Turnbull v Bridge Housing Limited

Background

1. The Appellant has been the tenant of the rental premises since July 2018. The Appellant pays less than market rent in the amount of $179.15 per week, however since the Decision the rent has been reduced to $120.02 per week.
2. There are water ingress issues in the building in which the Appellant's apartment is located. This water ingress lead to flooding in the tenant's bedroom, which caused the carpet to be removed in her bedroom and for her bed to be removed to the kitchen on 10 February, where she continues to sleep pending rectification of the building defects which cause the water ingress.

The Tribunal's reasoning

1. The Appellant made a late application for written reasons, nevertheless the Member below prepared written reasons which were sent to the parties on 10 November 2020 (the Decision). The Member noted his reasons were given at the end of the hearing, orally, and stated those "reasons not only include the formal recitation of the reasons at the end of the hearing but also encompass discussion and reasoning with parties in the course of the hearing process": [3] the Decision.

The Notice of Appeal

1. On 3 August 2020 the Appellant commenced this appeal. The appeal is within time.
2. Despite the Decision being in the tenant's favour, she has appealed all of the orders on the basis that she was denied procedural fairness. Her Notice of Appeal states that the denial of procedural fairness was that the Member did not ask for her consent before making order 3 (that the tenant give access to the landlord to lay tiles in the bedroom).
3. At the Appeal hearing and in her voluminous submissions, the tenant's main complaint was that she was not allowed to listen to the hearing on 20 July and this denied her procedural fairness. This complaint appears in her Notice of Appeal under "Application for leave to appeal". If there is procedural unfairness that is an error of law. Leave is not required to bring an appeal for errors of law, however the Tribunal is not bound by forms and does not take issue with the Appellant listing her grounds of appeal in the wrong section of the Notice of Appeal.
4. At the Appeal hearing the appellant clarified her grounds of appeal as follows: 1. As to the order for $1,300 compensation in her favour, she appeals this on the basis of denial of procedural fairness. The order the appellant wants instead is a reduction of 75% off rent, such that the landlord is only entitled to 25% of the rent from 10 February 2020 until the necessary mould remediation works are undertaken; 2. As to the consent order - that the appellant give the landlord access so that the landlord can lay tiles in the bedroom - the appellant wants this consent order overturned as she did not consent and does not want tiles in her bedroom. This ground of appeal is alleged to be a denial of procedural fairness.
5. The appellant conceded that her complaints about the water leakage were raised in her application by the rent reduction order sought and that she had not, at any time in her application, sought a work order (or repair order) for the landlord to remediate the water leakage issues. Therefore this part of the appeal was not pressed. This part of the appeal had been raised in the Notice of Appeal on page 3 under the heading "Orders that NCAT Appeal Panel should make". There the appellant had written "Also because renovating is not what is needed. There is water coming into my apartment, this problem needs fixing, doing renovations to the flooring right now is not rational. A licensed builder needs to come and assess the problem. Blanket Band-Aids like laying tile should not be applied." It was also referred to in other parts of the Notice of Appeal by the appellant writing "The members [sic] Oral Reasons didn't match his written orders - failure to decide on the leak." As already noted, the appellant did not press this complaint at the appeal hearing.
6. Given both grounds of appeal are allegations of denial of procedural fairness, both concern questions of law and therefore the appeal is as of right and no leave of the Appeal Panel is required: s.80(2)(b) Civil and Administrative Tribunal Act 2013.
7. Even if the Appeal Panel decides there has been a denial of procedural fairness, the Appeal Panel must still consider whether it should make such orders as it considers appropriate in light of its decision on the appeal under s.81(1). That is, a finding of procedural unfairness does not automatically lead to the Appeal Panel setting aside the orders at first instance.

