Smith v Li

Background facts in relation to appeal

1. On 14 August 2019, the tenants were issued with a 90 days 'no grounds' termination notice to vacate the relevant premises on 20 November 2019 under s 85 of the RT Act.
2. The tenants did not vacate the property by 20 November 2019. On the following day, 21 November 2019, the landlords applied to the Consumer and Commercial Division of the Tribunal for an order for possession of the property under the RT Act. The agent for the landlords referred to s 95 (rather than s 85) of the RT Act in their application.
3. On 10 December 2019, the day of the hearing of that application in RT19/52270, the parties engaged in conciliation with the assistance of a Tribunal appointed conciliator. The tenants were self-represented. The landlords were represented by T. McMillan and M. Hogan, employees of LJ Hooker Hamilton.
4. Following the conciliation on 10 December 2019 the Tribunal made the following orders pursuant to s 59 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act): (1) By consent, the Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. (2) By consent, the order of possession is suspended until 31 January 2020. (3) By consent, the tenant shall pay the landlord a daily occupation fee at the rate of $82.85 per day from the day after the date of termination, namely 11 December 2019 until the date vacant position is given to the landlord. This is to be paid by weekly payments of $580, first payment 12 December 2019. (4) By consent, 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. (5) By consent, the tenant AMY SMITH and SHANNON SAUNDERS, […], is to pay the landlord, DONGLEI ZHU and XIN Li, c/ L J Hooker, Hamilton, 39a Beaumont Street HAMILTON NSW 2303 Australia, the sum of $497.36 immediately, by payment of the rent credit to the landlord. Reasons • Water usage $438.08 • Pool invoices (part payment) $14.28
5. On 7 January 2020, the landlords made a separate application to the Consumer and Commercial Division of the Tribunal, seeking a termination order under s 87 of the RT Act by reason that "the tenant has breached the residential tenancy agreement for example for non-payment of rent". The termination date sought was 21 January 2020.
6. On 22 January 2020, the day of the hearing of the application RT20/00547, the parties engaged in conciliation with the assistance of a Tribunal appointed conciliator. The tenants were self-represented. The landlords were represented by T. McMillan, employee of LJ Hooker Hamilton.
7. Following the conciliation on 22 January 2020 the Tribunal made the following orders pursuant to s 59 of the NCAT Act: (1) By consent, the Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. (2) By consent, the order of possession is suspended until 31 January 2020. (3) By consent, the tenant shall pay the landlord a daily occupation fee at the rate of $82.85 per day from the day after the date of termination, namely 23 January 2020 until the date vacant position is given to the landlord. (4) By consent, 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. (5) By consent, the tenant AMY SMITH and SHANNON SAUNDERS, […], is to pay the landlord, DONGLEI ZHU and XIN Li, c/ L J Hooker, Hamilton, 39a Beaumont Street HAMILTON NSW 2303 Australia, the sum of $2,237.14 immediately. Reasons • Rent from 26 Dec 2019 to 21 Jan 2020 $2,237.14.
8. On 6 February 2020 the tenants lodged an appeal in respect of the Tribunal's decisions on 10 December 2019 and 22 January 2020. They also applied for a stay of the orders made by the Tribunal in connection with the appeal. At the substantive hearing of the stay application, the Appeal Panel refused the stay request, subject to an extension of the order for possession to 27 February 2020.
9. A warrant for possession was executed on 28 February 2020, and the tenants vacated the property on that day. There was no issue of any outstanding payments raised at the appeal hearing.

Grounds of appeal

1. In their Notice of Appeal dated 6 February 2020, the tenant appellants assert that the Tribunal made the following errors of law: 1. in respect of RT19/52270, the Tribunal lacked jurisdiction to terminate the residential tenancy agreement because the landlords did not seek termination and possession orders in their application; 2. in respect of RT19/52270, the Tribunal denied the appellants procedural fairness because the appellants had raised a defence of retaliatory eviction; 3. in respect of RT20/00547, no valid notification was served on the tenants.
2. The appeal may be brought as of right on a question of law, or, with the leave of the Appeal Panel, on other grounds: s 80(2)(b), NCAT Act. We understand the appeal to be confined to questions of law.
3. The appellants did not file formal written submissions in the appeal. At the appeal hearing, the appellants adopted the arguments they had put in support of their earlier stay application in relation to the consent orders of 10 December 2019 and 22 January 2020, and made some further oral submissions.
4. The respondent landlords also did not file any formal submissions in reply. At the appeal hearing the agent for the respondents indicated that the respondents relied on the arguments put forward in their Reply to Appeal dated 12 February 2020, and made some further oral submissions.
5. The appeal hearing took place by telephone link, as notified by the parties prior to the hearing due to the COVID-19 pandemic. There was no objection to this course of action.

