Raffoul v Wong

(i) The tenancy will be terminated on or before 25 January 2025 and the tenants will provide vacant possession by that date.

(ii) The tenants withdraw their application pursuant to s 115 of the Act.

(iii) The tenant will not feed birds on the balcony of the premises.

(iv) On or before 31 October 2024 the tenant will install 'bird spikes' in the gaps of the existing spikes.

(v) The landlord agrees to respect the tenants' right to quiet enjoyment of the premises.

(vi) The landlord withdraws his application for compensation regarding the bathroom vanity.

(vii) The rent will not exceed the amount of $665 per week from 3 October 2024 to the date of vacant possession.

(viii) If any rent paid was paid in excess of that amount, it will be paid to the tenants as a credit on the rent ledger immediately.

1. Following those orders, the tenants continued to be in arrears. This resulted in the landlords issuing a second notice to vacate on 18 November 2024 with a vacation date of 2 December 2024 on the basis of this failure to pay rent.
2. When the tenants did not vacate by 2 December 2024, the landlords applied to the Tribunal for an order of possession and a money order for outstanding rent: see proceedings 2024/00450461.The hearing took place on 23 December 2024. The tenants were represented by Ms M Raffoul, one of the two tenants under the tenancy. She appeared remotely via telephone.
3. We have been provided with an audio of the hearing as well as transcript. The Tribunal heard from the parties, including from one of the landlords who was sworn in by the Member. The Tribunal gave oral reasons and orders as follows:

In matter number 202400450641, the parties appeared at the tribunal today. The applicant appeared in person. The respondent appeared by AVL. The respondent is in arrears and has been in arrears notwithstanding a termination notice issued on the 11th of November 2024 with a termination date of the 2nd of December 2024.

At no stage since September 2024 has the respondent not been in arrears with respect to the rental and the applicant is in those circumstances entitled to an order terminating the residential tenancy agreement. The parties had in previous proceedings between them and the tribunal reached an agreement which was made the subject of orders made on the 28th of October 2024. In that agreement, the parties agreed that the tenancy would be terminated, and vacant possession would be given to the applicant on the 25th of January 2025.

However, in light of the failure of the respondents to pay their rent and address their arrears, the applicant now seeks, under the cover of the current application, a termination order from the tribunal and the tribunal, having heard the submissions of both parties, is satisfied that order should be made.

The tribunal makes an order under section 87 of the Residential Tenancies Act terminating the residential tenancy agreement immediately as the tenants breached the agreement by failing to pay rent. The tribunal orders that the residential tenancy agreement is terminated immediately, and vacant possession is to be given immediately but under section 114 of the Residential Tenancies Act, the order for possession is suspended until the 18th of January 2024. Tenants are to pay the landlord an occupation fee of $95 per day from tomorrow until the date vacant possession is given. The landlord may request a relisting of this application to determine the calculation of the occupation fee owing at the date of possession. The tribunal orders that the respondent is to pay the applicant the sum of $1,830 on or before the 18th of January 2025 in respect of her arrears. Those are the orders that the tribunal makes."

...

(1) The Tribunal makes an order under section 87 of the Residential Tenancies Act 2010, terminating the residential tenancy agreement immediately , as the tenant has breached the agreement, by failing to pay rent or charges.

(2) The Tribunal orders the Residential Tenancy Agreement is terminated immediately and vacant possession is to be given to the landlord on the date of termination.

(3) The Tribunal makes an order under section 114(2) of the Residential Tenancies Act 2010, that the order for possession is suspended until 18 January 2025.

(4) The tenant is to pay the landlord a daily occupation fee, at the rate of $95.00, per day from the day after the date of termination, 23 December 2024 until the date vacant possession is given.

(5) The landlord may request the relisting of this application, to determine the occupation fee, owing, within 60 days from the date of possession.

(6) The Tribunal orders that the respondents Marie Raffoul, Mariam Raffoul, is to pay the applicants Eric Wong, Octaviana Moningka, the sum of $1,830.00, on or before 18 January 2025.

Details of the Money order:

1. Rent Arrears $1,830.00

1. The tenants' application for a stay of the above orders was dismissed. The parties informed us at the hearing that the current position is that the tenants have, subsequent to 25 January, vacated the premises and are still in arrears.

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides that an internal appeal may be made, as of right, 'on any questions of law'.
2. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 it was stated at [26] - [28]:

26 The review above demonstrates that great care must be taken in drafting a notice of appeal to ensure that it is apparent, on its face, that the ground of appeal raises a question of law. If not, leave to appeal is necessary.

