ZYK v Soo

Material before the Appeal Panel

1. In considering this appeal we had regard to the following material: 1. the orders made by the Tribunal on 21 December 2021 together with the Tribunal's reasons for decision which are dated 23 December 2021; 2. the original application for a termination order made by the landlords to the Tribunal against ZYL and his wife on 25 October 2001; 3. application for a stay and notice of appeal filed on 13 January 2022 with attachments; 4. additional documents attached to an email to the Tribunal from ZYK dated 14 February 2022; 5. additional submissions and material provided by email ZYK on 22 February 2022; 6. additional material provided by email ZYK on 22 February 2022; 7. additional material provided by email ZYK on 23 February 2022; 8. additional proof of compliance with stay conditions provided by email from ZYK dated 10 March 2022; 9. additional large bundle of submissions and materials from ZYK received 10 March 2022; 10. copy of decision made in RT21/46396 being proceedings brought by the tenants against the landlord in the Tribunal (constituted by the same Member who made the termination order) in which the Tribunal awarded the tenant's compensation for breach, the withdrawal of facilities and water usage charges; 11. edited transcript of the hearing on 21 December 2021 filed by ZYK on the day of the appeal hearing; 12. screen shots of a text conversation between ZYK and Ms Mathieson filed by ZYK filed on the day of the appeal hearing; 13. reply to appeal filed on 16 February 2022 with 17 attachments; 14. bundle of documents provided by the landlords by email on 9 February 2022 numbered 12 to 18; 15. bundle of documents provided by the landlords by email on 9 February 2022 numbered 12 to 18; and, 16. bundle of documents provided by the landlords by email on 16 February 2022.

Scope and nature of the tenant's appeals

1. 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 in specified circumstances: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). That sub-section provides: (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
2. Internal appeals that relate to "residential proceedings," defined in r. 4 of the Civil and Administrative Tribunal Rules 2014 (the NCAT Rules) as including proceedings under the RTA, must be made within 14 days from the day on which the appellant was notified of the decision, or given reasons for the decision: r. 25. In this case the appellants received reasons for decision from the Tribunal on 31 December 2010. The internal appeal was filed on 10 January 2022, within the time fixed by r. 25.
3. The appellants nonetheless sought an extension of time in the Notice of Appeal. The Respondents indicated their agreement to an extension of time being granted with respect to the Tribunal decision with respect to termination. We do not think an extension of time necessary with respect to that decision.
4. That is not the case with respect to the appeal insofar as it relates to what the appellants claim was an earlier decision, made by the Tribunal at a conciliation hearing on 15 November 2021, to refuse to issue summonses.
5. Decisions with respect to the issue of summonses (and decisions with respect to an extension of time) are, among other things, defined in s 4 of the NCAT Act as interlocutory decisions. Leave (or permission) is required to appeal interlocutory decisions under s 80(2)(1).
6. In the present case the appeal against the summons decisions was not lodged until 10 January 2021, whereas it should have been made by 29 November 2021. This is more than fourteen days after the appellants were made aware of the decision on 15 November 2021. Both an extension of time and leave to appeal under s 80(2)(i) of the NCAT Act will be required with respect to the summons decisions.
7. The appellants will also require leave to appeal another interlocutory decision under s 80(2)(i). That is the decision of the Tribunal to grant an extension of time to enable the respondents (to this appeal) to make their application in the original proceedings. That appeal was made within time and does not require an extension of time.
8. The consideration involved when granting leave to appeal an interlocutory decision are separate and distinct from the more restrictive leave requirements that apply to other decisions made in the CCD. These are set out in clause 12(1) (a) and (b) of Schedule 4 of the NCAT Act. This provides: (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because - (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or …
9. Having considered the notice of appeal, submissions and materials relied on by the appellants, we are satisfied that the appellants' appeal raises the following issues for consideration by the Appeal Panel: 1. whether to grant an extension of time for appellants to appeal the decisions with respect to the issue of summonses said to have been made on 15 November 2021. If so, whether to grant leave to appeal that decision, and if so, the outcome of the appeal; 2. whether to grant leave to the appellants to appeal the decision of the Tribunal to extend time to enable the respondents to seek a termination order; and. 3. whether the Tribunal should grant the appellants leave to appeal against the decision pursuant to clause 12(1) (a) and (b) of Schedule 4 of the NCAT Act on the basis that they may suffered a substantial injustice because that the termination notice and application were not retaliatory was not fair and equitable or was against the weight of the evidence.
10. In submissions the appellant complained that the proceedings before the Tribunal below were procedurally unfair for a number of reasons. Those reasons related to the refusal to allow the tenants to issue summonses, the finding that the tenants had been properly served with the termination notice, and other decisions - such as that the termination notice was not retaliatory - which the appellant argued were contrary to (against the weight of) the evidence and were not fair and equitable.
11. We will consider them in their separate parts as noted above.

