Sinha v NSW Land and Housing Corporation

Background and the Tribunal proceedings

1. The appellant (the Tenant) has occupied the unit in Mount Druitt, Western Sydney the subject of the tenancy agreement since 20 December 2010.
2. It was uncontroversial that a social housing residential tenancy agreement existed between the parties. No copy of a written tenancy agreement was provided to the primary member or to the Appeal Panel, but there was no issue that the parties had made such an agreement with a start date of 20 December 2010. By a s 142 notice under the RT Act dated 19 December 2022 the tenancy was extended to a further fixed term ending on 19 December 2027.
3. The landlord issued a Notice of Termination dated 17 August 2023 to the tenant claiming a breach of Clause 14 of the tenancy agreement. This is noted in the Notice of Termination as being the obligation of the tenant to keep the residential premises reasonably clean (the Notice of Termination).
4. The particulars of the breaches set out in the Notice of Termination were the following: 1. A Property Care Warning letter issued on 6 July 2023 to bring the residential property, common area and grounds to a neat and tidy condition by 21 July 2023; 2. A Property Care Warning letter dated 6 July 2023 in relation to the clean- up of the inside of the tenant's property, remove all items or store neatly and appropriately, clear doorways and walkways free of items to prevent a fire hazard, clean and remove all items from the balcony to prevent a fire hazard, dispose of all rubbish in the correct bins and remove all items in the basement car park common areas that belong to the tenant; 3. A Warning Letter for Property Care dated 12 May 2023 relating to cleaning common areas and the tenant's property of all excess items; 4. A Letter of Concern dated 31 March 2023 regarding other issues;
5. The Notice of Termination sought vacant possession by 10 September 2023.
6. Ms Fryer, who appeared for the respondent on the appeal, said that the residential premises under the tenancy agreement included a car park. However, although the Tenant gave some vague evidence at the hearing about having a car in the basement car park, in view of the absence of the tenancy agreement there was insufficient evidence to establish that a car park was included as part of the residential premises.
7. In the absence of an agreement for an expanded definition of "residential premises", which was not established, Clause 14 did not extend to any areas outside the Tenant's unit.
8. On 22 September 2023 the Landlord filed an application in the Tribunal SH 23/43184 (the Original Proceedings) pursuant to section 87 of the RT Act for an order terminating the tenancy agreement on the grounds that the Tenant had failed to keep the residential premises clean and relying on the Notice of Termination.
9. The Original Proceedings were first listed on 10 October 2023, at which time the Landlord attended but the Tenant did not. On this occasion, the Tribunal made a number of orders, including two separate work orders-one concerning clearing items from a number of car parking spaces in the basement (Order 1) and the other concerning the cleanup of areas inside the unit (Order 2).
10. Order 1 contrasted with Order 2 in two respects. First, it was made pursuant to provisions in s 51 of the RT Act concerning causing a nuisance and the obligation not to interfere with the peace and comfort of any neighbour. Secondly, another order was made authorising the Landlord to remove and dispose of all property that the Tenant failed to remove under Order 1 (Order 1A).
11. Order 2 was made pursuant to s 51 (2) (a) of the RTA Act and stated: …. [the Tenant] is to carry out the following work on a before 30-Nov-2023 in a proper, safe and workmanlike manner: Details of cleanup and safety issues for [the unit] to be undertaken: * the tenant is to ensure there are clear walkways from the front door to the lounge area, kitchen area, laundry, balcony, main bedroom and main bathroom * the tenant is to ensure there are no items left in front or beside the stove/oven in the kitchen * the tenant is to ensure there are no items stored in the shower recess or bath tub in the main bathroom, in the laundry, or on the balcony (other than reasonable balcony furniture) * The tenant is to ensure there are no items stored on or immediately around the sides and foot of the bed in the master bedroom
12. Under Order 2A it was ordered that if the Tenant failed to comply with Order 2 not later than 30 November 2023, the Landlord could to seek to relist the matter for consideration of termination of the residential tenancy agreement for breach of Section 51 (2) (a) not later than 15 December 2023.
13. No detailed reasons for making these orders, including findings of fact, were provided. The Tribunal simply stated that it was "satisfied it was in the interests of justice to make these orders in the absence of the tenant because of the tenant's and his neighbours' safety and quiet enjoyment rights".
14. The Tribunal also noted that it accepted evidence on affirmation from the Landlord's managing agent that the tenant had been provided with a copy of the application and all evidence including photographs produced at the hearing.
15. On the appeal, the respondent provided a bundle which included the documents said to have been relied upon at the hearing on 10 October 2023. These included photographs taken on 16 and 23 May 2023, 16 June 2023 and 8 August 2023. The photographs taken on 16 June 2023 and 8 August 2023 were of places outside the unit.
16. At the hearing of the appeal, it was uncontroversial that prior to the hearing on 10 October 2023 there had been no directions made by the Tribunal for the parties to provide their evidence and submissions in the case.
17. No steps were taken by the Tenant to challenge the 10 October 2023 orders.
18. On 15 December 2023, Ms Le Cornu from the Department of Communities and Justice Housing Services, acting on behalf of the Landlord, requested the Tribunal to re-list the proceedings on the basis that the Tenant had not complied with the 10 October 2023 orders.
19. The re-listed proceedings (Case number 2023/00374552) first came before the Tribunal on 11 January 2024 on which occasion the proceedings were adjourned to a date to be confirmed by the Registrar.
20. These proceedings next came before the Tribunal on 6 February 2024 when they were again adjourned to a date to be confirmed by the Registrar. The order made contained brief reasons for decision as follows: The tenant has cleaned some of the areas. The landlord is seeking to access the property to ascertain whether the tenant has complied with the balance of the Tribunal orders of 10 October 2023.
21. On 15 February 2024, the Landlord obtained access to the unit and took some photographs of places inside the unit. As appears below, there was also a Client Service Visit Checklist prepared in respect of this visit.

