Stedman v Kennedy

REasONS FOR DECISION

1. Seven months after entering into a one-year residential tenancy agreement (the Agreement) with Mathew and Elizabeth Kennedy (the Kennedys), Scott Stedman and Sarah Dicker (the Tenants) vacated the premises leased under that Agreement. Subsequently the Kennedys made an application to the New South Wales Civil and Administrative Tribunal (NCAT) claiming that in breach of the Agreement, the Tenants had abandoned the subject premises. Among other things, the Kennedys sought compensation for the alleged loss caused by the purported abandonment and for leaving the premises in an "unsatisfactory state".
2. In a decision made on 19 November 2015, the Tribunal: 1. Declared invalid the notice of termination issued by the Tenants on 16 July 2015 2. Declared under s 106 of the Residential Tenancies Act 2010 (NSW) (the Act), that the Tenants abandoned the premises on 10 August 2015 3. Ordered under s 107 of the Act, the Tenants to pay the Kennedys $1240 for abandoning the premises 4. Ordered under s 187(1)(d) of the Act, the Tenants to pay the Kennedys $1545 in compensation for "cleaning and repairs".
3. The Tenants now appeal against that decision. The primary ground of Appeal is that the Tribunal misconstrued ss 98 and 106 of the Act. In addition, the Tenants contend that by refusing to grant their request to be represented by a tenant advocate, the Tribunal misapplied s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

Background to the decision under appeal

1. The Agreement commenced on 19 February 2015.
2. On 4 May 2015 Mr Stedman wrote to the agent appointed to manage the premises about problems relating to the ceiling of the shed attached to the house: These issues risk the habitability of the entire premises. You sent a builder to my premises and he installed a temporary fix. Since that date nothing has been done. I remind you are in breach of Residential Tenancies Act 2010 (NSW) s 63. If no arrangements are made by 5.00 pm 15 July 2015 to return the property to habitable state then action will be taken against you in [NCAT] or the lease will be terminated. ….
3. In an email sent to the agent on 7 July 2015, Mr Stedman wrote: Dear Property Manager In early May 2015, I reported to you the issues surrounding my shed of which is attached to my house. These issues risk the habitability of the entire property. You sent a builder to my property and he installed a temporary fix. Since that date nothing has been done. I remind you that you are in breach of Residential Tenancies Act 2010 (NSW) s63. If no arrangements are made by 5:00pm 15 July 2015 to return the property to a reasonable and habitable state then action will be taken against you in the Civil and Administrative Tribunal and or the lease will be terminated. Once arrangements are made please contact me via email. I note that if action is taken against you in the Civil and Administrative Tribunal a retrospective rent reduction will be sought too. If you agree to terminate the lease in accordance with section 81(4)(e) the please confirm this agreement via return email. …
4. On 16 July 2015 the Tenants handed the agent a "termination notice", which stated that they intended to terminate the Agreement and give vacant possession on 10 August 2015 (the Notice). The Notice stated that the ground for terminating the Agreement was "section 63 - failure to do repairs".
5. On 10 August 2015 the Tenants vacated the premises and returned the keys to the Agent.
6. On 9 September 2105 the Kennedys lodged an application with NCAT seeking, among other things, a declaration that the Tenants had abandoned the premises (the Application). The Application was listed for conciliation on 25 September 2015. The parties did not reach agreement. Following a hearing conducted on 19 November 2105, the Tribunal made the orders set out at [2] above. The following day the Tribunal gave written reasons for its decision (the Reasons).

Grounds of Appeal

1. The decision under appeal is an "internally reviewable decision" (ss 4, 32(4) of the NCAT Act). A party may appeal an internally reviewable decision on any question of law or with the leave of the Appeal Panel on any other ground (s 80(2)(b) of the NCAT Act).
2. Where, as in this case, the decision which is the subject of the appeal is a decision of the Consumer and Commercial Division of NCAT, cl 12 of Schedule 4 to the NCAT Act limits the circumstances in which an Appeal Panel may grant leave to appeal: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: … (b) the decision of the Tribunal under appeal was against the weight of evidence, or …
3. In submissions filed on 28 January 2016, the Tenants narrowed the grounds listed in their Notice of Appeal to the following: 1. In refusing to grant leave for Mr Wasile to represent the Tenants in the proceedings, the Tribunal misconstrued s 45 of the NCAT Act 2. The Tribunal failed to exercise jurisdiction by not addressing "motion to dismiss at first instance" 3. The Tribunal misapplied ss 98 and 106 of the Act by declaring that the Tenants had abandoned the premises 4. The decision in relation to the award for compensation made under s 187(1)(d) was against the weight of evidence.

