Taylor v Peslak

Grounds of appeal and Submissions

1. By her Notice of Appeal, the landlord sought an extension of time in which to file the appeal.
2. The landlord said a request for written reasons was made on 5 July 2017, a second application was made on 7 September 2017 and the Tribunal's reasons were finally provided on 3 November 2017.
3. The grounds of appeal can be summarised as follows: 1. The Tribunal incorrectly interpreted the provisions of s 94. This section provides for a "no-blame termination", evidence of the landlord's hardship, personal circumstances and reasons for seeking a termination order being irrelevant. Rather, the only circumstance that was relevant was the fact an application for termination and been made. 2. The Tribunal should have ended the tenancy, however could have extended the period in which possession was to be delivered up for a reasonable period beyond 90 days. 3. The landlord has suffered a substantial miscarriage of justice because: 1. the Tribunal has, in effect, created a protected tenancy; 2. the landlord was not responsible for providing social housing accommodation to the tenant; 3. selling the house with a tenant in possession will reduce its value by at least 50%; 4. protected tenancies under the 1948 legislation are "virtually unsaleable".
4. At the hearing of the appeal, the landlord was represented by Mr Hill, the agent for the landlord. Mr Hill made oral submissions to support the written contentions.
5. During the hearing, the Appeal Panel identified various authorities dealing with: 1. Whether the time to appeal commences from the delivery of oral reasons or written reasons; and 2. The proper construction of s 94 of the RT Act, in particular the expression "in the circumstances of the case" in s 94(1)(c). and gave the landlord an opportunity to address the Appeal Panel on those matters.
6. In relation to the proper construction of s 94, cases included: 1. Swain and Anor v Residential Tenancies Tribunal of New South Wales and Anor BC9504317 (Supreme Court of New South Wales, Rolfe J, unreported , 22 March 1995) (Swain's case); 2. Roads and Traffic Authority v Swain and Others (1997) 41 NSWLR 452 (Swain appeal); 3. Findlay v Commonwealth of Australia (as representative by the Department of Infrastructure and Regional Development) [2017] FCAFC 20; 4. Lukic v Commonwealth of Australia (as Represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 29;
7. In relation to the issue of extension of time, Mr Hill reiterated the statements made in the written documents concerning the sequence of events from the date of the decision to when written reasons were provided. He indicated that his client had sought advice about appealing and had been waiting for written reasons for decision which had been requested shortly after the hearing. He said leave to appeal should be granted if the Appeal Panel determined that leave was required. In addition to relying upon the delay in provision of written reasons, the landlord said there was an important issue of principle to be determined and time should be extended.
8. In relation to the proper construction of s 94, the landlord submitted that the effect of the Tribunal's decision was that the tenant had an entitlement to remain in the property for life. In relation to this submission, Mr Hill reiterated the point made in written submissions concerning "protected tenancies" and that the Tribunal had no discretion to decide not to terminate the agreement. Also he spoke of proposals for construction of "built to rent" properties by commercial developers and that the construction of s 94 of the RT Act provided by the Tribunal was contrary to these proposals. In relation to this last submission, the Appeal Panel noted that it was obliged to construe the legislation as it presently was, not on the basis of some hypothetical future change.
9. Mr Hill also made submissions concerning the availability of social housing and that the tenant had not pursued these opportunities. We note in passing that there was some evidence on this topic in the transcript at p 27 line 28 and in the Tribunal's oral reasons recorded at p 30 line 7.
10. The tenant filed a Reply to Appeal on 28 November 2017. Attached to that reply was the letter from the landlord dated 21 April 2017 and an email dated 13 May 2017 which was the evidence the landlord provided at the original hearing in support of her application for termination.
11. Pursuant to the directions made by the Appeal Panel, the tenant also provided comprehensive written reasons in opposition to the appeal. In addition, Mr Peslak, the son of the tenant, appeared at the hearing of the appeal and made submissions on her behalf.
