This is an internal appeal, under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), against a decision made in the Consumer and Commercial Division of the Tribunal in relation to four applications: two lodged by the appellant (the tenant) and two lodged by the respondent (the landlord).
The orders made at first instance may be summarised as a termination order, with the order for possession suspended for ten days, and a money order for the tenant to pay the landlord a net amount of $6,680, being arrears of rent of $8,280 less compensation of $1,600.
Having considered the documents lodged by the parties and their oral submissions, we have determined that there was no error on a question of law and no basis upon which leave to appeal should granted.
Background
Those four applications considered at first instance may be summarised as follows:
1. On 29 September 2022, the tenant filed the application with the reference RT 22/43591, seeking various orders, notably compensation, alleging a failure to provide adequate ventilation in the kitchen and a failure to provide an adequate hot water system, and a declaration that a termination notice was retaliatory.
2. On 6 October 2022, the landlord filed an application with the reference RT 22/44479 which sought termination for non-payment of rent, referred to an earlier notice of termination, and sought the payment of money.
3. On 29 November 2022, the landlord filed an application with the reference RT 22/52977 which sought a termination order, based on unpaid rent, payment of the bond, and an occupation fee.
4. On 30 November 2022, the tenant filed the application with the reference RT 22/53016 which sought orders for the landlord to repair the ventilation system and the hot water system and for rent to be paid to the Tribunal until those repairs were completed.
After a hearing, on 27 October 2022, the following orders were made:
1. The Residential Tenancy Agreement is terminated in accordance with s 87 of the Residential Tenancies Act 2010 (NSW) as the tenant has breached the agreement by failure to pay rent in accordance with the agreement.
2. The Tribunal is satisfied in accordance with s 89(5) of the Residential Tenancies Act 2010 (NSW) the tenant has frequently failed to pay rent owing for the premises.
3. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.
4. The order for possession is suspended to 20 February 2022.
5. The tenant shall pay the landlord a daily occupation fee at the rate of $60 per day from the date of termination, namely 10 February 2023, until the date vacant possession is given to the landlord.
6. Within 60 days of the date of 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,
7. The landlord's agent is to advise the tenant in writing by delivery of a letter to the premises by 6.00 pm on 10 February 2023 of the orders made today.
8. The tenant, Colin McKerlie, is to pay the landlord, Sylvia Lesser (sic), the sum of $6,680 immediately in respect of:
(a) Rent from 15 September 2022 to 30 January 2023 - $8,280
(b) Less $1,600 for compensation to the tenant in Matter RT 22/43591.
Scope and nature of internal appeals
Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) of the NCAT Act.
In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] listed of questions of law as:
(1) Whether there has been a failure to provide proper reasons.
(2) Whether the Tribunal identified the wrong issue or asked the wrong question.
(3) Whether a wrong principle of law had been applied.
(4) Whether there was a failure to afford procedural fairness.
(5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations.
(6) Whether the Tribunal took into account an irrelevant consideration.
(7) Whether there was no evidence to support a finding of fact.
(8) Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
(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).
In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:
… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins, at [84], the Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), at [13], the Appeal Panel said:
It may be difficult for self-represented appellants to clearly express their grounds of appeal. 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 decision 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. 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".
[2]
Documents
The tenant lodged the Notice of Appeal on 13 February 2023 and filed further documents on seven occasions: (1) 16 February 2023, (2) 18 February 2023, (3) the morning of 20 February 2023, (4) the afternoon of 20 February 2023, (5) 15 March 2023, (6) 31 March 2023, and (7) 4 April 2023.
The landlord lodged a Reply to Appeal on 21 February 2023 and filed documents on 31 March 2023.
[3]
Notice of Appeal
Orders were made and reasons published on 10 February 2023. As the Notice of Appeal was received on 13 February 2023, the appeal is within time since rule 25 of the Civil and Administrative Tribunal Rules 2014 requires that this appeal be commenced within 14 days.
[4]
Grounds of Appeal
The Notice of Appeal contained the 13 grounds set out in Appendix A. On 31 March 2023 the appellant lodged documents which included amended grounds of appeal, containing the 40 grounds set out in Appendix B.
Further, leave to appeal was sought on the basis that the decision was not fair and equitable, and that the decision of the Tribunal was against the weight of the evidence. There was no suggestion there was any significant new evidence now available that was not available at the time of the hearing. The reasons given as to why the decision was not fair and equitable were:
1. The original notice of eviction served by the landlord on the tenant was retaliatory in whole or in part.
2. That, consequently, any subsequent eviction notice served by the landlord was retaliatory in whole or in part.
3. The Tribunal erred in enforcing an eviction notice which was retaliatory in whole or in part.
4. The Tribunal erred in attaching no weight to the fact that the tenant had sought orders that any monies purportedly owed by the tenant to the landlord pursuant to the residential tenancies (sic) agreement be paid into the Tribunal pending the outcome of the proceedings.
5. The Tribunal erred in finding that the tenant had "frequently failed to pay the rent" in the context of the tenant having sought orders that the monies purported to be owing to the landlord be paid into the Tribunal pending the outcome of the proceedings.
6. The Tribunal erred in not allowing the tenant to issue a summons to the landlord to provide documents and testimony concerning the previous history of the premises as relevant to the matters the subject of these proceedings.
7. The Tribunal erred in not finding that the presence of a bathtub on residential premises necessitates that a hot water service capable of allowing the bath to be used be provided as a term of any residential tenancy agreement concerning the premises.
8. The Tribunal erred in not finding that the lack of adequate ventilation in the premises made them in part unhabitable.
9. The Tribunal erred in not finding that the term during which a retrospective reduction of rent is applicable ends at the date that an application for a retrospective rent reduction is filed.
10. The Tribunal erred in failing to give the tenant a reasonable opportunity to file an appeal and obtain a stay regarding its rulings by only allowing ten days before the tenant was required to vacate the premises when the process for obtaining a stay normally takes longer than ten days.
In relation to the claim that the decision was against the weight of the evidence, the tenant relied on the reasons quoted above and said: (1) the documents before the Tribunal at first instance indicated that the premises were in part unhabitable, (2) the tenant's first application sought orders that monies in dispute be paid into the Tribunal, and (3) the tenant sought such an order at the initial hearing, on 2 November 2022. It was contended that the Tribunal should have given more weight to the tenant attempting to pay monies to the Tribunal, that, when he filed his first application, he was seeking a rent reduction and compensation of $10,000, which represented five months' rent, at a time when he had been issued with a 90-day termination notice. Hence there was a prospect that the outcome would be that he was owed money by the landlord.
The reasons advanced in support of leave to appeal being granted are set out below:
1. The conduct of the proceedings by the NCAT was consistently corrupt, incompetent, biased, unfair and contrary to the provision of the Residential Tenancies Act and the Civil and Administrative Tribunal Act causing material harm to the tenant throughout the course of the proceedings.
2. The conduct of the landlord and her agent were unlawful and criminal throughout the term of the residential tenancy and throughout the conduct of these proceedings.
3. The findings made by the Tribunal in these matters were biased and unjust and calculated to oppress this tenant in particular and all tenants in NSW generally.
4. The findings made by the Tribunal in these matters were inconsistent with the guiding principles and the objectives of the Civil and Administrative Tribunal Act and contrary to the objectives of the Residential Tenancies Act.
5. The conduct of these proceedings and the findings made by the Tribunal throughout were inconsistent with community attitudes and standings in contemporary New South Wales.
