Van Someren Boyd v Van Someren Boyd

NCAT Appeal Panel|2021-04-27

er 2020/00371266: (a) Set aside order number 2 made on 15 December 2020 in proceedings RT 20/46127 and in lieu thereof order that the residential tenancy agreement is terminated on 15 December 2020; (b) Set aside orders numbered 3 and 5 made on 15 December 2020 in proceedings RT 20/46127; Decision: (c) Order that proceedings RT 20/46127 be remitted to the Tribunal to determine whether Claire Van Someren Boyd can establish an interest in the property Land Title Reference B/301074 which would entitle her to remain in possession of the premises at 1 ****** **** Lismore notwithstanding the termination of the Residential Tenancy Agreement and, if so, whether an order for possession should be suspended for a reasonable period to permit Claire Van Someren Boyd to obtain relief from a court of competent jurisdiction; (d) Appeal otherwise dismissed. (2) In Appeal number 2021/00075515: (a) By consent that the appeal be reinstated; (b) Appeal dismissed. Catchwords: LEASES and TENANCIES - Residential Tenancies Act - Law Reform (Law and Equity) Act- claim by tenant to an equitable interest in the property-whether the Tribunal should have determined if the tenant was entitled to remain in possession by reason of that interest notwithstanding the termination of the residential tenancy agreement. Civil and Administrative Tribunal Act 2013 (NSW) Legislation Cited: Civil and Administrative Tribunal Rules 2014 (NSW) Law Reform (Law and Equity) Act 1972 (NSW) Residential Tenancies Act 2010 (NSW) Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Cases Cited: Rayner v Rayner [2020] NSWSC 1536 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289 Van Someren Boyd v Van Someren Boyd [2021] NSWCATAP 37 Texts Cited: Nil Category: Principal judgment Claire Van Someren Boyd (Appellant) Parties: Respondents: Michael Van Someren Boyd (First Respondent) Lucette Van Someren Boyd (Second Respondent) Solicitors: Representation: Appellant (Self-Represented) J Dietrich (Agent) (Respondent) File Number(s): 2020/00371266 and 2021/0075515 Publication Restriction: Nil

Introduction

These are two internal appeals under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal (Tribunal) on 15 December 2020.
The application to the Tribunal was brought by Michael and Lucette Van Someren Boyd (Michael and Lucette) against Claire Van Someren Boyd (Claire). Claire is the appellant in these appeals and Michael and Lucette are the respondents.

Background

Michael and Lucette are respectively Claire's stepfather and mother. Michael and Lucette are the registered proprietors of a property at Lismore New South Wales Land Title Reference B/301074 (Property). Claire currently occupies part of the Property with her three young children.
Michael and Lucette purchased the Property in 2012. Claire has occupied at least part of the Property since that time. Claire claims an equitable interest in the Property. In September 2020 lodged a caveat to support that claim. The caveat stated that Claire asserts an estate in fee simple by virtue of a "Beneficial Interest in Trust". The details supporting the claim state: "equitable estate in land the land was purchased by the registered proprietors with money to which the caveator was entitled and was purchased under an oral agreement to hold the land on trust for the caveator which interest has been part performed and which is binding in equity".
On 27 April 2021 the Appeal Panel was informed that the caveat had been removed. 6 On 7 February 2020 Michael and Lucette as landlords entered into two residential tenancy agreements with Claire as tenant in relation to the Property. The term of each agreement was six months. The first tenancy agreement related to the upstairs portion of the premises on the Property known as 1 ****** **** Lismore (Upstairs Premises). The second agreement related to the downstairs portion of the premises known as 1A ****** **** Lismore (Downstairs Premises).
On 6 July 2020 Michael and Lucette, by their real estate agent, served notices of termination of both of the residential tenancy agreements on Claire under s 84 of the Residential Tenancies Act 2010 (NSW) (RT Act) requiring Claire to give vacant possession by 4 October 2010.

