Smith v NSW Land and Housing Corporation

NCAT Appeal Panel|2023-01-16

Summary

In these reasons we will refer to the appellant as the landlord and the respondent as the tenant.
On 14 October 2022, after a hearing at which the tenant did not appear and in proceedings in which she did not file any evidence, after giving brief oral reasons (Primary Decision) the Tribunal made the following orders: 1. The Residential Tenancy Agreement is terminated in accordance with: • s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. • failure to keep the premises reasonably clean both inside and outside. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 04-Nov-2022 4. The tenant shall pay the landlord a daily occupation fee at the rate of $27.96 per day from the day after the date of termination, namely 15-Oct-2022 until the date vacant possession is given to the landlord. 5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 6. The landlord is to advise the tenant in writing by the delivery of a letter to the premises by 12:00 pm on 17-Oct-2022 of the orders made today. 7. The Tribunal is satisfied that the notice of the hearing has been duly served on the respondent, and the Tribunal considers that justice requires the matter be dealt with in the absence of the party. Oral Reasons
The statement "Oral Reasons" was meant to convey, as was in fact the case, that oral reasons were given by the Member at the hearing.
The basis on which the landlord sought a termination order and possession was the Tenant's failure to keep the premises reasonably clean. While we are not certain what evidence was before the Tribunal in the proceedings appealed from, evidence provided to the Appeal Panel including photographic evidence, which pre-dates the Primary Decision, suggests that the tenant was a hoarder of goods and material inside and outside her property, kept unregistered vehicles and un-domesticated animals on the premises; [1] accumulated rubbish on the premises; [2] and used food scraps to feed wild life (namely pigeons). [3]

Background

Following the Primary Decision of 14 October 2022, the tenant on 7 November 2022, then represented by a staff member from NEAMI National, filed an application to set aside the Primary Decision (the set aside application) because she had not been in attendance. An order staying the Primary Decision was made on 14 November 2022 pending the determination of the set aside application and orders were made for the filing of evidence and submissions by both parties. The set aside application was made out of time. The tenant did not file any material. The landlord did. On 7 December 2022, the Tribunal dismissed the set aside application and lifted the stay order.
The tenant filed a Notice of Appeal on 10 December 2022. That immediately raised the preliminary issue that the Notice of Appeal was filed out of time. We will discuss that issue below.
The Notice of Appeal raised three grounds of appeal, namely, in summary, that:

the Tribunal erred by applying the wrong test under s 87 of the Residential Tenancies Act 2010 (NSW) (RT Act);
the Tribunal erred by failing to have regard to the factors in s 154E of the RT Act, being mandatory considerations;
the Tribunal erred by failing to set out adequate reasons for its decision.

A stay of the orders made by the Tribunal was also sought on 20 December 2022. A limited stay was granted (ex parte) on 20 December 2022, preventing the premises being re-let, which was extended on 23 December 2023 until further order of the Appeal Panel or finalisation of the appeal, whichever was the earlier in time.
A warrant for possession had been executed on 15 December 2022.