12. The tenant's submissions can be summarised as follows: 1. In relation to the time to appeal, the landlord identified that there are competing decisions of the Tribunal concerning when time commenced to run following the delivery of reasons and whether the expression "reasons" in rr 25(4)(b) and (c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules): 1. included oral reasons, the position accepted as correct in Clark v Electrical Home-Aids Pty Ltd [2017] NSWCATAP 63; or 2. meant written reasons, the position adopted in Escape Media Pty Ltd v Lawler [2018] NSWCATAP 17, such construction said to arise because rr 24(4) (b) and (c) needed to be read in the context of s 62(2) of the NCAT Act which provides an obligation to provide written reasons upon request. 3. The tenant contended that time to appeal commences to run from when oral reasons was given, even if written reasons were requested and subsequently provided. Accordingly, the appeal was out of time. 4. The tenant opposed an extension of time because the delay was lengthy, the landlord did not have a fairly arguable case and that the tenant had a "vested right in the decision". In written submissions, the tenant accepted that the landlord's explanation of delay "may weigh in the appellant's favour" however all other factors weigh in favour of the refusal of an extension of time. We note this concession was properly made, despite oral submissions to the contrary by Mr Peslak at the hearing. 1. In relation to the decision of the Tribunal, the tenant said that there was no error in the Tribunal's construction of s 94 or in its exercise of discretion. In making this submission, the tenant referred to various decisions of the Supreme Court of New South Wales and the Federal Circuit Court of Australia, the latter court dealing with applications under s 94 of the RT Act (in consequence of Commonwealth legislation conferring jurisdiction in respect of land are being resumed as part of the Badgery's Creek Airport construction project). 2. Otherwise, the tenant said there was no basis to grant leave under cl 12 of Sch 4 of the NCAT Act and having regard to the principles in Collins v Urban [2014] NSWCATAP 17, there was no issue of principle, matter of public importance, injustice, unreasonable factual error or unorthodox fact finding process which would otherwise justify the grant of leave. In making this submission, the tenant said the Tribunal found there was a paucity of evidence adduced by the landlord to support her claim of hardship. On the other hand, the Tribunal found substantial hardship would be suffered by the tenant if the agreement was terminated. 3. As to the proposition that evidence concerning her attempts to obtain social housing assistance and the evidence of her son, Mr Peslak, on this issue, the tenant submitted the Tribunal had given appropriate weight to this evidence and no reason existed to otherwise interfere with the Tribunal's decision.
13. In oral submissions, the attention of the Appeal Panel was drawn to the statements made by Mr Mijic, the landlord's agent, at the hearing at first instance. In discussions concerning the provision of evidence about the landlord's financial position recorded at p 11 line 24 of the transcript, there was an exchange between the Tribunal Member and Mr Mijic concerning the letter dated 21 April 2017 as follows: Member: It's pretty light on specifics. Mijic: Yes. Well, the owner-I don't know if she was-I haven't asked, but I don't know if she would share, like, personal financial documents. I'm just at this stage…
14. Then, at p 14 line 44 of the transcript, the discussion continued: Mijic: Yes. As I said earlier, I'm not sure if the owner was willing to provide, like, bank statements or personal-I mean… Member: It might be the only way that-if she wants to establish that there is hardship on her side, then the evidence that I've got here isn't sufficient to do that. If there wasn't a competing interest, if the tenant wasn't here and somebody wasn't here to speak for the tenant, it might be enough, but I'm foreshadowing the tenant's special circumstances, of course, circumstances as such, I think they could probably be established on the evidence I've got and I would think they would outweigh the landlord's circumstances for the present time.
15. Mr Peslak says the conclusions on the evidence were justified and, having regard to these passages, the Tribunal was correct in the decision it made.

Consideration

1. There are three issues to be determined in this appeal. They are: 1. Is the appeal out of time and should the time to appeal be extended? 2. On the proper construction of s 94 of the RT Act, is a landlord entitled to an order to terminate a residential tenancy agreement to which this section applies provided an application is made "in a proper manner", the discretion of the Tribunal being limited to the period in which possession is to be delivered up following a termination order being made? 3. Was the Tribunal correct in exercising any discretion and dismissing the landlord's application and/or should leave be granted because the decision of the Tribunal was against the weight of the evidence or not fair and equitable?

Is the appeal out of time and should the time to appeal be extended?

1. The Appeal Panel is satisfied on the evidence before it that: 1. The Tribunal made a decision to dismiss the landlord's application on 29 June 2017. 2. The parties were advised of the decision orally, a written notice of decision subsequently being sent to them. 3. The Tribunal provided oral reasons for its decision on 29 June 2017 at the conclusion of the hearing. 4. A request for written reasons was made to the Tribunal by email dated 7 July 2017, an enquiry being made concerning those written reasons by a further email dated 19 September 2017 5. By email dated 22 September 2017, the landlord was advised that written reasons should be completed by early October 2017. 6. Written reasons were provided on 3 November 2017. 7. The Notice of Appeal was filed on 14 November 2017, 11 days after written reasons were received.
2. Rule 25(4)(b), which applies to these proceedings which are "residential proceedings" within the meaning of the Rules, provides as follows: in the case of an internal appeal against a decision made in residential proceedings - within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later)
3. In Clark, the Tribunal said at [10]: The appellant submitted that he had read r 25 of the NCAT Rules, but thought it only applied to written reasons for decision. That is incorrect as the rule does not, in terms, confine itself to written reasons. Acting on that incorrect basis, the appellant filed his Notice of Appeal 27 clear days after being notified of the Tribunal's written reasons. This indicated his willingness to comply with the provision for filing his Notice of Appeal, and his attempt to do so.