Tribunal proceedings and decisions

On 3 November 2020 Michael and Lucette commenced two sets of proceedings in the Consumer and Commercial Division of the Tribunal. In proceedings RT 20/46127, Michael and Lucette sought a termination order in relation to the tenancy agreement for the Upstairs Premises and an order for possession on the basis of the termination notice for those premises issued on 6 July 2020.
In the second set of proceedings, RT 20/46133, Michael and Lucette sought a termination order of the tenancy agreement for the Downstairs Premises and an order for possession on the basis of the termination notice for those premises issued on 6 July 2020. Michael and Lucette also sought an order for the payment of outstanding rent for the Downstairs Premises, then alleged to be $7,750.
It is the determination of proceedings RT 20/46127 and RT 20/46133 by the Tribunal on 15 December 2020 which is the subject of the current appeals. However before dealing with that determination, is necessary to refer to a third set of proceedings in the Consumer and Commercial Division of the Tribunal, being proceedings RT 20/22919. In those proceedings, which were commenced on 26 May 2020 and related to the Upstairs Premises, Michael and Lucette sought orders permitting their sales agent access to the premises and orders that Claire pay arrears of rent.
On 31 August 2020 the Tribunal made orders in proceedings RT 20/22919, including an order authorising Michael and Lucette or their agent to enter the premises for the purposes of showing them to prospective tenants or purchasers and an order that Claire pay arrears of rental of $4,654.00. Claire lodged a Notice of Appeal in respect of those orders in proceedings AP 20/37960.
On 24 February 2021 the Appeal Panel dismissed Claire's appeal: Van Someren Boyd v Van Someren Boyd [2021] NSWCATAP 37. At [21] of the reasons for decision the Appeal Panel said that the central issue identified by Claire in her appeal was whether there was "an arguable case that the appellant has an enforceable equitable interest in the property sufficient to prevent a sale by the registered proprietor against her interests". At [48] the Appeal Panel held that the central issue in the appeal, as identified by Claire, was insufficient to warrant the appeal being upheld. We will elaborate on these reasons for decision in due course.
Proceedings RT 20/46127 and RT 20/46133 were fixed for hearing before the Tribunal on 15 December 2020. Claire provided written submissions and served evidence, including affidavits, in opposition to the claims by Michael and Lucette to terminate the tenancies and for possession.
In essence, Claire presented evidence to support a submission that she was entitled to beneficial ownership of the Property subject to the repayment of a mortgage. Claire claimed that Michael and Lucette agreed with her that they would buy the Property for her to live in, that she would live in the Upstairs Premises and would pay the rent on those premises whilst the Downstairs Premises were separately rented. Claire claimed that the rent for the Upstairs Premises was calculated to enable a mortgage taken out to purchase the Property to be paid off in conjunction with the rent from the Downstairs Premises. Claire claimed that it was agreed that after the mortgage was paid off the Property would belong to her. Claire submitted that no order should be made for possession because of her interest in the Property.
Claire claimed that in the previous year or so her relationship with Lucette had deteriorated, which resulted in Lucette telling Claire that Claire had no interest in the Property and insisting that Claire enter into tenancy agreements for both the Upstairs Premises and the Downstairs Premises, saying that if Claire did not agree Lucette would sell the Property. Claire claimed that it was in these circumstances that she entered into the two tenancy agreements, because she felt she had no other option.
No written reasons were given by the Tribunal Member for the decisions on 15 December 2020 in relation to proceedings RT 20/46127 and RT 20/46133. No party requested the Tribunal to provide a written statement of reasons for its decisions pursuant to s 62 (2) of the NCAT Act. However the documents served by Claire in support of her appeal from those decisions included a transcript of the sound recording of the hearing on 15 December 2020.