The appellant's submissions

1. The appellant, who represented herself at the appeal, confirmed that she wanted Rohan Story to be her representative at the first instance hearing.
2. She claimed the denial of procedural fairness was the fact the Member would only allow one person to speak on behalf of each party, and that the Member refused to let the appellant listen to the hearing. She claimed she could not hear what was being said by the Member or the other party as the phone her representative was using for the hearing could not be put on speaker phone and the Member refused to telephone her separately on her own phone. The final allegation of procedural unfairness was that the appellant claims the Member continuously interrupted her representative, Mr Story.
3. The denial of procedural fairness was said to affect the appellants' case at first instance by the representative consenting to the access order and the representative not putting submissions about why the rent reduction should be 75% not the 33% which was awarded in the appellant's favour.
4. The Appeal Panel took the appellant to parts of the transcript where it appeared the issues she raised in this appeal were dealt with by the Member. Both parties provided transcripts of the hearing below but the landlord's transcript was complete and much easier to read and reference. Therefore it is the landlord's transcript which will be extracted into these reasons.
5. The Appeal Panel took the appellant to the first page of the transcript: p71 of the respondent's evidence. The hearing commenced as follows: Rohan Story: Hello Member: Is that Mr Story? Rohan Story: Yeap. Member: it's Member Ringrose from the Civil and Administrative Tribunal. Mr Story would you like to hold while I get the representatives of Bridge Housing online? Rohan Story: Indeed I would Sir. Member: Thank you. Rohan Story: They're calling Bridge Jonelle Blaney: Hello, Bridge Housing, Jonelle speaking Member: Uh, Miss Blaney it's Member Ringrose from the Civil and Administrative Tribunal… Which of you is going to speak? Is it you or Mr Bradshaw? Jonelle Blaney: Ah, it's joint, it's both Member: No, it's not. One of you will speak. The other of you will listen and keep quiet. Jonelle Blaney: Ok, yeah, it's me. Member: Well I'll ring Mr Bradshaw, but uh, we don't have joint and we never had it when, when people were appearing in person, and ah we never have it now as far as I am concerned… so I will ring Mr Bradshaw, but tell him that you are speaking. Is that correct? Jonelle Blaney: Yup
6. After getting Mr Bradshaw on the phone and telling him he will sit quietly and listen to the call, the Member begun the hearing. On page 72 of the respondent's evidence the transcript shows Mr Story raised the issue of calling the appellant so she was in the telephone hearing as well. This followed: Member: Well, she simply said you were going to be calling so. Story: Ok, um she was under the interpretation that she would also be able to listen in. Little bit hard um on the phone, um uh are you ok not being on the phone Rachael? Turnbull: No I'm not actually I'm the applicant I should be part of the conference. Member: Well she can either be on the phone or you can be on the phone Mr Story.* Turnbull: Two of them why can't there be two of us? Member: Mr Story, perhaps you might tell… Miss Turnbull that uh if she doesn't behave she won't have any contact. Story: Yeah, I understand she's gone outside, um as you can tell, she's just emotionally charged about the whole thing. Member: Then perhaps it's good that you're speaking on her behalf, Mr Story, I think. Story: yeah Member: … just so you understand there are there are two people from bridge housing, but the person who is not talking has been told by me that he will not say a word, because it gets out of hand. If so, the person who's speaking actually on behalf of bridge housing is the person who was handling it earlier and that's Miss Blaney. Story: Ok, so we've only got one person from Bridge Housing talking Member: That's right, that's exactly right, the one Mr Bradshaw is listening in Turnbull: I'm the applicant, I should be apart of this, this is bullshit. Story: ok alright um Turnbull: * inaudible Story: Alright, alright Rachael, please, please just, ok um yeah Turnbull: * inaudible Story: No Rachael let it go ok. Alright, sorry about that. Ok. Alright, so um the documents your asking… Member: … it's unfortunate I understand what Ms Turnbull is talking about, but it's not helped by her sort of allowing emotions to get into the road now, which is why I probably would seem that you're speaking rather than she is. Story: yeah. [page 74 R's evidence] Member: And apart from that I was only given one number to ring. That was your number Mr Story. That's the number that they advised me I had to call. Story: Yeah, no I think that's … good.
