Williams v Gerringong Housing Aboriginal Corporation

The background

1. On 20 May 2004, the parties entered into a residential tenancy agreement in respect of premises at Gerringong.
2. On 11 March 2021, the Respondent served on the Appellant a no grounds termination notice, providing termination of the residential tenancy agreement on 9 June 2021 (the 11 March 2021 notice).
3. On 2 June 2021, the Appellant commenced proceedings SH 21/27228 against the Respondent in the Consumer and Commercial Division, by filing an application seeking an order pursuant to s 111 of the Residential Tenancies Act 2010 (NSW) (RT Act), declaring that the termination was not given in accordance with the RT Act (the Appellant's application).
4. On 23 June 2021, the Respondent commenced proceedings SH 21/33684 against the Appellant in the Consumer and Commercial Division, by filing an application seeking a termination order under s 85 of the RT Act and consequential orders (the Respondent's application).
5. On 20 July 2021, the Appellant's and Respondent's applications were listed for hearing concurrently. The Tribunal dismissed the Appellant's application pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) for her failing to appear. The Tribunal proceeded to make an termination order and consequential orders in the Respondent's application.
6. On 23 July 2021, the Appellant requested that the Appellant's application be reinstated, which was refused.
7. On 4 August 2021, the Appellant lodged a set aside application of the termination order made in the Appellant's application. Her set aside application was granted and the Respondent's application was adjourned and determined again on 29 October 2021. It is this decision which is the subject of this appeal.

The hearing below

1. On 29 October 2021, the Tribunal conducted the hearing. The appellant appeared at the hearing represented by an advocate, Ms Davis (as agent). Ms J Cross (Ms Cross), a solicitor, appeared with leave for the Respondent.
2. On 29 October 2021, the Tribunal provided oral reasons for its decision which relevantly provide: "…This is the landlord's application pursuant to section 85 of the Residential Tenancy Act for a termination order following the delivery of a notice of termination based on a no grounds notice. … Ms Williams today has given evidence that she has mistakenly believed that her retaliatory application, pursuant to section 111 of the residential Tenancy Act, was still on foot. However, for the reasons that I have just described, the Tribunal dismissed that application for a set aside reinstatement … In making my determination today the Tribunal is satisfied that the notice of hearing as well that the notice of termination is a valid termination notice … The residential tenancy agreement is terminated immediately and possession to be given to the landlord on the date of termination. …"

The procedural history of the Appeal Panel proceedings

1. On 12 November 2021, the Appellant commenced proceedings 2021/00322261 against the Respondent by filing a notice to appeal in which she seeks orders that the decision of the member be set aside and remitted for further determination.
2. We are satisfied that the appeal was commenced within the time of 14 days prescribed under r 25(4)(b), when read with par (d) of the definition of "residential proceedings" in r 3(1), of the Civil and Administrative Tribunal Rules 2014 (NSW).
3. On 23 November 2021, the Appellant filed an amended notice to appeal in which she relies upon the following grounds of appeal: 1. ground 1: the Tribunal erred by constructively failing to exercise jurisdiction by not considering and determining the Appellant's claim that the 11 March 2021 notice was retaliatory; 2. ground 2: in the alternative, the Appellant was not afforded procedural fairness; 3. ground 3: the Tribunal identified the wrong issue or asked the wrong question.
4. On 19 November 2021, the Appeal Panel granted leave to the parties to be legally represented, made orders for the parties to file evidence and submissions, and suspended the operation of the order for possession conditional upon the occupation fee being paid until further order of the Tribunal or the finalisation of the appeal, whichever is earlier in time.
5. On 3 December 2021, the Respondent filed a reply to the appeal in which it asserted that the Appellant required leave to appeal, opposed leave being granted to appeal, and denied that the asserted grounds of appeal should be accepted.
6. The parties filed evidence and submissions in compliance with those orders.

The hearing of the appeal

1. The Appellant was represented by Ms J Lee, a solicitor. The Respondent was represented by Ms Cross.
2. The Appellant relied upon the transcript of the hearing below, a bundle of documents filed on 15 December 2021, and written submissions.
3. The Respondent relied on a bundle of documents filed on 22 February 2022, and written submissions.

