This is an appeal from two decisions of the Consumer and Commercial Division of the Tribunal dated 17 January 2024 and 30 January 2024. The first was the dismissal of an application including under s 115 Residential Tenancies Act 2010 (NSW) (RT Act) made by the appellants ("the tenants") that the notice of termination without grounds ("no grounds notice") issued by the respondents ("the landlords") was retaliatory and that certain repairs were required to be carried out. In the second decision, which resulted from the first, the Tribunal terminated the residential tenancy immediately and suspended the date of vacant possession until 13 February 2024 under s 85 and s 114(2) of the RT Act.
The appeal was filed on 31 January 2024. The appeal has been filed within the applicable time limit under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
On 14 February 2024, orders were made that the tenants lodge all evidence on which they intended to rely including that from the Tribunal below, submissions, and if "oral reasons were given and/or what happened at the hearing at first instance is being relied on by the [tenants] in the appeal, a typed transcript of the relevant parts of the hearing, together with a sound recording of the entire hearing".
The appeal hearing commenced on 27 March 2024, however no transcript was provided of either of the hearings of the Tribunal below. This was important for the reason that Mr McWilliam relied on matters alleged to have been said at the hearing for the purposes of the tenants' appeal. He said the sound recording was not easy to decipher and that he had made an application for a better quality sound recording.
We made orders to adjourn the hearing until a date after 1 May 2024, and made directions that all documents within the orders made on 14 February 2024 be filed by certain dates. Failure by the appellants to comply would result in the appeal being dismissed. In particular, we requested that Mr McWilliam provide to us the parts of the transcript, including the oral reasons for the decisions on 17 January and 30 January, that he wished to rely on.
The tenants were previously granted a stay of the possession order made by the Tribunal. We continued the stay until the publication of this decision subject to the tenants' compliance with filing the required documents, and also paying "in full and on time occupation fees in the amount of the rent under the lease terminated on 30 January 2024".
The appeal was subsequently adjourned to 11 June 2024. However, on 11 June 2024, the appeal was adjourned due to Mr McWilliam having COVID. He was directed to file and serve a medical certificate, which he did on that same day.
Ultimately the hearing was adjourned until 13 August 2024. Mr McWilliam appeared both for himself and the other tenant (Ms Nillesen) at the appeal hearing. The landlords were represented by their agent Mr Karas.
The sound recordings from the 17 January 2024 hearing ("17 January hearing") and 30 January 2024 hearing ("30 January hearing") were not provided to us, nor were typed transcripts.
For reasons that are set out later in this decision, we have decided to dismiss this appeal.
[2]
Background
The tenants commenced their tenancy of residential premises in Croydon in May 2021.
In September 2022, the landlord served the tenants a notice of an increase in the rent to commence in November that year. The rent was increased from $380 to $500 per week. The tenants paid $420 per week and so the landlords made an application for rent arrears. The tenants agreed to pay the arrears and the rent increase.
On 18 September 2023, the police attended the premises in response to a harassment complaint made about Mr McWilliam.
On 26 September 2023, a no grounds notice was posted to the tenants requiring vacant possession by 4 January 2024.
On 8 October 2023, another no grounds notice was put in the letterbox of the tenants. The landlord said he did this because Mr McWilliam said he did not receive the first one. The no grounds notice stipulated that vacant possession of the premises was to be given by 6 January 2024. A photograph of the notice being put in the letterbox of the tenants was before the Tribunal. That photograph had a date stamp of 8 October 2023 at 10.13am (having been taken on a mobile phone).
