Mr Tanious is the tenant of a residential premises owned by the respondent, the NSW Land and Housing Corporation. His tenancy is governed by a social housing residential tenancy agreement ("the tenancy agreement"). A term of the tenancy agreement is Clause 25, which has the heading:
"ALTERATIONS AND ADDITIONS TO THE PREMISES"
and relevantly provides:
"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."
In 2013 the respondent became aware that Mr Tanious had, contrary to Clause 25.1, fixed metal strips (sometimes referred to in the evidence as "shutters") across the windows and external doors of the premises. He had not sought or been granted permission to do so.
The respondent gave notice to Mr Tanious to remove the metal strips, advising that if he failed to do so it would terminate his tenancy. Mr Tanious did not remove the metal strips. It is worth recording, as briefly as possible, the litigation that ensued.
On 3 November 2015 the respondent issued a termination notice under s 87 of the Residential Tenancies Act 2010 (NSW), citing various grounds for termination and requiring Mr Tanious to vacate the premises. Mr Tanious did not vacate the premises and the respondent commenced proceedings in the Tribunal seeking an order for termination of the tenancy agreement. The respondent failed to appear on 24 February 2016 when that application was listed for hearing and it was dismissed: NSW Housing Corporation v Tanious [2016] NSWCATCD 57 at [4].
On 15 April 2016 the Hurstville Council (now part of the Georges River Council) inspected the premises and directed the respondent within seven days to remove the metal strips. This apparently prompted the respondent to issue Mr Tanious a further termination notice with which he again did not comply. The respondent commenced further proceedings in the Tribunal, seeking, under s 109 of the Residential Tenancies Act, that the tenancy be terminated on the ground that the premises had become uninhabitable. At the hearing of that application on 10 August 2016 the respondent withdrew its application for termination and the Tribunal made an order (NSW Housing Corporation v Tanious [2016] NSWCATCD 57) that Mr Tanious:
"… remove all metal coverings and shutters from the window and door frames of the residential premises in which the tenant resides on or before 14 days from the date of this decision."
By s 80(2)(b) of the CAT Act an appeal lies as of right to an Appeal Panel on any question of law, or, with the leave of the Appeal Panel, on any other ground. Mr Tanious purported to appeal, and sought leave to appeal to an Appeal Panel against that order. The appeal was dismissed and the application was refused: Tanious v NSW Land and Housing Corporation [2016] NSWCATAP 246. He sought leave to appeal against that decision to this Court which refused leave on 7 March 2017: Tanious v NSW Land and Housing Corporation [2017] NSWCA 43. On 20 March 2017 he filed a notice of motion which may be (and was) interpreted as an application under Uniform Civil Procedure Rules 2005 (NSW) Pt 36.16 for an order that the judgment of 7 March 2017 be set aside. That application was refused: Tanious v NSW Land and Housing Corporation (No 2) [2017] NSWCA 66. He sought special leave to appeal to the High Court from that decision. On 15 August 2017 special leave was refused: [2017] HCASL170.
On 15 January 2018 the respondent issued a further notice of termination on the ground that Mr Tanious had failed to remove the metal strips. On 14 March 2018 the respondent filed a further application for termination of the tenancy on the additional grounds that Mr Tanious was in breach of the tenancy agreement and that he had failed to comply with the orders of the Tribunal of 10 August 2016. Evidence was given on the hearing of that application, including by Mr Daniels, an officer of the Georges River Council. Mr Daniel's evidence was to the effect that the metal strips breached relevant building legislation, and that the Council required their removal.
On 30 May 2018 (with reasons given on 1 June 2018) the Tribunal ordered the termination of the tenancy agreement under s 87 of the Residential Tenancies Act on the ground of breach of clause 25 of the tenancy agreement, and allowed Mr Tanious until 1 September 2018 to vacate the property and give vacant possession to the respondent. On 2 October 2018 Mr Tanious filed an application for leave to appeal against that decision to the Appeal Panel of the Tribunal. On 30 November 2018, in an ex tempore decision, leave was refused. It was that refusal that was the subject of the application to the primary judge.
Mr Tanious sought leave, under s 83(1) of the CAT Act to appeal to the Supreme Court against that decision. Leave was refused by the primary judge on 21 November 2019 in the decision the subject of the present application.
In his summons seeking leave to appeal, Mr Tanious identified the orders sought in the following terms:
"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 had 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 especially applicant on 4th December 2018 has already for such a permission."
In recording his reasons for refusing the application the primary judge noted that it was apparent that Mr Tanious's first language is not English and that he is "not entirely fluent in English" and that he would make appropriate allowances for that circumstance. Nevertheless, he concluded that no question of law was apparent in the terms of the orders sought. His Honour went on to consider an affidavit filed by Mr Tanious which included a document entitled "a Summary of the Plaintiff's Argument". The document asserted that there were "contradictions" in the evidence of Mr Daniels. The primary judge observed, correctly, that such an assertion does not involve a question of law.