The Notice of Appeal

The Notice of Appeal was prepared by a lawyer for the tenant. It was not disputed by the landlord that the Notice of Appeal was prepared after the tenant provided the lawyer with the sound recording of the Tribunal hearing. It is appropriate to set out the grounds of appeal in full. These are as follows: Ground 1: The Tribunal erred in law by applying the wrong test under section 87 of the Residential Tenancies Act 2010 (the Act). a. The Tribunal made a finding that the tenant had breached the residential tenancy agreement, and terminated the tenancy under section 87 of the Act. b. The Tribunal failed to consider whether the alleged breach or breaches of the tenancy agreement were, in the circumstances of the case, sufficient to justify termination of the agreement, as required by s 87(4)(b) of the Act. c. The use of the word "sufficient" requires consideration of the alleged breach in the context of all relevant circumstances to determine whether termination is required, or other steps may be appropriate. d. The Tribunal failed to properly apply the test and weigh up the circumstances of the case to determine whether the alleged breach is sufficient to justify termination. e. When considering the circumstances of the case, the Tribunal should have considered the following factors available upon the evidence before it: [i]. The attempts made by the Appellant to clean the property; [ii]. The recent steps taken by the Appellant to engage with Neami National. [iii]. The likelihood that the Appellant would be homeless if evicted from the residential premises. f. The eviction of a social housing tenant should be considered as a last resort (NSW Land and Housing Corporation v Mann (2014] NCAT). A specific performance Order should have been considered. Ground 2: In exercising discretion under section 87 of the Act, the Tribunal erred by failing to have regard to the factors in section 154E of the Act, being mandatory considerations. Particulars a. The agreement between the parties is a social housing tenancy agreement within the meaning of section 136 the Act. b. Accordingly, section 154E outlines the factors which the Tribunal must have regard to in considering whether to terminate a social housing tenancy agreement. c. Neither the written order or the oral reasons indicate the Tribunal member considered the section 154E factors, and failure to do so constituted an error of law. Ground 3: The Tribunal erred in law by failing to set out adequate reasons for its decision. Particulars a. The reasons were given orally at the end of the hearing on 14 October 2022. b. The Tribunal failed to outline the following as required (Collins v Urban [2014] NSWCATAP 17 and 62(3) Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act); i. the findings on material questions of fact, referring to the evidence or other material on which those findings were based, ii. the Tribunal's understanding of the applicable law, the iii. the reasoning processes that lead the Tribunal to the conclusions it made c. In particular, the Tribunal did not set out adequate reasons in relation to: i. The particular incidents the Tribunal was satisfied amounted to a breach of the tenancy agreement, particularly in circumstances where: i. The Appellant was not present at the Hearing. d. The Tribunal failed to set out the reasoning process that led it to the determination that the breach or breaches were sufficient to justify termination; any consideration of section 87(5) being relevant considerations, and section 154E being mandatory considerations, in exercising discretion under section 87 of the Act. e. The Tribunal failed to set out its understanding of the applicable law.
In the alternative to those grounds, in what is a fourth ground of appeal, the tenant submits that: 1. leave should be granted to her under s 80(2)(b) of the NCAT Act because the Decision was against the weight of the evidence; and 2. leave should be granted because she may have suffered a substantial miscarriage of justice, and eviction will result in great hardship to her.
In conclusion, the grounds of appeal states that the orders the Appeal Panel should make are: 1. The appeal be allowed. 2. The orders of the Tribunal in SH 22/43135 dated 14 October 2022 be set aside and remitted to a differently constituted Tribunal for hearing and determination according to law. 3. Both parties are granted leave to file and serve fresh evidence in the remitted proceedings.
We note that the Notice of Appeal and the grounds of appeal were the only relevant documents filed by the tenant in support of the appeal.

Reply to Appeal

The landlord supports the orders made in the Primary Decision. It submits that:

the tenant, who did not attend the hearing, was given ample notice by the Tribunal and the Department of Communities & Justice (DCJ) of the initial hearing date by posting letters to the appellant;
the tenant applied to the Tribunal for the orders to be set aside however did not attend the hearing;
DCJ arranged with the NSW Sheriffs Office for the eviction to proceed on 15 December 2022 at 10.00am;
DCJ representatives attended the address where the Sheriff handed vacant possession to DCJ.

In reply to the grounds of appeal, the landlord states:

the tenant was well aware of the situation when DCJ referred her to NEAMI National as part of DCJ's Sustaining Tenancies in Social Housing;
NEAMI National withdrew its support due the tenant not engaging;
the tenant was aware of the initial hearing date and the date for her application to set aside orders however did not attend either hearing;
the landlord believes the tenant has not attended any Tribunal hearings and therefore requests that the appeal be dismissed.