7. After the question marked by the asterix above, the appellant submitted in parentheses in her written submissions on page 2 "(of course I'm not on the call so I can't hear this ultimatum, and it's not like I'm going to send my kind friend who is doing me a huge favour home at this point).
8. During the appeal hearing the Appeal Panel also read the appellant the emails she sent and received about Mr Story representing her. These are on pages 48 to 50 of the respondent's evidence and include: [Email sent by appellant 14 July 2020 at 12:21pm] Hi, Due to the difficulties I am dealing with at home because of this case I would like to ask that somebody assist me in the upcoming Tribunal hearing on 20 July 2020. The person I would like to have help me is not a lawyer, he is a trained engineer and friend only. Bridge Housing have two people representing their side and I feel this would balance things out more evenly. Please let me know if there's something more I need to do to organise this type of support. Kind regards, Rachel Turnbull [The Tribunal sent the appellant an email at 1:42pm as follows] Dear Rachael Please refer to the link below for information on representation. [inserted link to NCAT page on website entitled "Representation"] [Email sent by appellant 15 July 2020 at 3:07pm] RE SH20/19710 Turnbull versus bridge housing Ltd The tribunal member, Due to the difficulties I am dealing with at home caused by the water leaks I would like to ask that somebody assist me in the upcoming Tribunal hearing on 20 Jul 2020. The person I would like to have help me is not a lawyer, he is a trained engineer and friend only. His name is Rohan Story. He is a self employed solar panellist installer. Rohan is somebody I trust to represent me and he has my permission to make decisions in my absence that are binding to me etc. Please let me know if you would like more information etc. [The Tribunal sent the appellant an email at 4:03pm as follows] Dear Rachael Please confirm if Rohan Story will attend the hearing with you. You should also provide his contact telephone number for the hearing. Refer to the link below for more information on representation [same link sent again] [At 4:43pm on the same day the appellant replied] Hi, I am asking if Rohan Story can attend and assist me in the hearing on Monday the 20th. Rohan's phone number is 0419 XXX XXX. Please let me know if you would like more information.
9. On page 2 of her written submissions the appellant said "I was sent a link with information but nowhere [sic] was it written that I was forfeiting my right to participate in the legal process. it [sic] was done sneakily so I had no opportunity to discuss my legal defence with Rohan."
10. The Appeal Panel pointed out to the appellant that at no stage did Mr Story or the appellant herself inform the Member that Mr Story cannot put his phone on loud speaker such that both of them could listen to the hearing. In fact it appeared from the transcript that the appellant was hearing what was being said and was vehemently responding to it. Further her submissions about her representative being interrupted and the Member being aggressive towards her representative tend to suggest she listened to the hearing. However the appellant maintained her submission that she was unable to listen to the hearing from Mr Story's phone.
11. The appellant submitted that the Member continually "cut off" or interrupted Mr Story and that while she wanted Mr Story to appear for her, he was not across the issues as she was, and she would not have consented to the access order to lay the tiles. She repeated that it was unfair two people could talk for the respondent (even after the transcript was read out again that showed only Ms Blaney spoke for the respondent).
12. The appellant submitted Mr Story did not get to make submissions about reducing rent by 75%, which is less than the 100% rent reduction she had claimed in her amended application: see Decision [10]. The Appeal Panel took the appellant to page 85 of the respondent's evidence which is the transcript of an exchange between Mr Story and Ms Blaney about the rent reduction with Mr Story clearly and repeatedly arguing for 75% reduction.
13. The Appeal Panel has focussed on the appellant's oral submissions made during the appeal hearing, as she withdrew or refined many of the submissions she had earlier made in writing filed on 28 September 2020 under the heading "All The grounds I am appalling [sic] on Errors Of law and Reasons I am seeking leave on the weight of Evidence". These written submissions were 28 pages in length.

