repairs and for any injuries or liabilities to people who came to the premises.
3. She said, subsequently, one evening at about 7 pm, the respondent came to the premises and took her to Petersham RSL. Her initial evidence was that this was in about May this year. There they met a friend of the respondent who was a Justice of the Peace. She was presented with a handwritten piece of paper which stated that she was responsible for anything that happened at the premises.
4. She was asked by the Appeal Panel whether that document dealt with rent for the premises. She initially said it did not, but later changed her evidence and said that it did, in fact, deal with her paying rent for the premises. She said that the document referred to rent for the premises in the sum of $75 per week.
5. She said she signed the document but was not given a copy, despite her asking for one. She said she was told by the respondent that it dealt with rent so that she could get Centrelink rent assistance. She says the respondent told her to go to Centrelink and if they asked for a copy of the document he would give her one. She did not give evidence that she went to Centrelink, nor that she was asked to produce the document.
6. She was shown a copy of a document headed "[address], Tempe" which is annexure A to the Reply to Appeal filed by the Respondent. That document is typed and dated 17 September 2013 and is in the following terms: I, Sini Moa McDonald am prepared to rent [address], Tempe in its present state of disrepair for the sum of Seventy-Five Dollars ($75.00) per week. I absolve my landlord from any repairs or liable (sic) in respect to injuries to myself and any visitors on the property and that I will vacate the property should the landlord wish to renovate, after been (sic) given three (3) weeks notice of his intentions. I will be responsible for Gas and Electricity bills accrued on the property.
7. The document bears signatures above the names of the appellant (as occupier) and the respondent (as landlord). It also bears a signature next to a space provided for a Justice of the Peace. There is a stamp of John Freeman J.P. Registration number 123971 affixed underneath Mr Freeman's signature. The document states it was signed at Petersham in NSW.
8. The appellant accepted in evidence that the signature on the document above her name was hers. She asserted, however, that she had never signed the document. She said somehow her signature had been put onto the document and that it was a forgery. She was told that she bore the onus to prove on the balance of probabilities that the document was a forgery. She led no other evidence in support of, or to substantiate, the allegation that the document was a forgery.
9. She maintained that despite accepting that she had signed a "hand written" document at Petersham RSL which did deal with rent at the sum of $75 per week, and in light of the Contract for Rent, she had never been a tenant at the premises.

Appellant's Evidence in respect to signing the conciliation form

1. The appellant was shown the Conciliation Agreement Form dated 23 March 2016 (Exhibit C). She immediately accepted that she had signed it on that day.
2. Her evidence in respect to her attendance at the Tribunal on 23 March 2016 was that her husband had asked her to go to lunch at the Casino. On the way her husband said they had to go to an office to sign a paper about the premises.
3. She says she did not know that there had been a hearing scheduled for that day. She was shown the Notice of Conciliation and Hearing (Group List) dated 14 March 2016 (Exhibit D). That Notice was on the Tribunal's file and bore the name of the appellant and address of the premises. It notified her of the hearing on 23 March 2016. The appellant denied having received or seen that Notice. We are satisfied it was sent to the premises by the Tribunal registry.
4. The appellant accepted that at the hearing, before she signed the Conciliation Agreement Form, the conciliator explained to her that if she signed the form the Tribunal would make an order terminating the residential tenancy at the premises and that she would have to give possession to the respondent. She said, however, despite this she believed the respondent when he told her that she could still live there with her daughter.
5. When asked why, if she believed that there was no residential tenancy agreement and she had to give possession, she did not raise this with the conciliator when the agreement she was signing was explained to her, she said that she trusted her ex-husband.
6. She accepted that the Tribunal member, before making the orders, also asked her if she understood that the orders to be made meant that the residential tenancy agreement was to be terminated. She again said that she did not say to the Member that there was no residential tenancy agreement because she trusted her ex-husband when he had said that the orders being made meant that she and the daughter could live at the premises.

The Respondent's position

1. The respondent did not rely on any additional evidence. He relied on the Reply to Appeal, the Contract for Rent attached to it and certain of the documents included in Exhibit A.

Was there a residential tenancy agreement?

