Ward v Nand

Background

1. The parties had entered into a residential tenancies lease.
2. The appellant ceased paying rent on or about 13 April 2020. This affected the respondents financially, and by the time of the hearing before the Tribunal the appellant owed $21,735.71 in unpaid rent.
3. A termination notice dated 25 June 2020 was served on the appellant.
4. On the same day the respondents filed an application in the Tribunal for a termination order and for an order to pay outstanding rent. That application referred to a letter having been produced by the appellant to the respondents "to show he was COVID effected" but we were not provided with a copy of that letter.
5. The Tribunal said that the parties attempted to negotiate a settlement (although it did not say when those negotiations took place) but without success. The appellant alleged the respondents had not negotiated in good faith, but that allegation was rejected by the Tribunal.
6. Other than the allegation by the appellant that the respondents had not negotiated in good faith, no other defences (if any) raised by the appellant in opposition to the orders sought by the respondents are referred to by the Tribunal. The appellant did not, as he was directed, supply us with the evidence given to the Tribunal, nor a transcript or sound recording of what occurred before the Tribunal, and so we do not know what other defences (if any) the appellant raised before the Tribunal or which may have been apparent from the evidence.
7. At the conclusion of the hearing the Tribunal made the termination order sought and made certain orders in relation to rental arrears which are not necessary to repeat.
8. The Tribunal's reasons are brief. Relevantly the Tribunal said (with some minor typographical errors corrected): "This is an application for termination of a tenant, who, at the time of issue of the termination notice and commencement of the instant application, was not registered as Covid affected, but at least from mid May 2020 could have been so regarded. He is now registered. … I find that in the circumstances of this case, and in compliance with S.41C (sic) of the Residential Tenancies Amendment (COVID-19) Regulation 2020 given the outstanding amount of arrears, the several unsuccessful attempts to negotiate a settlement, and the need for some resolution of the matter for the good of both parties, the matter should proceed."
9. The appellant appealed from the decision of the Tribunal.
10. His appeal was subsequently dismissed three times on the basis of the appellant's failure to appear on various occasions. After each dismissal the appellant filed an application to reinstate his appeal. Each application was successful.
11. On the third occasion the Appeal Panel reinstated the appellant's appeal and delivered reasons - Ward v Nand [2021] NSWCATAP 14. The history of the litigation is set out in that decision and need not be repeated here.
12. What is relevant to this appeal are two aspects of that decision.
13. The first is what the Appeal Panel said at [30] and [33] of its reasons, published on 22 January 2021, namely: "30. During the hearing of the application for reinstatement, I drew to the attention of the parties various issues relevant to the appeal, its utility and the prospects of success. These included: (1) That the evidence so far provided, particularly in relation to the date the notice of termination was issued and whether Mr Ward was an impacted tenant within the meaning of the RT Act, suggested that the notice may have been issued despite the prohibition contained in reg 41C of the Residential Tenancies Regulation 2019 (NSW) (RT Reg). In this regard, Mr Ward asserted that at the time the notice of termination was served and the application to the Tribunal was lodged there had been no "formal rent negotiation process" as defined by the RT Act, a precondition to the issue of such a notice and/ or applying to the Tribunal. (2) That the Tribunal determined the termination application on 8 October 2019. The Appeal Panel has been provided with some evidence to suggest that in July 2020 the "formal rent negotiation process" had taken place and failed, but this was after the application was lodged on 25 June 2020. The issue here is whether consequences of any prohibition on issuing the notice of termination might be avoided because of what had happened in the interim. … 33. While I am not required to make a final ruling on whether the termination order was properly made, and do not do so, it seems to me that there is strongly arguable case on appeal that the Tribunal at first instance erred in making the termination order and that it was prohibited from doing so. The following facts support this conclusion: (1) The reasons of the Tribunal at first instance indicate that it made a finding Mr Ward was an impacted tenant. (2) Oral evidence was provided by Mr Wolf to the Appeal Panel about the documents before the Tribunal at first instance (those documents not having been provided for the purpose of the present application). This evidence was to the effect that a formal rent negotiation process that took place after the date the notice of termination was issued and the application was lodged with the Tribunal."
