The appellant occupies a property at Lismore, New South Wales. The respondents are the appellant's mother and stepfather and are the registered proprietors of the property.
The appellant claims an equitable entitlement to the property by reason of the circumstances in which the property was purchased. The appellant alleges that the deposit on the purchase was paid from funds to which she was entitled and that she had, by paying rent on the property, met the mortgage payments.
Nevertheless, it is not disputed that the appellant and the respondents had executed a written residential tenancy agreement in respect of the premises.
The respondents commenced proceedings on 26 May 2020, by filing an application in the Consumer and Commercial Division of the Tribunal seeking orders permitting the respondents' sales agent access to the premises and orders that the appellant pay arrears of rent in respect of the premises.
At a directions hearing on 16 July 2020, the Tribunal had made orders which included the following:
"(1) By determination of Member, on 16 July 2020, the hearing was adjourned to a date to be fixed by the Registrar.
(2) The parties are placed on notice that a preliminary matter for determination at the hearing will be whether the Tribunal has jurisdiction to hear and determine the matter."
The proceedings were subsequently fixed for hearing on 31 August 2020.
On 31 August 2020 the Tribunal made orders:
1. That the appellant pay the respondents the sum of $4,654 for rent for the period 3 April 2020 to 31 August 2020 by instalments of not less than $100 per fortnight;
2. That the appellant pay the respondents rent in accordance with a residential tenancy agreement which the appellant had signed;
3. Authorising the respondents or the respondents' real estate agent to enter the premises on 12 September 2020 for the purpose of showing the premises to prospective tenants/purchasers;
4. That the appellant not obstruct the respondents in carrying out the orders;
5. That if the respondents could not gain access to the premises in accordance with the orders the respondents or their representative may engage a locksmith to gain entry; and
6. That the respondents or the respondents' agent may access the premises for the purpose of selling the property every Saturday morning from 12 September 2020 for a period no longer than 60 minutes.
The formal orders made by the Tribunal record that oral reasons were given for the orders made.
The appellant lodged a Notice of Appeal and an application to stay the original decision on 5 September 2020, that is within the period fixed by Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) for the lodgement of internal appeals in residential proceedings.
On 14 September 2020, the appellant lodged a caveat against the property claiming an estate in fee simple by virtue of a "beneficial interest in trust" and prohibiting the recording in the Register of "any dealing other than a plan affecting the estate or interest claimed by the caveator". At the date of the hearing of the appeal, the caveat remained on the title and no lapsing notice had been served.
On 30 September 2020, orders (3) to (6) (that is the orders relating to access to the premises by the respondents or their agent) were stayed pending further order or determination of the appeal. The stay was made conditional upon the appellant providing access to the premises to the respondents' agent and a photographer on 7 October 2020 at 3 pm for 60 minutes.
At the hearing of the appeal, the appellant relied upon an affidavit she had sworn on 11 September 2020 and filed on 14 September 2020, submissions in support of the application for a stay filed on 15 September 2020 and an affidavit of Daniel Madden sworn on 14 September 2020.
The appellant also sought to rely upon a further affidavit sworn by Christina Madden, her aunt, on 2 November 2020 and on a statement from Saraya van Someren Boyd, the appellant's sister, dated 28 July 2020, but not signed. Those documents had been received by the Tribunal on 23 November 2020, the day before the hearing.
The respondents filed a bundle of material on 22 October 2020, including a statement dated 28 July 2020 by the appellant's brother, and character references concerning the respondents. There was also a statement from the respondents' accounts manager and bookkeeper concerning the receipt of payments.
The appellant had not filed with the Appeal Panel the material that was before the Member at the hearing on 31 August 2020, notwithstanding that directions made by the Appeal Panel on 16 September 2020 required the appellant to lodge with the Tribunal and give to the respondents by 7 October 2020 all the evidence given to the Tribunal below on which she intended to rely, and the sound recording or transcript of the hearing at first instance, in particular the oral reasons given, and a typed copy of the relevant parts.
When these issues were raised with the appellant at the hearing of the appeal, the appellant informed the Appeal Panel that she had been unable to access the file from the Consumer and Commercial Division and that, although she had obtained a recording of the hearing on 31 August 2020, that recording had cut out before the oral reasons.
