Ramsey v NSW Land and Housing Corporation

The Appeal

1. This appeal is against those orders. No action has been taken under the possession order, which is stayed pending disposal of this appeal.
2. A party to proceedings at first instance may appeal to the Appeal Panel against orders of the present kind 'as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds': Civil and Administrative Tribunal Act 2013 (NCAT Act), s 80(2)(b). In exercising its discretion to grant leave to allow the appeal to extend to grounds other than questions of law, the Appeal Panel is required to have regard in appeals from decisions of the Consumer and Commercial Division of the Tribunal, as this is, to the considerations set out in cl 12 of sch 4 of the NCAT Act. The Tribunal needs to assess whether the appellant might, if consideration is not given to the other grounds, suffer a 'significant miscarriage of justice' on the basis of one or more of the factors set out in the provision, namely that the decision was not fair and equitable, was against the weight of evidence, or there is significant new evidence not reasonably available at the time of the initial hearing.
3. The grounds of appeal included a challenge to the Member's decision not to grant Mr Ramsey's request that the hearing be adjourned to have the matter heard with other matters also listed before the Tribunal involving the parties and to enable Mr Ramsey to commence making payments of the arrears. The decision to refuse the adjournment is an 'interlocutory decision' as defined in s 4(1) of the NCAT Act, and leave of the Appeal Panel is required: s 80(2)(a) NCAT Act.
4. Mr Ramsey had assistance from a legal officer with the Legal Aid Commission in preparing his notice of appeal, which was lodged on 18 May 20917. Leave was given to appeal out of time, and the time was extended to that date, at the directions hearing on 2 November 2017. The final hearing of the appeal was delayed to enable Mr Ramsey to pursue his request to obtain further legal assistance.
5. There are a range of general matters about which the Tribunal must be satisfied before finding a breach of a residential tenancy agreement or making a termination order. They are set out in ss 87, 88 and 89 of the RT Act.
6. In addition, in cases involving social housing tenants, as here, the Tribunal must have regard to the matters set out in s 154B and those set out in 154E. They are mandatory considerations.

General Matters Considered by Tribunal

1. There is no dispute in this case that the appellant was in arrears at the time the first application for termination was made (in July 2016). Similarly there is no dispute that he was again in arrears when the application was relisted in March 2017 and at the date of the Tribunal's decision in this case. Accordingly the pre-conditions to making a termination order were present: s 87(4)(a) (breach) and (c) (proper notice). The Tribunal addressed s 87(4)(b) which requires it to satisfy itself that 'the breach is, in the circumstances of the case, sufficient to justify termination of the agreement' (s 87(4)(b)). It is clear that he had not remedied the breach (see s 87(6)).
2. Similarly the Tribunal sought to address the requirements set out in s 87(5): (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy.

Matters Relevant to Social Housing Tenants

1. The Grounds of Appeal have as their background the provisions which are specific to cases involving social housing tenants. Section 154B: 154B Tribunal must have regard to breaches of prior social housing tenancy agreements and to series of breaches (1) In determining under section 87 whether to terminate a social housing tenancy agreement on the ground of a breach of the agreement by the tenant, the Tribunal must have regard to: (a) any breaches by the tenant of a prior social housing tenancy agreement with the same or a different landlord, and (b) whether a series of breaches by the tenant of the social housing tenancy agreement or any prior social housing tenancy agreement with the same or a different landlord justifies termination of the agreement even though, taken alone, the circumstances of each breach would not justify termination of an agreement. (2) This section does not limit any other matter that may be considered by the Tribunal under this Act. Section 154E: 154E Exercise of discretion to make termination order (1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following: (a) the effect the tenancy has had on neighbouring residents or other persons, (b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated, (c) the landlord's responsibility to its other tenants, (d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord, (e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal. (2) This section does not limit any other matter that may be considered by the Tribunal under this Act.

