Rayner v Rayner

reasons for decision

1. The appellant is a tenant of residential premises owned by the respondent, the appellant's daughter. On 30 July 2018, the Tribunal, in the Consumer and Commercial Division, made the following orders in regard to an application brought by the appellant under s 115 of the Residential Tenancies Act 2010 (NSW) (RT Act) in response to the respondent's termination notice issued under s 85(2) of that Act: 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 given to the landlord on the date of termination. 3. The order for possession is suspended until 27 August 2018. 4. The tenant shall pay the landlord a daily occupation fee at the rate of $28.57 per day from the day after the date of termination, namely 31 July 2018 until 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. …
2. The appellant asserts that the Tribunal erred in making the orders for possession (i.e. orders 2, 3, 4 and 5), because it did not have jurisdiction to determine the appellant's claim, in equity, to a right of possession independently from the tenancy agreement.
3. For the reasons that follow we can find no error in the Tribunal's decision or reasons for decision as asserted by the appellant.
4. In his further written submissions, the appellant noted that there may have been a procedural irregularity in the conduct of the hearing before the Tribunal on 30 June 2018 in that the Tribunal dealt with the entirety of the dispute between the parties, namely the appellant's application to set aside the respondent's termination notice and the respondent's application for a termination order. The latter application, as noted by the appellant, had not been listed before the Tribunal for hearing and determination that day.
5. For the reasons set out below we do not agree that there was a procedural irregularity. Neither party has raised this as a ground of appeal and appear to have been happy for the Tribunal to determine the entirety of their dispute on this day. However, we have varied the orders made by the Tribunal to reflect that they were made in regard to the respondent's application. We had also varied the orders to include an order dismissing the appellant's application.

Background

1. On 27 December 2013, the appellant signed a pro-forma residential tenancy agreement (the Agreement) with the respondent in regard to the premises. The term of the Agreement was stated to be for the 'indefinite time of lease' and the agreed rent was $200.00 per week.
2. The premises the subject of the Agreement between the appellant and the respondent was purchased by the respondent and her mother (the former wife of the appellant) on 24 July 2013. The premises were purchased from a portion of the proceeds of the sale of property jointly owned by the appellant and his former wife.
3. Prior to the sale of the jointly owned property, in June 2012, the appellant agreed to transfer his 50% interest in the property to his daughter, the respondent. At the time of the agreed transfer the appellant was in prison and the transfer formed part of an agreed property settlement between the appellant and his former wife.
4. By consent, on 16 July 2012, the Federal Circuit Court made final property orders giving effect to the appellant's agreed transfer to the respondent of his 50% share in the jointly owned property.
5. Two months after purchasing the premises the subject of the Agreement, the respondent and her mother purchased another property with the remaining proceeds from the sale of the jointly owned property.
6. On 12 April 2018, the respondent sent a 90 day termination notice to the appellant. That notice specified a termination date of 11 July 2018.
7. On 9 May 2018, the appellant lodged a tenancy application in the Consumer and Commercial Division (file no RT 18/21167). In his application the appellant said he sought an order under s 115 of the Residential Tenancies Act 2010 (NSW) (RT Act) and the reason he gave for seeking the order was: Termination notice given in relation to separate by-law issue. As well noise complaints. Lease stipulates that the term of the agreement is indefinite.
8. On 27 July 2018, the respondent also lodged a tenancy application with the Tribunal in which she sought a number of orders, including a termination order under ss 85 (termination order after 90 days) and 87 (termination order where tenant has breached the residential tenancy agreement) of the RT Act (file no RT 18/32964).
9. The appellant's application (file no RT 18/21167), which is the subject of this appeal, was listed for hearing before the Tribunal, on 30 July 2018. The appellant was not represented in those proceedings.
10. At the conclusion of the hearing on 30 July 2018, the Tribunal made orders as set out in paragraph 1 above. Short written reasons for decision were published the following day.
11. The respondent's application (file no RT 18/32964) was listed for hearing two weeks later, on 14 August 2018, before the Tribunal differently constituted. On that day, the Tribunal, differently constituted, made the following order: The application is dismissed because the Tribunal has no jurisdiction to determine the application as the tenancy has already been terminated.
12. Neither party has sought to appeal this decision.
13. In August 2018, the appellant commenced proceedings against the respondent and his former wife, in the Federal Circuit Court of Australia. In those proceedings, brought under s 79A of the Family Law Act 1975 (Cth), the appellant sought an order to set aside the 2012 consent orders of the Federal Circuit Court. In an affidavit sworn on 20 August 2018, the appellant contends that he was misled into transferring his 50% interest in the jointly owned property to the respondent. He asserts that the agreement was that the premises in which he now resides was purchased for him to live in once he was released from goal.

