Tanious v NSW Land and Housing Corporation

Judgment

1. His Honour: By a summons filed on 20 December 2018, Mr Mofeed Tanious ("the plaintiff"), seeks leave to appeal a decision of the NSW Civil and Administrative Tribunal Appeal Panel ("the Appeal Panel") dated 30 November 2018, dismissing an appeal by the plaintiff against a decision of the NSW Civil and Administrative Tribunal ("the Tribunal") which is dated 1 June 2018. The defendant to the appeal is the NSW Land and Housing Corporation ("the defendant").
2. The background to the application is that the plaintiff and the defendant entered into a social housing residential tenancy agreement ("the Agreement") pursuant to which the plaintiff was granted a right to occupy a freestanding brick and tile house in a suburb of Sydney ("the property"). The plaintiff's late mother was originally the tenant, and the tenancy was transferred to the plaintiff following her death.
3. A term of the Agreement was as follows: "ALTERATIONS AND ADDITIONS TO THE PREMISES 25. The tenant agrees: 25.1 not to install any fixture or renovate, alter or add to the residential premises without the landlord's written permission."
4. In 2013, the defendant became aware that the plaintiff had affixed metal shutters, made of strips of scrap metal, across the external windows and some doorframes of the property ("the shutters"). The shutters had small slots at the top, but otherwise covered the window openings. The defendant had not been asked for permission to do so.
5. The defendant requested the plaintiff to remove the shutters, advising that if he did not do so, the defendant would issue a termination notice. The shutters were not removed.
6. In October 2015, the plaintiff claimed in a telephone call to staff of the defendant that he had verbal approval for the fixing of shutters from a Mr Veldhoen, who was a technical officer employed by the defendant. The plaintiff was informed by email from the defendant that Mr Veldhoen denied having given approval.
7. On 3 November 2015, the defendant issued a notice to terminate the Agreement on various grounds, including that pursuant to s 87 of the Residential Tenancies Act 2010 (NSW), the defendant breached the Agreement by installing shutters without the written consent of the defendant. The plaintiff did not vacate, and in 2016, the defendant commenced proceedings in the Tribunal. The plaintiff appeared in that proceeding, as he has appeared in all subsequent proceedings, including these proceedings, without legal representation.
8. Tendered before the Tribunal was a letter from Hurstville City Council (as it then was) to the defendant, dated 15 April 2016, directing the defendant to remove the shutters within seven days from the date of a letter authorised by Mr Daniels, District Building Surveyor. Mr Daniels contended that the shutters were a health and safety risk to the plaintiff, by reason of not allowing sufficient light and ventilation; and that they would impede the plaintiff escaping the property and emergency services entering the property, if there is a fire.
9. The Tribunal found that the plaintiff did not dispute that he did not have the defendant's written consent to install the shutters. Further, it found that the shutters were fixtures, but if they were not, they were certainly alterations, and therefore, cl 25.1 of the Agreement had been breached.
10. In its judgment dated 10 August 2016, Tanious v NSW Land and Housing Corporation [2016] NSWCATCD 57, the Tribunal ordered the plaintiff to remove the shutters within 14 days, that is, by 24 August 2016.
11. The plaintiff sought leave from the Appeal Panel to appeal the Tribunal's decision. Leave was declined and the appeal dismissed, in a judgment handed down on 15 November 2016.
12. The plaintiff unsuccessfully sought leave to appeal the Appeal Panel's decision to the Court of Appeal. On 7 March 2017, the application was dismissed: Tanious v NSW Land and Housing Corporation [2017] NSWCA 43. The plaintiff then filed a notice of motion seeking an order that the orders of the Court of Appeal be set aside. That was dismissed on 27 March 2017: Tanious v NSW Land and Housing Corporation (No 2) [2017] NSWCA 66. The applicant then sought special leave to appeal to the High Court against that judgment, which was refused on 20 November 2017.
13. On 15 January 2018, the defendant issued a notice of termination on the plaintiff for failing to remove the shutters. On 14 March 2018, the defendant filed an application in the Tribunal seeking a termination order in respect of the Agreement on the basis that the plaintiff had breached the Agreement and that he had failed to comply with the Tribunal's orders dated 10 August 2016.
