Roney v NSW Land and Housing Corporation

NCAT Appeal Panel|2015-11-30

Introduction

The appellant, Mr Shaun Ronald Roney, is the tenant of social housing premises in Waterloo. The respondent, NSW Land and Housing Corporation (Housing NSW), is the landlord.
On 28 August 2015 the Consumer and Commercial Division of the Tribunal made consent orders, including orders that Mr Roney's tenancy be terminated on 29 October 2015 and that the order for possession be suspended until 30 October 2015.
Mr Roney appealed this decision on 22 October 2015 and applied for an urgent stay on 2 November 2015. The application for a stay, which was opposed by Housing NSW, was listed for hearing on 6 November 2015. The Appeal Panel granted a stay and listed the appeal for hearing on 30 November 2015.
The appeal was dismissed and the Appeal Panel stayed the operation of the orders until 21 December 2015. Our reasons follow.

Grounds of appeal and issues for determination

The Civil and Administrative Tribunal Act 2013 (NSW) (the Act) provides that a party may appeal to the Appeal Panel against an internally reviewable decision as of right, on any question of law, and with leave of the Appeal Panel on any other ground: see s 80(2)(b) of the Act. A decision made by consent is an "internally reviewable decision" (see ss 4, 5 and 32 of the Act and Loch v NSW Land and Housing Corporation [2014] NSWCATAP 110 at [10]).