Grounds of Appeal

1. At hearing the appellant did not pursue Ground 1(c) and Ground 2.
2. Ground 1 is divided into parts (a), (b) and (d). It contends that the Tribunal made an error of law in the exercise of its discretion to terminate the tenancy, in breach of the standards set for the proper exercise of a discretion in House v R [1936] HCA 40; (1936) 55 CLR 499, per Dixon, Evatt and McTiernan JJ at 504-5: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
3. The appellant relied primarily on the following personal circumstances as ones, which had they been properly considered by the Tribunal, would have given rise to a different decision: 1. Most importantly, the circumstance that he had been a victim of serious assaults in December 2016/January 2017. He explained at our hearing, that he had a victim's compensation application on foot, he expected it to be determined soon, and it would result in an order for compensation that would assist him in remedying the arrears. 2. He had previously been homeless, and he was likely to be rendered homeless again if evicted. 3. The parties were in dispute over outstanding repairs. At our hearing the appellant made a number of statements relating to this issue. There have been ongoing differences between him and NSW Housing over the state of the premises he occupies, involving a range of issues. At a number of points in our hearing, he said that he had withheld payment of the rent, at times, because of dissatisfaction over failure to effect repairs. The notice of appeal referred to the existence of separate proceedings in the Tribunal over this issue.
4. In addition he had filed on 8 August 2017 in support of his appeal, a comprehensive Social Assessment Report prepared by Ms Bryanne Vimpani, BSW, LLB, a social worker experienced in preparing and presenting reports to courts and tribunals. Her report dealt in detail with the appellant's upbringing, education, mental health history, family relationships, his difficult relationship with NSW Housing staff, the effect termination would have on him, the likelihood of breaches in future and actions that could be undertaken by NSW Housing or him to minimise the likelihood of future breaches. It had a number of attachments.
5. We understood the purpose of this report to be twofold: (1) to identify factors that the Tribunal member should, but did not take into account, or to the extent they were taken into account they were affected by misunderstanding; and (2) to be used, if leave is given to extend the appeal to grounds other than questions of law.
6. Ground 1(d) returned to the possibility of the appellant being rendered homeless by the order for termination, and referred to s 87(4) of the RT Act. It contended that this was a 'material consideration' that the Tribunal failed to take into account.
7. Ground 3 was that the Tribunal erred in law in denying procedural fairness by refusing to adjourn the hearing. The application for leave to appeal against the interlocutory decision to refuse the adjournment was based on the principles in Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, considered below.