[5]
Preliminary applications
Two preliminary matters were raised by the tenant. The first was that the appeal be adjourned for one month to allow him to make representations to his local Member of Parliament and the Minister for Fair Trading which he said were delayed because he was waiting to find out who is Minister for Fair Trading following recent elections.
It was indicated by the tenant that he had already made representations to the former Attorney-General in relation to another member of the Tribunal and that, in the lead-up to the election, what was said to be a "policy promise" had been made in relation to no-fault evictions. The tenant contended that these proceedings were a suitable vehicle for the Minister to intervene so his allegations of "institutional corruption and regulatory capture" could be considered. He contended proceedings in the Tribunal should be inquisitorial and not adversarial. Further, that while a no-fault eviction was not the basis of the orders now challenged, it should have been but wasn't because the view was taken that the no grounds notice of termination was superseded by a notice of termination that relied on a failure to pay rent.
What were said to be the fundamental contentions of the tenant were (a) that there had been regulatory capture in that the Tribunal was operating to benefit the industry it was meant to regulate and not those it was intended to protect, (b) that the was a failure to understand the role of the Tribunal, said to be indicated by a reference in the first instance reasons to damages, and (c) that proceedings in the Tribunal are inquisitorial but are being dealt with as adversarial.
Secondly, in the alternative, it was contended that it was appropriate to refer this matter to the Supreme Court. When asked what question of law he was contending should be referred, the tenant suggested it was whether the conduct of proceedings under the Residential Tenancies Act 2010 (the RT Act) are, by nature, adversarial or inquisitorial. Reference was made to the tenant's submissions dated 15 March 2023 at [6] which read:
The Dickensian formulations of law applied by the Tribunal and touted by Members as "trite law" have absolutely zero application in the proceedings of this Tribunal. The idea that the parties are required to present legal precedents and compelling arguments to the Tribunal for it's (sic) deliberation is completely specious and misconceived.
It was contended that this question of whether proceedings in the Tribunal were adversarial or inquisitorial had never been previously considered by an Appeal Panel.
The landlord's representative opposed both those preliminary applications.
Having indicated at the hearing that both applications were refused, and that reasons would subsequently be provided, those reasons are set out below.
[6]
Tenant's submissions
It is convenient to here note that the landlord's agent did not object to the tenant being permitted to rely on his amended grounds of appeal, despite no leave having been either sought or obtained.
Reference was made to the transcript of proceedings in the Tribunal on 26 October 2022 in which two applications were considered prior to the tenant's application with the reference RT 22/43591. It was said that those two applications provided support for the claim, rejected in the decision challenged in this appeal, that the Tribunal was institutionally corrupt.
The tenant claimed that he received a blank notice of hearing and went to a tenants' advisory service, which resulted in him learning that his application was listed for the following day. As to his application, he claimed sending a blank notice of hearing was a calculated decision to enable the Tribunal to strike out his application for failing to attend. As to the other two applications in the list which were considered prior to his application on 26 October 2022, it was said that, in the first, a landlord was given leave to amend in the absence of a tenant and that, in the second the Tribunal member was coaching the landlord's agent.
It was also contended that, on 26 October 2022, when it was indicated that the tenant's application would be set down for a hearing, that there was no mention of the tenant's request for an order to pay rent into the Tribunal instead of to the landlord. The tenant claimed that he should have been granted that order and that, had such an order been made, this appeal would not have been necessary.
After summarising what the tenant maintained occurred when he appeared before another member of the Tribunal, he asserted that member "was a nice guy, but corrupt".
The next submission that was made was that equitable estoppel applied and the Tribunal's attention was directed to the tenant's submissions which included passages suggesting the Tribunal was "equitably estopped" from terminating the tenancy when it had not made the order sought by the tenant for him to pay his rent to the Tribunal. It was suggested: "While equitable estoppel as a legal concept currently only applies to the parties to this dispute, I will eventually argue before a court of competent jurisdiction that it should apply to this Tribunal." According to the tenant, the landlord's agent was only an observer in these proceedings and the tenant's real opponent was the Tribunal.
The tenant's said he believed the landlord owed him money which distinguished his case from where a tenant made a unilateral decision not to pay rent.
[7]
Landlord's submissions
Mr Small suggested that the matters upon which the tenant relied by reference to the transcript, were not related to the findings at first instance and that the landlord relied on the documents and submissions already lodged. When asked by the Tribunal what was the position in relation to rent/occupation fee, Mr Small indicated that the terms of the stay order had been met and there were no arrears.
[8]
Submissions in reply
The tenant said that, if the Appeal Panel was against him, then the 10-day suspension of the order for possession was "obscene". He sought a suspension period equal to the time within which an appeal to the Supreme Court had to be made so that he would have an opportunity to seek a stay of any order for possession. Further, he contended that this was not a matter where the tenant did not have the capacity to pay rent.
[9]
Consideration
It is to be noted that the orders made on 10 February 2023 were stayed, conditional upon the tenant making specified payments to the landlord, and it is not in dispute that those amounts have been paid.
As was indicated at the outset of the hearing, an appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing".
Further, it is not sufficient for the tenant to disagree with the outcome and to contend that there should have been a different outcome: the tenant must demonstrate either that an error was made on a question of law or that there is a basis upon which leave to appeal should be granted.
The tenant's oral submissions began with reference to what occurred during a Group List on 26 October 2022. It is necessary to note that the Consumer and Commercial Division of the Tribunal deals with more than 50,000 applications each year of which more than 40,000 are tenancy matters. Such matters are initially listed in what is termed a Group List where a number of matters are listed at the same time and one hour is allocated to deal with all of them. The notices for such hearings are issued by registry staff, either by mail or email, and those notices specify that the application is listed for a Conciliation Hearing.
At the commencement of the hour, the member makes preliminary explanatory comments, after which the parties are requested to discuss their matters in nearby conciliation rooms and a conciliator is available to help them try to resolve the application without the need for a hearing. If the parties reach agreement, orders are made by consent to finalise the application. Unless the application is clear and there is the necessary supporting evidence, applications are not determined but directions are instead made to prepare them for hearing.
To just consider what occurred on 26 October 2022 by reference to the excerpts contained in the just over seven pages of transcript provided by the tenant does not give an accurate picture of what occurred during the two hours from 9.15 am on that day. Anyone who listens to the entire recording will note:
1. Prior to considering the tenant's application there were two matters where the landlord was permitted to amend the application to base a claim for termination on a different section of the RT Act but, in each case, there was clear evidence to support the order sought.
2. When the tenant's matter was first mentioned, and he said he had received a blank notice of hearing, the transcript records the member as saying: "I'll stand it in the list" but omits what was said immediately after that: "I'll go and find out". The significant difference is that the first comment suggests the tenant's application is being deferred but, when the latter comment is added, it is clear the member was going to investigate the matter before proceeding.
3. Omitted from the transcript is the member explaining, by way of apology, that she is conducting a busy list to which the tenant's response is that, based on his experience, the member's list is not busy. Anyone who listens to the entire recording could not reach any conclusion other than that the list was busy, as Group Lists usually are, especially when the matters from one hour spill over into the next hour's matters.
4. Given the tenant's claim that the member was favouring landlords and coaching landlords in two instances, it must be observed that there are more than two instances where the member could be said to be pro-tenant. First, a warning to landlord's agents that if their landlord(s) has not given them instructions to enable them to participate in a conciliation hearing then their leave to represent the landlord(s) may be withdrawn. Secondly, which is omitted from the transcript, there are multiple occasions where the member identifies an issue or issues and suggests the tenant seek advice from a tenants' advocacy service.