Proceeding before the Appeal Panel

1. The appellant lodged his appeal on 13 August 2018. The appellant also made an application for the orders for possession made by the Tribunal to be stayed pending determination of his appeal. On 23 August 2018, the Appeal Panel made the orders sought and stayed the operation of orders 2 and 3.
2. The decision the subject of appeal is an internally appealable decision and an appeal lies as of right on a question of law, or with the leave of the Appeal Panel on any other grounds: see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), ss 32 and 80(1) and (2)(b).
3. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [13], identified possible questions of law. This included whether the Tribunal identified the wrong issue or asked the wrong question and whether a wrong principle of law had been applied.
4. As this is an appeal from a decision of the Tribunal in the Consumer and Commercial Division, cl 12 of Sch 4 of the NCAT Act applies and the Appeal Panel may only grant leave to appeal where it 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).
5. In his Notice of Appeal, the appellant said he was not seeking leave to appeal.
6. The appellant and the respondent have both been legally represented in this appeal.
7. In support of his appeal the appellant filed and served a copy of his Initiating application in the Federal Circuit Court of Australia, lodged on 20 August 2018, together with a copy of his supporting affidavit dated the same day.
8. In reply, the respondent filed and served a copy the affidavit she had sworn on 24 September 2018 and filed and served in the Federal Circuit Court of Australia application lodged by the appellant.
9. At the conclusion of the hearing of the appeal we made orders, at the request of the parties, for the filing and serving of further written submissions.

The decision of the Tribunal

1. In its reasons for decision, the Tribunal noted that the appellant had made an application to the Tribunal under s 115 of the RT Act 'seeking a declaration that the termination order has no effect because it was a retaliatory notice'.
2. The Tribunal noted that the parties had appeared before the Tribunal at directions hearing where orders were made 'regarding document exchange and hearing'. The Tribunal noted that the respondent had completed the document exchange, but no documents were received from the appellant.
3. The Tribunal went on to say the following in regard to the application of the appellant: … [At] the hearing the applicant gave evidence that the respondent had purchased the property in issue using proceeds of sale from a property that the applicant owned, and that she had done so without the applicant's knowledge while the applicant was incarcerated. The applicant also gave evidence that he had hired legal assistance, lodged a caveat over the property and had demanded the property to be put in his name. The tribunal explained the limitations of its jurisdiction, and the 'no grounds' termination order. Limited arguments were submitted under s 115 RTA, but they were insufficient for the tribunal to declare the termination notice, issued 12 April 2018, invalid. After discussion termination was set at 27 August 2018. This does not prevent the applicant from pursuing other issues through legal channels.
4. We have dealt with the relevant provisions of the RT Act below.

