Reisner v Bridge Housing Limited

Background

1. The background to the application is set out in the Tribunal's reasons for decision published on 27 November 2018 (unreported) and in the Appeal Panel's reasons for decision, Reisner v Bridge Housing Limited [2019] NSWCATAP 109.
2. In brief, in August 2018 Bridge Housing lodged an application with NCAT, seeking termination of a residential tenancy agreement with Ms Reisner and an order for payment of rent arrears. The central issue at first instance and on appeal, was the identity of the landlord in that agreement: Bridge Housing or, as contended by Ms Reisner, the NSW Land and Housing Corporation. The answer to that question turned on the proper construction of s 13A of the Housing Act 2001 (NSW), and the interrelationship between that provision and the Residential Tenancies Act 2010 (NSW). The Housing Act permits the NSW Land and Housing Corporation to enter into a concurrent lease with a registered community housing provider in respect of any housing owned by the Corporation: s 13A(1). On entering into a concurrent lease any rent payable by a tenant (other than rent in arrears that was payable before the concurrent lease was entered into) becomes payable to the registered community housing provider and not to the Corporation: s 13(2) of the Housing Act. Bridge Housing is a registered community housing provider.
3. In the Notice of Appeal, Ms Reisner listed five grounds of appeal. Grounds 1 and 2 contend that the Tribunal erred in finding that Bridge Housing was Ms Reisner's landlord. Ground 3 contends that the Tribunal erred in finding that the relevant date for the commencement of the concurrent lease was 10 July 2017. Grounds 4 and 5 assert that the Tribunal erred in finding that the termination notice issued by Bridge Housing dated 24 October 2017 was valid and that rent arrears were payable by Ms Reisner.

History of the appeal proceedings

1. The procedural directions ordering Ms Reisner to lodge submissions in relation to the appeal are relevant to her reinstatement and set aside applications.
2. On 8 January 2019, the Appeal Panel made the following directions: 1. Leave is given to the Appellant to be legally represented. 2. Leave is given to the Respondent to be legally represented. 3. The Respondent is to lodge with the Tribunal and provide to the Appellant a copy of the Reply to Appeal by 25 January 2019. 4. The Appellant is to lodge with the Tribunal and provide to the Respondent by 15 February 2019: (a) An agreed bundle to include: i. All the evidence provided to the Tribunal below on which it is intended to rely; ii. An agreed statement of amounts paid as rent or otherwise by the appellant in respect of the tenancy; iii. If necessary, the sound recording of the hearing at first instance, if there is a factual dispute concerning rent paid and relevant oral evidence was given and a transcript of the relevant evidence. (b) Any fresh evidence on which it is intended to seek leave to rely; (c) The Appellant's written submissions in support of the appeal. 5. The Respondent is to lodge with the Tribunal and provide to the Appellant by 1 March 2019: (a) The Respondent's written submissions in opposition to the appeal. 6. The Appellant to lodge with the Tribunal and provide to the Respondent any written submissions in reply by 8 March 2019. 