The hearing on 5 March 2024

1. The proceedings next came before the Tribunal on 5 March 2024 for hearing and conciliation in a group list. There was a short hearing before the same Member as the proceedings came before on 6 February 2024 (13.47 minutes before the delivery of oral reasons). The appellant appeared and was unrepresented. Ms Le Cornu appeared for the respondent.
2. Prior to the hearing on 5 March 2024 there had still not been any directions for the parties to provide each other with their evidentiary material and written submissions - a step which is commonly ordered at a group list hearing in a contested matter.
3. Apart from the evidentiary material served by the respondent prior to the hearing on 10 October 2023, no other evidentiary material or written submissions had been provided by either party before 5 March 2024.
4. The hearing on 5 March 2024 proceeded as a contested matter.
5. The respondent's appeal bundle lodged before the hearing of the appeal included what was said to be the documents it relied upon at the hearing on 5 March 2024. These consisted of 115 pages, principally, comprising the documents it had provided for the hearing on 10 October 2023 (105 pages) which had, apparently, been provided to the appellant before the hearing on 10 October 2023.
6. These 115 pages did not include any photographs taken since 8 August 2023 or any Client Service Visit Checklist since May 2023, nor did it include any evidentiary material concerning the current state of the residential premises and the extent to which the 10 October 2023 orders had or had not been complied with.
7. When this was drawn to Ms Fryer's attention at the hearing of the appeal, including by reference to the transcript of the hearing on 5 March 2024, which contained reference to photographs of the inside of the unit presented to the Tribunal taken on 15 February 2024, Ms Fryer obtained instructions that additional documents not contained in the appeal bundle were presented to the Tribunal on 5 March 2024, including 18 photographs taken on 15 February 2024, along with an accompanying Client Service Visit Checklist referring to these photographs. As to this, we note that on page 14 of the transcript of the hearing provided by the appellant Ms Le Cornu refers the Tribunal to photographs of the inside of the unit behind a Tab marked 15 February.
8. These additional documents were provided to Ms Crowley-Shaw during the hearing of the appeal and sent to the Registry after we concluded the hearing.
9. The additional documents were: 1. A s142 Notice sent to the Tenant dated 19 December 2022 extending the fixed term of the tenancy (referred to above). 2. A rent account and water usage account report for the residential premises (2 pages). 3. 17 photographs taken on 12 December 2023, most of which were of areas inside the unit. 4. 1 photograph of the basement car parking area. 5. 3 photographs taken on 1 February 2024 of areas outside the unit. 6. A Client Service Visit Checklist (16 pages) completed by Ms Dunlop on 15 February 2024 containing 18 photographs, 14 of which are of areas inside the unit. 7. 8 photographs taken on 27 February 2024, all of areas outside the unit.
10. The Client Service Visit Checklist contained answers to 34 questions about the visit on 15 February 2024. To question 26 "Are there any property care issues?" the answer was "Yes" with the issues identified as "Hoarding issues General Poor Property Care", with the "Severity" of "High" and a date to review by of 29 February 2024. These responses were then followed by comments and a listing of the 18 photographs but without any other explanation as to the contents of the photographs apart from the introductory words in the comments: severe hoarding, cans of petrol and paint, multiple gas cans multiple sharp tools such as cutting blades chainsaws and other lawn maintenance equipment. Stuff up to ceiling in the lounge and balcony.
11. Apart from the reference to "Stuff" in the lounge and balcony, it was not explained whether the other materials, including gas cans, were in or outside the unit, nor was this apparent from our review of the photographs.
12. The answer to the question in the checklist (number 34) whether the officer felt safe during the client service visit was "No" with the comment that there was a "large amount of sharp objects and stuff piled to ceiling". On the other hand, the answer to the question whether there were any WHS issues identified during the visit was "No".
13. No witness statement from Ms Dunlop concerning her visit was presented to the primary member. No other witness statements were presented by either party.
14. We were informed by Ms Fryer that her instructions were that the documents which the respondent relied upon at the hearing on 5 March 2024 were "shown to" the appellant on 5 March 2024 at the hearing or, perhaps, just before the hearing. It was not her instructions that a copy of all of these documents was provided to the appellant at this time.