The respondent's submissions

1. The respondent filed its evidence which contained written submissions, on 30 September 2020. The respondent relied on its written submissions which were pages 5 and 6 in its folder of evidence. It did not seek to expand upon those written submissions at the appeal hearing, but certainly answered questions of the Appeal Panel during the hearing.
2. The respondent accepts the orders of the Tribunal and has been complying with the orders made on 20 July 2020, even though they were in favour of the appellant and they had initially opposed the orders made. The respondent has not pressed for access to install tiles in the bedroom since that order was stayed by the Appeal Panel.

Consideration of the issues

1. It appears to the Appeal Panel there are four issues in this appeal: 1. Whether the appellant was denied procedural fairness by not being able to speak at the hearing, along with her nominated representative. 2. Whether the appellant was denied procedural fairness by not being able to listen to the hearing. 3. Whether the landlord is entitled to decide, without regard for the tenant's preferences, what flooring should be installed in the rental premises. 4. Whether the appellant's representative was able to consent to orders and bind the appellant by that consent.

Issue 1: procedural fairness in the representative only being allowed to speak

1. Subsection 45(1) of the Civil and Administrative Tribunal Act (NCAT Act) is as follows: (1) A party to proceedings in the Tribunal - (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave - (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner - for a particular or any Australian legal practitioner to represent the party.
2. NCAT Rules 31, 32 and 33 deal with representation of parties at the Tribunal. Rule 32 is of particular relevance to this appeal (emphasis added): (1) In dealing with an application under section 45 of the Act for leave to be granted to a person (other than an Australian legal practitioner) to represent a party to proceedings, the Tribunal is to have regard to - (a) such of the following circumstances as it considers are relevant to the proceedings - (i) whether the proposed representative has sufficient knowledge of the issues in dispute to enable him or her to represent the applicant effectively before the Tribunal, (ii) whether the proposed representative has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings, (iii) whether the proposed representative is vested with sufficient authority to bind the party, and (b) any other circumstances that it considers relevant. (2) The Tribunal may revoke leave granted to a person to represent a party to proceedings only if the Tribunal is satisfied that - (a) the party no longer consents to the person representing the party, or (b) the person applied for leave to represent that party without the consent of the party, or (c) the person does not have the qualities referred to in subrule (1)(a)(i) or (ii) to act as the party's representative, or (d) the party is, or has become, incapable of instructing the representative, or (e) any other grounds are present that the Tribunal considers sufficient to justify the revocation.
3. In the emails sent to the appellant by the Tribunal in the days before the 20 July hearing, the Tribunal sent her links to a page of the NCAT website entitled Representation. On that webpage was the following information: How to request representation A request for representation can be made in writing at any stage during the proceedings or in person at the hearing. A representative may be a legal practitioner, real estate agent, strata managing agent, an advocate, or friend or relative with authorisation to act on your behalf. Before the hearing Any requests for representation before the hearing must be made in writing. Your request must include: • File number and parties' names • Why representation is needed • Name and occupation of your proposed representative and if they are a legal practitioner • A statement that your representative has authority to make decisions on your behalf and in your absence. Alternatives to representation Anyone can get legal help or advice to apply to NCAT or prepare for a hearing. You do not need to be granted leave from the Tribunal to do this. If NCAT does not permit you to have a representative, they can still provide help or advice to you on an informal basis as a support person.
4. Sometimes a Member will decide, in chambers, before the hearing that a party should have leave to be represented by another person at the hearing. Sometimes the Member hearing the matter will decide a party has leave to be legally represented. In this case it is clear from the transcript that the Member had been provided with the name and number of the appellant's representative, Mr Story, and could have from that information assumed a previous decision had been made that Mr Story has leave to represent the appellant. Further, while the Member did not expressly refer to s.45 of the NCAT Act or say the words "grant leave to be represented" it is clear that the Member approved Mr Story speaking on behalf of the appellant. It was equally clear this is what the appellant wanted, from her earlier emails, and this was confirmed by the appellant at the appeal hearing.
5. Sometimes party's authorise a representative to speak on their behalf and then the party does not even attend the hearing, they let the representative speak on their behalf and make decisions that are binding on the party.
6. What the appellant wanted was the ability to speak in the hearing as well as Mr Story speaking.
7. Subsections 38(1) and (2) of the NCAT Act are as follows: (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
8. It is perfectly acceptable that the Member determined that his procedure would be that each party nominate one representative (or speaker) which will present that party's case. It is undesirable for more than one person to be making submissions or presenting evidence on behalf of one party, and this challenge is intensified when the hearing is conducted by telephone as was required at the time of the hearing (and the appeal hearing).
9. As the party's representative is taken to be is vested with sufficient authority to bind the party, the Tribunal does not need to hear from the representative and the party to decide the case, or enter consent orders. If the appellant wanted to speak on behalf of herself, Mr Story would not also have been able to speak on behalf of the appellant. That would have made the hearing unruly and most likely would not have enabled the hearing to have been concluded in the limited time allocated for it, which would not have allowed the Tribunal to meet the guiding principle of resolving the issues in dispute in a quick, just and cheap way.
10. It is clear from the transcript and the appellant's submissions on this appeal that the appellant wanted Mr Story to speak on her behalf. Prior to making that decision the registry had twice sent the appellant information about representation in the Tribunal. The appellant, as the applicant in legal proceedings, was obliged to inform herself about the practice and procedure of the Tribunal particularly about aspects which have been specifically brought to her attention.
11. The information on the website specifically informed the appellant that if she made a request to be represented by her friend, her request must include "A statement that your representative has authority to make decisions on your behalf and in your absence". She is taken to have read this information on the webpage emailed to her twice, and still she made the request, albeit omitting that statement which the webpage told her she must include. She is taken to understand the import of asking Mr Story to speak on her behalf, and if this is not what she wanted she could have told the Tribunal so at the hearing on 20 July and represented herself: see NCAT Rules 31, 32 and 33.
12. There was no procedural unfairness in the appellant's representative being the only person able to speak on her behalf at the hearing of her application. She could have chosen to speak on her own behalf and she chose not to. She is bound by her decision.