Adjournment application

1. At the beginning of the appeal hearing the tenants sought an adjournment on the basis they did not have employment, are located in temporary housing and were not ready to proceed to hearing. No prior notice of their adjournment application had been communicated to the Tribunal or to the respondent landlords. The landlords' agent indicated that the continuing legal proceedings in the Tribunal were causing the landlords (and the agent's office) undue stress, that they had a strong interest in the proceedings being finalised, and that in any event all of the relevant material was before the Appeal Panel.
2. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, a unanimous High Court said: "In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice."
3. That approach is applicable in this Tribunal. Section 36(1) of the NCAT Act is in relevantly identical terms to s 56(1) of the Civil Procedure Act 2005, the provision considered in the Expense Reduction decision.
4. It follows that a number of principles apply to applications for an adjournment: 1. matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above; 2. an application for an adjournment should be seen as the exceptional rather than the ordinary course; 3. where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment.
5. Further, there is the effect on the opposing party to consider. In Sayhoun v Owners Corporation Strata Plan 75123 [2014] NSWCATAP 112 at [17], the Appeal Panel said in relation to prejudice to the opposing party, when an extension of time was requested: "That prejudice may be addressed by an award of costs, although we note the remarks of the plurality in Aon Risk Services Aust Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [100] that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants; and their approval (also at [100]) of Bowen LJ's statement in Cropper v Smith [1884] 26 Ch D 700 that: Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary."
6. Applying these principles, we were not satisfied that the adjournment should be granted.
7. The appellants' Notice of Appeal was out of time. A stay of the Tribunal's decisions under appeal was refused. The tenants have been aware for a number of weeks that the appeal hearing was set down for early April. The tenants did not comply with the Tribunal's direction to file written submissions in support of the appeal by 28 February 2020, or at all, nor have they provided any explanation in this regard. The tenants did not suggest they needed more time to prepare submissions, to file evidence in support of their appeal, or to obtain legal advice, and that their employment and/or housing circumstances prevented them from doing so. In short, no adequate explanation was given as to why the tenants were not ready to proceed to hearing in their own appeal, nor was there an explanation provided as to what benefit they would derive from an adjournment.
8. We were satisfied that the tenants had had adequate time to prepare for their appeal, and that they would have a reasonable opportunity to present their case, including on the reasons why they sought an extension of time to appeal, as well as their arguments on substantive appeal grounds. In this regard, we note that the Appeal Panel had before it a copy of two sets of submissions made by the tenants in support of their earlier stay application (one lodged on 10 February 2020 and the other lodged on 25 February 2020), which outlined the reasons why they say the Tribunal made errors of law when making consent orders on 10 December 2019 and 22 January 2020. We further note that those submissions set out clearly the legal errors asserted by the appellants, and were prepared with the benefit of legal assistance.
9. Further, there would be prejudice to the respondents by the granting of an adjournment. The tenants have vacated the property and the respondents have a genuine interest in having the appeal resolved as soon as possible.
10. Bearing in mind the guiding principle found in s 36 of the NCAT Act that the Tribunal facilitate the resolution of matters as justly, quickly, cheaply as possible, the Appeal Panel did not consider that the interests of justice would be served by the grant of an adjournment.
11. Accordingly, we refused the adjournment.

Issues on appeal

1. The issues for the Appeal Panel can be summarised as follows: 1. Whether the applications for extension of time should be granted such that the appeal in respect of each of the Tribunal applications RT19/52270 and RT20/00547 can proceed; 2. If so, whether any grounds of appeal on questions of law are made out by the appellants.

