Khanna v Baweja; Baweja v Khanna

[2017] NSWCATCD 8

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Khanna v Baweja; Baweja v Khanna [2017] NSWCATCD 8

Hearing dates:

14 December 2016

Decision date:

01 February 2017

Jurisdiction:

Consumer and Commercial Division

Before:

P French, General Member

Decision:

In matter numbers and RT 16/25681; RT 16/33565; and RT 16/44944 (the proceedings as a whole):

 

1. The tenant, Geeta Khanna, is granted leave to be represented at the hearing by Sanjeev Khanna.

 

2. Sanjeev Khanna’s application pursuant to section 77 of the Residential Tenancies Act 2010 for an order from the Tribunal that would join him as a party to the proceedings is granted.

 

3. The tenant’s application under section 48 of the Civil and Administrative Tribunal Act 2013 for a direction that would require the Divisional Registrar to issue a summons to the landlord is refused.

 

4. The landlord, Jaskeerat Baweja, is to make any application for costs by 13 February 2017 by filing that application with the Divisional Registrar and serving a copy of it on the tenant and Mr Khanna. Any such application must particularise the costs claimed and be supported where possible by evidence of those costs.

 

5. If the landlord makes any application for costs, the tenant and Mr Khanna are to file with the Divisional Registrar and serve on the landlord’s Managing Agent any submission they may wish to make in response by 27 February 2017.

  

6. Any application for costs made by the landlord will then be determined by the Tribunal as presently constituted on the papers after 27 February 2017.

 

In matter numbers and RT 16/25681 and RT 16/33565 (the tenant’s applications):

 

7. The tenant and Mr Khanna’s application for leave to further amend their claims is granted in part so as to allow Sanjeev Khanna to seeks orders from the Tribunal under section 77 of the Residential Tenancies Act 2010 recognising him as a tenant and joining him as a party to the proceedings. This application is otherwise refused.

 

8. Sanjeev Khanna’s application pursuant to section 77 of the Residential Tenancies Act 2010 for an order from the Tribunal that would recognise him as a tenant under the Residential Tenancy Agreement is refused.

 

9. The tenant’s application for an order pursuant to section 44(1)(b) of the Residential Tenancies Act 2010 that the rent payable under the Residential Tenancy Agreement is excessive having regard to the reduction or withdrawal of goods, services or facilities provided with the residential premises, and an order that the rent not exceed a specified amount for a specified period, is dismissed on the basis that it is lacking in substance.

 

10. The tenant’s application for an order pursuant to section 44(1)(a) of the Residential Tenancies Act 2010 for an order that the rent increase served on the tenant by notice dated 16 March 2016 is excessive and that the rent is not to exceed a specified amount from a specified day is dismissed on the basis that it is lacking in substance.

 

11. The tenant’s application for an order pursuant to 187(1)(d) of the Residential Tenancies Act 2010 for an order from the Tribunal that would require the landlord to pay the tenant compensation for damage and loss incurred as a result of the landlord’s breach of the Residential Tenancy Agreement is dismissed on the basis that it is misconceived and lacking in substance.

 

12. The tenant’s application for an order pursuant to section 115 of the Residential Tenancies Act 2010 declaring that the Notice of Termination of the Residential Tenancy Agreement dated 27 June 2016 is of no effect on the basis that it is retaliatory is refused.

 

In matter number RT 16/44944 (the landlord’s application):

 

13. The Residential Tenancy Agreement is terminated in accordance with section 85 of the Residential Tenancies Act 2010 as the landlord has served a 90 day notice for termination of a periodic agreement.

 

14. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.

 

15. The order for possession is suspended until 27 February 2017.

 

16. The tenant shall pay the landlord a daily occupation fee at the rate of $72.85 per day from the day after the date of termination, namely 31 January 2017 until the date vacant possession is given to the landlord.

 17. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.

Catchwords:

RESIDENTIAL TENANCIES – parties to residential tenancy proceedings – where a person claims to be a tenant under a Residential Tenancy Agreement – where it is found that that Residential Tenancy Agreement is a forgery – where it is contended that a person is not entitled to be identified as a landlord under a Residential Tenancy Agreement because he is not the registered proprietor of the land containing the residential premises – where the evidence establishes that the landlord is the registered proprietor of the land containing the residential premises – where it is not necessary in any event that a landlord be a registered proprietor of the land containing residential premises – where it is enough that a landlord has a superior estate in the land

 

- section 44(1)(a) of the Residential Tenancies Act 2010 – application for order that a rent increase is excessive – where the evidence establishes that the rent increase is below the general market level of rents for comparable residential premises in the same locality – where evidence establishes that the landlord’s outgoings have increased - where tenant has failed to establish that there has been any reduction or withdrawal of goods, services, or facilities provided with the residential premises due to the landlord’s failure to carry out necessary repairs – where the tenant has failed to establish that the goods, services and facilities provided with the residential premises, including the accommodation and amenities, do not compare with those available in comparable residential premises rented at a higher rate; where there is no evidence of any improvements to the residential premises carried out by the tenant

 

- section 44(1)(b) of the Residential Tenancies Act 2010 – application for order that the rent payable under the Residential Tenancy Agreement is excessive due to the reduction or withdrawal of goods, services or facilities provided with the residential premises – where evidence does not establish goods, services or facilities have been withdrawn – where Tribunal must determine if goods, services or facilities have been reduced – where Tribunal must determine the impact of any such reduction – where test is practical and not theoretical – where no reduction in the use of the garage due to water seepage is established on the evidence - where landlord has carried out repairs and seeks to replace an old cooktop and oven – where the tenant has unreasonably refused to permit the landlord’s contractor access to the residential premises to do so – where some reduction in security to residential premises is demonstrated on the evidence – where the value of that impact once accounted for does not establish that the rent payable is excessive – where rent payable is significantly below the estimated market rate for the residential premises

 

- section 77 of the Residential Tenancies Act 2010 - application by an occupant to be recognised as a tenant – where sole tenant has not died – where sole tenant remains living at the residential premises – application refused on the basis the Tribunal has no power to order that an occupant be recognised as a tenant in these circumstances.

 

- section 77 of the Residential Tenancies Act 2010 - application by an occupant to be joined as a party to the proceedings – where the Tribunal has broad discretion to join an occupant as a party – principles to be applied – where the guiding principle to be applied in the Tribunal’s practice and procedure is to facilitate the just, quick and cheap resolution of the real issues in dispute – where joinder of the occupant may give rise to further complexity – where joinder of the occupant may elongate the time required to finalise the proceedings - where applicant is person whose interests are affected – where applicant is a proper party – where applicant may not be a necessary party – application granted.