14. In the subsequent hearing, Mr Daniels gave evidence and was cross-examined by the plaintiff. The plaintiff wished to call Mr Veldhoen, who was overseas and thus unavailable. The plaintiff sought an adjournment so that he could call Mr Veldhoen. In their judgment at [20], the Tribunal considered this application and stated as follows: "… The tenant sought to have the matter adjourned to have Mr Veldoen attend the Tribunal. The Tribunal accepted and there was no objection from the respondent, that a conversation occurred between the tenant and Mr Veldoen on 12 August 2015, where Mr Veldoen may have used words to the effect of 'If anyone from the department of housing asking the resident anything telling them Mr Alex has had idea about that work.' The tenant concedes that Mr Veldoen did not give him any permission but seeks to submit that Mr Veldoen's opinion that the panels were acceptable and did not need to be removed is implied in the conversation. The tenant used the following words in his summons documents to Mr Veldoen: 'Your opinion was an expert opinion only.' The Tribunal having accepted that this conversation had occurred, there was little utility or relevance in adjourning the proceedings to enable Mr Veldoen to confirm the conversation."
15. On 1 June 2018, the Tribunal ordered the termination of the Agreement and extended the period for the plaintiff to give possession of the property to the defendant to 1 September 2018. On 2 October 2018, the plaintiff filed an application for leave to appeal the Tribunal's decision and orders. On 30 November 2018, the Appeal Panel refused leave and dismissed the appeal. It is from this decision that the plaintiff now seeks leave to appeal.
16. Section 83 of the Civil and Administrative Tribunal Act 2013 (NSW) provides as follows: "Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings."
17. In Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164, Basten JA (Tobias JA agreeing), identified, at [32], the principles which are relevant to leave applications, namely, "the applicant must demonstrate something more than that the trial judge [in this case the Tribunal] was arguably wrong in the conclusion arrived at". The appeal must concern "matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable": at [33].
18. In an application for leave to appeal pursuant to s 83 of the Civil and Administrative Tribunal Act, it is appropriate for the summons to identify the questions of law on which leave is sought: see, for example, Corcoran v Far [2019] NSWSC 1284 per McCallum J at [26]. With that in mind, I turn to the summons.
19. The orders sought are as follows: "1. Leave to appeal from the whole of the decision below. 2. Appeal to be allowed alternatively court order for the respondent to accept withdrawal of the notice of termination, pay the cost all of this proceedings as well as the previous proceedings all in relation to the mentioned metal cover as it all have been a sort of error and miscarriage of justice and respondent must not to withhold permission for the applicant reinstalling alternative to the metal cover according to clause 26 of the residential tenancy agreement specially applicant on 4th December 2018 has already applied for such a permission."
20. I note that it is apparent that Mr Tanious' first language is not English and he is not entirely fluent in English. It is therefore appropriate for the Court to make an appropriate allowance for Mr Tanious' language difficulties. He is entitled to represent himself and to express his case to the best of his ability, which he has chosen to do so.
21. Although the second order sought is somewhat obscure, it appears to me that no question of law is apparent from the terms of either order that is sought. Again, given the fact that the applicant is self-represented, it is in my view appropriate to have regard to all of the material, both filed by the plaintiff and otherwise on the court record, to discern if there is apparent in that material a question of law. The plaintiff filed an affidavit with the summons, which comprised eight additional documents mostly of a nature that do not assist in identifying possible questions of law. One document, however, is titled "A Summary of the Plaintiff's Argument". That document identifies two questions under the heading "The Questions Involved As Follows", clearly meant to be "The Questions Involved Are As Follows".
22. The first question refers to alleged contradictions in the evidence of Mr Daniels which do not, in my view, involve a question of law.
23. The second, as best as I can understand it, submits that there was an absence of evidence in the plaintiff not being granted an adjournment to call Mr Veldhoen. I have referred to the explanation provided in the judgment of the Tribunal as to why there was not an adjournment granted by the Tribunal to enable the plaintiff to call Mr Veldhoen on his return to Australia. In my view, there is nothing arising from that part of the Tribunal's judgment which gives rise to a question of law.
24. It is appropriate at this stage to make some observations about the judgment of the Appeal Panel. The judgment was given ex tempore on 30 November 2018. The Appeal Panel referred to the judgment of the Tribunal, a brief history of the matter and the findings of the Tribunal on 10 August 2016 in relation to the nature of the shutters being fixtures or additions, as part of its review of the history of the matter.
25. The Appeal Panel acknowledged the submissions that were raised by the plaintiff and responded to each of them. In particular, it addressed concerns expressed by the plaintiff in relation to the evidence of Mr Daniels. The Appeal Panel noted that Mr Tanious addressed that issue at some length and attacked the evidence that had been given by Mr Daniels when he had appeared before the Tribunal and was cross-examined. The Appeal Panel expressed the finding that Mr Tanious' submissions on that issue were misconceived. It noted that the Tribunal had found that the plaintiff had breached the terms of the Agreement by not having the written consent of the landlord to install the shutters.