On 27 October 2023 the Tribunal made orders by consent of the parties that the following repairs would be conducted by the landlord on the premises before 27 November 2023 in a proper and workmanlike manner:
1. Repairing flyscreens on balcony door, 1 in main bedroom and 2 in living room
2. Repair dishwasher to prevent excessive noise fault
3. Clean mould and attend to appropriate repairs
4. Repair blind in second bedroom
5. Ensure balcony leak is not causing risk of electrical fault.
The Tribunal also ordered that the tenants provide all documents on which they intended to rely at the hearing by 10 November and the landlords by 24 November 2023. The Tribunal noted that "document" means witness statements/ statutory declarations or affidavits, expert reports, photographs, accounts or receipts, quotations. The Tribunal also ordered that a failure to provide documents in accordance with orders may result in a party not being able to rely on them at the hearing without permission to do so.
On 7 November 2023, the landlords issued (via email) no grounds notices to each of the tenants in units 1, 2, 3, 5, 6 and 7. Each notice required vacant possession by 14 February 2024.
On 11 November 2023, the police attended the premises in response to a complaint by the agent about Mr McWilliam harassing him or his staff. Mr McWilliam provided photographs of the police in attendance and recorded on the photographs that it was allegedly a "welfare check" and the agents were lying about him and harassing him, alleging he was "crazy and aggressive".
On the same day, the tenants made a further application to the Tribunal (case number RT 23/50604) seeking orders that the 90 day termination notice expiring on 4 January 2024 was retaliatory, that their quiet enjoyment had been breached due to alleged harassment by the managing agent and seeking an order for that behaviour to be restrained. They also sought the following relief under the RT Act: an order under s 187(1)(a) that restrained any action in breach of a residential tenancy agreement; an order under s 44(1)(b) that the rent payable was excessive due to the reduction or withdrawal of any goods, services or facilities provided with the residential premises; an order under s 65(1)(a) that the landlord carry out repairs; an order under s 65(5) that all or part of the rent payable be paid to the Tribunal until the repairs are carried out; an order under s 45 reducing the rent payable where the premises are unusable or uninhabitable or destroyed.
On 13 November 2023, the police attended the premises again. Mr McWilliam recorded on the photograph that he provided to the Tribunal: "3rd time police came for another check agent used same email to justify as first". On 14 November 2023, the agent for the landlords contacted the police by email about continuous alleged harassment by Mr McWilliam. Before the Tribunal there were numerous text messages sent by Mr McWilliam to the agent said to be part of the harassing conduct.
On 1 December 2023, an invoice was issued to the agent for repair works at the premises for $495 which included attending at the premises on 3 November 2023 and performing the following works:
"- Repaired flyscreen on balcony door
- Checked dishwasher and found in working order and noise is normal
- Cleaned mould in bathroom and attend to repaired requires
- Repaired blind in bedroom
- Investigated balcony leak and confirmed no hazards"
On the same date, a routine inspection report of the premises was conducted by the agent. That report included photographs of the property, including a photograph of a blind that appeared to be dented at one end and a photograph showing some discoloration in the corner of the shower.
Numerous text messages between Mr McWilliam and the agency for the landlords on 1 December showed that Mr McWilliam complained that the dishwasher noise had not been resolved and the fuse box was not fixed.
On 4 December 2023, the Tribunal (in RT 23/50604 or 2023/367520) made further directions including extending the date for the landlords to lodge documents with the Tribunal upon which they relied to 1 January 2024. Those documents were stipulated to include witness statements, expert reports, colour photographs, invoices, quotations, chronology, index of the documents, hearing notes, rent ledger, residential tenancy agreement, ingoing and outgoing condition report. It was noted on the orders that "Issues as to repairs, inaccurate rent ledger and overpaid rent will be dealt with on 17/1… The tenant confirms he does not seek rent relief for failure to repair."
On 11 January 2024, the landlords made an application in the Tribunal for payment of the occupation fee, a termination order after expiry of the no grounds notice and an order for possession (file number 2024/13238).
[3]
The 17 January hearing and 30 January hearing
At the 17 January hearing, the landlords argued that the no grounds notice was not retaliatory because the tenants in units 1, 2, 3, 5, 6 and 7 had been issued with similar notices.