The summonses

1. In the present case the notice of appeal indicates that in addition to the termination order made by the Tribunal in December 2021, the appellants seek to appeal the refusal by the Tribunal to allow them to issue four separate summonses to the landlord's real estate agent, seeking information they say was relevant to the termination issues and whether the application for termination was retaliatory. They require an extension of time to appeal that refusal.
2. There is no indication or record of any applications for summonses having been made by the appellants. The appellants have not produced any such applications or relevant orders. ZYK said in her submissions that she requested summonses issue at the conciliation hearing on 15 November 2021 but that her request was refused. The Tribunal's Procedural Direction No 2 - Summonses sets out the procedure to be followed when a party wishes to issue a summons. This includes completing an application for a summons and paying the prescribed fee. A registrar considers such an application. There is no evidence that this procedure was followed. Further, we note that the applicant did not seek to appeal the summons decisions at that time. She had 14 days in which to do so.
3. In oral submissions ZYK said that this refusal denied her procedural fairness.
4. The power to issue a summons is found in s 48 of the NCAT Act. Rule 38(1) of the NCAT Rules provides: (1) An application by a party to proceedings for a summons under section 48 of the Act must be made in or to the effect of the approved form.
5. In this case, there is no application for, order, or reasons for refusing to issue summonses in the material before us. The Tribunal is required by s 62(1) to give notice of any order it makes in proceedings. There is no evidence that the appellant sought reasons for decision, as was her right under section 62(2) of the Act. The conciliation hearing took place on 15 November 2021: meaning that the notice of appeal with respect to any decision made that day is 42 days out of time.
6. Section 41 of the NCAT Act provides: (1) The Tribunal may, of its own motion or on an application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
7. The Tribunal's power to grant an extension of time was discussed at length in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18] to [30]. The Appeal Panel in Jackson said, among other things, that: 18 Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings". 19 An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]: The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion." 20 The Courts have identified in numerous cases various factors that should be considered in deciding whether to grant an extension of time in which to appeal. Substantially the same principles have also been applied by the Appeal Panel of the Administrative Decisions Tribunal (ADT), one of the predecessors of the Tribunal, in relation to appeals in the ADT - Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16], Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. These authorities provide useful guidance on the principles that are to be applied by the Appeal Panel in this regard. 21 Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. …
8. We refuse the application for an extension of time to appeal the refusal to issue summonses for the following reasons: 1. aside from assertions made by the appellants, there is no evidence that a request to issue summonses was ever made or refused, and in particular there is no evidence before us of: 1. any application for a summons to issue being made on the approved form as required by Rule 38; 2. an order issue documenting the Tribunal's refusal to issue summonses; and. 3. a request for reasons for such a refusal being made by the appellant; 1. the proceedings in which the appellant sought to issue summonses are now complete and the subject of this appeal. No benefit will flow from now considering an appeal against a refusal to issue summonses; 2. the delay in commencing the appeal against the refusal to issue summonses is significant and no explanation has been offered for it. The fact that the refusals are appealed at the same time as the Tribunal's determination of the matter, is redolent of the refusals being an afterthought; 3. considerable prejudice could flow to the respondents were leave to appeal granted; and, 4. we were not minded to grant leave to appeal in the circumstances.
9. The application for an extension of time in which to seek leave to appeal the refusal to issue summonses is refused.

