Boscolo v NSW Land and Housing Corporation

[2019] NSWCA 246

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Boscolo v NSW Land and Housing Corporation [2019] NSWCA 246
Hearing dates:	4 October 2019
Date of orders:	04 October 2019
Decision date:	10 October 2019
Before:	Meagher JA; Emmett AJA
Decision:	1. Dismiss the Summons for leave to appeal from the orders made by Fagan J on 26 September 2019. 2. The applicant pay the respondent’s costs of that Summons.
Catchwords:	LEASES AND TENANCIES – application for leave to appeal – where residential premises uninhabitable – where tenant refused landlord access to carry out repairs – where tenant given notice of termination under Residential Tenancies Act 2010 (NSW), s 109 – where Civil and Administrative Tribunal made orders terminating tenancy agreement and for vacant possession – where tenant appealed to Appeal Panel – where Appeal Panel refused tenant’s adjournment application and dismissed appeal – where tenant applied for leave to appeal to the Supreme Court – where primary judge summarily dismissed proceeding due to “negligible prospects of success” – no question of principle
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 32, 80, 81 Residential Tenancies Act 2010 (NSW), ss 109, 121
Category:	Principal judgment
Parties:	Sylvia Boscolo (applicant) NSW Land and Housing Corporation (respondent)
Representation:	Counsel: In person (applicant) N Simpson (respondent)
File Number(s):	2019/303030
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Date of Decision: 26 September 2019 Before: Fagan J File Number(s): 2019/298630

Judgment

1. THE COURT: This is an application for leave to appeal from an order summarily dismissing Ms Boscolo’s Summons for leave to appeal from a decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales (NCAT). That decision in turn dismissed her internal appeal from an order terminating her residential tenancy agreement of premises in Campbell Street, Glebe with effect on 20 February 2019. That order was made under Residential Tenancies Act 2010 (NSW) (RT Act), s 109.

2. At the conclusion of argument on 4 October 2019, this Court dismissed the Summons seeking leave to appeal with costs. The Court’s reasons for making those orders were reserved. Those reasons follow.

3. Ultimately the issue for this Court was whether the primary judge arguably erred in dismissing Ms Boscolo’s application for leave to appeal from the Appeal Panel (that appeal being limited to a question of law) on the basis that it had “negligible prospects of success”.

4. Before this Court, Ms Boscolo argued that she had two grounds of appeal from the Appeal Panel’s decision. The first was that the Appeal Panel had denied procedural fairness by rejecting her application that the hearing of her appeal be adjourned to enable her to pursue an application for legal aid. The second, which was not relied on in the argument before the primary judge, was that the Appeal Panel was wrong to reject her argument that RT Act, s 109, did not apply to the tenancy agreement, Ms Boscolo’s contention being that the premises were uninhabitable as a result of a breach of that agreement by the respondent, the NSW Land and Housing Corporation.

5. It is necessary to explain briefly the events leading to the application in this Court. Much of that history is recited in the reasons of the primary judge: Boscolo v NSW Land and Housing Corporation (Supreme Court (NSW), Fagan J, 26 September 2019, unrep).

6. On 8 February 2019 the respondent gave Ms Boscolo a notice purporting to terminate her residential tenancy agreement. It did so on the ground that the premises had become uninhabitable: RT Act, s 109. Ms Boscolo, who lives in the premises with her seriously ill adult daughter, refused to vacate on receipt of that notice. The Housing Corporation then made an application in the Consumer and Commercial Division of NCAT for orders under s 109, including an order terminating the agreement and an order for possession. That application gave as the reason for seeking an order that the tenancy be terminated immediately that the “property poses a significant [safety] risk to the tenant and her daughter”, the position being that it “has no functional toilet, no water in the downstairs part of the premises, the flooring is deteriorated and is missing in places with the appearance the remaining flooring is collapsing”. NCAT’s power to make such an order under s 109 depends on its being “satisfied” that the section applies, which turns on the premises having become wholly or partly uninhabitable “otherwise than as a breach of an agreement”.

7. On 8 April 2019, Ms Boscolo made a cross-application in those proceedings, claiming compensation for loss of quiet enjoyment of the property and for an abatement of the rent because the premises had become uninhabitable. That latter claim can only be made if the premises have become uninhabitable “otherwise than as a result of a breach of an agreement” (s 43(2)).