Issue 2: Whether the appellant was denied procedural fairness by not being able to listen to the hearing

1. If the Tribunal had denied the appellant the ability to listen to the hearing of her application, she would have been denied procedural fairness.
2. However the Appeal Panel does not find, on the evidence before it, that the appellant was not able to listen to the hearing on 20 July 2020. The highest the evidence takes this point is the transcript at the bottom of page 72 of the respondent's evidence set out above. There the representative asked "so we're not gonna have Rachael listening in on this call?" and then he said "[it is] a little bit hard um on the one phone, um uh are you ok not being on the phone Rachael?" to which she responded "No I'm not actually I'm the applicant I should be part of the conference."
3. It is clear that she could hear what was being said during the hearing, when she chose to be near Mr Story and not take herself away for example outside. This is evident from the transcript where she is responding to what is being said by the Member in the hearing: page 73 of the respondent's evidence.
4. At no point did Mr Story or the appellant inform the Tribunal that Mr Story's phone did not have a speaker function which enabled the hearing to be broadcast from Mr Story's phone. There is no evidence Mr Story's phone lacked this ability and the Appeal Panel does not find that Mr Story's phone could not be switched to speaker mode.
5. As with courts in NSW, the Tribunal has processes that are open and transparent: s.3(f) of the NCAT Act. That requires hearings to be open to the public: s.49 NCAT Act. When hearings are conducted in the usual way, with parties being present in the hearing room, with the Member and other witnesses, this means any person can observe the proceedings (but cannot speak to the Member unless they are a party or representative or witness being cross examined).
6. With telephone hearings, any interested person may request to be part of the hearing and the Member will telephone them at the beginning of the hearing, but that interested person may not speak during the hearing. Clearly an applicant is not only an interested person, but someone who must be able to hear what is being said in the hearing which they commenced, if they so wish. If they nominate a representative and is given leave for that representative to speak on their behalf, the party may not attend the hearing. Where the party wishes to attend the hearing, but have a representative speak on their behalf, the Tribunal must ensure the party can hear the proceedings. If the appellant was not in the same room or premises as Mr Story during the hearing on 20 July, it would have been incumbent on the Member to have called her on her own phone, whilst reminding her that two people cannot speak for her, that she needs to nominate either herself or her representative.
7. As it is, she and Mr Story were in the same room and it was evident that she could hear what was being said, and the Member could hear what she said, from Mr Story's phone. In those circumstances the Member did not need to call her phone separately. If she chose to go outside and not listen to the hearing from Mr Story's phone then that was a matter for her. The Member was entitled to assume that the appellant was able to hear the proceedings and instruct her representative if she wished to do so.