Mr Tanious also complained that he had not been granted an adjournment in order to call a witness who was overseas at the time of the hearing. The Tribunal had refused an application made by Mr Tanious for adjournment, on the ground that the evidence Mr Tanious sought to adduce from the witness would have added nothing (Judgment [14]).
The primary judge considered (again correctly) that no question of law was identified in the material on which Mr Tanious relied. He also referred to Mr Tanious's unsuccessful application for leave to appeal to the Appeal Panel, and the argument advanced by Mr Tanious in support of that application.
Although the application to the primary judge was limited to questions of law arising out of the judgment of the Appeal Panel, the primary judge also noted two additional matters:
1. a letter provided by Mr Tanious written to him on behalf of the respondent dated 4 August 2019, nine months after the decision in question, offering him an extension of his tenancy. The primary judge accepted that the letter was a "pro forma" that had been sent in error and could not raise any question of law;
2. Mr Tanious provided evidence that, in October 2018, he removed the metal strips and, on 4 December 2018, sought permission from the respondent to fix an alternative form of security to the windows and that, on 26 December 2018, he had done so (although he had not received permission). The primary judge considered this to be irrelevant.
[2]
The application to this court
In his summons seeking leave to appeal Mr Tanious identifies the orders sought as:
"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 which has been a sort of error and miscarriage of justice and respondent must not withhold permission for the application reinstalling alternative to the metal cover according to clause 26 of the Residential Tenancy Agreement especially applicant on 4 December 2018 has already applied for such a permission.
3. No order for costs depending on respondent did not look for cost previously."
It will be noted that order 2 is substantially (with the exception of the request in order 2 in the Supreme Court, for the respondent to pay the costs of all proceedings), identical to the order 2 sought from the primary judge (see [12] above).
In his draft Notice of Appeal Mr Tanious identifies the sole ground on which he seeks to rely as:
"While the court below decision a sort of natural justice as there was no evidence in support, and the applicant's evidence has all been neglected concerning the mentioned metal cover jeopardising the appellant's fair right."
He has filed a Summary of Argument. The argument is difficult to follow. He nominates three "questions involved". One appears to concern the letter from the Hurstville Council of 15 April 2016 which he says contained "contradictions" and lacked "any factual evidence". In the second he says that there was "a sort of miscarriage of justice" in the order for termination of the tenancy agreement. In the third he refers to the letter (or letters) from the respondent offering him an extension of his lease, which, he asserts, confirmed the invalidity of the termination orders.
Under the heading "the Applicant's Argument" appear five paragraphs. In the first Mr Tanious appears to assert that the decisions of "tribunals and court below" depended upon the refusal of special leave to appeal to the High Court and that, as a result, his "expert and documented evidence" has been "neglected". There is nothing in any of the judgments that post-date the determination of the special leave application that supports the contention that the refusal of special leave in the earlier proceedings deterred the Tribunal or the Supreme Court in the later proceedings from performing their functions.
In the second paragraph Mr Tanious appears to refer to the occasion on which the respondent withdrew its application for termination of the tenancy agreement but refused to pay costs. The relevance to the present proceedings is not apparent.
In the third and fourth paragraphs Mr Tanious again refers to the evidence of Mr Daniels which he continues to characterise as "contradictory". The evidence of Mr Daniels was not before this Court, nor should it have been. There is brief reference to it in the primary judgment but there is nothing in the submissions to suggest any error in the approach taken to it by the primary judge. It must be remembered that the application to the primary judge was for leave to appeal on a question of law. Assessment of evidence given by witnesses does not ordinarily (and does not in this case) raise a question of law.
In the fourth paragraph Mr Tanious suggests that the respondent must not withhold permission from him to "reinstall another metal cover" by reference to clause 26 of the tenancy agreement. So far as the material before this Court goes, that has never been an issue raised in the proceedings prior to the application to the primary judge and no error of law in the reasoning of the primary judge has been identified and nor has any error of law in the decision of the Appeal Panel been identified.
In the final paragraph, paragraph 5, Mr Tanious complains that the primary judge mentioned only one part of clause 25 of the tenancy agreement but does not identify any relevant part that had been omitted from consideration. No relevant error can be discerned.
In the same paragraph Mr Tanious makes some complaint about the primary judge's observations about his lack of fluency in the English language and argues that that comment neglected "very competent preparation" he had undertaken for the purpose of this application without any outside help.
No error on the part of the primary judge is discernible in those observations which are amply borne out by the materials presented, and which were made to explain why the primary judge paid attention to materials in Mr Tanious' favour that may not otherwise have been properly before him.
No error having been identified in the primary judgment, the application for leave to appeal to this court should be dismissed.
[3]
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Decision last updated: 06 March 2020
Solicitors:
Department of Communities and Justice (Respondent)
File Number(s): 2019/389997
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Common Law Division
Citation: Tanious v NSW Land and Housing Corporation [2019] NSWSC 1694
Date of Decision: 21 November 2019
Before: Ierace J
File Number(s): 2018/391799