5. Also omitted from the transcript is the member's explanation that, for matters which do not settle, the Conciliation Hearing will focus on what is needed to get ready for the hearing, including identifying the issues which will require determination at that hearing.
6. The tenant sought to have the landlord's application, a matter that was not listed for hearing, set aside. It is noted that the tenant, who complained that the member allowed amendments in two matters when the other party was not present, sought to have a matter that was not even listed set aside, in the absence of the other party.
7. Consistent with her earlier comment, the member left the hearing room to check with the registry after the tenant raised the fact that there was another matter. When she returned, she explained that the preferable course was to list the tenant's application for a three-hour hearing so that the landlord's application, which was listed for a conciliation hearing on 7 November 2022, could then be listed for hearing at the same time, a course which would give an earlier hearing date. When the tenant made an allegation of apprehended bias, the member quickly dealt with that aspect by recording that the tenant's application should not be listed for hearing before her.
8. It must be noted that there is no evidence that the tenant, having become aware his application was listed for a conciliation hearing, advised the other party of that hearing.
9. When the tenant was asked to indicate the nature of his claim, he referred to his claim for compensation of $10,000 and reference was made to a claim that the landlord's notice of termination was retaliatory, but the tenant did not refer to his request for an order that he pay rent to the Tribunal rather than the landlord. Directions were made to prepare the tenant's application for hearing.
10. The tenant sought an order for the provision of an explanation in relation to the notice of hearing, including the names and titles of all relevant staff and sought compensation of $1,000: $600 for attendance at the hearing plus $400 for hardship caused to him. He was asked to submit all those requests in an email so they could be dealt with.
11. The member indicated that she usually encounters one matter per week with complications but that there had been a significant number of complications in the matters listed before her at 9.15 am and 10.15 am.
Listening to the entire recording for the period of almost two hours from 9.15 am on 26 October 2022 does not provide support for the tenant's claims. It is also noted that the Tribunal could be said to have been pro-tenant in that, on 3 January 2023, it provided advice to the tenant by bringing to his attention two reported decisions (David v Langman [2021] NSWCATAP 360 and Seymour v Wu [2021] NSWCATAP 289) which suggests the obligation to pay rent is separate from the landlord's obligation to repair and it not legally justifiable.
Reference was also made to the conduct of another Tribunal member, who was listed to preside at a hearing on 28 November 2022, which was adjourned due to the tenant's then pending appeal. The documents provided include a transcript (but not the recording) and a copy of the orders and reasons that were published by that member. Assuming the transcript accurately reflects the entirety of what was said on that occasion, it is difficult to see any basis for an allegation of corruption. The tenant, who has reminded the Tribunal of his experience as a litigator, should know that a serious allegation, such as corruption, should not be made unless the maker has supporting evidence for such an allegation.
All the transcript and reasons from the 28 November 2022 hearing reveal are attempts by the member to raise matters which both parties should consider, consistent with the Tribunal's goal of the just, quick, and cheap resolution of the real issues in the proceedings. Any suggestion of pro-landlord bias on the part of this member is not made out.
The suggestion of the tenant that there was a "calculated decision" of the Tribunal to send out a blank notice of hearing so it could strike out his application for failing to attend is rejected. First, the documents provided by the tenant do not appear to include a copy of the notice he was provided. Secondly, there would be no point in deliberately sending out a blank notice because striking out the tenant's application would automatically generate a message which advised the tenant how to reinstate his application with the result that the only consequence of sending out a blank notice of hearing would be to create a need for more time and paperwork. Thirdly, there was already an application of the landlord listed for a conciliation hearing on 7 November 2022 so that if the tenant's application were struck out on 26 October 2022 that would soon come to light and be remedied. Fourthly, it appears that the tenant's application was lodged electronically and, at the conciliation hearing on 26 October 2022, he said he received the notice of hearing by email. In those circumstances, it is likely that the notice of hearing was generated with little or no human input.
As to the suggestion that, on 26 October 2022, there was no mention of the tenant's request for an order for him to pay rent to the Tribunal instead of the landlord, the following matters are noted. The tenant's application, lodged on 29 September 2022, sought a total of 17 orders, under ss 44, 45, 47, 103, 104 109, 111, 115, 187 and 217 of the RT Act, with eight of those orders based on paragraphs within s 187(1). In those circumstances, it is understandable that the member conducting the conciliation hearing did not focus on the request based on s 187(1)(f). Importantly, the tenant did not raise that claim at any time on 26 October 2022. When asked to explain his case, the tenant's response was that it was a claim for compensation of $10,000.
The simple answer to the tenant's submission that he should have been granted an order for the payment of rent to the Tribunal on 26 October 2022 and that, if such an order had been made then this appeal would not be necessary, is that the tenant did not seek such an order at the conciliation hearing when he had an opportunity to make a request for such an order.
Next, the submission that equitable estoppel applied with the result that the Tribunal was estopped from terminating the tenancy because it had not made an order for him to pay his rent to the Tribunal instead of the landlord. The answer to that proposition is that the Tribunal does not have jurisdiction to grant equitable relief but can consider equitable defences, notably relief against forfeiture: Pongrass v Small [2021] NSWCATAP 314 at [61] - [81].
Assuming, in favour of the tenant, without deciding, that the tenant's claim that equitable estoppel applied is a defence to a termination order that does fall within the Tribunal's jurisdiction, such a claim is not made out for the following reasons. First, on 26 October 2022, when invited to tell the Tribunal what orders he sought, the tenant did not seek such an order. Secondly, because the tenant was advised by the Tribunal on 2 November 2022 to seek legal advice, and on 3 January 2023, prior to the order for termination being made, that his obligation to pay rent was separate to the landlord's obligation to repair and that withholding rent was not legally justifiable. As a result, the tenant's position was the result of his choice and a failure to heed a warning provided to him by the Tribunal. Thirdly, the principle of equitable estoppel only applies against a party and not against a court or tribunal.
It was also suggested that this case was distinguishable from the situation where a tenant makes a unilateral decision not to pay rent, on the basis that the tenant believed the landlord owed him money but that is commonly the reason why a tenant opts to withhold rent. What the tenant could and should have done was continue to pay rent until the directions hearing on 26 October 2022 and sought an order for rent to be paid to the Tribunal on that occasion. Had that been done, there would have been continuity of payment of rent by the tenant and the landlord would have been deprived from seeking a termination order based on the failure to pay rent. Regardless of what the tenant believed, it is clear he made a unilateral decision not to pay rent as there is no evidence that decision was made with the knowledge or approval of either the landlord or the landlord's agent.
Before dealing with each of the 40 grounds of appeal which the tenant now wishes to raise, it is necessary to consider the two preliminary matters raised by the tenant.
First, the suggestion that the hearing of the appeal be adjourned for one month to enable the tenant to make submissions to his local (State) Member of Parliament and the Minister for Fair Trading. There has been ample opportunity for the tenant to make such submissions since the decision was made on 10 February 2023. The suggestion the tenant was waiting to see who would become the new Minister for Fair Trading after the State election is not an adequate explanation. Indeed, it is noted that the tenant has already made representations to the Attorney-General in relation to his application(s) to the Tribunal.
He suggestion that there had been a "policy promise" in relation to no-fault evictions is also insufficient since (1) there is no reason to believe that any change that may occur in relation to no-fault terminations would be retrospective, and (2) even if there was such a change, the landlord's claim and the termination order was based on a failure to pay rent and not a no-fault termination notice. Further, there is nothing to indicate that any submissions would be considered within one month or that such submissions would affect the outcome of this appeal.