The landlords contended that all requests for repairs had been completed and the outgoing report had photographs attached which showed the work was completed and the invoice for the work done was provided along with the licence details of the contractor.
There was a dispute about both of these matters.
Mr McWilliam pointed to the photographs dated 6 February 2024 of the shoes outside the neighbouring properties which he said demonstrated that the other tenants had not all moved out and which supported his s 115 retaliatory application (despite the other tenants' notices not requiring them to move out until later in February).
In response to Mr Karas' evidence that the repairs were completed, Mr McWilliam tried to rely on video footage taken on 16 January 2024 of the dishwasher making a noise which was on his phone, as well as photographs of the blinds and shower. He contended on the appeal that the Tribunal refused to look at the evidence and further said he was required to have expert evidence that the dishwasher did not work and other repairs not carried out.
On the face of the orders made on 17 January 2024 it is stated:
"1. The application is dismissed because:
Having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.
2. The tenant's application to have the 90 day termination notice declared retaliatory and that the termination notice has no effect is dismissed.
a. The Tribunal is not satisfied that the landlord was wholly or partly motivated to give the notice as a retaliatory notice.
b. Even if the notice was retaliatory, after considering all the circumstances and the current situation between the parties, in the exercise of the discretion the Tribunal would not make an order declaring that the notice has no effect."
…"
Oral reasons were given at the 17 January hearing and on 30 January 2024. The tenants did not provide us with a typed copy of the parts of the transcripts where the Tribunal recorded its reasons for decision nor the sound recordings from those hearings.
[4]
Materials relied upon
On this appeal, the tenants relied on their notice of appeal, the materials that were before the Tribunal at first instance as well as some additional documents which Mr McWilliam said the Tribunal refused to have regard to. These were photographs on his phone of images (now printed) that showed an iPad with the dates 3 December 2023 and then 16 January 2024 in front of pictures of damaged blinds in one room, and discolouration in the shower which the tenant alleged was mould, as well as the video of the dishwasher making noise.
Mr McWilliam sought leave to rely on the following further new material:
1. images of police attending his premises on "13 Mar" which we assumed was 13 March 2024 as well as photographs of the cars of other tenants in the carpark at the units on 3 February, 12 February, 16 February and 26 February 2024 and 16 April 2024;
2. the licence details of a carpenter;
3. emails from the agent offering to relocate the tenants;
4. a no grounds notice addressed to tenants in unit 4 dated 26 September 2023 with vacant possession to occur on 4 January 2024;
5. parts of the transcript which he had transcribed from the 17 January hearing and the hearing on 30 January;
6. a statement from a licensed electrician (a copy of his licence is also included) dated "31/1/2" (sic) who states that the clay looking fuses are not RCD fuses and do not offer the low voltage fire and electrical shock protection that an RCD type fuse box does;
7. a photograph of the fuse box meter which shows only 7 metres and not 8.
8. an email dated 9 November 2023 from the agent to the tenants referring to the no grounds noticed previously provided on 9 October 2023; and
9. a statement from Mr McWilliam's counsellor dated 6 February 2024 in support of an extension of time to exit current accommodation, noting the extreme stress and anxiety Mr McWilliam had suffered, and also noting that it was not in his best interests to stay in the premises but that he would require at least three more months to find accommodation.
The landlord relied on a bundle of material including: reply to appeal; submissions; no grounds notices to tenants in units 1, 2, 3, 5 and 7 and status reports in relation to same; a no grounds notice to the tenants dated 26 September 2023; a photograph of the no ground notice being put in the letterbox of Unit 4 on 8 October 2023 at 10.13am; previous orders from the Tribunal; a routine inspection report with photographs dated 1 December 2023; an email from the agent to Mr McWilliam offering assistance in relocating; an email to Mr McWilliam with the police report number; an email from the agent to Sargeant Andrew Fuller regarding the harassment claim; a statutory declaration from a tradesman who gave evidence about being harassed by Mr McWilliam when he attempted to carry out repairs on the premises; a managing agency agreement.