15. Ms Crowley-Shaw, who appeared for the appellant on the appeal, told us that she was not aware of any Client Service Visit Checklist presented to the Tribunal on 5 March 2024, as distinct from photographs. She also indicated that she was not sure what documents from the respondent were before the Tribunal.
16. Each of the parties provided a transcript of the hearing on 5 March 2024 in their papers presented on appeal. Neither party drew our attention to any material differences between these transcripts (the transcript provided by the respondent contained more precise information as to times). Both transcripts revealed that there were some inaudible parts.
17. For present purposes, the more pertinent aspects of the hearing before delivery of oral reasons were: 1. Ms Le Cornu provided the Tribunal with a hard copy of the documents the respondent relied upon. There was no statement by the Tribunal that it was proceeding with a hearing to determine the application or any statement by the Tribunal identifying the documents as the documentary material relied upon by the respondent at such a hearing and providing some description of the documents (in the oral reasons the Tribunal marked the documents as exhibit A1). 2. The Tribunal did not enquire of the appellant whether he had received a copy of the respondent's documents, whether he had had a sufficient opportunity to properly consider them and an opportunity to consider what evidence he may wish to present in response. 3. No person was sworn in to give evidence. 4. After hearing from Le Cornu about the respondent saying, in general terms, that the 10 October 2023 orders had not been complied, the appellant came to be asked questions by the Tribunal as to what he wanted to say about vacating the property, why he had not got rid of all the items, whether he took notice of what the orders said, whether he had looked at the "photographs" and whether he agreed with the "photographs". 5. These questions elicited a number of, apparently, incomplete responses from the appellant, along with some responses from the Tribunal and from Ms Le Cornu. 6. The responses from the appellant included that he kept up to date with his rent, some of the items removed did not belong to him, he had taken notice of the orders, he had looked at the photographs, some part behind the entrance door to the unit was all empty, he had been in and out of hospital, he had been promised some help from "tenant's office" but no one had contacted him and no one came-a matter Ms Le Cornu then disputed. 7. In the course of these exchanges, Ms Le Cornu told the Tribunal there were gas bottles inside the unit, there were several that were buried underneath the stuff, and they were 100% concerned about safety issues. The appellant's responses were to the effect there was only one gas bottle and it was empty. 8. Ms Le Cornu made reference to continuing problems with the common area, "the property" kept accumulating rubbish and it was just inviting squatters to live there. When asked by the Tribunal if she was saying "it" was a health risk, she responded that it was a health and safety hazard. This exchange appeared to be concerned with the situation outside the unit. 9. The Tribunal then asked if there had been complaints from the neighbours, to which Ms Le Cornu said "Yes". The Tribunal did not ask and Ms Le Cornu did not say what those complaints were about. 10. When asked by the Tribunal what his response to that was, the appellant said he kept the place clean and put the bins out and washed the bins. 11. The appellant began a statement in which he said he had no transport. The Tribunal responded that this was what the Landlord had been trying to help him with and suggested he did not want help. Ms Le Cornu again took issue with the suggestion he had not received the help he needed and expected and referred to attempts to assist him. 12. The Tribunal said that it had heard from both parties, this was a group list and there was not a lot of time. It then proceeded to give oral reasons and its decision. 13. There was no specific examination with the parties as to whether any part of the 4 work order items in Order 2 of the 10 October 2023 orders had been carried out. Nor was there any examination with the parties as to how it could be said that the photographs taken on 15 February 2024 showed that the situation inside the unit created a health and safety issue, including whether they showed any gas bottles inside the premises, as to the reasons for the situation inside the unit, as to the detail of the reasons Order 2 had not been complied and as to the effect of termination upon the Tenant.