8. Both applications were listed for hearing before a Senior Member of NCAT on 20 June 2019. On that day Ms Boscolo applied for an adjournment of the respondent’s application, which was refused for reasons including:

1. The Tribunal agreed that there was urgency in the application. The material tendered by the Landlord and the tenant (in SH19/16936) support the prima facie finding that the rental premises are unsafe and a fire hazard and the Tribunal should not delay in finalizing the matter.

…

3. The basis for the adjournment did not outweigh these factors which heavily supported the hearing proceeding. The [tenant’s] main argument for adjourning was her difficulty in speaking and thus presenting her case. As will be plain from the recording of the hearing, the tenant had no apparent issue using her voice. It was clear and loud and did not sound strained or weak. The tenant held the floor for the majority of the hearing which lasted for several hours, even after her son arrived and was granted leave to speak for her.

9. At the same time, the Tribunal adjourned Ms Boscolo’s cross-application to allow her to file evidence in support of it. The Housing Corporation’s application then proceeded and orders were made terminating the tenancy agreement with effect on 25 June 2019, and that possession be given to the landlord on that day. The execution of that second order was suspended until 28 June 2019.

10. In its reasons, the Tribunal noted that Ms Boscolo did not contest the validity of the termination notice. The Tribunal found that the premises were “uninhabitable” including because:

There is no working toilet at the premises. There [are] no working taps to deliver water to the downstairs of the premises. The premises are overrun with rubbish and access is an issue and the property poses a significant fire hazard.

11. There was no suggestion in the evidence or argument before the Tribunal that the state of disrepair of the premises was itself due to some act or omission of the Housing Corporation, or for that matter, of Ms Boscolo. It was however maintained, including by Ms Boscolo’s cross-application, that the Housing Corporation was required to repair the premises. As to that, the Tribunal found:

There is an abundance of evidence, both in the [Housing Corporation’s folder of evidence] and the earlier proceedings, that the Landlord has difficulty accessing the property due to the tenant’s refusal to allow access. This means that the premises cannot be rendered safe whilst the tenant resides in the premises, and that the repairs cannot be carried out immediately which is required to make them safe (let alone habitable).

12. Earlier in its reasons the Tribunal referred to an email that detailed “the efforts the Landlord has gone to … fix the extensive issues with the property, such as restoring function to the toilet, water service and cooking facilities”. Later, the Tribunal found that “the Landlord has made extensive efforts to repair the premises, and when the premises have become too dilapidated and dangerous, [has] made efforts to relocate the tenant in the same area zone as the current property”. Although the Tribunal did not make a finding in express terms that the premises were not uninhabitable as a result of any breach of an agreement, its reasons make clear that it was satisfied that was the position.

13. On 30 July 2019, Ms Boscolo appealed from the Tribunal’s decision to an Appeal Panel of NCAT (Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), ss 32, 80, 81). Her grounds were that the Tribunal “did not take into account the appellant’s grounds for compensation” and that her submissions “were presented on the spur of the moment and under duress as the appellant was ill and in no physical position to present her case”. At a directions hearing on 6 August 2019, Ms Boscolo was given leave to be legally represented in pursuing that appeal. At a directions hearing two days later, the order for possession was suspended until 17 September 2019, the date fixed for the hearing of the appeal, on condition that the appellant move from the Campbell Street premises to premises in Mitchell Street, Glebe. Ms Boscolo did not vacate the premises or comply with the separate directions made for the provision of evidence and written submissions. On 4 September 2019, Ms Boscolo sought an extension of the time in which to comply with those directions so as to enable her “to seek legal assistance to prepare my submissions”. In her statutory declaration of 4 September 2019 in support of that application, Ms Boscolo advised that Ms Kennedy, a solicitor at Redfern Legal Centre, was “ill and not in the office”. That extension of time was not granted, there being no explanation for why Ms Boscolo apparently did not seek assistance from Redfern Legal Centre until 4 September 2019, and after her evidence and written submissions were due on 30 August 2019.

14. The internal appeal was heard on 17 September 2019. At the commencement of argument, Ms Boscolo, assisted by her adult son, sought an adjournment to enable her to apply for legal aid. Her statutory declaration of 17 September 2019 sworn in support of that application claimed that for the past three weeks she had been attempting unsuccessfully to contact Ms Kennedy, had been advised to make an urgent application for legal aid, had done so, and now requested an adjournment “in order for me to be legally represented”.