We pause here to note, and we drew the parties' attention to this in the hearing, that the NEAMI website states that NEAMI is a community-based organisation providing services to improve mental health and well-being in local communities. We also note that the set aside application showed that tenant was then being assisted by NEAMI National, and was being represented by one of its staff members. This is difficult to reconcile with the landlord's submission that NEAMI National had withdrawn its support for the tenant.
Attached to the Reply to Appeal are submissions dated 29 December 2022 titled "Respondent's outline of submissions Opposing the set aside or vary of orders in SH 22/43125". These submissions were not relevant to issues which we needed to determine on the appeal, in that they addressed discretionary matters in applications to set aside decisions, whereas this was an appeal being pursued by the appellant. The submissions do however provide some relevantly background namely: 16. On 27 September 2022, the landlord made an application pursuant to section 87 of the Residential Tenancy Act 2010 (the Act) to the Tribunal seeking termination of the residential tenancy agreement (the agreement) and possession of the premises as the tenant had breached the agreement by not maintaining the property in a reasonably clean state. The landlord also sought orders pursuant to sections 60, 187 (1)(a), 187 (1)(e), 187(1)(h), 123, 73(a) and 187(1)(i). 17. On 14 October 2022, the matter was before the Tribunal where pursuant to s 87 of the Residential Tenancies Act 2010 (the Act), an order for termination possession was sought by the landlord. 18. In considering the circumstances of the case, the Tribunal was satisfied the tenant had breached the agreement by the failure to keep the premises reasonably clean both inside and outside and granted the relief sought by the landlord. 19. The matter of keeping the property in a reasonably clean state had previously been before the residential tenancy tribunal and since that hearing which was withdrawn due to an error, the condition of the property has deteriorated (proceeding no SH22/17827). The tenant was present at that hearing via phone and was well aware that the landlord was seeking compliance to clean the property. 20. To support the tenant in performing the agreement, on 19 March 2021, the landlord referred the tenant to NEAMI, with an intake date of 4 May 2021. During this time, the tenant failed to engage with the service and would not allow access to the inside of the property. NEAMI have reported they never been able to access the inside the property. 21. Although the landlord's contractors have entered the premises for the purposes of assessing the property for repairs, they were unable to make any assessment for repairs due to safety issues and excessive belongings in the property. 22. It has been reported by contractors report the property is not safe in its current condition and is therefore unsafe to inhabit. 23. Due to unsafe conditions and fire danger, electricity has not been connected at the property since February 2022. 24. Included in the landlord's submissions were victim statements from neighbours, advising how the tenant's property care has had and is continue to impact on their health and daily living. … 28. We respectfully submit that the opportunity for people on the waiting list for Government subsidised social housing should not be diminished in favour of a tenant who continuously breaches their agreement by failing to keep the property in a reasonably clean state.

Internal appeals

Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which internal appeals from decisions of the Tribunal may be brought: internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: NCAT Act, s 80(2).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. whether there has been a failure to provide proper reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; 8. whether the decision is so unreasonable that no reasonable decision-maker would make it.
In Prendergast, the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).

Leave to appeal

Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
However, under cl 12(2)(b) of Sch 4 of the NCAT Act, notwithstanding s 80 of that Act, an internal appeal may only be made on a question appeal against an order of the Tribunal for the termination of a tenancy under the RT Act and a warrant of possession has been executed in relation to that order.
As it transpires, the first three grounds of appeal of appeal identified by the tenant all raise questions of law.

Preliminary issue - Extension of time

However, there is a preliminary issue to consider which was discussed at length at the appeal hearing. That issue is whether or not the tenant should be granted an extension of time in which to file her Notice of Appeal.
As noted, the Primary Decision was made on 14 October 2022. The Notice of Appeal was not filed until 10 December 2022, and is thus out of time. It should have been filed by 28 October 2022. It was filed 49 days late.
Under s 41 of the NCAT Act, the Tribunal has to power to "extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation".
The principles governing extensions of time are well-established and were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, and confirmed in Di Salvo v Leung [2014] NSWCATAP 44. We discussed these principles with the tenant during the appeal hearing. In summary, the relevant matters for the Appeal Panel to consider in deciding whether or not to grant an extension of time to lodge a notice of appeal may be summarised as follows:

the length of the delay;
the reason for the delay;
the extent of any prejudice suffered by the respondent; and
the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case.

In relation to the extension of time, in its Reply to Appeal the landlord submitted that: The appellant has had opportunities to be heard by attending NCAT on the scheduled hearing dates however they did not. The appellant has unfortunately left it until after the eviction time to lodge a second set aside/vary original decision to her own detriment. DCJ have been liaising with the appellant for nearly two years for them to address the inadequate and poor property care with DCJ receiving a victim impact statement from a neighbour and many client feedback matters regarding the unsatisfactory property care.
We shall consider each relevant matter in turn.

The length of the delay

In circumstances where the appeal in respect of residential proceedings must be filed within 14 days, an appeal filed 49 days late constitutes a significant delay. It is to be acknowledged that the appeal was filed after the set aside application had been made (itself out of time), considered and dismissed. However, the tenant did not file any material is support of that application.
On balance, this factor does not warrant an extension of time in which to file the notice of appeal.