Applications for extension of time

1. Where proceedings are "residential proceedings" the tenants are required to lodge an appeal within 14 days from the day on which they were notified of the decision or given reasons for the decision, whichever is the later: Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), rule 25(4)(b).
2. The Tribunal made the original consent orders on 10 December 2019 and the tenants do not suggest that they were not notified of the Tribunal's decision to make those orders on that date. Mr Saunders was present at the Tribunal's hearing on 10 December 2019 when the Tribunal Member made the consent orders. To be within time, the appeal should have been lodged by 24 December 2019. It was not lodged until 6 February 2020, 6 weeks and 2 days late.
3. The Tribunal made further consent orders on 22 January 2020. Mr Saunders was also present at the hearing of the Tribunal on that day. To be within time, the appeal in respect of those orders should have been lodged by 5 February 2020. It was lodged one day late on 6 February 2020.
4. The time for lodging an appeal may be extended even though the time has expired: NCAT Act, s 41. The Appeal Panel set out the principles to be applied when considering an application for an extension of time in PTM Corporate Advisory Pty Ltd v Temple [2015] NSWCATAP 218 at [7], citing Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 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] NSWCA 369; (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] NSWCA 369; (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].

Consideration of the out of time application in respect of RT 19/52270

Length of delay

1. As noted, in residential proceedings, parties have only 14 days to lodge an appeal. A longer period would be unnecessarily prejudicial to the landlords. The length of the delay in this case in respect of the consent orders made on 10 December 2019 is 44 days. That is a significant delay in the circumstances of this case.

Reasons for the delay

1. According to the tenants, the reason for the delay was that they were not aware of the appeal process, and that they thought they had made an application in the Tribunal for retaliatory action (by way of challenge to the termination notice) which would be heard at a later date.

Prospects of success

1. The appellants' first ground of appeal in relation to the Tribunal's decision in RT19/52270 is that it lacked jurisdiction to terminate the residential tenancy agreement because the landlords did not seek termination and possession orders in their application.
2. It is not in dispute that the landlords issued a no grounds notice of termination to the tenant under s 85 of the RT Act, and that the tenants did not vacate the property in the time specified in that notice of termination (20 November 2019). In their application to the Tribunal for termination of the tenancy on expiration of the no grounds notice, the landlords' agent sought an order for possession, omitting to ask for a termination order. The agent also referred to s 95, not s 85, of the RT Act. While there is no evidence put before the Appeal Panel about the agent's mistakes in completing that application, the agent indicated at the appeal hearing that the reference to s 95 was a mistake on the part of the managing agents.
3. After several rounds of conciliation between the parties on 10 December 2019, the presiding Member made the consent orders (reproduced above at [11]) in the exercise of her discretion under the RT Act and the NCAT Act.