Secondly, it was contended that this matter be referred to the Supreme Court and, when asked what question he was seeking to have referred, the response of the tenant was whether proceedings under the RT Act are adversarial or inquisitorial.
Referrals of questions of law to the Supreme Court are governed by s 54 of the NCAT Act which is in the following terms:
(1) The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court.
(2) The Tribunal may refer a question of law under this section only if the President has consented in writing to the question being referred.
(3) The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section, but may decline to exercise that jurisdiction if it considers it appropriate to do so.
(4) If a question of law arising in proceedings has been referred to the Supreme Court under this section, the Tribunal is not:
(a) to give a decision in the proceedings to which the question is relevant while the reference is pending, or
(b) to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question.
(5) Subsection (4) extends to the Tribunal when constituted as an Appeal Panel that is determining an internal appeal from a decision of the Tribunal in proceedings before which a question of law has been referred by the Tribunal at first instance to the Supreme Court under this section.
As this is an internal appeal, the decision in Zonneyville v Department of Justice [2019] NSWCATAP 44 at [90] suggests there is a discretion to refer a question of law which arises in these proceedings. Decisions providing guidance on whether to exercise that discretion include ALZ v WorkCover NSW [2015] NSWCATAD 241, CTS v NSW Trustee and Guardian [2017] NSWCATAD 119, Milner v Commissioner of Police, NSW Police Force [2017] NSWCATOD 37, and Kincumber Nautical Village v Morris [2020] NSWCATAP 263.
Being satisfied that the answer to the question which the tenant seeks to raise is sufficiently clear weighs against referring the tenant's question to the Supreme Court. Further, having regard to what was said in those decisions, it is considered that the issues raised by this appeal should be resolved justly, quickly, and cheaply by finalising this appeal and leaving the tenant to seek leave to appeal to the Supreme Court by reason of s 83(1) of the NCAT Act which provides:
A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.
It is noted that, even if the Tribunal considered it appropriate to avail of the power provided by s 54(1), and even if the President consented, the Supreme Court may still decline to hear the matter. As a result, regardless of whether the tenant is seeking to argue his case in the Supreme Court under s 54(1) or s 83(1), it will be for the Supreme Court to determine if it will hear the matter.
What were said to be the three fundamental contentions of the tenant may be summarised as: (1) regulatory capture, (2) the reference in the first instance reasons to damages, and (3) proceedings should be inquisitorial and not adversarial. Each of those topics is considered below.
Regulatory capture is an economic theory which is said to apply when a regulatory body has come to be dominated by the industry or interests it is charged with regulating. In this instance, regulatory capture is put on the basis that the Tribunal acts in the interests of landlords whom it is supposed to be regulating.
There are two reasons why the tenant's claim of regulatory capture is rejected. First, it is not accepted that there is a pro-landlord bias in the Tribunal based on the tenant's small sample size of two applications considered prior to his on 26 October 2022, ignoring the subsequent matters which are equally relevant.
Secondly, it is not accepted that the role of the Tribunal is to regulate landlords. Rather, it is to consider the interests of both landlords and tenants and to strike a balance between those competing interests.
Support for that view is found in the Second Reading Speech of the then Minister for Fair Trading, on 2 June 2010 in the Legislative Assembly, in relation to what became the RT Act on 17 June 2010. That speech includes the following passage:
We want landlords and tenants to be clear about their rights so that they are empowered to enforce those rights. We want landlords and tenants to take a responsible approach to their obligations to each other, to the people they share their home with and to their neighbours and the beautiful wider community. We want to see a rental market that is efficient, responsive and well informed. This bill enables that vision. The bill strikes a fair and equitable balance between the often competing interests of landlords and tenants. The reforms embodied in the bill are aimed at the clear need to bring the current law up-to-date, which is acknowledged by all sides. Even the harshest critics of the bill concede that the law in many areas is in urgent need of reform. There is an old saying that all landlords are not devils and all tenants are not angels. This bill protects those who do the right thing from those who would not, whether they are tenants or landlords. It is about striking a balance.
The last two sentences (quoted in the previous paragraph) were included in the Second Reading Speech in the Legislative Council, on 10 June 2010.
The tenant also raised the fact that the reasons delivered at first instance used the word damages despite the RT Act and the NCAT Act not using that word. In fact, the reasons appropriately used the word compensation throughout the reasons and only used the word damages, appropriately, at [132] and [133] when referring to the questions of (1) loss of amenity and (2) distress and inconvenience. As the Tribunal was not satisfied that any such damages should be awarded, even if it could somehow be maintained that the word damages should not have been used in those two paragraphs, it would not affect the determination of any of the four applications. Any suggestion that the Member at first instance failed to understand his role, because of the use of the word "damages" in those two paragraphs must be rejected as it is clear that the Member was using the word damages to refer to a different basis for compensation that was not considered to be warranted in this case.
The primary contention of the tenant in this appeal is that proceedings under the RT Act are inquisitorial and not adversarial.
In a paper entitled "Tribunal Practice: Inquisitorial or Adversarial?" Dr Juliet Lucy summarised the difference as follows (citations omitted):
Under an inquisitorial model of adjudication, the judge performs an active role in determining the issues, witnesses and scope of the evidence, whereas the parties are responsible for doing these things under an adversarial model. Further, under an inquisitorial model, witnesses tell their own story in narrative form and it is mainly the judge who questions the witnesses, whereas with an adversarial model, one party calls and examines a witness and the other party cross-examines the witness.
Just as between black and white are many shades of grey, the distinction between inquisitorial and adversarial proceedings is often not all one way or the other. It is noted that, in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [40], Basten JA warned that "the commonly opposed epithets of 'adversarial' and 'inquisitorial' do not usefully provide a comprehensive description of the field of decision-making."
There was a time when courts operated in a purely adversarial manner. A judge was expected to be almost sphinx-like. That is reflected by decisions such as Jones v National Coal Board [1957] 2 QB 55 where it was said:
In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question "How's that?" His object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon L.C. who said in a notable passage that "truth is best discovered by powerful statements on both sides of the question"?: see Ex parte Lloyd (1822) Mont 70. And Lord Greene M.R. who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, "he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict": see Yuill v. Yuill, 61 TLR 176…
The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well.
However, with the rise of case management, such as the introduction of the Commercial List in the Supreme Court of New South Wales, judges took a more active role in proceedings, making directions to prepare them for hearing, and taking steps to ensure that the scarce resource of hearing time was efficiently used.
An example of the change in approach is reflected in the decisions of the High Court in AoN Risk Services v Australian National University [2009] HCA 27 (AoN) and Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 which establish that (1) applications for adjournment should not be considered solely by reference to whether any prejudice can be compensated by costs, (2) the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to adjourn, and (3) the impact on other pending cases is a relevant consideration since the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
The Supreme Court adopted the just, quick and cheap finalisation of proceedings as a statement of overriding purpose in the Supreme Court Rules, a goal sanctioned by the High Court in AoN, and set as the guiding principle for the Tribunal in s 36(1) o the NCAT Act:
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.
There has also been a rise in mediation as an alternative form of dispute resolution, which became more common following the retirement of Sir Laurence Street as Chief Justice on 1 November 1988. An example of the foothold mediation has gained is the requirement for mediation prior to the commencement of Tribunal proceedings based on the Strata Schemes Management Act 2015 (NSW).
It is important to note aspects of proceedings in the Tribunal which differ in some respects from that of a court. First, s 36(4) of the NCAT Act requires that:
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.