At the hearing on 15 December 2015, which was conducted by telephone, Claire participated in the telephone link on her own behalf and Ms Dietrich, a real estate agent, participated on behalf of Michael and Lucette. The Tribunal Member asked some questions of Claire and Ms Dietrich. The following exchange occurred in relation to the prior hearing of proceedings RT 20/22919, in relation to which an appeal was pending at that time: "Tribunal Member: …could I just ask the agent, Ms Dietrich, I do not have any copy of the sound recording or the transcript or anything can you tell me… were you at the last hearing, and if so, can you tell me your understanding of what the Member decided in relation to the claim that there's some type of constructive trust that somehow stops the tenancy being terminated? Ms Dietrich: We haven't received that yet, but it was my understanding that it was decided that there was no trust."
After asking some further questions, the transcript records the following: Tribunal Member: …I'm going to decide the matter today. I realise, Ms Van Someren Boyd, that you may well appeal and that's entirely your right to do so, but it seems to me that if there is some type of constructive trust then there's no reason why the tenancy agreement, which you signed and have entered into in respect of both upstairs and downstairs, is unable to operate in conjunction with the constructive trust. It also seems to me that it's clear on the tenant's own evidence that the constructive trust, if it in fact exists, allows the landlord or the legal owner of the premises to terminate the tenancy agreement if rent's not paid. It would also seem that the terms of the trust are breached by non-payment of rent. So, in those circumstances I do not think there is any barrier to terminating the tenancy if in fact there is some type of constructive trust, and on the… there's… that seems to have been in previous applications denied by the landlord and a finding made in that previous case in relation to that same issue, that there was no constructive trust which would mean that that issue is subject to what's called issue estoppel, and the parties are bound by that subject to the appeal. There has been a stay on those orders, but it seems to me that that issue has been determined, and I accept what the landlord's agent tells me in the absence of transcript could have been provided by either party, so I propose to terminate the tenancy and … how … have you got any children living there with you, Ms Van Someren Boyd? Claire: Yes I have three children. Tribunal Member: Three children. How old are they? Claire: six, three and one. Tribunal Member: Alright. Well I propose to suspend the order for possession to enable you to either appeal and have that dealt with, or if you don't appeal to move out in some orderly fashion with your children, and I am not going to order vacant [possession] before Christmas, so I'll suspend the order for possession for a month…"
At the conclusion of the hearing the Tribunal made orders which included orders terminating the residential tenancy agreement for the Upstairs Premises immediately and ordering that possession be given to Michael and Lucette on the date of termination, such order being suspended until 18 January 2021.
In proceedings RT 20/46133 the Tribunal made orders on 15 December 2020 which included orders terminating the residential tenancy agreement for the Downstairs Premises immediately and ordering that possession be given to Michael and Lucette on the date of termination, such order being suspended until 18 January 2021. The Tribunal also ordered Claire to pay Michael and Lucette the sum of $9,214.29 for rental owing for the Downstairs Premises. Procedural History of the Appeals
The first Notice of Appeal in this matter was lodged on 24 December 2020 together with an Application for stay of original decision pending appeal (First Notice of Appeal). The appeal was allocated proceedings number 2020/371266. On 30 December 2020 the Appeal Panel made an order suspending the orders for possession made on 15 December 2020 in both matters until 5pm on 27 January 2021 or further order of the Tribunal.
On 27 January 2021 the Appeal Panel directed Claire to lodge with the Registry and give to Michael and Lucette by 17 February 2021 all the evidence given to the Tribunal below on which it was intended to rely, any other evidence on which it was intended to seek leave to rely, her written submissions and the sound recording or transcript of hearing at first instance. The Appeal Panel directed Michael and Lucette to lodge the evidence and submissions on which they wished to rely by 2 March 2021. Claire's application for a stay was adjourned until 3 February 2021.
On 3 February 2021 at a callover, the Appeal Panel suspended the order for possession of the Upstairs Premises until further order. At the hearing of the appeal on 23 March 2021 we were informed that the reason why no corresponding order was made in relation to the Downstairs Premises was because Claire had voluntarily relinquished possession of the Downstairs Premises by 3 February 2021 to Michael and Lucette. This was confirmed to us at the further hearing of the appeal on 27 April 2021.