Lack of power for Tribunal to make consent orders

1. Section 59(1)(b) of the NCAT Act provides that the Tribunal may, in any proceedings, make such orders as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if 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.
2. In relation to their ground of appeal (i), the tenants assert that because the landlords' agent referred to the wrong provision of the RT Act and did not expressly seek a termination order in their written application, and did not amend the application at the hearing, the landlords failed to apply for termination and possession in accordance with the RT Act. Moreover, because the Tribunal did not amend the application of its own motion, the tenants argue that the Tribunal did not satisfy itself of the power to make the consent orders on 10 December 2019, and did not in fact have power, to make such orders.
3. We cannot see that the tenants' argument has reasonable prospects of success. It is the case that the agent completing the application form failed to ask for an order for termination, and wrongly referred to s 95 of the RT Act, but we do not think that anything turns on this in the circumstances of this case.
4. It is not in dispute that the landlords issued a no grounds termination notice to the tenants under s 85 in August 2019. In addition, the landlord's application set out that the basis for it was that a 90 day no grounds termination notice had been given requiring vacation of the property on 20 November 2019 but the tenants were still in occupation of the property. Plainly, in that context the Tribunal proceedings brought by the landlords were to obtain a termination of the tenancy and an order for possession pursuant to s 85 of the RT given that the tenants had failed to vacate the property by the date specified in the August termination notice. Conciliation discussions on 10 December 2019 were held against this background. The parties agreed (amongst other things) to a termination of the tenancy, and that the tenants would vacate the property by 31 January 2020.
5. No point was raised by the tenants that there was no written terms of settlement, signed by the parties, and lodged with the Tribunal as required by s 59(1)(a). Indeed, we have seen from the Division's file that such a document was lodged with the Tribunal and that it contains the same terms as the consent orders. The Member followed the usual procedure in the Consumer and Commercial Division of the Tribunal to ensure that the parties understood the effect of those orders. This much is clear from listening to the sound recording (a copy of which was lodged with the Tribunal by the appellants). After the Member read out the proposed terms of the consent orders and the following exchange occurred: Member Hanstein: Do you understand all of that? Male (Tenant): Yes Member (Hanstein): That's what you're agreeing to today? Male (Tenant): Yes Member (Hanstein): That's what the landlord is agreeing to? Female (Landlord): Yes Member (Hanstein): And that covers everything? Female (Landlord): Yes Member (Hanstein): Thank you, that order is made. You can collect a copy of the order at the counter, it might take a few minutes but it shouldn't be too long.
6. There is nothing in the material before the Appeal Panel to suggest that the Member failed to understand the power she was exercising, or that she did not have power to make the relevant consent orders, under s 59 of the NCAT Act and relevant provisions of the RT Act.
7. The guiding principle to be applied by the Tribunal in its practice and procedure is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 36(1), NCAT Act). Further, under s 38(4), the Tribunal is 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.
8. It would not be consistent with these principles to take an inflexible view, particularly in a high-volume jurisdiction such as residential tenancy, that an applicant must formally correct minor errors, including typographical errors, in the initiating application, or that the Tribunal of its own motion must make such corrections, where it is otherwise clear that the Tribunal has power to make the proposed consent orders in the circumstances of the case.
9. Even if the Tribunal had made a mistake in the source of its statutory powers to make the relevant consent orders, which we do not accept, a mistake as to the power being exercised does not, of itself, vitiate the exercise of power. If there is jurisdiction to deal with the matter and a court or tribunal acts under the wrong section, there is no jurisdictional error which would vitiate the exercise, provided that the exercise of discretion conforms with the statutory power sought to be exercised: Healey v Commissioner of Taxation [2006] NSWSC 853 at [14]. As the Court of Appeal stated in Tu v University of Sydney [2003] NSWCA 170 at [25]: "It is true that 'a mistake in the source of the power works no invalidity. Validity depends simply on whether a relevant power existed': Johns v Australian Securities Commission (1993) 178 CLR 408 at 426. However, this is only so provided that any conditions necessary for the exercise of the power have been satisfied: Minister for Urban Affairs and Planning v Rosemount Estate Pty Ltd (1996) 91 LGERA 31 at 85." Here, we cannot see that any prerequisites to the exercise of power of s 59 of the NCAT, or relevant statutory provisions in the RT Act, have not been met.
10. The Appeal Panel does not consider that appeal ground (i) has reasonable prospects of success.