 

- section 85 of the Residential Tenancies Act 2010 – where Tribunal must make a termination order – where Tribunal has discretion to suspend order for possession – principles to be applied – where landlord has a right to recover possession without unreasonable delay – where there is no evidence of a compelling externality requiring the landlord to have possession by a particular date – where the tenant is paying rent in accordance with the Residential Tenancy Agreement – where it is the Christmas/New Year period – where the evidence establishes the tenant and occupant have some health vulnerability – time taken to finalise proceedings - order for possession suspended to end February

 

- section 115 of the Residential Tenancies Act – application for a declaration that a termination notice issued under section 85 of the Act is of no effect because it is retaliatory – where evidence is suggestive of retaliation but not sufficient to found a finding to this effect – where a finding that a landlord has acted in retaliation should not be lightly made – where section 115 is a protective provision against an abuse of power by a landlord – where the landlord is not required to state a ground for termination – where the landlord seeks to recover possession because he has recently married and wants to occupy the residential premises – where, if in the alternative, the termination is retaliatory, the Tribunal would not exercise discretion to declare the termination notice of no effect – where the landlord has a superior estate in the land – where tenant has had an extensive period beyond 90 days to give vacant possession - where evidence establishes a serious breakdown in the relationship between the tenant and occupant of the residential premises and the landlord and the landlord’s Managing Agent – where the tenant refuses the landlord’s contractors access to the residential premises to carry out repairs – where the tenant claims the residential premises are not fit for habitation

 

- section 187(1)(d) and section 190 of the Residential Tenancies Act 2010 – claim for compensation for damage to motor vehicle caused by dimensions of garage and gradient of driveway – where applicant claims that driveway does not comply with the requirements of the Building Code of Australia – where Tribunal’s jurisdiction under the Residential Tenancies Act 2010 does not include enforcement of Building Code of Australia – section 49 of the Residential Tenancies Act 2010 – where evidence does not establish that there is any legal impediment to the occupation of the residential premises as a residence for the period of the tenancy – section 52 of the Residential Tenancies Act 2010 – where the evidence does not establish that the landlord failed to provide the residential premises to the tenant in a state fit for habitation – where the evidence does not establish the landlord has failed to comply with the landlord’s statutory obligations relating to the health or safety of the residential premises – section 63 of the Residential Tenancies Act – where the obligation to maintain the residential premises in a reasonable state of repair does not extend to the demolition and reconstruction of those premises - where there is no breach of the Residential Tenancy Agreement by the landlord in these circumstances – where no damage and loss is proved in any event.

 

PRACTICE & PROCEDURE – section 45 of the Civil and Administrative Tribunal Act 2013 – application for leave to be represented - where a party to a proceeding before the Tribunal has the carriage of their own case – where the Tribunal has discretion to grant leave to a party to be represented by another person – principles to be applied – where there is a reasonable explanation as to why the party cannot attend the Tribunal – where there is evidence that the representative has been granted authority to act on behalf of the party - where the representative has a sufficient knowledge of the subject matter of the proceedings – where there is no evidence that the proposed representative has a separate interest in the proceedings inconsistent or incompatible with the party to be represented - where the conduct of the proposed representative has the potential to add to the complexity and elongate the time required to finalise the proceedings – where proposed representative has demonstrated an inability to cooperate with the Tribunal to give effect to its guiding principle – where this conduct has the potential to create special circumstances exposing the party to a costs order – where the party has full knowledge of this conduct and has acquiesced in it or approved of it – where the proposed representative would be a participant in the proceedings in any event – where a grant of leave would avoid it being necessary to adjourn and allow the proceedings to be brought to finality – leave granted

 

- section 48 of the Civil and Administrative Tribunal Act 2013 – issue of summons – application to Tribunal to give a direction to the Registrar to issue a summons – where the Tribunal has previously refused to direct the Registrar to issue a summons in the same or similar form – where the Tribunal has the power and duty to regulate proceedings before it to prevent an abuse of process – where the person to whom the summons is directed has previously raised extensive objections to the terms of the summons – where the summons is objectionable because several items are not sufficiently particularised – where the summons is objectionable because several items seek production of documents that have no apparent relevance to any issue to be determined in the proceedings and amount to a fishing expedition – where the summons is otherwise objectionable because it serves no legitimate forensic purpose, the documents it seeks to produce already reasonably being in evidence before the Tribunal – application refused

 

- section 53 of the Civil and Administrative Tribunal Act 2013 – application for leave to amend the claim before the tribunal – where the tenant had been directed by the Tribunal twice to particularise her claim but failed to do so – where the Tribunal amended the tenant’s claim pursuant to section 53 in order to set it down for hearing – where Tribunal purported to refuse to grant leave for any future amendment of the claim – where the tenant has persisted in attempts to amend claim up to the hearing – where it is necessary to determine in the interests of justice if leave to further amend the claim should be granted – principles to be applied – explanation for failure to raise the issue earlier in the proceedings – will the applicant lose the opportunity to pursue the claim if leave is not granted? – does the claim have reasonable prospects of success? – desirability of bringing all issues in dispute between the parties to finality - prejudice to the respondent if leave is granted – leave granted in part, otherwise refused

COSTS – section 60 of the Civil and Administrative Tribunal Act 2013 – where the ordinary rule applicable to these proceedings is that each party must bear its own costs of the proceeding unless the tribunal is satisfied there are special circumstances warranting an award of costs – where it may be open to the landlord to argue that the special circumstances exception is established in this case – leave granted to landlord to make an application for costs

Legislation Cited:

Civil and Administrative Tribunal Act 2013
Interpretation Act 1987
Residential Tenancies Act 2010
Residential Tenancies Regulation 2010

Cases Cited:

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Bobolas v Waverley Council [2016] NSWCA 139
Commissioner of Police New South Wales Police Force v Fine 920140 87 NSWLR 1
Commissioner for Railway v Small 91938) SR (NSW) 564
Gallo v Dawson 93 ALR 479
Hadley v Baxendale (1854) 9 Ex 341
Hatton v Attorney-General of the Commonwealth of Australia and Ors [2000] FamCA 892
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Progressive Mailing House P/L v Tabali 91985) 157 CLR 17
Portal Software v Bodsworth [2005] NSW SC 1115 and
Queensland v J L Holdings Pty Ltd (CLR) 189 CLR 146
Roberts v NSW Aboriginal Housing Office [2017] NSW CATAP 9
Trade Practices Commissioner v Arnotts Ltd [1989] FAC 248
Wilson v Chan & Naylor Parramatta Pty Ltd as trustee for Chan & Naylor Parramatta Trust [2016] NSWCATAP 236

Category:

Principal judgment

Parties:

Jaskeerat Baweja (landlord)
Geeta Khanna (tenant)
Sanjeev Khanna (occupant)

Representation:

Sanjeev Khanna - self represented and authorised representative of Geeta Khanna
Paulette Hase, Managing Agent

File Number(s):

RT 16/25681; RT 16/33565; RT 16/44944

Publication restriction:

Nil

REASONS FOR DECISION

1. There are three applications before the Tribunal in these proceedings.

2. The first application in time is an application by Ms Geeta Khanna (tenant) and Mr Sanjeev Khanna (occupant) (together, the tenant and Mr Khanna) for orders of the Tribunal pursuant to section 77 of the Residential Tenancies Act 2010 (RT Act) recognising Mr Khanna as a tenant and joining him as a party to that proceeding; orders pursuant to section 44(1)(a) of the RT Act that a rent increase notified to the tenant on behalf of Mr Jaskeerat Baweja (the landlord) on 10 March 2016 is excessive and for a related order that from a specified day the rent not exceed a specified amount (being the then current weekly rent of $470.00); and, an order pursuant to subsection 187(1)(h) of the RT Act that would require the landlord to comply with a requirement of the RT Act or the Residential Tenancies Regulation 2010 (RT Regulation), being the obligation to maintain the residential premises in a reasonable state of repair, and a purported obligation to ensure that the residential premises in its construction complies with the requirements of the Building Code of Australia. This application was originally made to the Tribunal on 13 April 2016. However, it was dismissed at its first listing on 5 May 2016 because the tenant and Mr Khanna failed to appear at the hearing and provided no explanation for their non-appearance. This Application was subsequently re-registered on 31 May 2016 following a successful application for its reinstatement by the tenant and Mr Khanna (for convenience, this application will be referred to as the tenant and Mr Khanna’s first application).

