Turk v NSW Land and Housing Corporation

Background

1. At the time of the consent orders the appellant was suffering from a number of medical conditions. He has suffered from those conditions since a workplace injury some years earlier. He was, and remains, an insulin dependent diabetic. He is 65 years old. He lived, and continues to live, in socially and economically unfavourable circumstances. He was, and remains, on a disability support pension. He takes eleven daily medications and has done so for some time.
2. In his affidavit sworn 16 May 2019, drafted with the assistance of Legal Aid (who represented him at the time but has since ceased acting for him), the appellant set out his recollection of the events surrounding the making of the consent orders on 14 May 2019. Those orders were made after a conciliation between the parties.
3. In his affidavit the appellant relevantly said: 3 I have lived at 12 Tombonda Road, Murwillumbah for around 6 years. I am currently living there by myself in a 3 bedroom house. My son Dominic is 16 also lives with me Dominic is attending TAFE in Murwillumbah. 4 ... 5 On 14 May 2019 I attended at the Tribunal and my representative had conversations with the representative for FACS. My representative said to me that FACS had too much evidence against me and that I should agree to leaving the house and that FACS would refund me the advance rental payments that I had made. I went along with the plan as I did not know what other options I had in order to defend the case. 6 Shortly afterwards I went inside the hearing room and the representatives started talking to the member. I did not understand what was being said and I said to the member words to the effect "You are all railroading me ..I don't want to sign this agreement". The member then said to me words to the effect "go outside for 15 minutes and think about it". 7 While we were all still in the room my representative said to me words to the effect "If you don't sign this form I won't represent you, you're better off signing this form cos the lady from housing will open up a can of worms". We all went outside and my representative said to me words to the effect "I can't represent you unless you sign the form". 8. At this stage I just wanted to get out of the Tribunal and was feeling faint from my diabetes. I was confused and thought I should just sign the agreement to get out of the Tribunal. I did end up signing the agreement. 9 ... 10 ... I need a 2 bedroom house or apartment for me and my son. ... 11 ... 12 If I am evicted I will be homeless. I do not know anyone that I and my son could stay with. I do not have any close relatives that could accommodate me and my son. My health problems would become worse and I would be more vulnerable to acts of violence. 13 I have searched for private rental accommodation in my area. I cannot afford any of the properties that are available. I also do not have any rental history. Attached and marked Annexure C is a copy of online searches done on Domain and realestate.com.au which show that there are no properties available to rent for $250 or less in Murwillumbah or surrounding areas. 14 My solicitor has told me about the former social housing classification policy. He says that if evicted, I may become ineligible for housing. At the very least I will need to show that we have rented privately for 6 months before I will be eligible for social housing again. As explained above I have no way of renting privately.
4. FACS is a reference to the respondent. "(H)is representative" is a reference to a person from the Tenants Advice and Advocacy Services who assisted the appellant at the conciliation.
5. On this appeal the appellant also tendered a number of treatment medical records which refer to a number of the appellant's medical conditions, including his diabetes. No opinion is offered in those records as to whether or not the appellant's confusion set out in paragraph 8 of his affidavit was caused or contributed to by his diabetes.

Extension of Time

1. The appeal was filed out of time, being filed on 17 May 2019. Under Rule 25 (4) (b) of the NCAT Rules the time period to lodge the appeal was 14 days from the date the appellant was notified of the decision or given reasons for the decision (whichever is the latter). The appellant was notified of the decision on 14 March 2019, being the date the consent orders were entered into.
2. However, by reason of s 41 of the NCAT Act, the time period to lodge an appeal may be extended. The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].
3. In circumstances where the appellant is a social housing tenant on a disability pension and required a reasonable period of time to obtain advice regarding an appeal, including obtaining advice and representation from NSW Legal Aid, we are satisfied that the delay is not excessive; there is a reasonable explanation for the delay; and the appellant has a fairly arguable case on the appeal.
4. Accordingly, we grant leave to extend the period to file the appeal to 17 May 2019.

Grounds of Appeal

1. The appellant appeals from the consent orders on three grounds.
2. First, that a precondition to the exercise by the Tribunal of its power under s 59 of the NCAT Act to make orders to give effect to an agreed settlement between parties was satisfaction of the requirements set out in r 37 of the NCAT Rules. Those requirements were not met, and so the Tribunal erred in making the consent orders.
3. Second, that the appellant's consent to the orders was vitiated by duress and thus there was no "agreed settlement" within the meaning of that term in s 59 of the NCAT Act. Accordingly, the Tribunal did not have jurisdiction to make the consent orders.
4. Third, and based upon the same basic allegations as are made under Grounds 1 and 2, leave to appeal should be granted, and the appeal upheld, on the basis that the orders of the Tribunal were not fair and equitable [see clause 12(1)(a) of Schedule 4 to the NCAT Act].