Ground 1: Did the Tribunal misconstrue s 45 of the NCAT Act?

1. The Tenants contend that by refusing to permit them to be represented at the hearing, the Tribunal misconstrued s 45(1)(b) of the NCAT Act. Among other things, they contend that the Tribunal erred by finding that Mr Wasile of the New England and Western Tenants Advice and Advocacy Service (the Service) was an "Australian legal practitioner". Further they submit that the decision was not "fair and equitable" because it meant they were required to represent themselves without notice in proceedings that involved complex questions of statutory construction and where the other party was represented by a real estate agent who they assert is an "expert in tenancy law".
2. The Kennedys disagree.
3. In its Reasons at [7] the Tribunal gave this explanation for its decision to refuse to grant leave for Mr Wasile to represent the Tenants (the Representation Decision): a. On his own admission, he is an Australian legal practitioner within the meaning of the NCAT Act and the Legal Profession Uniform Law (NSW); b. No leave had been sought in writing or otherwise earlier in these proceedings for the respondent to be legally represented, thereby also giving opportunity for the applicant to seek leave to be legally represented or oppose the application for leave; c. the issues were not of such complexity as to warrant legal representation; d. the effect of sect 45 of the NCAT Act, with Clause 7, Sched 4, and regulations 31-33, and the Tribunal's Guidelines on the representation of parties in the Consumer and Commercial Division, intend that leave to be legally represented will, in residential tenancy matters, only be granted in special circumstances. No submissions were made as to any special circumstances by the respondent as to the nature of the case.
4. Section 45 of the NCAT Act provides: 45 Representation of parties (1) A party to proceedings in the Tribunal: (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave: (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner for a particular or any Australian legal practitioner to represent the party. … (3) The Tribunal may at its discretion: (a) grant or refuse leave under subsection (1) (b), and (b) revoke any leave that it has granted. …

Did the Tribunal misapply the definition of "Australian legal practitioner"?

1. The term "Australian legal practitioner" means "an Australian lawyer who holds a current Australian practising certificate": s 21 of the Interpretation Act 1987 (NSW).
2. The Tenants concede that at the time of the hearing Mr Wasile was an Australian lawyer holding an Australian practising certificate. However, they assert that the Tenants Service is not a "law practice" and, a consequence, when appearing for the Service, Mr Wasile was acting as "a tenant advocate with legal qualifications", not an Australian legal practitioner.
3. For current purposes we will assume but not decide that the Tenants Service is not a "law practice" as defined by s 6 of the Legal Profession Uniform Law (NSW). We are unaware of, and have not been referred to, any provision within the Legal Profession Uniform Law or other legislative instrument, which supports the proposition advanced by the Tenants that the term Australian legal practitioner should be read down to mean an Australian legal practitioner engaged by a law practice. It follows that whether the Service is a law practice is irrelevant to the question of whether Mr Wasile is an Australian legal practitioner for the purpose of s 45 of the NCAT Act. The Tribunal did not misapply that term. No error of law is disclosed.

Did the Tribunal err by applying a "special circumstances" test?

1. The Tribunal concluded at [7] that in residential tenancy matters in the Consumer and Commercial Division of NCAT, by the combined effect of s 45 and Sch 4 of the NCAT Act, reg 31-33 of the Civil and Administrative Tribunal Regulation 2013 (NSW), and the NCAT Guideline: Representation of parties Consumer and Commercial Division, September 2015 (the Guideline), leave for a party to be legally represented can only be granted in special circumstances.
2. The starting point under s 45 of the NCAT Act is that a party to proceedings "has carriage of their own case and is not permitted to be represented by any person": s 45(1)(a). A person may be represented by an Australian legal practitioner (or a person who is not an Australian legal practitioner) only if the Tribunal grants leave: s 45(1) of the NCAT Act. The Tribunal may at its discretion grant leave under s 45(1)(b): s 45(3) of the NCAT Act.
3. In exercising the discretion to permit the Tenants to be legally represented, the Tribunal was required to apply the "guiding principle": to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36 of the NCAT Act.
4. Given that in proceedings before the Consumer and Commercial Division of NCAT a party is not entitled to be represented and has carriage of their own case, before exercising the discretion under s 45(3), the Tribunal must be satisfied, that there is some basis to warrant its exercise. However, we are unable to agree with the proposition advanced by the Tribunal that the discretion can only be exercised where special circumstances are established. Neither the NCAT Act, the Civil and Administrative Tribunal Regulation 2013 (NSW), the Civil and Administrative Tribunal Rules 2014 (NSW) nor the Guideline state that special circumstances must be established before the discretion can be exercised.
5. In construing s 45 of the NCAT Act as imposing a "special circumstances" threshold, the Tribunal fettered its discretion and asked the wrong question. This constitutes an error of law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 [82].