The Tribunal's decision to grant an extension of time for the making of the termination application

1. In written and oral submissions the appellants addressed issues concerning the manner in which the Tribunal exercised its discretion under s 41 of the NCAT Act, to allow the respondents to make an application for possession based on the service of a 90 day notice under s 85 of the RTA, despite the application being out of time.
2. No grounds are required for such a notice. Once a valid termination notice under s 85 is served on a tenant, then, absent a finding that the application was retaliatory under s 115, the Tribunal has no discretion with respect to termination. Section 85(3) provides that: (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.
3. In short, it was submitted that the Tribunal's decision to grant the respondents an extension of time was unreasonable for a number of reasons. These included that: 1. the reasons given by the respondent's for requiring possession varied over time and did not withstand the weight of analysis. As a termination notice under s 85 of the RTA is a no reason notice these arguments are irrelevant and do not assist the appellants; 2. the delay by the respondents in making the termination application misled the appellants into believing that the respondents would not be seeking to recover possession and that the tenancy could continue; 3. the respondents' explanation that: 1. additional time was allowed for the tenants to vacate, due to Covid; and 2. that it was only when it became clear that ZYK was not going to move that the application was made, do not withstand the weight of analysis; 1. the length of the delay; and, 2. because the termination notice was retaliatory.
4. The Tribunal Member set out her reasons for extending time at paragraphs [5] to [14] of the decision. The Member said: 5. It is accepted by the parties that the application is brought out of time. The landlord said that they were asked to give the tenant more time and complied with that request, delaying making an application to give the tenants time to find somewhere else to live and because of the impact of the COVID 19 pandemic and the then current lock-down situation. The landlord only lodged when they considered that the tenant was not looking for properties (having received no reference checks) and upon enquiry when it became clear that the tenants were not going to move out. 6. The tenants said that the agent gave them the impression (relating to previous notices of termination) that they would not be making an application for termination as they had in the past not pressed for termination. The tenants said that they had not applied for other properties because they are hard to find and because this tenancy is not in ZYKs name and therefore she does not have a history to show prospective landlords (her mother and father having moved out some time ago). This issue will be addressed below. 7. The considerations to be made when considering extending the time in this circumstance are well settled. Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 - the considerations are:- the length of the delay, the reason for the delay, whether the landlord has a fairly arguable case and the extent of any prejudice suffered by the tenants if I extend the time. 8. With regard to the length of the delay I find that the landlord had until 8 August 2021 to make the application. They did not make the application until 25 October 2021. The tenants said that the claim brought is four months late, respectfully I find that the claim is brought 78 days late. It could have been brought any time up until 8 August 2021. It was brought on 25 October 2021. The length of time that it is late is 78 days. The tenants say the landlord delayed bringing the application and this coupled with a lack of communication gave them a false sense of security. 9. I do not consider this to be a long delay in light of the fact that during that time the state of NSW (including the suburb that the tenants are living in) was in the grips of a pandemic and subject to a lockdown that ended for vaccinated persons on 11 October 2021. I do not accept that the agent gave the tenant a sense that they would not be applying for an order. There is no obligation in the Act for a landlord or a tenant to communicate their intentions with regard to enforcing a right or obligation. Significantly the landlord did not apply until after the lockdown for vaccinated persons ended and I consider this to be a reasonable approach. 10. I accept the landlord's reasons for the delay. I consider that giving a tenant more time to find premises in a situation where a pandemic is present and lockdowns exist to be an acceptable reason for the delay. 11 The landlord has a very arguable case. As can be seen from the documents they have been trying to get possession of their premises for some time. Each time something has been amiss with the service of the notice. In this instance I find that valid service has been established (see below). I consider that the delay did not disadvantage the tenant in any way. 12 The extent of any prejudice suffered by the tenants was expressed by ZYK who said they were misled by conduct of the landlords and that they believed the notice was null and void and the landlord would not apply for termination. ZYK said that in the email dated 17 June 2021 that she was trying hard to find a property. I accept this. I find that the tenants did understand that the landlord wanted possession of the premises and would take the necessary course of action. 13 I consider that the delay by the agent in lodging the application initially represented an advantage to the tenant so that she had another three months to look for a property. I cannot see any prejudice in that approach. I cannot see any prejudice to the tenants because what has transpired is that it has now been a full five months that the tenants have had to look for a property and I have given thm (sic) a further two months to vacate. 14 I extend the time for the landlord to make the application. … The Tribunal also provided reasons for finding that the termination notice was not retaliatory at paragraphs (22) to (25).
