This matter came before me on 19 October 2022 to make directions in an appeal and to deal with an application for a stay lodged by an appellant tenant against a decision of the Consumer and Commercial Division relating to a social housing tenancy between the appellant and the respondent Land and Housing Corporation. I gave my decision on the application for a stay and oral reasons, substantially as recorded below, on that day. The appellant has now asked for written reasons under s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). They are hereby provided, with the insertion of relevant references to legislation and authority. I have renumbered the orders on the cover of these reasons, to omit procedural directions made that day.
Riskalla v NSW Land and Housing Corporation [2022] NSWCATAP 342 | Case summary | Zoe
It appears that there was a long running dispute between the parties about the appellant giving the respondent access to his premises in order to inspect or install smoke alarms or related equipment in the premises.
By an application in June 2022, the respondent sought termination of the residential tenancy agreement on the basis that the tenant had prevented from 10 March 2022 at least, the respondent conducting annual smoke alarm inspections in the social housing premises.
The respondent alleged that the tenant had refused entry on each occasion for that to occur. That application was then changed, on what I understand from the appellant to have been quite short notice, to an application simply seeking a specific performance order that the appellant allow the Land and Housing Corporation to enter the residential premises at 11am on 5 October 2022 for the purpose of fitting or inspecting smoke alarms.
The Tribunal gave its decision allowing those orders on 14 September 2022. It indicated that it gave short oral reasons, which have not been put before me. The appellant has lodged his appeal within time.
He says that the decision was made in error because the Tribunal allowed hearsay allegations, despite his objection, and the Tribunal placed, as I understand his ground of appeal, over reliance on aspects of s 36 of the NCAT Act by focussing on the quick end to the proceedings without conducting a hearing in accordance with the way that the appellant felt that the law requires. The appellant also says that the Tribunal allowed extensions of time without requests from the respondent, which placed him in a position of disadvantage, and that the Tribunal's hearings were not in accordance with law because the appellant asserts that decisions were made as a result of some collusion between Members of the Tribunal and the respondent. That last allegation is not clearly set out nor supported by any evidence and should not have been made in those circumstances.
With the notice of appeal, the appellant has lodged an application for a stay. Importantly, the orders sought by the appellant are that there be a stay "for two months" of the access order or until finalisation of the appeal. Upon receipt of the application for a stay, I made an ex parte order in chambers, staying the operation of the decision, and provided for the parties to lodge and serve material. They have both done so and have made oral submissions in addition to relying on their written material today in the hearing before me.
In support of the application for a stay, the appellant relies upon the fact that he is someone who has lived in the premises since, as I understand it, 2011. He says the premises were reasonably new then. There is a hard-wired smoke alarm or fire alarm in the premises which he can test. It has a green light which demonstrates that it is working. He is someone who has, very unfortunately, been involved in a serious fire in the past. He has a good understanding of the risk of fire, and he takes steps to avoid or mitigate that risk, including by having several fire extinguishers in his property. He says in confirmation that he still alleges that the decision was made in error and that the Tribunal should not have allowed late amendment to the application made by the Corporation.
When I asked the appellant today what prejudice there would be to him if I did not stay the order, particularly in circumstances where I gave him the opportunity to nominate three dates and times which would be suitable to him in the event the stay was not granted. The appellant pointed to two issues in particular. Firstly, that I have listed the hearing of the substantive appeal on 29 November at 2.15pm, which is only a reasonably short period of time away. He then asks, since the fire alarm has not been professionally inspected since 2018, a period of approximately four years, what basis is there to assume that it needs to be done in the relatively short period between now and the hearing of the appeal.
Other than those two issues, no specific prejudice was alleged by the appellant and, as I say, in directions I required him to provide three dates and times where the property could be inspected. To the appellant's credit, he has done so.
In response, the Land and Housing Corporation points to the appellant's statutory obligation to allow access under s 58 of the Residential Tenancies Act 2010 (NSW) (the Act), and in accordance with their agreement with the tenant for him to permit it, its agents or a person exercising its rights and obligations, access to the premises. The respondent also points to its obligation to provide and maintain the residential premises in a reasonable state of repair, under s 63 of the Act and that it must ensure a smoke alarm installed in a residential premises is repaired or replaced (which includes relevant maintenance) in accordance with the regulations, noting also ss 55(2)(c1) & 64A of the Act.
