Halil v NSW Land and Housing Corporation

[2022] NSWCATCD 220

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Halil v NSW Land and Housing Corporation [2022] NSWCATCD 220

Hearing dates:

On the papers

Date of orders:

24 October 2022

Decision date:

24 October 2022

Jurisdiction:

Consumer and Commercial Division

Before:

G Sarginson, Senior Member

Decision:

1. The time period to file the reinstatement application in Matter RT 22/42907 is extended to 26-Sep-2022.

2. The application to extend time for the set aside application in Matter SH 22/42909 is refused.

3. The application in Matter SH 22/42907 to set aside the orders of the Tribunal dated 12-Sep-2022 is dismissed.

4. The stay of the orders of the Tribunal dated 12-Sep-2022 in Matter SH 22/13261 are lifted.

5. The application in Matter RT 22/42899 to re-instate the proceedings dismissed by the Tribunal for non-appearance on 12-Sep-2022 is granted.

6. The reinstated proceedings in Matter RT 22/16245 are to be set down for a final hearing at a date to be allocated by the Tribunal Registry. No further documentary evidence is to be filed and served by the parties unless the Tribunal grants leave to do so.

Catchwords:

LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Social housing---Termination for non-payment of rent---Ex parte decision---Set aside application---Extension of time---Whether time extended---Whether decision should be set aside

LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Social housing---State of repair of premises---Tenants application for rent reduction and compensation---Dismissal of proceedings for non-appearance---Reinstatement of proceedings---Extension of time---Whether time should be extended and proceedings be reinstated---s 55 (2) Civil and Administrative Tribunal Act 2013 (NSW)

Legislation Cited:

Civil and Administrative Regulation 2022 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW

Housing Act 2001 (NSW)

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Cases Cited:

Bryan v Gorgievski [2015] NSWCATAP 186

David v Langman [2021] NSWCATAP 360

Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65

Herbert v NSW Land and Housing Corporation [2019] NSWSC 1703

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

King v NSW Land and Housing Corporation [2022] NSWCATAP 165

MPP Property Pty Ltd v Soliman Hospitality Pty Ltd [2021] NSWCATAP 90

Seymour v Wu [2021] NSWCATAP 289

Wallace v Price [2017] NSWCATAP 151

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Hifsiye Halil (Applicant)

NSW Land and Housing Corporation (Respondent)

Representation:

H. Halil, Self-Represented (Applicant)

M. Parkinson, Client Service Officer (Respondent)

File Number(s):

SH 22/42907 and RT 22/42899

Publication restriction:

Nil

REASONS FOR DECISION

1. The dispute involves a social housing tenancy. Ms Halil is the tenant. NSW Land and Housing Corporation is the landlord.

2. In 2022 both parties commenced proceeding against each other in the Tribunal.

3. In Matter SH 22/13261 the landlord sought orders for termination and possession due to rent arrears. In Matter RT 22/16245 (erroneously filed as a private residential tenancy matter rather than a social housing matter, but this issue has no effect on the jurisdiction of the Tribunal), the tenant sought a rent reduction on the basis the property was wholly or partially uninhabitable or that the landlord had failed to keep the property in a reasonable state of repair. Matter RT 22/16245 was a reinstatement of 2021 proceedings that had previously been dismissed and reinstated.

4. Both matters were listed together for a special fixture hearing on 12 September 2022. The tenant did not appear at the hearing on 12 September 2022. The Tribunal made orders to terminate the residential tenancy for non-payment of rent (in Matter SH 22/13261). The Tribunal gave extensive written reasons.

5. The Tribunal also dismissed the tenant’s application for non-appearance under s 55 (1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW) (‘the NCAT Act’)

6. There are two applications for determination by the Tribunal. Matter SH 22/42907 is the tenant’s application to set aside the termination and possession orders made on 12 September 2022 under Cl. 9 (1) (b) of the Civil and Administrative Regulation 2022 (NSW) (‘the NCAT Regulation’). Matter RT 22/42899 is the tenant’s application to reinstate her proceedings against the landlord seeking a rent reduction. The application to reinstate the tenant’s proceedings is made under s 55 (2) of the NCAT Act.

