Landlord's Written and Oral Submissions
- The landlord submitted that the Tribunal had not made any error of law and that it had regard to all mandatory considerations. The reasons were adequate. Leave to appeal should be refused and the appeal dismissed.
- The landlord generally agreed with tenant's summary of the legislative scheme of the RT Act. We were provided with a transcript of the hearing and the parties made reference to it. The landlord submitted that the Decision reveals that the Member considered the tenant's frequent failure to pay rent and therefore considered the matter referred to in s 87(4)(b) of the RT Act. The Tribunal's discretion under s 87(4)(b) is broad and includes the factors set out in 87(5) if the Tribunal considers them to be relevant. The submissions of parties may influence what are mandatory considerations (see Collins v Urban [2014] NSWCATAP 17 at [29]).
- The Tribunal reasons and the transcript establish that all of the matters listed in s 87(5) were considered namely:
1. The nature of the breach - the frequent failure to pay rent on time;
2. Any previous breaches - the Tribunal examined the rent ledger and was satisfied that there had been previous rent arrears on numerous occasions;
3. Any steps taken by the tenant to remedy the breach - the Tribunal noted the date that the rent was last paid on 6 October 2016 and on the date of hearing the rent was two days in arrears;
4. Any steps taken by the landlord about the breach - the Tribunal asked the landlord's representative as to whether the parties had entered into an agreed repayment plan and the answer to that question was in the negative; and
5. The previous history of the tenancy - the tenant had been in the premises with members of his family for 20 years. There was a poor rental history since February 2014.
- The landlord referred to the transcript in support of the submission that the tenant had given evidence as to circumstances which might weigh against a termination order being made. It is apparent from par j of the reasons that the Tribunal had regard to the tenant's evidence and submissions.
- The landlord submitted that the Decision contained adequate reasons in that the Decision complies with s 62(3) of the NCAT Act. In summary that section requires the reasons to set out:
1. The findings on material question of facts (here the frequent failure to pay rent was such as to justify termination), referring to the evidence or other material on which that finding was based;
2. The Tribunal's understanding of applicable law either by express reference to or paraphrasing the provisions of s 87 of the RT Act; and
3. Albeit, in a brief way, the reasoning process that lead to the Tribunal's conclusion.
- The landlord submitted that the authorities indicate that a decision maker is not required to address and reconcile every contradiction or inconsistency in the evidence or to give lengthy or elaborate reasons: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at [280] per McHugh JA.
- The landlord submitted that the Decision contained adequate reasons having regard to the guidance provided by an Appeal Panel in Collins and in particular to the Tribunal's requirements to facilitate the resolution of issues between parties in such a way that the costs to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings.
- The landlord submitted that any contention by the tenant that the Tribunal's decision was manifestly unreasonable or that no weight should have given to the landlord's evidence on the alleged basis that the landlord's evidence was "unsworn" should be rejected. There was evidence that the landlord's representative had been sworn in. The landlord submits that the tenant's real complaint is that the tenant regards the Tribunal to have given more weight to the landlord's evidence than the tenant's evidence. This does not constitute an error of law, but rather is directed at the merits of the Tribunal's decision. Accordingly, the tenant's complaint may only be considered by reference to the provisions of cl 12 of Sch 4 of the NCAT Act. The decision in Collins describes the requirements which must be met for an appeal to be successful if it is brought relying upon the provisions of cl 12.
- The landlord submitted that the tenant did not claim that the evidence of the circumstances in its totality preponderates so strongly against a termination order. The landlord's submissions refer to evidence which was before the Tribunal which supported the granting of a termination order.
- The landlord submitted that the Decision discloses in sufficient detail that the Tribunal had regard to the considerations set out in s 154E. It would be a mistake to conclude from the failure to refer to each subsection of s 154E(1) that the Tribunal Member did not take into account all of the relevant subsections: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at [62, 30].
- Further, in par l of the reasons the Tribunal stated that it was satisfied that a termination order should be made having regard to the poor rental history since February 2014. This statement, it is submitted, covers matters under both subsections (d) and (e) of s 154E(1). In addition, the Decision expressly refers to consideration of matters that fall under subsections (a) and (c) of section 154E namely:
1. The reference to the tenant's son; and
2. The reference to the landlord being a social housing provider and that there is a high demand for premises (referable to s 154E(1)(c)).
- The only matter in s 154E(1) not expressly dealt with in the Decision is the subject matter referred to in subsection (b) (i.e. the likelihood that neighbouring residents will suffer serious adverse effects if the tenancy is not terminated) and this was not a matter that warranted specific comment because of the nature of the breach and the lack of contested evidence and/or arguments by either party relying on this factor.
- The requirement for the Tribunal to have regard to the matters set out in s 154E(1) does not require the Tribunal to enquire into and consider each of those matters as contended for by the tenant. The Tribunal in fact dealt with matters that had any weight, significance or relevance.
- The landlord's alternative submission was that, in the event that the Appeal Panel were to hold that the Tribunal erred in not having regard to the matter set out in s 154E(1)(b), the Decision should not be set aside as such error was not material in the sense that it might have or may have made a difference: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [353].
- Finally, the landlord submitted that the tenant had not satisfied the requirements necessary to satisfy cl 12 of Sch 4 of the NCAT Act and that there has been no substantial miscarriage of justice. Whether the Appeal Panel might have come to a different conclusion on the facts is insufficient, it was a conclusion that was available to the Tribunal to make based on the evidence before it, within the scope of its broad discretion under the RT Act and was not "unreasonable or plainly unjust" in the sense described in House v King [1936] HCA 40.