[5]
The scope and nature of internal appeals
To succeed in an appeal, the tenants must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), s 80(2).
In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]-[40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act. An appellant is required to identify a pure question of law which then becomes the subject matter of the appeal: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12], [14]; Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220.
The circumstances in which the Appeal Panel may grant leave to appeal from a decision made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act.
The principles governing an application for leave to appeal under the NCAT Act are well established and repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17 (Collins v Urban). The Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because:
1. the decision of the Tribunal under appeal was not fair and equitable; or
2. the decision of the Tribunal under appeal was against the weight of evidence; or
3. 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, the Appeal Panel stated, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act 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 requiring leave to appeal has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. The appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [31].
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:
1. Issues of principles;
2. Questions of public importance or matters of administration or policy which might have general application;
3. 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;
4. A factual error that was unreasonable arrived at and clearly mistaken; or
5. 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 respect of a self-represented non legally trained appellant, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13].
[6]
Notice of appeal
When the substance of the purported grounds of appeal are fairly analysed, they appear to us to raise two questions of law. The first is whether there was a denial of procedural fairness in the 17 January hearing and the 30 January hearing. The tenants said that, at the 17 January hearing, the agent's oral evidence was accepted but the tenants' material in answer to that evidence was not allowed because the Tribunal said it had to be submitted prior to the hearing. In particular, this related to the video footage on 16 January 2024 of the dishwasher making a noise and the photographs of a broken blind and discolouration in the shower (which Mr McWilliam said was mould). These were photographs and videos that Mr McWilliam had available on his mobile phone but which the Tribunal refused him permission to show and rely on in answer to the agent's assertion that all repairs were completed in accordance with the Tribunal orders.
The tenants also relied on parts of the transcript from 17 January hearing where the Tribunal said the tenants required more than a video of the dishwasher - they would need professional statements from a "suitably qualified dish washer person" or "trades person showing what needs to be done to the dishwasher" or "quote for what needs to be done". This raises the second question of law about whether the Tribunal applied the wrong principle concerning the standard of proof required.
The allegation that the tenants were denied procedural fairness in the 30 January hearing was difficult to understand. It seemed to us that the complaint was that, when Mr Karas gave evidence that the no grounds notice was issued on 9 October 2023, he was lying and that he was also lying about the repairs being completed and that Mr McWilliam had not had time to prepare a response to that evidence.
In the alternative, the tenants also made an application for permission appeal on effectively the same bases. Given we have identified that questions of law arise, the tenants do not need permission to appeal.
[7]
Termination
Section 85 of the RT Act states:
85 Termination of periodic agreement - no grounds required to be given
(1) A landlord may, at any time, give a termination notice for a periodic agreement.
(2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.
(2A) Despite subsection (2), in the case of an employee or caretaker residential tenancy agreement, the termination notice must specify a termination date that is -
(a) on or after the end of the period of notice for termination agreed to by the landlord and the employee or caretaker in that agreement or arrangement, or
(b) not earlier than 28 days after the day on which the notice is given, whichever is the later date.
(3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
(4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.
The requirements for a termination notice are set out in s 82 of the RT Act. The manner of service is set out in s 223 of the RT Act. By reason of s 83(2) of the RT Act, if the tenant remains in the premises after the expiration of the date of possession in the Notice issued under s 85, the landlord may apply to the Tribunal for an order to terminate the tenancy. Pursuant to ss 81(3) and 187(1)(i) of the RT Act, the Tribunal has the power to make an order terminating a residential tenancy.
[8]
Retaliatory evictions
Section 115 of the RT Act states:
115 Retaliatory evictions
(1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice -
(a) declare that a termination notice has no effect, or
(b) refuse to make a termination order,
if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application.
(2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons -
(a) the tenant had applied or proposed to apply to the Tribunal for an order,
(b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law,
(c) an order of the Tribunal was in force in relation to the landlord and tenant.