7. The orders for termination and possession relevantly:

1. Terminated the tenancy for non-payment of rent (order 1).

2. Found the tenant had frequently failed to pay rent under s 89 (5) of the RT Act (order 2).

3. Suspended the date of vacant possession to 10 October 2022 (order 4).

8. The landlord opposes the set aside application.

9. The application to set aside the orders has been made out of time.

10. The set-aside application was filed on 26 September 2022. The tenant posted the set-aside and reinstatement application on 23 September 2022, but the documents were not received by the Tribunal Registry with payment of the filing fee until 26 September 2022.

11. In the set aside application, the applicant refers to wanting certain information contained in the medical certificate and report relied upon (including details of the condition, treatment, and name of her doctor) not provided to the landlord or published. In substance, this is an application for a non-publication order under s 64 of the NCAT Act.

12. The Tribunal is not satisfied that it is appropriate in the circumstances of the matter to make such an order, in circumstances where it is the tenant who bears the onus of satisfying the Tribunal that the legal criteria to set-aide the landlord’s proceedings and re-instate her proceedings have been met. Procedural fairness and the principle of open justice requires that the landlord know and have an opportunity to meet the evidence relied upon by the tenant in the applications, and it is not in the interest of justice for the Tribunal to make an order under s 64 of the NCAT Act.

13. Under Cl. 9 (3) of the NCAT Regulation, the set-aside application must be filed within 7 days from the date the decision was made, unless the Tribunal extends time under s 41 of the NCAT Act. The application to reinstate the tenant’s application has also been made out of time.

14. In accordance with the set-aside and reinstatement application process, the Tribunal through correspondence gave both parties an opportunity to make a written submissions on the set aside application and reinstatement application. The Tribunal also stayed the orders for termination and possession until the set-aside application had been determined.

15. The Tribunal is satisfied that the time for filing further written submissions has expired.

16. By reason of Cl. 9 (8) of the NCAT Regulation, an oral hearing is not required to determine the set aside application. The Tribunal is satisfied that an oral hearing should be dispensed with under s 55 (2) of the NCAT Act in respect of the reinstatement application.

17. By way of background, the tenant is a social housing tenant. The tenant’s husband was the tenant from 2001 until 2019. On 1 April 2019 a residential tenancy agreement was entered into between the tenant and the landlord.

18. The tenant is 71 years old and receives an aged pension.

19. The tenant’s rent subsidy was originally cancelled by NSW Land and Housing Corporation in January 2021 under s 57 of the Housing Act 2001 (NSW) on the basis of tenant failing to disclose that her children were living at the premises. The landlord retrospectively adjusted the tenant’s rent and determined the tenant should pay market rent for the premises of $435 per week. By reason of the rent subsidy cancellation, the tenant had rent arrears in excess of $30,000. A second decision to cancel the rent subsidy was made in February 2021.

20. The tenant appealed the rent subsidy cancellation decisions to the Housing Appeal Committee (after an internal review was conducted by the landlord that affirmed the decisions).

21. On 1 April 2021 the Housing Appeal Committee found that the decision to cancel the tenant’s rent subsidy was correct as it was satisfied on the balance of probabilities that the tenant’s children had been living at the premises as unauthorised occupants since March 2019, but that the officer of the landlord who made the original decision to apply a rent subsidy adjustment did not have appropriate delegated authority to make the decision. By reason of the lack of delegated authority, the original decision to apply a rent subsidy arrears debt was stated to be invalid, but the decision to cancel the tenant’s rent subsidy in February 2021 was found to be valid.

22. In August 2021 the landlord wrote to the tenant stating that on the basis of the Housing Appeals Committee recommendation the cancellation of the rent subsidy would take effect from 18 January 2021 with market rent of $435 per week being charged. Certain arrears prior to 18 January 2021 were cancelled by reason of the Housing Appeals Committee recommendation.

23. On 6 December 2021, the tenant filed proceedings in the Tribunal in Matter RT 21/49869 seeking a rent reduction and other compensatory orders due to the alleged condition of the premises and failure to repair. The tenant also sought an order under s 115 of the RT Act to declare a termination notice invalid, but the landlord did not ultimately proceed on such a notice.

24. The landlord issued to the tenant a termination notice for non-payment of rent on 21 March 2022.

25. The landlord filed proceedings in the Tribunal seeking termination for non-payment of rent under ss 87 and 89 (5) of the Residential Tenancies Act 2010 (NSW) (‘the RT Act’) on 25 March 2022 in Matter SH 22/13261.

