Quader v Bell

Background

1. The appellant was a tenant of residential premises owned by the respondent. The parties entered into a written residential tenancy agreement for the premises, on 28 August 2013. The agreement was for a period of 6 months.
2. On 5 November 2015, the appellant's leasing agent served, on the appellant personally, a no cause Termination Notice, pursuant to s 85 of the Residential Tenancies Act 2010 (NSW). The Notice required the appellant to vacate the premises by 8 February 2016. The respondent subsequently extended the vacate date to 8 March 2016.
3. When the appellant failed to vacate the premises, on 8 March 2016, the respondent commenced proceedings in the Consumer and Commercial Division of the Tribunal (file no RT 16/11710). On 14 March 2016, the appellant also commenced proceedings against the respondent seeking various orders, under the Residential Tenancies Act, in respect of alleged excessive rent on the basis of the respondent having withdrawn goods, services and facilities (subs 44(1)(b)), alleged failure by the respondent to carry out repairs (subs 65(1)(a) and (5)) and alleging the Termination Notice was of no effect because it was a retaliatory notice (s 115) (file no RT 16/12569).
4. Both matters were listed for hearing before the Tribunal, on 30 March 2016.
5. The Tribunal determined the respondent's claim (file no RT 16/11710), and made the following orders in respect to that claim: "1. The Residential Tenancy Agreement is terminated in accordance with s 85 of the Residential tenancies act 2010 as the landlord has served a 90 day notice for termination of a periodic agreement. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended to 18 April 2016. 4. The tenant is to pay the landlord a daily occupation fee at the rate of $70.00 per day from the date of termination, namely 19 April 2016 until the date vacant possession is given to the landlord. 5. Within 60 days of the date for 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."
6. The Tribunal also provided written reasons for decision in regard to the respondent's claim. The reasons for decision also dealt with the appellant's claim that the Notice of Termination was retaliatory. In this regard the Tribunal's findings were as follows: "The respondent [appellant in these proceedings] argued that the notice was retaliatory and filed an application under section 115 of the Act on 14.3/16. Clause 2295) of Regulation 22 of the Residential Tenancies Regulation 2010 provides that for the purposes of section 115(3) of the Act the prescribed period for making an application by a tenant for a declaration that a termination notice has no effect on the ground that it is a retaliatory notice is within 30 days of being served with the termination notice if the termination notice was given under s 85 of the Act. I find the termination notice was given under section 85 and the application was not lodged within 30 days of the date of the service of the termination notice. I decline to exercise my discretion to extend time given the delay in lodging the application and that the application was made after the date for vacant possession specified in the notice. Accordingly, I dismiss that part of the application which was made in file RT 16/12569. In any event, I was not satisfied on the evidence presented by the respondent [appellant in these proceedings] to the Tribunal that the termination notice was retaliatory. If I had not dismissed the application for being made out of time, I would not have been satisfied that the landlord would have been motivated or partly motivated for any of the reasons set out in section 115(2) of the Act and dismissed that part of the application."
7. The Tribunal otherwise made an order adjourning the appellant's claim (file no RT 16/12569) and made orders for the filing and serving of evidence in regard to the remaining aspects of that claim. The terms of the orders, so far as they are relevant to the appellant's application for an extension of the stay, were as follows: "1. By determination of the member, on 30 March 2016, the hearing was adjourned to a date to be fixed by the Registrar. 2. The applicant [the appellant in these proceedings] shall provide the respondent and the Tribunal, either in person or by post, a copy of all documents (…) on which the applicant intends to rely at the hearing by 20 April 2016. 3. The respondent shall provide the applicant and the Tribunal, either in person or by post, a copy of all documents (…) on which the respondent intends to rely at the hearing by 11 May 2016. …."
8. The appellant lodged his Notice of Appeal on 8 April 2016. In that Notice of Appeal the appellant identified the above decisions of the Tribunal in RT 16/11710 and RT 16/12569 as being those that were the subject of his appeal. There is no dispute that these decisions are "internally appealable decision" to the Appeal Panel: see Civil and Administrative Tribunal Act 2013, subs 32(4) and 80(1).
9. At the time of lodging his Notice of Appeal, the appellant also lodged an application for the stay of the decisions the subject of his appeal.
10. As noted above, on 12 April 2016, I made a stay order, in chambers, staying the operation of the orders made by the Tribunal below, in file no RT 16/11710, to 21 April 2016. The orders I made were in the following terms: "1. The operation of the orders made on 30 March 2016 in matter number RT 16/11710 are stayed until close of business on 21 April 2016 unless the Tribunal orders otherwise. 2. The appeal is listed for callover and hearing of the application for a stay on 21 April 2016 at 10am."