4. However, in Escape Media the Appeal Panel came to a different conclusion. At [12]-[13] the Appeal Panel said: 12 The issue raised by Mr Lawler in this context arises this way. Under r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014, an internal appeal is required to be commenced within 28 days from the day on which "the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)". As the Member gave oral reasons for decision on 17 July, Mr Lawler submits that the 28 day period by the rule is to be calculated from that date. If that be correct, a notice of appeal was required to be lodged by 14 August. As we have earlier indicated, the Notice of Appeal was not, in fact, lodged until 4 October. 13 However, the rule needs to be understood in the context of s 62(2) of the Tribunal Act. That is the section pursuant to which written reasons for a decision may be requested and once requested those reasons must be provided. It seems to us that when the provisions of r 25(4)(c) are read with s 62(2) of the Act, the operation of the rule requires that the time for lodging an appeal runs from the time at which written reasons, if requested pursuant to the subsection, are provided by the Tribunal. That, so it seems to us, gives a workable and common sense interpretation to the combined operation of the two provisions, consistent with language in which each is expressed. The written reasons having been given on 7 September, lodgement of the Notice of Appeal on 4 October was within the time limited by the rule.
5. This issue is one of statutory construction.
6. Section 62 of the NCAT Act provides: 62 Tribunal to give notice of decision and provide written reasons on request (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (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. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.
7. As is clear the terms of r 25(4)(b), the 14 day period in which to lodge an appeal runs from the later of the date notice of the decision is given to the landlord or the date the landlord is given reasons for the decision.
8. There is a difference between the decision and the reasons. Decision is defined by s 5 of the NCAT Act. This section provides: 5 Meaning of "decision" (1) In this Act, decision includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing.
9. That is, a decision is the action taken by the Tribunal in making an order, refusing to make an order, imposing a condition or doing or refusing to do a particular act, whereas the reasons are the explanation about why such action or refusal was determined to be appropriate.
10. Rules r 25(4)(b) and 25(4)(c) provide that time to appeal commences from when "the appellant was notified of the decision or given reasons for the decision (whichever is the later)". In the case of time to appeal in residential proceedings, this is 14 days, and 28 days in other proceedings (subject to specific provisions in enabling legislation: see r 25(4)(a)).
11. The expression "reasons" used in rr 25(4)(b) and 25(4)(c) is not defined in the Rules. The issue is whether this expression means written reasons.
12. There are a number of matters that count against an interpretation that "reasons" means "written reasons" and time only commences to run from the date written reasons are given.
13. First, while the Tribunal is required to give reasons for decision: see Collins v Urban [2014] NSWCATAP 17 at [56], there is no requirement in the NCAT Act for those reasons to be in writing. To the contrary, oral reasons may be given: s 62(4).
14. Secondly, if oral reasons are given, the language of r 25 is not such that the commencement of time to appeal is postponed until delivery of written reasons in consequence of an application under s 62(2) of the NCAT Act. The rule speaks of time commencing from the later of an appellant being "notified of the decision" or "given reasons for the decision". The language does not contemplate time commences to run from the later of oral reasons being provided or written reasons being provided.
15. Thirdly, the obligation to provide reasons arises, in part, because of the rights of appeal given under the NCAT Act are dependent upon the Appeal Panel determining whether a legal or factual error has been made. The absence of reasons or insufficient reason may not allow the Appeal Panel to determine those matters: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (Meagher JA at 441). Insufficient or inadequate reasons may itself be an error of law for which there is a right of appeal: see Beale (Meagher JA at 444). A party must know the reasons why a decision was made in order to decide whether or not to appeal and to exercise any right arising in consequence of inadequate reasons or an erroneous decision. However, the form in which the reasons are given, that is orally or in writing, does not affect either of these matters. Rather, once reasons are given, even if orally, the party seeking to appeal is informed of the reason why the decision was made and is able to discern what, if any, error has been made and commence appropriate appeal proceedings in consequence thereof.
16. Fourthly, it is clear that the legislature intended to limit the time to appeal to the later of one of two events, being the date notice of decision was given or reasons for decision were given. In the case of residential proceedings, this is a period of only 14 days. In this context, decisions made in residential proceedings often involve a party seeking a termination order. Such application may arise in the context of non-payment of rent or breach of other obligations under a relevant agreement. In most cases, such applications can only be made after a written notice has been given by the applicant, informing the party against whom an order is sought of the complaint which is made. It is understandable why, in these circumstances, the legislature only provided a short time in which to appeal any decision so as to avoid any injustice to a party lawfully entitled to possession. An interpretation of r 25(4)(b) that required written reasons to be given to the person against whom orders were made, despite oral reasons being given, would mean that time to appeal would not commence to run until such obligation or satisfied. Consequently, the finalisation of the proceedings because of unresolved rights of appeal would be delayed.
17. In Escape Media, the Appeal Panel relied on s 62(2) of the NCAT Act to support its construction of the expression "reasons" in r 25 meant written reasons.