26. At the time that the matter was heard on 12 September 2022, according to the evidence contained in the landlord’s rent ledger, the tenant was 484 days in arrears of rent and owed the landlord $27,330.18 in rental arrears.

27. After various interlocutory hearings, both applications were listed before the Tribunal for a three day hearing commencing on 12 September 2022. A notice of hearing was sent to the parties on 20 July 2022.

28. On 24 May 2022 the tenant filed a large bundle of documents with the Tribunal. Those documents involve the tenant’s claim for a rent reduction (and, further, compensation for mould damaged property and other damages and compensation) in the tenant’s proceedings against the landlord.

29. On 7 June 2022 and 29 July 2022 the landlord filed documents in the Tribunal involving the landlord’s application for termination and possession; and in response to the tenant’s claim for a rent reduction and compensation.

30. On 5 September 2022 the tenant wrote to the Tribunal seeking an adjournment of the proceedings. The grounds for seeking an adjournment were summarised as follows:

1. The landlord had failed to follow Tribunal procedural directions in that they filed documents outside the timetable set by the Tribunal.

2. The landlord’s actions resulted in the tenant not having access to legal representation. The tenant sought additional time to obtain legal representation and make an application for Legal Aid.

31. The Tribunal wrote to the parties on 7 September 2022 advising that the application for an adjournment would be considered at the hearing of the matter on 12 September 2022.

32. The tenant again wrote to the Tribunal on 9 September 2022 seeking an adjournment of the following grounds:

1. Medical grounds preventing her from attending the hearing.

2. The tenant had made an application for a Summons to be issued for documents.

3. The landlord has filed and served documents in contravention of Tribunal orders made on 10 May 2022.

33. Attached to the tenant’s documents was a medical certificate from Dr Kosgallana dated 7 September 2022 which states as follows:

“This is to support Mrs Halil on going medical issues would affect tribunal hearing coming Soon (sic). She was in Westmead hospital recently due to medical illness and unable to prepare for on coming hearing. I strongly support postponing the hearing to a later day once she recovered from medical issues”

34. On 9 September 2022, the Tribunal refused the request for an adjournment and gave the following reasons:

A prior adjournment application by the tenant was considered and refused on 7 September 2022. The tenant has again sought an adjournment. This time the tenant seeks an adjournment of a 3 day hearing commencing 12 September 2022 based upon a medical certificate and seeking to issue a summons.

The tenant’s attention in respect of seeking an adjournment based upon medical reasons, as supported by her Doctor’s letter submitted in support of the adjournment application, is drawn to MPP Property Pty Ltd v Soliman Hospitality Pty Ltd [2021] NSWCATAP 90 ( 12 April 2021).

As previously advised the prior application for an adjournment shall be considered at the hearing on 12 September 2022. The Tribunal is satisfied that this application should follow the same course and shall be considered at the hearing on 12 September 2022. If the adjournment application is refused, the hearing will proceed on 12 September 2022. This is not an application that can be appropriately and fairly dealt with on the basis of the written submission of the party prior to 12 September 2022.

The matter remains listed on the above date and your attendance at the hearing is required.

35. The tenant’s nephew telephoned the Tribunal Registry on the morning of the hearing to advise that the tenant was unwell and was unable to attend the hearing. The tenant’s nephew also stated that the tenant had applied for assistance from NSW Legal Aid and was awaiting a decision. The tenant’s nephew stated the tenant was applying for an adjournment.

36. The tenant did not attend the hearing; nor seek to appear by telephone or Audio-Visual Link. The tenant also did not arrange for another person to represent her at the hearing.

37. On 12 September 2022 the Tribunal refused the adjournment application and proceeded to make orders terminating the tenancy and giving vacant possession to the landlord. The Tribunal also dismissed the tenant’s application against the landlord for-non-appearance.

38. The Tribunal’s decision of 12 September 2022 contains comprehensive and extensive written reasons setting out why the Tribunal refused to adjourn the hearing of 12 September 2022 and why the Tribunal was satisfied the tenancy should be terminated.