26. The Appeal Panel also noted Mr Tanious' submission that the Tribunal had given too much weight to the opinion of Mr Daniels. The Appeal Panel responded that it was clear that the remarks of the Tribunal in respect of Mr Daniels were obiter since they were not central to the Tribunal's decision-making process. In other words, the Appeal Panel found that what the Tribunal said about Mr Daniels was not actually relevant to the decision to terminate the residential tenancy agreement and order that vacant possession of the premises be given.
27. The summary of the plaintiff's argument that was filed on 20 December 2018, as best I understand it, does not raise any further issue that is beyond submissions concerning the evidence of Mr Daniels and the absence of an opportunity for the plaintiff to call evidence from Mr Veldhoen.
28. The plaintiff filed supplementary written submissions on 20 September 2019. In the course of the hearing today, I took the plaintiff through both sets of written submissions so as to better understand what it was that he was submitting and whether there was any relevance to those submissions. The supplementary written submissions comprise two pages, and it appears to me that the only possible question of law arising from them was that the plaintiff noted that on 4 August 2019, that is, nine months after the appealed-from decision, he had received an offer of an extension of his tenancy from the defendant in the form of a letter, which he tendered and which is marked Exhibit D.
29. The defendant, who is represented by Mr O'Connor of counsel, has submitted to me that the issuance of that letter was clearly an error on the part of the defendant and, in any event, the fact of it being sent and received does not import any implied concession by the defendant in these proceedings. The nature of the letter appears to be an offer of an extension of the lease for two years. It appears to be a pro forma type letter that explains to the tenant the process involved in the defendant considering whether to extend the tenancy. That being the case, I do not regard the submissions of the plaintiff in respect of the letter that he received as raising any question of law.
30. The supplementary written submissions refer as well to an issue that was raised in the proceedings before the Appeal Panel concerning the timing of the lodging by the plaintiff of his application for that appeal. The Appeal Panel in its judgment referred to the issue as "one final issue" and noted that the plaintiff explained that his application was late because he did not receive notice of the decision of the Tribunal until 26 September 2018, being 26 days after the three month period of grace provided by the Tribunal. The Appeal Panel concluded: "Given our views on the merits of the appeal, it is not necessary to decide this matter. We note that the Tribunal file in fact showed that the decision was sent to the appellant at his home address on 1 June 2018 but that nothing was returned to the registry 'return to sender'. Nevertheless, we heard what [the plaintiff] said today about that matter."
31. I should say that that observation was made by the Appeal Panel in response to an apparent application by the defendant in that proceeding, that the lateness of the lodging of the appeal was relevant to whether leave should be granted to the appeal. In other words, as I have explained to the plaintiff, the Appeal Panel did not place any weight on that late filing and considered the appeal on its merits.
32. There is a further matter that the plaintiff raised in his supplementary written submissions, which he has placed considerable weight upon in his oral submissions at the hearing today. This is that in October 2018 he finally removed the shutters from the property and, on 4 December 2018, he wrote to the defendant, seeking permission to fix an alternative form of security material to the windows. I quote the relevant paragraph of his written submissions: "On 26 December 2018, plaintiff has installed alternative to the previously removed shutter in a form of one-way security mesh with metal frame from outside, that is to say some technical changes plaintiff has done in order to maximising ventilation and lighting inside the premises. At the time defendant has not yet issued any further permission, although plaintiff has applied for permission on 4 December 2018."
33. The plaintiff orally submitted to me that in accordance with his written submission, having written to the defendant on 4 December 2018 requesting permission to fix or add a different form of metallic security mechanism to the windows, that he was entitled to go ahead and do so, which he said he did on 26 December 2018.
34. I also note that the defendant has tendered an affidavit of Hetshri Ayer sworn on 1 October 2019. The affidavit is to the effect that in September 2019 Ms Ayer attended the property and observed some of the windows to have fixed to them metal sheeting. I note the relevance of that evidence to the quoted part of the supplementary written submissions of the plaintiff.
35. In my view, evidence of what the plaintiff has done or not done in relation to the shuttering of the windows of the property subsequent to the hearing before the Appeal Panel, the judgment of which is the subject of this appeal, is irrelevant. In any event, I note that the supplementary written submission made by the plaintiff concedes that the fixing of further shutters on the windows of the property in December 2018 was again without the written permission of the defendant.
36. In view of the absence of any question of law submitted by the plaintiff in relation to the judgment of the Appeal Panel of 30 November 2018, the appeal is dismissed and leave to appeal is declined.
37. I note that the defendant does not seek an order as to costs and, accordingly, no order is made.

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