Tribunal's power to grant a stay of the decision under appeal

1. Section 43 of the Civil and Administrative Tribunal Act confers on the Tribunal the power to grant a stay of the operation of a decision the subject of an appeal. That section relevantly provides as follows: "43 Effect of pending … and appeals (1) This section applies to the making or lodgment of any of the following (a "pending … or appeal" ): (a) …, (b) …, (c) an internal appeal. … (2) A … or appeal does not affect the operation of the decision to which the … 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 … or appeal relates as it considers appropriate to secure the effectiveness of the determination of the … or appeal."
2. As can be seen from the terms of section 43, the Tribunal's power to grant a stay is discretionary. What factors are to be taken into account in exercising that discretion is not prescribed in section 43 or the Act. However, in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37, at [9], the Tribunal President, His Honour Justice Wright, after considering the relevant authorities, summerised the principles to be applied in determining whether or not to grant a stay pending the determination of the appeal were as follow (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 - 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 - …"

Contentions of the parties

1. In his stay application, the appellant contended there were three main reasons why a stay should be granted. In summary these were: 1. to allow the landlord/agent to enforce the order to evict him and his family by 18 April 2016 was a great injustice. He said he had been served with two notices - one a 30 day notice and the other a 90 day notice. The appellant said the Notice was served "within a month knowing that my family suffered an incredible, tearful and distressing trauma being the sickness and the death of our daughter within a month." He said the agent assured him they would find a new place for them, but asserted they had done this to deceive them from seeking tenancy advice. The appellant also said they had a year "of serious health and safety repairs and works to be done by the landlord", which was ignored by the Tribunal. He said the Tribunal Member: "… [used] his discretion to allow that they lodged application to evict us beyond the 30 days allowed by law (notice to terminate dated 5 November handed on same day and termination listed as 8 February 2016 not 3 February 2016 the applied on 8th March 2016 when I refused to accept the offered rentals that was marked up by at least $50 on its real value." 1. The appellant asserted the matter had not been dealt with fairly or equitably and the orders made by the Tribunal were against the weight of the evidence. 2. the appeal would be useless if the order of the Tribunal were to be enforced; and 3. the personal circumstances of the appellant and his family. In this regard the appellant noted he had been unemployed for a few years despite his best efforts, there was a limited time frame to find a rental property which would force him and his family to accept an unhealthy and unsafe and unsuitable tenancy to meet their needs, his sons were students and it would cause them extreme hardship if they were required to move at such short notice, moving would be an injustice for their daughter whose death was still being investigated for the purpose of the inquest into her death and the landlord had no immediate need for the premises.
2. At the hearing of the appellant's stay application on 21 April 2016, the appellant reiterated the matters listed in (a) and (b) above - especially the respondent's failure to undertake repairs to the premises.
3. The respondent objected to the stay being extended. She said the appellant had not paid rent and only paid what was outstanding the day before. The respondent also said she was concerned about what the appellant might be doing to the premises. She said he had been given ample notice to vacate the premises and had rejected any of the alternative premises her leasing agent had suggested to him that were available for rent.

Consideration

1. Having regard to the matters outlined by the President in Bentran, I formed the view that the matters relevant to the appellant's application for the extension of the stay were (a) whether the order was reasonably necessary to secure the effectiveness of the appellant's appeal, (b) the appellant's prospects of success and (c) the interests of the respondent.

Whether the order was reasonably necessary to secure the effectiveness of the appellant's appeal

1. I accepted that the enforcement of the orders made by the Tribunal below in file no RT 16/11710 could be seen as having the effect of rendering the appellant's appeal nugatory in that he would be required to vacate the premises prior to his appeal being determined. However, I also noted the orders sought by the appellant in his Notice of Appeal in regard to file no RT 16/11710. These were: "1) set aside orders 1, 2, and 3 listed in NCAT orders of 30th March 2016. 2) the tenancy agreement is not terminated and a new 90 days' notice of termination by the landlord after completing repairs. Or 3) Re-hear the applications of the landlord and to allow evidence by the respondent. or 4) Assess the personal circumstances of the respondent family and allow him reasonable time to vacate such as the Respondent has to give vacant possession by 30 May 2016."
2. It is apparent from the terms of these proposed orders the appellant was not seeking to remain in the premises long term - what he sought was additional time within which to vacate the premises and to have his application (file no RT 16/12569) reheard, including his claim that the Termination Notice, served on him on 5 November 2015, was retaliatory. However, a refusal to grant an extension of the stay would not render the appellant's claim being reheard if the Appeal Panel were to grant him leave to appeal and his appeal was successful.