18. Section 62(2) requires written reasons must be provided if a request is made within 28 days of being given notice of the decision. If a request is made, the Tribunal must provide a statement of reasons within 28 days from that request: s 62(2). That is, a party may request written reasons within 28 days from being given notice of the decision and the Tribunal is permitted a further 28 days in which to provide those written reasons. Those reasons must be in conformance with s 62(3). Consequently, the construction proposed in Escape Media would lead to the result that even where oral reasons was given and a party informed about why a particular decision was made, a total of 60 days (28 days to request reasons, 28 days for the Tribunal to provide reasons and a further 14 days to appeal) may elapse after a party is given notice of a decision before the right of appeal is lost.
19. Such a result is inconsistent with the clear terms of r 25 and the short timeframe contemplated by the rule in respect of residential proceedings.
20. Such a construction would also mean that either: 1. Time would never commence to run until written reasons were provided; or 2. Where oral reasons were given, time would re-start if a request for written reasons was subsequently made.
21. In our view, this outcome is inconsistent with the intention to limit any right of appeal to a period of 14 days.
22. On the other hand, if a party is not present at the hearing of proceedings or if the decision and/or reasons for decision are not given at the hearing, it is clear a party will not be "notified of the decision or given reasons for the decision" at this time. While a party might be given notice of the decision subsequently, either in writing by the Tribunal, or in a form otherwise authorised by the Tribunal, such notice may or may not include the reasons for decision. In this regard, while many written orders made by the Tribunal include reasons for the decision (the electronic case management system allowing the decision maker to incorporate written reasons within the document which becomes the notice of the decision), this is often not the case. Consequently, where only notice of the decision is given to a party, the prospective appellant may not know of the reasons for the decision. In this case, if a request for written reasons is made as permitted under s 62(2) of the NCAT Act, the time to appeal does not commence to run until the reasons are received.
23. It follows that, in our view, Escape Media was wrongly decided and should not be followed. Rather, if a party is given oral reasons for decision, the time to appeal commences from the date those reasons are given.
24. In this appeal, the landlord (by her agent) appeared at the hearing of the proceedings at first instance. This occurred on 29 June 2017. On that day, the Tribunal gave notice of its decision and oral reasons for decision to the landlord. These facts are recorded in the transcript provided as part of the papers in the appeal.
25. Having regard to our interpretation of r 25(4)(b), the time to appeal commenced to run from 29 June 2017, being the day on which the landlord "was notified of the decision" and the day on which the landlord was "given reasons for the decision". The appeal was lodged on 14 November 2017 and was therefore out of time.
26. However, s 41 of the NCAT Act enables the Appeal Panel to extend time in for the lodgement of the Notice of Appeal. The principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 are applicable to such applications.
27. As set out above, the landlord applied for written reasons 5 days after the decision was made. The appeal was not lodged until 14 November 2017, a substantial delay which counts against the grant an extension of time.
28. However, the reason for this delay is because the Tribunal was substantially late in providing written reasons, s 62(2) requiring those reasons to be provided within 28 days from the date of the request. The appeal was lodged less than 14 days after the written reasons were received. The landlord explained that she wished to have the benefit of the written reasons so she could determine whether or not to appeal. This was because, on her understanding, having made a proper application for termination the Tribunal was obliged to make an order in her favour terminating the agreement, a matter to which we will return below.
29. Where the landlord had sought written reasons for decision well before the period to appeal had expired, it could not be said that she took no action in respect of exercising her appeal rights. She might have misapprehended when the time commenced to run against her for lodging the appeal. However such a misapprehension is explained by what the Appeal Panel said in Escape Media.
30. The landlord's application was dismissed, in consequence of which no termination order was made in her favour and the tenant has remained in possession as her tenant. The delay in bringing her appeal has not caused any substantial prejudice to the tenant, save that the final resolution of these proceedings might be delayed.
31. While the landlord may be able to bring a further application for termination, she raises an important question concerning the interpretation of s 94 of the RT Act. This provision has been the subject of decisions of the Full Court of the Federal Court of Australia, and the Supreme Court of New South Wales has made decisions concerning earlier residential tenancies legislation. However, this section and the language used has not, as far as we are aware, being the subject of any decisions of the Appeal Panel, particularly in the context of the present factual circumstances. In addition, she says that the Tribunal incorrectly evaluated the evidence, that she has suffered a substantial miscarriage of justice as she has been denied possession of the premises and in these circumstances her appeal should be allowed.
32. In our view, the explanation about what has occurred is sufficient to justify an extension of time and there is no demonstrated prejudice to the tenant which should preclude such an order being made. Accordingly, the Appeal Panel will make an order to extend the time for the lodgement of the Notice of Appeal until 14 November 2017.