The reason for the delay

The only reason advanced for the delay in filing the notice of appeal was the tenant's statement "I only found out about the time limit recently". The saying "ignorance of the law is no excuse", is an ancient one and attributed to the Greek philosopher Aristotle, and one equally true now as it was in ancient times.
In addition, as the Appeal Panel note in Jackson at [27], the lack of material providing an adequate explanation of the delay weighs against granting an extension of time: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [103].
Accordingly, this factor does not warrant an extension of time in which to file the Notice of Appeal.

The extent of any prejudice suffered by the respondent

In written submissions the landlord stated that the setting aside of the Tribunal's orders of termination and possession would result in the tenant's neighbouring residents continuing to be subjected to ongoing health and financial issues, including the risk of fire and vermin. The landlord submits that it would not be reasonable to preserve the tenancy of one tenant, at the detriment of those around her, where it is clear that there has been an ongoing breach of the residential tenancy agreement with no indication that the tenant has the capacity to modify her behaviour.
The tenant did not provide any coherent or persuasive submissions against this submission.
This factor does not warrant an extension of time in which to file the notice of appeal. As the Appeal Panel noted in Jackson at [28]: … the Appeal Panel notes that the respondent is a governmental corporation. In one sense, it suffers little prejudice if the appellant continues to reside in the premises the subject of the original application provided the rent is paid. There is, however, a wider sense in which prejudice may be suffered in that, if the appellant is in occupation of the premises when she should have vacated them, the respondent is denied the ability to provide that accommodation to other persons who have a legitimate need for housing of the type provided by the respondent. On that basis, the Panel takes into account that there may be prejudice to the respondent's ability to provide accommodation to those who legitimately need it. As a result, this consideration also weighs against extending the time for appeal.

The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case.

Neither party filed a transcript of the Tribunal hearing. However, the sound recording was in evidence, and we listened to it to gain some sense of the procedural history of the matter.
The entire hearing was almost 21 minutes in length, and as noted, the tenant did not appear. Much of the hearing consisted of silence while the Member read the materials before him filed by the landlord.
At the 18:09 minute mark of the sound recording, the member concluded the hearing stating: On the basis of the residential tenancy agreement, the termination notice, photographs tendered by the applicant, and the evidence of Ms Dimmock and Mr Martin I am satisfied that the tenant has been served with a valid termination notice under s 87 of the Act being for a breach of the agreement that is failure to keep the premises reasonably clean both inside and out. The tenant hasn't given possession in accordance with the notice and in the circumstances of the case I find that the tenant should be ordered to leave the premises by way of a termination order and possession within three weeks. For those reasons the following orders are made.
The member then stated the orders set out in par [2] above.
In Carbery v Warringah Rugby Club Ltd [2021] NSWCATAP 153 the Appeal Panel noted that: 1. In Camilleri v Eastlake [2018] NSWCATAP 176 the Appeal Panel stated at [26]: It is correct that a failure to give reasons is an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration: Moloney v Collins [2011] NSWSC 628. The duty does not require a court or tribunal to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58]. 1. In NSW Land and Housing Corporation v Orr [2019] NSWCA 231, Bell P (as the Chief Justice of the Supreme Court of New South Wales was then) with whom Ward JA (as the President of the Court of Appeal was then) agreed, identified the applicable principles as follows (at [66]-[77]): 66. In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: … 67. Whilst all decision makers, be they judges or tribunal members, should aspire to high quality decision making, an integral part of which is the formulation of clear reasons for decision … 68. … the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: … 69. An important question which is raised by the present case concerns the detail of reasons required of NCAT for a discretionary decision, particularly bearing in mind that there is no right of appeal from the Tribunal's decision other than on a question of law (although a broader appeal may be permitted with leave of the Appeal Panel) … 70. As to the … the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court. 71. That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. … 74. … the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it." (emphasis added)
The tenant claims that the Tribunal failed to properly consider s 87 of the RT Act. That section relevantly provides: (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that - (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following - (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy.
Minds may differ as to whether the Member invoking "in the circumstances of the case" in his oral reasons sufficiently addressed s 87, although we rather think he did not.
The tenant also submitted that the members failed to consider the mandatory factors in s 154E of the RT Act. Section 154E provides: 154E Exercise of discretion to make termination order (1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following - (a) the effect the tenancy has had on neighbouring residents or other persons, (b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated, (c) the landlord's responsibility to its other tenants, (d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord, (e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal. (2) This section does not limit any other matter that may be considered by the Tribunal under this Act.
Section 154E is found in Subdiv 4 (Breach of Agreement) of Div 4 (Fixed term agreements) of Pt 7 (Social housing tenancy agreements) of the RT Act.
It was common ground that there was a social housing tenancy agreement between the landlord and the tenant.
We accept that there was some evidence before the Tribunal which was discussed during the hearing about the matters referred to in ss 154E (a), (b), (d) and (e). But clearly the Member did not refer to s 154E explicitly or even implicitly in his reasons.
Finally, the tenant submitted that the reasons were inadequate.
We agree. We are not satisfied that the reasons for decision conform with the acceptable minimum standard referred to in Orr. That is because, in our view, the oral reasons do not record any findings on material questions of fact (such as the fact of the breach of the social housing tenancy agreement and how the evidence established that breach, the Tribunal's understanding of the applicable law, or the reasoning processes that lead the Tribunal to the conclusions it made.)
In short therefore, we consider that the tenant has significantly strong prospects of success on appeal.
This matter militates very strongly in favour of an extension of time for the filing of the Notice of Appeal.