Should leave to appeal be granted?

1. As this ground of Appeal involves an interlocutory decision, the appeal can only be made with the leave of the Appeal Panel: s 80(2)(a) of the NCAT Act. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel discussed at [84] the principles that govern the grant of leave to appeal. The Appeal Panel emphasised that to be granted leave, an appellant must demonstrate something more than that the decision-maker was arguably wrong in the conclusion at which it arrived. The Appeal Panel commented at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or an injustice which is reasonably clear, in the sense of going beyond 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.
2. As the analysis above reveals, the Tribunal misdirected itself in the exercise of a discretion. This was central and not peripheral to the Representation Decision. A different decision may have been made had the Tribunal not misdirected itself. Given these circumstances we have decided it is appropriate to exercise the power conferred by s 82(2) of the NCAT Act and grant the Tenants leave to appeal.
3. In addition, we have decided to set aside the Representation Decision and order that it be reconsidered in accordance with these Reasons.

Grounds 2 and 3: Did the Tribunal misapply s 98 of the Act?

1. Grounds 2 and 3 are related and turn on the proper construction of s 98 of the Act. We have decided to proceed to address these grounds because even if, on reconsideration a different decision is made about representation, in the hearing of the Appeal the Tenants have had the opportunity to address any perceived shortcomings in the submissions they made in the original proceedings about the operation of s 98 of the Act.
2. The Tenants contend that the Tribunal misapplied s 98 of the Act by failing, first, to consider whether the Kennedys' application to revoke the Notice was made within time, and, second, to address the stated ground of termination.
3. The Tenants assert that the Notice was valid and by the operation of s 81(2) of the Act, the Agreement terminated on 10 August 2015, the day they vacated the premises.

Statutory framework

1. Part 5 Division 1 of the Act is headed "Termination of residential tenancies". Contained in that Division, s 81 states: Circumstances of termination of residential tenancies 81 Circumstances of termination of residential tenancies (1) Termination only as set out in Act A residential tenancy agreement terminates only in the circumstances set out in this Act. (2) Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises. (3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act.
2. Section 82 states: 82 Termination notices (1) A termination notice must set out the following matters: (a) the residential premises concerned, (b) the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given, (c) if the notice is not given under section 84, 85, 96 or 97, the ground for the notice, (d) any other matters prescribed by the regulations. (2) A termination notice must be in writing and be signed by the party giving the notice or the party's agent. (3) A termination notice for a periodic agreement may specify a day other than the last day of a period for the payment of rent as the termination date.
3. Section 98 states: 98 Breach of agreement-termination notice by tenant (1) A tenant may give a termination notice on the ground that the landlord has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord made before the termination date and within the period prescribed by the regulations, revoke a termination notice by a tenant if satisfied that the landlord has remedied the breach and that it is appropriate, in the circumstances of the case, to continue the tenancy. Note: The tenant may apply directly to the Tribunal on the ground of breach by the landlord for a termination order without first giving notice (see section 103).
4. Section 111 of the Act states: Disputes about termination 111 Disputes about termination (1) A landlord or tenant may apply to the Tribunal for an order in relation to a dispute about a termination notice. (2) The Tribunal may, on application by a landlord or tenant, declare that a termination notice was or was not given in accordance with this Part. (3) Subsection (2) does not limit any other order the Tribunal may make on an application under this section.

Did the Tribunal fail to consider whether the "application" to revoke the Notice was made within time?