Issue 3: Whether the landlord is entitled to decide what flooring should be installed in the rental premises

1. Generally speaking a landlord can decide what fixtures and furnishings are provided with the rental premises provided the premises are "fit for habitation by the tenant" and "in a reasonable state of repair": ss.52 and 63 Residential Tenancies Act.
2. Fit for habitation can be specific to a tenant in certain circumstances, but this was not established here: see for example NSW Land and Housing Corporation v Woodward [2015] NSWCATAP 164.
3. The reasons why the appellant does not want tiles laid in the bedroom of her rental unit were set out in her written submissions and include: 1. "laying tile will have detrimental effects on my health long term if tile is laid while there is a leak. Bridge have just laid tile in everyone else's apartments [sic] and this will cement the mould in. We have since had a lot of rain in August and now all that new laid tile will need to be pulled up. so the mould in the grout underneath and between can be removed.": page 4 2. "asked why they want to lay tile the first reason, off the bat is always "because of longevity" what they mean here is because tile will last longer, what they're saying is this is a renovation not a repair. and this is one of the major reasons of law why I'm not letting them put tile in my bedroom because it is crazy for them to be renovating i.e. laying tile when the root causes of the problem has not been fixed ie if they lay tile it will cement in the mould because the water is still coming in, ie, we just had a lot of rain in the first few weeks of August, my bedroom was flooded again because of this": pages 4-5 3. "This will have detrimental long-term effects on all of the residents health if they are allowed to do this… I will be at NCAT after every rain occurrence demanding that they pull up the tiles if they are allowed to go ahead with this renovation. Also I'm not legally required to let bridge in to renovate. I'm only "legally" required to let them in to repair which they have not even started to do. They will never be allowed in to lay tile without a warrant while ever I live there": page 5. 4. "A whole two years later, they decide they're looking now that they've laid tile and everybody else's apartment!! This is unconscionable the disregardful for the residents health is indescribable": page 6 and repeated on page 10 5. "It will cement the mould in which will have long-term effects on my health and the other residence [sic] health and eventually we will be living in one big cesspool of mould.": page 15
4. There is no evidence that laying tiles will cause the appellant (or other tenants, none of whom have taken part in these proceedings) any adverse health effects.
5. There is no basis in law to prevent a landlord from choosing the flooring it wishes to use in its rental premises, provided that flooring makes the property fit for habitation and in a reasonable state of repair. The appellant's apartment is not currently in a reasonable state of repair with the carpet removed from the bedroom and no replacement flooring being installed. The only recourse the appellant has if she prefers carpet to tiles, is to request written consent from the landlord to install a fixture or make a renovation, alteration or addition to the rental premises: s.66 of the Act. If the landlord gives written consent the works would have to be paid by the tenant (s.66(4)) and the works may have to be removed and returned to their original state at the end of the tenancy: s.67 of the Act.
6. As it is not a ground of appeal, the Appeal Panel need only make very brief passing comment about the appellant's contention that the landlord will need a warrant to access her apartment to undertake a renovation. The appellant misunderstands the law in this regard. The landlord is entitled to access the rental premises in accordance with Part 3, Division 4 of the Act. In this case the Appeal Panel has confirmed the consent order entered by the parties on 20 July and accordingly the landlord's authorised agents can enter the tenant's property on at least 48 hours' notice, to lay the tiles: s.56 of the Act. However, even if access by consent was not given the landlord would have been able to avail itself of the other sections in Division 4 of Part 3 and obtain access to lay the tiles.