3. The second application in time is an Application by the tenant and Mr Khanna for the same orders pursuant to section 77 of the RT Act as those sought in their first application. However, additionally, by this Application the tenant and Mr Khanna also seek an order pursuant to subsection 187(1)(d) of the RT Act that would require the landlord to pay them compensation in the amount of $15,000.00 on unspecified grounds; an order pursuant to section 187(1)(f) of the RT Act that would require payment of all or part of the rent payable under the Residential Tenancy Agreement (RTA) to be paid to the Tribunal until their application for compensation is determined; and, an order pursuant to section 115 of the RT Act that would declare a Notice of Termination of the RTA (Termination Notice), dated 27 June 2016, served on them on behalf of the landlord is of no effect on the basis that it is a retaliatory notice. This application was made to the Tribunal on 21 July 2016 (for convenience, this application will be referred to as the tenant and Mr Khanna’s second application).

1. The third application in time is an Application by the landlord for an order from the Tribunal pursuant to section 85 of the RT Act terminating the RTA and giving him possession of the residential premises. This application was made to the Tribunal on 7 October 2016.

Procedural history

5. The tenant and Mr Khanna’s first application came before the Tribunal following is re-registration on 23 June 2016. The tenant and Mr Khanna both attended that listing of the Application in person. Ms Hase, a representative of the landlord’s Managing Agent, attended on the hearing on behalf of the landlord. In accordance with the Tribunal’s usual practice where both parties are present, the Tribunal provided the parties with an opportunity to attempt to resolve the dispute in conciliation with the assistance of a Tribunal conciliator. Those efforts were not successful.

6. When the parties returned to the hearing room, the Tribunal, constituted by Member Marzilli, made orders for the conduct of the Application to hearing and adjourned. Order 2 of the orders made on that occasion amended the tenant and Mr Khanna’s first application as follows (presumably pursuant to the Tribunal’s power under section 53 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) to amend a document filed in a proceeding where it is in the interests of justice to do so):

2. The Application is amended to show that the Applicant is seeking orders that:

(a) the rent increase received by the Applicants on 16 March is excessive;

(b) the rent is excessive;

(c) repairs are required to the premises;

(d) the repair of locks/security at the premises;

(e) compensation for the improvements to the premises that were to be carried out by the Respondent as agreed with the Applicants

The particulars of these items are to be provided by the Applicants as set out in direction 3 below.

7. It is not apparent from the orders the Tribunal made on that occasion if the Applicants’ application pursuant to section 77 of the RT Act for Mr Khanna to be recognised as a tenant was dismissed or if it remained on foot. However, it appears that the Tribunal dealt with Mr Khanna on that occasion on the basis that he was a party to the proceeding.

8. Order 8 of the Tribunal’s orders on that occasion specifically drew the tenant and Mr Khanna’s attention to subsection 44(5) of the RT Act, which sets out the matters the Tribunal may have regard to in determining if a rent increase or rent is excessive. In other words, consistent with its duty pursuant to section 38 of the NCAT Act to ensure that parties to proceedings understand the nature of the proceedings and have a reasonable opportunity to have their submissions considered, the Tribunal alerted the tenant and Mr Khanna to the relevant issues in relation to which it would be appropriate for them to produce evidence.

9. The Divisional Registrar subsequently set the tenant and Mr Khanna’s first Application down for hearing on 9 September 2016 and issued Notices to the parties to that effect.

10. It appears that at the hearing conducted before Member Marzilli on 23 June 2016, the tenant and Mr Khanna foreshadowed in the course of the hearing an intention to apply to the Tribunal for a summons that would require the landlord to produce various documents which they contended were necessary for the proof of their claims. In view of that intention, order 3 of the orders made purports to grant the tenant and Mr Khanna leave to apply for an extension of time for providing the particulars of their claim and their evidence following the return of this summons.

11. On 28 June 2016 the tenant and Mr Khanna applied to the Divisional Registrar for the issue of summonses on the landlord and SNL Gunesekara (the former owner of the residential premises and landlord of the tenant and Mr Khanna). Both summonses were issued by the Registry with a return date of 16 August 2016. The summonses are extraordinary for the breadth and type of documents the tenant and Mr Khanna sought to have produced. This material has little apparent relevance to the issues in dispute in the tenant and Mr Khanna’s claim, as amended by the Tribunal at its first listing on 23 June 2016. On 12 July 2016 the Applicants also applied to the Divisional Registrar for the issue of a summons on Blacktown City Council. The Registry issued this summons, also with a return date of 16 August 2016. Again, the material sought to be produced under the summons has little apparent relevance to the proof of the tenant and Mr Khanna’s claim as it then stood.

12. Blacktown City Council produced documents in response to the summons issued to it on 16 August 2016. At the Return of Summons hearing on 16 August 2016 orders were made providing the parties with access to this material. Neither the landlord, nor Mr Gunesekara, produced documents in response to summonses served on them. On 4 August 2016 the landlord’s Managing Agent wrote to the Divisional Registrar raising objections to various items of information and documents the tenant and Mr Khanna sought to have produced by the landlord. On 15 August 2016 the tenant and Mr Khanna filed their response to these objections. This correspondence was referred to the Member to be dealt with at the Return of Summons hearing, which was conducted before Member McCue. However, these objections were not dealt with on that occasion. Instead, the return date for the summonses issued on the landlord and Mr Gunesekara was extended to 23 August 2016.

13. On 22 August 2016 the tenant and Mr Khanna sought to file with the Divisional Registrar an application for an “amended summons” to be issued to the landlord that would have required the landlord to produce an additional extensive array of information and documents. That application was not processed by the Registry. It was referred for consideration by the Member at the Return of Summons hearing set down for 23 August 2016. The amended summons application is again remarkable for the breadth and nature of the information and documents sought to be produced, most of which appear to have no apparent relevance to the tenant and Mr Khanna’s claim as it then stood.

14. At the Return of Summons hearing the Tribunal, constituted by Member Smith, set the summonses issued on the landlord and Mr Gunesekara aside on the basis that the documents the tenant and Mr Khanna sought to have produced pursuant to those summonses were “irrelevant to the claim that the applicant might properly pursue in this Tribunal.” In this respect the record shows that it emerged at that hearing that the tenant and Mr Khanna were pursuing, or intended to pursue, personal injury claims against the landlord in another jurisdiction. The documents they sought to have produced related almost entirely to that claim, and not to the claim before this Tribunal.