Secondly, s 37 of the NCAT, headed "Tribunal to promote use of resolution processes", states:
(1) The Tribunal may, where it considers it appropriate, use (or require parties to proceedings to use) any one or more resolution processes.
(2) A resolution process is any process (including, for example, alternative dispute resolution) in which parties to proceedings are assisted to resolve or narrow the issues between them in the proceedings.
Further, s 38 of the NCAT Act, which is headed "Procedure of Tribunal generally", is in the following terms:
(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(3) Despite subsection (2):
[10]
(a) the Tribunal must observe the rules of evidence in:
(i) proceedings in exercise of its enforcement jurisdiction, and
(ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and
(b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.
(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.
(6) The Tribunal:
(a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(b) may require evidence or argument to be presented orally or in writing, and
(c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
The use of conciliation hearings is a form of alternative dispute resolution designed to ascertain which of a group of cases, listed at the same time, will require a contested hearing. The fact that s 38(2) contains the words "may inquire …" suggests the Tribunal can adopt an inquisitorial approach and s 38(5) reflects the expectation that parties will commonly be self-represented.
Although a decision relating to the Workers Compensation Commission, in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [96], after considering similar statutory provisions, Giles JA said:
I would merely observe that the features of the adversarial model to which I have referred indicate, in my view, that the Commission cannot be described as "inherently inquisitorial", at least if by that expression, it is intended to connote the "pure" European model of such processes.
As Dr Lucy noted in her paper, the Court of Appeal did consider the characterisation of commercial or consumer proceedings in relation to the Tribunal's predecessor, the Consumer, Trade and Tenancy Tribunal in Italiano v Carbone & Ors [2005] NSWCA 177. At [114], Basten JA said:
By contrast, the proceedings in the present case are closer to a judicial model than an inquisitorial model and do, in one sense, involve the trial of issues between parties. On the other hand, representation before the Tribunal is subject to leave and the Tribunal has a broad power to inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness: s 28(2). Accordingly, the present case falls somewhere between the two kinds of procedure identified by Hayne J in SAAP.
However, a consideration of the statutory provisions in the NCAT Act set out above, favours the view that the default position in the Tribunal is that they are adversarial, but an inquisitorial approach may be adopted. There does not appear to be any justification, based on the wording of either the RT Act or the NCAT Act, for the Tribunal to adopt a purely inquisitorial approach.
If, as the tenant contends, Tribunal proceedings under the RT Act are inquisitorial, then (1) it would be expected that a departure from the usual approach to civil proceedings in New South Wales, being adversarial, would be specified in the RT Act, and (2) the words of s 38(2) of the NCAT Act would not be necessary because if the Tribunal was required to inquire then it would not be necessary to say that it "may inquire".
Accordingly, it is considered that proceedings in the Tribunal's Consumer and Commercial Division are adversarial, but with the power to move away from that position, and not purely inquisitorial. Even if the contrary view is taken, the tenant did not indicate how that would alter the decision that was made at first instance.
It remains to consider the 40 grounds of appeal that were submitted by the tenant less than a week before the hearing of the appeal. The landlord's willingness to proceed by reference to those expanded grounds has enabled the Tribunal to consider all the matters the tenant wished to raise without having to adjourn the hearing of the appeal.
Ground 1. Having read the reasons published at first instance, the claim that those reasons "reek with personal animus and bias" and that they are "replete with calculated slurs" against the tenant is not established.
Ground 2. The fact that some Members sit on appeals from decisions of other Members is not uncommon: a similar situation often exists in the Supreme Court and judges of the Federal Court sit at first instance and on appeals to what is termed the Full Court of the Federal Court. The allegation of regulatory capture is rejected for the reasons set out above. The suggestion that there should be judicial review by the Supreme Court overlooks the fact that the tenant's right to appeal to the Supreme Court is limited to a question of law. If the tenant wishes to make a complaint about the conduct of any Member, there is a proper way to do so which does not involve an appeal.
Ground 3. The first of the two grounds numbered 3 is not correct as the words "I am happy to swear on oath" were said by the tenant (33 minutes into the hearing) with the result that the Member was not misquoting the tenant.
Ground 3. The complaint in relation to the filing of a document said to be materially false was considered by the Member at first instance and he did not assume there was an oversight but only raised that as a possible explanation, at [31(1)], when assessing the question he was required to consider, namely whether to grant leave for the agent to represent the landlord. Applying what was said in Conimos, there does not appear to be any error on a question of law in relation to this aspect of the proceedings.
Ground 4. The decision of the Member to grant leave for the landlord to be represented by the agent involved the exercise of discretion, the position is governed by what was said in the joint judgement of Dixon, Evatt, and McTiernan JJ in House v The King [1936] HCA 40, 55 CLR 499 at 504-505:
[i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed ... It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
Applying that test, there does not appear to be any error that would justify disturbing the decision that was reached.
Ground 5. This ground was not developed in any way during the appeal and no error on a question of law has been established.
Grounds 6 to 10. The Member's decision in relation to the tenant's desire to issue a summons appears to be orthodox, in accordance with established authorities (to which he referred), and not susceptible to challenge in that no error on a question of law is evident.
Ground 11. During the hearing (at 1 hour 56 minutes), in relation the landlord issuing a "notice for vacant possession", the tenant said: "I regarded that as a termination of the contract" to which the Member responded by referring to repudiation. The word "repudiated" in [63] should read "terminate" but that does not impact on the outcome of the proceedings in any way.
Ground 12. It was not for the Member at first instance to explore, assess, and determine the tenant's allegations that the Tribunal is "institutionally biased" and "corrupt": his task was to consider the questions of fact and law relevant to the applications, having regard to the evidence and the submissions.
Grounds 13 to 15. The findings relevant to these grounds appear to be warranted by the evidence and do not appear to involve any error on a question of law. As to habitability, it is noted that the evidence established the premises had a shower as well as a bath.
Grounds 16 and 17. The tenant's claim that a bath requires a hot water system of at least 100 litres capacity to enable a bath to be used as a bath does not raise a question of law. Further, the Member was not obliged to either inform himself on that issue or to ascertain whether there was any legal precedent on that point.
Ground 18. The fact that there was a hot water system with a capacity of 50 litres at the commencement of the tenancy does not warrant a finding that the failure to provide a hot water system with a capacity of 100 litres constituted a withdrawal of services at the commencement of the tenancy.
Ground 19. This ground seeks to challenge an evidence-based finding of fact and does not involve an error on a question of law.
Ground 20. Since s 63 of the RT Act deals with the obligation of a landlord to keep residential premises in a reasonable state of repair, and since the landlord replaced the 50 litres hot water system, the finding of the Member does not appear to involve any error, either of fact or law.
Grounds 21 to 23. These grounds appear to do no more than express the tenant's dissatisfaction with the outcome and do not involve an error on a question of law.
Ground 24. This ground challenges a finding that was based on the date when the landlord was found to have breached ss 63 and 65 of the RT Act and compensation was awarded from that date. Any contention that compensation should be awarded in respect of a period prior to a breach of either the RT Act or the residential tenancy agreement is rejected.
Grounds 25 and 27. These findings were consequential upon the finding that a termination order should be made. As the tenant has not established a basis for disturbing that order, these grounds fail.
Ground 26. It is clear that the Member's use of the word damages was to denote something beyond compensation, by reason of his reference to what was said in Torpey v Stewart [2021] NSWCATAT 248 at [22[-[31]. He provided reasons for his decision not to award damages at [133] in addition to compensation and this ground of appeal only seeks to revisit that decision by reason of the tenant's dissatisfaction with the decision. The tenant has not established any error on a question of law in relation to this ground.