Appellant's submissions

1. In his initial written submissions of 20 August 2018, the appellant's solicitor argued that, based on the appellant's affidavit sworn on that day, he had a strong and arguable case to support his claim for an equitable interest in the premises. The appellant's solicitor went on to submit that, although the Tribunal was vested with jurisdiction to determine the tenancy agreement, it erred in making the orders for possession, because it did not have jurisdiction to determine the appellant's claim, in equity, to a right of possession. It was contended that the Tribunal should have stayed any orders for possession until such time the Federal Circuit Court had determined the appellant's application for an order setting aside the 2012 consent orders under the Family Law Act.
2. In his written submissions of 9 November 2018, the appellant's solicitor noted that there may have been some procedural irregularity in the conduct of the proceedings before the Tribunal in that the orders for possession could only have been made in response to the application of the respondent and not the application of the appellant. The respondent's application, as we have noted, was not before the Tribunal on the day in question. As we have noted, the respondent's application was listed for hearing two weeks later, before the Tribunal differently constituted.
3. In regard to the appellant's claim in equity (e.g. the existence of an express or constructive trust over the property in favour of the appellant), the appellant's solicitor argued that this claim could be categorises as an equitable defence of 'unclean hands' or an estoppel against the respondent's claim for an order for possession. If so categorised, the appellant's solicitor argued that ss 6 and 7 of the Law Reform (Law and Equity) Act 1972 (NSW) applied so as to enable the Tribunal to postpone the grant of relief under the RT Act. This included orders such as an order for possession, or to make an order granting relief subject to terms and conditions. In support of this proposition, the appellant's solicitor relied on the decisions of the NSW Supreme Court in Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289 at [75] and Bushby v Dixon Holmes du Pont Pty Ltd [2010] NSWSC 234.
4. The appellant's solicitor went on to submit that even if there is no such defence, but a claim in equity nevertheless, the Tribunal was bound to postpone the grant of relief of possession to the respondent, pending determination of that equity in another court.

Respondent's submissions

1. In his submissions of 13 November 2018, the respondent's solicitor noted that the appellant was not cavilling with the termination order made by the Tribunal. On this basis, under s 83 of the RT Act, the Tribunal was required to make the orders it made for possession. The Tribunal did not otherwise have power to make the orders sought.
2. It was submitted that the appellant's assertion of an equitable interest is, in reality, an attempt to further delay the respondent's right to possession of the premises. It was noted that, despite his asserted equitable claim, the appellant had not commenced proceedings in the Supreme Court, or lodged a caveat against the tile of the property to the premises. The respondent's solicitor concluded by stating that the appeal was futile, and ought to be dismissed with costs.

Residential Tenancies Act 2010 (RT Act)

1. It is not disputed that the Tribunal was exercising its powers under the RT Act.
2. Part 5 of the RT Act makes provision for the termination of a residential tenancy agreement. Section 81 in this Part sets out the only circumstances in which a residential tenancy agreement can be terminated.
