On the same day the Tribunal below made the orders set out in paragraph 2 above, the Tribunal also published written reasons for decision. While it is not necessary to deal with these reasons for decision in any detail in this stay application, it is convenient to set out the background to the application before the Tribunal below and some of its findings that are relevant to the appellant's grounds of appeal.
At [3] of its reasons for decision, the Tribunal noted that the primary issue for determination in that application was the terms of the appellant's occupation of the home (the premises). It was the appellant's contention that there was no intention to enter into legal relations with her father and brother when she commenced occupation of the premises: see Tribunal's reasons for decision, at [7] and [38]. The Tribunal rejected this contention and found there was a periodic tenancy: see Tribunal's reasons for decision at [39]. I note that the term "periodic agreement" is defined in s 3(1) of the Residential Tenancies Act to mean a residential tenancy agreement that is not a fixed term agreement.
On 12 September 2017, the respondents sent, via email, to the appellant's solicitor a Termination Notice pursuant to s 85 of the Residential Tenancies Act. The specified termination date in that Notice was 13 December 2017, which the Tribunal noted to be more than the 90 days prescribed in s 85(2) of the Residential Tenancies Act, if email was a valid form of service: see Tribunal's reasons for decision, at [6]. The Tribunal noted that the Termination Notice was also posted on 14 September 2017 and a copy was put under the appellant's bedroom door on 24 September 2017.
On 1 December 2017, the respondents lodged their application with the Tribunal for a termination order under s 85(3) of the Residential Tenancies Act. Section 85(3) of the Residential Tenancies Act relevantly provides as follows:
"85 Termination of periodic agreement
(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.
(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. …"
The respondents' application was heard on 20 February 2018. In its reasons for decision, at [10], the Tribunal noted that at the conclusion of the hearing, it raised with the parties that it would like some assistance on a point of law, namely, whether proceedings to rely upon a termination under s 85 of the Residential Tenancies Act could be lodged before the expiry of the Termination Notice and in this regard the Tribunal sought further written submissions from the parties. The Tribunal went on to note that submissions were provided.
At [13], the Tribunal noted that s 83(2)(a) of the Residential Tenancies Act provides that "an application to the Tribunal" by a landlord for a termination order must be made after the termination date specified in the relevant termination notice and within the period prescribed by the regulations. Following some discussion of the meaning of the word "application" in s 83(2)(a) and the object that section is designed to achieve, at [27] and [28], of its reasons for decision the Tribunal found:
"27 Accordingly, in my view the lodgement of the s 85(2) application before the end of the s 85(1) notice period does not nullify or invalidate the process, and such a lodgement is valid so long as the hearing of the subject matter in the document, being the actual moving of the Tribunal to grant the relief sought, occurs after the end of the s 85 (2) notice period.
28 If I was wrong in the foregoing interpretation, in my view this is an appropriate case under CATA [Civil and Administrative Tribunal Act] s 41 to extend the time for lodgement to a date before the termination date in the notice, being the date of actual lodgement of the initiating proceedings. Such a decision would be in accord with the guiding principles in CATA s 36 (1) and the mandate in s 36 (4). …"
[2]
Appellant's application for a stay and submissions in support thereof
In her Notice of Appeal, the appellant contends that the Tribunal erred in law. That is, she appeals, as of right on questions of law: see Civil and Administrative Tribunal Act: s 80(2)(b). Again, it is unnecessary to deal with the appellant's grounds of appeal in any detail in this application. However, from the material filed, the grounds of appeal which appear to raise a possible question of law can be summarised as follows that:
1. the Tribunal erred in law in finding that "making an application" to the Tribunal for a termination order could encompass the hearing of the application and was not restricted to the filing of the commencing application;
2. the Tribunal erred in law in finding that it had power, under s 41 of the Civil and Administrative Tribunal Act to extend time to include permitting an application to the Tribunal for a termination order at a time prior to the requirements of s 83(2)(b) of the Residential Tenancies Act being satisfied;
3. the Tribunal erred in law in finding that the oral arrangement between the appellant and the respondents was a periodic residential tenancy agreement to which the Residential Tenancy Act applied.
In support of her stay application the appellant submitted that her appeal was reasonably arguable. In this regard she again submitted that the Tribunal below erred in not applying s 83(2) of the Residential Tenancy Act in accordance with its terms and also having incorrectly applied s 41 of the Civil and Administrative Tribunal Act to waive any defect in both the timing and service of the respondents' Notice of Termination and the date on which the proceedings below were commenced. It was contend that this approach of the Tribunal, in effect, made the relevant sections of the Residential Tenancy Act redundant and is at least arguably incorrect.
The appellant also submitted that the Tribunal erred in law in its characterisation of her occupation, in particular the Tribunal's finding that the services she provided to her father were irrelevant, when such a finding may well be inconsistent with a tenancy, and appears to ignore the family relationships involved.
The appellant also submitted that as her appeal is against a decision to evict her from the premises and if she were to be evicted and subsequently successful in her appeal, her opportunity to remain in the premises would be denied to her.
In regard to the where the "balance of convenience" lies, the appellant contended that if she were to be evicted she would suffer almost irredeemable prejudice in that she would be homeless and unable to prosecute her appeal. On the other hand, she submitted that if a stay were to be granted any prejudice to the respondents would be minimal. In this regard, she has undertaken to continue to pay outgoings relating to the property as she has previously.
[3]
Respondent's submissions
As I have noted, the respondents oppose the making of a stay order. In this regard the respondents contended they are entitled to the benefit of the decision and orders made by the Tribunal below. It is also contended that the appellant has failed to establish that it is appropriate for a stay to be granted. That is, the appellant has failed to demonstrate any basis to oppose the termination order sought by the respondents given that the application was made pursuant to s 85 of the Residential Tenancies Act.