15. At the Return of Summons hearing on 23 August 2016 Member Smith also made Orders in the tenant and Mr Khanna’s substantial application. It removed Mr Khanna as a party to the proceeding on the basis that he is not a tenant. It directed the tenant, Mrs Khanna, to particularise her claim for compensation for alleged breaches of the RTA by the landlord and to file evidence in support of that claim. It vacated the hearing of the tenant and Mr Khanna’s first application set down for 9 September 2016, and directed that the matter not be set down for hearing again until the tenant filed a particularised compensation claim along with the evidence she relied upon in support of that claim.

16. On 21 July 2016, the tenant and Mr Khanna had filed their second Application with the Tribunal. It was first listed for conciliation and hearing on 9 August 2016. However, the tenant and Mr Khanna applied to the Tribunal for an adjournment of that listing which was granted. The Application was then listed for Conciliation and Hearing on 23 August 2016. Mr and Mrs Khanna both attended that listing of the Application. Ms Hase, Managing Agent, attended on behalf of the landlord. Efforts of the parties to resolve the dispute in conciliation with the assistance of a Tribunal conciliator were not successful. When the matter returned to the hearing room, it was adjourned for further directions to a date to be fixed by the Registrar.

17. The tenant and Mr Khanna’s first and second Applications were both then listed for a Directions Hearing on 27 October 2016. By that date the landlord had also made his Application to the Tribunal for a Termination Order. The landlord’s Application was listed for directions at the same time.

18. By letter to the Registrar dated 16 August 2016, filed with the Registry on 22 August 2016, the tenant and Mr Khanna sought to amend their first and second Applications so as to seek the following orders:

(a) An order pursuant to section 77 of the RT Act recognising Mr Khanna as a tenant and joining Mr Khanna as a party to the proceedings;

(b) An order pursuant to section 115 of the RT Act declaring that the Termination Notice dated 27 June 2016 is of no effect on the basis that it is retaliatory;

(c) An order pursuant to section 187(1)(d) of the RT Act that would require the landlord to pay them $15,000.00 in compensation on unspecified grounds;

(d) An order pursuant to section 187(1)(f) that would require that part or all of the rent payable under the RTA be paid to the Tribunal until the landlord complies with his obligations under the RTA and the tenant and Mr Khanna’s claim for compensation is determined;

(e) An order pursuant to section 109 of the RT Act terminating the tenancy on the basis that the RTA has been frustrated because the residential premises are uninhabitable;

(f) An order pursuant to section 187(1)(h) of the RT Act that would require the landlord to comply with the landlord’s general obligations as these are set out in sections 52 and 63 of the RT Act; and

(g) An unspecified order pursuant to section 188 of the RT Act (the Tribunal’s general order making power).

19. It is to be observed that by this document the tenant and Mr Khanna appear to abandon their claim for an order pursuant to section 44(1)(a) of the RT Act that the rent increase notified to them on 16 March 2016 is excessive and an order pursuant to section 44(1)(b) that the rent payable under the RTA is excessive having regard to the reduction or withdrawal of goods, services or facilities provided with the residential premises. It is also to be observed that the amended claim fails to particularise the claim for compensation despite the orders of the Tribunal, constituted by Members Marzilli and Smith, made on 23 June 2016 and 23 August 2016 respectively.

20. At the Directions Hearing conducted on 27 October 2016, the tenant and Mr Khanna both attended in person. Ms Hase, Managing Agent, attended on behalf of the landlord. The Tribunal, constituted by Member Sarginson, directed that the tenant and Mr Khanna’s first and second applications, and the landlord’s application, be set down for hearing and that they be listed together. The Tribunal also purported to grant the tenant leave to amend the her first and second applications to claim the following orders:

(a) an order under section 115 of the RT Act that the notice to terminate is retaliatory;

(b) an order under section 44(1)(a) of the RT Act to set aside a proposed rent increase;

(c) an order under section 44(1)(b) of the RT Act claiming a $300.00 per week rent reduction for a 12 month period from 30 January 2015 in respect of alleged failure to keep the premises in a reasonable state of repair in respect of (i) failure to repair gas stove; (ii) failure to repair door locks; (iii) failure to conduct repairs after flooding to garage in 2015.

(d) A claim for compensation under section 187 of the RT Act for the tenant’s alleged inability to use the driveway of the premises and a claim that such an inability caused damage to the tenant’s car which was parked on the street.

21. In the reasons it gave for this amendment, the Tribunal stated:

The tenant is not granted leave to further amend the claim because:

(a) Orders of Member Smith dated 23 August 2016 were not complied with.

(b) The tenant (through her husband who is not a party to the proceedings) has sent numerous proposed amended applications, many of which have sought orders that are either outside the jurisdiction of the Tribunal or misconceived;

(c) At the directions hearing on 27 October 2016 the tenant identified the above claims as constituting the claims that the tenant wanted to pursue in the proceedings against the landlord.

(d) In accordance with section 36 of the Civil and Administrative Tribunal Act 2013 in circumstances where proceedings between the parties have been on foot since June (sic) and there has been a hearing date vacated it is imperative that the real issues in dispute be set out in these directions.

22. Although the amendment of the claim is styled as a grant of leave, it appears to me from the record that this was really an exercise of the Tribunal’s power pursuant to section 53 of the NCAT Act to amend these applications, which Member Sarginson considered necessary in the interests of justice.

23. The Tribunal gave orders that required the tenant to file and serve her evidence on or before 7 November 2016 and for the landlord to file and serve his evidence on or before 16 November 2016.

24. Despite the Tribunal’s attempt to define the issues in dispute, on 7 November 2016, 15 November 2016, 1 December 2016, 13 December 2016, and at the commencement of the hearing on 14 December 2016 the tenant and Mr Khanna filed or sought to tender further documents that traverse a number of matters that are not before the Tribunal pursuant the tenant’s claim as amended by Member Sarginson. These applications and submissions are difficult to follow in places.

25. However, in summary, the tenant and Mr Khanna re-agitate their application pursuant to section 77 of the RT Act for Mr Khanna to be recognised as a tenant and to be joined as a party to the proceedings. They also make a claim for the repayment of the whole of the rent paid by the tenant in the course of the tenancy on the basis that the landlord is not the registered proprietor of the residential premises and was therefore not entitled to collect rent in respect of the occupation of the premises by the tenant. The tenant and Mr Khanna also appear to seek an order from the Tribunal for compensation equivalent to all the rent they have paid in the course of the tenancy on the basis that the residential premises was never fit for habitation. The tenant and Mr Khanna also ask the Tribunal to review the orders made in the conduct of the proceedings to date removing Mr Khanna as a party to the proceeding, setting aside the summons the issued on the landlord and Mr Gunesekara, and amending their first and second applications so as to limit the issues for determination by the Tribunal.