Consideration

1. We will not incorporate the Tribunal's reasons into this decision. The reasons commence with an outline of the application as first made on 18 July 2016, the agreement between the parties leading to an order by consent on 8 August 2016, and notes that the appellant complied with these orders until 12 September 2016, when no payment was made. And that he ceased making payments on 29 August 2016. It refers to the relisting of the application, the non-appearance of the appellant at the Tribunal hearing fixed for 20 February 2017, which was followed by default orders terminating the tenancy and ordering repayment of rental arrears and certain utility costs.
2. The relisted application proceeded to hearing on 21 April 2017. The Tribunal refused an adjournment application, and explained its reasons. The Tribunal referred to NSW Housing's reasons for seeking eviction, primarily on the grounds that the appellant had not paid any rent since November 2017, and difficulties that had arisen in getting access to his premises for purpose of undertaking repairs. It also referred to the appellant's absence from some previous hearings. It expressed concern over him falling into breach again if he made up the arrears.
3. The Tribunal set out in detail the proposal that the appellant put to it at its hearing - a repayment plan starting immediately, and which sought to have taken into account the victim's compensation payment he expected in due course. He said that he had suffered a brain injury as a result of the assaults. There is some support for that opinion in the social worker's report filed in the appeal. It noted his concern that if he was evicted he might become homeless.
4. The Tribunal then referred to the statutory provisions to which it must have regard, and mentioned specifically, ss 87, 88, 89, 154B, s154E and s 154G. (Section 154G relates to the period of time after the making of a termination order that is to pass before any order for possession takes effect).
5. It addressed each of these provisions. For example, in connection with s 154B it is apparent that it agreed with the submissions of NSW Housing. It alluded to a point repeated to us by the appellant at our hearing: that he should not be expected to pay rent when repairs were long outstanding. The Tribunal said: 'He has been aware for several months that his obligation to pay rent is separate from any claim for repairs.' His attitude to this issue, clearly in our view, formed part of the Tribunal's appraisal of NSW Housing's contention that he might fall into breach again, if he was allowed to remain under the proposed payment plan.
6. The Tribunal turned to s 154E. It noted his evidence as to the assault, a resultant brain injury and the application for victim's compensation. It concluded: 'The submission before the Tribunal is that the tenant has a brain injury. The evidence before the Tribunal does not satisfy me of that fact, or that this makes him incapable of managing his financial affairs or paying his rent on time. The tenant was able to provide evidence to the Tribunal that he operates his internet banking.' While it did not allude at this point of the reasons to the appellant's potential homelessness a result of the orders it might make, it had recognised that possibility in giving its summary of the tenant's submissions earlier in its reasons.
7. We are satisfied that the Tribunal considered all of the matters that arose in this case that fell within the list of mandatory considerations found in s 154B and s 154E. Similarly it had regard to all the matters required to be considered under the general provisions applying to all residential tenancy agreements (ss 87-89).
8. Ground 1(a) asserts nonetheless that the Tribunal's finding was wrong in law because it was 'plainly unjust and unreasonable'. Termination decisions affecting social housing tenants are ones of great seriousness, given the difficult financial, social and personal attributes that social housing tenants often possess. The Tribunal had given the appellant a number of chances to make up his arrears.
9. At our hearing the appellant did provide evidence of some further payments in the recent months, the last in August 2017, but the total amount of arrears had continued to increase. Social housing is a rationed resource, provided in the expectation that the tenant will provide part of the financial support needed to maintain the resource.
10. It is plain from the special provisions governing social housing that the Parliament expects tenants to adhere to the rent obligation, and that it is appropriate to terminate tenancies where there are repeated breaches of that obligation. As noted in Cooke v NSW Land and Housing Corporation [2016] NSWCATAP 9 at [29], payment of rent is a fundamental obligation of a tenant, and at the time of the orders for termination Mr Ramsey had failed to comply with that obligation. In our view, it it is impossible to sustain the conclusion that this decision was 'plainly unjust and unreasonable'.
11. Ground 1(b) asserts that Tribunal had regard to an extraneous or irrelevant matter when it noted in its reasons the order for termination, in February 2017, and the tenant's submissions in relation to making up arrears. In our view the Tribunal was simply putting that matter in the context of the history of the proceedings. It properly recorded that the application to set aside that order had been entertained on 6 March and the new order that was made. In our view it was simply giving the history of the application, and that is in keeping with s 87(5)(e) which allows the Tribunal to have regard to the 'previous history of the tenancy'. It is plain that its reasons for granting the termination order primarily focussed on the long period of default, and the escalating nature of the default.
12. Ground 1(d) asserts that the Tribunal did not take into account a material consideration, namely the likelihood of homelessness, if the tenancy was terminated. In our view, the Tribunal was conscious of that possibility in this case, and took this factor into account. But as we have explained it has limited relevance in cases where there is a history of breach. The statute itself places a strong emphasis on adherence to rent obligations.
13. Ground 3 puts in issue the Tribunal's decision not to adjourn the proceedings. The appellant contends that he was denied procedural fairness. He wanted to have the termination application listed with an application he had filed seeking orders compelling NSW Housing to undertake outstanding repairs. Ground 3(c) states that: 'The appellant's view was that the repairs issues went to the root of the landlord's claim for rent and he sought an equitable set off of the arrears by the compensation payable. Given the hardship suffered by the appellant if evicted a brief adjournment in order to hear the matters together would not have been disproportionate.'
14. Whether or not to grant an adjournment to merge a matter with other proceedings between the parties involves a broad exercise of discretion by the Tribunal. It is simply called on to do what is appropriate in the interests of justice in all the circumstances. In this instance the termination application had proceeded separately in the Tribunal for 10 months, with consent orders, subsequent breaches and relisting applications contributing to its length of time. As the Tribunal observed in the course of its reasons, the obligation to pay rent is independent of the obligations the landlord has in relation to the making of repairs, and any compensation that might be due to tenant because of any delay, or because of expenses the tenant might have incurred to address the need for repair. At our hearing, the appellant continued to press the view that the prospect of the compensation orders he might get in other proceedings (the victim's compensation claim, the repairs claim) should be taken into account when considering whether to make a termination order. This approach does not address the need to demonstrate an ability to pay independent of one-off dividends that might be enjoyed from time-to-time. In our view, the Tribunal did not err in law in refusing to grant an adjournment. In any event, to the extent that the adjournment request was based on there being pending proceedings in the Tribunal involving the same parties, those proceedings (SH17/13446 and SH 17/37266) have now been finalised.
15. The appellant has not established any errors of law in the Tribunal's reasoning.
16. On the question of whether to grant leave to extend the appeal to a consideration of grounds other than questions of law, the notice of appeal argues, citing Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 297 that leave should be granted because the appellant has demonstrated that the decision is attended by sufficient doubt to warrant reconsideration; and substantial injustice would result if leave were refused supposing the decision below was wrong.
17. In our view, the decision is not attended by any great doubt. We acknowledge that the personal consequence of the orders made by the Tribunal for the appellant may well be a severe one. But this is a possibility that social housing tenants who seriously default in their repayment obligations face, and of which he was, we consider, well aware.
18. The leave criteria (cl 12 sch 4) to which the Appeal Panel is required to have regard require us to consider whether the refusal to grant leave might result in a 'substantial miscarriage of justice'. This phrase is not concerned with the impact of orders on the personal circumstances of a party. It is concerned with the wider notion of a failure in the way the legal system has dealt with a case. Moreover the potential miscarriage must be substantial, as discussed in Collins v Urban [2014] NSWCATAP 17 at [76]-[79]. The outcome in this case fell within the usual parameters of a case of its kind.

Order 1. Leave to appeal refused. 2. Appeal dismissed. 3. Stay of operation of Order 4 made on 21 April 2017 is lifted.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 21 February 2018