3. Section 81(1) provides that the circumstances prescribed in that section are the only circumstances in which a residential tenancy agreement can be terminated and this includes: 1. where a termination notice, in accordance with the RT Act, is given by either party to the agreement and the tenant gives vacant possession of the premises (s 81(2)); or 2. where the Tribunal makes an order terminating the agreement (s 81(3)).
4. Section 85 of the RT Act makes provision for the Tribunal to make a termination order where the landlord has given the tenant a termination notice, for no cause, of a periodic agreement and the tenant has not vacated the premises. That section 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. (4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.
5. Section 82 of the RT Act sets out what must be contained in a termination notice. That section relevantly provides as follows: 82 Termination notices (1) A termination notice must set out the following matters: (a) the residential premises concerned, (b) the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given, (c) …, (d) any other matters prescribed by the regulations. (2) A termination notice must be in writing and be signed by the party giving the notice or the party's agent. (3) A termination notice for a periodic agreement may specify a day other than the last day of a period for the payment of rent as the termination date.
6. Section 111 of the RT Act makes provision for a tenant or a landlord to apply to the Tribunal for an order in regard to a dispute about a termination order: 111 Disputes about termination (1) A landlord or tenant may apply to the Tribunal for an order in relation to a dispute about a termination notice. (2) The Tribunal may, on application by a landlord or tenant, declare that a termination notice was or was not given in accordance with this Part. (3) Subsection (2) does not limit any other order the Tribunal may make on an application under this section
7. Section 115(1) of the RT Act provides that the Tribunal may; on application of 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.
8. Section 115(2) of the RT Act sets out the circumstances for which the Tribunal may find that a termination notice is a retaliatory notice.
9. Where the Tribunal makes a termination order, s 83 provides that the Tribunal: 83(1) … [must] also make an order for possession of the residential premises specifying the day on which the order takes or took effect. (2) An application to the Tribunal by a landlord for a termination order: (a) must be made after the termination date specified in the relevant termination notice and within the period prescribed by the regulations, and (b) must be made only if vacant possession of the premises is not given as required by the notice.
10. Section 114 of the RT Act gives the Tribunal a power to suspend the operation of an order for possession. That section relevantly provides as follows: 114 Suspension of possession orders (1) The Tribunal may suspend the operation of an order for possession of residential premises for a specified period if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the landlord and tenant by the suspension. (2) The Tribunal may impose an obligation on a tenant to pay a specified occupation fee for the period for which the order for possession is suspended.
11. Finally, s 119 of the RT Act prohibits a landlord or former landlord from commencing proceedings against a tenant or former tenant of the landlord in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises the subject of a residential tenancy agreement. Hence, only the Tribunal has power to make orders for possession: see Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944, at [517]-[523]; Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 1229, at [10]; and Lawrence v Gunner [2016] NSWCATAP 44, at [5] to [7].