Evidence before the Tribunal

26. Both parties have complied with the Tribunal’s orders for the filing and service of their evidence.

27. The tenant and Mr Khanna’s evidence is constituted an Affidavit deposed by Geeta Khanna dated 7 November 2016; a copy of the Termination Notice dated 27 June 2016; a copy of the rent increase notice dated 10 March 2016; copies of searches done on the title, land value, and sales history for the residential premises; a copy of the rent trust ledger report for the period of the tenancy; copies of correspondence (letters and emails) between the tenant and Mr Khanna and the Managing Agent in relation to repairs requested by the tenant and Mr Khanna; a copy of a Residential Tenancy Agreement purportedly signed on 4 March 2016 in which Mr Khanna is listed a tenant and related correspondence; a copy of a letter from a Cardiology Specialist to Mr Khanna’s General Practitioner dated 19 September 2016; copies of documents setting out the requirements for a security license; photographs of the security door and flooding of the garage; a building inspection report in relation to the residential premises dated 27 June 2016; an invoice dated 16 September 2013 from a motor repairer for servicing and repair of a motor vehicle; and, copies of emails between Mr Khanna and an Information Officer at Blacktown Council concerning development and building approvals for the residential premises. Mr Khanna also gave oral evidence under affirmation.

28. The landlord’s evidence is constituted by a chronology of events; a copy of the Residential Tenancy Agreement signed by the tenant on 4 March 2015 and by the Managing Agent on behalf of the landlord on 5 March 2016; a copy of an earlier Residential Tenancy Agreement signed by both parties on 26 August 2013; a copy of the first Residential Tenancy Agreement entered into by the tenant with the former landlord, Sumithra Gunesekara, dated 8 January 2010; a copy of a rent increase notice dated 10 March 2016; a copy of a Termination Notice dated 27 June 2016; a copy of the tenant’s rent trust ledger; a copy of an Ingoing Condition Report for the residential premises (unsigned and undated); copies of reports of routine inspections of the residential premises carried out by the current and former Managing Agent in the course of the tenancy; an email from the landlord to the Managing Agent dated 23 April 2016 summarising the repairs carried out at the residential premises in the course of the tenancy while he has been landlord; quotes, work orders and invoices for repairs carried out at the residential premises; documents evidencing the qualifications, licenses and insurances held by contractors who undertook repairs to the residential premises on instructions from the landlord’s Managing Agent; a Rental Comparative Market Analysis Report prepared by RP Data Pty Ltd trading as CoreLogic dated 2 May 2016; copies of listings of residential premises for rent said to be comparable to the residential premises; a marriage certificate for the landlord dated 18 June 2016; a document dated 4 August 2016 which sets out the landlord’s objections to the summons issued to him by the Divisional Registrar on the application of the tenant and Mr Khanna; copies of building permits and approvals for the residential premises; copies of email correspondence between the current Managing Agent and tenant in relation to the tenant’s requests for repairs; and, copies of a Sydney Water bill and Blacktown City Council Rate Notice addressed to the landlord at the residential premises. Ms Hase also gave oral evidence under oath.

The hearing

29. Mrs Geeta Khanna did not attend the hearing. Mr Sanjeev Khanna attended on her behalf and sought leave of the Tribunal on behalf of Mrs Khanna to represent her at the hearing. Ms Hase attended the hearing on behalf of the landlord.

Preliminary issues

30. Having regard to the procedural history outlined above, Mrs Khanna’ non-attendance at the hearing, the evidence and submissions filed by the tenant and Mr Khanna which includes a Residential Tenancy Agreement which purports to include Mr Khanna as a tenant under that agreement, it emerges that there are a number of preliminary issues the Tribunal is required to determine before dealing with the more substantial dispute between the parties. It is also appropriate to consider as a preliminary issue if Mr Jaskeerat Baweja is properly identified as the landlord under the RTA as this is put in question by the tenant and Mr Khanna in the evidence and submissions they have filed with the Tribunal, and sought to hand up at the commencement of the hearing. If Mr Baweja is not the landlord, he is not a proper party to the proceedings, and the Tribunal has no powers to make orders benefiting or burdening him.

31. The preliminary issues for determination by the Tribunal are therefore:

1. Should the Tribunal grant leave to the tenant, Geeta Khanna, to be represented at the hearing by Sanjeev Khanna?

2. Who are the parties to the RTA – that is, specifically, is Mr Sanjeev Khanna a tenant, and is Mr Jaskeerat Baweja the landlord?

1. Should Sanjeev Khanna be recognised as a tenant or joined as a party to the proceedings on the basis that he is an occupant if he is not found to be a tenant under the existing RTA?

2. Should the tenant and Mr Khanna be granted leave to further amend their claim?

3. Should the Tribunal direct the Registrar to issue the amended summons the tenant and Mr Khanna seek to serve on the landlord?

Should leave be granted to the tenant for Mr Sanjeev Khanna to represent her at the hearing?

32. As noted above, the tenant, Geeta Khanna, did not attend the hearing. Mr Sanjeev Khanna purported to attend on her behalf. He handed up a document signed by Mrs Khanna authorising him to represent her at the hearing. Mr Khanna told the Tribunal that Mrs Khanna was unable to attend the hearing because while she was feeding the dog at the residential premises that morning, a roof tile dislodged and fell, hitting her on the head. She has since been feeling nausea and dizzy. In support of this contention, Mr Khanna handed up a medical certificate dated 14 December 2016 (the day of the hearing), in which the medical practitioner states: “[t]his is to certify that I have examined Geeta Khanna on 14 Dec 2016 and in my opinion she is suffering from medical condition. (sic) Mrs Khanna will be unfit for work from 14 Dec 2016 to 16 Dec inclusive.” Mr Khanna also handed up a radiology referral certificate issued by that medical practitioner in relation to Mrs Khanna dated 14 December 2016 for a CT Brain Scan which lists in the “Clinical Details” field “brick fell on top of head, feels tired, dizzy, nausea.”

33. Section 45 of the NCAT Act provides (relevantly and in summary) that a party to proceedings in the Tribunal has the carriage of the party’s own case and is not entitled to be represented by any person unless the Tribunal grants leave for another person to represent the party. The Tribunal’s discretion to grant a party leave to be represented by another person is unfettered but it must be exercised judicially having regard to the ‘guiding principle” governing the exercise of all aspects of the Tribunal’s practice and procedure set out in section 36 of the NCAT Act, which is to facilitate the just, quick and cheap resolution of the real issues in a proceeding. Pursuant to subsection 36(3) of the NCAT Act, a party to a proceeding before the Tribunal, including any representative of that party, is under a duty to cooperate with the Tribunal to give effect to that guiding principle.

34. In determining whether to grant leave to Mrs Khanna to be represented by Mr Khanna at the hearing, the relevant considerations are:

1. has Mrs Khanna provided a satisfactory explanation for why she is unable to conduct her own case before the Tribunal?

2. is there sufficient evidence that Mrs Khanna authorised Mr Khanna to act for her in the proceedings?

3. does Mr Khanna have sufficient knowledge of the subject matter of the proceedings so as to be capable of effectively representing Mrs Khanna’s interests in the proceedings?