14. The second aspect is the directions made by the Appeal Panel consequential upon its decision to reinstate the appellant's appeal. Those directions included the following orders: "(4) In respect of the appeal, the following directions are made: (a) The Appellant is to lodge with the Appeal Panel and give to the Respondents by 19 February 2021: (i) All the evidence given to the Tribunal together with a transcript of the hearing; (ii) The Appellant's written submissions in support of the appeal. (b) The Respondents are to lodge with the Appeal Panel and give to the Appellant by 5 March 2021: (i) any evidence upon which they intend to rely (if the Appellant defaults in providing all evidence and a transcript; and (ii) the Respondent's written submissions in opposition to the appeal. (c) The Appellant is to lodge with the Appeal Panel and give to the Respondents any written submissions in reply by 12 March 2021. … (f) If the Appellant fails to provide all evidence and transcript as directed, his appeal may be dismissed."
15. The appellant failed to comply with Order 4(a) by the date specified, being 19 February 2021.
16. On 23 February 2021 the appellant applied to the Tribunal to extend the time for him to comply with the Tribunal's directions set out at [16] above. That request was refused on 2 March 2021.
17. By the time of the hearing of this appeal, on 16 March 2021, the appellant had still not complied with Order 4(a).

The Appeal

1. The appellant failed to dial-in to the appeal as directed (which failure was not explained) but was able to be contacted by us by telephone and the appeal proceeded.
2. We asked the appellant why he had not complied with Order 4(a). He said he had "no answer" to that question. We asked him why we should proceed to hear his appeal in the face of his apparent deliberate non-compliance with Order 4(a) and his statutory obligation to comply with the Tribunal's directions and orders [found in s 36(3) of the Civil and Administrative Tribunal Act 2013 (NSW)]. He said he was "in the Tribunal's hands" as to that matter. We asked him how we could properly determine his appeal in light of his non-compliance with Order 4(a) given the result of his non-compliance was that we did not have the evidence which was before the Tribunal, we did not have a transcript of the Tribunal's proceedings (which would contain the oral evidence given and submissions made) and the respondents were not (as they were entitled) given advance notice of the case they had to meet on the appeal by his failure to serve them with his written submissions. The appellant said that no evidence was necessary because all relevant facts were "in the documents already lodged" or were referred to in the Tribunal's and Appeal Panel's decisions, and the respondents "knew" what his case was.
3. We proceeded to hear the appellant's oral submissions to understand more fully his position and to determine whether we were in a position to justly determine the appeal, including whether the appellant's failure to give advance notice of his case on the appeal caused any procedural unfairness to the respondents.
4. The end result was that the appellant made, and we heard, all of the submissions he desired to make on his appeal, albeit they were made orally for the first time on the appeal. Having heard those submissions, we decided to dismiss the appeal, and so any procedural unfairness visited on the respondents by the appellant's failure to comply with Order 4(a) did not, at the end of the day, visit any adverse consequences on the respondents.

Grounds of Appeal

1. The appellant, a qualified solicitor holding a current practicing certificate, said that he had two grounds of appeal, and we did not need to consider any others that may have appeared in his Notice of Appeal. His two grounds were: 1. The Tribunal erred in upholding the termination order. 2. The termination order was issued in breach of reg 41C(2) of the RTR [as the regulation then was, it is now reg 41B(2)].