7. The Appeal is listed for HEARING on 19 March 20197 at 2:15pm for half day. 8. The issue of whether the Appeal Panel should: (a) give leave to appeal on grounds other than a question of law. is to be determined at the hearing of the appeal. The Appeal panel notes: The primary issues in the appeal are: (1) Is the respondent the landlord of the appellant for the purpose of the Residential Tenancies Act 2010 (RT Act) by reason of a) There being a concurrent lease between the respondent and NSW Land and Housing Corporation (the original landlord) and the operation of s13A of the Housing Act 2001. b) The entry of the concurrent lease thereby terminating at law the residential tenancy grant with the original landlord; and c) There being thereafter, by operation of s13 of the RT Act, a residential tenancy agreement between the appellant and respondent. (2) Did the concurrent lease, executed on 27 September 2017 operates retrospectively from 10 July 2017 by reason of Section G and Schedule 1 of Annexure A of that document. (3) What rent is outstanding by reason of the above. NOTE: (1) If a party does not lodge with the Tribunal and provide to the other parties documents, sound recordings and submissions as directed above, that party may not be allowed to rely on those documents, sound recordings and submissions at the hearing of the appeal. (2) At the hearing the Appeal Panel may proceed, if appropriate, to deal with the appeal by way of a new hearing, under the Civil and Administrative Tribunal Act 2013 (NSW), section 80(3). The parties should be prepared to put before the Appeal Panel any fresh evidence as well as any evidence that was before the Tribunal at first instance and make any submissions in relation to the original application that they want to make. (3) If a party wishes to rely on a sound recording of a hearing, the party must identify for the Appeal Panel which parts of the sound recording are relied in their written submissions.
3. Ms Reisner did not attend the appeal hearing listed on 19 March 2019. The Appeal Panel adjourned that hearing, making the following directions: 1. The appeal is adjourned to 9 April 2019 at 2:15pm. 2. The Appeal Panel notes the appellant does not appear to have filed and served any submissions following the directions made on 8 January 2019 save for documents entitled "Notice to Admit Facts". 3. On or before 1 April 2019 the appellant is to file and serve any further submissions in support of her appeal. 4. On or before 5 April 2019 the Respondent is to file any further submissions including Reply. 5. The appeal is not to be adjourned except in exceptional circumstances. 6. In the event the appellant cannot appear in person at the adjourned hearing she may a) seek leave to appear by telephone; or b) be excused from attendance and rely on her written submissions only. 7. The parties are to address in any further submissions they make the following a) what is the meaning and effect of concurrent leases in the Housing Act 2001 and what ability does a registered community housing provider have to take proceedings under the Residential Tenancies Act 2010 (RT Act). The parties should address, as necessary, references to concurrent leases in Part 7A of the Housing Act as well as any other sections of the Housing Act. b) The applicability of common law principles concerning concurrent leases in determining whether at registered community housing provider under a concurrent lease may bring proceeding under the RT Act as a landlord.
4. On 1 April 2019, the Appeal Panel extended the time to comply with Orders 3 and 4 made on 19 March 2019 but refused Ms Reisner's request to list the matter for directions on 9 April 2019 so that she could "get a better understanding of the orders". The Appeal Panel confirmed that the hearing would proceed on 9 April 2019. In giving reasons for that decision, the Appeal Panel noted, evidently in error, that the orders made on 19 March 2019 had not been made in Ms Reisner's absence, "as her nephew was present".
5. Ms Reisner did not attend the appeal hearing on 9 April 2019, nor did she seek an adjournment of that hearing.
6. On 23 May 2019, Ms Reisner lodged an application to reinstate the appeal proceedings.