The statutory provisions and legal principles applicable to appeals

1. Before considering the appeal, it is appropriate to set out the statutory provisions and legal principles applicable to the appeal.
2. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2)(b) of the NCAT Act.
3. The Appeal Panel relevantly may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of orders that the appeal is to be allowed, the decision under appeal is to be set aside, and the whole or any part of the case is to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel: s 81(1)(a), (c) and (e) of the NCAT Act.
4. An internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must establish an error of law has occurred; or otherwise an error of the type that it is appropriate to grant leave to appeal.
5. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law, which relevantly includes whether there was a failure to afford procedural fairness, whether the Tribunal identified the wrong issue or asked the wrong question, and whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations.
6. An error of law will also occur where there is a material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 (Dranichnikov) at [24]-[25] (Gummow and Callinan JJ; Hayne J agreeing at [95]); DVE18 v Minister for Home Affairs (2020) 276 FCR 401; [2020] FCAFC 83 at [34]; followed by the Appeal Panel in Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 (Goncalves) at [9(2)].
7. A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. By s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance: Goncalves at [28]; Croghan v Rees [2021] NSWCATAP 328 at [40].

Relevant law

1. Section 85 of the RT Act relevantly provides: 85 Termination of periodic agreement - no grounds required to be given (1) A landlord may, at any time, give a termination notice for a periodic agreement. (2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given. … (3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. ….
2. Section 115 of the RT Act provides: 115 Retaliatory evictions (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice - (a) declare that a termination notice has no effect, or (b) refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons - (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant. (3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.
3. There is authority of the Appeal Panel that s 115 of the RT Act is available as a defence to an application under ss 84 and/or 85 of the RT Act: Quader v Bell [2017] NSWCATAP 24 at [51]; Mercieca v Fu [2017] NSWCATAP 205 (Mercieca) at [40]-[44]; Camilleri v Eastlake [2018] NSWCATAP 176 at [16]-[24]; Smith v Li [2020] NSWCATAP 59 at [55].

The submissions of the Appellant

1. As developed in her submissions, the Appellant submitted in relation to ground 1 that the Tribunal constructively failed to exercise its jurisdiction by failing to consider her defence that the 11 March 2021 notice was a retaliatory notice and the Respondent's application was a retaliatory application. Further, the Tribunal failed to comply with the obligation in s 38(6)(a) of the NCAT Act to consider her evidence that the 11 March 2021 notice was a retaliatory notice, and thereby failed to take into account relevant considerations. As this is an error of law conceptually distinct from a constructive failure to exercise jurisdiction, we have treated it an additional ground of appeal, being ground 4.
2. In the hearing below, the Tribunal provided the Appellant an opportunity to give sworn evidence. The transcript relevantly records the following: "Member: …I am not actually satisfied Ms Williams at this point in time that your retaliatory application is on foot so I will just hear your oral evidence as to what you are relying on… Ms Williams: … they put in for a no grounds no breach termination… they decided to terminate my tenancy because of a slanderous Facebook post… My continuous requests to fix fallen brickwork that is now structural damage to the property, my request to fix the fence, which I've paid for out of my own pocket … they held a meeting on the 3rd of March, which they stated themselves that they terminated my tenancy because they didn't want their board members under anymore duress because of my alleged slandering on Facebook and then on the 11th of March that's when I was served with my termination notice it says no grounds no breaches but they've gone on I their minutes and made claims of breaches that I've made throughout my tenancy yet they have no evidence to back that up. And that's it, that's the order of events where I believe it was retaliatory …"
3. Despite the Tribunal providing the respondent with an opportunity to cross-examine the Appellant, her evidence was unchallenged. We note that despite this, submissions were made by the respondent that the Appellant's evidence was false.
4. The Appellant submits, which we accept, the member made no reference to the Appellant's request to have s 115 of the RT Act considered in determining the termination of the residential tenancy agreement pursuant to s 85 of the RT Act.
5. The Appellant relied upon the same arguments advanced for ground 1 for ground 2.
6. The Appellant in relation to ground 3 submitted that the Tribunal erred in considering that the question of a retaliatory eviction would only have been relevant to the Appellant's application. By failing to consider whether the Appellant had a defence to the Respondent's application by reason of the 11 March 2021 notice being a retaliatory notice the member identified the wrong issue or asked the wrong question.
7. The Appellant submits that the Orders should be set aside, the matter remitted to a differently constituted Tribunal for hearing and determination according to law, and parties be permitted to file and serve fresh evidence.