5. In making the decision to extend time the Tribunal was exercising a statutory discretion. In House v R [1936] HCA 40; (1936) 55 CLR 499 the High Court per Dixon, Evatt and Mc Teirnan JJ considered the principles applicable to challenging the exercise of such a discretion. 5. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
6. Legal unreasonableness can be concluded if the Panel comes to the view that no reasonable Tribunal could have reached the primary decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364. A failure to properly exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: Li (2013) 249 CLR 332 at 367 [76]).
7. In Collins v Urban [2014] NSWCATAP 17 at [84] an Appeal Panel summarised the general principles to be applied when considering granting leave to appeal under s 80(2) of the NCAT Act: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
8. With respect to leave to appeal an interlocutory decision the Appeal Panel in Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 explained, at [19]: 19 It is settled law that leave to appeal against an interlocutory decision is reserved for cases with special features warranting appellate review. The fact that the statute imposes a leave requirement makes it clear that such appeals are not to be brought as a matter of routine: Niemann v Electronic Industries Ltd [1978] VR 431 at 436. The High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 acknowledged, referring to the often cited passage of Sir Frederick Jordan in In re the Will of Gilbert, that "a tight rein" had to be kept on interlocutory appeals if all exercises of discretion in interlocutory applications were not to be transferred to a court of appeal. Nonetheless, the High Court also held that it was unnecessary and indeed unwise to lay down rigid and exhaustive criteria, and specifically stated that the requirement for an error of principle and a risk of substantial injustice were not cumulative. Of the same mind in this latter regard was the Victorian Full Court in Niemann, where their Honours pointed out that if the appellate court were expected to say in all cases that the decision below was clearly wrong and that substantial injustice would follow if it went undisturbed, "leave would never be granted by the primary judge" ([1978] VR at 441). The Full Court considered that the use of the word "wrong" in this context was itself misguided and that the requirement would be better expressed as "attended with sufficient doubt".
9. In Florida Kitchen Centre Pty Limited v Keith [2016] NSWCATAP 54 an Appeal Panel discussed the granting of leave to appeal against interlocutory decisions 28. The courts have made it clear that where the statute, in this case the Civil and Administrative Tribunal Act, imposes a leave requirement, such appeals are not to be brought as a matter of routine. While it is unnecessary and unwise to lay down rigid and exhaustive criteria, there is a general requirement that there be an error of principle and a risk of substantial injustice if leave were not granted.
10. It can be seen that each of the issues raised by the appellants with respect to an extension of time in which to bring the termination application was raised before and considered by the Tribunal in its decision.
11. We can see no error in the manner in which the Tribunal approached the extension of time issue. It referred to and followed the well known analysis of the applicable principles in the Tribunal in Jackson v NSW Land and Housing Corporation (2014) NSWCATAP 22, which we have discussed in some detail, at [21] above. There was evidence before the Tribunal upon which it could reach the conclusions it did, and its reasons for doing so are clear. It dealt explicitly with the length of the delay, which was the appellants' strongest point. It accepted objective evidence that showed that the appellants were aware that the respondents would be seeking possession, contrary to the appellants' assertions to the contrary. We are not persuaded that the Tribunal made an error of principle or that the appellants may have suffered an injustice resulting form the decision to extend time for the making of the termination application. No issue of principle or public importance is raised.
12. At one point in her oral submissions ZYK submitted that the Tribunal's decision was unjust and unreasonable because the Tribunal had not allowed her to argue that previous 90 day termination notices prepared by the respondents were also retaliatory. Those notices had not been properly served and were never relied by the respondents. In submissions the appellants insists that they had not received any of the earlier termination notices. Nevertheless, ZYK argued that they demonstrated, together with the present notice, a retaliatory course of conduct by the respondents.
13. We do not accept that submission. As the earlier notices were not relied on by the respondents, the Tribunal made no error by confining itself to a consideration of whether the termination notice before it was retaliatory. The Tribunal's conclusion was not rendered unreasonable by the Member refusing to hear irrelevant arguments addressing the motivation behind notices not given to appellant and not relied on by the respondents.
14. Leave to appeal the extension of time decision is therefore refused.