Some Preliminary Matters Concerning an Appeal from Consent Orders

Can There Be an Appeal from Consent Orders

1. An appeal from consent orders is possible in the Tribunal. That is because: 1. the Tribunal was exercising its general jurisdiction [because the RTA enabled the Tribunal to make decisions of a kind specified by the RTA in respect of that matter, and the matter did not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal - s 29(1) of the NCAT Act]; 2. a decision of the Tribunal made when exercising its general jurisdiction is a "general decision" - s 29(3); 3. "decision" includes the making of orders (which expression would include consent orders) - s 5; 4. therefore, consent orders fall within the definition of "general decision"; and 5. the Tribunal has internal appeal jurisdiction over any decision made by the Tribunal in proceedings for a general decision - s 32.
2. This has been the holding of other Appeal Panels - see for example Sylvaney v Carolan [2016] NSWCATAP 36; Hobson v NSW Land and Housing Corporation [2015] NSWCATAP 222; Loch v NSW Land and Housing Corporation [2014] NSWCATAP 110; Jones v Dempsey [2015] NSWCATAP 28.

How Should An Appeal from Consent Orders Be Dealt With?

1. Ordinarily, the existence of an error, whether of fact or of law, on the part of a decision-maker at first instance is an indispensable condition of a successful appeal - Norbis v Norbis (1986) 161 CLR 513 at 519.
2. But what error arises where, unbeknown to the Tribunal, a party's consent to orders is vitiated by duress? The balance of authority favours the view that contracts entered into under duress are voidable, not void - Halsbury's Laws of Australia, online edition, at [110-5670]. That is, the contracts are wholly effective unless and until a court or tribunal sets them aside. Thus, it is inapt to say that consent orders, vitiated by duress, involve an error of law.
3. In the Supreme Court, a challenged to consent orders on the basis that an agreement to resolve proceedings was vitiated by consent, undue influence or the like is preferably dealt with in fresh proceedings - Singh v Ginelle Pty Ltd [2010] NSWCA 310 per Campbell JA, with whom Beazley JA and Handley AJA agreed, at [63].
4. In that Court there is express provision in the rules, UCPR 36.15, to set aside orders, and the Court has inherent jurisdiction to set aside consent orders if the agreement upon which the orders is based is void or voidable - The Owners Strata Plan no. 57164 v Yau [2017] NSWCA 341; (2017) 96 NSWLR 587 per Beazley P, with whom Leeming JA agreed, at [80].
5. The Tribunal lacks an equivalent rule to UCPR 36.15 and does not have inherent jurisdiction. The Tribunal's express power to set aside final orders in residential tenancy matters is limited to that set out in reg 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW), namely where the parties consent or where the final orders were made in the absence of a party and the Tribunal is satisfied that party's case was not adequately put to the Tribunal.
6. The Tribunal is a statutory tribunal and only has such powers as are expressly conferred on it or as are necessarily implied from the express conferral of jurisdiction - cf John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 per Spigelman CJ, with whom Handley JA and M W Campbell AJA agreed, at [24] and [28].
7. It is arguable that the Tribunal, as distinct from the Appeal Panel, has implied power to set aside orders entered into under duress (or other available grounds) because such ancillary power would be necessary for the effective exercise of jurisdiction - see John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512 per Spigelman CJ, with whom Mason P and Beazley JA agreed, at [39] - [45].
8. However, we do not consider we need to decide that point here.
9. In superior courts, a new trial may be granted by a court of appeal to prevent a miscarriage of justice notwithstanding the absence of error in the conduct of proceedings at trial, for instance, on the ground of evidence not discovered until after the trial or of the fraud of the successful party at the trial - Halsbury's Laws of Australia, online ed., at [325-11215, note 3].
10. Accordingly, even though the Tribunal below did not err, it is open to us to set aside the orders made below on a similar basis, namely if we were persuaded that the appellant's consent was vitiated by duress. Further, we are able to determine our own procedure in relation to any matter for which the NCAT Act or procedural rules do not otherwise make provision - s 38(1) of the NCAT Act, and we are required to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms - s 38(4) of the NCAT Act.
11. In those circumstances we propose to entertain the appeal, notwithstanding that, ordinarily, the detriment in an Appeal Panel hearing an issue like the present, which is really in the nature of a new hearing on a different issue than existed between the parties in the proceedings which were the subject of the consent orders, is that a party disappointed in the result has far lesser appeal rights than if the same issue was heard by the Tribunal.
12. Be that as it may, and as we later explain, we are not persuaded that the appellant has a prima facie case of duress. That is, taking his evidence at its highest, it does not satisfy the requirements of the law to set aside an agreement by consent.