1. The Tenants contend that the Tribunal failed to address their submission that the application brought by the Kennedys to revoke the Notice was made outside the time limits imposed by the Act. An application by a landlord to revoke a termination notice must be made within seven days after the landlord was served with that notice: s 98(4) of the NCAT Act and reg 22(4) of the Residential Tenancies Regulation 2010 (NSW).
2. The Tenants contention is based on two mistaken assumptions. First, that the Kennedys made an application to NCAT to revoke the Notice, and second, that the Tribunal revoked the Notice under s 98(4) of the Act.
3. Neither the initiating application nor the amended application lodged by the Kennedys on 8 October 2105 were stated to be, or could be construed as being, an application made under s 98(4) to revoke the Notice. Not surprisingly, therefore the Tribunal did not address whether the power to revoke the Notice should be exercised. Instead the Tribunal approached the Application by first asking whether the Notice was "valid": at [11]. Reasoning that the stated ground of termination had not been established, the Tribunal answered no to that question: Reasons at [13].
4. Implicit in this ground of appeal is the proposition that without an order made under s 98(4) of the Act, a residential tenancy agreement will automatically terminate on the date specified in the notice of termination given under s 98(1). This contention sits uncomfortably with the power conferred by s 111 of the Act to declare that a termination notice was or was not given in accordance with Part 5 of the Act. In our view, the scope of that power is not limited to considering whether the form of the subject notice complies with the relevant provisions of the Act but includes consideration of whether the stated ground for the termination is established. That was the approach taken by the Tribunal in this case.
5. Absent an application made under s 98(4) of the Act, the Tribunal was not required, and indeed lacked the power, to determine whether the discretion to revoke the Notice should be exercised. It follows that the question of whether the purported application was in time, simply did not arise.
6. No error of law is disclosed.

Did the Tribunal err in determining that the Notice was invalid?

1. The Tenants contend that in determining whether the Notice was valid the Tribunal proceeded upon a mistake of fact, namely that the ground for termination set out in the Notice was the Kennedy's alleged failure to provide the premises in a state fit for habitation by the Tenants, in breach of s 52 of the Act.
2. The Kennedys disagree. They contend that at the hearing the Tenants submitted that the premises were uninhabitable. They assert that the Tribunal was correct to reject that submission and find that it was the "uncooperative attitude of the tenants that led to the delay in rectifying the problem and not any negligence by the landlord or their agent".
3. Sections 52 and 63 of the Act relevantly state: 52 Landlord's general obligations for residential premises (1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. … 63 Landlord's general obligation (1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. … Each of these provisions is a term of every residential tenancy agreement: ss 52(4) and 63(4) of the Act.
4. The Tribunal identified the issue for determination to be: [W]hether the respondent tenants had served a valid sect 98 notice due to a partial "letting go" of the garage ceiling, the respondents arguing that this caused the premises to be uninhabitable.
5. The Tribunal went on to find at [12] that the Notice was invalid for the following reasons: a. lack of merit in the grounds alleged in the notice of the garage roof condition making the premises uninhabitable; b. the applicant relied on an admitted building report that described the premises as having a partially "let go " ceiling due to insufficient glue. The building was however described as acceptable/fair and no safety issues were raised; c. the respondents did not tender any evidence of an expert, tradesman or third party as to whether the condition of the garage ceiling made the building uninhabitable, but relied solely on the opinion of Mr Stedman; d. the Tribunal accepts that temporary repairs were made to the ceiling and that the work hours of Mr Stedman away from the premises, and his unavailability, delayed the access to and complete repair of the premises, but also accepts that the applicant was making genuine attempts to complete repairs. (Emphasis added)
6. For convenience we will refer to the decision that the Notice was invalid as "the Termination Decision".
7. The Notice stated: The termination notice relies upon Residential Tenancies Act 2010 (NSW) section 98. The Breaches are against the following sections of the Residential Tenancies Act 2010 (NSW): Section 63 - failure to do repairs despite ongoing and repeated notice (Emphasis added)
8. The Reasons at [12] reveal the Tribunal mistakenly assumed that the stated ground for termination was the Kennedy's alleged failure to provide the premises in a state fit for habitation. While some overlap between the obligation to provide residential premises in a reasonable state of cleanliness and fit for habitation (s 52) and the obligation to provide and maintain the premises in a reasonable state of repair (s 63), they are not one and the same thing. The obligation under s 52 imports notions of health and safety, see for example, Hampel v South Australian Housing Trust [2007] SADC 64 at [63], cited in NSW Land and Housing Corporation v Woodward [2015] NSWCATAP 164 at [19] and Bhandari v Laming [2015] NSWCATAP 224 at [38]. On the other hand, premises that are not maintained in a reasonable state of repair will not necessarily pose a risk to the health and safety of the tenant(s) or be otherwise unfit for their habitation.
9. While neither party raised this issue we considered whether the following passage indicates that the Tribunal may have addressed whether the Kennedys had failed to maintain the premises in a reasonable state of repair at [19]: d. the Tribunal accepts that temporary repairs were made to the ceiling and that the work hours of Mr Stedman away from the premises, and his unavailability, delayed the access to and complete repair of the premises, but also accepts that the applicant was making genuine attempts to complete repairs.
10. The above passage appears to be a reference to s 65(3)(b) of the Act which instructs that the Tribunal must not find that a landlord has breached the obligation to maintain the premises in a reasonable state of repair unless it is satisfied that the landlord failed to act with reasonable diligence to have the repairs carried out. While this passage indicates that the Tribunal gave consideration to whether the Kennedys had taken steps to repair the premises, in our opinion it falls short of a positive finding that the Kennedys failed to act with reasonable diligence to have the repairs carried out.
11. Even if, as the Kennedy's claim and the Tenants dispute, the focus of the Tenants' submissions at hearing was the habitability of the premises, this does not excuse the Tribunal from the obligation to address whether the ground stated in the Notice had been established. This failure constitutes an error of law.
12. As a consequence, we have decided to uphold this ground of Appeal, to set aside Orders 1, 2 and 3 and to remit for reconsideration the question of whether the stated ground of termination, as set out in the Notice, is established.