The appellant sought an adjournment of the hearing on the basis that she could not "get it into her head" that she had needed to re-submit the original evidence that was before the Tribunal and that an adjournment would be appropriate "so it can be fair for everybody".
The respondents opposed an adjournment.
The respondents informed the Appeal Panel that although the appellant had been meeting the payments required by orders (1) and (2) made on 31 August 2020, the respondents needed to sell the property because of their financial position.
The Appeal Panel determined to refuse the application for an adjournment and proceed to hear the appeal.
The Appeal Panel noted that the material which the appellant had filed, namely her affidavit, her father and aunt's affidavits and her sister's statement, was fresh evidence that had not been before the Tribunal at first instance. The appellant submitted that she had filed that material in response to the material filed by the respondents.
The Appeal Panel permitted the appellant to rely upon her own affidavit and that of her father, Mr Madden. The respondents did not wish to cross-examine either of the deponents. The Appeal Panel did not permit the appellant to rely upon the affidavit of Christina Madden or the statement of Saraya van Someren Boyd as those documents had not been filed or served in accordance with the directions of the Appeal Panel.
As neither party asked the Tribunal to provide written reasons pursuant to s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) and, if the oral reasons were recorded, neither party has obtained a copy of the recording or provided it to the Appeal Panel, the Appeal Panel does not have any indication of the reasons given by the Tribunal for the orders made, beyond the submissions made to the Appeal Panel by the parties in the course of the hearing of the appeal.
[2]
The Scope and Nature of Internal Appeals
By virtue of s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must first be satisfied that the appellant may have suffered a substantial miscarriage of justice because:
1. The decision of the Tribunal under appeal was not fair and equitable; or
2. The decision of the Tribunal under appeal was against the weight of evidence; or
3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:
… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated, at [84], that ordinarily, it is appropriate to grant leave to appeal only in matters that involve:
1. issues of principle;
2. questions of public importance or matters of administration or policy which might have general application; or
3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
4. a factual error that was unreasonably arrived at and clearly mistaken; or
5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
[3]
Grounds of Appeal
The appellant's Notice of Appeal identified six grounds of appeal as follows:
"(1) The matter was listed for the sole purpose of hearing submissions on whether the Tribunal had jurisdiction. That sole purpose was contained in notices from the Tribunal identifying the reason for the listing. It was not listed for hearing. The Tribunal should not have proceeded to make any orders other than orders relating to jurisdiction and should not have denied the appellant a proper opportunity to be given notice of the respondents' claims and an opportunity to test such evidence as the respondents might lead in support of their claims.
(2) The Tribunal accepted and acted upon information asserted by the agent for the respondents which had not previously been disclosed to the respondent and without having given the appellant an opportunity to deal with the new material.
(3) The new material was not of an evidentiary standard, it included no documents and contained assertions that the parties had agreed that the applicant would make mortgage and rate payments because her father was terminally ill and without any expectation of the amount being repaid or being treated as a credit.
(4) The new material was precisely tailored to overcome, on the day of the listing and without any previous notice, the effect of the facts detailed long ago by the appellant and never before answered that the appellant had made mortgage and rate payments by arrangement with the respondents and the new material should have been treated with reserve by the tribunal, being in the nature of an ambush. The tribunal should have required that the "evidence" sprung on both the tribunal and the respondent for the first time on the day, be given on oath by the respondents and that the documents said to constitute the agreement be produced.
The appellant says that the agreement alleged by the applicants never took place, either orally or in writing. She says the contention before the Tribunal was a fabrication.
(5) The orders made refused to credit the appellant with expenditure detailed by her upon the property when there was no evidence to contradict her evidence.
(6) The tribunal should not have made orders based upon there being an unchallenged lease when there was an unresolved central challenge by the appellant, based upon detailed and uncontradicted evidence, that the lease was a sham for tax purposes and that the applicants had no right to offer the property for sale."
The appellant also sought leave to appeal on the ground that the decision was not fair and equitable on four bases, as follows:
"(1) The decision was not fair and equitable because the Tribunal made substantive orders at a listing which was only for the determination of jurisdiction. It made those orders on the basis of a statement by the agent for the respondents which was not evidence at all and which showed signs of recent invention by the respondents and the tribunal ignored the long standing evidence of the appellant including critical evidence which was uncontradicted.