2. In substance those two grounds are but one ground, namely that encapsulated in the second ground set out above.
3. At the time of the hearing before the Tribunal reg 41C of the RTR (referred to in the Tribunal's reasons) said: 41C Prohibition on landlords terminating agreements or recovering possession during moratorium period (1) For the purposes of section 229(1) of the Act, a landlord is prohibited from doing any of the following during the moratorium period - (a) giving an impacted tenant a termination notice under section 87 of the Act on the ground specified in section 88 of the Act, (b) applying to the Tribunal for an order under section 83(2) of the Act relating to a termination notice given under section 87 of the Act on the ground specified in section 88 of the Act to an impacted tenant, (c) otherwise applying to the Tribunal for a termination order in relation to a residential tenancy agreement on the ground specified in section 88 of the Act if the tenant under the agreement is an impacted tenant. Note - Section 88 of the Act relates to a termination notice given by a landlord on the ground of a breach of the residential tenancy agreement arising solely from a failure to pay rent, water usage charges or utility charges payable by the tenant. (2) However, a landlord may give a termination notice or apply for an order that the landlord is otherwise prohibited from giving or applying for under subclause (1) if - (a) the termination notice is given, or the application is made, at least 60 days after the commencement of this Part, and (b) the landlord has participated, in good faith, in a formal rent negotiation process with the impacted tenant, and (c) it is fair and reasonable in the circumstances of the case for the landlord to give the termination notice or apply for the order. (3) For the purposes of section 111(2) of the Act, a termination notice that is not given in accordance with this clause is taken not to have been given in accordance with Part 5 of the Act. (4) In dealing with an application by a landlord or an impacted tenant relating to a termination notice or a termination order, the Tribunal may, for the purposes of satisfying itself of the matters specified in subclause (2)(b) and (c), have regard to the following - (a) any advice provided by NSW Fair Trading relating to the participation of the landlord or impacted tenant in the formal rent negotiation process, including whether the landlord or impacted tenant refused, or refused to make, a reasonable offer about rent, (b) whether the impacted tenant has continued to make any payments towards the rent, (c) the nature of any financial hardship experienced by the landlord or impacted tenant, including the general financial position of each party, (d) the availability and affordability of reasonable alternative accommodation for the impacted tenant, (e) any special vulnerability of the impacted tenant, (f) the public health objectives of - (i) ensuring citizens remain in their homes, and (ii) preventing all avoidable movement of persons. (5) Subclause (4) does not limit the matters that the Tribunal may have regard to.
4. Reg 41C has since been amended but the savings provision contained in reg 44 of the RTR means that we apply the older version of the regulation. In any event, the current version is not, for the purposes of this case, different to the older version in any material respect.
5. Reg 41C(1) contained a prohibition. Sub-reg (2) contained an exception to that prohibition. Sub-reg (4) refers to a non-exclusive list of matters the Tribunal may take into account to determine whether a landlord had participated in good faith in a formal rent negotiation process and whether it was fair and reasonable for the landlord to have given the termination notice or applied for such an order from the Tribunal.
6. The appellant relies upon that exception to the prohibition in that he submits the respondents did not prove, and the Tribunal erred in finding, that the exception in sub-reg (2) was established.
7. However, before one gets to the question of whether the exception in sub-reg (2) applies, the anterior question which must first be addressed is whether the prohibition in sub-reg (1) applied. On that issue it is for the tenant to allege that the prohibition applied, and it is the tenant who, in our view, bears the onus of proof on that issue. The general proposition that he who asserts must prove is applicable here.
8. Thus, it was for the appellant to have raised as an issue for determination by the Tribunal, and for the appellant to have proven on the balance of probabilities, that he was an "impacted tenant" at the relevant point in time, namely 25 June 2020 (the date of the termination notice and the date the proceedings were commenced in the Tribunal).
9. At the time of the Tribunal hearing s 228A of the RTA defined an "impacted tenant" as: … a tenant who is a member of a household impacted by the COVID-19 pandemic.