Consideration

1. In our view, there are two matters for determination in this appeal. First, there is the appellant's ground of appeal (i.e. the Tribunal's failure to have regard to the appellant's equitable defence or equitable claim before making its orders for possession). The other issue, as we have noted, is the procedural irregularity raised by the appellant's solicitor.

The appellant's ground of appeal - the asserted equitable interest

1. As we have noted, the appellant did not place any material before the Tribunal and only relied on the evidence he gave on the day of hearing. A transcript of what he said during that hearing is not before us. Accordingly, we do not know what the appellant said, other than what is contained in the Tribunal's reasons for decision, which indicate that the appellant sought (i.e. demanded) that the premises be put in his name. The Tribunal explained that the appellant had made this demand, because the respondent had purchased the premises, without his knowledge, using the proceeds from the sale of property he owned. The Tribunal did not describe the demand as being an asserted equitable interest in the premises that gave the appellant a right to possession independently of the residential tenancy agreement between himself and the respondent.
2. Nor, in our view, can the Tribunal's remark about the limitations of its jurisdiction be construed to be a reference to the Tribunal having explained to the appellant that it did not have jurisdiction to determine an equitable claim as asserted by the appellant in these proceedings. In our view, the Tribunal's remark, when read in context, related to an explanation of the jurisdiction it did have under the RT Act by reason of the appellant's application for an order under s 115.
3. Hence, we are not persuaded, on the material before us, that the appellant had articulated a claim in equity at the hearing before the Tribunal below, or that he sought a stay of the orders for possession. That claim appears to have been articulated subsequently in this appeal. We understand there had been some communication between the legal representatives of the appellant and the respondent prior to the hearing of 30 July 2018. However, this correspondence was not before the Tribunal.
4. Accordingly, on this basis alone, we can find no error in the Tribunal's decision or reasons for decision as contended by the appellant.
5. Even if we are wrong and the appellant did articulate a claim in equity, in our view, the appellant's contention as to the application of ss 6 and 7 of the Law Reform (Law and Equity) Act 1972 to the circumstances of this case is misconceived. Those sections provide as follows: 6 Defence in inferior court Every inferior court shall in every proceeding before it give such and the like effect to every ground of defence, equitable or legal, in as full and ample a manner as might and ought to be done in the like case by the Supreme Court under the Supreme Court Act 1970. 7 Jurisdiction as to relief not enlarged This Act does not enlarge the jurisdiction of any court as regards the nature or extent of the relief available in that court, but any court may, for the purpose of giving effect to sections 5 and 6, postpone the grant of any relief, or grant relief subject to such terms and conditions as the nature of the case requires.
6. It has been accepted that the Tribunal is an 'inferior court' for the purpose of the Law Reform (Law and Equity) Act: see Steak Plains Olive Farm Pty Ltd v Australian Executor Trustee Ltd (supra), at [67] and [74].
7. Steak Plains Olive Farm Pty Ltd v Australian Executor Trustee Ltd (supra) involved a dispute about an agricultural lease of an olive farm called 'Steak Plains'. The respondent landlord commenced proceedings in the Tribunal seeking orders for possession under the Agricultural Tenancies Act 1990 (NSW) for alleged breaches of the lease by the appellant tenant. Some months after the respondent landlord had commenced proceedings in the Tribunal, the appellant tenant made an application to the Tribunal seeking an order that the proceedings be transferred to the Supreme Court. At around the same time, the appellant tenant filed a summons in the Equity Division of the Supreme Court seeking a number of declarations and orders, including an order for relief against forfeiture. The Tribunal refused to transfer the proceedings as it concluded that the provisions of the Agricultural Tenancies Act conferred sufficient power on the Tribunal to deal with all aspects of the dispute between the parties: see Australian Executor Trustees Ltd v Steak Plains Olive Farm Pty Ltd [2014] NSWCATCD 143. This decision was upheld on appeal to the Appeal Panel (see Steak Plains Olive Farm Pty Limited v Australian Executor Trustees Limited [2014] NSWCATAP 85).
8. On appeal to the Supreme Court, Steak Plains Olive Farm Pty Ltd v Australian Executor Trustee Ltd (supra), at [71] to [73], White J, explained the background to the enactment of the Law Reform (Law and Equity) Act and in doing so he referred to two cases in which it was envisaged s 6 would operate and if it did operate how s 7 was to be applied. These were: 71 … [One] was if a landlord sued for possession in the District Court or a court of petty sessions and the tenant claimed that he was in occupation under an agreement for lease of which equity would decree specific performance. The Law Reform Commission said of such a case: "23. If the landlord sued for possession in a district court or in a court of petty sessions, the tenant would have to bring proceedings in the Supreme Court for specific performance of the agreement and for an injunction to restrain the prosecution of the proceedings for possession. In the absence of the draft section 6, the position would be the same whether the proceedings were brought before or after the commencement of the Supreme Court Act. The draft section 6, however, would enable the tenant to rely on the agreement by way of defence in the district court or court of petty sessions. Circuity, delay and expense would be avoided." 