The hearing of the appeal proceeded by telephone on 23 March 2021. However, on 22 March 2021 Claire lodged a further Notice of Appeal (Second Notice of Appeal) and application to stay the original decision pending appeal. In the Second Notice of Appeal, Claire challenged the order made in RT 20/46133 requiring her to pay $9,214.29 in respect of rental owed for the Downstairs Premises. The ground of appeal raised in the Second Notice of Appeal is to the effect that at all relevant times the Property was uninhabitable and that it would be unconscionable for the money order to remain in force.
It was misconceived to lodge the Second Notice of Appeal. The correct procedure if an appellant wishes to challenge a decision of the Tribunal on additional grounds to those contained in an existing notice of appeal (or to challenge another order made by the Tribunal in proceedings which are the subject of an existing notice of appeal) is to apply to amend the existing notice of appeal. The Tribunal has power under s 53 of the NCAT Act to amend any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. Lodging the Second Notice of Appeal caused a number of unnecessary procedural complications, as we will explain.
The version of the Second Notice of Appeal with which we were provided on 23 March 2021 was marked by the Registry with proceedings number 2020/371266, which was the proceedings number of the existing appeal.
Ms Dietrich, who represented Michael and Lucette on the appeal, objected to the issues raised by the Second Notice of Appeal being dealt with at the hearing on 23 March 2021. Ms Dietrich submitted that Michael and Lucette had not been served with the Second Notice of Appeal and that if the matter had been raised at the correct time she would have taken steps to challenge the contention that the premises were uninhabitable.
In the circumstances, we concluded that the issues raised by the Second Notice of Appeal could not be dealt with at the hearing on 23 March 2021 and should be adjourned for separate consideration.
On 31 March 2021 we made directions which included listing the appeal for further hearing on 27 April 2021 so that, among other things, the issues raised by the Second Notice of Appeal could be dealt with on that occasion. The directions were as follows: 1. The matter is listed for further hearing on 27 April 2021 at 10:15 am. 2. The Appellant is to give to the Respondents by 1 April 2021 the Second Notice of Appeal and the Application for Stay of original decision pending appeal which was lodged with the Tribunal on 22 March 2021. 3. The Appellant is to lodge with the Appeal Panel and give to the Respondents by 15 April 2021: (a) All the evidence provided to the Tribunal below in relation to the Second Notice of Appeal on which it is intended to rely; (b) Any evidence not provided to the Tribunal below in making the decision under appeal in the Second Notice of Appeal on which it is intended to seek leave to rely; and (c) The appellant's written submissions in relation to the Second Notice of appeal. 4. The Respondents are to lodge with the Appeal Panel and give to the Appellant by 22 April 2021: (a) All the evidence provided to the Tribunal below in relation to the Second Notice of Appeal in which it intended to rely; (b) Any evidence not provided to the Tribunal below in making the decision under appeal in the Second Notice of Appeal on which it intended to seek leave to rely; and (c) The respondent's written submissions in relation to the Second Notice of Appeal.
What we did not learn until 27 April 2021 was that a version of the Second Notice of Appeal was lodged on 17 March 2021. We learnt that on 18 March 2021 the Second Notice of Appeal was also allocated a new proceedings number by the Registry, being 2021/75515 and was listed for callover on 7 April 2021. We learnt that at the callover on 7 April 2021, appeal number 2021/75515 was dismissed because Claire failed to appear. We also learnt that on 23 April 2021 Claire had lodged an application to reinstate appeal number 2021/75515, which application had not been determined.
We decided that it would facilitate the resolution of all the issues in the proceedings for us to also deal with appeal number 2021/75515 on 27 April 2021. In the circumstances, we have treated the Second Notice of Appeal as a notice of appeal raised in proceedings number 2021/75515 rather than as a second notice of appeal in proceedings number 2020/371266.