The submissions of the Respondent

1. The Respondent submits that the Tribunal has no discretionary power under s 85 of the RT Act to do anything other than terminate the residential tenancy agreement in circumstances where the termination notice was given in conformity with the RT Act. The Respondent contends that where there is an inconsistency, that being the operation of a discretionary power under s 115 of the RT Act to not make a termination order, then s 85 should prevail.
2. The Respondent has cited a number of authorities in support of its submission: Howard v B Miles Women's Foundation Inc [2012] NSWSC 1173 (Howard); Quader v Bell [2016] NSWSC 623 (Quader); Rayner v Rayner [2020] NSWSC 1536 (Rayner).
3. The Respondent also submits that there was no evidence that the eviction was retaliatory, and the issue of a retaliatory eviction was considered by the Tribunal.

Consideration and determination

1. We are satisfied that each of grounds 1 to 4 raise an error of law. It follows that the question of whether there is an error for which leave to appeal is required does not arise for decision.
2. It is convenient to deal with grounds 1, 2 and 4 together. However, before dealing with the four grounds of appeal it is necessary to deal with the issue underlying them of whether a retaliatory eviction may be a defence to a termination notice or termination application under s 84 or s 85 of the RT Act.

Whether a retaliatory eviction may be a defence to a termination notice or termination application under s 84 or s 85 of the RT Act

1. As we have set out at [30] above, the Appeal Panel has previously found that a retaliatory notice or a retaliatory application within s 115 of the RT Act can be used as a defence to an application under s 85 of the RTA.
2. In Mercieca at [40(4)]-[40(5)], the Appeal Panel noted the submissions of the tenant that assistance in determining the hierarchy of ss 85 and 115 is found, in relation to s 85 of the RT Act, in cl 22(4) of the Residential Tenancy Regulation 2010 (NSW) (2010 RT Regulation), which specifies in paragraph (a) that an application under s 115(3) must be made within 30 days of service of the termination notice, and it is unlikely that Parliament intended s 85 to operate independently of s 115 and it would be contrary to the text of the legislative scheme to interpret it in that way. The Appeal Panel held at [43] that it was satisfied that the decision of Schmidt J in Howard does not preclude the application of s 115 to a termination notice under s 84, at the end of a fixed term tenancy. The Appeal Panel at [44] also agreed with the tenant's submission that there is no appreciable difference between s 84 and s 85 termination notices, in terms of the application of s 115, other than the longer time period allowed in the 2010 RT Regulation for a tenant to make an application under s 115(3) in the case of a s 85 termination notice and that to conclude that s 115 does not apply to a termination notice under ss 84 or 85 would give s 115 very limited work to do.
3. In addition to the reasons given in Mercieca at [43]-[44] for holding that a retaliatory eviction may be a defence to a termination notice or termination application under s 84 or s 85 of the RT Act, we are satisfied that the RT Act and the cl 22(4) of the 2010 RT Regulation (which is identical to cl 39(4) of the Residential Tenancy Regulation 2019 (NSW) (2019 RT Regulation)) can be used to determine whether the availability of s 115 as a defence to s 85.
4. Clause 39(4)(a) of the 2019 RT Regulation provides the prescribed time for giving notice of a retaliatory termination: 39 Times for making applications to Tribunal - ss 44(2), 83(2)(a), 98(4), 115(3), 125(3), 134(3), 141(2), 175(3) and 190(1) of Act … (4) For the purposes of section 115(3) of the Act, the prescribed period is - (a) if the termination notice was given under section 85 of the Act - within 30 days after the termination notice is given, or …
5. Normally, delegated legislation cannot be used to interpret the enabling Act: D C Pearce, Statutory Interpretation in Australia (9th ed, 2019, Lexis Nexis Butterworths) at [3.48]. However, where there are regulations and the principal Actform part of a legislative scheme, it may be useful to refer to them to ascertain the nature of the scheme: Statutory Interpretation in Australia, at [3.49].
6. As the RT Act and the 2010 RT Regulation both commenced on 31 January 2011, there is a proper basis for characterising them as a legislative scheme and using cl 22(4) of the 2010 RT Regulation, or cl 39(4) of the 2019 RT Regulation, as an aid to determining whether s 115 of the RT Act applies to an application under ss 84 and/or 85 of the RT Act. The wording of cl 39(4) (and cl 22(4)) clearly indicates that a retaliatory notice may be a defence where a termination notice is given under s 85 of the RT Act. Taking into account these authorities and the reasoning in them together with the circumstance of there being a legislative scheme, we are satisfied that a retaliatory notice and a retaliatory application within s 115(2) of the RT Act were available as a defence to the Respondent's application.
7. None of the authorities relied on by the respondent preclude this construction.
8. Howard was an application for an interlocutory injunction to prevent the landlord from enforcing an order for termination under s 84 of the RT Act and possession. Schmidt J noted that in issue between the parties was the proper construction of s 115 and its interaction with s 84. While Schmidt J acknowledged at [22] the "apparent statutory purpose" that a landlord was entitled to recover possession of the property at the end of the agreed term, her Honour had acknowledged earlier in [22] that it could be accepted that there could conceivably be circumstances where the s 115 discretion could have work to do, if it was available to be exercised in the case of a fixed term tenancy the subject of a s 84 application. Her Honour further acknowledged at [25] that given the structure of the legislation there may also be a statutory intention that the mandatory terms of s 84 would be subject to the general discretion in s 115. However, her Honour held that it was not necessary to come to any concluded view about this question, as on the application for interlocutory relief the applicant had not established a prima facie case.
9. Quader was an application for leave to appeal against the decision of the Appeal Panel to refuse the tenant's application for a stay of a termination order. Adamson J at [27] held that It is arguable that the member misapprehended the effect of s 115 of the RT Act and considered that he was not entitled to consider whether the eviction was retaliatory since the tenant had not made an application under s 115(3). However, it was unnecessary to consider this argument as the member was not satisfied that the tenant had made out a case that the eviction was retaliatory in any event.
10. Rayner was an application for leave to appeal against the decision of the Appeal Panel to dismiss an appeal against an order for possession made in favour of the landlord. Ierace J, while referring to ss 85 and 115 of the RT Act, did not consider the question of whether a retaliatory eviction may be a defence to a termination notice or termination application under s 84 or s 85 of the RT Act.
11. For these reasons, we reject the Respondent's submission that the Tribunal correctly exercised its jurisdiction in not considering s 115 of the RT Act.