Background to the dispute and decision at first instance

Mr Roney entered into a residential tenancy agreement with Housing NSW on 21 June 2013 to occupy the premises at Waterloo. Housing NSW served a notice of termination on Mr Roney dated 23 December 2014 requiring him to give vacant possession on 16 January 2015. The notice was based on alleged breach of cl 13 of the residential tenancy agreement. The particulars provided related to complaints received regarding Mr Roney's alleged threatening behaviour towards other residents. Housing NSW commenced proceedings for termination of the residential tenancy agreement on 29 January 2015. Housing NSW relied on, amongst other documents, a final apprehended personal violence order dated 10 December 2013 against Mr Roney in favour of Mr Terence Mifsud, who was a neighbour and reportedly former friend of Mr Roney, a final apprehended personal violence order dated 1 December 2014 against Mr Roney in favour of Ms Amanda Preston, who was also a neighbour, and a NSW Police COPS data base report from 20 July 2013 to 16 November 2014 which made reference to five incidents involving Mr Roney, including reported break and enter into his property.
The matter was listed for hearing on 6 May 2015. Mr Roney was represented by Marrickville Legal Centre - Inner West Tenants' Advice and Advocacy Service. They served evidence on his behalf, including a statutory declaration from Mr Roney responding to the complaints made about him, letters of support, a psychiatrist report and a report from a counsellor about Mr Roney's health issues and the effect a termination order would have if he could not be relocated and letters of support from other neighbours.
On 6 May 2015 the Tribunal made the following orders: 1. By consent, the Tenant must comply with the terms of residential tenancy agreement by not to cause or permit a nuisance, or interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the Tenant. 2. If these orders are not complied with by the tenant then: at any time before 06-Oct-2015 the landlord may request the re-listing of this application to determine whether the tenancy should be terminated. 3. By consent, the parties agree to the following notations being included with the orders:- (a) The respondent admits that he did breach an APVO granted in favour of Mr Terence Mifsud as a result of an incident which occurred on 21 October 2014 (b) The landlord agrees that it will accept an application from the respondent to transfer him to alternate two bedroom accommodation in the Camperdown area (c) The landlord agrees to use its best endeavours to accommodate the respondent tenant in free standing two bedroom accommodation subject to him establishing medical needs and subject to normal eligibility criteria (d) the landlord requests it be noted that it will not be strictly bound to offer freestanding accommodation if it is not available and the respondent tenant agrees that he will not unreasonably reject any reasonable and appropriate offers of alternative accommodation 4. Having had an opportunity to read and consider the whole of the written evidence filed by the parties in this matter, the Tribunal notes that it would probably be in the best interests of all parties if the tenant could be relocated in alternate accommodation which would meet his needs (including his apparent need to keep his pets if that is medically justified) as soon as practicable.
Housing NSW made an offer of alternative accommodation, which Mr Roney rejected. This was recorded in a letter from Housing NSW to Mr Roney dated 4 June 2015. The letter refers to a second offer that may be made depending on the reasons given by Mr Roney for rejecting the first offer. According to Housing NSW, a second offer was not made because further complaints were made against Mr Roney by neighbours and by letter dated 19 June 2015 Housing NSW sought to relist the proceedings, alleging breach of the orders of 6 May 2015. The matter was listed for hearing on 28 August 2015.
Housing NSW relied on statements from Mr Mifsud, Ms Preston, Ms Kellie Elliott, Mr Roney's next door neighbour, and three friends of Ms Elliott. The statements were to the effect that Mr Roney was verbally abusive and intimidating. According to the statement from Ms Elliott, she and her six year old daughter had been verbally abused and intimidated by Mr Roney. In numerous emails to Housing NSW Ms Elliott stated she was concerned for her health and safety for the health and safety of her daughter. This is in contrast to a letter of support for Mr Roney which was provided by Ms Elliott for the May 2015 proceedings. Ms Preston stated that Mr Roney was "aggressive and confrontational" and she felt frightened for her safety.
On 20 August 2015 the Marrickville Legal Centre - Inner West Tenants' Advice and Advocacy Service wrote to the Tribunal advising they were acting for Mr Roney and that they were instructed to seek an extension of time to comply with the Tribunal timetable. The letter referred to Mr Roney's hospital admission from 31 July to 4 August 2015 and 9 August 2015 and his "painful and debilitating symptoms" since this time. They served copies of the hospital discharge notes and a letter from St Vincents Hospital dated 9 August 2015. There was no request for an adjournment.
Mr Roney's representatives served reports from Dr Stewart Summers and Dr Timothy Barnes, both dated 20 August 2015 and a letter from Alex Durrant, the client services manager at the Bobby Goldsmith Foundation. These letters referred to Mr Roney's medical condition, noted the importance of continued housing and, in the case of Drs Summers and Barnes, noted the stresses facing Mr Roney given the disputes with his neighbours.
The Marrickville Legal Centre - Inner West Tenants' Advice and Advocacy Service prepared detailed submissions for the hearing opposing the orders for termination. Mr Roney's representatives challenged the alleged breach of the residential tenancy agreement, the allegation of breach of the 6 May 2015 orders and submitted that the breaches did not warrant termination in any event. The submissions recommended intervention by Housing NSW through mediation rather than termination of Mr Roney's lease.
According to an affidavit filed by Mr Paul White, the advocate for Housing NSW on the day of the hearing, the matter was listed at 9.15am on 28 August 2015. Mr Roney was represented by Ms Un-Ai Jo from the Marrickville Legal Centre - Inner West Tenants' Advice and Advocacy Service. Mr White stated that there was no request for an adjournment. Mr Roney said he raised this with his representative but agreed no request was made either to the Tribunal or Housing NSW. The parties told the Tribunal they would conciliate in an attempt to resolve the matter and thereafter there was discussion between the parties in a conciliation room. It is common ground that there were offers and counter offers made. Mr White hand wrote terms of settlement which he says were freely agreed by Mr Roney. Mr Roney disputes this latter assertion but nonetheless agreed he signed the terms. He also agreed that the Tribunal read out the agreement and asked Mr Roney whether he understood what he had signed. Mr Roney told the Appeal Panel he probably replied that he did.
The terms of settlement were in similar terms as the orders made by the Tribunal on that day which were as follows: 1. By consent, the Residential Tenancy Agreement is terminated on 29-Oct-2015 and possession is to be given to the landlord on the date of termination. 2. By consent, the order for possession is suspended until 30-Oct-2015. 3. By consent, the tenant is to pay NSW LAND AND HOUSING CORPORATION rent, presently $199.10 per week, next payment due on the 31-Aug-2015, and to pay rent in accordance with the residential tenancy agreement. 4. By consent, the tenant shall pay the landlord a daily occupation fee at the rate of $28.44 per day from the day after the date of termination, namely 30-Oct-2015 until the date vacant possession is given to the landlord. 5. By consent, prior orders made on 6 May 2015 on file number 15/04549 are set aside. 6. Notations by consent: a) The respondent makes no admissions as to any breach. b) The landlord shall provide to the tenant, subject to normal eligibility criteria, four weeks bond assistance to enable the tenant to transition to alternative accommodation. c) The landlord shall also provide the tenant with 2 weeks advance rent in conjunction with the previous notation.