Ground 4: Was the decision in relation to the claim for compensation against the weight of evidence?

1. The Tenants contend that the decision made by the Tribunal to award the Kennedys compensation under s 187(1)(d) of the Act, in the sum of $1450, was against the weight of evidence (the Compensation Decision).
2. We raised with the parties at hearing our concern that the paucity of reasons given for the Compensation Decision made it difficult if not impossible to discern what evidence was considered and accepted by the Tribunal and, in particular on what basis the award for compensation for the replacement of the carpet was made.
3. While not expressly raised as a ground of appeal, the adequacy or otherwise of the reasons given for the Compensation Decision, in our opinion is squarely raised by the available material and the Reasons, and implicitly by the submissions made by the Tenants about the alleged lack of a proper foundation for the ultimate conclusion reached about compensation. Generally, where Appeal Panels of NCAT have proceeded to determine an appeal on a ground not articulated, the appellant has been self-represented, see for example, Khan v Kang [2014] NSWCATAP 48, Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 and Cominos v Di Rico [2016] NSWCATAP 5. In our opinion where fairness dictates in appropriate cases that approach can also be adopted where the appellant is represented, subject of course, to procedural fairness considerations.
4. In this matter the Stedmans had the opportunity to make submissions about the adequacy or otherwise of the reasons given for the Compensation decision. They did not dispute the proposition that the reasons given fell short of the requirement imposed by s 62(3) of the NCAT Act.
5. While not required to give "lengthy or elaborate reasons", the Tribunal was nonetheless required to articulate the "essential ground or grounds upon which the decision rests": Collins at [54] citing Sydney Supermarkets Pty Limited v Xu [2009] NSWADTAP 28 at [60] and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280. Any statement of reasons must meet the requirements of s 63(3) of the NCAT Act, which require that reasons contain: (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, (c) the reasoning processes that lead the Tribunal to the conclusions it made.
6. In our view, the reasons given for the Compensation Decision fail to meet the minimum standard contemplated by the Appeal Panel in Collins and to comply with s 63(3) of the NCAT Act.
7. The Tribunal's failure to give adequate reasons for the Compensation Decision constitutes an error of law. We have decided to set aside this part of the decision and to remit it for reconsideration by the Tribunal without further evidence.

Orders 1. Leave to appeal the Representation Decision is granted. 2. The appeal in relation to the Representation Decision is allowed. 3. The Representation Decision is set aside and remitted for reconsideration by the Tribunal. 4. The Appeal in relation to the Termination Decision is upheld in part. 5. Orders 1, 2 and 3 of the Decision under Appeal are set aside. 6. The Termination Decision is remitted to the Tribunal for reconsideration in accordance with [52] of these Reasons. 7. The Compensation Decision is set aside (Order 4 of the decision under appeal). 8. The Compensation Decision is remitted to the Tribunal for reconsideration in accordance with these Reasons without further evidence.

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 26 August 2016 - Corrected numbering on cover sheet. 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: 26 August 2016