The Tribunal's decision

1. The Tribunal gave the following oral reasons for decision: I've heard from both parties. As I've said, this is a group list, so there isn't a lot of time. But this is a re-list, on the last occasion I did adjourn the matter in order for the tenant to take some action to remove the items, subject of the orders that were made previously on the 10th of October 2023. Ms Le Cornu on behalf of NSW Land and Housing submits that the tenant has remained in breach of those orders and submits photographs which are before the Tribunal, which I will mark as Exhibit A1, identifying all the items that have been kept there by the tenant. In fact, there are, inside the unit, there is difficulty getting inside because of all the items that are inside of the unit, including some gas cylinders, which the tenant says are empty. However, Ms Le Cornu has not been able to identify if that's the case or not. There have also been some complaints by the neighbours in regards to the matter regarding the, for want of a better word, hoarding, which doesn't seem to have improved. Therefore, I am satisfied in relation to the re-listing, that there was a valid termination notice. I am satisfied the tenant has breached the residential tenancy agreement. There was a previous order of 10 October 2023 that the tenant, in accordance with the documents before me, has not complied with. That there are previous breaches and that the tenant hasn't taken steps to remedy the breach. The previous history of the tenant. I also take into account section 154E of the Residential Tenancies Act because this is a social tenancy claim. Whether I should exercise my discretion to make a termination order, that is I have to consider whether to make a termination order for a social housing tenancy agreement. The Tribunal must have regard to the effect the tenancy has had on neighbouring residents or other person, the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated, the landlord's responsibility to other tenants, the history of the current tenancy and any prior tenancy arising from the social housing agreement with the same or different landlord or whether the tenant, wilfully or otherwise has been in breach of the order by the Tribunal. Sub- section 2 does not limit any matter considered by the Tribunal under this Act. I've considered all those matters and I intend under section 154E to exercise my discretion. Further under section 87, I am satisfied that the breach in these circumstances is sufficient to justify the termination of the tenancy. Therefore, I order the termination of the tenancy.. [The appellant then intervened saying "Excuse me, Sir"] No, please let me finish. I order that the order of possession is to be on a before-the order for possession is suspended to the 26th of March 2024….