Preliminary issue -application for an adjournment

At the commencement of the appeal, Mr Roney requested an adjournment because he wanted to retain a lawyer to assist him on the appeal. He did not want to seek assistance from the Marrickville Legal Centre, as he had done previously, because he was not happy with the advice that they had provided. He said that he had approached Legal Aid but had not made an application because they told him there would be significant delay. He also said that he had only been served with the written submissions and affidavit evidence provided by Housing NSW on the Friday before the hearing. However, he agreed that he had read the material over the weekend. Mr Roney said he said that he wanted an adjournment until late January 2016 to get legal advice and support letters to defend the claims made against him by Housing NSW.
Housing New South Wales opposed the application for an adjournment. It had served all material in accordance with the timetable and the submissions and evidence filed on Friday was in response to Mr Roney's claim that the consent order should be set aside on the basis that he was unfairly pressured into agreeing to the orders. There was urgency on the matter because Mr Roney had been given a stay of the orders and there was evidence of further breaches by Mr Roney. Complaints received by Housing NSW were of a serious nature and any further delay in the proceedings could exacerbate those issues. Housing NSW had obligations to other social housing tenants and neighbours of Mr Roney.
The Appeal Panel refused Mr Roney's request for an adjournment for the following reasons: 1. Mr Roney's appeal was lodged approximately six weeks out of time. He had not been given an extension of time and this was an issue to be determined at the appeal. Housing NSW opposed the extension of time because of the prejudice it alleged had been occasioned by the delay. It was in the interests of justice between the parties that the case be determined as quickly as possible; 2. When the proceedings were listed for consideration of the stay, the stay was given on the basis that the matter be listed for hearing on an urgent basis. The hearing was listed four weeks from the stay hearing and directions were made about preparation for the hearing. Mr Roney raised no objection at this time; 3. Mr Roney was given ample opportunity to prosecute his claim that the consent orders should be set aside. The grounds on which the consent orders may be set aside was explained to Mr Roney at the call over but he did not provide any material in support of this claim prior to the appeal; 4. The information provided by Housing NSW was provided in accordance with the timetable and was responsive to Mr Roney's oral submissions at the call over about unfair pressure. There was no prejudice to Mr Roney given he had read those submissions and evidence prior to the hearing; 5. The further evidence and support letters that Mr Roney wanted to obtain was not relevant to the issue of whether the consent orders should be set aside but rather to the issue of whether termination orders should be made if the consent orders were set aside and the matter was remitted to the Consumer and Commercial Division for reconsideration; 6. Notwithstanding that Mr Roney had not filed and served any evidence about the grounds on which he sought to set aside the consent orders because of unfair pressure, the Appeal Panel gave Mr Roney the opportunity to give evidence at the appeal hearing on these matters; 7. There was no evidence that Mr Roney would be in a position to retain a lawyer or that he had in fact made an application to Legal Aid; and 8. The issues raised by Housing NSW for the hearing on 28 August 2015, which was material before the Appeal Panel, raised concerns about the continuing occupation of Mr Roney in the subject premises in circumstances where there was considerable and serious acrimony between Mr Roney and his neighbours. As such, there was evidence that further delay may prejudice Housing NSW.

Should Mr Roney be given an extension of time?

The relevant principles to be applied in the exercise of the discretion to extend time were considered by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The matters to be considered include the length of any delay, the reasons for the delay, whether the appellant has a fairly arguable case and the extent of any prejudice suffered by the respondent. It is for the applicant of the extension of time to establish that strict compliance with the rules would constitute an injustice (Gallo v Dawson [1990] HCA 30; (1990) 93 ALR; (1990) 64 ALJR 458). It may be necessary to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice, namely, it may be relevant whether the appellant has a case that has more substantial merit than being fairly arguable: see Jackson at [22(4).
Mr Roney's explanation for his delay was that he did not realise he could appeal because at the time he agreed to the consent orders he was told this was final. He gave evidence that it was not until he spoke to friends that he realised he could appeal. Housing NSW submitted this explanation was not plausible and was unsatisfactory in any event. Mr Roney had appealed only a week before he was due to vacate the premises. Housing NSW was prejudiced by the delay because there were further incidents after 28 August 2015 where Mr Roney was alleged to have abused neighbours. It was submitted that Housing NSW did not take action on those incidents in the light of the consent orders. If Mr Roney had appealed earlier, Housing NSW contends it would have actioned those breaches and served a new termination notice, which would have been well advanced by the time of the appeal.
We accept that Mr Roney's delay was significant and his explanation was not entirely satisfactory yet it was plausible. While we accept that there was prejudice to Housing NSW in that they may have served a further termination notice, this would have led to a lengthy process which would not have been finalised before any appeal was determined. In order to effect justice between the parties, the Appeal Panel gave a stay but an early hearing. If the appeal was upheld and remitted, Housing NSW would be in no worse position by reason of an extension of time being granted. This would also be the case if the appeal was dismissed. On the face of it, Mr Roney's appeal, as expressed at the call over and stay hearing, raised an arguable case and possibly a question of law.
The Appeal Panel therefore determined to give Mr Roney an extension of time to lodge his appeal.