72 This was the very type of case to which the learned authors of the 4th edition of Meagher, Gummow & Lehane's Equity:Doctrines & Remedies opined (at [2-245] that s 6 would not apply. However, even in such a case the learned authors said that the correct procedure was as indicated by s 7, namely for the inferior court to postpone the grant of relief to which the plaintiff was entitled at law in order to allow the defendant to apply for the grant of equitable relief in a court that had jurisdiction to grant it to give effect to the equitable defence. 73 The second particular example of the intended operation of the provisions given by the Law Reform Commission concerned the principle of promissory estoppel. The Commission said that the proposed s 6 "would enable, and require, the principle [of promissory estoppel] to be applied defensively in an inferior court in the same way as it may be held to be applicable in the Supreme Court under the Supreme Court Act" (at [25]). In Bushby v Dixon Holmes du Pont Pty Ltd [2010] NSWSC 234; (2010) 78 NSWLR 111 Rein J held that where the defendant asserted promissory estoppel, that was an equitable defence to which the District Court was empowered and required by s 6 to give full effect (at [32]). His Honour said that s 6 should not be read narrowly (at [31]).
9. At [78], White J held that the Tribunal did have jurisdiction to determine the availability of a defence to the landlord's claim for possession that the tenant was entitled to relief against forfeiture even if its power to grant statutory remedies did not extend to granting appropriate relief to give effect to that determination. His Honour went on to say: 'If an entitlement to relief against forfeiture were established, it should stay the proceeding to allow the tenant to pursue appropriate relief in the Supreme Court'. However, in that case his Honour agreed with the conclusions of the Tribunal at first instance that ss 20(1) and 21(1)(a) of the Agricultural Tenancies Act conferred a power on the Tribunal that was in effect similar to that of the equitable defence of relief against forfeiture.
10. In this case, there is no dispute that the RT Act does not confer a power on the Tribunal to make orders or grant remedies that, in effect, are similar to those that can be made or granted in equity following a successful equitable defence or equitable claim of the kind raised by the appellant.
11. As we have noted above, ss 6 and 7 of the Law Reform (Law and Equity) Act has a limited application in that it only applies where a party to proceedings in an inferior court raises an equitable defence to proceedings brought against him or her in that inferior court. However, these sections are not enlivened by mere assertion. As noted by White J, before the inferior court can make an order is made under s 7 staying the proceedings before it, an entitlement to relief under the asserted equitable defence must first be established. It is s 6 which enables the inferior court to decide whether or not there might be an entitlement as asserted has been established.
12. Other than an assertion, the appellant failed to place any material before the Tribunal that might have established an entitlement to relief under an equitable defence. While the appellant has placed additional material before us, in our view this also fails to establish an entitlement to a relevant equitable defence to the respondent's claim. The appellant has at no time denied that he executed the residential tenancy Agreement that gave him a right to possession of the premises. In signing that Agreement, the applicant also agreed to be bound by its terms. Nor has the appellant challenged the termination order of the Tribunal in regard to that Agreement. It was this order that triggered the orders for possession. As noted by the respondent, once a termination order is made, s 83 of the RT Act requires the Tribunal to make an order for possession. The Tribunal has no discretion in this regard, but does have the power, under s 114 of the RT Act, to suspend the orders for possession for a specified period if satisfied it is desirable to do so. In this case, the Tribunal suspended the possession orders for 28 days
13. If, as contended by the appellant, he had an entitlement, in equity, to possession of the premises independently of the tenancy Agreement, it is difficult to understand why he did not press that entitlement at the time he was issued with the respondent's Notice of Termination. In our view, an entitlement, as articulated by the appellant would not amount to a defence, in equity, to the respondent's claim under the RT Act. If it amounts to a substantive counter claim, in equity, is a matter for the appellant to pursue in another forum.
14. The appellant has not brought such a claim in the Supreme Court. Instead he lodged a claim in the Federal Circuit Court following the decision of the Tribunal. That claim is not a claim in which the appellant seeks orders for possession of the premises. It is a claim where he seeks to have the 2012 consent orders of that Court set aside. Those orders, as we have noted, relate to the jointly owned property by the appellant and his former wife and not the premises the subject of the tenancy Agreement. We note that the consent orders were based on the agreement of the applicant to transfer 50% of his interest in the property he jointly owned with his former wife. That agreement was signed by the applicant, who signed against the notation that he did not require legal advice in regard to the terms of that agreement.
15. For the reasons set out above, we find that the appellant's grounds of appeal do not raise a question of law. Hence the appropriate order is to dismiss the appeal in so far as it relied on these grounds.

