Roydon Cooke v NSW Land and Housing Corporation

REASONS FOR DECISION

1. This is an appeal from a decision made below (G Sarginson, General Member) on 8 December 2014. The orders made and the reasons provided were as follows: On 08-Dec-2014 the following orders were made: 1. The Residential Tenancy Agreement is terminated in accordance with: ·s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. ·failure to pay rent in accordance with agreement. Reasons The amount of arrears is very large (the tenant being 138 days in arrears of rent) and there were previous orders of the Tribunal dated 23-Jan-2014 that the tenant pay arrears by installments, which have not been complied with. No adequate explanation has been give for the arrears of rent. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 21-Jan-2015 Reasons The tenant gave candid evidence that he realises that he should not have let the rent arrears get out of control. However, the tenant has been a tenant for 4 years; has 2 young children; and has recently obtained permanent casual employment at Harvey Norman in Campbelltown, with the employer telling him it will increase his days of employment. The tenant says he will direct his employer to pay monies to the landlord by way of direct debit. 4. The tenant shall pay the landlord a daily occupation fee at the rate of $24.94 per day from the day after the date of termination, namely 09-Dec-2014 until the date vacant possession is given to the landlord. 5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 6. The tenant, ROYDON COOKE, XXX MACQUARIE FIELDS NSW 2564 Australia, is to pay the landlord, NSW LAND AND HOUSING CORPORATION - XXX MACQUARIE FIELDS NSW 2564 Australia, the sum of $3,446.40 on or before 21-Jan-2015. Reasons : ·Rent arrears 23-Jul-2014 to 08-Dec-2014 $3,446.40 NOTE: If the other party does not comply with the order to pay money, a certified copy of the above money order may be obtained from the Tribunal for the purpose of enforcement action through the Local Court. 7. Money orders of the Tribunal dated 23-Jan-2014 are set aside. 8. Termination, possession and money orders of the Tribunal dated 21-Aug-2014 are set aside. 9. The Tribunal notes the applicant withdraws the application for an order under Section 89(5) of the Residential Tenancies Act 2010 and accordingly no order is made under that provision.
2. The case concerned a residential tenancy within the Residential Tenancies Act (the Act) which was the subject of a Notice of Termination allegedly served as long ago as November 2013. In the period between then and December 2014, while the appellant remained in possession and somewhat sporadically paid rent, proceedings for an order terminating the tenancy were commenced in the Tribunal below and were before it on a number of occasions including 21 August 2014 when orders were made by the Tribunal as follows: On 21-Aug-2014 the following orders were made: 1. The Tribunal is satisfied that service of notice of the hearing has been duty served on the respondent and the Tribunal considers justice requires the matter be dealt with in the absence of the party. 2. The Residential Tenancy Agreement is terminated in accordance with: ·s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. ·failure to pay rent in accordance with agreement. 3. The Tribunal is satisfied in accordance with s 89(5) the tenant has frequently failed to pay rent owing for the residential premises. 4. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 5. The order for possession is suspended until 21-Sep-2014 6. The tenant shall pay the landlord a daily occupation fee at the rate of $27.07 per day from the day after the date of termination, namely 22-Aug-2014 until the date vacant possession is given to the landlord. 7. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 8. The landlord's agent is to advise the tenant in writing by the delivery of a letter to the premises by 6:00 pm on 21-Aug-2014 of the orders made today. 9. The tenant ROYDON COOKE, XXXX MACQUARIE FIELDS NSW 2564 Australia is to pay the landlord, NSW LAND AND HOUSING CORPORATION - XXXX MACQUARIE FIELDS NSW 2564 Australia the sum of $2,716.54 for rent owed under the terms of the residential tenancy agreement for the period from 14-May-2014 to 21-Aug-2014. The payment for rent owed is due immediately. 10. The tenant, ROYDON COOKE, XXXX MACQUARIE FIELDS NSW 2564 Australia is to pay the landlord, NSW LAND AND HOUSING CORPORATION - XXXX MACQUARIE FIELDS NSW 2564 Australia the sum of $68.76 for water usage owed under the terms of the residential tenancy agreement for the period from 17-Jul-2014 to 21-Aug-2014.
3. Subsequently the respondent consented to the orders of 21 August 2014 being set aside and the matter was brought to hearing on 8 December last year concluding as set forth above.
4. As the respondent was a social housing provider within s136 of the Act the tenancy agreement between it and the appellant constituted a social housing tenancy agreement for the purposes of the Act.