Does Mr Roney's appeal raise a question of law and if so was there error?

Mr Roney has a right of appeal on any question of law. It was not readily apparent from Mr Roney's Notice of Appeal or his written submissions that he was raising an error of law by the Tribunal at first instance.
The Appeal Panel must give effect to the guiding principle when exercising functions under the Act, which is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 36(1)). This is reinforced by s 38(4) which provides that the Tribunal is required to act with "as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."
The Appeal Panel is mindful that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
Mr Roney's Notice of Appeal and written submissions raised dissatisfaction with the orders and with the failure of Housing NSW to offer him 'suitable' alternative accommodation. He also raised allegations of unlawful discrimination against him by his neighbours, in making unjustified complaints against him, and Housing NSW in accepting and acting on those complaints in evicting him.
The first issue was not the subject of the proceedings at first instance. There is a procedure for a social housing tenant to seek alternative accommodation and a mechanism for review. This was not before the Tribunal. The second issue is not a matter that could have been prosecuted in proceedings before the Consumer and Commercial Division, although we accept that the nature of the complaints and Housing NSW's response to those complaints may have been relevant to any factual inquiry of whether there was a breach of the residential tenancy agreement that warranted termination if there had been a contested hearing. However, there was no contested hearing because Mr Roney agreed to consent orders. Accordingly, neither of these grounds raise a relevant question of law.
After clarifying Mr Roney's grounds of appeal at the hearing, the Appeal Panel discerned that Mr Roney wanted to challenge the consent orders made because he was pressured into agreeing to the orders and should have been given the opportunity to defend the case.
Even though these grounds were not particularised in such terms in Mr Roney's Notice of Appeal, Housing NSW was not prejudiced because Mr Roney had previously made this submission in support of his application for a stay. Housing NSW was on notice of the contention and specifically addressed the issue in its submissions and in an affidavit filed in opposition to the appeal. The Appeal Panel therefore proceeded to consider the appeal on these grounds.
Interpreted broadly, these grounds may raise a number of questions of law, namely, whether Mr Roney was denied procedural fairness or whether there was some procedural defect relating to the making of the consent orders in the circumstances of the case, whether the Tribunal miscarried in the exercise of a discretion because it failed to consider a mandatory consideration or whether the Tribunal exceeded authority in making the consent orders in the absence of a jurisdictional fact. These grounds are explained in more detail below and would, if established, be errors of law.
The consent orders were made pursuant to agreed terms of settlement which were signed by the parties. Section 59 of the Act gives the Tribunal authority to make orders to give effect to any agreed settlement reached by the parties. Section 59(1) provides: 59 Powers when proceedings settled (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if: (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal; and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.
The Tribunal's discretion to make consent orders under s 59(1) is therefore enlivened if the preconditions set out in subs(1) are satisfied. In exercising the discretion the Tribunal must take into account the interests of any "vulnerable person", which includes a person who is "totally or partially incapable of representing himself or herself in proceedings because he or she is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled": r 37 of the Civil and Administrative Rules 2014. Failure to take this into account, if Mr Roney was a vulnerable person within the meaning of r 37, would be an error of law (House v The King (1936) 55 CLR 499).
The first issue is whether there was any denial of procedural fairness or procedural defect relating to the making of the consent orders. The second issue, which arises out of the conciliation process, is whether the Tribunal miscarried in the exercise of its discretion by failing to have regard to the matters set out in r 37.
As already noted, there is no evidence Mr Roney or his representative sought an adjournment of the hearing. Mr Roney does not dispute this. Nor is there evidence of any procedural defect or non-compliance with s 59. The terms of the agreed settlement were in writing, signed by or on behalf of the parties and they were lodged with the Tribunal on the day of the hearing. The consent orders made were consistent with the terms of settlement. This is not in dispute. Moreover, the Tribunal has power to make orders terminating a residential tenancy under s 87 of the Residential Tenancies Act 2010 (NSW) (the RTA) where there has been a breach of the residential tenancy agreement. The terms of settlement were read out by the Tribunal Member and Mr Roney was asked whether he understood the terms prior to the Tribunal Member making the consent orders. Mr Roney says he understood the terms of settlement but felt pressured to agree, although he makes no allegation that this was raised with the Tribunal Member at the time the orders were made.
