(1998) NSW ConvR 55-871
Parslow v NSW Land & Housing Corporation
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Catchwords
(1998) NSW ConvR 55-871
Parslow v NSW Land & Housing Corporation
Judgment (11 paragraphs)
[1]
REASONS FOR DECISION
The applicant (the landlord) seeks orders under s 147 of the Residential Tenancies Act 2010 (the Act) for termination of the respondent's tenancy agreement, and for possession of the premises. The respondent (the tenant) opposes the orders sought. She argues that the landlord is estopped from denying that her tenancy is a continuous tenancy, based on a representation to that effect made on behalf of the landlord in writing on 28 September 2012. She also submits that the termination notice is invalid. In the alternative she alleges that the termination application is a retaliatory application.
For the reasons set out below I am not satisfied that the landlord is entitled to the orders it seeks. However, I am also not satisfied that the tenant has proven that the landlord is estopped from terminating the agreement, nor that the application is a retaliatory application.
[2]
Preliminary issue - correction of the name of the respondent
NSW Land & Housing Corporation v Chadwick [2023] NSWCATCD 11 | Case summary | Zoe
In the application lodged with the Tribunal the tenant was named as Sandra-Anne Hganone Chadwick. On 15 September 2022, the Tribunal amended the name of the respondent to Mrs Ngaone Sandra Griffiths, the name on the tenancy agreement dated 22 December 2005 (the Tenancy Agreement).
The applicant seeks that the respondent's name be further amended, to reflect the name which the tenant currently uses, and to link it to the name on the Tenancy Agreement. The tenant opposes the application for amendment of her name. She submits rather that the termination application should be dismissed, because she has never been known as Sandra-Anne Hganone Chadwick. The tenant says that as the application form includes a statement by Paul White on behalf of the landlord that verifies the accuracy of the information in the form, and as the information was not correct, that statement is a false statement. She submits that the landlord has mislead the Tribunal and it is not consistent with the principles in Schedule 4 of the Act to now permit the landlord to make the amendment sought.
I do not accept the respondent's submissions. It is apparent that the initial misspelling of the respondent's name was a typographical error, noting that the letter H is just above the letter N on the keyboard. Section 53 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) allows the Tribunal to
"make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice."
In the interest of justice, I consider that it is necessary and appropriate that the tenant be referred to in these proceedings by the correct name. The spelling of her forename as Hgaone was an error which should be corrected. I am not satisfied that the tenant has been disadvantaged by the misspelling. She received the application and responded to it. Furthermore, the amendment made by the Tribunal on 15 September 2022 does not reflect the fact that the tenant has not used the surname "Griffiths" for many years. She prefers to be known as "Chadwick" and it is necessary in the interest of justice for a further amendment to be made to reflect that fact.
I will accordingly order that the name of the respondent be amended to Sandra-Anne Ngaone Chadwick. I do not see any need for the amendment to include the words "also known as Ngaone Sandra Griffiths" The tenant does not dispute that she is the person referred to by that name in the Tenancy Agreement, but as she is not known by that name at this time, it is not necessary to refer to her by her previous name.
For completeness I am not satisfied that it is consistent with the Tribunal's guiding principle for the termination application to be dismissed because of the misspelling of the respondent's name. To do so would not enable the Tribunal to resolve the real issues in dispute in a just quick and cheap manner and I decline to dismiss the application on this basis.
[3]
The tenancy agreement and estoppel
There is no dispute that the tenant is a party to the Tenancy Agreement, nor that the Tenancy Agreement is a social housing tenancy agreement, and I so find. The Tenancy Agreement was for a fixed two-year term commencing on 26 December 2005. The tenant has received several extensions of the term, pursuant to s 142 of the Act, most recently on 25 July 2017, when the term was extended to 26 June 2022.
The tenant argues that her lease cannot be reviewed because on 28 September 2012, Paul Vevers, at that time Executive Director of Housing Services, stated in a letter ("the representation"):
"As you are on a continuous lease with Housing NSW, there is no need to have your lease reviewed."
