Robinson v St George Community Housing Limited

Background

1. The respondent is a social housing provider as defined in the Residential Tenancies Act 2010 (NSW) (the RTA). It provides residential premises to persons such as the appellant under social housing tenancy agreements as defined in the RTA.
2. The appellant and respondent entered into a social housing tenancy agreement for premises at Concord NSW.
3. In 2019 and 2020 various issues arose between the parties. The respondent alleged that the appellant was: 1. using the premises for unlawful purposes in contravention of s 91(1)(b) of the RTA; and 2. was causing nuisance or interfering with the peace, comfort or privacy of neighbours in contravention of cl 15 of the Residential Tenancy Agreement.
4. Section 91 of the RTA says: 91 Use of premises for illegal purposes (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has intentionally or recklessly caused or permitted - (a) the use of the residential premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or (b) the use of the residential premises for any other unlawful purpose and that the use is sufficient to justify the termination.
5. We were not provided with a full copy of the Residential Tenancy Agreement, but it is common ground that cl 15 of that Agreement was to the effect that the appellant was not to cause or permit a nuisance, and was not to interfere, or cause or permit interference, with the reasonable peace, comfort or privacy of neighbours.
6. The respondent commenced proceedings in the Tribunal seeking a termination order on two bases: under s 87 of the RTA for the breaches of cl 15 of the Tenancy Agreement; and under s 91(1)(b) of the RTA for using the premises for unlawful purposes (being proceedings SH 20/27732).
7. In that Application the respondent said that the reason for the termination order sought was because the appellant was allegedly using the premises for "illegal purposes". It said nothing about nuisance or interference as a reason for the order sought.
8. Directions were made by the Tribunal for the parties to lodge with the Tribunal and serve on the other party any evidence upon which they intended to rely at the hearing. Both parties lodged and served documentary evidence in accordance with those directions.
9. A hearing date of 10 December 2020 was appointed, with the parties to appear by telephone.
10. On the day of the hearing the respondent appeared but the appellant did not. The Tribunal telephoned the number provided for the appellant, but the appellant did not answer. The appellant says that she did not answer because the Tribunal dialled the incorrect telephone number. We do not need to decide this issue on this appeal.
11. The Tribunal proceeded to hear the matter.
12. The Tribunal's decision was: "The Residential Tenancy Agreement is terminated in accordance with: • s 91 (1)(b) of the Residential Tenancies Act 2010 as the tenant/occupant has intentionally or recklessly caused or permitted the use of the premises for any other unlawful purpose."
13. However, despite deciding that the Agreement should be terminated because the appellant had used the premises for an unlawful purpose, the Tribunal made no findings of fact of unlawful use of the premises which may have supported making that order.
14. In its reasons the Tribunal referred to a number of acts or events which might be regarded as unlawful, but only referred to two in any detail (and that detail was scant). But in relation to those two allegations specifically referred to, the Tribunal said of the first: "I cannot find an indication that the premises in question are being utilised for the purposes of (the unlawful purpose) and I make no finding in that regard on the basis of that evidence."
15. And in relation to the second: "That evidence is not sufficiently clear to itself be a reason to order termination."
16. Despite coming to those views, and despite there being no other findings of fact that the appellant had used the premises for unlawful purposes, the Tribunal nevertheless held: "On the basis of the evidence provided, I find that the applicant has proved its case on the balance of probabilities and orders are made accordingly."
17. The Tribunal's reasons are entirely silent as to what case it considered had been proved, what the proof was, what facts were found and why the Tribunal came to the conclusion that the facts found amounted to unlawful use of the premises.
18. In our opinion, in making the decision it did in the absence of any relevant supportive findings of fact, and in the absence of any substantive reasoning to support its conclusion (which we have quoted at [14] above) the Tribunal erred in law in its First Decision.
19. For completeness, we should note that the Tribunal did not make any order that the Agreement was terminated for breach of cl 15 of the Agreement, nor did it make any findings in relation to the allegations of breaches of that term.
20. As was her right under r 9(1)(b) of the Civil and Administrative Tribunal Regulation 2013 (NSW), the appellant applied (in proceedings SH 20/51817) to the Tribunal to set aside the First Decision.
21. Regulation 9 says: 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.
22. That application was heard and determined by the Tribunal on 22 January 2021.
23. In its decision the Tribunal referred to the telephone number issue to which we have earlier referred. The Tribunal then turned to consideration of that part of r 9(1)(b) which concerned whether or not the appellant's absence had resulted in her case not being adequately put to the Tribunal.
24. The Tribunal said: "[9] ... However, it is not necessary to decide that aspect since the Tribunal is satisfied that the applicant's case was adequately put to the Tribunal despite her absence. The applicant filed a substantial number of documents under cover of a letter dated 08 December 2020. Those documents were received by the Tribunal on 09 December 2020. It is clear that those documents were not only before the member on 10 December 2020 at the hearing since reference was made to them in the reasons given by the members for the orders made on that occasion. As a result, the Tribunal is satisfied that the applicant's case was adequately put to the Tribunal. [10] The second question that needs to be considered is the result of the inclusion of the word "may" in the opening words of clause 9 (meaning r 9). That word indicates that the Tribunal has a discretion which needs to be exercised on the question of whether to set aside the orders made on 1O December 2020. [11] Normally, in a tenancy dispute involving a contested termination order, the position is that the tenant may be left homeless if the termination order is made and an order for possession takes effect. However, in this case the possession order was delayed and it was noted that the applicant would be provided with alternative accommodation by the respondent. Accordingly, in the exercise of its discretion, the Tribunal is not satisfied there is a real likelihood that it would be unjust to let the decision stand."