Ground 28. The suggestion that the Member had a duty to inform himself is rejected. This ground appears to be based on the tenant's claim that the proceedings are inquisitorial which has been rejected, for the reasons set out above.
Ground 29. Since s 118 of the RT Act operated to revoke the earlier notice of termination, as noted by the Member at [146], this ground does not involve any error on a question of law.
Grounds 30 to 33. The challenged findings were clearly open to the Member and do not involve any error on a question of law.
Ground 34. This claim does not appear to have been made at first instance. Even if it was, there was no obligation on the landlord to either seek to have rent paid to the Tribunal or to support the tenant's claim for such an order. The position was clear, namely that the tenant chose to stop paying rent to the landlord. This ground does not have a basis either in fact or in law.
Ground 35. The Member hearing the four applications was not bound by what was said prior to the hearing by another Member nor was he obliged to take into consideration what was said by that Member. The applications were properly assessed, based on the evidence and submissions at the hearing.
Ground 36. This ground does not involve any error on a question of law. The arrears of rent, namely $8,280 involve more than four months' rent and an amount more than half the Tribunal's jurisdictional limit for rent arrears. Even if it could be said the use of the adjective "significant" was not warranted, that does not amount to an error on a question of law.
Ground 37. The Member did not make any error on a question of law in his references to repudiation followed by an appropriate consideration of the issue relevant to termination. The suggestion that the landlord "unarguably terminated the residential tenancy agreement by serving a notice for vacant possession" is rejected: that agreement was terminated on 10 February 2023.
Ground 38. The alleged error only goes to the assessment of the period of suspension of the order for possession which it is now agreed should be 28 days. It is therefore not necessary to further consider this ground.
Ground 39. As it appears that the rent under the subject residential tenancy agreement is currently $1,825 per month, the daily occupation fee was correctly calculated as $1,825 multiplied by 12 to give the annual rent and then divided by 365 which gives a daily occupation fee of $60.
It should also be noted with approval that the reasons for decision challenged in this appeal, which were 45 pages in length, were published nine working days after the hearing, reflecting the need for Tribunal members to not only identify applications that do not require a hearing but also to hear and determine applications that do require a contested hearing.
Moving to the ten reasons advanced in support of the claim that the decision was not just and equitable, those reasons do not raise any matter additional to those considered when dealing with the amended grounds of appeal.
Turning to the claim that the decision was against the weight of the evidence. First, it was said more weight should have been given to the tenant attempting "from the outset" to obtain an order for him to pay rent to the Tribunal rather than the landlord. In fact, that order was not sought at the outset, on 26 October 2022, but was first sought on 2 November 2022. However, that did not alter the fact that there had been a failure of the tenant to meet his obligation to pay rent.
Secondly, the fact that the tenant was seeking a claim of $10,000 did not justify his failure to pay rent by reasons of the decisions to which he was referred, namely David v Langman [2021] NSWCATAP 360 and Seymour v Wu [2021] NSWCATAP 289, which establish that the obligation to pay rent is separate from the landlord's obligation to repair. It is noted that the tenant failed to heed that warning from the Tribunal and that his suggested claim of $10,000 was found to warrant an award of $1,600 which is less than one month's rent.
Thirdly, the subjective belief of the tenant that the landlord owed him money does not alter the fact that he breached his obligation to pay rent.
There were five reasons advanced as to why leave to appeal should be granted to the tenant. The first, was that the conduct of proceedings by the Tribunal was "consistently corrupt, incompetent, biased, unfair and contrary to the provisions of the [RT Act] and the [NCAT Act] …". That allegation has not been established.
Next, it was said that the conduct of the landlord and her agent was "unlawful and criminal". The Tribunal has no jurisdiction in relation to criminal conduct and there is no evidence that criminal proceedings have been commenced. The tenant has alleged a breach of s 71 of the NCAT Act by reason of false and misleading statements but that is not a matter that could be determined either at first instance or on appeal and any proceedings for a breach of that section cannot be commenced by the tenant. Further, it appears that the tenant's allegation is no more than that the landlord's application failed to mention the tenant's application.
It was also suggested that the findings were biased and unjust, but a thorough consideration of the reasons challenged in this appeal suggests they are in accordance with the facts and the law.
There was also a suggestion the findings were inconsistent with the Tribunal's guiding principle. Being satisfied that the reasons challenged are in accordance with the facts and the law, with the reasons being delivered nine working days after a keenly contested hearing involving a significant volume of documents, and with both parties being self-represented, the claim that the four applications lodged by the parties to this appeal were not determined in a just, quick, and cheap manner is rejected. It is noted that the applications were filed on 29 September 2022, 26 October 2022, 29 November 2022, and 30 November 2022, were heard on 30 January 2023, and that orders were made, and reasons published, on 10 February 2023, a period of just over four months, which included the Christmas break.
The last reason advances in support of leave being granted was that: "The conduct of these proceedings and the findings made by the Tribunal throughout were inconsistent with community attitudes and standings in contemporary New South Wales". It is sufficient to note that it appears the conduct of these proceedings and the findings made by the Tribunal were in accordance with the evidence provided by the parties, the submissions they made in relation to that evidence, and the applicable law.
As the tenant has failed to establish either an error on a question of law or a basis upon which leave to appeal should be granted, there is no basis for setting aside the termination order and it only remains to consider in what respect(s) the orders made at first instance should be varied.
A request was made for the period of suspension of the possession order to match the period for an appeal to the Supreme Court, which is 28 days, according to rule 50.3 of the Uniform Civil Procedure Rules 2005, rather than 10 days, which was not opposed.
Accordingly, it appears that the only variation that should be made to the orders made at first instance is to amend the date to which the order for possession is suspended.
Finally, having considered both the documents and the oral submissions of both parties, we are satisfied that we should echo the earlier finding of another Appeal Panel (McKerlie v Leeser [2023] NSWCATAP 11 at [26]) that the personal attacks and allegations made against individual Members are unfounded and should not have been made. Further, we agree with the finding made at first instance (McKerlie v Leeser [2023] NSWCATCD 6 at [67]) that the claims that the Tribunal is "institutionally biased" and "corrupt" should not have been made.
Orders
For the reasons set out above, the orders that will be made are as follows:
1. Leave to appeal is refused.
2. The date to which the order for possession is suspended is varied to 28 days after the date of publication of these orders.
3. Otherwise, the appeal is dismissed.
[11]
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.
Registrar
[12]
Appendix A
The Tribunal erred on (sic) failing to take into account that the Appellant had sought orders that any money the subject of the dispute be paid into the NCAT from the time he filed his original application in matter RT 22/43591 in reaching the conclusion, as a matter of both fact and law, that the appellant had "frequently failed to pay rent".
The Tribunal erred in finding that the amount of the rent payable to the Respondent was a "significant" amount in both fact and law.
The Tribunal erred in failing to adjourn the proceedings and in not ordering that a summons in terms the same or similar of (sic) the Appellant's proposed summons to the Respondent for documents and testimony.
The Tribunal erred in failing to find that the Respondent's second application in matter RT 22/52977 was not wholly or partly a retaliatory notice contrary to s. 151 (sic) of the Act.
The Tribunal erred in ordering the tenancy to be terminated as a consequence of the Respondent serving a retaliatory notice of eviction on the Appellant.
The Tribunal erred in finding that the period of time in which the Tribunal could order the Appellant's rent be reduced was the 12 month period from before the making of the order rather than the 12 month period preceding the Appellant's first application RT 22/43591.