(3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.
The legal principles applicable to s 115 of the RT Act were discussed in detail by the Appeal Panel in Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109.
Those principles are summarised as follows:
1. The tenant has the onus of providing sufficient evidence for the Tribunal to be satisfied that the Notice is retaliatory because the landlord was "wholly or partially motivated" by one or more of the grounds set out in s 115(2)(a)-(c) of the RT Act.
2. If the Notice is retaliatory, the Tribunal has a discretion whether or not to declare the Notice as retaliatory and having no effect; or to refuse to terminate the tenancy. The Appeal Panel stated in Hughes at [120]-[121]:
"[120] As the Appeal Panel identified in Steinbeck, although the discretion is broad, the matters to be taken into account should appropriately focus upon the competing rights and interests of the landlord and tenant under the RT Act and the residential tenancy agreement. The Tribunal must then identify and weigh the matters taken into account and explain why it is satisfied that the discretion should, or should not, be exercised in favour of declaring the termination notice as having no effect, or refusing to make the termination order.
[121] Such matters may include, depending on the circumstances of the case:
(1) The reasons the landlord seeks possession of the premises.
(2) If the landlord was only partially motivated to issue the Notice or file the termination application by reason of one or more of the matters in s 115(2) (a)-(c), the degree to which those matters motivated the landlord in comparison to other matters that fall outside of s 115 (2)(a)-(c).
(3) If the landlord is a social housing provider, the waiting list for social housing.
(4) Whether there is substantial hardship to either the landlord or the tenant if the tenancy is not terminated despite the fact that the landlord was wholly or partially motivated to issue the Notice or file termination proceedings by reason of one or more of the matters in s 115(2) (a)-(c) of the RT Act.
(5) Whether the relationship between the parties has broken down to such a degree that it is in the overall interests of the parties to terminate the tenancy so that both parties may move forward. In this regard, a relevant enquiry is why the relationship has broken down and whether the parties have been involved in a cycle of disputation and litigation that is likely to continue if the tenancy is not terminated. However, any such enquiry must be careful not to unfairly benefit a party who has not complied with its obligations under the RT Act and should consider the conduct of both parties."
[9]
17 January hearing
There was a framework in the lead up to the 17 January hearing for evidence to be relied upon by each party to be put in documentary form. Both parties had the opportunity to do so and were given several extensions of time to comply.
We were not provided with a copy of a typed transcript of the reasons given by the Tribunal on 17 January 2024 for its decision. As noted above, the tenants were directed on 14 February 2024 to provide a transcript of the hearing. They did not do so despite being given an adjournment of the hearing before us on 27 March to do so. Instead, we were simply provided with typed parts of the transcript that did not include the Tribunal's reasons for decision. This makes it impossible for us to understand entirely the basis for the Tribunal reaching the conclusion it did.
Looking at the parts of the transcript which have been provided to us, we do not read that the Tribunal required expert evidence from Mr McWilliam in order to demonstrate the repairs to the dishwasher, electricals, blind and shower were not complete and required further work. The Tribunal expressly referred to "quotations" or other suitable evidence in order to understand what was alleged to still be required to be done and how much that might cost to fix. This was consistent with the orders previously made on 27 October 2023 for the filing of documents by certain dates.
This type of evidence was necessary for Mr McWilliam to provide irrespective of what Mr Karas said at the hearing. This is for the reason that the tenants made the application for the orders concerning the repairs and the retaliatory action and, consequently, it was their onus to establish those matters with evidence. That evidence was required to be submitted within the timeframes directed by the Tribunal. We do not consider that the Tribunal put the tenants to an unreasonable burden of proof in requiring them to provide evidence (including documents as defined in the orders on 27 October 2024) in support of their case. That evidence may have included expert evidence or other lay evidence and photographs, statements, quotes and the like. This type of evidence is not dissimilar to the evidence that the tenants sought leave to rely upon for this appeal as noted at paragraphs 35(5) and (6) above. We do not give permission to the tenants to rely on the evidence at paragraphs 35(5) and (6) on this appeal, as there was no explanation why this was not reasonably available at the 17 January hearing: the tenants simply did not think it was necessary despite the very specific directions from the Tribunal about the evidence that was required.