39. On 26 September 2022 the tenant filed a set aside application. Attached to the set aside application was a new medical certificate or report dated 21 September 2022 by Dr Kosgallana which states in part as follows:

Mrs Halil has been suffering from (medical condition) for some time and had acute worsening recently required admission to Westmead Hospital. She was commenced on (medication) since.

(medical condition) causes muscle weakness and fatigue, in addition prednisolone (sic) also contributes to the symptoms. She is under the care of Westmead Neurology for this condition. Muscle weakness contributes to difficulty in walking speaking etc and affects general daily functions.

The illness has prevented her attending the hearing on 12 September and still finds it difficult to manage her self (sic).

40. The landlord’s set aside submissions opposes the set aside application. In summary the landlord states:

1. A copy of the Tribunal orders made on 12 September 2022 were hand delivered to the tenant on 13 September 2022. The application to set aside is out of time.

2. The most current medical certificate or report of Dr Kosgallana provided by the tenant does not address the necessary criteria as set out in MPP Property Pty Ltd v Soliman Hospitality Pty Ltd [2021] NSWCATAP 90.

3. The tenant has never filed any evidence in response to the landlord’s termination application which was initiated in February 2021 proceedings and filed a second time in March 2022.

4. The tenant has only ever appeared in one previous hearing. The landlord believes that the tenant is seeking to further delay proceedings.

5. The tenant has previously had legal representation from Western Sydney Tenant’s Advice who ceased to act because they were unable to contact the tenant. The tenant was also represented by NSW Legal Aid who are no longer representing her. The tenant had been afforded every opportunity and procedural fairness through the history of the application to seek legal advice.

6. The tenant’s rent subsidy was cancelled in early 2021. The tenant has never made any attempt to either address the cancellation by either lodging a new subsidy application or alternatively contacting the respondent’s representative despite repeated requests in writing and call notes left at the property.

41. The landlord submits that the circumstances remain the same and that the grating of the set aside application would not bring about a different outcome.

42. Submissions in reply were received from the tenant on 13 and 14 October 2022 in addition to the documents and submissions contained in the set-aside application.

43. The submissions can be summarised as follows:

1. The tenant disputes receiving a copy of the orders made by the Tribunal on 12 September 2022.

2. The tenant states that had she been present at the hearing she would have referred to her attempts to communicate/resolve the debt issues with the landlord.

3. The tenant sets out her litany of complaints about the conduct of the landlord. The tenant also refers extensively to the condition of the allegedly poor condition of the property.

4. The tenant disputes that she failed to engage with Western Sydney Tenant’s Advocacy.

5. The tenant disputes that she should pay market rent for the property.

CONSIDERATION

44. As discussed previously, the set-aside application is out of time. The Tribunal regards it as appropriate to consider the merits of the set-aside application if it had been filed within time; and then consider whether time should be extended under s 41 of the NCAT Act.

Principles Applicable to the Set Aside Application

45. Principles applicable to set-aside applications are set out in in Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 and Bryan v Gorgievski [2015] NSWCATAP 186 (‘Gorgievski’). The criteria are as follows:

1. Was the decision made in the absence of the party?

2. If so, did the absence of the party result in their case not being adequately put to the Tribunal?

3. If so, should the Tribunal exercise its discretion to set aside the decision? In this regard, the key issue is whether there is “a real likelihood it would be unjust to let the decision sought to be set aside stand” (Gorgievski at [35])

46. The decision of 12 September 2022 was clearly made in the absence of the tenant. The tenant was advised on two occasions prior to the hearing that her request for an adjournment would be considered by the Tribunal at the hearing. Despite being so advised, the tenant failed to attend the hearing. No explanation has been provided as to why she did not make a request to attend by telephone or video on the morning of the hearing, even taking into account the medical evidence that has been provided in the set aside application.

47. In the set aside application the tenant has failed to establish how the decision of the Tribunal would have been any different had she been able to attend.

48. The evidence before the Tribunal on 12 September 2022 was that the tenant was $27,330.18 in arrears of rent. That equates to 484 days in arrears of rent. The Tribunal’s reasons of 12 September 2022 state that the tenant “continues to pay a reduced amount which means the arrears continue to escalate”. There is no information in the set aside application to indicate it is arguable the landlord’s rent ledger as evidence before the Tribunal on 12 September 2022 was inaccurate, or that evidence of the landlord as to what amounts of rent the tenant had paid was incorrect.