Legislative Context

1. Section 59 of the NCAT Act provides: 59 Powers when proceedings settled (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if: (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. (2) The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement.
2. Rule 37 of the NCAT Rules provides: 37 Matters that may be taken into account when exercising settlement powers (1) When deciding whether to make orders to give effect to a settlement reached by parties to proceedings, the Tribunal is to take into account the interests of any vulnerable person (whether or not a party to the proceedings) if the Tribunal considers that: (a) the person may be directly affected by the orders because the person is a party to, or the subject of, the proceedings concerned, and (b) it is appropriate to do so in the circumstances. (2) Nothing in this rule limits the matters to which the Tribunal may have regard when deciding whether to make orders to give effect to a settlement. (3) In this rule: vulnerable person means: (a) a minor, or (b) a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled.

Ground 1

1. Rule 37 says that when the Tribunal is deciding whether to make consent orders it "is to take into account" the interest of any vulnerable person. Those words denote a mandatory action.
2. However, those mandatory words are later followed by "if the Tribunal considers that" which is then followed by sub-rules (a) and (b). The word "and" between those two sub-rules, in this context, appears to us to be conjunctive.
3. Therefore, on our reading of the rule, the mandatory taking into account of the interests of a vulnerable person only arises if and when the Tribunal decides ("if the Tribunal considers") that both sub-rules (a) and (b) are satisfied. If a Tribunal does not consider that both sub-rules (a) and (b) are satisfied, then it would not be required to take the vulnerable person's interest into account.
4. Sub-rule (a) requires the vulnerable person to be "directly affected" by the orders (presumably being distinct from being indirectly affected), and that that direct affect must arise because that person "is a party to, or the subject of, the proceedings".
5. Dominic, who is a minor and thus fell within the definition of "vulnerable person" in sub-rule (3), was not a party to the proceedings and was not, in our opinion, "the subject of" the proceedings.
6. The word "subject", as a noun as it is used in r 37, ordinarily means a person or thing that is being discussed, described, or dealt with. The expression in this context seems to have the flavour that the relevant person or thing is the main, or one of the main, topics, issues or matters about which the proceedings are concerned.
7. The person or thing being discussed, described or dealt with in these proceedings, or the main topic, issue or matter, was the residential tenancy agreement. Perhaps, arguably, "subject of" is wide enough to encompass the appellant and respondent.
8. But it does not seem to us that Dominic was the subject of the proceedings. No doubt, as he lived with the appellant, he would be affected by the outcome of the proceedings. However, the rule does not say, for example, that a vulnerable person's interests ought be taken into account "because the person is a party to, or will be affected by the outcome of, the proceedings concerned", which is language which one might expect if the intention of Parliament was to include all vulnerable people who might be affected by the outcome of proceedings.
9. There is a further difficulty with this ground.
10. On the evidence before us, Dominic and his interests were never mentioned to the Tribunal. In that case the appellant would need to demonstrate that the evidence concerning Dominic led on this appeal was significant new evidence that was not reasonably available to the appellant at the time [see clause 12(1)(c) of Schedule 4 to the NCAT Act]. Self-evidently, the evidence concerning Dominic that we have quoted at [11] above was reasonably available to the appellant at the time the consent orders were made.
11. Therefore, in our opinion the Tribunal did not err in law in that r 37 did not require Dominic's interest to be taken into account.
12. Insofar as the appellant's Ground 1 might be wide enough to encompass a ground other than on a question of law, based upon significant new evidence and clause 12(1)(c) of Schedule 4 to the NCAT Act, the identified new evidence was reasonably available to the appellant at the time the consent orders were made, and so the terms of clause 12(1)(c) are not satisfied. We would therefore refuse leave to appeal on that ground.