The respondents contended that the appellant's grounds of appeal had no bearing or relevance to the central and substantive basis upon which the respondent sought to have the appellant vacate the premises they own, namely for the premises to be cleaned and sold so that the net proceeds of sale could be used for the benefit and well-being of the second respondent, the appellant's ageing father, Giuseppe Follari.
The respondents also contended that even if the appellant is successful in her appeal, which the respondents do not concede, the respondents will reissue a Termination Notice pursuant to s 85(3) of the Residential Tenancies Act. In such circumstances, the respondent contends, there will be no basis on which the appellant could oppose the termination application that is filed in the Tribunal based on that Notice. In such circumstances, the respondents contend that the granting of a stay of the orders of the Tribunal the subject of this appeal would be futile and not consistent with s 36(1) of the Civil and Administrative Tribunal Act and the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
The respondents do not accept that the applicant will be homeless if the appellant's stay application is refused. In this regard, the respondents note that the appellant is in full-time employment and has retained the services of two separate solicitors in the hearing before the Tribunal below and in this appeal. Hence the appellant has failed to explain why, in circumstances where she earns an income from full-time employment, she is unable to obtain alternative rented accommodation.
[4]
Consideration and orders
It is evident from their respective written and oral submissions that there is a family dispute between the appellant and her brother, both of whom were present at the hearing. Their father was not present at the hearing.
The nature of the dispute between the appellant and her brother is unclear. What does seem to be clear is that the brother wishes to urgently sell the premises that are the home of the father. It needs to be sold so that his father, who is urgently in need of care, can be cared for at a suitable aged care facility. This also appears to be the wish of the father. However, the appellant contends otherwise.
In any event, at the hearing, counsel for the brother and the father contend that the home is in a very poor state of repair and needs to be cleaned up before any repairs can be undertaken and then listed for sale. What needs to be cleaned and removed, the respondents' contend, were the appellant's belongings that were distributed throughout the premises and in order to do that she must vacate the premises. Again, the appellant contends otherwise.
At the hearing I asked counsel for the respondent whether any steps had been taken to find a suitable aged care facility for his father. I was informed that no steps had been taken at this stage as the premises had to be sold first and foremost. I was also informed that the appellant's father would remain in the premises (his home) alone if the appellant were to be evicted and he would remain there alone until the home was repaired for sale and sold.
I accept the general proposition that the respondents being the successful party in the proceedings below are entitled to the benefit of the orders made by the Tribunal below. However, in my opinion, on the material before me (including the oral submissions of the parties) I am satisfied that the appellant has demonstrated that this is an appropriate case warranting the exercise of the Tribunal's discretion to grant a stay in her favour pending the determination of her appeal.
First, I do not accept that her grounds of appeal are not arguable. As noted by the Tribunal below, the circumstances surrounding the respondents' application for a termination order gave rise to some difficult questions of law concerning the proper construction of ss 83(2) and 85 of the Residential Tenancies Act. In that regard I have not considered the findings made by the Tribunal, but have merely noted what they were. Whether the Tribunal was correct in its findings or approach in reaching those findings is a matter for the Appeal Panel to determine at the hearing of the appellant's appeal.
I have also taken into account the fact that the appellant's appeal has been listed for hearing on 11 May 2018. This early date for hearing was agreed to by both parties.
Finally, in the circumstances, given the early hearing date, there would appear to be minimal prejudice to the respondents in granting a stay. Whereas, there would be considerable prejudice to the appellant in the event a stay were not to be granted as the respondents appear to be intent on taking enforcement action as soon as practicable.
Accordingly, I am satisfied that it is appropriate to make a stay order so as to secure the effectiveness of the appellant's appeal.
The question is, what form should that order take. In her application for a stay, the appellant sought a stay of order 2 and 3 of the Tribunal below (see paragraph 2 above). It is these orders from which the appellant appeals. The appellant also appeals against the remaining orders of the Tribunal below, including order 4 which is an order staying the operation of order 2 and 3 until a specified date.
As I have noted above, the operation of this stay order has been further extended by order of the Appeal Panel in these proceedings. In my opinion, for the reasons set out above, it is appropriate to further extend the operation of that stay order to the date on which the Appeal Panel determines the appellant's appeal.
Hence, the Tribunal orders:
1. The operation of order 4, made on 13 March 2018, in matter number RT 17/51459, is further extended to the date on which the Appeal Panel determines the appellant's appeal.
[5]
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: 12 April 2018
The Tribunal's power to grant a stay and applicable principles
The appellant's appeal is an internal appeal: see Civil and Administrative Tribunal Act 2013, s 80(1) and (2)(b).
The Tribunal's power to grant a stay is contained in s 43 of the Civil and Administrative Tribunal Act 2013. That section relevantly provides as follows:
"43 Effect of pending general applications and appeals
(1) This section applies to the making or lodgement of any of the following (a pending general application or appeal):
…
(c) an internal appeal.
(2) A pending general application or appeal does not affect the operation of the decision to which the application or 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 general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal."
In Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37, at [9], the President of the Tribunal noted that s 43(3) vests in the Tribunal a discretion as to whether or not to grant a stay. That discretion, his Honour noted must be exercised judicially and in that regard the general principles which apply in relation to the exercise of that discretion can be derived from the terms of s 43(3) itself and also from the considerations applied by the Courts in deciding whether or not to grant a stay pending an appeal. His Honour went on to summarise the applicable principles as follows (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 lodgement of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay - s 43(2) and (3) of the Act,
(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 - ss 43(3) and 58 of the Act,
(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, "