10. Section 228B set out the statutory test for determining whether a household was impacted by the COVID-19 pandemic. That section said: 228B When a household is impacted by COVID-19 pandemic (1) For the purposes of this Part, a household is impacted by the COVID-19 pandemic if - (a) any 1 or more rent-paying members of the household have - (i) lost employment or income as a result of the impact of the COVID-19 pandemic, or (ii) had a reduction in work hours or income as a result of the impact of the COVID-19 pandemic, or (iii) had to stop working, or materially reduce the member's work hours, because of - (A) the member's illness with COVID-19, or (B) another member of the household's illness with COVID-19, or (C) the member's carer responsibilities for a family member ill with COVID-19, and (b) as a result of any of the matters stated in paragraph (a), the weekly household income for the household has been reduced by at least 25% compared to the weekly household income for the household before the occurrence of any of the matters. (2) In this section - weekly household income means the total of the weekly income, including any government payments, received by each rent-paying member of the household.
11. As is apparent from the terms of s 228B of the RTA, there are a number of matters which are required to be proved by tenants if they wish to establish that they were an "impacted tenant" at any particular point in time. They must prove a reduction in household income of at least 25% (which will require proof of who makes up the household and each of their incomes) and that the reduction in income of any one or more rent-paying members of the household was caused by one or more of the matters set out in s 228B(1)(a).
12. None of those matters are referred to by the Tribunal in its reasons, which is suggestive of the appellant not having raised the prohibition as a defence. The appellant did not provide us with the evidence provided to the Tribunal or a transcript of the Tribunal hearing as he was directed to do, and so we are unable to determine whether the prohibition was raised by him as an issue in the proceedings which the Tribunal would need to decide, and what evidence (if any) he gave on that issue.
13. It is true that the Tribunal's reference to "S.41C (sic) of the Residential Tenancies Amendment (COVID-19) Regulation 2020" and "the outstanding amount of arrears, the several unsuccessful attempts to negotiate a settlement, and the need for some resolution of the matter for the good of both parties, the matter should proceed" is suggestive that the Tribunal was examining whether the exception in sub-reg (2) applied, and logic would suggest the exception would only need to be examined if the prohibition was engaged. But it is not necessarily so. It is equally suggestive that the Tribunal mentioned those matters in the alternative. That is, the appellant not having raised the prohibition, or not having proved it, the Tribunal then went on to decide that even if it was wrong about the prohibition, nevertheless it was satisfied that the exception applied. We shall return to this further at [40] below.
14. As the appellant said in submissions before us, there has never been a requirement to be "registered" as "COVID affected" as the Tribunal said in its reasons. Therefore, those references are curious, and we are unsure precisely what the Tribunal was trying to convey by use of the word "registered". But it seems tolerably clear that the Tribunal was not conveying findings of fact relevant to the matters to be proved under s 228B. This is important.
15. In its reasons in Ward v Nand [2021] NSWCATAP 14 which we have quoted at 15] above, the Appeal Panel, entirely appropriately with respect, made clear that it was not making a final ruling on whether the termination order was properly made by the Tribunal, only that it seemed there was an arguable case that the Tribunal at first instance erred. It is apparent from the reasons given that the Appeal Panel was provided with some evidence, but what that was is not known or provided to us. Whether what was given to the Appeal Panel was new evidence led for the purpose of reinstating the appeal (and not having been provided to the Tribunal at first instance), or whether it was some or all of the evidence provided to the Tribunal at first instance, we do not know.
16. In addition, and with respect to the Appeal Panel, we do not agree that the reasons of the Tribunal at first instance indicate that it made a finding Mr Ward was an impacted tenant at any particular point in time. We have made some observations about this at [34]-[37] above.
17. Further to those observations and returning to the topic as indicated at [36] above, the Tribunal's reasons need to be read with a degree of generosity to the decision maker. As the plurality said in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [77], there should be a degree of tolerance for looseness in the language of the Tribunal, unhappy phrasing of the Tribunal's thoughts or verbal slips, and the Tribunal's reasons ought not to be inspected with a fine tooth-comb attuned to identifying error.
