New South Wales Land and Housing Corporation v Hamilton

Power to grant a stay of the decision under appeal

1. The power to stay the operation of a decision under appeal is conferred by s 43 of the Civil and Administrative Tribunal Act 2013 (NSW) in these terms: Effect of pending general applications and appeals … (2) A pending … appeal does not affect the operation of the decision to which the … appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision. (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending … appeal relates as it considers appropriate to secure the effectiveness of the determination of the … appeal.
2. The Civil and Administrative Tribunal Act does not specify the factors to be taken into account in determining whether the discretionary power to stay the operation of a decision under appeal should be exercised. In Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37, after examining the authorities, Wright J at [9], summarised the principles to be applied in determining whether or not to grant a stay pending the determination of the appeal (citations omitted): 1) Generally a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour - s 43(2) and (3) of the Act. (2) In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order. (3) The mere lodgment of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay. (4) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal - s 43(3) of the Act. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay. (5) The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision -. (6) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. (7) In exercising the discretion the Tribunal will also weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. (8) Finally, the overriding principle in an application for a stay is to ask what the interests of justice require.

Considerations relevant to the extension of the stay

1. In our opinion the following considerations outlined by Wright J in Bentran are especially relevant to this matter:

Prospects of success

1. NSW Housing submits that the resolution of the appeal turns principally on the question of whether in making the relocation order the Tribunal exceeded its powers conferred under the Residential Tenancies Act 2010 (NSW) (the Act). It contends that the Tribunal lacked power to make the relocation order.
2. Ms Hamilton contends that the argument advanced by NSW Housing is misconceived. She asserts that the Act gives the Tribunal broad order-making powers, which include the power to order a "social housing provider" to relocate a tenant, where, as in her case, the provider is found to be in breach of the relevant "social housing tenancy agreement". She submits that the Tribunal correctly concluded that s 187(2)(b) of the Act gave it power to make the relocation order. Section 187(2)(b) provides: Orders that may be made by Tribunal … (2) Without limiting the Tribunal's power to make an order as to compensation, the Tribunal may order compensation to be paid for the following: .. (b) any other breach of a residential tenancy agreement …

Appeal rendered nugatory

1. NSW Housing contends that if the relocation order is implemented before the finalisation of the appeal, the appeal would be rendered nugatory. NSW Housing points out that if implemented, it would be impracticable if not impossible, to reverse the relocation order.

Interests of the parties

1. Ms Hamilton contends that it is in her interests that the application for an extension of the stay be refused. She points out that the initiating application was made to NCAT over 10 months ago and argues that the interests of justice demand that she receive the benefit of the decision under appeal, without further delay. She claims that her current housing situation is untenable and, as acknowledged by the Tribunal, puts her health and personal safety at risk and seriously diminishes her quality of life.
2. NSW Housing does not dispute that it would be in Ms Hamilton's interests for the relocation order to be implemented but repeats its submission that the Tribunal was without power to make that order.
3. In addition, NSW Housing contends that given the shortage of social housing, it is unable to relocate Ms Hamilton at this point in time. It points out that while a decision was made in late 2014 to approve Ms Hamilton's application for "escalated transfer" on "at risks" grounds, she is but one of a number of tenants in equally difficult circumstances. NSW Housing claims that given Ms Hamilton's place on its list of "at risk" tenants, number 132, it is unlikely that it will be able to offer her suitable alternative accommodation in the foreseeable future. NSW Housing submits that it would be unfair to give priority to Ms Hamilton over other "at risk" tenants who have been awaiting alternative accommodation for a longer period.
4. In addition, NSW Housing asserts that it does not have temporary accommodation available to relocate Ms Hamilton until the resolution of the Appeal.

Should the stay be granted?

1. Plainly it is in Ms Hamilton's interests that the application for an extension of the stay be refused. It is uncontroversial that the anti-social behaviour of neighbouring tenants places her at risk. Her interests strongly favour refusing the requested extension of the stay.
2. Weighing against that consideration is the fact that the appeal would be rendered futile if the decision were to be implemented. While premature at this early stage of the proceedings to determine the statutory construction issue raised by NSW Housing, the Appeal could not be said to be unmeritorious or lacking any real prospects of success.
3. In our opinion the continuation of the stay is necessary to secure the effectiveness of the Appeal. While the considerations are finely balanced and we have considerable sympathy for Ms Hamilton's position, we conclude that the balance of considerations favour continuing the stay. 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: 22 May 2015