Although this appeal and application for leave to appeal was argued on a number of grounds, it may be disposed of simply and the relevant facts and law may be shortly stated.
On 18 May 2016, Ms Karen Rush, the appellant/tenant, signed a document prepared by a representative of the respondent/landlord, the NSW Land and Housing Corporation, Mr Pablo Marques, following a conversation between the two of them, in a conciliation room at the Tribunal in Queanbeyan.
In this appeal, the tenant alleged she signed the agreement by reason of conduct amounting to undue influence or duress or similar conduct by Mr Marques: see, e.g. Roney v NSW Housing and Land Corporation [2015] NSWCATAP 269. Had it been necessary to make a finding on such questions we would have rejected such allegations, as we preferred Mr Marques' evidence to the tenant's evidence where there was an evidential conflict between them. However, it is not necessary to consider such matters in detail as the tenant has established a different error of law which requires the decision below to be set aside.
The signed document was in the following terms:
The parties consent to the following orders:
1. The tenancy is hereby terminated.
2. Possession of the premises is to be given on 29/06/16.
Notations:
1. The respondent makes no admission to breach of agreement.
2. The applicant will provide assistance through it [sic] Rentstart scheme and provide Rental Bond and 2 weeks advance rent.
3. The respondent will re-apply for public housing after a 6 month period if required.
4. The applicant will assist the respondent in seeking alternative accommodation in the private sector to house the family appropriately including their companion animal.
It will be observed that these orders, consistently with the notation, do not recite any breach of the tenancy. Rather, the orders simply provide for the termination of the tenancy and a date by which possession is to be given. It was expressly noted that the 'respondent makes no admission to breach of agreement'. That distinction is significant, as explained below.
Shortly after signing the document, the proceedings came before a Tribunal Member who made a 'consent decision' purportedly under s 59 of the Civil and Administrative Tribunal Act (NCAT Act).
Section 59 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 manner in which the matter was dealt with by the Tribunal below was unsatisfactory insofar as it did not involve the making of a decision in the terms of, or in terms consistent with, the agreement previously made.
When the matter came before the Tribunal Member below, neither party was legally represented, although Mr Marques is an experienced Tribunal advocate. The Tribunal, noting Ms Rush appeared for herself, said: "We've got consent to what amounts to you leaving the premises on 29 June. Is that right?" Ms Rush said: "That's right."
However the Member below then went on as follows:
Member: "Okay. I've got some typing here to make this happen but just bear with me a second. I'll do that and then I'll read you the order and then you can all go home. Where are we? So termination by consent so the (indistinct) is terminated with the agreement because of, which clause are you putting in here? 17(3) isn't it?"
Mr Marques: "7.2…"
Member: "7.2 is it? Sorry. Tenancy Agreement clauses 7.2 and 7.3, namely causing a nuisance and interfering with peace and comfort of the neighbours."
The Member then had a number of further exchanges with Mr Marques (Ms Rush remaining silent) and then the following occurred:
Member: "… re-apply for public housing after a six month period. That's six months after June. Six months period following her vacating the premises if required. In this, I'm going to put in something of my own here, and you can tell me if you agree, in this event, the applicant, the landlord, will ensure that any such rehousing does not occur in Pound Street. Is that right?"
Ms Rush: "Yes".
Member: "Queanbeyan. Is it Queanbeyan or Kambah?"
Ms Rush: "Queanbeyan".
Member: "Queanbeyan. You say the private sector, you mean the private housing market?"
Mr Marques: "Private housing."
Member: "I think it's better than sector [sic] to house the family appropriately, including their companion animal. Only one?"
Ms Rush: "Yes".
Member: "Alright, there's a lot of typos in there so I'll just have to sort that one out. Okay, so the orders we've got are:
(1) By consent, the residential tenancy agreement is terminated in accordance with section 87 of the Act as the tenant has breached the agreement by breaching clauses 7.2 and 7.3, namely, causing a nuisance and interfering with the peace and comfort of the neighbours.
(2) By consent, the order for the position is suspended until 29 June 2016. That's it.
Notations. The tenant makes no admissions as to the alleged breaches of the agreement.
The landlord will provide assistance through its Rentstart scheme, and provide rental bond and two weeks advance rent.