On the proper construction of s 94 of the RT Act, is a landlord entitled to an order to terminate a residential tenancy agreement to which this section applies provided an application is made "in a proper manner", the discretion of the Tribunal being limited to the period in which possession is to be delivered up following a termination order being made?

1. Section 94 of the RT Act provides: 94 Termination of long term tenancies (1) The Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement: (a) if the tenant has been in continual possession of the same residential premises for a period of 20 years or more, and (b) if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement has expired, and (c) if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case. (2) A landlord may make an application under this section without giving the tenant a termination notice. (3) The Tribunal must not make a termination order under this section that specifies a termination date that is before the end of the fixed term if the residential tenancy agreement is a fixed term agreement. (4) The Tribunal, in determining the day on which vacant possession of the residential premises is to be given to the landlord, must not order that vacant possession be given earlier than 90 days after the order is made.
2. Where s 94 applies, the provisions otherwise applicable to ending a fixed term tenancy or terminating a periodic agreement where there has been no breach do not apply: see ss 84(4) and 85(4) of the RT Act. In each of ss 84 and 85, all that is required to be established is that an appropriate notice under the applicable section has been given and that the tenant has not vacated the premises. If this has occurred, the Tribunal must make a termination order: see ss 84(3) and 85(3) of the RT Act. Unlike s 94(1), there is no discretion to not terminate in the case of applications under ss84 and 85: Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317.
3. By its terms, the discretion to terminate a residential tenancy agreement under s 94(1) only arises if the Tribunal is satisfied of the three matters of fact. These are (emphasis added) that: 1. the tenant has been in continual possession of the same premises for 20 years or more; 2. if the agreement was a fixed term agreement, the fixed term of the original agreement has expired; and 3. the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case.
4. There is no dispute in this appeal that the tenant has been in continual possession of the same premises for more than 20 years. There is also no dispute that the fixed term of the original agreement has expired, the original term being 26 weeks from 23 February 1985: see agreement attached to the original application for termination. Rather, this appeal raises the question of whether s 94(1)(c) is a condition precedent to making a termination order, what circumstances are relevant in the Tribunal reaching a level of satisfaction required by s 94(1)(c) and whether the discretion of the Tribunal is limited to determining how long a tenant should have after a termination order is made under that section to vacate the premises and deliver up possession.
5. The issue raised is one of statutory construction.
6. The starting point to resolve this question is the reasons provided by Rolfe J in Swain's case and the decision of the Court of Appeal of the Supreme Court of New South Wales in the Swain appeal.
7. In Swain's case, Rolfe J was considering an application for termination under s 58 of the now repealed Residential Tenancies Act, 1987 (NSW) (the 1987 Act). That section permitted serving a notice of termination "without any ground", that is in circumstances where the tenant had not breached the residential tenancy agreement. Where such a notice was served, s 64(2)(c) permitted the Residential Tenancies Tribunal of New South Wales to make an order for termination "if satisfied … that, having considered the circumstances of the case, it was appropriate to do so". Section 64 of the 1987 Act (as it then was) provided: 64(1) If: (a) a landlord or a tenant gives notice of termination of a residential tenancy agreement under this Part: and (b) the tenant fails to deliver up vacant possession of the residential premises on the day specified, the landlord may, not later than thirty days after that day, apply to the Tribunal for an order terminating the agreement and an order for possession of the premises. (2) The Tribunal shall, on application by a landlord under this section, make an order terminating the agreement if it is satisfied: (a) in the case of a notice given by the landlord on a ground referred to in s56 (which relates to termination on the ground that the residential premises are being sold), s57 (which relates to termination on the ground of breach of the agreement) or s61 (which relates to termination where the agreement is frustrated): (i) that the landlord has established the ground; and (ii) if the ground is a breach of the residential tenancy agreement, that the breach, in the circumstances of the case, is such as to justify termination of the agreement; (b) that the tenant has seriously or persistently breached the residential tenancy agreement; or (c) that, having considered the circumstances of the case, it is appropriate to do so. (3) Except as provided by s66, the Tribunal shall not make an order terminating a residential tenancy agreement under this section unless it is satisfied that notice of termination was given and that it was given in accordance with this Part. (4) If the Tribunal makes an order terminating a residential tenancy agreement under this section, the Tribunal shall also make an order for possession of the residential premises specifying the day on which the order takes effect.
8. Having noted at [BC9504317 at 11] that a notice given under s 58 did not operate to terminate the tenancy immediately (a matter not presently relevant to this appeal as an application under s 94 of the RT Act does not require notice to be first given), Rolfe J said at [BC9504317 at 14]: … s64(1) provides the conditions precedent or statutory requirements for bringing an application for an order terminating the agreement and for possession but, those conditions having been satisfied and the condition in subs(3) having been satisfied, the Tribunal must be satisfied of the relevant matter in subs(2) which, for present purposes, is that "having considered the circumstances of the case, it is appropriate to do so". As I have said I do not regard those words as encompassing a satisfaction as to the fulfilment of the requirements of serving a valid notice and the necessary time having run. In my view "the circumstances of the case" have a wider meaning. This is particularly so when regard is had to the intention of the legislation and, also, to the use of the words "the circumstances of the case" not only in subs(c) but also in subs(a)(ii). It is to be borne in mind that subs(c) covers cases where the notice is issued without their having been fault on the part of the tenant.