Procedural fairness - retaliatory eviction claim

1. The appellants' second ground of appeal in relation to the Tribunal's decision in RT19/52270 is that the Tribunal denied the tenants procedural fairness because they had raised a defence of retaliatory eviction.
2. Under s 115 of the RT Act the Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice, declare that a termination notice has no effect, or refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application for any of the reasons set out in s 115(2). Where it is the tenant making an application, rather than resisting the making of a termination order on the application of the landlord, s 115(3) applies. The tenant must make the application before the termination date, and within the period prescribed by the regulations. That period is 30 days where a 'no grounds' termination notice under s 85 has been given: cl 39(4), Residential Tenancies Regulation 2019 (NSW).
3. Mr Saunders confirmed at the appeal hearing that the tenants had sought advice from a tenancy advocacy service after receiving the s 85 termination notice. The tenants did not lodge an application for retaliatory action in the required time, being 30 days from the issue of the termination notice on 14 August 2019. Nor, as far as we understand, did the tenants raise the issue of retaliatory eviction until conciliation on 10 December 2019. The fact that the tenants did not make their own application for retaliatory eviction within the prescribed time limit did not prevent them from raising the issue of retaliatory eviction in challenging the landlords' termination notice at the hearing on 10 December 2019. However, it was incumbent on the tenants to raise it before the Member prior to any termination of the tenancy.
4. While it is important to observe that what is said at conciliation conferences is generally accepted to be confidential, it is nonetheless common ground between the parties that the tenants did raise the question of retaliatory action during conciliation on 10 December 2019. Consistent with the notion that conciliation conferences are confidential to the parties and constitute 'without prejudice' discussions, conciliations held in the Consumer and Commercial Division of the Tribunal are not sound recorded. There is therefore no direct evidence of what occurred at the conciliation.
5. According to Mr Saunders, the conciliator indicated that the tenants were entitled to bring a retaliatory action application on that day and the conciliator helped him fill out a form which Mr Saunders understood would be given to the Member. This evidence is contained in a statutory declaration of Mr Saunders dated 10 February 2020, filed in support of the tenants' request for a stay.
6. The respondents did not file any evidence about what occurred at the conciliation or the hearing on 10 December 2019. The agent representing the landlords at the appeal hearing, Mr Hogan, also attended the 10 December 2019 conciliation along with another employee of LJ Hooker Hamilton. Mr Hogan disputes that there was any form completed in relation to retaliatory action, and says the only form completed was the signed agreement that formed the basis of the Tribunal's consent orders.
7. It is difficult for the Appeal Panel to ascertain what occurred at the conciliation on the very limited evidence before it. Furthermore, for the reasons we have already mentioned, it is, generally, undesirable for the Tribunal to examine what transpired during the course of a conciliation. That said, it is what occurred at the hearing before the presiding Member that is of most significance. Mr Saunders did not alert the Member to any issue of retaliatory action, even though he was in the hearing room. From the sound recording, it is clear that the Member read out the terms of the proposed consent orders to Mr Saunders and to the landlords' agent present in the hearing room. Mr Saunders indicated he agreed to the proposed consent orders. The consent orders do not contain any reference to retaliatory action. There was nothing else that occurred at the hearing to alert the Member to any such issue, nor any indication that the tenants wished to press the issue.
8. We do not accept that there are reasonable prospects that the tenants could successfully argue an error of law for breach of procedural fairness during the Tribunal hearing on 10 December 2019. What took place during conciliation occurs outside the hearing room. The tenants had adequate opportunity to raise any 'defence' of retaliatory eviction with the Tribunal before the consent orders were made which had the effect of terminating the tenancy and giving possession of the property to the landlords.
9. We should add that no issue has been raised to suggest that the consent orders of 10 December 2019 should be set aside on the basis of misrepresentation, mistake, deceit, duress, undue influence, or the like.
10. In all the circumstances, while the tenants' ground of appeal is not necessarily doomed to fail, in our view it has no reasonable prospects of success.

Prejudice to landlord

1. The landlords object to the Tribunal extending time for the lodging of the appeal on the following grounds: they have followed due process and waited over 6 months to get possession of their property from the time when they sent the 90-day termination notice for no grounds to the tenants; the appeal was lodged over 6 weeks after the 14-day limit for appeals from residential tenancy decisions; the appeal seems as if it is retaliatory towards the respondents because they followed through the due process of getting vacant possession of their property; and if the extension of time is granted, the respondents will be disadvantaged further after they had been more than fair with the appellants agreeing to give them time (more than 6 weeks from the end of the tenancy on 10 December) to vacate. We are satisfied that the landlords will be prejudiced if leave is granted to extend time for the appeal to be lodged.

Conclusion on out of time application for RT19/52270

1. There is a public interest in the need for finality of litigation: Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265-267. We decline to extend time for the filing of this appeal because there was a delay of more than 6 weeks in the lodging of the appeal, that delay is not adequately explained, the landlord would be prejudiced if time were extended and the appeal has no reasonable prospects of success such that the issues raised would not justify the Tribunal's decision to make the consent orders, and the consent orders, being set aside.

Consideration of the out of time application in respect of RT20/05984

Length of delay

1. As mentioned above, in residential proceedings, parties have 14 days to lodge an appeal. The length of the delay in this case in respect of the consent orders made on 22 January 2020 is 1 day. That is not a significant delay.

Reasons for the delay

1. According to the tenants, the reason for the delay was that they were mistaken in their view about how to challenge the Tribunal's decisions on 10 December 2019 and 22 January 2020. They also explain that they lodged an application in respect of retaliatory action on 5 February 2020, thinking this was the correct way to cross-claim against the Tribunal's earlier decisions in RT19/52270 and RT20/00547, and that it was only when the NCAT Registry contacted them on 6 February 2020 that they realised they should lodge an appeal instead. They did so on that date. The appellants also ask that the one day public holiday in that period be taken into account.