The Tribunal's finding that the termination notice was not retaliatory

1. The appellant seeks leave to appeal, pursuant to clause 12(1)(a) and (b) of Schedule 4 of the NCAT Act, the decision of the Tribunal that the respondents termination notice and application were not retaliatory, on the ground that she may have suffered a substantial injustice because the decision was against the weight of evidence and was not fair and equitable.
2. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel explained: 75 As to the particular grounds in clause 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.
3. Section 115 of the RTA provides: (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.
4. The appellants' submissions seek to combine a variety of factors in order to argue that the making of the application and the termination notice are retaliatory. These include that past termination notices were retaliatory, complaints about the state of the property, the delay in making the application which the ZYK led her to believe that no application would be made, the fact that the application was made after she had requested repairs following flooding, and the fact that she had threatened to commence proceedings.
5. With respect to the retaliation issue the Tribunal wrote: 22. The tenants gave evidence that they had not applied to the Tribunal. (see 115(2)(a) above). The tenants gave evidence that they had proposed to apply to the Tribunal in a conversation that ZYK had with the agent. In the absence of any corroborating evidence I do not accept that ZYK had threatened to apply to the Tribunal. ZYK said that she kept getting told that the insurance claim was the hold up with the repairs. I accept this evidence of ZYK and find on the balance that there was a discussion about repairs and the insurance company was blamed. 23. The tenants gave evidence that they had proposed to take action in relation to a personal injury claim (s115(2)(b) however ZYK told me that she did not provide me with any evidence of this claim or any evidence of the conversation because she did not feel it was relevant. 24. I find that there was no order of the tribunal in force at the time the notice was given (115(2)(c)). 25 I decline to use my discretion to make a finding that the notice is in retaliation for the following reasons:- (i) The history of this tenancy is such that the landlord has been trying unsuccessfully to get possession of the premises since November 2020. (ii) I find that the fact that a landlord fails to serve a notice correctly on a number of occasions does not amount to retaliatory behaviour. (iii) A landlord in NSW can give a no grounds notice. They do not have to have a reason to give that notice. (iv) In accordance with Section 188(c) I consider that an order for termination should be made because the relationship between the parties has broken down completely. The tenant claims that the property needs many repairs and that the landlord is tardy with repairs. The landlord claims that the tenant is causing disturbance to the peace comfort and privacy of neighbours. Simply put the parties to the contract are not happy being in this contract anymore and it is appropriate that it comes to an end.
6. It is clear from reading the Member's reasons for decision as a whole, that the parties differed with respect to all of the issues relied on by the appellants to demonstrate that the respondents were at least partly motivated, in serving the notice and applying to the Tribunal, by conduct of the tenants' in pursuit of enforcing their rights, namely: 1. the fact that the tenants proposed to apply to the Tribunal for an order; and/or 2. the fact the tenants had taken or proposed to take any other action to enforce a right.
7. We have already found that the Tribunal correctly confined its consideration of whether the application or notice of termination was retaliatory to the proceedings before it, and in not considering the motivation for previous notices that were not relied on.
8. The Tribunal, having heard from the parties, found that the tenants: 1. had not applied for an order under s 115 of the RTA prior to the Tribunal hearing the respondents application; 2. had discussions with the agents concerning repairs in which the insurance company was blamed for the delay, but had not threatened to commence proceedings against the respondents; 3. had not threatened to commence actions against the respondents with respect to repairs or an alleged personal injury. 4. believed that the termination was null and void and that the respondents' would not apply for possession.
9. The conclusions of fact reached by the Tribunal were reasonably open on the evidence before it. In those circumstances the findings made by the Tribunal lead inexorably to the conclusion that it was open to the Tribunal to conclude that that the termination notice and application were not retaliatory. The fact that the appellant disagreed with those conclusions does not mean that they were not reasonably open to the Tribunal, or provide a basis for appeal. The decision is consistent with the weight of the evidence.
10. The Tribunal took an orthodox approach to fact finding and applied the relevant law. The reasons for decision are clear. We see no reason for concluding that decision was not fair and equitable. There is no clear injustice or issue of principle raised by the decision.
11. The fact that the same Tribunal subsequently awarded the tenants compensation by way of rent reduction for the condition of the premises, is not at odds with the conclusions and determination reached by the Tribunal on the termination application.
12. In those circumstances, leave to appeal against the decision that the termination notice and/or application were not retaliatory is refused.

Conclusion

1. As a consequence the appeal must fail.
2. The Appeal Panel makes the following orders: 1. An extension of time to enable the appellant to appeal against the Tribunal's refusal to issue summonses, said to have been made on 15 November 2021, is refused. 2. Leave to appeal is otherwise refused. 3. The appeal is 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: 02 May 2022