(3) The tenant may reapply for public housing after a six month period, following her vacating the premises if required. In this, sorry, this is where I have to start doing some fixing. In this event, the landlord will ensure that any such rehousing does not occur in Pound Street, Queanbeyan. That's spelled right. The landlord will assist the tenant in seeking alternative accommodation in the private housing market to house the family appropriately, including their companion animal. All good?"
Ms Rush: "Yes".
Member: "I make that order. That's that. You'll get a copy in the mail at some stage, and thank you for coming…"
It is clear that the Member considered that he was acting under s 87 of the Residential Tenancies Act 2010 (RT Act) which gives power to make a Termination Order for 'Breach of an Agreement' only if satisfied there is, among other matters, a breach of the residential tenancy agreement: s 87(4)(a).
But there can equally be no doubt that the tenant did not concede that there had been any such breach. Thus the notation in the signed agreement 'The respondent makes no admission to breach of agreement', which notation was repeated in the notation to the Tribunal's orders. That notation was consistent with the written agreement made between the parties but it was evidently inconsistent with the first order made, namely:
By consent, the residential tenancy agreement is terminated in accordance with section 87 of the Act as the tenant has breached the agreement by breaching clauses 7.2 and 7.3, namely, causing a nuisance and interfering with the peace and comfort of the neighbours.
The recitation of these two breaches of the RT Act adversely affected the tenant's interests as it amounted to a record that such unsatisfactory behaviour had occurred.
We are not prepared to find that there was a novation of the agreement when the Tribunal Member at the end of some pages of recorded interchanges with Mr Marques then said to Ms Rush 'All good', to which she replied 'yes', because we are not satisfied that Ms Rush did understand the consequences of the change made to the agreement she had earlier signed or that she was necessarily signifying agreement to such a significant change. Further, we consider that in such circumstances, the Tribunal below failed to comply with s 38(5) of the NCAT Act which requires:
(5) The Tribunal is to take such measures as are reasonably practicable:
(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings…
It follows that the Tribunal made a number of errors of law; first, it purportedly acted under s 59 of the NCAT Act which required the making of a decision in the terms of, or in terms consistent with, the agreement previously made, but that did not occur.
Second, the Tribunal below acted under s 87 of the RT Act by being satisfied of breach, whereas the agreement should have been approved under s 81(4)(e) of that Act which provides:
A residential tenancy agreement terminates if any of the following occurs:
…
(e) the tenant gives up possession of the residential premises with the landlord's consent, whether or not that consent is subsequently withdrawn,
It is thus not a situation analogous to that contemplated by the High Court in Brown v West [1990] HCA 7 at [9] whereby 'the validity of the Tribunal's determinations is unaffected by mistaking the source of the power to make them', because here, the Tribunal has asked itself the wrong question/applied the wrong legal test.
It was argued that the 'slip rule' embodied in s 63(1) of the NCAT Act is apt to correct this problem. That provides for amending of 'an obvious error in the text'. No such application was made to the Tribunal below and we are not prepared to exercise that power ourselves, not least because there is an argument that Rule 37 of the Civil and Administrative Tribunal Rules should have been, but was not, considered in this case in relation to at least one of the tenant's daughters, who is a minor. Rule 37 provides:
37 Matters that may be taken into account when exercising settlement powers
(1) When deciding whether to make orders to give effect to a settlement reached by parties to proceedings, the Tribunal is to take into account the interests of any vulnerable person (whether or not a party to the proceedings) if the Tribunal considers that:
(a) the person may be directly affected by the orders because the person is a party to, or the subject of, the proceedings concerned, and
(b) it is appropriate to do so in the circumstances.
(2) Nothing in this rule limits the matters to which the Tribunal may have regard when deciding whether to make orders to give effect to a settlement.
(3) In this rule:
"vulnerable person" means:
(a) a minor, or
(b) a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled.
For those reasons, errors of law have been established and so the orders we make are as follows:
1. The appeal be allowed;
2. The orders of the Tribunal in SH 16/09113 of 18 May 2016 be set aside;
3. The application for termination of the appellant's tenancy be remitted to a differently constituted Tribunal for a new hearing according to law with such additional evidence as the Tribunal may allow.
We finally note that, just as there was apparently an earlier settlement agreement between the parties, we would encourage the parties to enter into discussions to see if the matter may be resolved.
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: 13 October 2016