(2) The tribunal made orders the effect of which was to deny to the appellant the credit for payments it was not contested that she had made towards improvements on the property.
(3) The tribunal allowed itself and the respondent to be ambushed by the applicants by a recently invented assertion never previously disclosed.
(4) The tribunal acted on the basis that the lease was not impugned when there was strong evidence the lease was a sham for tax purposes."
[4]
The Appellant's submissions
The appellant's written submissions identified as the central issue, 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".
The appellant submitted:
"8. The Tribunal appears to have acted on the basis that, since the lease dispute was within jurisdiction, it would deal with that and ignore the claims of the appellant which were not within jurisdiction.
9. That approach led to orders being made which, if the appellant's claims are correct, could not have been made."
[5]
Consideration
Without the reasons of the Tribunal at first instance, we cannot determine whether the decision involved an error on a question of law. It is fair to say however that, although the appellant suggested to the Appeal Panel that the tenancy agreement (which the appellant acknowledged signing) was a sham entered into for tax purposes, the appellant did not suggest to the Appeal Panel that she had made the submission to the Tribunal that that agreement was a sham.
Paragraphs 8 and 9 of the appellant's submissions, set out above, effectively acknowledge that the Tribunal had jurisdiction by reason of the existence of a residential tenancy agreement.
Orders were made by the Tribunal pursuant to s 60 and s 187(1(c) of the Residential Tenancies Act 2010 (NSW) (RTA). Each of those provisions vests in the Tribunal power to make orders on application by a "landlord". "Landlord" is defined in Section 3 of the RTA as:
(a) the person who grants the right to occupy residential premises under a residential tenancy agreement, or
(b) a successor in title to the residential premises whose interest is subject to the interest of the tenant, or
(c) a tenant who has granted the right to occupy residential premises to a sub-tenant,
and includes a prospective landlord.
Section 13 of the RTA defines a "residential tenancy agreement" as follows:
13 Agreements that are residential tenancy agreements
(1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence.
(2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing.
(3) An agreement may be a residential tenancy agreement for the purposes of this Act even though -
(a) it does not grant a right of exclusive occupation, or
(b) it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities.
Note -
See section 8 for agreements that are not covered by this Act. Section 7 sets out premises not covered by this Act.
(4) For the purpose of determining whether an agreement is a residential tenancy agreement, it does not matter that the person granted the right of occupation is a corporation if the premises are used (or intended for use) as a residence by a natural person.
Section 7 of the RTA identifies premises to which the Act does not apply:
7 Premises to which Act does not apply
This Act does not apply in respect of the following premises -
(a) premises to which the Landlord and Tenant (Amendment) Act 1948 applies,
(b) premises used to provide residential care or respite care within the meaning of the Aged Care Act 1997 of the Commonwealth,
(c) serviced apartments, that is, buildings or parts of buildings used to provide self-contained tourist and visitor accommodation that are regularly cleaned by or on behalf of the owner or manager,
(d) premises used as a hotel or motel,
(e) premises used as a backpackers' hostel,
(f) a hospital or nursing home,
(g) any part of a club used for the provision of temporary accommodation,
(h) premises used for residential purposes, if the predominant use of the premises is for the purposes of a trade, profession, business or agriculture.
Section 8 of the RTA identifies agreements to which the Act does not apply:
8 Agreements to which Act does not apply
(1) This Act does not apply to the following agreements -
(a) occupation agreements to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies,
(b) residence contracts within the meaning of the Retirement Villages Act 1999,
(ba) site agreements within the meaning of the Residential (Land Lease) Communities Act 2013,
(bb) short-term rental accommodation arrangements, within the meaning of section 54A of the Fair Trading Act 1987, under which the person given the right to occupy the residential premises to which the arrangement relates does not occupy the premises as the person's principal place of residence,
(c) an agreement under which a person boards or lodges with another person,
(d) an agreement under which a person resides in refuge or crisis accommodation of a kind prescribed by the regulations,
(e) leases and licences under the Crown Land Management Act 2016,
(f) an agreement for the sale of land that confers a right to occupy residential premises on a party to the agreement,
(g) an agreement that arises under a term of a mortgage and confers a right to occupy residential premises on a party to the mortgage,
(h) (Repealed)
(i) an agreement that arises under a company title scheme under which a group of adjoining or adjacent premises is owned or leased by a corporation each of whose shareholders has, by virtue of his or her shares, an exclusive right to occupy one or more of the residential premises,
(j) an agreement having a term, together with the term of any further agreement that may be granted under an option in respect of it, that is equal to or exceeds 99 years.