5. Sections 87, 88, 89 and 152 of the Act are relevant to the termination of a residential tenancy agreement which is also a social housing tenancy agreement for non payment of rent as was the case here: 87 Breach of agreement (1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach. Note. Section 152 sets out additional matters to be considered if the residential tenancy agreement is a social housing tenancy agreement. 88 Termination notices for non-payment of rent (1) A termination notice given by a landlord on the ground of a breach of the residential tenancy agreement solely arising from failure to pay rent (a non-payment termination notice) has no effect unless the rent has remained unpaid in breach of the agreement for not less than 14 days before the notice is given. (2) A non-payment termination notice is not ineffective merely because of any failure of the landlord or the landlord's agent to make a prior formal demand for payment of the rent. (3) A non-payment termination notice must inform the tenant that the tenant is not required to vacate the residential premises if the tenant pays all the rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord, unless the Tribunal makes a termination order on the basis that the tenant has frequently failed to pay rent on time. (4) Despite any other provision of this Part, a landlord may apply to the Tribunal for a termination order before the termination date specified in a non-payment termination notice. The Tribunal must not consider any such application until after the termination date. 89 Repayment of rent owing following issue of non-payment termination notice (1) This section applies if a landlord gives a tenant a non-payment termination notice. (2) The Tribunal must not make a termination order on the ground set out in the notice if the tenant pays all the rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord. (3) A termination of the residential tenancy agreement solely on the ground of non-payment of rent, and any warrant for possession issued as a result of any order for possession, cease to have effect if the tenant pays all the rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord and the tenant has not vacated the residential premises. (4) If a tenant repays all the rent owing or enters into, and fully complies with, a repayment plan agreed with the landlord, the landlord must notify: (a) the Tribunal, if the landlord has applied to the Tribunal for a termination order on the ground of non-payment of rent and the application has not been finally dealt with, or (b) the Sheriff, if a termination order has been made and a warrant for possession of the residential premises has been issued but has not been enforced by the Sheriff. Maximum penalty: 20 penalty units. (5) The Tribunal may, on application by a landlord, make a termination order despite subsection (2) or (3) if it is satisfied that the tenant has frequently failed to pay rent owing for the residential premises on or before the day set out in the residential tenancy agreement. (6) If the Tribunal makes a termination order as referred to in subsection (5), a warrant for possession may be issued as a result of that order, even if the tenant has paid all rent owing or complied with a repayment plan. 152 Termination by Tribunal of social housing tenancy agreements for breach (1) In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant: (a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement. (2) This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act.
6. The appellant, who throughout represented himself, in his Notice of Appeal stated the grounds of appeal as follows: "Rent arrears were not correct an issue of incorrect subsidy was not taken into account from 15/12/13 28/1/14. Dept of Housing are never prepared to negotiate a fair deal I am a low income earner and I have 2 children and my wife is pregnant the landlord has ignored my request to transfer my Housing to aboriginal Housing"
7. Obviously the above grounds do not identify a question of law nor with the possible exception of ground 1 do they identify a relevant factual issue. However, when the appeal was called on for hearing the Appeal Panel raised of its own volition the question whether the Tribunal below erred in law by failing to make necessary findings and provide adequate reasons. As this point took the respondent by surprise we granted an adjournment and the matter was argued at a hearing on 26 March 2015.
8. Of course by raising the absence of sufficient reasons as a question of law we were not expressing a concluded view. The matter was adjourned for the express purpose of enabling the respondent to make submissions upon the question which it duly did through counsel. In our opinion the course we took was entirely consistent with what was said by the Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at para 12.
9. There can be no doubt that apart from the statutory obligations created by s62 of the Civil and Administrative Tribunal Act there is a common law duty cast upon the Tribunal to give reasons for its decisions (Collins v Urban [2014] NSWCATAP 17). The content of that obligation will vary according to the nature of the case and the circumstances.