The tenant submits that the representation means that she has a continuous lease. A continuous lease is defined in the Types & Length of Lease Policy. It applies to tenants who were housed before 1 July 2005. Ms Chadwick was not housed before 1 July 2005. She does not have a continuous lease, and the representation could not and did not convert her fixed term lease to a continuous lease. Indeed, the fact that the term of the lease was extended by notice on 25 July 2017 is inconsistent with the assertion that the lease had been converted into a continuous lease by the representation.
The tenant also submits that the representation results in an estoppel, such that the landlord is now estopped from conducting a review of her lease.
[4]
What is required to establish estoppel by representation
The requirements which are required to establish an estoppel by representation are summarised in Wykes v Samilk Pty Ltd (1998) Aust Contract R 90-097; (1998) NSW ConvR 55-871:
"For estoppel by representation to apply, it is necessary that by word or conduct reasonably likely to be understood as a representation of fact, a representation of fact, as contrasted with a mere expression of intention, should be made to another person, either innocently or fraudulently, in such circumstances that a reasonable person would regard him or herself as invited to act upon it in a particular way and that the representation should have been material in inducing the person to whom it was made to act on it in that way so that the person's position would be altered to his or her detriment if the fact were otherwise than as presented."
In Parslow v NSW Land & Housing Corporation; NSW Land & Housing Corporation v Parslow [2018] NSWSC 843 the Supreme Court noted:
Estoppel by representation is a doctrine which depends upon a representation of an existing state of fact … The doctrine may be of equitable origin, but it now applies both at law and at equity: Handley at [1-004]. It does not of itself give rise to proprietary interests, whether legal or equitable. All it does is prevent the party bound from departing from the representation.
I accept (and it is not disputed) that the representation was made. This does not mean that the representation changed the nature of the agreement between the landlord and the tenant. It does not mean that the tenancy agreement is a continuous agreement. All it means (if it is established) is that the landlord cannot act contrary to the representation.
In addition to proving that the representation was made, the tenant must prove that the representation was material in inducing her to act in a way which has altered her position to her detriment. She must prove both reliance upon the representation, and detriment. The tenant did not address this issue, despite the Tribunal inviting her counsel to do so during the hearing. I have considered whether her failure to submit the lease review form was because she did not believe that she had to do so, but I am not satisfied that the evidence supports a finding to that effect. Indeed, the tenant gave evidence that she had cooperated in a review in 2019 (as she complained that on that occasion, the Department had accepted the information she supplied and had determined not to continue with the termination, whereas on this occasion they had not withdrawn the action). She said that in 2021/2022, she had not returned the form, not because she didn't believe she had to, but because there was a lot going on, and there was no time limit given in the letter/s.
As I am not satisfied that the tenant has proven that she has relied upon the representation to her detriment, I am not satisfied that she has proven the necessary elements to establish estoppel by representation. I am not satisfied that the tenant has established that the landlord is estopped from conducting lease reviews.
[5]
The law
Section 143 of the Act provides that a landlord may give a termination notice to the tenant on the ground that the landlord has determined, as a result of an assessment carried out under Subdivision 1 of Division 5 of the Act, that the tenant is not eligible to reside in the class of social housing premises concerned. Section 144 provides that the landlord is to apply the criteria approved by the Minister for the purpose of the section. Section 144 (4) provides that the landlord may request the tenant to provide any information that is reasonably required. If the tenant refuses to supply the information, the landlord may determine, without further enquiry, that the tenant is not eligible to reside in the class of social housing premises concerned.
Section 145 of the Act provides:
145 REVIEW OF DECISION TO GIVE NOTICE ON GROUND THAT TENANT NOT ELIGIBLE FOR SOCIAL HOUSING
(1) Notice to be given before termination notice Before giving a termination notice to a tenant under a social housing tenancy agreement on the eligibility ground, the landlord is to advise the tenant of the decision to do so by notice in writing.
(2) Right to review A notice given under this section must--
(a) contain particulars of the reasons why the tenant is no longer considered eligible to reside in the social housing premises, and
(b) state that the tenant may apply to the landlord for a review of the decision within 30 days after the notice is given and give particulars of how such an application may be made, and
(c) state that the tenant is entitled to make representations to the landlord in writing, or (if the tenant wishes) orally, as to why the agreement should not be terminated.