46. The tenant had not been successful in her application before the Housing Appeals Committee other than on a limited basis. The Tribunal also had clear evidence on 12 September 2022 that the tenant had not provided any further information to support a fresh rent subsidy, and the information in the set-aside application and submissions does not indicate that it is arguable that the evidence referred to in paragraph [28] of the Tribunal decision of 12 September 2022 is incorrect.

47. The Tribunal has no power to go behind the decision of the landlord to determine the amount of rent that is payable on premises or to set the rent.

48. The Tribunal has no power to review a decision of the Housing Appeals Committee; and the decision of the landlord to cancel or vary a rent rebate allows the rebate amount to be considered as rent arrears (s 154A of the RT Act; Herbert v NSW Land and Housing Corporation [2019] NSWSC 1703). The tenant has not put forward any evidence in her submissions as to entering into a payment plan with the landlord to pay arrears; or had offered to pay arrears. Rather, her position was that the rental subsidy should not have been cancelled; she did not accept that decision; and the condition of the property justified the tenant not paying market rent or being retrospectively adjusted due to the condition of the property.

49. The tenant makes numerous complaints regarding the condition of the property in her submission. The obligation to pay rent is independent of the landlord’s obligations under a residential tenancy agreement to maintain the premises fit for habitation and in a reasonable state of repair (David v Langman [2021] NSWCATAP 360; Seymour v Wu [2021] NSWCATAP 289).

50. The unilateral withholding of rent is not a remedy available to a tenant as a justification for rent arrears or the failure to pay rent.

51. Despite the voluminous material provided by the tenant, the tenant has not appropriately identified or specified what other evidence would have been put or produced at the hearing that would have resulted in the Tribunal making a different decision.

52. The Tribunal’s reasons of 12 September 2022 at paras [25]-[33] set out in detail why the Tribunal was satisfied in all the circumstances that the breach of the residential tenancy agreement by reason of non-payment of rent was sufficiently serious in the circumstances of the matter to justify termination of the tenancy. The Tribunal found that the notice to terminate was valid and that the Tribunal had jurisdiction under the RT Act. The Tribunal considered the provisions of s 154E of the RT Act in detail. The Tribunal also considered the age; medical issues; and risk of homelessness to the tenant should the tenancy be terminated (in particular, at para [31] of the decision). The reasons clearly show the Tribunal considered all relevant matters under s 87 (4) and 154E of the RT Act in determining that the breach of the agreement for rent arrears was sufficient to order termination of the tenancy (King v NSW Land and Housing Corporation [2022] NSWCATAP 165).

53. The medical certificate of Dr Kosgallana dated 21 September 2022 was obtained after the hearing, so that was not evidence that could have been put before the hearing had the tenant appeared on 12 September 2022.

54. In any event, the matters referred to in that report, even if the tenant had appeared at the hearing and given oral evidence about her health condition (or had further medical evidence to submit to the hearing and obtained leave to do so) would not have changed the decision to terminate the tenancy or the date of vacant possession due to hardship to the tenant.

55. There is also no prospect on the evidence that the Tribunal would have exercised its discretion to make a specific performance order for the payment of rent arrears by instalments rather than the termination of the tenancy.

56. The Summons to Produce Documents the tenant proposed to obtain on landlord also makes no difference. The tenant has ample opportunity to obtain a Summons to Produce Documents in the proceedings, and there is nothing in the set-aside application or submissions to establish what difference any documents produced under Summons would have made to the decision. That issue is also deal with in the reasons of the Tribunal at para [21].

57. The assertion by the tenant that she would have made a submission that the landlord’s documents had not been served is not a matter that would have made any difference had she been present at the hearing on 12 September 2022 and made that submission. The landlord asserted that its documents had been filed and served. It was abundantly clear for a long period of time that the landlord was seeking to terminate the tenancy for non-payment of rent and the position of the landlord regarding rent arrears. The Tribunal clearly accepted on 12 September 2022 that the landlord’s documentary evidence in the application for termination of the tenancy had been filed and served. The tenant never disputed the information contained in the landlord’s rent ledger was accurate, in the sense of claiming to have made additional rent payments that were not reflected in the ledger.