9. That is, his Honour concluded that the service of the notice to terminate, even in a no-fault case, was not sufficient to enliven the Residential Tenancies Tribunal's jurisdiction to make a termination order. Rather, it was a condition precedent to the exercise of power that the Tribunal is satisfied such an order should be made in the circumstances of the case.
10. Under s 94 of the RT Act, no notice is required prior to making an application. However, the language of s94(1)(c) is the same as that used in s 64 of the 1987 Act. That is, the Tribunal may make a termination order "if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case".
11. In Swain's case, Rolfe J went on to explain what the expression "the circumstances of the case" refers to. At [BC9504314 at 14] his Honour said: Possible "circumstances", which may have to be taken into account, are the time the tenant has occupied the premises, the age and state of health of the tenant, the necessity for any number of reasons for the tenant to live in a particular area, and the inability of the tenant to obtain other suitable accommodation in which, of course, I include accommodation in an area suitable for matters such as proximity to family, facilities or employment. A number of other matters, which could be relevant, were suggested by counsel for the defendant in Nicholson and they are referred to hereunder in a passage I shall quote. An approach such as this accommodates, more easily, the bases on which the Tribunal must proceed as set forth in s93(4)(b).
12. That is, as made clear by Rolfe J, the circumstances of the tenant, as well as those of the landlord must be taken into account in reaching the required level of satisfaction.
13. This position was confirmed by the Court of Appeal in the Swain appeal. At 456, Meagher JA (with whom Priestley and Cole JJA agreed) said: The question then becomes what the words "circumstances of the case" mean. They are clear enough; they require regard to be had to the particular case before the Tribunal. If they were intended to be limited to matters of form and time, then s 64(3) merely repeat what is said by s 64(2)(c). It is difficult to see why the words do not mean what they say. I think it can be fairly stated that the Act is intended to balance the rights of the landlords and tenants. The argument urged against accepting Rolfe J's interpretation of s 64(2) is that it could be unduly harsh on the landlord. That argument fails as hardship to the landlord is something which the Tribunal must consider as part of "the circumstances of the case" but further, the matter is specifically addressed in s 69, which does not seem to have been raised at any stage of the history of the case. That section enables the Tribunal to terminate a tenancy, even in the absence of a breach, simply to avoid hardship to the landlord. Section 69 can, in this way, be seen as the landlord's counterpart to s 64(2)(c). If Rolfe J's interpretation were not upheld, then a landlord could plead hardship to obtain an early termination, but the tenant, in the circumstances when a breach has occurred, could plead hardship to avoid the; the tenant could only rely on s 65(1) to postpone eviction or rely on limited grounds of refusal to make an order which are provided in s 65(2) and which do not include hardship to the tenant
14. It is to be noted that the RT Act is in different terms to the 1987 Act, in that the power given to terminate on the grounds of hardship to the landlord under the RT Act is contained in s 93, which requires the Tribunal to be "satisfied that the landlord would, in the special circumstances of the case, suffer unto hardship if the residential tenancy agreement were not terminated": see s 93(1). In such a case, there is a power to award compensation to a tenant in respect of the tenant's loss of the tenancy: see s 93(2). Unlike s 94, there is no requirement in s 93 for the Tribunal to generally consider the "circumstances of the case". However, a general discretion remains as to whether or not a termination order should be made.
15. The applicability of the decision in Swain's case and in the Swain appeal to the proper construction of s 94 has been considered by the Full Court of the Federal Court of Australia in Findlay and Lukic. These and other related cases concerned the Commonwealth seeking to terminate long-term tenancies in respect of properties within the area of the proposed redevelopment of Badgery's Creek as part of the construction of a new airport for Sydney.
16. In Findlay, having referred to the Swain appeal, the Court said at [239]: In our opinion, the appellant's submission sought to take the word "balance" out of context when it is clear that that was not the test that was applied by the primary judge and, generally speaking, it is correct to say that the legislation does seek to strike a balance between the interests of the landlord and those of the tenant".
17. In reaching this conclusion, the Court made clear that s 94 did not elevate the entitlement of a tenant to "leasehold tenure in the nature of freehold": at [242]. Rather, what was required was a balancing of the circumstances of the respective parties having regard to the evidence before the Court.