27 Where, however, there is a question of law in substance, a court (and, it follows, an Appeal Panel) has discretion (to be exercised judicially and in the interests of justice) to direct its formal notification in an amended notice of appeal: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [60]. In appropriate circumstances, the Appeal Panel may elect to waive the requirement to formally lodge an amended notice of appeal, given its mandate to act "with as little formality as the circumstances of the case permit ... without regard to technicalities or legal forms": NCAT Act, s 38(4); Wollondilly at [19]. Where the party is not legally represented, a more generous approach is warranted: Kudrynski at [50]-[51]. This is an aspect of ensuring procedural fairness.

28 When dealing with self‑represented parties, the Appeal Panel has in many instances considered for itself whether a question of law is raised, applying John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [12]: Eastman v Nepean Blue Mountains Local Health District [2024] NSWCATAP 94 at [11], FSO v Secretary, Department of Education [2024] NSWCATAP 154 at [34], El‑Mohamad v Lin [2024] NSWCATAP 139 at [31], Johnson v Nachar [2024] NSWCATAP 135 at [14], Batshon v Suttons Motors Homebush Pty Limited [2024] NSWCATAP 114 at [19], Craig v Shallita [2024] NSWCATAP 112 at [16].

1. With these principles in mind, we have considered for ourselves the totality of submissions made by the tenants. We discern two grounds raised on appeal:

(1) Whether the tenants were denied procedural fairness;

(2) Whether leave to appeal should be granted and the appeal allowed on the basis that the weight of evidence and justice and equity of the situation requires such a result. In particular, whether the Tribunal failed to give proper weight to Ms Raffoul 's medical evidence and evidence of hardship.

1. Ms Raffoul, who appeared at the hearing, agreed with this description.

1. We accept this involves a question of law: see Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13](4).
2. The first submission made by the tenants relates to the fact that at the hearing before the tenants were able to appear and be connected via a telephone link there was some discussion between the landlord, Mr Wong, and the Tribunal in the absence of Ms Raffoul for the tenants. According to the tenants, for approximately 16 minutes in the absence of the tenants Mr Wong made false statements which could have influenced the Tribunal without the tenants' knowledge and without therefore having an opportunity to respond or be heard. In substance, the tenants' submission is that the Tribunal was influenced by incorrect statements made by the landlord at the hearing without the tenants' representative being present which may have influenced the Tribunal.
3. We note that transcript of the proceedings are before us. The first point raised by the tenants is that the transcript reveals the landlord stated that the tenants' claim that she had a medical issue which required her to appear remotely was according to Mr Wong's 'belief' a delaying tactic and the tenants had done a similar thing about 12 months ago. The tenants submit that 'this is an assumption without evidence and was made in my absence'.
4. On the limited material before us, we are unable to determine whether the landlord's' statement was incorrect. A mere statement of belief, of course, carries no weight. Further, having reviewed the transcript as a whole and the outcome of the proceedings, we are of the view that this brief interchange before Ms Raffoul came on the telephone line played no part in the Tribunal's consideration of the real issues between the parties.
5. Secondly, the tenants refer to a statement made by Mr Wong in the absence of the tenants, that 'she's not paying', 'she's also failed to pay rent'. Similar other comments were made by the landlord in the absence of the tenants. The position at the time was that the tenants were making payments of rent but the previous payment plan agreed to by the tenants to pay off the arrears was not being adhered to so that the tenants remained in arrears.
6. At the hearing the tenants were able to explain their ongoing payment of rent which prompted the Tribunal to state the following:

Mr Wong, it is not consistent with what you told me about, that she is not making any payments.

...

But you indicated to me the rent was increasing because she was not paying rent, and she said to you she is just going to write it up against the bond.

...

I understand that she is in arrears, but the impression that you gave me when we started this hearing was that she had stopped paying rent since the order had been made against her and was allowing her arrears to accumulate with the view of having the amount claimed against the bond after she moved out. That doesn't seem to be the case. I understand she is in arrears, but she is paying her rent regularly.

What do you say now?

At the moment she is 19 days in arrears with the total of $1830.

1. Accordingly, it is clear to us that ultimately there could be no suggestion of lack of procedural fairness being afforded to the tenants by the time the hearing had completed. The tenants successfully put what was accepted by the Tribunal as being a more accurate statement of what had occurred and the tenants do not suggest that ultimately the Tribunal was in any way misled in this regard.
2. Thirdly, the tenants refer to the statement of the landlord in their absence that:

She was in breach of her tenancy agreement for multiple things. We then agreed that because of those breaches we would allow her some time to vacate.