The principles governing a stay of a decision pending appeal are well established. They were set out in a decision of the former president of this Tribunal, Wright J, in the matter of Bentran v Sabbarton [2014] NSWCATAP 37. For today's purposes it is sufficient to cite the summary of Slattery J in Beck v Colonial Staff Super Pty Ltd & Ors (No 2) [2015] NSWSC 1360 at [35], with the citations omitted that:
[35] The principles governing a stay of a judgment pending appeal are well established. The applicant must demonstrate that there is a reason for the grant of a stay or that a matter is an appropriate case in the exercise of the Court's discretion. It is not necessary for the applicant for the stay to establish special or exceptional circumstances. The stay is likely to be granted if the appeal would otherwise be rendered nugatory. The Court considering the grant of a stay is not required to determine the merits of the appeal but usually considers whether the applicant has at least an arguable case; and the Court may impose conditions on the grant of a stay including that the applicant pay a sum of money into Court or otherwise secure the payment of the disputed sum. The central determinant as to whether a stay would be granted, and if so upon what terms, if any, is the Court's assessment as to what is a fair balance of the rights of the parties, given that an appeal does not of itself operate as a stay and the party who has succeeded at trial is entitled to the fruits of its victory.
I note that the overriding principle in any application for a stay is to ask what the interest of justice require.
Here then, the respondent should be taken to be entitled to the benefit of the decision received at first instance, unless the appellant can demonstrate that there is an appropriate basis for me to grant a stay in this matter.
On the material before me, it is difficult for me to be satisfied that the appeal has strong apparent relative merit. The Tribunal clearly gave some notice to the appellant, albeit of a reasonably short nature as I understand it, that there would be an amendment to the application seeking a specific performance order requiring him to allow the respondent to inspect the premises, rather than termination of his residential tenancy agreement.
Clearly, the consequence of the amended order sought and granted was far less onerous and prejudicial to the appellant than that initially sought. Whilst that, in and of itself, is not a proper basis to allow a shortening of notice to a party as to what would be sought against them, to the extent that it causes procedural unfairness one might think that the Tribunal in allowing such amendment was seeking to ensure that the best interests of both parties was appropriately met and considered, by reducing the potential harmful effect of the application on the appellant.
There is no specific allegation of prejudice by the appellant as to the late amendment, in that he does not say that there was evidence which he could have provided but that he was prevented from adducing it because he received short notice of the amendment by the Tribunal.
However, notwithstanding those issues, I am prepared to treat the appeal as arguable. The appellant was self-represented and has done a commendable job thus far of seeking to provide the Appeal Panel with evidence indicating that his concerns as to the way in which the hearing was conducted are made out. I will treat the appeal as arguable, on that basis.
However, I then need to consider the balance of convenience and the competing rights and interests of the parties. In that regard, in my view, a proper balancing of those issues cannot lead to a continuation of the stay in this matter.
There can be no doubt that the landlord is under a statutory obligation to provide and maintain the premises in an appropriate state. There can be no doubt that, as part of that, the landlord must take steps ensure that there is a working smoke alarm in the premises. Whilst the appellant says that he can see that the alarm is working, he does not allege or demonstrate that he has any specific technical knowledge about that issue, such that he is able to give any expert evidence in that regard.
I have no hesitation in accepting what he says, that there is a test button on the alarm and that it is provided with electricity. However, there is no evidence from which I can be satisfied that that is all that a proper test of the alarm would require.
As opposed to that, it is uncontroverted on the evidence that the alarm has not been professionally tested now for approximately four years. This is a building in which not only the appellant lives. It is a complex of approximately six units where other residents live, who are also placed at risk if there is no working alarm in the appellant's premises.
It is also the case that, other than the potential prejudice caused if the appeal is rendered otiose if the stay is not granted, the appellant does not point to any other particular prejudice to him if the inspection takes place on one of three dates and times he has nominated in accordance with my directions.
I accept, and place on the record, that it may be that if I do not grant the stay and the inspection takes place, that the Appeal Panel may consider that the appeal is unnecessary to determine on the basis that it is moot. However, it is also the case that if the appellant can demonstrate that there is an issue of principle or general public importance raised in the appeal, that the Appeal Panel may nonetheless determine the appeal on its merits even if a stay is not granted: Hunter Development Corporation v Save our Rail NSW Incorporated (No 2) [2016] NSWCA 375; 93 NSWLR 704.
Weighing those issues and asking the overriding question of what the interest of justice require, I am not satisfied that they require me to grant a stay in this matter and I will not continue the stay, pending the hearing of the appeal. I will, however, before dismissing the stay make an order affecting the operation of the decision at first instance, in that I will amend the effect of order 2 made on 14 September 2022 to indicate that the Tribunal authorises the landlord, NSW Land and Housing Corporation - T109, to enter the residential premises at one of the following three dates and times being 1pm on 1 November 2022, 1pm on 2 November 2022 or 1pm on 3 November 2022.
I will also add an order that the applicant in that case, the New South Wales Land and Housing Corporation is to provide written notice to the appellant by email as to the date and time nominated for the inspection, by Friday 21 October at 5pm.
Finally, I will order that the Corporation is to notify the appellant of the name of the organisation and name(s) of the persons nominated to access the premises.
[2]
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
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Decision last updated: 02 November 2022