It is acknowledged that expert evidence is not required in every case where there is a strict duty to make repairs, although it is preferable depending on the circumstances of the case: see for example in Selkirk v The Owners - Strata Plan No 2661 [2024] NSWCATAP 17; Batshon v Sutton Motors Homebush Pty Limited [2024] NSWCATAP 114. However, the typed parts of the transcript that the tenants have provided to us do not support the tenants' contention that the Tribunal required the tenants to provide expert evidence to establish the repair work that need to be carried out and in doing so applied the wrong principle of law to the onus of proof.
That Mr Karas said orally at the 17 January hearing that the repairs were complete was not taking the matter further than what he had put in documentary form including an inspection report, an invoice for work done and the licence details for the provider of those services. When the Tribunal refused to allow Mr McWilliam to rely on evidence he had not put in documentary form previously, it was a result of the tenants' non-compliance with orders the Tribunal had previously made, not the result of a denial of procedural fairness or a failure to apply the correct principles of law to the evidence, on the material available to us on the appeal.
Further, on our review of the material before the Tribunal below and the submissions made by each of the parties at the appeal, it was apparent that the relationship between the parties has been dysfunctional for some time. There has been an extended period where allegations have been raised by each against the other and the police have been involved on several occasions in respect of alleged harassment by Mr McWilliam of the agent and his staff. Mr McWilliam continued to allege that the agent was fraudulent and lied and should be disbelieved. Mr McWilliam was charged by the police on at least one occasion which he says was a deliberate attempt by the agent to have him miss a Tribunal hearing in November. Much of the submissions made to us were directed at the breakdown of the relationship between Mr McWilliam and the agent.
Irrespective of whether the no grounds notice was retaliatory, it was open to the Tribunal in the exercise of its discretion to determine not to make an order declaring that the no grounds notice has no effect.
Consequently, we are not satisfied that the grounds of appeal in respect of the 17 January hearing are made out.
[10]
30 January hearing
The parts of the transcript relied upon by the tenants from the 30 January hearing were of approximately 45 seconds duration in total. It was essentially the parts where Mr Karas was sworn in to give evidence and then explained issuing the no grounds notices first by post and then by email.
Mr McWilliam submitted that Mr Karas was given an adjournment for an hour to gather further evidence to support new oral claims but that Mr McWilliam was not given time to go over documents to dispute the new claims. He did not explain what the new claims were and there was nothing before us to indicate what those claims were. It appeared to us that Mr McWilliam was contending that, when Mr Karas took an oath, he lied because he said he posted out on 26 September 2023 and then emailed on 9 October 2023 the no notice grounds when in fact it was 8 October 2023. We note on the transcript Mr Karas corrected that date.
The tenants have not otherwise provided any material, including the full transcript, to support this ground of appeal and so we are not satisfied that the tenants were denied procedural fairness in respect of the 30 January hearing.
[11]
Conclusion
Since neither ground of appeal has been made out, we dismiss the appeal. Consequently, the order made on 1 February 2024 staying the operation of the order for possession on 30 January 2024, is lifted. We shall provide a short further period stay of the possession order to enable an orderly exit from the premises by the tenants.
[12]
Orders
We order as follows:
1. The appeal is dismissed.
2. The order made on 1 February 2024 for suspension of the operation of the order for possession made on 30 January 2024 in matter number 2024/00013238 is discharged.
3. In place of the suspension in order 2, order that vacant possession of the premises at 4/187 Edwin Street, Croydon is to be given by the tenants on or before 28 days after the date of this decision.
[13]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 December 2024