1. The first question to be considered is whether there was a residential tenancy agreement between the parties. If not, then the Tribunal had no power to make the consent orders. If we find that there was a residential tenancy agreement, then it will be necessary to consider whether the appellant's submissions that she was misled in respect to the conciliation form so as to vitiate the agreement founding the making of the consent orders is made good.
2. Having regard to the evidence before us, we conclude that there was in existence a residential tenancy agreement. That agreement is evidenced by the Contract for Rent set out at 35 above. The appellant has not put before us any evidence that would enable us to find that the document is a forgery. She accepts that the signature on that document next to her name is her signature.
3. A residential tenancy agreement is an agreement under which one person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence; (see s 13 (1) of the Residential Tenancies Act 2010) (the RT Act). The agreement must be express or implied and may be oral or in writing (s 13 (2)). We are satisfied that the agreement set out at paragraph 35 above is a residential tenancy agreement within the meaning of s 13. The fact that the tenant maintains that she never paid $75 per week by way of rent does not alter the position. The tenant's failure to pay rent (and the landlord's failure to take steps to recover the rent) does not render the agreement invalid or void. A written agreement to allow the occupation of premises for value was entered into, the agreement set out the identity of the parties, the location of the premises and the rent. Whether the landlord elects to enforce the payment of rent, is a matter for the landlord and not a relevant consideration as to the formation of the agreement.
4. We do not accept the appellant's evidence in respect to her signing another, different handwritten document at the Petersham RSL. Importantly, in her evidence, the appellant accepted that whatever document she did sign at the Petersham RSL was with respect to the premises and did refer to rent of $75 per week for the premises. That is the rent stated in the Contract for Rent.
5. She was confused about the timing of the Petersham RSL incident. Initially, she said it occurred in May of 2016 but when confronted with the fact that the consent orders were made in March 2016, she said she was unsure of the year and it may have been 2013. This uncertainty did not provide support for her version of events.
6. We think the most likely conclusion from all of the evidence is that the appellant did sign the Contract for Rent at the Petersham RSL. She understood when signing it that it was a document which stated that she was to pay rent for the premises.
7. As stated above, the fact that no rent was ever paid by the tenant does not invalidate the residential tenancy agreement. It was a matter for the landlord as to whether and, if so, when he sought to enforce that term. The appellant did give evidence that she undertook some repairs at the premises and paid the water rates, which may also be considered as value for the right to occupy the residential premises.
8. As has been stated above, the application for termination of the residential tenancy agreement was not based on the non-payment of rent, rather it was based on a 90 day notice to terminate the agreement, also known as a "no grounds" notice. A landlord may serve a 90-day notice to terminate a periodic agreement without needing to allege any breach of the agreement. The failure to pay rent is therefore not a relevant consideration when determining whether a residential tenancy agreement existed between the parties, or when determining whether the notice of termination was valid.
9. The appellant does not succeed on this aspect of the appeal.

Was the agreement founding the consent orders vitiated?