It is clear that, as the appellant had executed a residential tenancy agreement and was paying rent to the respondents, prima facie the agreement between the parties was a residential tenancy agreement and the respondents were landlords for the purposes of the RTA. The RTA applied to the premises and to the agreement executed by the parties. There is nothing in section 7 of the RTA which would exclude the premises, and there is nothing in section 8 of the RTA which would exclude the agreement.
The appellant effectively acknowledged that the Tribunal had jurisdiction by reason of the existence of the residential tenancy agreement and, as we understood the appellant's submission, she did not submit that her claim to an interest in the premises excluded the existence of the residential tenancy agreement or excluded the jurisdiction of the Tribunal to make orders.
In Rayner v Rayner [2020] NSWSC 1536, the parties had executed a "pro forma residential tenancy agreement" in regard to certain premises. Subsequently, the defendant had issued a termination notice and the plaintiff sought to argue that he had an equitable claim to the property and that the Tribunal should not have made an order for possession while that equitable claim was outstanding. An appeal to the Appeal Panel was dismissed and the plaintiff then sought leave to appeal in the Supreme Court. One of the grounds of appeal relied upon by the plaintiff was that:
"The NCAT Appeal Panel erred … in finding that the effect of s83 of the Residential Tenancies Act 2010 (NSW) is to require the Tribunal to make an order for possession without a stay or other condition such as is warranted to allow for the plaintiff's equity to be determined in a Court of competent jurisdiction."
Ierace J dismissed that ground of appeal. His Honour held, at 55-57:
55 In written submissions, the plaintiff disputed that the Tribunal was bound by s 83 of the RT Act to make an order for possession once it had terminated the tenancy agreement, arguing that a proper application of ss 6 and 7 the Law Reform (Law and Equity) Act would have obliged the Tribunal to consider and determine his equitable claim as a defence to a possession order and "if so, stayed the defendant's application pending determination of the equity in a court of competent jurisdiction".
56 In oral submissions, counsel for the plaintiff acknowledged that 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, but submitted that the terms of s 83(1) did not prevent it from delaying the making of the order, so that after the Tribunal made the order terminating the tenancy, it should have then adjourned the matter, permitting the plaintiff to resolve the equitable claim in a court of competent jurisdiction for that purpose.
Consideration
57 Since the plaintiff did not 'establish' an equitable claim before the Tribunal, it is unnecessary to determine whether the RT Act permits a Tribunal to delay making an order for possession in such circumstances; that is, having regard to ss 6 and 7 the Law Reform (Law and Equity) Act.
For the same reasons, this appeal should be dismissed insofar as the appellant relies upon the basis she identified as the central issue.
Had the respondents sought an order for possession and had the appellant 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, at [57], found it unnecessary to determine would have arisen.
However:
1. In this case, the respondents were not seeking orders for possession; and
2. As the appellant did not put before the Appeal Panel: the evidence before the Tribunal; or a recording or a transcript of the hearing; or a recording or a transcript of the oral reasons given, and did not seek written reasons for the decision, we cannot determine whether the appellant did articulate or lead evidence of a coherent claim to an equitable interest.
It was not necessary for the Tribunal to consider whether it had the power to adjourn the proceedings or suspend or stay the operation of any orders for possession, pending an application to the Supreme Court for determination of the issues concerning the appellant's claim to an equitable interest, or whether it was appropriate to do so, and it is not necessary for us to consider those questions.
In those circumstances, it is clear that the Tribunal made no error of law by making orders for access rather than adjourning the proceedings or staying its orders pending determination elsewhere of the appellant's claim to an interest in the premises.