25. The principles applicable to the exercise of discretion to which the Tribunal referred were set out in Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65. In that case the Appeal Panel said: "[75] The discretion conferred by cl 9(1)(b) is unfettered by any express requirements of that clause but it must be exercised having regard to the statutory context in which the Tribunal operates. In particular, when applying cl 9(1)(b), the Tribunal must seek to give effect to the guiding principle referred to in s 36(1) of the Act: see, for example, Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77 at [38]. Section 36 provides in part: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. [76] The central question in exercising the discretion is whether there is a real likelihood that it would be unjust to let the decision sought to be set aside stand. If so, it should be set aside on such terms as will minimise the possibility of injustice to the party which had obtained the original decision in its favour. See, for example, CMT [2014] NSWCATGD 11 at [67] and [68(e)]; Northey v Bega Valley Shire Council [2012] NSWCA 28 at [16]; Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 at 243-4 - these latter two cases are both authorities dealing with r 36.16(2)(b) in the Uniform Civil Procedure Rules 2005 (NSW), or its predecessor, equivalent to cl 9(1)(b). [77] Justice generally requires that parties against whom orders are made must be given a reasonable opportunity of appearing and presenting their case: Cameron v Cole (1944) 68 CLR 571 at 589. In the Tribunal, s 38(5)(c) of the Act provides: (5) The Tribunal is to take such measures as are reasonably practicable: … (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. [78] … [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. [80] In summary, when exercising the discretion conferred by cl 9(1)(b), the Tribunal should direct its attention to whether there would be a real likelihood of injustice if the decision was allowed to stand. Relevant considerations will generally include: (1) Why the party was absent and whether the absent party had a reasonable opportunity to be heard or otherwise have its submissions considered in the proceedings; and (2) Whether the absent party has an arguable defence or an arguable case that a different decision could have been reached."
26. The Second Decision was a discretionary decision and so House v R (1936) 55 CLR 499; [1936] HCA 40 principles apply to our consideration of the second decision on this appeal.
27. In our opinion, the Tribunal erred in making its Second Decision in not finding that it was unjust to let the First Decision stand for the reasons we have expressed above at [19]-[21]. It erred in two respects.
28. First, in the Second Decision, the Tribunal failed to have regard to a number of relevant matters relating to the First Decision, namely being those matters we have described above at [19]-[21]. Failing to have regard to those relevant matters was an error of law.
29. Second, in its First Decision, the Tribunal arrived at a result so unreasonable or unjust as to suggest that one of the other House v R errors had occurred, even though the error in question did not explicitly appear on the face of the reasoning. The reasoning in the First Decision did not explain how the Tribunal could make the order based on s 91(1)(b) of the RTA in the complete absence of any factual findings of unlawful use, and therefore the result was so unreasonable as to suggest House v R error had occurred.
30. In the Second Decision, the Tribunal did not mention any of those matters to which we have just referred immediately above, all of which were relevant matters, and therefore arrived at a result so unreasonable or unjust as to suggest that one of the other House v R errors had occurred in the Second Decision, even though the error in question did not explicitly appear on the face of the reasoning in that Second Decision.
31. In relation to situations where a court's or tribunal's reasons do not explain why certain orders were made, Bathurst CJ and Leeming JA said, in Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61 at [9]: "It is one thing for the reasons given by the primary judge to disclose appellable error. If so, that is addressed by the formulations of principle in the first half of the passage from House v The King. That is not an end of the matter. There may be cases where the reasons do not disclose why the impugned orders were made. In such cases, even though no error of principle or other well recognised basis for appellate intervention may be discerned on the face of the reasons, an appellate court may nonetheless intervene. The reason is that it may be inferred in light of the result that there was appellable error in the unstated reasons which led to the order. This is plain from the passage when read as a whole: '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." (House v The King at 505).'"
32. That reasoning is applicable here.
33. It follows from what we have said that the Second Decision must be set aside, a conclusion that the respondent frankly and properly conceded was probably correct.
34. It also follows from what we have said above that, re-exercising the Tribunal's discretion in the set aside proceedings as we are empowered to do under s 81 of the Civil and Administrative Tribunal Act 2013 (NSW), we will order that the First Decision be set aside, and the proceedings be remitted to a differently constituted Tribunal for the respondent's claim for termination under ss 87 and 91(1)(b) of the RTA to be determined.
35. Out of abundance of caution, and because the respondent wishes to pursue its claim for termination for breach of cl 15 of the Tenancy Agreement (pursuant to s 87 of the RTA), we grant leave to the respondent to amend its Application to include reference to a breach of cl 15 in the section "Reasons for the Order/s" in the respondent's Application dated 26 June 2020. The Amended Application is to be lodged and served forthwith.

Orders

1. We make the following orders: 1. Appeal allowed. 2. The decision of the Tribunal is set aside, and in lieu thereof we order that the decision of the Tribunal of 10 December 2020 in proceedings SH 20/27732 is set aside. 3. Proceedings SH 20/27732 are remitted for hearing before a differently constituted Tribunal. 4. Leave is granted to the respondent to amend its Application in proceedings SH 20/27732 to include reference to a breach of cl 15 in the section "Reasons for the Order/s". 5. The Amended Application is to be lodged and served forthwith.

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: 26 April 2021