1. In order for the appellant to succeed on this ground of appeal, she needs to prove that there was no true agreement underlying the consent orders. The power of the Tribunal to make orders by consent is set out in s 59 of the CAT Act. That section provides: 59 Powers when proceedings settled (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.
2. Rule 37 of the Civil and Administrative Tribunal Rules 2014 also requires the Tribunal, in deciding whether to give effect to a settlement, to take into account the interests of a "vulnerable person" as that term is defined, namely a person who is totally or partially incapable of representing themself in proceedings before the Tribunal because of a disability. The appellant is not such a person.
3. Here, the Tribunal must have been satisfied that there existed a residential tenancy agreement. That is because the Conciliation Agreement Form signed by the appellant (which itself satisfied the requirement that the agreement between the parties be reduced to writing) contained an agreement that the residential tenancy agreement would be terminated. Thus, the Tribunal had the power to terminate that agreement pursuant to the agreement between the parties.
4. The real question, therefore, is whether there is any basis to go behind the agreement as embodied in the Conciliation Agreement Form signed by the appellant, respondent and the conciliator.
5. A review of the authorities dealing with when a consent order can be set aside can be found in the recent Appeal Panel cases of Prenc v Stojcevski [2016] NSWCATAP 244 at [43]-[45], [53]-[57] and Yuen v Thom [2016] NSWCATAP 243 at [36]-[54]. From those cases, the following principles can be discerned (omitting authorities): 1. At common law, a consent order may be set aside on the same basis as the underlying agreement may be set aside; 2. Whether the agreement constituting the compromise can be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or 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 and the like; 3. In order to set aside a consent order on one of the above bases, it must be possible to point to some contumelious conduct on behalf of the respondent for instance: 1. with respect to duress, it must be shown that illegitimate pressure was placed on the appellant such that there was no reasonable alternative but for her to submit; 2. with respect to undue influence, not only must there be a source of power to deprive the other person of free and voluntary consent, but it must be shown that the agreement was the result of the actual influence; 1. With respect to mistake: 1. the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract; 2. a common mistake arises when the mistaken belief is held by both parties; 3. a unilateral mistake is where one party is mistaken but where there are no other vitiating circumstances, such as misleading or deceptive conduct, fraud or misrepresentation, a unilateral mistake will not generally constitute a basis for setting aside an agreement unless the mistake is a serious mistake in relation to a fundamental term of the agreement and the other party knew of, or contributed to, the mistake. 1. With respect to other doctrines which may be applicable, such as unconscionable dealing, it must be shown that one party to the transaction was at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances that affect their ability to conserve their own interests, and the other party takes unconscientious advantage of the opportunity. It must be emphasised that the disadvantage must be "special" to disavow any suggestion that the principle applies whenever there is some inequality of bargaining power between the parties. What must be present is some disabling condition or circumstance which seriously affects the ability of the innocent party to make a judgment in their own interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party. 2. There may be other factors which arise such as non est factum which defence would arise in very limited circumstances to persons who, through circumstances such as blindness or illiteracy, are unable to have any understanding of the meaning of the document evidencing the agreement and who signed it in the belief it was radically different to what was in fact signed.
6. In this case, having regard to all of the evidence, and in particular the oral evidence of the appellant, we do not think that any of the above principles apply so as to enable the appellant to set aside the agreement contained in the Conciliation Agreement Form which agreement underlies the consent orders.
7. The appellant's evidence, at its highest, was that she was told by the respondent that the form she was signing at the Tribunal (the Conciliation Agreement Form) was to allow her and her daughter to live at the premises. However, she accepted that the conciliator explained to her, and that she understood, the effect of the agreement she was making, namely that the residential tenancy agreement for the premises would be terminated and that she would have to give possession of the premises to the respondent. That understanding reflects the clear and unequivocal language in the Conciliation Agreement Form that "the tenancy agreement between the parties will end today and the Tenant will vacate the premises on 11/06/2016". It is difficult to reconcile her acceptance of those matters with an entitlement to any relief so as to set aside that agreement.
8. Her explanation that she trusted the respondent does not explain why, when she understood the nature of the agreement she was signing as it was explained by the conciliator, she did not question either the respondent or the conciliator and seek to understand why she was agreeing to give possession of the premises to the respondent when she apparently thought they could continue to live there. We do not accept her evidence in this regard. It must be remembered that the Tribunal member also explained the nature of the orders about to be made and the appellant accepts that she was asked whether she understood and agreed to them.
9. There is no evidence of pressure, threats, or influence which made the appellant's agreement as reflected in the Conciliation Agreement Form involuntary so as to have been made under duress or to be the subject of undue influence. We do not accept that there was any relevant mistake by the appellant in signing the conciliation agreement. The appellant was not at a special disadvantage at the time she made the agreement and had it explained to her by the conciliator. Nor was she of impaired faculties. On the evidence before us, she has not established any circumstance to enable her to seek to set aside the agreement as embodied in the Conciliation Agreement Form and which formed the basis of the consent orders.

Conclusion

1. By reason of the matters above, we are of the opinion that the appeal must be dismissed.
2. The orders we make are: 1. Pursuant to s 41 of the Civil and Administrative Tribunal Act, 2013 (NSW) extend the time to appeal until 28 August 2016. 2. Appeal dismissed. 3. The stay granted on 8 September 2016 of the orders made on 23 March 2016 is lifted. 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 28 November 2016 - Corrected typographical errors at [59] and [63] 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: 28 November 2016