Accordingly, the central issue in the appeal, as identified by the appellant, is insufficient to warrant the appeal being upheld.
Although the appellant did not, in the course of the hearing of the appeal or in written submissions, devote substantial attention to the specific grounds of appeal which we have extracted above, it is appropriate to address each of the grounds briefly.
The first ground was that the proceedings were listed for the sole purpose of hearing submissions on whether the Tribunal had jurisdiction.
The directions made on 16 July 2020, which were the directions on the basis of which the matter was fixed for hearing by the Registrar, are set out above (at [5]). Those directions did not state that the matter was listed for the sole purpose of hearing submissions on jurisdiction. The directions made it plain that the question of jurisdiction was to be determined as a preliminary matter at the hearing. The clear implication of that wording is that, in the event the Tribunal determined it had jurisdiction, it would proceed to determine the balance of the application.
Grounds 2 to 4 relate to what the appellant described as new material which the appellant says that the respondents had brought forward at the hearing. As the appellant has not put before us the material which was before the Member at first instance, there is no basis upon which we can consider whether the appellant was denied procedural fairness by late service of that evidence or whether that evidence was significant in the Tribunal's determination.
Given that the orders made by the Tribunal were for the appellant to pay arrears of rent in accordance with the terms of the residential tenancy agreement and to permit the respondents' agent to have access for the purpose of showing the property to potential purchasers, it is difficult to see how the so-called late evidence could have been significant in the decision to make those orders. Nevertheless, in the absence of the evidence which was before the Tribunal, it is impossible to identify any error on a question of law in relation to the alleged late evidence.
Ground 5 asserts that the Tribunal failed to credit the appellant with expenditure detailed by her in relation to the property. The appellant's obligation under the residential tenancy agreement was to pay rent in accordance with the terms of the agreement. In the absence of a specific agreement on the part of the respondents as landlord to credit the appellant's expenditures against that rent, the appellant had no entitlement to set off those expenditures against her obligations in respect of the payment of rent. As far as we are aware, the appellant did not assert any such agreement. It may be that the appellant would have some entitlement to compensation in respect of those improvements, but that is not a matter which was before the Tribunal at first instance and it is not a matter which, even if it were otherwise appropriate to do so, we can determine on the available material.
Ground 6 asserts that the residential tenancy was a "sham for tax purposes". At the hearing before us the appellant conceded that she had not explicitly submitted to the Tribunal at first instance that the agreement was a "sham". She had rather defended the proceedings on the basis that she claimed an interest in the property. For Ground 6 to be made out the appellant would need to establish that she had explicitly submitted to the Tribunal that the executed residential tenancy agreement was a sham, that is a document executed without the intention that it would be binding upon the parties, that it was intended to have no legal effect, and that the Tribunal had failed to address that question or had made an error on a question of law in doing so.
Even were the appellant to have asserted that she had made such a submission to the Tribunal, the appellant cannot demonstrate that the Tribunal failed to deal with that submission or made an error in doing so, as the appellant has not put before us the reasons of the Tribunal at first instance.
Accordingly, the appellant cannot succeed on Ground 6 of the Notice of Appeal.
Although the appellant sought leave to appeal on the basis that the decision was not fair and equitable, the four bases upon which the appellant founded that submission, as set out in the Notice of Appeal and extracted above at paragraph [30], effectively repeat the Grounds of Appeal.
The application for leave to appeal must fail for the same reasons as the appeal.
Accordingly, leave to appeal will be refused and the appeal will be dismissed.
We note that the appeal having been dismissed, it is appropriate that the stay of the Tribunal's orders granted on 30 September 2020 be discharged. The effect of the offsetting aside the stay is that, with effect from the date of publication of these reasons, the respondents or their agent will be entitled to access the premises for the purpose of selling the property in accordance with Order 6 of the orders made on 31 August 2020.
Orders (4) and (5) will apply as appropriate in relation to the exercise by the respondents of the entitlements granted by those orders.
[6]
Orders
1. Leave to appeal is refused.
2. The Appeal is dismissed.
3. The stay granted by the Appeal Panel on 30 September 2020 of orders 3-6 made by the Tribunal on 31 August 2020 is set aside.
[7]
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: 24 February 2021