Mr Roney submitted that he was in hospital some weeks prior to the hearing of 28 August 2015 and was still unwell at that time. However, there is no evidence Mr Roney was a "vulnerable person" within the meaning of the r 37 at the time he agreed to the consent orders.
Mr Roney's representatives served a report from a consultant psychiatrist for the 6 May 2015 hearing about the effect on Mr Roney if he was evicted. Relevantly, the psychiatrist opined that there was "no evidence clinically of cognitive impairment on interview". While there were letters of support provided by Mr Roney's treating health professionals prior to the hearing of 28 August 2015 about the stress of living in conflict with his neighbours, these letters did not suggest Mr Roney was cognitively impaired or that he was otherwise unable to participate in the hearing. The hospital notes record that Mr Roney presented to hospital with left sided facial pain and headache on 31 July 2015. He commenced medication for shingles while in hospital and, according to the notes, had "made significant symptomatic improvement". He was discharged home after four days. Mr Roney presented to the Emergency Department on 9 August 2015 with "ongoing facial pain with no worsening (but no improvement)" and "[P]ain in same distribution with no headache". He was given pain medication and advised to re-present if there were any concerns. There is no evidence Mr Roney returned to the hospital for treatment.
In summary, there was no material before the Appeal Panel to suggest there was a denial of procedural fairness or other procedural defect by the Tribunal in making the consent orders. Nor are we persuaded that the Tribunal improperly failed to take into account the matters set out in r 37. The Tribunal at first instance had material before it to establish the grounds for termination, the terms of settlement were signed by the parties and Mr Roney acknowledged that he understood the terms. There was no evidence that Mr Roney was cognitively impaired or disabled to such an extent that he was unable to represent himself in the proceedings. In any event, he was represented by the Marrickville Legal Centre - Inner West Tenants' Advice and Advocacy Service and, on the face of it, the terms evidenced compromise between the parties. Accordingly, there was no error of law on the basis of these matters.
A further issue is whether there was an error of law by the Tribunal in proceeding to make the orders by consent on the mistaken belief that the settlement was "agreed" untainted by undue influence or by other conduct or circumstances that may vitiate the consent (see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 and the discussion on the differences between courts and administrative tribunals in committing jurisdictional error in SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389 at [41] to [50]). Arguably the issue of whether there was an "agreed settlement" is a jurisdictional fact on which the discretion under s 59(1) is necessarily based and in making the orders, the Tribunal was by implication, making a finding which may have been erroneous or mistaken, depending on whether the underlying agreement could be properly challenged.
In many jurisdictions there are specific provisions for the decision-maker, at first instance, to set aside consent orders where there has been mistake or, for instance, allegations of misrepresentation, undue influence or unconscionability (see, for instance, rule 36.15 of the Uniform Civil Procedure Rules 2005 (NSW)). It is not clear whether there is such a mechanism under the Act, although s 53(3) and (4) of the Act may provide such authority.
A party who seeks to set aside an agreement (or consent orders) must provide evidence of the facts which support that ground (see Loch v NSW Land and Housing Corporation at [29]). Examining these grounds is not easily undertaken in an appellant jurisdiction, which primarily focusses on questions of law rather than fact finding. However, given the issue was raised, the Appeal Panel examined the issue by reference to the material provided at first instance, the evidence provided by Housing NSW about the settlement and the oral evidence of Mr Roney at the appeal.
The grounds for setting aside consent orders are the same as those for setting aside the agreement on which it is based (see Loch v NSW Land and Housing Corporation at [27] and Hobson v NSW Land and Housing Corporation [2015] NSWCATAP 222 at [11]).
In Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235, the High Court stated at 243-4: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.
This will include allegations of unconscionable conduct by the party who stands to receive the benefit of the agreement (see Hobson v NSW Land and Housing Corporation at [11] to [14]).
Mr Roney's oral submissions appear to raise the issue of whether his consent was vitiated by undue influence or unconscionable conduct by Housing NSW.
Certain special relationships of trust and confidence (ie parent and child, solicitor and client) give rise to a presumption of undue influence, although these categories are not closed and it is possible to prove that a special relationship of dependency exists as a matter of fact (Johnson v Buttress (1936) 56 CLR 113). Even if there is a special relationship of dependency the presumption of undue influence may be rebutted where there independent legal advice is obtained before the transaction is entered into (see for example A v V & Anor [2012] NSWSC 354 at pp475-482). If there is no such relationship, the party challenging the transaction bears the burden of establishing it was made under undue influence.