Ground 1: the Tribunal erred by constructively failing to exercise jurisdiction by not considering and determining the Appellant's claim that the termination notice was retaliatory

Ground 2: the Tribunal erred by not affording procedural fairness to the Appellant

Ground 4: the Tribunal erred by failing to take into account relevant considerations

1. Having regard to the principles set out in Dranichnikov at [24]-[25] and Goncalves at [28], we are satisfied that the Tribunal made an error of law by constructively failing to exercise jurisdiction, by failing to afford procedural fairness to the Appellant, and by failing to take into account relevant considerations, in failing to determine whether the 11 March 2021 notice was a retaliatory notice or the Respondent's application was a retaliatory application within s 115(2)(a) of the RT Act. The Appellant gave unchallenged evidence at the hearing as to the three bases on which she alleged the actions of the respondent were retaliatory (Appellant's bundle, pp 35-36). The Appellant's evidence was not considered by the member in terms of s 115(2)(a) of the RT Act being a defence to the 11 March 2021 notice and the Respondent's application. The Tribunal clearly proceeded on the basis that a retaliatory notice or a retaliatory application within s 115(2)(a) of the RT Act was not a defence to an application for a termination order under s 85(3) of the RT Act (Appellant's bundle, pp 25-26, 40-43). It follows that the appeal should succeed on the basis of each of these grounds of appeal.

Ground 3: the Tribunal identified the wrong issue or asked the wrong question

1. In her oral reasons the member at various stages referred to the only issue to be considered was s 85 of the RT Act. The member remarked the "retaliatory application" not "being on foot", referring to the Appellant's application. Where the member fell into error is by identifying the wrong question by not considering whether s 115 of the RT Act is a defence to the Respondent's application.
2. The Tribunal also identified the wrong issue, namely the Appellant's application, as being the proceedings in which the question of whether the 11 March 2021 was a retaliatory notice would properly have been considered. In doing so the Tribunal fell into error. Similarly, the appeal should succeed on the basis of this ground of appeal.

Costs

1. The Respondent sought an order for costs. The Appellant makes no application. Given our findings, there is no entitlement for an order that the Respondent's costs are to be paid by the Appellant.

Orders

1. We make the following orders: 1. the appeal is allowed; 2. the decision made on 29 October 2021 in proceedings SH 21/27228 is set aside; 3. the proceedings are remitted to the Consumer and Commercial Division to be determined by a differently constituted Tribunal upon the evidence already adduced to the Tribunal at first instance, and such further evidence as the Tribunal may allow.

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: 06 May 2022