The Tribunal erred in failing to find that it was an inherent condition of the residential tenancy agreement between the parties that the landlord provide a hot water system adequate to allow the tenant to use the bath on the premises as a bath, ie that the premises required a hot water service of at least 100 litres capacity.
The Tribunal erred in failing to order a retrospective reduction of rent in regard to the failure of the landlord to provide an adequate hot water system for the premises.
The Tribunal erred in failing to find that the landlord had breached the residential tenancies (sic) agreement by failing to provide adequate ventilation in the kitchen/laundry.
The Tribunal erred in failing to find that the lack of adequate ventilation in the kitchen/laundry caused the premises to become uninhabitable in whole or in part.
The Tribunal erred in failing to order that the retrospective reduction in rent relating to the failure to provide adequate ventilation in the kitchen/laundry should date from 12 months prior to the tenant filing application RT 22/43591 and that compensation be paid to the tenant of $50 per week for the period subsequent to that application being filed.
The Tribunal erred in failing to make an order for compensation to the tenant for the unlawful and criminal conduct of the landlord and her agents in the conduct of the residential tenancy and the proceedings in the Tribunal between the parties.
The Tribunal erred in making orders that were calculated to cause the tenant undue and unnecessary distress, hardship and expense by having to vacate the premises within 10 days.
[13]
Appendix B
The entire tenor of the findings of Senior Member Sarginson reek with personal animus and bias. The Senior Member refers in his findings to "allegations" made by the Appellant against various members of the NCAT and the finding by the Appeal Panel were "unfounded and should not have been made". The balance of the Senior Member's reasons for decision from that point on are replete with calculated slurs against the Appellant.
This conduct and the concept that the Tribunal itself can and should be the judge of the conduct of itself and its members is a classic demonstration of the reasons we as a society no longer allow the police to investigate themselves. The NCAT is, demonstrably, a textbook example of regulatory capture and this is the primary reason that this appeal should be immediately referred to the Supreme Court to allow proper judicial review of this matter.
The first example of this bias, corruption and malice on the part of Senior Member Sarginson is his deliberate misquoting of the Appellant supposedly saying he would "swear an oath" (Para 27) - having noted already that the Appellant had already made the NCAT aware of his legal qualifications and history of practice - is a petty and juvenile tactic. The Appellant said that he would "swear on oath" - the normal basis of testimony in this Tribunal.
(sic) Senior Member Sarginson erred in law in failing to in any way investigate the conduct complained of by the Appellant in regard to the filing of a document that was materially false in Matter RT 22/52977 without making any attempt, as he is required to do pursuant to the NCAT Act, to inform himself of the facts relating to the filing of the document. His mere assumption that the materially false document was filed as a result of an "oversight" is evidence of his bias.
Senior Member Sarginson erred in law and fact in granting leave to the Respondent to be represented by the agent, Bresic Whitney, when that agent repeatedly committed breaches of s.71 of the NCAT Act and thereby demonstrated itself and its employees as being unfit to act as representatives of any party in any proceedings before the NCAT.
Senior Member Sarginson erred in law and fact in failing to find the Respondent's agent's actions in failing to act in good faith throughout the course of the tenancy were relevant to the consideration of his decision to grant leave to the Respondent's agents to represent the Respondent in these proceedings.
Senior Member Sarginson erred in law and fact in finding that the documents sought by the Appellant through the issue of a subpoena "would not materially assist the tenant on any identified issue; nor add in some way or another to the relevant evidence; nor assist the tenant in cross examination of the witness (how do you cross examine a witness who is not present?) or go to the issue of credit of any party or witness (ditto).
Senior Member Sarginson erred in law and fact in finding that evidence of the interaction between the Respondent and her prior tenants in the property "has no bearing or potential bearing upon whether (a) the premises were in a reasonably habitable condition at the commencement of the tenancy; and/or (b) whether the landlord had kept the premises in a reasonable state of repair during the period of this tenancy and/or (c) whether the landlord had issued a retaliatory Notice to Terminate the tenancy." (Para 47)
Senior Member Sarginson erred in law and fact in finding that the "proposed Summons lacks a legitimate forensic purpose because the documents sought have no apparent relevance to the issues in dispute in the proceedings." (Para 49)
Senior Member Sarginson erred in law and fact in finding that "calling evidence from previous tenants about the condition of the property during their tenancy; and their relationship with the landlord (or the landlord's agent) does not affect, directly or indirectly, the assessment of the probability of a fact in issue in these proceedings." (Para 51)
The Appellant makes the point here that a summons is intended to put a party in the position of knowing what evidence exists and assessing its relevant (sic) to the issues in the matter at hand. Senior Member Sarginson erred in law and fact by making all these findings in absolute and total ignorance of the nature of the evidence the summons may have produced to the Appellant and subsequently to the Tribunal.
Senior Member Sarginson demonstrated his bias and animus toward the Appellant by falsely finding, as a matter of fact, that the Appellant stated in the course of the proceedings that the Respondent had "repudiated" the residential tenancy agreement. The Appellant said that the Respondent had terminated the residential tenancy agreement by the issue of the notice for vacant possession. The Senior Member has entirely misrepresented the nature of the Appellant's case in his assertions about the Appellant's case set out in Para 63.
Senior Member Sarginson erred in law and fact in finding that "The tenant's claim that NCAT is 'institutionally biased' and 'corrupt' in incorrect and should not have been made. The Senior Member is under a duty, pursuant to the NCAT Act, to inform himself of the relevant facts and law and he made no attempt to explore with the Appellant the factual and legal basis of his statements that the NCAT is institutionally biased and corrupt. There is ample evidence of the NCAT's bias and corruption which will be tendered in this appeal.
Senior Member Sarginson erred in law and fact in finding that he was "not satisfied that the tenant has established any breach of s.52 of the RT Act in respect of the premises being wholly or partially uninhabitable." (Para 104)
Senior Member Sarginson erred in law and fact in finding the "tenant is not entitled to any rent reduction under s.44(1)(b) or (sic) the RT Act because there was not (sic) reduction or withdrawal of services or facilities that were present at the commencement of the tenancy". (Para 123)
Senior Member Sarginson erred in law and fact in failing to understand or to find that the apparent state of a property the subject of a residential tenancy agreement is not determinative of whether the premises are "wholly or partially uninhabitable" or whether a false and misleading representation by the landlord in their presentation of the premises of the premises (sic) to a prospective tenant can result in the effective reduction or withdrawal of services or facilities which were [apparently] present at the commencement of a tenancy.
Senior Member Sarginson erred in law and fact in finding that a premises with a bath is required (sic) to have a hot water system of at least 100 litres capacity to enable the bath to be used as a bath.
Senior Member Sarginson erred in law and fact in failing either to inform himself of the necessary size of the hot water system to enable the bath to be used as a bath or of any legal precedent that may exist on the issue of whether renting a premises with a bath constitutes a binding representation to any potential tenant that the hot water system servicing the premises is sufficiently large to allow the bath to be used as a bath.
Senior Member Sarginson erred in law and fact in not finding that the failure of the landlord to supply a 100 litre hot water system for the premises, from the outset of the tenancy, constituted a withdrawal of services or facilities which were [apparently] present at the commencement of the tenancy.