18. It is to be remembered that the Tribunal said "… at the time of issue of the termination notice and commencement of the instant application, was not registered as Covid affected, but at least from mid May 2020 could have been so regarded. He is now registered." (Our emphasis)
19. The highlighted part of the quote indicates that the Tribunal had the time period referred to in the prohibition at the forefront of its mind.
20. The Tribunal's use of the word "registered" could simply be an unhappy phrasing of the Tribunal's thoughts or a written slip when referring to the issue of whether the appellant was an "impacted tenant". The Tribunal, obviously enough from the express reference to it, had reg 41C before it, and the word "registered" does not appear anywhere in reg 41C. It seems probable, therefore, that the word was a reference to something else other than its ordinary dictionary definition.
21. If that is correct, then the Tribunal appears to have found that the appellant was not an impacted tenant at the time he was served with the termination notice and at the time the proceedings were commenced, although there was some evidence that he was an impacted tenant ("could have been so regarded") although that evidence was not sufficient to prove so on the balance of probabilities. The Tribunal was satisfied that the appellant was an impacted tenant at the time of the hearing but being so at that time was not relevant to the prohibition.
22. On an appeal it is the appellant who bears the onus of persuasion that an error occurred. For those reasons we have given we are not satisfied that the making of the termination order by the Tribunal was in error. In the absence of the evidence and a transcript we are not persuaded that the Tribunal found the appellant was an impacted tenant at the relevant time to engage the prohibition.
23. Of course, had the appellant provided us with the material he was directed to provide by the Appeal Panel on 22 January 2021, some seven weeks before the hearing of his appeal, we may have been satisfied that the "unhappy phrasing" of the Tribunal's thoughts was something more, namely an erroneous application of the regulation. But he chose not to provide us with that material.
24. At the conclusion of the appeal, when the problems arising from the appellant's failure to provide us with that material became more apparent, the appellant sought an adjournment of the appeal so that he could supply us with the material. He said he could supply that material within a small number of days. He said he had not done so earlier because of financial stress, illness and stress within his family.
25. The application was opposed. We refused the adjournment and said we would provide reasons for that refusal in these reasons.
26. In short, we were not satisfied that the explanation put forward justified non-compliance with the Appeal Panel's directions. There were no details of any financial or family stress, and how those factors prevented the appellant supplying the material that he now said could be provided within days. There was no medical evidence corroborating his claims of illness, what the illness was, what affect it had on the appellant and why that illness prevented compliance with the directions. In addition, the appellant's claim that these matters prevented him complying with the directions for some seven weeks were inconsistent with his failure to mention them when we first asked about his non-compliance at the commencement of the hearing of his appeal (see [21] above.
27. Further, prior to the hearing of the appeal the appellant had moved out of the premises and surrendered possession to the respondents. Therefore, the appellant's challenge to the order for termination was a barren exercise. The appellant said that he was concerned that the respondents would list the termination of his tenancy for failure to pay rent on a residential tenancy database, and thus there was a tangible reason for him seeking to overturn the Tribunal's decision.
28. The respondents said they had not listed anything concerning the appellant on any tenancy database as of the date of the hearing of the appeal.
29. The appellant's concern is real. However, if he was an impacted tenant, then he has the protection of reg 41E (now reg 41D) of the RTR. That regulation prohibits the respondents listing the matters referred to therein if the breach of the residential tenancy agreement arose solely from a failure to pay rent or charges specified in section 88(1) of the Act, and at the time of the breach, the person was an impacted tenant.
30. Therefore, it seems to us that the basal concern of the appellant will be assuaged by the protection provided him, if indeed he was an impacted tenant at the relevant time, by the provisions of reg 41E and there is no need to further delay determining his appeal.
31. In addition to all of those matters, there is of course the position of the respondents to consider, and the ongoing stress of litigation occasioned to them and which would be exacerbated by granting the adjournment.
32. For all of those reasons we refused the appellant's application for an adjournment.

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: 30 March 2021