58. The Tribunal must be satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. The applicant has not provided any additional material to satisfy the Tribunal that her absence has resulted in her case not being adequately put to the Tribunal.

59. Even if the Tribunal is wrong in this finding, in exercising its discretion the Tribunal refuses to set aside the Orders made by the Tribunal on 12 September 2022. As discussed previously, the landlord has an overwhelmingly strong case for the termination of the tenancy (including an order under s 89 (5) of the RT Act) due to non-payment of rent. In those circumstances, there is not a real likelihood it would be unjust to let the decision of 12 September 2022 to terminate the tenancy stand.

60. The Tribunal is not satisfied that the requirements of Clause 9 (1) ( b) of the NCAT Regulation are satisfied and the, discretion whether or not to set aside the original decision is not enlivened. The set-aside application is dismissed. It follows that the stay of the orders made on 12 September 2022 for termination and possession are lifted. The landlord may take appropriate measures to enforce those orders if it chooses to do so.

61. For the sake of completeness, the Tribunal notes that it has considered all of the matters referred to in the set-aside application and submissions raised by the tenant. Many of the matters raised are not relevant, or have minimal relevance, to the applicable legal principles and do not require detailed discussion in the reasons. The reasons for this decision focus upon the salient matters raised by the tenant in support of the set aside application.

62. The Tribunal notes that at various times in both Matter RT 22/16245 and SH 22/13261 the tenant has referred to the landlord’s notice to terminate being retaliatory. There is nothing to indicate the tenant has any arguable basis for the notice to terminate for non-payment of rent dated 21 March 2022 being set aside on the basis it is retaliatory under s 115 of the RT Act, even if such issue was considered to form part of the proceedings brought by either party.

Extension of Time for the Set-Aside Application

66. The principles applicable to whether time should be extended to appeal are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] as follows:

The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:

…

(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

(a) The length of the delay;

(b) The reason for the delay;

(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d) The extent of any prejudice suffered by the respondent (to the appeal),

- Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and

(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].

67. The Tribunal accepts that the delay is not lengthy (7 days beyond the last date for filing the set aside application).

68. The salient reasons given explaining the delay are that the tenant need to obtain an updated medical certificate and the tenant disputes receiving the orders of the Tribunal on 12 September 2022. The Tribunal is not satisfied the tenant’s explanation for the delay is reasonable in all the circumstances.

69. The tenant was clearly aware of the hearing on 12 September 2022 and that the landlord was seeking orders for termination and possession at that hearing. She sought on a number of occasions to adjourn that hearing. Even if her evidence about when she received the Tribunal orders is accepted, the tenant made no effort to contact the Tribunal or the landlord on 12 September 2022 to ascertain what orders had been made and obtain a copy of those orders. The Tribunal notes the submission of the landlord is that it provided a copy of the termination and possession orders of the Tribunal to the tenant’s residence on 12 September 2022 in accordance with the terms of the orders.

70. There is also no reasonable explanation as to why the tenant did not obtain the further medical evidence of Dr Kosgallana and file a set-aside application by 19 September 2022. The tenant also had sufficient time to obtain legal advice. Even if the tenant was waiting for further legal advice, there is no reasonable explanation as to why she did not file the set-aside application by 19 September 2022.

71. There is no prejudice to the landlord if an extension is granted, in the sense of material that would have been available to the landlord in the set aside application had it been filed within time that is not available because the set-aside application was filed on 26 September 2022. However, prejudice is not the only criteria to be considered.

72. As discussed previously, the Tribunal is not satisfied the tenant has an arguable case in the set-aside application. The Tribunal has previously discussed why the tenant’s presence at the hearing (including submissions, evidence, and questioning of the landlord’s representative) would not have changed the inevitable outcome that the tenancy would be terminated due to breach for non-payment of rent, including anything the tenant could have raised in respect of s 87 (4) and 154E of the RT Act.

73. The Tribunal is not satisfied time to file the set-aside application should be extended.

The Application To Re-Instate Matter RT 22/16245

74. Under Reg. 36 of the Civil and Administrative Tribunal Rules 2014 (NSW) (‘the NCAT Rules’) the tenant has 7 days from the date of the decision to file reinstatement application, subject to an extension of time under s 41 of the NCAT Act.