18. In Lukic, the Court reached the same conclusion at [236]-[242].
19. It seems clear from the passages to which we have referred that there is a two-step process which the Tribunal is required to engage in in making a termination order under s 94 of the RT Act. First, the Tribunal must be satisfied of the matters set out in s 94(1)(a)-(c). Secondly, if so satisfied, the Tribunal has a discretion as to whether or not a termination order should be made, and if so on what terms.
20. It follows that we do not accept landlord's submissions that: 1. The Tribunal was required to make a termination order provided a proper application was made by the landlord under s 94; or 2. The only discretion the Tribunal has when an application is made under s 94(1) is in determining the length of time in excess of 90 days (as provided in s 94(4)) which a tenant should be permitted in which to deliver up vacant possession

Was the Tribunal correct in exercising any discretion and dismissing the landlord's application and/or should leave be granted because the decision of the Tribunal was against the weight of the evidence or not fair and equitable?

1. As stated above, original tenancy application lodged with the Tribunal sought orders for termination and vacant possession. The application did not state the section of the RT Act under which that application was made.
2. The Tribunal dealt with the application on the basis it was made under s 94 of the RT Act: at [7]. In the Notice of Appeal, the landlord did not suggest the application had been made under s 93. While the landlord described the application in Part B (iii) as an "'no blame' eviction", it is clear that the landlord's complaint on appeal was the Tribunal's interpretation of s 94 of the RT Act, not any failure to determine the application under s 93 of the RT Act: see 5B and 5C of the Grounds of Appeal which refers to s 94 and the provision of s 94(4) which requires the Tribunal to make an order for possession which is not less than 90 days after the order is made.
3. While it is correct that the circumstances on which the landlord sought to rely might be regarded as "hardship" and "personal financial circumstances", it was not suggested in any material to which we have been referred in the appeal that the application was made under s 93 of the RT Act.
4. Consequently, the Tribunal was required to consider the evidence provided by each of the parties and balance the interests of each of the landlord and tenant in deciding whether or not it was relevantly satisfied a termination order should be made "in the circumstances of the case".
5. The landlord challenges the decision reached on the evidence before the Tribunal. The challenge is based on the assertion that the Tribunal did not properly weigh the evidence provided by the parties. These challenges included the following claims: 1. If the decision was allowed to stand, the tenant would be a protected tenant and the value of the landlord's property would be reduced by 50%; 2. More weight should have been given to the fact that no evidence was provided by the tenant that she and her son had taken adequate steps to obtain social housing accommodation to the New South Wales Land and Housing Corporation; 3. The landlord had in fact provided subsidised housing well below market rent; 4. The landlord had a need to sell the property by reason of her retirement and financial circumstances.
6. As is clear from what the Full Federal Court said in Findlay and Lukic, the tenant is not a protected tenant. Rather, the tenancy can be terminated if the Tribunal is satisfied that it is appropriate to make a termination order in the circumstances of the case.
7. The other issues raised are not questions of law. Consequently, they are grounds for which leave to appeal is required: see s 80(2)(b) of the NCAT Act. Leave to appeal may only be granted if the Appeal Panel is satisfied that the landlord may have suffered a substantial miscarriage of justice: see cl 12 of Sch 4 of the NCAT Act. The principles in Collins are applicable in determining whether leave to appeal should be granted.
8. As is evident from the Tribunal's reasons, the Tribunal evaluated the evidence provided by each party.
9. The evidence of the tenant concerned the length of time she had occupied the premises, the personal circumstances and need, including the geographical location of the premises to various facilities, including hospitals. The Tribunal had both written evidence and oral evidence provided by the tenant's son, Mr Peslak which it identified and relied on in reaching its decision. Evidence about these matters was relevant in the Tribunal deciding whether it was not satisfied a termination order should be made in the circumstances of the case: see Swains case and the factors identified by Rolfe J set out above.
10. The evidence of the landlord consisted of a letter from the landlord to her agent dated 21 April 2017 and an email to agent dated 13 May 2017.
11. The April letter was in the following terms (formal parts omitted): I have owned this unit for 40 years, it was my first home and I have kept it partly for sentimental reasons but mostly to keep an entry into the Sydney property market should I wish to return to Sydney to live. I have not lived in Sydney for the past 28 years and have recently retired. I'm unlikely to ever wish to live in Sydney again and I need to realise the asset I have in my Chatswood unit to help fund our retirement requirements. Mrs Peslak and her late husband have been wonderful tenants, but I believe I have been an excellent landlord. I have attended properly to all matters needing attention and I have also kept the rent below market for the past 20 years even though I have had a number of rental increase recommendations by the agent. I am well aware of the rise of rents in the Sydney market. Mrs Peslak has been a tenant for over 30 years and I do understand it will not be simple for her to relocate. I am prepared to allow 4 months for her to find other accommodation. With my own financial circumstances this is the best timeframe I can offer.