Prospects of success

1. The tenants' ground of appeal (iii), as set out in the Notice of Appeal, is that the Tribunal erred in law in making its decision in respect of RT20/00547 because no valid notification was served on the tenants. We understand this to mean that there was no valid termination notice served on the tenants. In relation to the landlords' application for termination lodged on 7 January 2020, they say that the Tribunal lacked jurisdiction to terminate the tenancy, as the tenancy had already been terminated on 10 December 2019.
2. The respondents counter by saying the Tribunal served a notice on the appellants about the Tribunal hearing, the tenants attended the hearing and consent orders were made.
3. The landlords sought a termination order under s 87 of the RT Act, with 21 January 2020 as the termination date, on the basis the tenants had breached the residential tenancy agreement for non-payment of rent. In that application, the agent stated that there "has already been an agreed order for possession to be given on the 31/01/2020". The form of application lodged with the Tribunal on behalf of the landlords on 7 January 2020 was misconceived in that it sought termination of the tenancy and an order for payment of "rent" arrears. (The landlords were entitled to payment of a daily occupancy fee, not rent.)
4. After conciliation on 22 January 2020, the Tribunal made consent orders, which (amongst other things) purported to terminate a residential tenancy agreement. It is not clear from the material before the Appeal Panel whether the Tribunal Member, when hearing the application from the landlords in matter RT20/000747, was aware that there had already been consent orders made on 10 December 2019 which terminated the tenancy and gave possession to the landlords (with the date for possession suspended until 31 January 2020).
5. To the extent that it made consent orders under s 59, NCAT Act which it had no power to make, the Tribunal erred in law. A residential tenancy agreement cannot be terminated if it is no longer on foot.
6. It will be apparent from what we have said above that we consider there are strong prospects of success on the tenants' appeal ground in relation to RT20/00547.

Prejudice to landlord

1. It is not clear that the landlords would be prejudiced in the circumstances of this case if leave is granted to extend time for the appeal to be lodged in respect of RT20/00547 by only one day.

Conclusion on out of time application for 20/00547

1. In respect of the appeal from the Tribunal's decision of 22 January 2020, the appeal is one day out of time, and we have decided to extend the time to accept it. The delay in lodging is very short, and the prospects of success for appeal are strong.
2. The time for filing the notice of appeal is extended to 6 February 2020.

Appeal ground in respect of RT20/05984

1. We have already stated our view that the Tribunal erred in law in its decision on 22 January to make an order which purported to terminate the residential tenancy agreement between the parties, because that agreement had already been terminated by the Tribunal. (It is not suggested that a new residential tenancy agreement came into force sometime after 10 December 2019). In these circumstances, there could be no valid notification to the tenants under s 87 of the RT Act of an intention to terminate a residential tenancy agreement on the grounds of non-payment of rent (or on any other basis).
2. The agreement on which the consent orders were based was not in evidence but we have assumed, for the purpose of these proceedings, that it was in the same or similar terms as the consent orders made on 20 January 2020. The Tribunal did not have power to make orders giving effect to the agreed settlement reached by the parties in proceedings RT20/00547, because it could not be satisfied it would have the power to make a decision in the terms of the agreed settlement, and did not in fact have such power, as required by s 59(2) of the NCAT Act.
3. The tenants raised some further deficiencies in the consent orders of 22 January 2020. Given our view that the Tribunal did not have power to make those consent orders, it is not necessary to deal with these issues further.
4. We have decided to allow the appeal from the Tribunal's decision in RT20/00547 on the basis that the Tribunal had no jurisdiction to terminate a residential tenancy agreement that had already been validly terminated on 10 December 2019. Orders 2, 3 and 4 of the orders made on 22 January rely on the purported termination of the tenancy on that day. Accordingly, those orders are of no effect. As we have already said, no challenge to Order 5 was presented on the appeal and the amount was paid by the tenants on 23 January 2020. The order simply requires the payment of a sum of money. (Presumably, it was paid and is not challenged on the appeal because the amount equates to the occupancy fees then outstanding even though the landlords had, incorrectly, characterised the amount claimed as arrears of rent).
5. Orders 1, 2, 3 and 4 of the consent orders of the Tribunal made on 22 January 2020 are set aside.

Orders in respect of RT 19/52270 1. The application for an extension of time in which to appeal is refused. 2. The appeal is dismissed.

Orders in respect of RT 20/00547 1. The time for filing the notice of appeal is extended to 6 February 2020. 2. The appeal is allowed. 3. Orders 1, 2, 3 and 4 of the consent orders made by the Tribunal dated 22 January 2020 are set aside. **********​​​​​​​ 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: 15 April 2020