Submissions and evidence

In deciding the appeals, we have had regard to the following: 1. the First Notice of Appeal lodged on 24 December 2020 with annexures comprising 122 marked pages; 2. the Reply to Appeal lodged on 22 January 2021 with annexures comprising 35 pages; 3. Claire's written submissions lodged on 3 February 2021 comprising 5 pages marked 123-127; 4. the transcript of the hearing in the Tribunal on 15 December 2020 which was lodged by Claire on 22 February 2021 comprising 7 pages; 5. the Second Notice of Appeal lodged on 17 March 2021 with annexures comprising 64 marked pages; 6. the oral submissions made by Claire and by Ms Dietrich on behalf of Michael and Lucette at the hearings on 23 March 2021 and 27 April 2021.
Michael and Lucette did not lodge any written submissions in relation to the appeals other than what was contained in the Reply to Appeal.

Grounds of Appeal in First Notice of Appeal

The grounds of appeal specified in the First Notice of Appeal raise many issues. Claire contended that the Tribunal had made errors of law including failing to afford her procedural fairness. Claire also sought leave to appeal on various bases. The grounds of appeal may be summarised as follows: 1. leave to appeal was sought on the basis that the decision was not fair and equitable. It was contended that the Tribunal overlooked that Claire had only ceased to pay rent in order to recover from Lucette funds which Claire had paid towards the mortgage and rates and which Lucette had then refused to credit against rental. It was contended that it also overlooked that Lucette had retaliated to Claire withholding rent by putting the property up for sale. Claire contended that Lucette's conduct lacked good faith and was unconscionable; 2. Claire also contended that the decision was not fair and equitable because it overlooked that Claire was entitled to remain in possession consistently with the agreement which had been reached in 2012 and acted upon by the parties since that time, namely that when the mortgage was paid off Claire would be entitled to the property free of any other obligations; 3. leave to appeal was sought on the basis that the decision was against the weight of evidence because the Tribunal should have preferred sworn evidence, from Claire and others, that Lucette had stated when the property was purchased that it had been bought for Claire. On the other hand, Lucette had provided an unsigned document which stated that the original agreement was to the effect that the property would be left to Claire by will. Michael had given sworn evidence to the same effect; 4. the Tribunal failed to afford Claire procedural fairness amounting to an error of law because the conflict of evidence about what had been said or agreed when the property was purchased should not have been resolved against Claire without a hearing in which the relevant witnesses gave evidence and there was a proper opportunity to test their evidence; 5. the Tribunal made an error of law in holding that the non-payment of rent deprived Claire of any rights in equity which she might have; 6. the Tribunal failed to afford Claire procedural fairness amounting to an error of law in not permitting her to complete submissions she was attempting to make. Claire contended that this was compounded by the Tribunal failing to make proper allowance for evidence establishing that Claire suffered from multiple disabilities affecting her capacity to present her submissions; 7. Claire sought leave to appeal on the basis that there was significant new evidence not previously available consisting of a report which she received relating to her disabilities the day before the Tribunal hearing on 15 December 2020; 8. Claire contended that the most significant error of law made by the Tribunal was to conclude that the non-payment of rent by Claire vitiated her equitable entitlement to continue to reside at the Property.

Ground of Appeal in Second Notice of Appeal

The Second Notice of Appeal challenges the order made in proceedings RT 20/46133 requiring Claire to pay $9,214.29, being outstanding rental for the Downstairs Premises. The ground of appeal raised in the Second Notice of Appeal states: "At all relevant times the property was uninhabitable as found by the appeal panel on 3 February 2021. It would be unconscionable for order to remain in place because the premises were uninhabitable. This could not be put to Mr Priestley on 15 December 2020 because he cut me off before my submissions were complete."