Grounds of appeal

1. The grounds of appeal came to be the following: 1. The Tribunal failed to take into account a mandatory relevant consideration being section 87(4)(b), whether the breach was sufficient to justify termination of the tenancy agreement (Ground 1); 2. The Tribunal failed to take into account a mandatory relevant consideration being section 154E of the RT Act (Ground 2); 3. The Tenant was denied procedural fairness by the denial of the opportunity to be heard on relevant matters (Ground 3); 4. The Tribunal erred as there was no evidence to support findings made about the impact of the alleged breach on neighbouring tenants (Ground 4). 5. The Tribunal failed to give adequate reasons for its decision (Ground 5).
2. The grounds referred to in (1) to (4) above were the grounds of appeal set out in the Notice of Appeal. In the appellant's written submissions Ground 5 was advanced as an additional ground of appeal. This was responded to in the respondent's written submissions. At the hearing of the appeal, the respondent consented to this ground of appeal being added to the grounds of appeal and the parties, subsequently, made oral submissions on this issue. Accordingly, we granted leave for this ground of appeal to be pursued in the appeal.
3. As to Ground 3, in his written submissions it was argued that whilst the appellant was given the opportunity to be heard regarding the existence of the breach this did not extend to the opportunity to be heard on whether the breach justified termination of his tenancy. In this regard, the submissions had earlier referred to being denied the opportunity to address the Tribunal about his personal circumstances and the impact the termination of his tenancy would have on him. In addition, it was submitted that from a certain point in the hearing the appellant tried to address the Tribunal on certain matters but was not given the opportunity to do so and also that he had been denied procedural fairness in relation to the issue concerning complaints from neighbours because he had not been informed about this prior to the hearing.
4. At the hearing of the appeal, after some discussion with Ms Fryer, we raised the broader question, beyond the particular matters put forward in the appellant's submissions (although within the terms of relevant ground of appeal), whether the appellant had not been accorded procedural fairness in relation to the whole of his defence of the claim for termination and possession because of the absence of a reasonable opportunity to properly consider and respond to the respondent's case and the evidentiary material relied upon against him. After taking instructions on the point, Ms Fryer indicated the respondent would not oppose the extension of Ground 3 matters in this fashion.

Extension of time for appeal

1. The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. In that case the Appeal Panel said that the time limit should generally be strictly enforced but that was not to say that exceptions should not be made where the interests of justice so require (at [21]). The Appeal Panel added (at [22]): The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate 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 and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. ]
2. Applying these principles, we consider that whilst the length of the delay is significant and there is no satisfactory explanation for the delay (the appellant's written submissions contained only a vague statement that "the Appellant instructs he took immediate action to appeal the decision") the merits of the appeal are strong (as appears from our consideration of the grounds of appeal further below). The respondent did not point to any specific prejudice resulting from the delay but rather submitted, in general terms, that prejudice would be suffered given the history of the appellant's persistent and repeated breach of the tenancy agreement and the respondent's inability to comply with its statutory obligation to provide our social housing.
3. In these circumstances, we consider that strict compliance with the rules would work an injustice upon the appellant in relation to the serious question as to whether he should lose his tenancy agreement. Accordingly, we have decided that the necessary extension of time in which to lodge the appeal should be granted.

Consideration-Ground 3 (procedural fairness)

