Quader v Bell

Supreme Court of NSW|2016-05-12|Before: Adamson J

Solicitors: Legal Aid NSW (Plaintiff) File Number(s): 2016/143724

Introduction

Wael Quader, the plaintiff, seeks a stay of a termination order and order for possession granted by Member Kinsey, in the Civil and Administrative Tribunal (NCAT). The effect of the order is that his tenancy of his residence in an apartment in De Witt Street, Blacktown (the Premises), which is owned by Elaine Bell, the defendant, is at an end and he is obliged to vacate. He lodged an appeal from the Member's decision to the Appeal Panel of NCAT and applied to the Appeal Panel for a stay of the orders pending determination of his appeal, which is listed for hearing on 6 June 2016.
On 21 April 2016 the Appeal Panel refused the stay. Mr Quader is, accordingly, required to vacate the Premises by 13 May 2016, unless he obtains a stay of the termination order from this Court.
I heard the matter in the Duty List on 12 May 2016. At the conclusion of the hearing I refused leave to appeal. The effect is that Mr Quader is required to vacate the Premises on 13 May 2016. My reasons for refusing leave to appeal follow.

The reasons of Member Kinsey

In his reasons for decision, delivered on 30 March 2016, Member Kinsey found as follows. On 28 August 2013 Ms Bell and Mr Quader entered into a residential tenancy agreement for the Premises for a period of six months from 1 September 2013 to 13 March 2014 at a weekly rent of $480. On 5 November 2015 a notice of termination was served on Mr Quader which required him to vacate the Premises on 8 February 2016, which was 95 days from the date of service. On 19 January 2016 Ms Bell's agent wrote to Mr Quader to extend the date for vacant possession to 8 March 2015 on compassionate grounds relating to Mr Quader.
Mr Quader did not vacate the Premises by 8 March 2016. Ms Bell filed an application to the Tribunal on 8 March 2016.
Member Kinsey found that the notice of termination complied with the Act in that it specified a date of termination that was not earlier than 90 days after the date on which the notice was given (as required by s 85(2) of the RT Act).
In addressing Mr Quader's application, Member Kinsey referred to cl 22(5) of reg 22 of the Residential Tenancies Regulation 2010 (NSW), which prescribes 30 days as the period within which a tenant may make an application for a declaration under s 115(3) that a termination notice has no effect on the ground that it is a retaliatory notice. He found that the application was not made within time and refused to grant an extension of time, given the delay in lodging the application and the fact that the application was made after the date for vacant possession filed in the notice. Accordingly, Member Kinsey dismissed Mr Quader's application.
Member Kinsey said further: "In any event, I was not satisfied on the evidence presented by the respondent 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."
Following the making of the orders referred to above, further directions were made for the balance of the hearing.

Mr Quader's appeal to the Appeal Panel

Mr Quader appealed to the Appeal Panel of NCAT. He also applied for a stay of the termination order made by Member Kinsey. On 12 April 2016 NCAT stayed the order until 13 May 2016.

The decision the subject of challenge in these proceedings

On 21 April 2016 the matter came before the Appeal Panel (constituted by Ms S Higgins, Principal Member) for directions relating to Mr Quader's appeal. The Appeal Panel refused Mr Quader's application for an extension of the stay order made on 12 April 2016 and listed the hearing of the appeal for 6 June 2016 at 2.15pm for half a day. On 2 May 2016 he requested reasons for the refusal of the stay by the Appeal Panel.
Mr Quader seeks to challenge, in this Court, the decision of the Appeal Panel to refuse his application for a stay.

Civil and Administrative Tribunal Act 2013 (NSW)

Ms Ash, who appeared on behalf of Mr Quader, identified s 83 of the Civil Administrative Tribunal Act 2013 (NSW) (NCAT Act) as the basis for this Court's jurisdiction to challenge the Appeal Panel's refusal of a stay. Section 83 relevantly provides: Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. . . . (3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following: (a) an order affirming, varying or setting aside the decision of the Tribunal, (b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court. . . . (5) Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision.
Section 82(1) of the NCAT Act provides that any decision made by an Appeal Panel in an internal appeal is an appealable decision of the Tribunal for the purposes of the Division (Division 3 of Part 6 of the NCAT Act). It follows that this Court has jurisdiction with respect to an appeal on a question of law arising from the Appeal Panel's refusal of the stay.
Section 80(2) of the NCAT Act provides for the making of "internal appeals" against decisions such as termination orders, as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. Section 80(3) provides that the Appeal Panel may decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
The obligation of NCAT to give reasons is provided for by s 62 of the NCAT Act as follows: 62 Tribunal to give notice of decision and provide written reasons on request (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.

Residential Tenancies Act 2010 (NSW)

Section 81 of the RT Act relevantly provides, by s 81(3), that a residential tenancy agreement terminates only if the Tribunal makes an order terminating the agreement under this Act. If the Tribunal makes an order terminating a residential tenancy agreement, it must also make an order for possession of the residential premises specifying the day on which the order takes, or took, effect: s 83(1).
Section 85 of the RT Act relevantly provides for termination of a periodic agreement as follows: (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.
Section 115 makes provision for so-called "retaliatory evictions", relevantly as follows: (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.