Conclusion

The Appeal Panel also stated in Jackson at [22] that 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 the following: (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]; … (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].
We note that Jackson also involved a social housing tenancy agreement. The Appeal Panel noted that, as to the length of delay, "it was only approximately five weeks": Jackson at [25]. Nevertheless, the Appeal Panel went on to comment (also at [25]: Nonetheless, it should be borne in mind that there is a very short period in which appeals may be lodged in respect of residential tenancy decisions. It is only 14 days, compared to the general position which permits a Notice of Appeal to be lodged within 28 days - see rule 25(4)(b) and (c) of the Rules. This difference reflects the nature of residential tenancy matters and the legislature's balancing of the rights of landlords and the rights of tenants. In the circumstances of this case, the length of delay does not tell substantially in favour of either granting or not granting the extension of time sought.
For the reasons set out at length by the then President of the Tribunal, Robertson J, and Deputy President Westgarth, the application to extend the time for filing the notice of appeal was refused. This was because "the appellant's lack of prospects of success militates against granting an extension of time": Jackson at [39].
This is not the position here, where the appellant has very strong prospects of success.
The evidence of hoarding, along with the fact that the tenant had been referred by DCJ to NEAMI National as part of its Sustaining Tenancies in Social Housing program, suggests a vulnerable social housing tenant.
While there has been a lengthy delay in the filing of the notice of the appeal, we consider that the interests of justice warrant an extension of time in which to file the notice of appeal.

Disposition of appeal

We turn now to the appeal. This can be dealt with simply. The appeal could be allowed for any of the three questions of law agitated in the Notice of Appeal.
In our view, the Tribunal erred:

by not properly applying the test under s 87 of the RT Act; that is, it failed to state how it was the circumstances of the breach of the social housing tenancy agreement was sufficient to justify termination of the tenancy;
by failing to have regard to the factors in s 154E of the RT Act, which were mandatory considerations;
by failing to provide adequate reasons for its decision.

The appeal should be allowed.
The appropriate course is for the matter to be returned to the Tribunal for redetermination by another Member. Given the passage of time we think it appropriate that the parties have leave to file further evidence in addition to that which was before the Tribunal on 14 October 2022.

Orders

The Appeal Panel makes the following orders: 1. Extend the time for filing the notice of appeal to 10 December 2022. 2. Allow the appeal. 3. Discharge the stay ordered on 23 December 2022. 4. Remit the matter to the Tribunal (differently constituted) for redetermination. 5. The decision of the Tribunal in SH 22/43125 of 14 October 2022 is set aside.

Endnotes

Letter to the tenant from NSW Family and Community Services dated 31 January 2020
Letter to the tenant from NSW Family and Community Services dated 23 April 2020
Letter to the tenant from NSW Family and Community Services dated 28 May 2020 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 15 February 2023 - Coversheet and Paragraph 67: order (5) added. Paragraph 6: order (3) added, after order (2); previous orders (3) and (4) , now (4) and (5), respectively. 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 February 2023

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Cases Cited (17)