75. The Tribunal has previously considered s 41 of the NCAT Act in the context of the tenant’s set-aside application. The legal principles do not require repetition.

76. However, the matters pertaining to the tenant’s proceedings are different to the matters pertaining to the landlord’s proceedings for termination and possession.

77. The Tribunal is satisfied the tenant has an arguable case in her claims for a rent reduction, compensation, and damages against the landlord due to the alleged failure of the landlord to keep the property in a reasonable state of repair, based on the documentary evidence she has filed. That is an entirely different matter to whether the tenant has an arguable case to oppose the landlord’s proceedings for termination and possession due to rent arrears and non-payment of rent.

78. The Tribunal is satisfied that the time to file the reinstatement application should be extended to 26 September 2022.

79. The test for whether proceedings are reinstated is different to the test as to whether orders are set aside.

80. The applicable principles for whether proceedings should be reinstated under s 55 (2) of the NCAT Act were set out by the Appeal Panel in Wallace v Price [2017] NSWCATAP 151 at [24]-[31]. The relevant considerations are:

1. Whether there is a reasonable explanation for the non-appearance of the applicant at the hearing.

2. Whether discretion should be exercised in favour of the applicant. Relevant factors in exercising the discretion include:

1. The nature of the proceedings and the issues raised;

2. The strength of the applicant’s case in the proceedings that were dismissed for non-appearance and its likelihood of success; and

3. Any injustice to the respondent

81. The documents filed by the tenant on 24 May 2022 regarding her claim for a rent reduction and compensation demonstrate the tenant has an arguable case on the issues of rent reduction and compensation. It is unnecessary to refer in detail to that evidence.

82. There is no injustice to the landlord if those proceedings are reinstated. The fact that the tenancy is terminated does not prevent the Tribunal from considering and determining the tenant’s claim in Matter RT 22/16245, subject to applicable limitation periods. If the tenant’s claim was not reinstated and she filed fresh proceedings, any fresh proceedings for a rent reduction under s 44 (1) (b) of the RT Act would not be within the jurisdiction of the Tribunal, and the tenant’s proceedings would be restricted to compensation and/or damages under ss 187 and 190 of the RT Act.

83. The tenant would also face potential additional issues in fresh proceedings regarding extension of the time to bring proceedings under ss 187 and 190 of the RT Act as set out in Regulation 39 of the Residential Tenancies Regulation 2019 (NSW), subject to s 41 of the NCAT Act.

84. There is nothing to indicate the landlord would face injustice, in the sense of there being evidence no longer available that would have been available had the proceedings been reinstated, or that evidence regarding the condition of the premises; damage to the tenant’s goods; or any other relevant issue will become stale.

85. Further, the Tribunal notes that at para [11] of the Tribunal’s reasons of 12 September 2022 the Tribunal stated that the landlord has acknowledged that the property required repairs; the landlord was ready, willing and able to conduct repairs, but that the tenant has failed to co-operate in regard to access. Whether that is correct, or incurred, and how that affects the claims brought by the tenant, are not matters requiring consideration in the reinstatement application.

86. As previous procedural directions have been made in the tenant’s proceedings against the landlord for rent reduction, damages, and compensation and both parties have filed documentary evidence, it is unnecessary to make any further procedural directions. It is appropriate the Tribunal Registry allocate the tenant’s proceedings a hearing date and notify the parties in due course.

ORDERS

1. The time period to file the reinstatement application in Matter RT 22/42907 is extended to 26-Sep-2022.

2. The application to extend time for the set-aside application in Matter SH 22/42909 is refused.

3. The application in Matter SH 22/42907 to set-aside the orders of the Tribunal dated 12-Sep-2022 is dismissed.

4. The stay of the orders of the Tribunal dated 12-Sep-2022 in Matter SH 22/13261 are lifted.

5. The application in Matter RT 22/42899 to re-instate the proceedings dismissed by the Tribunal for non-appearance on 12-Sep-2022 is granted.

6. The reinstated proceedings in Matter RT 22/16245 are to be set down for a final hearing at a date to be allocated by the Tribunal Registry. No further documentary evidence is to be filed and served by the parties unless the Tribunal grants leave to do so.

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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

Amendments

29 August 2023 - Formatting amendments.

Decision last updated: 29 August 2023