The appellant's prospect of success

1. In his Notice of Appeal the appellant said his grounds of appeal were based on clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act. That is, the decision of the Tribunal was not fair and equitable and the decisions were against the weight of evidence.
2. Clause 12 of Schedule 4 relevantly provides: "12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (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)."
3. The appellant attached a five page "letter/complaint" he wrote to the Tribunal below and dated 4 March 2016. He said that this letter provided the details that supported his application that the termination was retaliatory because of his requested repairs and why his claim should have been heard together with the respondent's application for an order the residential tenancy agreement and not adjourned.
4. As I have noted, even if the stay were not extended this did not prevent the appellant pursuing his claim, including his claim that the termination notice was retaliatory under section 115 of the Residential Tenancies Act. In regard to the appellant's retaliatory claim, the 5 November no cause Notice of Termination complied with section 85 of the Residential Tenancies Act. Subsection 85(3) provides that where a landlord makes an application to the Tribunal for a termination order under that section, the Tribunal must make the order sought if it is satisfied that a termination notice was given in accordance with the requirements prescribed in that section and the tenant has not vacated the premises as required by that notice. That is, where an application is made by a landlord for an order for termination under section 85, the Tribunal has no discretion and must make the order sought if it is satisfied the Termination Notice complied with the requirements of that section.
5. The appellant did not dispute he was served with the 5 November 2015 no cause Termination Notice. Nor did he dispute the termination date specified in the notice was not earlier than 90 days after the day on which he was served with the Notice (in this case 95 days notice were given). At the request of the appellant, the respondent extended that date for another 30 days to 8 April 2016. It was on this day the respondent lodged her application to the Tribunal below seeking a termination order under section 85 of the Residential Tenancies Act. The appellant appears to contend the application was made out of time. On the available material, I found that this argument of the appellant was not strong. The relevant provisions are those contained in subs 83(2)(a) of the Residential Tenancies Act and subcl 22(2) of the Residential Tenancies Regulation 2010. The latter provision provides that an application to the Tribunal for a termination order is to be made within 30 days after the termination date specified in the Termination Notice. Other than assertion, the appellant has not identified how the Tribunal has erred in its findings that the respondent made her application for an order for determination within time.
6. The Tribunal rejected the appellant's retaliatory claim, made under subs 115(3) of the Residential Tenancies Act, primarily because it had been made out of time. The relevant provision in regard to time is subcl 22(4) of the Residential Tenancies Regulation which provides as follows: "22 Times for making applications to Tribunal: ss 44 (2), 83 (2) (a), 98 (4), 115 (3), 125 (3), 134 (3), 141 (2), 175 (3) and 190 (1) of Act (1) … … (4) For the purposes of section 115 (3) of the Act, the prescribed period for the making of an application by a tenant for a declaration that a termination notice has no effect on the ground that it is a retaliatory notice is: (a) within 30 days after being served with the termination notice, if the termination notice was given under section 85 of the Act, or (b) within 14 days in any other case."
7. On the material before me, the appellant's claim was lodged well outside the prescribed 30 days for making that claim. Accordingly, this aspect of the appellant's claim appears to have little merit.

Interests of the respondent

1. The respondent was successful in her claim before the Tribunal below and as noted by the President in Bentran, as a general rule a successful party is entitled to the benefit of the decision obtained at first instance. In this case, the respondent said she had waited long enough to regain possession of her premises. She contended she would be prejudiced if the stay order were extended. She said the appellant just wanted more time to move out. She said he had been given ample opportunity to vacate the premises and find alternative premises to rent. She said she was also concerned that the appellant might have damaged the premises.
2. It was evident during the call-over hearing that the relationship between the appellant and the respondent had deteriorated and was irreparable.

Conclusions and orders

1. Having regard to the material before me, including the oral arguments of the appellant and the respondent during the callover hearing, I was not satisfied the appellant had made out a case that it was appropriate to extend the stay order beyond 21 April 2016. As I have noted, a failure to extend the stay order did not prejudice the essence of the appellant's grounds of appeal in that he did not want to remain in the premises long term - he only wanted to have more time to find alternative premises that were suitable for him and his family and to have his entire claim heard together with that of the respondent.
2. I have found, on the material before me on 12 April 2016, that the appellant's appeal in so far as it relates to the respondent's Termination Notice having been retaliatory appears to lack merit. There is otherwise no prejudice to the appellant having his application for leave to appeal and appeal heard and determined in regard to the remaining matters in his claim.
3. On the other hand, I found the prejudice to the respondent, who had been successful in her claim before the Tribunal below, outweighed any prejudice to the appellant. At the same time, I found that the appellant's concerns about being given more time to vacate the premises could be addressed by extending the order for possession for a further three weeks to 13 May 2016. Accordingly, I made the following orders: 1. The Appellant's application for an extension of the stay order made on 12 April 2016 is refused. 2. Order 3 of the Tribunal made on 30 March 2016 in file no RT 16/11710 is varied by deleting 18 April 2016 and inserting 13 May 2016. 3. Orders 2 and 3 of the Tribunal made on 30 March 2016 in file no RT 16/12569 are varied as follows: 1. Order 2 - delete "20 March" and insert "13 May," 2. Order 3 - delete "11 May" and insert "27 May.

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: 06 June 2016