(3) The tenant may, in accordance with the notice--
(a) apply to the landlord for a review of the decision, and
(b) make representations in writing, or (if the tenant wishes) orally, to the landlord as to why the agreement should not be terminated.
(4) If the tenant applies to the landlord for a review under this section, the landlord is to review the decision, in accordance with any procedures approved by the appropriate Minister for the purposes of this section, and consider any representations made by the tenant.
(5) Decision of landlord following review After the review is carried out, the landlord may--
(a) give a termination notice on the eligibility ground, or
(b) advise the tenant, by notice in writing, that the landlord has decided not to give the termination notice.
(6) Procedural fairness taken to have been observed If the landlord complies with this section, the landlord is taken to have complied with any rules of procedural fairness required to be observed by the landlord before giving a termination notice to the tenant on the eligibility ground.
Section 146 sets out the time limits which must be adhered to.
The Tribunal must terminate the tenancy (s 147) if it is satisfied that any notice required to be given, or any review required to be carried out, was given or carried out before giving the termination notice on the eligibility ground, and that a termination notice has been given in accordance with the Subdivision, and that the landlord has determined that the tenant is not eligible to reside in the relevant class of social housing premises. In deciding whether or not to make an order, the Tribunal is not to review the eligibility of the tenant to reside in the premises.
[6]
The facts
On 23 February 2022 the landlord wrote to the tenant. The letter stated:
This letter is to let you know that your household might not be eligible for an extension of your current fixed term lease when it ends on 26 June 2022.
This is because we do not have a completed Lease Review Survey form confirming your current household income and/or property ownership details. The survey was sent on 10 October 2021 and four reminder letters.
Attached is a copy of the survey for your completion. Please complete all details on Part A for all household members, answer all questions in Part C, sign declaration and return to your closest Housing Office within 14 days of this letter with evidence of income for all people 18 years and older.
If you do not lodge the completed survey or make contact within 14 days we may not be able to extend your current lease when it ends.
You can contact your Client Service Officer or myself on (ph number) during business hours if you have any questions or you would like to discuss this matter further".
On 21 April 2022 the landlord wrote to the tenant as follows:
"This letter is to let you know that DCJ Housing NSW has decided that you are not eligible for an extension of your current lease.
As per previous correspondence on 26 December 2021 and 23 February 2022 you have not returned a completed Lease Review Survey for the purpose of conducting (sic) your future eligibility for a lease extension.
We now intend to issue a notice to terminate your tenancy under Section 143 of the Residential Tenancies Act 2010 on the grounds that you are not eligible to live in public housing.
If you would like us to conduct a formal review of this decision, you must apply to us within 30 days of the date of this letter (sic) was issued. You can apply by completing the attached application form and returning to us or speaking with us. We will not consider any requests for review received after 27 May 2022.
If you would not like us to review this decision, please contact your Client Service Officer to discuss this matter and confirm you will leave the property at 3 Luskin Way Belmont North NSW 2280 when your current lease ends on 26 June 2022. The Client Service Officer will provide you with information and advice on assistance you may be able to get to help you move to private accommodation.
If you have any questions or would like to discuss this matter further please contact us on (ph number) during business hours of 9am to 5pm and ask for your Client Service Officer."
On 20 May 2022 the tenant completed an Application for Review of Decision - Section 145 Residential Tenancies Act. It was collected from the tenant by L. Rowe on behalf of the landlord.
On 9 June 2022 the landlord advised the tenant that her application for review of the decision to decline the lease extension had been considered and declined. The letter advised the tenant that she could ask the Housing Appeals Committee to review the decision, by completing a Housing Appeals Committee Second Level Appeal Form.
On 14 June 2022 the Housing Appeals Committee (HAC) advised the tenant that DCJ had referred the tenant's appeal to the Housing Appeals Committee and advised the tenant that the Committee would phone her to discuss the appeal on 21 June 2022 between 9.30am and 1.00pm.
On 14 June 2022 the tenant replied to HAC, requesting details of what information DCJ had provided to HAC. The email stated in part:
What is the actual appeal? What was even considered in the original review by Housing? I still have not been provided with the documents they used. What is it that Housing is appealing on my behalf?
On 17 June 2022 Catherine White of HAC sent a lengthy email to the tenant. The tenant replied stating in part that she had never asked for the appeal, and
At this stage I am not asking for Housing Appeals Committee to be involved. It was DCJ Housing who asked for your help, not me.