12. In the May email, the landlord said (formal parts omitted): I'm probably too late to give more information to the Tribunal but perhaps they will allow one business day over the due date. My partner has reminded me that as my work has taken me around NSW I have actually been renting the premises in which I live since 2002, firstly in Newcastle, then Orange and now Binnaway. As I told you on the phone, in Binnaway I am now rending from an entity connected with me, my family trust but my partner rightly points out that the property in which I live is now on the market to be sold and technically, I need to vacate and find somewhere else to live and the proceeds of sale of Chatswood will help me do that. We can discuss closer to the time when we have a date but I also need to know whether the Tribunal will consider what is to happen if they set a date for the Peslak's to move out, and it is months down the track, but Mrs Peslak were to die in the meantime. What is Mr E Peslak's situation? I have only recently discovered, in March in fact at the time of the property inspection, that Mr Peslak junior is actually living with his mother rather than just staying over now and again. Because of Mrs Peslak's advanced in years I would like to think other scenarios will be looked at and decisions made, not just what is a fair thing for her. Thirdly, I will check with Susan what we have done with the yet again sticking laundry door tracks. If we have not proceeded to repair them, as an act of good faith I will get heard to organise to do so. I'll look forward to chatting on Monday 15th.
13. In relation to this evidence, the Tribunal noted that the landlord was not present at the hearing and recorded that the documents to which we have referred "merely state she would like to sell the property to fund her retirement": at [17]. The Tribunal then continued at [17]-[18]: 17… That statement alone does not assist the Tribunal to a tribute weight to the landlord's circumstances. 18 On the other hand, the tenant circumstances are comprehensively put forward to the Tribunal. She is about 90 years old. The medical reports and certificates tendered support her contention that she is suffering serious age related illnesses. She was recently admitted to Royal North Shore Hospital where she was diagnosed with a myocardial infarction and although there is no direct evidence of it, her son, Mr Peslak in his sworn evidence seized she has had a significant blood transfusion. Doctor Jeffrey Robert-Smith has treated the tenant for 30 years and he establishes her frailty during the period of her medical condition.
14. Having set out further facts as to the circumstances of the tenant, the Tribunal concluded at [22] that an order requiring her to move out of the premises would cause the tenant "great hardship". The Tribunal also concluded in that paragraph that the evidence of the tenant "outweighs the paucity of evidence adduced" by the landlord.
15. The Tribunal then said at [22]: The landlord's evidence is not sufficient for the Tribunal to fully assess her hardship. There are no financial statements before the Tribunal nor are the landlord's) personal circumstances. Both being an important consideration in determining whether the landlord's circumstances outweigh the tenant's circumstances.
16. Consequently, the Tribunal was not satisfied that a termination order was warranted and dismissed the application.
17. A review of the written evidence provided by the landlord, which we have set out above, confirms that the Tribunal was correct in reaching this conclusion concerning the evidence provided by the landlord. There were no financial records to which we were referred nor any detailed information provided by the landlord to support the statements made in the April letter and the May email. This was to be contrasted against the detailed evidence which was provided to the Tribunal from the tenant and which the Tribunal accepted.
18. As we set out above, it is clear from the transcript provided by the tenant of the hearing at first instance that the Tribunal had drawn to the attention of the landlord's representative, Mr Mijic, the fact that no detailed evidence was provided concerning the financial position of the landlord or any hardship she might be suffering. In response, Mr Mijic indicated that he did not think the landlord wished to provide detailed financial information. It is also clear from the correspondence, for instance the first sentence of the May email, that the landlord had reflected on the sufficiency of her evidence in the April letter. However, the May email was again lacking any detailed financial information.
19. What information her documents did contain would not support a view that her needs were such that hardship was established. She appears to have access to a family trust which has provided a residence for her, albeit the current property in which she is residing is to be sold. The financial circumstances of this trust have not been explained.
20. Further, the landlord has provided and continues to provide housing at a subsidised rental for the tenant. This is certainly not a matter for which the landlord should be criticised. To the contrary, all the evidence and submissions made by the parties in this appeal suggest that the landlord has been extraordinarily generous in supporting the tenant and providing accommodation to her for a long time. However, this fact also suggests that the landlord has been able to afford to do so, something that counts against a finding of financial hardship necessitating the sale of property.
21. In the absence of detailed financial evidence and in circumstances where there was significant evidence provided by the tenant as to her circumstances and the need to continue to reside in the premises, we are not satisfied that an error was made by the Tribunal in the weight given to the evidence of each of the parties. Nor could it be said that the decision was not fair and equitable in the circumstances of the case as presented to the Tribunal. Certainly, having regard to the proper construction of s 94 and the obligations imposed on the Tribunal in determining whether or not a termination order should be made, it could not be said that "the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach": Collins at [77].

Orders

1. It follows from what we have said that leave to appeal should be refused and the Appeal should be dismissed.

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 07 May 2018 - Typographical error corrected in coversheet 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: 07 May 2018