The procedural irregularity

1. As we have noted, the application listed before the Tribunal on 30 July 2018 was the application of the appellant under s 115 of the RT Act. It was a defensive application in which the appellant sought to have the respondent's termination notice declared as being of no effect because it was a retaliatory notice (see at [43] above).
2. The Tribunal dealt with the substance of this application at the conclusion of its brief reasons for decision. It was noted that limited arguments were submitted in regard to that application and they were insufficient to declare the respondent's termination notice invalid. The appellant does not contend that the finding was inappropriately reached. Hence, it was a finding sufficient to dispose of the appellant's application. However, no orders to this effect were made.
3. Instead, the Tribunal made orders that were sought by the respondent in its claim, which had not been listed for hearing before the Tribunal that day.
4. Even though the respondent's claim had not been listed for hearing before the Tribunal that day, the Tribunal nevertheless dealt with that application and it would appear that this was done without any objection from the parties. In this appeal, neither has raised any objection to the Tribunal having done so, or that they were denied procedural fairness. Furthermore, no ground of appeal has been raised by either party that the Tribunal provided inadequate reasons.
5. In our view, it was appropriate for both proceedings to be dealt with together as they related to the same subject matter, namely the termination of the tenancy agreement between the parties. To have separate hearings would be a waste of time and it is the usual practice of the Registry to list such matters together. The reason why they had not been listed for hearing together was likely due to the respondent's application only having been lodged three days before the day the appellant's application had been listed for hearing. This does not mean that the respondent's application was listed late. However, as indicated in the decision of the Tribunal, on 30 July 2018, the Tribunal did in fact have both applications before it, including the evidence of the respondent, and proceeded to deal with both.
6. As we have noted, the respondent's application for an order for termination was lodged with the Tribunal after the date on which vacant possession was required under her s 85 notice of termination. Hence, at the time of hearing, on 30 July 2018, the Tribunal had jurisdiction to make orders for termination of the residential tenancy agreement and possession of the premises.
7. We can see no error in the Tribunal having done so. However, we agree with the appellant that the orders made by the Tribunal only related to the application of the respondent. In our opinion, the orders should be varied to reflect that these orders were made in the application brought by the respondent (RT 18/32964) and an order should also be made in regard the application of the appellant (RT 18/21167).
8. Section 81(1) of the NCAT Act sets out the powers of the Appeal Panel in determining and internal appeal, which includes making an order dismissing or allowing the appeal and confirming, affirming or varying the decision under appeal. Section 81(2) provides that the Appeal Panel may exercise all the functions conferred or imposed on the Tribunal under that Act or other legislation as follows: (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
9. In this case s 188 of the RT Act contains the general order making power of the Tribunal when exercising its jurisdiction under that Act as follows: 188 General order-making power of Tribunal The Tribunal may, in any proceedings before it under this Act, make any one or more of the following orders: (a) an order that the Tribunal may make under this Act, (b) an order that varies or sets aside, or stays or suspends the operation of, any order made in proceedings or earlier proceedings, (c) any ancillary order the Tribunal thinks appropriate, (d) an interim order.
10. In our view, in the exercise of s 81(2) of the NCAT Act and s 188(a) and (b), and in the absence of any objections raised by the parties in regard to the Tribunal having dealt with both applications together, it is appropriate to vary the orders of the Tribunal as suggest above, including varying the date on which the appellant is to give vacant possession. This will give the appellant some additional time to vacate the premises.

Conclusion and orders

1. For the reasons set out above we are not satisfied that the appellant has established his ground of appeal. However, we are satisfied that it is appropriate to vary the orders made by the Tribunal to reflect that the orders that were made were made in the respondent's application for termination and to include an order dismissing the appellants' application.
2. It is also appropriate, given our findings to make an order lifting the stay order that was made on 23 August 2018.
3. Finally, in the event the respondent wishes to press an application for her costs in this appeal, we have made an order for the filing and serving of evidence and submissions in regard to an application of this kind. Those orders include an order that each party indicate whether they oppose an order that the application be dealt with on the papers under s 50 of the NCAT Act.
4. Accordingly, we make the following orders: 1. The orders of the Tribunal made on 30 July 2018 are varied as follows: 1. The applicant's application in RT 18/21167 is dismissed. 2. The following orders are made in the respondent's application RT 18/32964: 1. The residential tenancy agreement is terminated immediately and possession is given to the landlord on the date of termination. 2. The order for possession is suspended until 31 May 2019. 3. The tenant shall pay the landlord a daily occupation fee at the rate of $28.57 per day from the day after the date of termination, namely 31 July 2018 until the date vacant possession is given to the landlord. 4. Within 60 days of the date of 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. 1. Appeal is otherwise dismissed. 2. The stay granted by the Appeal Panel on 23 August 2018 in regard to orders 2 and 3 of the Tribunal made on 30 July 2018 is lifted forthwith. 3. In the event the respondent seeks costs of the appeal the following order is made: 1. within seven (7) days from the publication of these orders, the respondent is to file and serve her application for costs together with any evidence and written submissions: 2. within fourteen (14) days from the publication of these orders the appellant is to file and serve any evidence and written submissions in reply; and 3. submissions of each party must indicate whether they oppose an order that the application be dealt with on the papers under s 50 of the Civil and Administrative Tribunal Act 2013.

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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: 09 May 2019