On 17 June 2022 HAC advised the tenant:
HAC has withdrawn your appeal at your request.
If you would like to reinstate the appeal you can contact HAC within the next 7 days.
On 20 June 2022 the tenant sent an email to HAC which responded to Ms White's 17 June email, provided information and detailed the effect which the tenant said the eviction would have on her and her son. She sought clarification and further information. The email stated inter alia:
If DCJ Housing Appeals Committee don't reconsider how they are going to process me below, then it will confirm I have reasonable grounds to complain to the Premiers Department and Ministers against Housing and Housing Appeals Committee.
…
Although DCJ Housing Appeals Committee state that they withdraw the hearing at my request, I had never requested this either.
On 24 June 2022 the landlord served a notice of termination pursuant to s 143 of the Act on the tenant. The notice required possession on 29 August 2022.
On 27 June 2022 the landlord served a notice of market rent increase to commence from 5 September 2022.
[7]
Discussion
The Tribunal must terminate the tenancy if satisfied that the process set out in s 147 (1) of the Act has been followed. I am not satisfied that it has.
The applicant relies upon the letter dated 21 April 2022 as the notice required to be given under s 145. Section 145 (2) states that the notice MUST contain the particulars set out in s 145(2) (a) and the statements in sub paragraphs (b) and (c).
I am satisfied that the letter complies with s 145 (2) (a) in that it contains particulars of the reason why the tenant is no longer considered eligible to reside in the premises. (In this regard the applicant relies upon s 144 (5) on the basis that the tenant did not return the completed Lease Review Survey).
I am not however satisfied that the letter complies with s 145 (2) (b). The section requires that the notice "state that the tenant may apply for a review of the decision within 30 days after the notice is given and give particulars of how that can be done". The letter stated that the tenant had 30 days from the date the letter was issued. This does not comply with the requirement. The notice is given when it is served. The applicant says that the letter was sent to the tenant. Pursuant to s 76 of the Interpretation Act 1987 it is deemed to have been given on the 7th working day after the date of posting (3 May 2022). Accordingly, in stating that the review would not be accepted after 27 May 2022, the letter did not give the tenant the 30 days required.
I am also not satisfied that the letter complies with section 145 (2) (c). There is no statement in the letter to the effect set out in subsection (c). I do not accept the applicant's submission that the section is complied with when the form which the applicant says was attached is read in conjunction with the letter. Subsection (c) requires a statement, in the notice, that the tenant is entitled to make representations. This is required in addition to the statement that the tenant may apply for a review. Even if the form was attached (and I note that the tenant says it was not), information in the form goes to the review rights referred to in subsection (b), and not to the additional matter contained in subsection (c).
As I am not satisfied of the matters in s 147 (1), I retain a discretion as to whether the tenancy should be terminated on the eligibility ground. I am not satisfied that I should terminate the tenancy. It is clear from the correspondence between the tenant and HAC that the tenant did not understand how she could make representations to the landlord. She did not understand the review options. It is not clear whether the matters she put to HAC after it had treated her appeal as having been withdrawn were considered by HAC or by the landlord. I am satisfied that the tenant may have been disadvantaged by the shortcomings in the notice required by s 145.
Section 147 (2) states that, in deciding whether or not to make an order, the Tribunal is not to review the decision to review the eligibility of the tenant to reside in the premises. I have not done so.
As I am not satisfied that the tenant has been afforded procedural fairness, the application for termination and possession is dismissed.
[8]
Costs
The tenant foreshadowed an application for costs in the event that the application was dismissed. I will provide for submissions to be made. Submissions must address whether a hearing of the costs application can be dispensed with.
[9]
Orders
1. The name of the respondent is amended to Sandra-Anne Ngaone Chadwick.
2. The application for termination and possession is dismissed.
3. If the respondent seeks a cost order submissions should be filed and served by 27 January 2023.
4. Submissions in reply should be filed and served by 10 February 2023.
5. Submissions must address whether a hearing of the cost application can be dispensed with.
[10]
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
[11]
Amendments
22 August 2023 - Formatting amendments.
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Decision last updated: 22 August 2023