Consideration: First Notice of Appeal

It is convenient to first consider Claire's submission to the effect that the Tribunal made an error of law in concluding that her non-payment of rent was a sufficient basis to make an order for possession in favour of Michael and Lucette, irrespective of any equitable entitlement Claire might have to continue to reside at the Property.
It seems to us from the transcript of the sound recording of the hearing before the Tribunal on 15 December 2020 that the Tribunal did not base its decision on its acceptance of the agent's statement that at the hearing of proceedings RT 20/22919 it had been determined that Claire did not have an equitable interest in the property in the nature of a constructive trust. Although the Tribunal did accept that statement, the Tribunal's rationale for its decision was that even if Claire did have an equitable interest in the property, the tenancies should still be terminated for non-payment of rent. Having concluded that it was appropriate to make an order terminating the tenancies, the Tribunal gave no further independent consideration to whether there should be orders for possession, other than suspending the orders to allow time for Claire to either lodge an appeal or leave the premises after the Christmas break.
We return now to the decision of the Appeal Panel in Van Someren Boyd v Van Someren Boyd [2021] NSWCATAP 37, being the reasons for decision in the appeal from the Tribunal's decision in proceedings RT 20/22919.
There is no indication in those reasons that there was any decision by the Tribunal in proceedings RT 20/22919 that Claire did not have an equitable interest in the property. The Appeal Panel said at [23] that neither party had asked the Tribunal to provide written reasons pursuant to s 62 of the NCAT Act and, if oral reasons were given, neither party had obtained a copy of the recording or provided to the Appeal Panel.
It is important to consider the reasons why the Appeal Panel in that case decided that what Claire had described as the central issue was insufficient to allow the appeal. The Appeal Panel referred to the decision of Ierace J in the Supreme Court of New South Wales in Rayner v Rayner [2020] NSWSC 1536, which was an appeal from a decision of the Appeal Panel. The parties had executed a "pro forma residential tenancy agreement" in respect of certain premises. Subsequently, the landlord, who was the tenant's daughter, issued a termination notice. The tenant argued that he had an equitable claim to the property and that the Tribunal should not have made an order for possession whilst that equitable claim was outstanding. The tenant had filed an application in the Federal Circuit Court to establish that equitable claim. The application to the Federal Circuit Court sought to set aside an order by that Court made by consent to transfer the tenant's 50% interest in the property to his former wife, the landlord's mother, on the basis that he had been misled into consenting to the order.
In Rayner v Rayner the landlord contended that as the Tribunal had made an order under s 84 of the RT Act terminating the residential tenancy agreement, the Tribunal was bound by s 83(1) of the RT Act to make an order for possession specifying the date on which the order was to take effect.
The tenant submitted, among other things, that ss 6 and 7 of the Law Reform (Law and Equity) Act 1972 (NSW) applied and empowered the Tribunal to postpone the grant of relief under the RT Act, including any order for possession, until the Tribunal had determined the tenant's asserted equitable claim as a defence to a possession order. The tenant submitted that whilst s 83(1) of the RT Act obliged the Tribunal to make an order for possession once it had made an order terminating the tenancy, s 83(1) did not prevent the Tribunal from delaying the making of the order, so that after the Tribunal made the order terminating the tenancy, it should then have adjourned the matter, to permit the plaintiff to resolve the equitable claim in a court of competent jurisdiction.
Sections 6 and 7 of the Law Reform (Law and Equity) Act provide: "6 Defence in inferior court Every inferior court shall in every proceeding before it give such and the like effect to every ground of defence, equitable or legal, in as full and ample manner as might and ought to be done in the like case by the Supreme Court under the Supreme Court Act 1970. 7 Jurisdiction as to relief not enlarged This Act does not enlarge the jurisdiction of any court as regards the nature or extent of the relief available in that court, but any court may, for the purpose of giving effect to sections 5 and 6, postpone the grant of any relief, or grant relief subject to such terms and conditions as the nature of the case requires."
In Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289, the Supreme Court of New South Wales heard an appeal from a decision of the Tribunal which was confirmed by the Appeal Panel. In that case, the Tribunal had held that the Tribunal is an "inferior court" within the meaning of s 6 of the Law Reform (Law and Equity) Act. There was no challenge to that conclusion in the Supreme Court. In that case White J said: "75. In my view, irrespective of the extent of the Tribunal's power to grant statutory remedies, it has jurisdiction under s 6 of the Law Reform (Law and Equity) Act and would be required to consider a defence to the owner's claim for possession that the lessee was entitled to relief in equity against forfeiture. Section 6 was drafted so as to apply to all courts, including those that did not have jurisdiction to grant equitable remedies. What is a "defence" for the purpose of s 6 does not depend on the power of the court in which the defence was raised to grant positive equitable relief … 76. Relief against forfeiture operates both as a positive claim and as a defence to the owner's claim for possession. The availability of the defence by way of relief against forfeiture is analogous to the availability of a defence to a claim at law for possession that the tenant is entitled position by way of specific performance of an agreement for lease. Sections 6 and 7 of the Law Reform (Law and Equity) Act were drafted to permit such a defence to be raised in the inferior court even though the inferior court might not have jurisdiction to grant the appropriate equitable remedy to give effect to the defence, but could postpone the grant of relief to which the owner having a legal right to possession would otherwise have been entitled to permit the lessee to obtain the appropriate remedies in a court of equitable jurisdiction so as to give effect to the equitable defence … 78. Accordingly, the Tribunal would have jurisdiction to determine the availability of a defence to the landlord's claim for possession that the tenant was entitled to relief against forfeiture even if its power to grant statutory remedies did not extend to granting appropriate relief to give effect to that determination. If an entitlement to relief against forfeiture were established, it could stay the proceeding to allow the tenant to pursue appropriate relief in the Supreme Court. "