Senior Member Sarginson erred in law and fact in not finding that "Prior to [April 2022] the only issue in the kitchen area was droplets of condensed water. The ventilation was 'adequate' within s.52(1A)(c) of the RT Act." (Para 109)
Senior Member Sarginson erred in law and fact in finding that "There is no breach of the obligation under s.63 of the RT Act in respect of the hot water system." (Para 113)
Senior Member Sarginson erred in law and fact in finding that the "Tribunal is not satisfied that the landlord's failure to install an exhaust fan constitutes a breach of s.63 of the RT Act until mould became a problem from April, 2022." (Para 116)
Senior Member Sarginson erred in law and fact in finding that "the Tribunal is satisfied that the landlord was in breach of its obligations under ss 63 and 65 of the RT Act on 21 June 2022 by reason of failing to install an exhaust fan in the kitchen." (Para 121)
Senior Member Sarginson erred in law and fact in finding that the "Tenant is not entitled to any rent reduction under s. 44(1)(b) of the RT Act because there was no reduction or withdrawal or services or facilities that were present at the commencement of the tenancy." (Para 123)
Senior Member Sarginson erred in law and fact in finding that the calculation of the appropriate amount of compensation under s.187 of the RT Act should commence on 21 June 2022 rather than at the date 12 months prior to the filing of the Appellant's original action on 29 September, 2022 ie 29 September, 2021 and continuing until the date of the order.
Senior Member Sarginson erred in law and fact in failing to order that the respondent make repairs as sought by the Appellant based on the wrongful decision of the Senior Member to terminate the tenancy. (Para 135)
Senior Member Sarginson erred in law and fact in failing to award compensation for distress and inconvenience to the Appellant - first on the ground that the Senior Member referred to such an award as an award of "damages, which demonstrates his fundamental failure to understand the nature of the RT Act and the NCAT Act, and second on the ground that "the asserted distress and inconvenience arises from his assertions about the conduct of the landlords agent and the proceedings in NCAT" both of which are consequential to the Respondent's conduct in issuing the original notice for vacant possession and her other unlawful conduct through the tenancy and these proceedings.
Senior Member Sarginson erred in law and fact in finding that he should not make orders for repair and other consequential orders as sought by the Appellant in (sic) the basis of the Senior Member's decision to terminate the tenancy.
Senior Member Sarginson erred in law and fact in finding that "In respect of s.217 of the RT Act, there has been no evidence provided by the tenant to establish that the landlord has, or proposes, that the tenant be listed in a residential data base. The Senior Member failed to discharge his duty to inform himself of the likelihood of that event and failed to take into account the simple and obvious reality that termination of the tenancy on the grounds of frequent failure to pay the rent would have a very significantly negative impact on the Appellant's ability to find new rental accommodation.
Senior Member Sarginson erred in law and fact in finding that "it is unnecessary in the context of the landlord's termination application to further consider the Notice to Terminate dated 29 September, 2022" in the context of the Appellant's assertion that the original notice served by the Appellant (sic) was retaliatory and made all subsequent notices retaliatory. (Para 146)
Senior Member Sarginson erred in law and fact in finding that the Appellant had made a 'conscious and deliberate decision to refuse to pay rent" in response to a "breach of the agreement" by the Appellant (sic):
1. Senior Member Sarginson erred in law and fact in failing to find that, subsequent to the Appellant's filing of his application in RT 22/43591, the "rent" payable by the Appellant to the Respondent was undefined and subject to the review of and possible reduction by the NCAT.
2. Senior Member Sarginson erred in law and fact in finding that the Appellant stopped paying rent in response to a breach of the residential tenancy agreement rather than finding that the Appellant stopped paying rent in response to the Respondent's purported termination of the residential tenancy agreement in circumstances - confirmed by the findings of the Senior Member in his reasons for decision - that at the time of the Appellant advising the Respondent that he would make no further payments of rent, the Respondent was indebted to the Appellant in the sum of $1600, a sum greater than that owed by the Appellant to the Respondent pursuant to the residential tenancy agreement on 29 September, 2022.
3. Senior Member Sarginson erred in law and fact in finding that the Appellant had at any time "refused to pay rent" in the circumstances that on 29 September, 2022 the Appellant himself sought an order that the rent purportedly payable pursuant to the residential tenancy agreement be paid into the NCAT pending the outcome of the proceedings, such that the Appellant, in justice, fairness and equity, can only be said to have failed to pay the rent to the Respondent once, on 10 September, 2022.
4. Senior Member Sarginson erred in law and fact in failing to find and failing to take account of the fact that the Appellant had continued to pay rent despite the numerous and various breaches of the residential tenancy agreement on the part of the Respondent and her agent between the period of the start of the residential tenancy agreement and 10 September, 2022.
5. Senior Member Sarginson erred in law and fact and demonstrated his fundamental failure to understand the nature of the NCAT and the RT Act in seeking to apply the ratio of the decision set out in Seymour v Wu [2021] NSWCATAP 289 to any proceeding in the NCAT pursuant to the RT Act. There is no provision for the award of damages under the NCAT and any case decided in a civil court pursuant to the law of contract in regard to damages has no relevance or applicability to any proceeding under the RT Act in the NCAT.
Senior Member Sarginson erred in law and fact in finding that the tenant had breached the agreement by failing to pay rent on time and in accordance with the agreement.
Senior Member Sarginson erred in law and fact in finding that the "breach" was sufficiently serious in all the circumstances of the matter to justify termination of the tenancy.
Senior Member Sarginson erred in law and fact in finding that the tenant has not given any adequate explanation for the breach or what will be done to rectify the breach. The Senior Member should have found that by filing his application in RT 22/43591 that he had fully discharged his obligations pursuant to the agreement in the circumstances of a dispute between the parties.
Senior Member Sarginson erred in law and fact in failing to find that by her failure to seek orders or support the Appellant's application for orders that the monies in dispute between the parties be paid into the NCAT, the Respondent was equitably estopped from seeking an order for termination of the tenancy on grounds of frequent failure to pay rent.
Senior Member Sarginson erred in law and fact in finding that all the applications made by the Respondent were retaliatory according to s.115 RT Act and in failing to take into account the written reasons given by Member Ash in these matters (written reasons cited by the Senior Member in his own reasons) in which Member Ash states, correctly, "There is another notice for non-payment of tent. As to this, three things. First, the tenant will assert that it is retaliatory too."
Senior Member Sarginson erred in law and fact in finding that the amount of rent in arrears was "very significant". The Senior Member reached that conclusion without making any attempt at determining the income the Respondent derives from her various rental properties, which is obviously of crucial importance in determining whether the amount in arrears was of even marginal significance to the Respondent.
Senior Member Sarginson erred in law and fact in finding that the common law principle of repudiation of contract had any relevance to these proceedings. The Senior Member demonstrated his failure to comprehend the significance of the operation of the RT Act in regard to common law principles of contract law. The Respondent unarguably terminated the residential tenancy agreement by serving a notice for vacant possession. The question before the Senior Member was whether that termination was lawful under the RT Act or whether any other application for termination of the agreement was lawful pursuant to that Act. (Para 167).
Senior Member Sarginson erred in law and fact in finding that "There is clearly financial hardship to the landlord by reason of the tenant's significant rent arrears." The Senior Member made absolutely zero attempt to inform himself of the Respondent's financial situation prior to making that finding and it is wholly unsupported by fact or law and wholly improper in the circumstances.
Senior Member Sarginson erred in law and fact in ordering the Appellant a daily occupation fee (sic) at the rate of $60 per day, an amount completely inconsistent with his own findings and orders in regard to compensation payable to the Appellant, being the amount payable pursuant to the residential tenancy agreement without reduction. The amount consistent with the Senior Member's own findings is $52 per day.
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
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Decision last updated: 19 April 2023