Should the power to extend the time to make the reinstatement application and the set aside application be exercised?

1. The reinstatement and set aside applications were lodged on 23 May 2019, which is outside the statutory seven day time period prescribed for lodging such applications: r 36 of the Civil and Administrative Tribunal Rules 2014; cl 9 of the Civil and Administrative Tribunal Regulation.
2. Bridge Housing concedes that it would not be prejudiced if we were to exercise the power to extend the time for lodging these applications. In view of this and given the relatively short delay in making each application, we decided to exercise the discretion under s 41 of the NCAT Act to extend the time to make each application.

Can the power to reinstate the appeal proceedings under s 55(2) of the NCAT Act be exercised?

1. Ms Reisner contends that where, as here, an appellant fails to appear in proceedings and the appeal is dismissed, unless otherwise stated the Appeal Panel is taken to have dismissed the appeal under s 55(1)(c) of the NCAT Act. Pointing out that the Appeal Panel did not state that the appeal was not dismissed under s 55(1)(c), Ms Resiner contends that the appeal must be taken to have been dismissed under that provision and therefore the power to reinstate the appeal under s 55(2) is enlivened. Bridge Housing disagrees and contends that the reasons given by the Appeal Panel make clear that the Appeal Panel did not exercise the power to dismiss the appeal on the basis that Ms Reisner failed to appear at the hearing on 9 April 2019. It follows, argues Bridge Housing, that the power to reinstate the appeal under s 55(2) of the NCAT Act cannot be exercised.
2. Section 55 of the NCAT Act states: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.
3. Ms Reisner is correct that the Appeal Panel did not expressly state which section of the NCAT Act it relied upon in dismissing the appeal. However, for the following reasons we reject the contention that the appeal is taken to have been dismissed under s 55(2).
4. Section 55(1) of the NCAT Act gives the Appeal Panel the power to dismiss "at any stage any proceedings before it" in one of the four circumstances listed in s 55(1), which include the failure of an appellant to appear in the proceedings: s 55(1)(c). Section 55(1) permits the Appeal Panel to dismiss proceedings summarily without considering the merits of the appeal. The power conferred by that provision is discretionary. To exercise that power is to deal with the proceedings on the basis of one of the four grounds listed in s 55(1), rather than on the merits of the appeal itself.
5. Where, as here, the appellant fails to appear at a hearing, the Appeal Panel may exercise the power to dismiss the appeal, under s 55(1)(c). Alternatively, an Appeal Panel may determine the appeal on the merits and make an order under Part 6 of the NCAT Act. Contained in Part 6, s 81(1) of the NCAT Act, provides that in determining an internal appeal, the Appeal Panel "may make such orders as it considers appropriate in light of its decision on the appeal". The available orders include an order that the appeal be dismissed: s 81(1)(a).
6. Here the Appeal Panel concluded in its reasons at [19] that it would "not be procedurally unfair to hear the appeal in Ms Reisner's absence". The Appeal Panel then went on to address the "primary issues in the appeal" identified in the directions made by the Appeal Panel on 8 January 2019 and each of the five grounds of appeal. The Appeal Panel determined the merits of appeal. It did not dismiss the appeal under s 55(1)(c).
7. It follows that the power to reinstate the appeal proceedings under s 55(2) of the NCAT Act is not available.

Did Ms Reisner's absence from the appeal hearing, result in her "case not being adequately put" to the Appeal Panel?

1. Ms Reisner submits that her absence at the hearing resulted in her case not being adequately put to the Tribunal and therefore the power to set aside the decision made by the Appeal Panel under the Civil and Administrative Tribunal Regulation can be exercised. Bridge Housing disagrees and asserts that Ms Reisner was given ample opportunity to put her case to the Tribunal before the hearing.
2. Clause 9 of the Civil and Administrative Tribunal Regulation relevantly provides: 9 Additional power to set aside or vary decision determining proceedings (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. … (2) The Tribunal may make an order under this clause of its own motion or on the application of a party. …. (emphasis added)
3. Ms Reisner submits that her absence resulted in her case not being adequately put to the Tribunal because:

• The appeal raised complex questions of statutory interpretation and to adequately advance a statutory construction argument, it was necessary that she be given an opportunity to make oral arguments.
• Novel and new points were raised during the appeal hearing.
• In the appeal, Bridge Housing relied on new documents that were neither before the original decision maker nor filed by Bridge Housing prior to the hearing on 9 April 2019. In these proceedings, she was unable to identify these documents.
• She was denied the opportunity to reply to the oral submissions made by Bridge Housing at the hearing.
• In the course of the hearing, the Appeal Panel raised questions about the application of the "Statute of Frauds". Because she was absent she could not respond to these questions.
• In a letter to the Tribunal dated 31 December 2018, she foreshowed her intention to raise a "constitutional argument" in relation to the application of s 83 of the Commonwealth of Australia Constitution Act. Section 83 provides that "no money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law". This issue was addressed by the Tribunal but not the Appeal Panel.
• The appeal was of public importance, being the first case to address the interrelationship between the Residential Tenancies Act and the Housing Act.