In Rayner v Rayner, Ierace J referred at [16] to the decision of the Appeal Panel in that case which had held, following the judgment in Steak Plains Olive Farm, that ss 6 and 7 of the Law Reform (Law and Equity) Act only applied where a party to proceedings in an inferior court raised an equitable defence to proceedings brought against him or her in that inferior court. The Appeal Panel had also emphasised that those sections were not enlivened by mere assertion, but required the tenant to establish an entitlement to relief under the asserted equitable defence.
In Rayner v Rayner Ierace J held at [57] that as the tenant had not established an equitable claim before the Tribunal in that case, it was unnecessary to determine whether the RT Act permitted the Tribunal to delay making an order for possession having regard to ss 6 and 7 of the Law Reform (Law and Equity) Act.
Similarly, in Van Someren Boyd v Van Someren Boyd [2021] NSWCATAP 37 at [44] - [48], the Appeal Panel held that if Michael and Lucette had sought an order for possession and if Claire had articulated and led evidence of a coherent basis for a claim to an equitable interest in the property which entitled her to resist an order for possession, the question which Ierace J in Rayner v Rayner at [57) found it unnecessary to determine would have arisen. However, in that case, Michael and Lucette were not seeking orders for possession and as there were no documents provided to the Appeal Panel indicating what had occurred before the Tribunal at first instance, the Appeal Panel could not determine whether Claire did articulate or lead evidence of a coherent claim to an equitable interest. It was in these circumstances that the Appeal Panel held at [48] that the central issue in the appeal, as identified by Claire, was insufficient in that case to warrant the appeal being upheld.
In this case, the question which did not arise in Rayner v Rayner or in Van Someren Boyd v Van Someren Boyd did arise directly for determination in the Tribunal. Michael and Lucette were seeking orders for possession and Claire was contending that she had an equitable interest in the property which entitled her to resist an order for possession. We also observe that if Claire had established an equitable claim entitling her to resist an order for possession, it would follow from the reasoning in Steak Plains Olive Farm that the Tribunal would have had a basis to suspend an order for possession under s 114 of the RT Act for a specified period to permit the tenant to take proceedings in a court of competent jurisdiction to obtain appropriate relief.
In this case there was no reason why the Tribunal should not have made an order terminating the residential tenancy agreements under s 84 of the RT Act. The fixed term of both residential tenancy agreements had expired. However, the Tribunal then proceeded to make orders for possession without giving independent consideration to whether Claire had a right to remain in possession notwithstanding the termination of the residential tenancy agreements. In our view, in the circumstances this was a failure to apply the correct principle. In our view, the Tribunal made an error of law in proceeding to make an order for possession without permitting Claire to endeavour to establish that she had an equitable interest in the premises which would entitle her to remain in possession. Had such a claim been established, there would have been a basis to suspend an order for possession for a reasonable period to permit Claire to obtain relief from a court of competent jurisdiction.
Since the Tribunal made its decision on 15 December 2020, Claire has voluntarily relinquished possession of the Downstairs Premises. Claire and her children did not reside in the Downstairs Premises. However, Claire continues to be in possession of the Upstairs Premises and maintains that she is entitled to remain in possession of the Upstairs Premises, notwithstanding the termination of the residential tenancy agreement for those premises, by virtue of an equitable interest in the property.
In these circumstances, we consider that proceedings RT 20/46127, which relate to the Upstairs Premises, should be remitted to the Tribunal to determine whether Claire can establish an equitable interest in the Property which would entitle her to remain in possession of the Upstairs Premises notwithstanding the termination of the residential tenancy agreement for those premises and, if so, whether an order for possession should be suspended for a reasonable period to permit Claire to obtain relief from a court of competent jurisdiction. We emphasise that the issue to be determined is whether Claire can establish (rather than merely assert) such an interest on the basis of the evidence.
In view of the conclusion we have reached, there is no need to consider the other grounds of appeal raised by Claire in her Notice of Appeal which, if successful, would have led us to the same conclusion in relation to the Upstairs Premises. We note however that the report relating to Claire's disabilities, which she received prior to the hearing on 15 December 2020, is not significant new evidence within the meaning of sub-clause 12(1)(c) of Schedule 4 to the NCAT Act, as it was available to Claire at the time of the hearing: see Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111.
As Claire has voluntarily relinquished possession of the Downstairs Premises there is no reason to remit proceedings RT 20/46133 to the Tribunal to determine whether Claire has a basis to remain in possession of those premises.