Issue 4: Whether the appellant's representative was able to consent to orders and bind the appellant by that consent

1. The short answer to this issue is yes. When a person is given leave to represent a party, that person can speak on behalf of the party and has the authority to make decisions on behalf of the party.
2. This was made clear to the appellant when she wrote to the Tribunal before the 20 July hearing, and the Tribunal twice sent her a link to the webpage for representation. The appellant then refined her request for Mr Story to represent her after receiving, and apparently opening and reading, that webpage: page 2 of her submissions. The webpage included information that "your representative has authority to make decisions on your behalf and in your absence" and "If NCAT does not permit you to have a representative, they can still provide help or advice to you on an informal basis as a support person". That is, if she preferred to present her own case and have Mr Story with her solely as a support person, that option was available to her. She chose the representation option.
3. In that case, Mr Story was able to consent on her behalf. The following extract from the transcript, from page 93 of the respondent's evidence: Blaney: So Member are we able to agree on a date and time for the tile insulation? Member: Well, you don't have, uh, you don't have an indication of when that would be done can be done, do you? Blaney: We will work, off you know off what orders today, but we're looking at something in the next two weeks. Member: Well, all I all I can, um, Mr Story is Miss Turnbull going to allow them in to lay the tiles or not? Story: Um if that's your suggestion she'll follow it * Member: Well I'm well, I'm what I'm saying is that we can come backwards and forwards here so many times, but in the interest of trying to move forward, that is my suggestion. Story: Ok so that's what will be followed Member: That's that's my suggestion and that um Story: Yea p that's what that that's what she'll do … Blaney: … can we have one [an agreement to lay tiles within three weeks] ** Story: Um I believe so, um yep I mean what's what's um, I'm assuming you've got a tiler lined up and whatever Blaney: Yeap so our tiler can contact Rachel Story: Yeap Blaney: Yeap with the Member: With at least 48 hours' notice Blaney: Yeap with at least 48 hours' notice, yeap that's fine Story: Yeap
4. • After typing up this part of the transcript, in her submissions on page 16, the appellant wrote "(this is completely not true nobody is allowed to put my health at risk like this. This is Rohan wanting to go home already because of the member's ridiculousness)". After typing up the part of the transcript marked ** above, the appellant submitted, on page 16 of her submissions "I did not give my consent to be poisoned by mould at 1:21 the member confirms that the rent rebate stays until the leak is fixed ec blah blah blah it's clear they're not fixing the leak."
5. Mr Story's consent binds the appellant, and the Appeal Panel would not interfere with a consent order unless satisfied that there was fraud, duress, mistake, fresh evidence or the Tribunal lacked the power to make the consent order. As to whether the entry of the consent order was a denial of procedural fairness the following from Roney v NSW Land & Housing Corporation [2015] NSWCATAP 269 at [33] to [49] is relevant: The Appeal Panel has recently considered the applicable principles on an application to set aside consent orders which terminated a residential tenancy on the basis that they were agreed to by the tenant in circumstances where he was acting under pressure or duress: Roney v NSW Land and Housing Corporation [2015] NSWCATAP 269, see particularly at [33]-[49]. In summary, and without citing all of the authorities referred to, the following principles may be extracted: (1) Section 59 of the Civil and Administrative Tribunal Act 2012 gives the Tribunal power to make consent orders, including dismissing the proceedings, where the consent orders give effect to any agreed settlement reached by the parties which are signed by the parties. (2) Grounds alleging that consent orders were entered into under pressure where the party ought to have been given an opportunity to be heard may raise questions of law, including: (i) whether the party was denied procedural fairness or; (ii) whether there was some procedural defect relating to the making of the consent orders in the circumstance of the case; or; (iii) whether the Tribunal miscarried in the exercise of its discretion because it failed to consider a mandatory consideration; or (iv) whether the Tribunal exceeded authority in making consent orders in the absence of a jurisdictional fact (3) In exercising any discretion under s 59, the Tribunal must take into account the interests of any "vulnerable person" which includes a person who is "totally or partially representing himself or herself in proceedings because he or she is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled": Rule 37 Civil and Administrative Tribunal Rules 2014, and a failure to do so would be an error of law; (4) The Tribunal may err in law by making consent orders in the mistaken belief that the settlement agreement was untainted by undue influence or other conduct or circumstances that may vitiate the