1. As noted above, in directions made on 8 January 2019 the Appeal Panel set out the "primary issues in the appeal". Despite being directed to provide written submissions in support of the appeal and any supporting material on two occasions (8 January 2019 and 1 April 2019), Ms Reisner failed to comply with those directions. Apart from the notice of the appeal, the only material she filed in support of the appeal were the submissions filed on 12 December 2018 in support of the application to stay the operation of the decision under appeal. Those submissions addressed in detail the statutory construction issue, which was central to the decision under appeal.
2. Ms Reisner in effect contends that had she attended the hearing, she would have been able to elaborate on the grounds of appeal and raise additional grounds of appeal, including the "Constitutional argument".
3. The Appeal Panel was required to take such measures as are reasonably practicable to ensure that both parties had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5) of the NCAT Act. The Appeal Panel was entitled as it did to require the parties to present their respective arguments in writing: s 38(6)(b) of the NCAT Act. The Appeal Panel was not obliged, as Ms Reisner appears to contend, to permit her to advance new arguments she had not raised in the material she gave to the Tribunal and Bridge Housing. Nor was the Appeal Panel obliged to give Ms Reisner leave to rely on new grounds of appeal. Indeed, had it done so Bridge Housing would have been required to address issues of which it had not been given notice, which may have given rise to procedural fairness concerns.
4. In our view, to the extent that some aspect of Ms Reisner's case may not have been put to the Appeal Panel, this occurred as a result of her failure to comply with the directions to provide written submissions rather than as a result of her absence from the hearing or her inability to respond to oral submissions made by Bridge Housing.
5. Ms Reisner's case was set out in the Grounds of Appeal attached to the Notice of Appeal. The Appeal Panel addressed each ground of appeal. There is nothing in its reasons for decision to indicate, as asserted by Ms Reisner, that the Appeal Panel addressed "new or novel points" or otherwise dealt with issues that had not been raised by the parties before the hearing. Nor is there anything in the Appeal Panel's reasons for decision to suggest that the Appeal Panel had regard to documents that were not before the original Tribunal.
6. Section 38(5) of the NCAT Act, did not require the Appeal Panel to provide Ms Reisner the best or every opportunity to present her case, but rather a reasonable opportunity to present her case. Even if her case would have been strengthened had the Appeal Panel had the benefit of hearing her oral submissions, it does not follow that her absence resulted in her case not being adequately put to the Tribunal.
7. We are not satisfied that Ms Reisner's absence from the hearing on 9 April 2019 resulted in her case not being adequately put to the Tribunal. It follows the power to set aside the decision cannot be exercised.

Should the discretion to set aside the Appeal Panel's decision be exercised?

1. Even if we were satisfied that Ms Reisner's absence from the hearing resulted in her case not being adequately put to the Tribunal, for the reasons that follow, the circumstances of this case would not warrant the exercise of the discretion to set aside the Appeal Panel's decision.
2. In Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65, the Appeal Panel stated at [76] that the central question in exercising the discretion to set aside a decision is whether there is a real likelihood that it would be unjust to let stand the decision sought to be set aside. The Appeal Panel stated at [79]: Injustice will only be likely to result if the party seeking to set aside the decision has an arguable defence or an arguable case that a different decision could have been reached. If not, setting aside the decision would be futile. See, in a different but related context, Kyriakou v Long [2013] NSWSC 1890 at [33] and [55], approved on appeal in Kyriakou v Long [2014] NSWCA 308 at [18]. Section 38(4) of the Act is consistent with this approach, in that it requires the Tribunal to act according to the substantial merits of the case without regard to technicalities or legal forms.
3. The central issue in the appeal was one of statutory construction and in particular the proper construction of s 13A of the Housing Act and the effect of concurrent leases on pre-existing residential tenancy agreements. The Appeal Panel's conclusions arose from an interpretation of relevant provisions of the Housing Act and the Residential Tenancies Act, consideration of the second reading speech in relation to the amendment of the Housing Act which inserted s 13A and the application of the general law.
4. We are not satisfied that the Appeal Panel's conclusions about the relevant legal principles concerning the effect of the concurrent lease, the date from which it had effect and the validity of the termination notice would have been any different had Ms Reisner been present at the appeal hearing. In such circumstances, we are not satisfied that injustice is likely to result if the decision were not set aside.
5. To the extent that Ms Reisner claims that the Appeal Panel erred in its interpretation of the law, the appropriate remedy is an appeal from the Appeal Panel's decision. We note that towards the end of the hearing of the reinstatement and set aside applications, Ms Reisner asserted that the Appeal Panel was biased. Bias is not a basis for setting aside a decision under cl 9(1) (b) of Civil and Administrative Tribunal Regulation.

Orders 1. Time to lodge the reinstatement and set aside applications is extended to 23 May 2019. 2. The application to reinstate the appeal proceedings is dismissed. 3. The application to set aside the Appeal Panel's decision of 30 April 2019 is dismissed.

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. 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: 05 August 2019