Consideration: Second Notice of Appeal

Ms Dietrich did not oppose the making of an order reinstating the appeal in proceedings number 2021/75515 and we will make that order.
The Second Notice of Appeal was not lodged within the period of 14 days from the day on which Claire was notified of the Tribunal decision on 15 December 2020 as required by r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 and accordingly it would be necessary for the Tribunal to grant Claire an extension of time to lodge that notice of appeal under s 41 of the NCAT Act.
A relevant consideration in deciding whether to grant an extension of time to lodge a notice of appeal is the appellant's prospects of success, that is, whether the appellant has a fairly arguable case: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. We turn to consider that issue.
The transcript of what occurred at the callover on 3 February 2021 is not available but we are comfortably satisfied that the Appeal Panel, whatever may have been said on that occasion, did not, in the context of a callover attending to procedural issues, make a finding that the Downstairs Premises were uninhabitable.
Moreover, it is also clear that there was no evidence presented by Claire to the Tribunal at the hearing on 15 December 2020 which would have supported a submission that the Downstairs Premises were uninhabitable. Claire confirmed at the hearing on 27 April 2021 that a two page handwritten note which she wrote of alleged defects relating to the Downstairs Premises, which appears at pages numbered 61-62 of the annexures to the Second Notice of Appeal, was not tendered at the hearing on 15 December 2020. Ms Dietrich said that the first suggestion by Claire that the Downstairs Premises were uninhabitable was made at the callover of the appeal in proceedings number 2020/371266 on 3 February 2021.
Although Claire relied on written submissions for the purposes of the hearing on 15 December 2020, there was nothing in those submissions to the effect that the Downstairs Premises were uninhabitable. Even if Claire had made an oral submission to that effect at the hearing, that submission would have been without substance in the absence of any evidence tendered to support it.
As no evidence or submission was presented to the Tribunal on 15 December 2020, or issue framed to the effect that the Downstairs Premises were uninhabitable, there was no error by the Tribunal in failing to consider that issue. We consider that the Second Notice of Appeal is without merit, that it would be inappropriate to grant an extension of time to lodge the Second Notice of Appeal in proceedings number 2121/75515 and that the appeal in those proceedings should be dismissed.

Conclusion

We make the following orders: 1. In Appeal number 2020/00371266: 1. Set aside order number 2 made on 15 December 2020 in proceedings RT 20/46127 and in lieu thereof order that the residential tenancy agreement is terminated on 15 December 2020; 2. Set aside orders numbered 3 and 5 made on 15 December 2020 in proceedings RT 20/46127; (c) Order that proceedings RT 20/46127 be remitted to the Tribunal to determine whether Claire Van Someren Boyd can establish an interest in the property Land Title Reference B/301074 which would entitle her to remain in possession of the premises at 1 ****** **** Lismore notwithstanding the termination of the Residential Tenancy Agreement and, if so, whether an order for possession should be suspended for a reasonable period to permit Claire Van Someren Boyd to obtain relief from a court of competent jurisdiction; 1. Appeal otherwise dismissed. 1. In Appeal number 2021/00075515: 1. By consent that the appeal be reinstated; 2. Appeal 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 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 2021

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