1. This was a reference to the previous application of the landlords resulting in the consent orders of 28 October 2024. The substance of the tenant's complaint was that there was no finding of breach, only consent orders.
2. In our view, the Tribunal was aware that there had been no findings of a breach of the tenancy agreement but that this was the landlord's claim culminating in settlement and consent orders. Accordingly, we are of the view that no procedural unfairness can be demonstrated from this statement.
3. Lastly, the tenants submit that the Tribunal unfairly failed to give the tenants an opportunity to show documents going to rental arrears. As we understand the submissions, Ms Raffoul for the tenants at the hearing before the Tribunal wished to dispute the rental ledger being tendered by the landlord. Comments were made about the ledger not being correct and bank statements could show this to not be the case.
4. We have read the transcript with this submission in mind. The transcript reveals that the Tribunal asked Ms Raffoul what she said was the correct outstanding rent. Ms Raffoul replied that it was $100 less or $1730 rather than $1830.
5. At the hearing of the appeal, where Ms Raffoul again appeared for both tenants, the Panel questioned Ms Raffoul about what she stated was the position. Ms Raffoul candidly accepted that the $1830 may be correct and she could not point to any actual error in the landlord's rental ledger. She indicated that the weekly rent was paid in advance and a difference of about $100 may arise depending on how one accounts for the advance rent when the order for payment arose within seven days of the last payment of rent in advance.
6. Further, we note that the tenants were not prevented from insisting on lodging bank documents at the hearing or seeking an adjournment to enable the tenants to produce the bank statements. Rather, in light of the substantial acceptance of the landlord's evidence, the Tribunal proceeded to deal with the case, noting that if there was an established discrepancy of a $100 that could be taken into account in the calculation of what was required to fulfill the money order proposed.
7. In summary, we are not satisfied that there was any procedural unfairness to the tenants in this regard.
8. Accordingly, we reject this ground of appeal.
9. We further reject this ground of appeal on the basis that even if there may have been any procedural irregularities, they ultimately have not caused any injustice to the tenants. We note that breach of procedural fairness on its own does not provide a basis for setting aside orders. Fairness is not an abstract concept. 'It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice': Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]. The ultimate issue is whether the tenants may have been prejudiced by the orders: Simjanovska v Dogan [2023] NSWCATAP 69 at [98].
10. In this regard, we note that at the hearing of the appeal, the tenants had two claims: first, complaint about the termination notice said to be retaliatory and, second, complaint about the compensation order at $1830.
11. In respect of the termination notice, Ms Raffoul accepts that the relationship of landlords and tenants has broken down and she does not seek to resume possession of the premises she has now vacated. She accepts that the tenants came to this position back in October 2024 when the tenants consented to vacate the premises on 25 January 2025.The tenants have in effect remained in possession beyond 25 January 2025 and currently are no longer in possession. Accordingly, the question of whether or not the termination notice is retaliatory is moot.
12. Secondly, as recounted above, there appears to be no real dispute as to the compensation order at $1830.
13. Accordingly, there appears to be no basis for setting aside the orders made by the Tribunal in December 2024.

1. The substance of this ground is that the Tribunal 'failed to acknowledge the tenants' financial hardship and injury due to landlord's negligence'. The tenants relied upon medical evidence which evidences the following:

(1) A lesion on the brain;

(2) Chronic backpain;

(3) An injured ankle.

1. The tenants submit that the above injuries have made it difficult to lift boxes or pack or to work and to continue making weekly rent payments or meet the payment plans for payment of arrears. The tenants accept they are currently in arrears.
2. In our view, this ground of appeal does not raise a pure question of law and the tenants must seek leave to appeal. The principles governing an application for leave to appeal under the NCAT Act are well established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough, as a summary, to refer to Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], where Gleeson JA (on behalf of the bench) said:

Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong. (citations omitted)

1. Further, as Basten JA said (White JA agree) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 at [9]:

... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice. (citation omitted)

1. We are not satisfied that leave to appeal should be granted. The Decision in our view is not attended with sufficient doubt to warrant its reconsideration. Indeed, for the reasons already explored by us above, it appears that the tenants do not in fact dispute the ultimate correctness of the orders which are appealed against. Further, and in any event, the medical evidence referred to in support of this ground and the submission of resulting hardship, do not call into question the orders of the Tribunal particularly having regard to the tenants accepted breach of the lease and the previous consent orders of the Tribunal.
2. Accordingly, we reject this ground of appeal.
3. Finally, and for completeness, we note the tenants sought recompense for the costs of filing the Notice of Appeal. In light of our rejection of the appeal, we dismiss the tenants' claim to costs.

(1) Leave to appeal refused.

(2) Appeal dismissed.

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.