4. does Mr Khanna have an interest in the proceedings which is inconsistent or incompatible with Mrs Khanna’s interests in the proceeding?

5. is Mr Khanna capable of cooperating with the Tribunal to give effect to its guiding principle?

6. weighing each of these factors in the balance would granting leave to Mrs Khanna to be represented in the proceeding by Mr Khanna facilitate the just, quick and cheap resolution of the real issues in the proceeding?

35. Mrs Khanna has provided an explanation for her inability to attend the hearing in person. However, the medical certificate upon which she relies in support of this explanation is of limited probative value. It does not address the “critical question” of whether, and if so why, the medical condition would prevent Mrs Khanna from travelling to the Tribunal and participating effectively in the hearing: NAKX v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 1559 at [6] per Lindgren J; cited with approval by the NSW Court of Appeal in Bobolas v Waverley Council [2016] NSWCA 139 at [221 to 222]. However, the radiology referral report does provide more specific information about Mrs Khanna’s medical condition. It reports symptoms of dizziness and nausea. I am satisfied that these symptoms would inhibit or prevent Mrs Khanna from effectively conducting her case before the Tribunal.

36. Mrs Khanna has authorised Mr Khanna to represent her at the hearing in writing. Mr Khanna has handed up a document containing this authority.

37. The Tribunal record shows that Mr Khanna has been directly involved in the litigation since its commencement and to a significant extent has been its driving force. It is clear that he has full knowledge of the subject matter of the proceedings.

38. There is nothing in the record of the proceedings, or in any of the evidence filed by the parties that indicates or suggests that Mr Khanna has any interest in the proceedings that is inconsistent or incompatible with Mrs Khanna’s interests. The record reflects that Mrs Khanna has attended all previous listings of the proceedings in Mr Khanna’s company, and that they have apparently at all times been of one mind.

39. It is also clear from the conduct of the proceedings to date that Mr Khanna experiences some difficulty in grasping the limits on the Tribunal’s jurisdiction in residential tenancy proceedings, and in following directions and accepting interlocutory decisions determined by the Tribunal. This conduct has the potential to create special circumstances that may expose Mrs Khanna to an order for costs. However, it is also clear that Mrs Khanna has at all times had full knowledge of this conduct and has either acquiesced in it or approved of it.

40. Having regard to the procedural history of the litigation the Tribunal also entertains a serious doubt about Mr Khanna’s capacity to cooperate with it in giving effect to the guiding principle governing the Tribunal’s practice and procedure. As noted, it is clear from the record that Mr Khanna experiences difficulty in grasping the limits on the Tribunal’s jurisdiction in residential tenancy proceedings and in following directions and accepting interlocutory decisions determined by the Tribunal. This conduct has already added, and has the potential to further add, to the cost of the proceedings for the parties and the Tribunal and in prolonging the time taken to bring the proceedings to finality. Reflecting backwards, just one dimension of this is the length of these reasons which has been necessitated by the need to deal judicially with the various issues agitated by Mr Khanna, a number of which have little or no merit.

41. Weighing each of these factors in the balance, and having regard to the guiding principle, the Tribunal determined to grant Mrs Khanna leave to be represented by Mr Khanna at the hearing. Taking her medical evidence as a whole, Mrs Khanna has provided a satisfactory explanation for her inability to conduct her own case before the Tribunal. She has authorised Mr Khanna to represent her in writing. Mr Khanna has full knowledge of the subject matter of the proceedings. Mr Khanna has no interest in the proceedings that is inconsistent or incompatible with those of Mrs Khanna and to any extent that Mr Khanna’s conduct exposes Mrs Khanna to a potential costs order, she is fully aware of that conduct. While Mr Khanna’s conduct may add to the costs of the proceedings, and the time taken to finalise them, he has participated in all previous listings of the proceedings with Mrs Khanna, and has engaged in this conduct in her presence despite the efforts of the Tribunal to bring clarity and focus to the issues in dispute. In this respect, it does not appear that the outcome would be different if Mrs Khanna were to be present and have carriage of her own case. Neither Mrs Khanna nor Mr Khanna has requested an adjournment of the hearing. The proceedings have been on foot since 13 April 2016. Granting leave to Mrs Khanna to be represented by Mr Khanna will allow the proceedings to be brought to finality. That course is most apt to give effect to the Tribunal’s guiding principle.

Who are the parties to the RTA?

42. The Tribunal’s jurisdiction to hear and determine residential tenancy disputes arises from a Residential Tenancy Agreement to which the RT Act applies. It is therefore essential that the parties to the RTA that subsists in relation to the residential premises that are the subject of these proceedings are properly identified as a preliminary issue.

43. The evidence establishes that Ms Geeta Khanna first entered into a residential tenancy agreement with the then registered proprietor of those premises, Mr Sumithra Gunesekara, on 8 January 2010. This was a fixed term agreement of 26 weeks which commenced on 11 January 2011. The tenancy has continued since that time in the form of either fixed term agreements or as a periodic tenancy.

44. There is a controversy as to the parties to, and the period of, the most recent fixed term agreement which must be determined by the Tribunal. However, on any view that fixed term agreement commenced in March 2015 and lapsed in March 2016. Since the lapse of this agreement, the tenancy has continued as a periodic tenancy.

45. The landlord contends that he purchased the residential property in June 2013 and after settlement of the sale, pursuant to a novation and attornment, became the landlord party of the RTA at that time. Under the terms of an Exclusive Management Agency Agreement which is in evidence, on 14 January 2014, he appointed Powerlist Pty Ltd trading as Response Real Estate Managing Agent for the residential premises.

46. The landlord contends that Ms Geeta Khanna and his Managing Agent entered into a fixed term agreement for a period of 12 months starting on 8 March 2015 and ending on 7 March 2016 under an RTA signed and dated by the parties on 4 and 5 March 2015 respectively. This RTA is in evidence. The parties to that agreement are specified as Jaskeerat Baweja (landlord) and Geeta Khanna (tenant). That agreement is signed on behalf of the landlord by Ms Hase as Managing Agent, witnessed by Alexander Jameel and by Ms Geeta Khanna, witnessed by Mr Sanjeev Khanna. The landlord contends that the current periodic agreement continues between the parties as they were identified in this fixed term agreement.

47. The tenant and Mr Khanna put the parties to the RTA in issue in two respects. First, they claim that Mr Khanna is a tenant under the current RTA. In this respect, they rely upon an fixed-term RTA they have submitted into evidence, which purportedly commenced from 1 March 2015 and ended on 29 February 2016 in which Mr Khanna is listed as a tenant. They contend that Mr Khanna has continued as a tenant under a periodic agreement since that time. Second, they contend that notwithstanding that Mr Jaskeerat Baweja is listed as the landlord on the RTA, he is not the registered proprietor of the residential premises and is therefore not entitled to be a landlord party to the agreement.

48. The fixed-term RTA relied on by the tenant and Mr Khanna is in identical form to that relied upon by the landlord, with three exceptions. It has a different first and last page and the second page is missing. The initials on pages 4 to 10 of both versions exactly match, an annotation “dog” and an associated initial on page 9, clause 43 exactly match, as do the strike through lines on page 9 at clauses 40 and 41. It is thus clear that these are the same pages in both agreements.