In Hobson at [12] to [14], the Appeal Panel referred to Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362 and Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447, being cases where the High Court commented on the circumstances in which a court may set aside a contract or other dealings where there has been unconscionable conduct. The High Court considered the nature and scope of unconscionable conduct more recently in the Australian Competition and Consumer Commission v CG Berbatis Holdings [2003] HCA 18; 214 CLR 51 and Kakaras v Crown Melbourne Ltd [2013] HCA 25. In summary, the key principles in relation to unconscionable conduct are as follows: 1. An agreement may be set aside where a party makes "unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage" (Amadio at p461); 2. Special disability may include infirmity of body or mind and "lack of assistance or explanation where assistance explanation is necessary" (Blomley at p405); 3. A person is not in a position of relevant disadvantage simply because of unequal bargaining power. It is the inability of the party to judge his or her best interests that is the essence of the weakness (CG Berbatis Holdings at [12]); 4. Knowledge or wilful ignorance of the special disability is an element of unconscionability but inadvertence or indifference falls short. There is no concept of constructive notice (Kakaras at [161]).
Mr Roney provided medical evidence about his health issues and made submissions about the circumstances leading to the consent orders but did not file any evidence about those circumstances. Relevantly, he did not file or serve any statement setting out the facts on which he relied to support his allegations of unfair pressure. At the request of the Appeal Panel, Mr Roney gave evidence about those matters and was cross examined by Counsel for Housing NSW.
Mr Roney said he felt pressured because his representative told him that the Tribunal member had "already made up his mind" and that he was unlikely to succeed. Mr Roney said that he also felt pressured by the offer made by Mr White. While he did not want to accept the offer he was concerned that if he was to lose the case he would be out on the streets. He felt he had no choice, even though he wanted to fight the case and ask for more time to obtain letters of support.
Under cross-examination, Mr Roney agreed that there were discussions "back and forward" between the parties with Housing NSW initially offering to suspend possession to one month but later agreeing to delay possession for two months. He said that he told Mr White he was still feeling unwell and had come to the hearing because he had to be there but agreed that he did not raise the issue of an adjournment with Mr White or with the Tribunal. Mr Roney also agreed that he understood that any views expressed by Ms Un-Ai Jo were her own views and he had the opportunity to discuss his options independently with his supporters who accompanied him to the hearing, being Mr Hesni Loubie, who was described as his carer, and another friend. Mr Roney also accepted that Housing NSW had agreed to pay his rental bond and two weeks rents to give him assistance in obtaining alternative accommodation. Mr Roney said he did not originally appeal because Ms Un-Ai Jo had told him the order was final. He said that he understood signing the consent orders was a serious matter.
Assuming the appeal raises a question of law, the Appeal Panel is not satisfied that the terms of settlement on which the consent orders were based are vitiated by undue influence or unconscionable conduct for the following reasons: 1. Mr Roney was represented in the proceedings and at the conciliation by a tenancy advocacy service that prepared detailed submissions and evidence in opposition to the proceedings. The representative gave Mr Roney advice about his prospects which he was free to accept or reject; 2. Mr Roney had two friends supporting him during the conciliation who he could have consulted for advice; 3. While Mr Roney was still recovering from shingles, there was no evidence he was impaired so that he did not know what he was doing. Mr Roney understood the terms of settlement, there was a negotiation process and he was told by his representative that the orders were final. Mr Roney knew this was a serious matter; 4. Mr Roney was understandably upset about the proceedings and the prospect that he may lose but he had the choice to defend the proceedings. Statements and submissions had been filed on his behalf. It is unclear what further evidence could have been obtained by Mr Roney if he had sought to adjourn the matter. Mr Roney disputed the contents of the statements of Mr Mifsud, Ms Preston, Ms Elliott and her friends and given these statements related to his actions or the actions of Mr Loubie, both could have given evidence refuting these claims at the hearing; 5. There is no evidence that Housing New South Wales threatened Mr Roney. Mr White said he was instructed to pursue termination given the breach of the previous orders but would agree to suspend possession for four weeks. Mr Roney's representative made a counter offer of two months. There were discussions about rent assistance and alternative accommodation. Mr Roney's evidence is that he felt pressured by reason of the proceedings and the offer made by Mr White. He makes no other allegations against Mr White or any other representative of Housing NSW; and 6. Alternative accommodation was an important issue for Mr Roney, having regard to the increasing conflict with his neighbours and the stress this was said to cause him, as evidenced from the letters of his treating doctors. The terms of settlement reflected this in the notations.
Accordingly, we are not persuaded that there was any error of law made by the Tribunal in making the consent orders on these grounds.