consent. Arguably, the issue of whether there was an "agreed settlement" is a jurisdictional fact on which the discretion under s 59 (1) is necessarily based, and in making the orders, the Tribunal was by implication, making a finding which may have been erroneous or mistaken, depending on whether the underlying agreement can properly be challenged. (5) A party who seeks to set aside an agreement (or consent orders) must provide evidence of the facts which support that ground. (6) The grounds for setting aside consent orders are the same as those for setting aside the agreement on which it is based, for example, illegality, misrepresentation, nondisclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like: Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243-4. Such grounds can also include unconscionable conduct by the party which stands to receive the benefit of the agreement: Hobson v NSW Land and Housing Corporation [2015] NSWCATAP 222 at [11]- [14].
6. The principles that the Appeal Panel applies when deciding whether to set aside a consent order were again outlined in McDonald v McDonald [2016] NSWCATAP 252 at [59]: 59. A review of the authorities dealing with when a consent order can be set aside can be found in the recent Appeal Panel cases of Prenc v Stojcevski [2016] NSWCATAP 244 at [43]-[45], [53]-[57] and Yuen v Thom [2016] NSWCATAP 243 at [36]-[54]. From those cases, the following principles can be discerned (omitting authorities): (1) At common law, a consent order may be set aside on the same basis as the underlying agreement may be set aside; (2) Whether the agreement constituting the compromise can be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or 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 and the like; (3) In order to set aside a consent order on one of the above bases, it must be possible to point to some contumelious conduct on behalf of the respondent for instance: (a) with respect to duress, it must be shown that illegitimate pressure was placed on the appellant such that there was no reasonable alternative but for her to submit; (b) with respect to undue influence, not only must there be a source of power to deprive the other person of free and voluntary consent, but it must be shown that the agreement was the result of the actual influence; (4) With respect to mistake: (i) the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract; (ii) a common mistake arises when the mistaken belief is held by both parties; (iii) a unilateral mistake is where one party is mistaken but where there are no other vitiating circumstances, such as misleading or deceptive conduct, fraud or misrepresentation, a unilateral mistake will not generally constitute a basis for setting aside an agreement unless the mistake is a serious mistake in relation to a fundamental term of the agreement and the other party knew of, or contributed to, the mistake. (5) With respect to other doctrines which may be applicable, such as unconscionable dealing, it must be shown that one party to the transaction was at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances that affect their ability to conserve their own interests, and the other party takes unconscientious advantage of the opportunity. It must be emphasised that the disadvantage must be "special" to disavow any suggestion that the principle applies whenever there is some inequality of bargaining power between the parties. What must be present is some disabling condition or circumstance which seriously affects the ability of the innocent party to make a judgment in their own interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party. (6) There may be other factors which arise such as non est factum which defence would arise in very limited circumstances to persons who, through circumstances such as blindness or illiteracy, are unable to have any understanding of the meaning of the document evidencing the agreement and who signed it in the belief it was radically different to what was in fact signed.
7. The appellant has not satisfied the Appeal Panel that any of the circumstances which would empower the Appeal Panel to set aside the consent order have been established. Mr Story had the authority of the appellant to enter consent orders on her behalf and in this case he did so, and there was no irregularity in the consent order entered. This is particularly so in circumstances where the landlord can choose whatever flooring it wishes to lay in the rental premises; the consent order only concerns access and access is also something the tenant is required to give in certain circumstances pursuant to the Residential Tenancies Act and the residential tenancy agreement she has with the landlord.

Costs

1. The Respondents did not seek an order for costs in their favour. As a result, there will be no order as to costs of the appeal.

Orders

1. The Orders of the Appeal Panel are as follows: 1. Appeal is dismissed. 2. No order as to costs. 3. The stay entered on 21 September 2020 is lifted. Order 3 made on 20 July 2020 is enlivened, that is, by consent the tenant will allow the landlord and or its authorised contractor access to the property for the purposes of laying tiles in the bedroom providing that at least 48 hours' notice is given. 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: 02 February 2021