10. In Collins which was also a residential tenancy claim for possession the tenants did not appear and the case was heard exparte. The learned member who constituted the Tribunal was handed a form headed "Hearing Notes" by the landlords agent and on a section of the form marked "Tribunal use only" circled various options thereby in effect indicating findings on various issues before him. This procedure was approved by the Appeal Panel: 58 In the Consumer and Commercial Division, and particularly in relation to uncontested residential tenancy matters, detailed reasons for decision are often not given, unless a s 62(2) request is made. This is, at least in part, a consequence of the volume of applications and the time available. It is not unusual for the Tribunal to be required to deal with 45,000 to 50,000 residential tenancy applications in a year. For example, in the period from 1 July 2012 to 30 June 2013, 49,396 residential tenancy applications were lodged in the Consumer, Trader and Tenancy Tribunal, the predecessor of the Consumer and Commercial Division of the Tribunal. In most cases, these applications are listed for conciliation and hearing within 21 to 28 days of lodgment. Most are disposed of at this first hearing in a group list of matters in which each application is allocated between 7 and 20 minutes of hearing time (depending on the nature of the application). This time allocation has been found to be workable because most applications are not contested. 59 To require the Tribunal in uncontested residential tenancy matters, absent a request under s 62(2), to give detailed reasons setting out specific findings of fact and the evidence supporting those findings, the applicable law and the reasoning processes leading to the conclusions reached by the Tribunal would involve time, effort and expense that could often be disproportionate to the nature and extent of the subject matter of a claim for termination of a tenancy for non-payment of rent or a similar claim arising under the RT Act. It would be likely to have the consequence that fewer residential tenancy matters could be listed for hearing on any one day and hearings would therefore be delayed unless funds were available to the Tribunal to pay more Members to sit and additional hearing rooms could be found and paid for. The most likely outcome would be generalised delay in resolution of residential tenancy matters. Furthermore and in any event, the average cost to the Tribunal of conducting residential tenancy hearings would be increased for the Tribunal, if not for the parties. In a significant number of residential tenancy proceedings the outstanding rent or other amount in issue might be anticipated to be less than the cost to the Tribunal of conducting the proceedings. 60 The obligation of the Tribunal is to resolve proceedings in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings as required by s 36(4) of the Act. 61 The Tribunal is also required to facilitate the resolution of the real issue between residential landlords and tenants justly, quickly and cheaply, under s 36(1) and (2)(a) of the Act. Landlords' and tenants' disputes concerning residential tenancies in many cases require resolution within weeks rather than months or years as might occur in other judicial bodies in relation to other types of matters. 62 In these circumstances and taking into account the nature of the jurisdiction being exercised, the particular subject matter of the decision in many residential tenancy disputes and the fact that giving detailed reasons is not cost free, the Appeal Panel concludes that in uncontested residential tenancy matters involving relatively small amounts of unpaid rent or other similarly small claims, while Members are required to prepare or record reasons for their decision that duty may be discharged by utilising a suitably drafted form to record (whether by written statements, circling options or ticking responses or a combination of methods): (1)the appearances for the parties; (2)the evidence given by the witness or witnesses and the resolution of any conflicts in the evidence; (3)the relevant details of the residential tenancy agreement, notice of termination and other documents provided to the Tribunal; (4)the elements of any relevant cause of action and whether the Member is satisfied that each element has been made out; (5)the elements of any relevant defence raised and whether the Members is satisfied that it has or has not been made out; and (6)any other relevant matter which would be necessary to allow the Appeal Panel to hear and determine any appeal on a question of law or, if leave were granted, on other grounds. 63 Such an approach is consistent with the position articulated by Sir Frederick Jordan in Carlson v King, taking into account in an appropriate manner the nature of uncontested residential tenancy proceedings, the requirements of ss 36 and 38 of the Act and the matters raised by Basten JA in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46] and [48]. 64 The views expressed in the previous paragraphs should not be taken as precluding or discouraging the giving of oral reasons in uncontested tenancy matters at the time orders are made. This is the preferable course if time and circumstances permit. Moreover, if a request for a written statement of reasons for a decision is made under s 62(2) of the Act, it goes without saying that the Member is required to provide such a statement complying with s 62(3) within the 28 day period specified by the statute.
11. However this was not an uncontested case as Mr Cooke appeared in person (albeit somewhat belatedly). Moreover we do not have before us the Hearing Notes (which according to the transcript occupy some 12 pages) which were handed to the Tribunal and do not know what if any notations the Tribunal Member made upon them. In respect of the Hearing Notes the only relevant reference in the transcript is: "THE MEMBER: Thank you. The Tribunal notes the hearing notes that have been handed up to the Tribunal and the documents containing those hearing notes, including a copy of the front page of the residential tenancy agreement dated 29 July 2009; copy of the notice to terminate for non payment of rent dated 26 November 2013; copy of the tenancy ledger for rent for the period between 7 October 2013 and 8 December 2014".
12. In our opinion in the circumstances of this case the common law required the Tribunal to do more in the matter of providing reasons than it did even if it had circled options on the Hearing Notes. In the ordinary course the law would have obliged the Tribunal to make findings in accordance with s87 (4) and to consider the matters referred to in ss87(5) and (6). The Tribunal should also have made findings as required by s152.
13. This case was unusual because of the lengthy period which elapsed between service of the non payment termination notice and the date of hearing. It seems that during that period the arrears of rent which were the subject of the notice were almost certainly paid. This may have enlivened s89(2) of the Act.
14. In our opinion this case is distinguishable from Collins v Urban on the facts. We are of the opinion that the Tribunal below failed to give reasons and make findings which the law in the circumstances of this case required of it. This constituted an error of law in respect of which leave was not required.
15. For the foregoing reasons the appeal must be allowed. The respondent is entitled to a rehearing and we will so order. Whether it requires a rehearing based on the notice of determination served in 2013 is of course a matter for it.

Orders 1. Appeal allowed 2. Orders made below quashed 3. Order that the whole of the case be reconsidered by the Tribunal with or without further evidence as it may determine 4. No order as to costs 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: 02 July 2015