15. After hearing argument from Ms Boscolo, and her son, in support of that application the Appeal Panel dismissed it for the following reasons: first, it being agreed by on both sides that the premises were “uninhabitable”, that the question of their continued occupation should be dealt with without further delay; secondly, that any delay of the proceedings would only be likely to add to the costs of the parties without addressing the ongoing risks to Ms Boscolo and her daughter from living in the uninhabitable premises; thirdly, that there was no evidence as to when Legal Aid was approached, what their current attitude was, and as to when they were likely to make a decision, leaving “vague and up in the air” the utility of granting an adjournment; and fourthly, that the Housing Corporation had indicated there were alternative premises available for Ms Boscolo to move into immediately, allowing for the existing premises to be repaired and refurbished so as to give her “an opportunity to return”. Finally, the Appeal Panel recorded that although Ms Boscolo because of her “condition” was “at some disadvantage herself”, it was also able to hear from her son who had provided “an insight into his mother’s condition”.

16. The Appeal Panel then addressed the three grounds of appeal argued by Ms Boscolo and her son. The first was that the Tribunal had erred in not taking into account or determining Ms Boscolo’s claim for compensation. As the Appeal Panel correctly observed, that claim for compensation had not been determined, and the fact that it had not been determined was not relevant to the decision under appeal which concerned the termination of the tenancy. The second was that Ms Boscolo had been denied procedural fairness by being forced to conduct the hearing before the Tribunal when she was not well. The Appeal Panel rejected this ground on the basis of the Tribunal’s finding that Ms Boscolo was not handicapped in the presentation of her argument “for the majority of the hearing which lasted for several hours”, the factual correctness of that assessment not being challenged.

17. The third ground, raised for the first time during the hearing, was that because the Housing Corporation was in breach of the tenancy agreement by reason of its failure to repair, s 109 did not apply. The Appeal Panel dismissed that argument, noting that it had not been made before the Tribunal, and concluding in any event that, as made, it was not supported by the findings of the Tribunal that Ms Boscolo’s refusals to allow access prevented the carrying out of any repairs, her argument being that the premises were uninhabitable due to breaches of the landlord’s obligation to repair. In the result, the Appeal Panel dismissed the appeal, lifted the stay on the order for possession and extended the period during which the respondent could apply for a warrant for possession until 17 October 2019 (RT Act, s 121(3)).

18. Ms Boscolo then brought the application for leave to appeal to the Supreme Court (CAT Act, s 83(1)), which was summarily dismissed by the primary judge. The two proposed grounds of appeal were (1) that the Appeal Panel had erred in rejecting her argument that s 109 did not apply and (2) that she had been denied procedural fairness and the opportunity to be legally represented by the refusal of her application for an adjournment. That application first came before the primary judge on 24 September 2019, in the context of Ms Boscolo’s urgent ex parte application for a stay of execution of a warrant for possession issued under RT Act, s 121.

19. His Honour granted a stay of execution until 10am on 27 September 2019 and re-listed the proceedings at 10am on 26 September 2019.

20. At that time the Housing Corporation moved for the lifting of the stay of execution and summary dismissal of the Summons seeking leave. The primary judge acceded to those applications. The only ground arguably involving a question of law that was relied on before his Honour was that Ms Boscolo had been “denied procedural fairness” by the Appeal Panel. The primary judge considered that contention had “negligible prospects of success”. We agree. On 6 August 2019, Ms Boscolo was permitted to be legally represented in her appeal. At the same time she was aware that appeal was being treated by both parties as urgent and had been fixed for hearing on 17 September 2019. She was assisted on the hearing of the appeal by her son and both were given and exercised the opportunity to make submissions in support of the adjournment application and the appeal. We also consider that the Appeal Panel’s discretionary decision not to grant that adjournment does not reveal any error of law.

21. In her appeal in this Court, Ms Boscolo also maintained that the Appeal Panel had erred in not holding that s 109 did not apply, because of breaches by the respondent of its covenant to repair. That argument involves a question of fact which cannot be agitated on an appeal to the Supreme Court under CAT Act, s 83(1). In any event it was open to the Appeal Panel to conclude, as it did, that there could not have been any breach of the respondent’s obligation to repair in view of the evidence before the Tribunal.

22. For these reasons the primary judge did not err in summarily dismissing the Summons for leave to appeal on the basis that it did not have any realistic prospects of success. For that reason, we refused leave to appeal to this Court from that decision.

23. Ms Boscolo contended that an order that she pay the respondent’s costs should not be made, because it would cause her financial hardship and because she was justified in bringing the proceedings. Neither of these “reasons” displaces the application of the ordinary rule that costs follow the event. Applying that rule, we also ordered that she pay the respondent’s costs of the Summons.

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Decision last updated: 10 October 2019