Should Mr Roney be given leave to appeal?

If the appeal does not raise a question of law, Mr Roney would need leave to appeal.
In the case of a decision made by the Consumer and Commercial Division, the Appeal Panel may only give leave to appeal if it is satisfied that the appellant may have suffered a "substantial miscarriage of justice" because the decision was not fair and equitable, against the weight of evidence or because significant new evidence had arisen, which was not reasonably available at the hearing (cl 12, Schedule 6 of the Act).
Mr Roney contended that the consent orders were not fair and equitable because he felt pressured by his lawyers and Housing NSW in accepting them. He contended they should be set aside and he should be allowed to defend the accusations made against him.
These contentions were in the same terms as those outlined above. If leave to appeal was required, it is refused. Having already examined this issue, the Appeal Panel was not persuaded that there may have been a substantial miscarriage of justice.

Conclusion

Having regard to the foregoing matters, the Appeal Panel: 1. Gave Mr Roney an extension of time to lodge his appeal; and 2. Dismissed the appeal.
In dismissing the appeal, the Appeal Panel was mindful that if the stay was lifted the orders for possession would operate immediately. The Appeal Panel sought submissions from the parties about the further orders that should be made in this regard. Mr Roney requested a delay of possession until at least late January 2016. Housing NSW requested a delay of two weeks on the basis that it would be more difficult for Mr Roney to obtain alternative accommodation over the Christmas and New Year period. Housing NSW also raised concerns about the apparently increasing conflict between Mr Roney and his neighbours.
The Appeal Panel accepted that it may be difficult for Mr Roney to obtain alternative accommodation before Christmas period but also accepted that this may be more difficult after Christmas and into the New Year. The Tribunal was equally concerned about the increasing acrimony between Mr Roney and his neighbours, which is likely to be exacerbated by the outcome of this appeal. It is also relevant to note that under the original consent orders Mr Roney was required to vacate on 30 October 2015 but has been in possession since this time.
Counsel for Housing NSW advised the Appeal Panel that a second offer of alternative accommodation was not made to Mr Roney pending the proceedings. Given that the appeal has been determined, there is no reason why this matter cannot be considered by Housing NSW as a matter of urgency. From the material available to the Appeal Panel, it is apparent that there has been increasing tension between Mr Roney and his neighbours since May 2015. Relevantly, there was evidence that Ms Preston and Ms Elliott were previously well disposed to Mr Roney but for some reason their relationships soured to such an extent that Ms Preston felt compelled to obtain an apprehended violence order against Mr Roney. The statement provided by Ms Elliott and her friends raises serious concerns and, while her statement is untested, it is corroborated by the statements from two of her friends. Mr Roney's treating doctors have also supported alternative accommodation for Mr Roney on the basis of the stress that the acrimony is apparently causing him.
This is a balancing exercise but having regard to these matters, the Appeal Panel decided to suspend the order for possession for three weeks with the recommendation that Housing NSW assist Mr Roney to find alternative accommodation.

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

Amendments 14 December 2015 - Paragraph 24 - typing error corrected. 16 December 2015 - Coversheet - party renamed to read "NSW Land and Housing Corporation". 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: 16 December 2015

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (23)

Cited By (10)