1. We commence our consideration of the merits of the appeal with Ground 3 because, as appears below, we consider that the problems with the Tribunal's decision begin with procedural unfairness.
2. The Tribunal is bound to accord procedural fairness to the parties - an obligation derived from the common law and reinforced by ss 38 (2) and (5) (c) of the CAT Act: see CKG v Public Guardian [2014] NSWCATAP 32 at [14]; Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41 at [62].
3. Section s 38 (5) (c) of the NCAT Act, provides: 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.
4. The application of s 38 (5) of the NCAT Act must be considered in the context in which "the concern of the law is to avoid practical injustice": per Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].
5. Recently, in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610, making reference to earlier decisions of the High Court such as Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 and Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, the plurality of the High Court said in relation to the question of materiality of error, including by the denial of procedural fairness: 16. In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
6. The respondent submitted that there was no denial of procedural fairness to the appellant. It was submitted that he was present at the hearing on 5 March 2024, he had the opportunity to raise any issues he considered necessary, he was heard regarding the existence of breach and provided with the opportunity to be heard on any other matters the appellant considered relevant.
7. The respondent also submitted that from the adjournments that occurred on 11 January 2024 and 6 February 2024 the appellant had been made well aware that orders for termination and possession may result at the hearing on 5 March 2024 if the appellant did not remedy his non-compliance with the 10 October 2023 orders. Submissions were also made about the appellant having ample opportunity to remedy the non-compliance.
8. The respondent also submitted that the outcome would have been no different even if the appellant had been given a more extensive opportunity to be heard, given the clear continued non-compliance with the 10 October 2023 orders.
9. In oral submissions, the appellant submitted there had been procedural unfairness in the manner referred to in the written submissions and in the broader manner we have referred to.
10. Usually, in a contested matter of this nature, where there are real issues about satisfaction of the conditions for the exercise of the discretion to terminate under s 87 of the RT Act and other mandatory considerations with respect to the exercise of the discretionary power, the procedural fairness requirement is met by a combination of directions for provision of evidence and submissions before a hearing, along with an opportunity to be heard at a hearing.
11. In this instance, the former did not occur at all and the latter was a much abbreviated and less than satisfactory opportunity given the circumstances described in paragraph 54 above.
12. We are satisfied that the appellant was denied a reasonable opportunity to be heard in relation to his defence to the claim for termination given the following: 1. The appellant only saw, for the first time, a substantial quantity of new evidentiary material relied upon by the respondent at, or just before, the hearing on 5 March 2024. Furthermore, he was not served with a copy of this material at any time, let alone within a reasonable time before the hearing and he was not asked whether he had any documentary material he wished or may wish to rely upon. 2. In a context where there had been no directions for the parties to provide their evidence and submissions before the hearing and no structured hearing of the merits, including sworn evidence in support of their cases, the absence of any examination with the parties at the hearing about: 1. the extent of the continued breach the subject of Order 2 made on 10 October 2023 (as distinct from the breach the subject of Order 1), 2. the reasons why, at least, part of Order 2 had not been complied with, 3. what, if any, real health and safety issue was raised by such non-compliance, 4. the nature of what was said to be complaints from neighbours and whether they concerned the situation inside the unit, 5. the prospect of remedying such continued non-compliance, 6. the impact of termination upon the appellant.
13. Given these circumstances and the potential issues involved, it seems to us that the matter could not fairly proceed for hearing and determination in the short period available in the group list that day.
14. We are satisfied that the error was material because there was a realistic possibility of a different outcome if procedural fairness had been accorded to the appellant. The appellant had occupied the premises since 2010, the extent of the non-compliance with Order 2, which concerned the relevant breach for termination purposes, was not clear (in a context where it had been noted on 6 February 2024 that the tenant had cleaned some of the areas), it was not obvious that the current situation inside the unit created a significant health and safety risk or was the subject of complaints from neighbours, there was a dispute between the parties as to the assistance the Tenant had sought for a cleanup of the premises and the impact of termination on the Tenant was unknown.
15. Given these matters, we are not in a position to conclude that termination was the inevitable outcome even if procedural fairness had been accorded to the Tenant. A new hearing is needed as to the merits of termination.
16. In saying this, we have had regard to new evidence presented by the respondent on appeal about a visit to the premises on 26 April 2024, even though this had been, principally, relied upon only for the purpose of opposing any further extension of the suspension of the possession order at a hearing on 1 May 2024.
17. The new evidence consisted of a Client Service Visit Checklist prepared by Stephen Leonard and completed on 26 April 2024. The document included 16 photographs, 14 of which appeared to be of areas inside the unit, as well as responses to 38 questions. The checklist contained the answer "Yes" to the question whether the officer felt safe during the client service visit and the answer "No" to the question whether any WHS issues were identified. It contained the statement "Unit completely clustered with boxes etc" in answer to the question whether there was any other relevant information (Question 38). The photographs revealed what can fairly be described as an extensive degree of hoarding in, at least, a number of areas in the unit.
18. This evidence does not, however, alter the uncertainty about the matters we have referred to in paragraph 76. It did not address in any specific way each of the 4 work orders contained in Order 2, nor address the other matters we referred to. It said nothing about any concern in relation to gas bottles or refer to the identification of any such items. Given the concern about such items expressed at the hearing on 5 March 2024 and the reference to removal of "a gas bottle" in the conditions for the extension of the order of possession made on 15 April 2024, some reference to gas bottles would be expected if they remained an issue.
19. Assuming it is correct that the appellant must have appreciated well before the hearing on 5 March 2024 that the respondent would seek an order for termination and possession at that time, this does not overcome the procedural fairness problems that we have identified which start with reasonable notification of the respondent's case and evidentiary material in support of that case followed by a reasonable opportunity to respond and advance the full extent of the appellant's defence. Furthermore, it is not to the point that the appellant had an ample opportunity to comply with the 10 October 2023 orders.
20. Accordingly, we uphold Ground 3 of the appeal.