Mr Quader's submissions

Ms Ash submitted that the refusal of the stay had, effectively, rendered nugatory Mr Quader's right to appeal to the Appeal Panel against the decision of Member Kinsey to make the termination order. She contended that it was necessary to consider the underlying decision (of Member Kinsey) when addressing whether there was a question of law that arose from the refusal of the stay.
She argued that Member Kinsey had been in error in considering that Mr Quader was not entitled to argue that the termination notice was retaliatory because he had misapprehended the effect of s 115. She submitted that s 115(1), in terms, entitled (if not obliged) the Tribunal to consider whether termination notice was retaliatory, irrespective of whether a tenant had made an application under s 115(3) for a declaration before the termination date. Accordingly to Ms Ash, the basis of the argument that the termination notice was retaliatory was that Mr Quader had asked for repairs to the Premises.
Ms Ash submitted that the fact that the Senior Member went on to deal with whether the eviction was retaliatory, notwithstanding Mr Quader's failure to meet the time limit in s 115(3), was not to the point, since his finding was made on a hypothetical basis.

Ms Bell's submissions

Mr Stojanovski, who appeared (with leave) on behalf of Ms Bell, submitted that there was no basis for the argument that the eviction was retaliatory since the requests by Mr Quader for repair of a cook top had been made after the termination notice had been served. He said that Ms Bell had had to wait too long already for vacant possession of the Premises, which she required to house a relative who had come to Sydney from Queensland.

Consideration

Ms Ash has raised a question of law regarding the true construction of s 115. It is arguable that the Member misapprehended its effect and considered that he was not entitled to consider whether the eviction was retaliatory since Mr Quader had not made an application under s 115(3). However, Member Kinsey went on to make a finding that, even if notice had been given in time, he would not have been satisfied that Ms Bell was motivated (wholly or partly) by any of the reasons in s 115(2). In my view, it is evident that Member Kinsey was not satisfied that Mr Quader had made out a case that the eviction was retaliatory in any event. This is a question of fact that was open to him to make and does not give rise to a question of law. That it was made on an alternative basis does not affect its worth or significance.
Apart from the matter referred to above (which relates to the original decision of the Tribunal), Ms Ash was unable to identify any question of law that arose from the refusal of the Appeal Panel to order a stay, save that the refusal rendered nugatory Mr Quader's appeal against the termination order and the order for possession. She pointed to the relatively short period before the hearing of the appeal and the "balance of convenience" which she submitted favoured leave being granted to appeal and a stay being ordered by this Court.
As the Appeal Panel did not give reasons for its refusal of the stay at the time the order was made it is not possible to identify the precise basis for the exercise of its discretion. Nonetheless, reasons were not sought until 2 May 2016. The NCAT Act contemplates that reasons are not required to be given unless requested and that the Tribunal (or Appeal Panel, as the case may be) will have a period of 28 days after the request to provide reasons. Accordingly, the Appeal Panel is not in breach of any statutory requirement to provide reasons. The lack of reasons, accordingly, does not give rise to a question of law.
There remains Ms Ash's submission that the refusal of the stay renders nugatory Mr Quader's right of appeal to the Appeal Panel. The Appeal Panel had power to order (or refuse) a stay since it has, in proceedings for the exercise of its internal appeal jurisdiction, the power to make ancillary and interlocutory decisions of the Tribunal in the proceedings: s 32(2)(a) of the NCAT Act.
Since an internal appeal does not operate to stay the decision appealed from (of Member Kinsey), it is a matter for the Appeal Panel whether to grant a stay, and for what period, and, whether any stay granted will be granted pending the determination of the internal appeal. In the present case, it was within the exercise of the Appeal Panel's discretion to refuse the stay. I am not persuaded that Ms Ash had identified any basis on which it could be said that its discretion to refuse the stay miscarried so as to give rise to a question of law which would warrant this Court's intervention. I note that, when what is at issue is Mr Quader's right to remain in the Premises, a stay necessarily favours him, to the detriment of Ms Bell. Time is not a neutral factor, or one that could be disregarded in the context of the Appeal Panel's decision whether to grant a stay.
In these circumstances I am not persuaded that it is appropriate to grant leave to Mr Quader to appeal against the Appeal Panel's refusal of his application for a stay.

Supervisory Jurisdiction

I note that this Court also has supervisory jurisdiction over NCAT under s 69 of the Supreme Court Act 1970 (NSW) as well as inherent jurisdiction with respect to jurisdictional errors of bodies such as NCAT. For the reasons given above, no error has been identified which could form a basis of relief under s 69 or the Court's inherent jurisdiction. Nor did Ms Ash formulate the claim for relief in that way.

Orders

I made the following orders on 12 May 2016: 1. Refuse leave to appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW).

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: 13 May 2016

Civil Administrative Tribunal Act 2013(NSW)

Residential Tenancies Regulation 2010(NSW)

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