Ground 2

1. There are a number of grounds upon which consent orders may be set aside. In Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235, the High Court stated at 243-4: "The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like."
2. In this case, the appellant relies upon duress.
3. Common law duress looks to the quality of the consent or assent of the weaker party - Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 298) ALR 35 per the Court at [117].
4. The authors Young, Croft and Smith, in their book On Equity, Lawbook Co, 2009, note at [5.570] that it is unlikely that anyone who makes an important decision does so without pressure of some sort affecting them. The law draws a line between pressure that makes a decision void or voidable, and pressure that does not.
5. That line is crossed, in Australia, when there is illegitimate (or unlawful or improper) pressure, and that pressure was one reason for a person to enter into a contract.
6. Originally, duress was developed to rectify occasions where threats or acts of physical violence or imprisonment of a person or their family were made such that the person was deprived of their freedom of exercising their will. Subsequently, the doctrine expanded to include threats to seize goods, burn down a house, slash valuable paintings and, now, economic duress - Young et al at [5.580 - 5.590].
7. The most recent authoritative consideration of duress was by the NSW Court of Appeal in Australia & New Zealand Banking Group v Karam [2005] NSWCA 344; (2005) 64 NSWLR 149. At [66] the Court confined the concept of duress and explained how it fit with other equitable and statutory doctrines and rights. The Court said: "The vagueness inherent in the terms "economic duress" and "illegitimate pressure" can be avoided by treating the concept of "duress" as limited to threatened or actual unlawful conduct. The threat or conduct in question need not be directed to the person or property of the victim, narrowly identified, but can be to the legitimate commercial and financial interests of the party Secondly, if the conduct or threat is not unlawful, the resulting agreement may nevertheless be set aside where the weaker party establishes undue influence (actual or presumptive) or unconscionable conduct based on an unconscientious taking advantage of his or her special disability or special disadvantage, in the sense identified in Commercial Bank of Australia Ltd v Amadio. Thirdly, where the power to grant relief is engaged because of a contravention of a statutory provision such as s 51AA, s 51AB or s 51AC of the Trade Practices Act (Cth), the Court may be entitled to take into account a broader range of circumstances than those considered relevant under the general law. Pursuant to both provisions of the Trade Practices Act (Cth) and the Contracts Review Act, the relative strengths of the bargaining positions of the parties, and their ability to negotiate terms, will be relevant.
8. Thus, the Court, in a decision binding on the Tribunal, has said that duress is limited to circumstances where there is threatened or unlawful conduct involving the person, or the person's commercial and financial interests.
9. After reviewing a number of duress authorities Ward J, in A v N and Anor [2012] NSWSC 354 observed at [509] that: "... the cases show that there is a high threshold to be met with respect to the conduct of the party alleged to be exerting pressure, as these cases all exhibit a high degree of threatened violence."
10. In this case, there was no threat of the relevant kind, nor unlawful conduct, in relation to the appellant and his decision to agree to the consent orders. There was some pressure, but no threat or unlawful conduct.
11. Further, there is no evidence that the appellant had any defences to the respondent's application for termination and possession, and thus whether he had, as a matter of substance, any other realistic options.
12. Further still, the fact that since the date of the consent orders the appellant was looking for alternative accommodation (paragraph 10 of his affidavit) suggests there was a lack of threat or unlawful conduct involved with his agreement to the consent orders.
13. Accordingly, in our opinion the appellant does not have a prima facie case of duress and this ground of appeal fails.

Ground 3

1. The appellant says that, because of the facts we have outlined above in relation to the other two grounds of appeal, he should be granted leave to appeal on the basis that he may have suffered a substantial miscarriage of justice because the decision of the Tribunal was not fair and equitable - see Schedule 4, cl 12 of the NCAT Act.
2. The principles applicable to seeking leave to appeal are set out in Collins v Urban [2014] NSWCATAP 17 at [65] - [84].
3. For the same reasons we have given in relation to the evidence of duress above, we do not consider the appellant may have suffered a substantial miscarriage of justice - see Collins at [76]. On the appellant's evidence, his consent was not vitiated by duress.
4. Nor do we consider that there was an injustice which is reasonable clear, in the sense of going beyond what is merely arguable, such that it would be unjust to allow the consent orders to remain - see Collins at [84].

Orders

1. Although we can only have the utmost sympathy for the appellant and the position in which he finds himself, we must apply the law to his appeal. Applying that law, as we understand it, must result in the appeal being dismissed.
2. However, in dismissing the appeal and lifting the stay of the orders that was granted by the Appeal Panel on 28 May 2019, the effect of our decision will be that the landlord can seek to immediately enforce the termination order by obtaining a warrant and engaging the Sherriff to evict. Considering the circumstances of the appellant, we are satisfied that the order for termination and possession should be varied under s 81 (1)(b) of the NCAT Act to allow a further period for the tenancy to end and the appellant to vacate the property-see Kelly v NSW Land and Housing Corporation [2018] NSWCATAP 154 at [67].
3. We raised this issue towards the end of the hearing. The appellant sought a further 8 weeks to vacate the property and the landlord did not oppose this course of action if the appeal was dismissed. Accordingly, we have varied the orders for termination and possession.

Orders

1. The orders are: 1. Appeal dismissed. 2. Stay of the orders of the Tribunal in Matter SH 18/53417 is lifted. 3. Order 1 of the Tribunal dated 14 March 2019 in Matter SH 18/53417 is varied to read that: "By consent, the residential tenancy agreement is terminated on 19 October 2019 and possession is to be given to the landlord on the date of termination".

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2019