49. Page 1 of the RTA relied upon by the tenant and Mr Khanna differs from that relied upon by the landlord in the following respects. The tenants are listed as Geeta Khanna (tenant 1), Sanjeev Khanna (tenant 2) and Pranav Khanna (tenant 3). Pranav Khanna’s name is struck through and initialled by Geeta Khanna. As noted, the term of the agreement is specified as 1 March 2015 to 29 February 2016. Unlike the RTA relied upon by the landlord, the front page also carries Ms Hase’s initials. In all other respects, page 1 is an exact replica of the first page of the RTA relied upon by the landlord.

50. The last page of the RTA relied upon by the tenant and Mr Khanna differs from that relied upon by the landlord in the following respects. It lists Sanjeev Khanna as a tenant and it is signed by him and dated 4 March 2015. His signature is witnessed by Geeta Khanna. In all other respects the last page of the RTA relied upon by the tenant and Mr Khanna is an exact replica of the last page of the RTA relied upon by the landlord.

51. The tenant and Mr Khanna contend that the fixed term RTA they rely upon changed the parties to the RTA to add Mr Khanna as a tenant and that he continues as a tenant under the current periodic agreement.

52. Ms Hase frankly contendes that the first and last pages of the RTA relied upon by the tenant and Mr Khanna are forgeries brought into existence by the tenant and Mr Khanna for the purpose of this litigation. She contended that at no stage in the proceedings prior to the filing of their evidence have the tenant or Mr Khanna referred to or produced a copy of this agreement. She contends that she was at all material times for formation of the most recent fixed term agreement between the parties the Managing Agent with carriage of the matter. She denies under oath ever having witnessed the front page or last page of the RTA relied upon by the tenant and Mr Khanna. She also draws the Tribunal’s attention to a series of email exchanges between her and Geeta Khanna included in the evidence of both parties which date to the period immediately before and after the formation of the RTA made in March 2015. In these exchanges Ms Hase addresses Ms Khanna only as the tenant to be included in the agreement.

53. As has been noted, these proceedings have been on foot since 13 April 2016. The tenant and Mr Khanna have made two applications to the Tribunal for various orders, and both applications ask the Tribunal to make an order pursuant to section 77 of the RT Act recognising Mr Khanna as a tenant. It is difficult to understand why such orders would be sought if there was a subsisting RTA in which Mr Khanna was already recognised as a tenant. It is difficult to understand why the tenant and Mr Khanna would not have produced a written RTA evidencing that fact at an early stage of the proceedings to put this controversy to rest if such an agreement existed.

54. The agreements relied upon by the parties are facsimile copies except in the respects I have outlined. On the evidence before me, I am satisfied that Mr Khanna has altered the first and last page of the RTA to add his name and signature at some time after the agreement was made, most likely just prior to filing the tenant’s evidence. Other minor details have also been changed on the first page of the RTA in an effort to perfect this deception and to establish that this agreement pre-dates that relied upon by the landlord. This attempt at deception is quite transparent. It is also misconceived. The written agreement relied upon by the landlord is later in time and so would supersede the fixed term agreement relied upon by the tenant and Mr Khanna even if that was a valid agreement.

55. It is clear from the email exchanges between Ms Hase and Mrs Khanna leading up to the formation of the fixed term agreement in March 2015 that it was the intention of the parties that the tenancy would continue between Geeta Khanna and Jaskeerat Bewaja. If it was the parties’ intention that Mr Khanna was to be listed as a tenant under that agreement I am satisfied that there would be some evidence of this in the email exchange. However, there is no evidence whatsoever of this. The only person addressed in Ms Hase’s emails is Geeta Khanna. Ms Hase impressed me as a truthful witness and the objective facts support her version of events. I accept her evidence that there was never any intention that Mr Khanna be identified as a tenant under the fixed term agreement made in March 2015 and that she did not sign and initial the front and last pages of the RTA submitted into evidence by the tenant and Mr Khanna.

56. I therefore find that the fixed term RTA relied upon by the tenant and Mr Khanna is a forgery. The parties to the RTA from which this dispute arises are Geeta Khanna (tenant) and Jaskeerat Baweja (landlord). Mr Khanna is not a tenant of the residential premises, he is an occupant of those premises.

57. The tenant and Mr Khanna also contend that the Tribunal should find that Mr Baweja is not entitled to be recognised as the landlord in the RTA. The significance the tenant and Mr Khanna attach to such a finding, if it were to be made, lies in their contention that Mr Baweja, and his Managing Agent, would then have no legal basis upon which to terminate the RTA. The tenant and Mr Khanna have also sought leave to amend their claim to agitate a claim for compensation equivalent to the total amount of the rent they have paid under the RTA since June 2013 on the basis that Mr Baweja is not the registered proprietor of the residential premises and is therefore not entitled to receive rent from them. The tenant and Mr Khanna advance these contentions at the same time as they ask the Tribunal to make orders against Mr Baweja as landlord compensating them for loss and damage they allege arises from his breach of the RTA. Mr Khanna appeared unable to grasp this inherent contradiction in the tenant’s claim, taken as whole, when it was put to him in the course of the hearing.

58. At the outset it should be observed that the premise upon which the tenant and Mr Khanna seek to rest these claims is misconceived. It is not necessary for a landlord to be the registered proprietor of residential premises. A landlord simply has to have a superior estate in the land entitling her, him or it to rent the property. Head tenants commonly rent premises to sub-tenants under residential tenancy agreements, for example. In this case, no third party has sought to assert a superior estate in the land that is in conflict with the estate under which Mr Baweja has granted a tenancy to Mrs Khanna. There is no dispute that Mr Baweja is identified as the landlord under the RTA that subsists between the parties. That is sufficient for the Tribunal to recognise him as the landlord.

59. However, the Tribunal is satisfied on the evidence before it that Mr Baweja is the registered proprietor of the land containing the residential premises the subject of this dispute. The sole basis upon which the tenant and Mr Khanna rest their claim that he is not is a minor mis-description of the mailing address for the registered proprietor on the strata plan in which the residential premises is located. The tenant and Mr Khanna contend that this description reveals that the residential premises belong to another (named) person, despite the fact this person has never asserted any estate in the land.

60. No contract for the sale of the residential premises to Mr Baweja is in evidence. However, the landlord’s evidence does include copies of rate notices issued by Blacktown City Council to Mr Baweja in respect of the residential premises. It also includes copies of Sydney Water bills issued to Mr Baweja in respect of the residential premises. Ms Hase has given oral evidence that Mr Baweja purchased the residential premises from Mr Sumithra Gunesekara in June 2013. There is also a Managing Agency Agreement dated 14 January 2014 under which Mr Baweja appoints Powerlist Pty Ltd trading as Response Real Estate Managing Agent for the residential premises. This is a sufficient evidentiary basis for the Tribunal to conclude that Mr Baweja is the registered proprietor of the residential premises and that he is properly identified as the landlord under the RTA that subsists between the parties.