Consideration-Grounds 1 and 2 (failure to properly consider mandatory matters)

1. In a number of cases the Appeal Panel has adopted the position that a mandatory consideration will not have been given adequate attention where the Tribunal's process was merely a formulaic reference to the consideration, and that what is required is a proper, genuine and realistic consideration of the matter: Director General, Department of Finance and Services v Porter [2014] NSWCATAP 6 at [28]; Kelly v NSW Land & Housing Corporation [2018] NSWCATAP 154 at [30]; King v NSW Land and Housing Corporation [2022] NSWCATAP 165 at [38].
2. The appellant submitted that the oral reasons show that references to these mandatory considerations the subject of Grounds 1 and 2 of the appeal were merely formulaic. The appellant also submitted that the transcript of the hearing showed that there were no enquiries made as to the Tenant's circumstances and that the Tenant was not given an opportunity to explain his circumstances before the termination order was made.
3. On the other hand, the respondent points to the specific references to the s 87 (4) and s 154E mandatory considerations in the oral reasons and submits that it cannot be concluded from these that the reference to these matters was merely a formulaic.
4. We disagree with the respondent's submissions.
5. As to the s 87 (4) (b) mandatory consideration that the breach be sufficient to justify termination, we focus upon the circumstances of the case that were before the Tribunal, albeit of a limited nature. The material before the Tribunal, including what transpired at the hearing on 5 March 2024, raised questions as to the extent of the continued breach of the Tenant's keep reasonably clean obligation concerning the inside of the unit, the health and safety risk posed by such continued breach and the Tenant's reasons for not having remedied the breach. On the material before the Tribunal, it was also clear that the Tenant had been in occupation since December 2010.
6. As to these matters, as appears from paragraph 54 above, there was no focus at the hearing upon the specific terms of Order 2 and the extent of non-compliance with those terms, the appellant made some reference to the area behind the entrance door to the unit being empty, the appellant indicated that a gas bottle was empty and that he kept the premises clean. The appellant also made reference to expecting assistance but this had not been forthcoming.
7. However, the Tribunal did not address any of these matters in its reasons and made no reference to aspects of the appellant's "circumstances" that had been mentioned, albeit briefly, during the course of the hearing. In our opinion, a proper, genuine and realistic consideration of this factor required that it do so.
8. As to the s154E mandatory considerations, the material before the Tribunal raised questions about the significance of each of the 5 factors in s 154E (1) and whether they operated in favour of or against termination of the tenancy. However, the Tribunal did not address these questions and make relevant findings about them, other than to refer to some complaints from neighbours "regarding the… hoarding" but without addressing whether these complaints concerned the inside of the unit and how the Tribunal could make a finding about the subject matter of the complaints.
9. Accordingly, we uphold Grounds 1 and 2 of the appeal.

Consideration-Ground 5 (adequacy of reasons)

1. We must assess whether the reasons meet the minimum acceptable standard rather than the optimal level of detail: per Bell P (as His Honour then was) in NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578 at [66]. We also take account of His Honour's observations in Orr (at [70]) that the sheer volume of work undertaken by tribunals is such that perhaps a more relaxed standard of review of reasons is appropriate.
2. The reasons need not be elaborate, the basis for the decision should be made apparent so that a losing party has the basis to understand why it lost and to enable an appellate body to understand and assess whether the decision was correct. The features required for reasons (where requested) set out in s 62 (3) of the NCAT Act provide guidance as to the detail to be supplied: see at [71] and [74] in Orr.
3. The appellant submitted that the Tribunal's reasons fell short of the minimum acceptable standard because they did not show the reasoning process which led to the conclusion that the breach was, in the circumstances, sufficient to ground a termination order (except for references to the nature of the breach itself).
4. The appellant placed reliance upon the decision of the Appeal Panel in Hockley-Brown v Metford Road Pty Ltd t/as Morpeth Gardens Village [2023] NSWCATAP 151. This was because that case concerned a termination provision identical to s 87 (4) (b) and the Appeal Panel upheld a contention of inadequate reasons where the reasons did not show there was consideration, let alone satisfaction, of the requirement that the breach was, in the circumstances of the case, sufficient to justify termination (at [57]). In that case, the Appeal Panel also stated that there was no indication of the extent to which there was consideration of various non-mandatory matters.
5. The respondent submitted that the Tribunal's reasons were not inadequate. It submitted that the references to the nature of the breach itself and the appellant's continued failure to remedy the property care issues was in itself, on any reasonable view, a sufficient ground to show that the breach was, in the circumstances sufficient to ground a termination order. The respondent submitted that this was clear from the documents before the Tribunal and transcript of the hearing, together with the consideration set out by the Tribunal in the orders made and oral reasons.
6. We disagree with the respondent.
7. In our view, the Tribunal did not identify the basis for its conclusion that the relevant breach was, in the circumstances of the case, sufficient to justify termination, nor did it explain the significance of the s 154E matters it considers relevant to its decision to exercise the discretionary power to terminate.
8. The Tribunal referred in general terms to the Tenant having breached the residential tenancy agreement, that the Tenant had not complied with the previous order of 10 October 2023, that there were previous breaches and the Tenant has not taken steps to remedy the breach. However, these references did not identify the specific breach the Tribunal was acting upon for the purpose of the conditions in s 87 (4) and what that breach consisted of. Nor did the reasons identify what role, if any, a breach of the nuisance obligation and non-compliance with Order 1 made on 10 October 2023 (concerning that nuisance obligation) played in its decision.
9. Nor did the Tribunal identify what were "the circumstances of the case" that it acted upon for the purpose of the conclusion that the condition in s 87 (4) (b) was satisfied. Nor did the Tribunal reveal the essence of what it said was its consideration of all of the matters in s 154E.
10. Accordingly, we uphold Ground 5 of the appeal.

Consideration-Ground 4 (no evidence for neighbours' complaints finding)

1. In view of our conclusions about the above grounds of appeal it is unnecessary for us to deal with Ground 4.
2. Nevertheless, we do make the comment that it is difficult to see how the exchange between the Tribunal and Ms Le Cornu about this subject could have any probative weight in circumstances where no evidence was given as to the terms of the complaints, including whether they concerned matters inside or outside the unit.

Materiality of errors

1. As with procedural fairness, the respondent made the same submission about any other errors of law, that is, even if there was error the outcome would have been no different. For the same reasons given in respect of the question of procedural unfairness, we disagree and find that materiality of error has been established.

Alleged futility of appeal

1. In its written submissions the respondent contended that the appeal was futile because the stay on the order for termination had been lifted (as a consequence of failure by the appellant to comply with the conditions of a stay that had been granted), the appellant no longer held a lease and the respondent had the right to deal with the premises as it saw fit. Relying on the decision of the Appeal Panel in Davis v Compass Housing Services Co Ltd [2021) NSWCATAP 178, in these written submissions it was submitted that, in these circumstances, the Appeal Panel had no power to formulate a new lease and the appeal should be dismissed.
2. First, we should mention that there never was a stay granted of the order to terminate (it was an order to terminate immediately). The stay orders that have been granted, including the stay order we made at the conclusion of the hearing of the appeal, were a stay of the order for possession only.
3. However, Davis was a case in which possession had been returned to the landlord following the execution of a warrant for possession. That has not occurred in this case. At the hearing of the appeal, Ms Fryer accepted that futility of the appeal could only arise in circumstances where the landlord had re-acquired possession of the premises.

Orders

1. We consider the remitter should be to a differently constituted Tribunal. Such an order is in the interests of justice in this case, including its appearance, in accordance with the approach to be taken to the making of such an order as set out by the Appeal Panel in Chapman v Nicolosi (No 2) [2023] NSWCATAP 73 at [16]-[24]. As to this, the Tribunal has expressed a firm and concluded view about the merits of the respondent's case, which is adverse to the appellant.
2. For the above reasons, we make the following orders 1. The time for lodging the appeal is extended to 12 April 2024. 2. The appeal is allowed. 3. The orders made by the Tribunal on 5 March 2024 are set aside. 4. The proceedings 2023/00374552 are remitted to the Consumer and Commercial Division for hearing and redetermination by a differently constituted Tribunal on such evidence as the parties file and serve in accordance with the directions and the rules for that hearing.

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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: 04 July 2024