Should Sanjeev Khanna be recognised as a tenant and/or be joined as a party to the proceedings on the basis that he is an occupant?

61. The tenant and Mr Khanna have applied twice to the Tribunal for orders pursuant to section 77 of the RT Act that would recognise Mr Khanna as a tenant under the Residential Tenancy Agreement. The procedural history outlined above reveals that these claims have not, in terms, previously been the subject of a determination of the Tribunal, and it is not apparent why they are not included in the amended claim the Tribunal set down for hearing on 27 October 2016. The tenant and Mr Khanna have continued to agitate these claims in their correspondence to the Tribunal from 27 October 2016 up to the date of the hearing. For the reasons set out below I have granted leave at the hearing to the tenant Mr Khanna to amend their claim to include these applications. It is appropriate that these applications be dealt with as preliminary issues.

62. Section 77 of the RT Act is in the following terms:

77 Recognition of certain persons as tenants

(1) The Tribunal may, on application by a person who is occupying residential premises, make an order recognising the person as a tenant under a residential tenancy agreement or join the person as a party to any proceedings relating to the premises, or both.

(2) The Tribunal may make an order if:

(a) the sole tenant under the residential tenancy agreement to which the premises are subject has died, or

(b) the tenant no longer occupies the premises.

(3) An order under this section may:

(a) vest a tenancy over the residential premises in the occupant on such of the terms of the previous residential tenancy agreement as the Tribunal thinks appropriate, having regard to the circumstances of the case, and

(b) vest the tenancy from a date that is earlier than the order.

(4) An application for an order under this section may be made at the same time as any other application or during proceedings before the Tribunal or independently of any such other application or proceedings.

(5) This section does not apply if the landlord is a social housing provider.

63. This is not a social housing tenancy. Section 77 is therefore potentially available to Mr Khanna. However, subsection 77(2) provides that there are only two circumstances where the Tribunal has the power to make an order that would recognise an occupant of residential premises as a tenant. They are where the sole tenant under the RTA has died, or where the sole tenant no longer occupies the residential premises. In this case the evidence is clear that the sole tenant under the RTA, Mrs Khanna, remains alive and continues to live at the residential premises. The Tribunal therefore has no power to order that Mr Khanna be recognised as a tenant under the RTA. This application must be refused.

64. The tenant and Mr Khanna have also applied to the Tribunal for an order pursuant to section 77 of the RT Act that would join Mr Khanna as a party to these proceedings. Pursuant to section 77(1) of the RT Act the Tribunal has discretion to join a person as a party to a residential tenancy proceeding provided the application is made by a person who is occupying the residential premises. In this case it is clear that Mr Khanna is an occupant of the residential premises subject to these proceedings. His application to be joined as a party is therefore competent; that is, he has standing to make the application. The Tribunal must therefore determine if it should exercise its discretion to join Mr Khanna as a party.

65. Provided the applicant has standing to make such an application, the Tribunal’s discretion to join a party to a residential tenancy proceeding pursuant to section 77 is broad and unfettered. However, this discretion must be exercised judicially having regard to relevant legal principles. In this respect the starting point is the ‘guiding principle’ that is to be applied to the Tribunal’s practice and procedure set out is section 36 of the NCAT Act, which is to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings. Pursuant to subsection 36(2) the Tribunal must apply this the guiding principle in its interpretation of the discretion vested in it under section 77 of the RT Act, and in the exercise of that discretion. Pursuant to sub-section 36(4) it must also apply the guiding principle in a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings.

66. There does not appear to be any reported authority dealing with the Tribunal’s discretion to join an occupant as a party to a residential tenancy proceeding under section 77 of the RT Act. However, further guidance by way of analogy is available from appellate consideration of the comparative provision under section 44 of the NCAT Act.

67. I note that section 44 of the NCAT Act, unlike section 77 of the RT Act, contains the explicit statutory concept of ‘a proper and necessary party.’ Pursuant to subsection 44(1) the Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that person should be joined as a party. Pursuant to subsection 44(2) the Tribunal may remove a person as a party to a proceeding who does not have those characteristics. However, I do not discern any inconsistency between section 44 of the NCAT Act and section 77 of the RT Act on this basis that would lead to any difference in the principles to be applied in the exercise of the Tribunal’s discretion to join an occupant as a party to a residential tenancy proceeding under section 77 of the RT Act.

68. In Commissioner of Police New South Wales Police Force v Fine 920140 87 NSWLR 1, the Court of Appeal stated the following principles as relevant in the application of section 44 of the NCAT Act at [38] to [44]:

38. The power of joinder conferred by the Civil and Administrative Tribunal Act, s 44 is stated in general terms. It is a power to join a party “if the Tribunal considers the person should be joined as a party”: s 44(1). The Tribunal also has the power to remove a party. The power of removal may be exercised if the person is “improperly or unnecessarily joined, or ... ceased to be a proper or necessary party”: s 44(2). The Commissioner submitted that the power of joinder conferred by s 44(1) was to be read in conformity with the power of removal so that a party who was a “proper or necessary party” ought to be joined in the proceedings. That submission may be accepted. However, the question remains as to the meaning or, perhaps more correctly, the parameters of the expressions ”proper” and “necessary”, noting that the expressions are used in s 44(2) disjunctively and that a “proper” party may not be a “necessary” party.

39. A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. For that reason, the decision-maker is usually joined as the decision made may be affected by the application. …

40. The question whether a party is a “proper” party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere inter-meddler would neither be a necessary nor proper party. …

69. The Appeal Panel of this Tribunal applied these principles in Wilson v Chan & Naylor Parramatta Pty Ltd as trustee for Chan & Naylor Parramatta Trust [2016] NSWCATAP 236. It was critical of the Tribunal below [at 24] for rejecting an application for joinder of a person to the proceedings on case-management grounds (to prevent further delay in bringing the proceedings to finality). It determined that consideration of whether a person is a proper or necessary party is to take precedence over case management imperatives: at [24] to [27]. It held that the Tribunal’s failure to take that approach in that case constituted an error of law.

70. Applying these principles in this case it is clear that Mr Khanna, as an occupant of the residential premises, is a person whose interests is affected by these proceedings. Should the RTA be terminated as one of the outcomes of these proceedings, for example, Mr Khanna will be required to leave the residential premises and find alternative accommodation. The proper parties to a residential tenancy dispute will usually be the tenant and landlord. However, section 77 of the RTA clearly contemplates that an occupant may also be a proper party.

71. On the other hand it is difficult to discern, in the circumstances of this case, why Mr Khanna is a necessary party to the proceedings. Leaving aside his applications to be recognised as a tenant and to be joined as a party to these proceedings, he makes no claim, and seeks to agitate no interest, distinct from that of his wife, the tenant. Having regard to the procedural history of these proceedings and the documents filed by Mr Khanna on Mrs Khanna’s behalf, it is also clear that Mr Khanna’s joinder as a party has some potential to add further complexity and prolong the time it will take to hear and finalise these proceedings. It is clear that Mr Khanna has been the driving force behind the tenant’s litigation from the outset. The record reveals that Mr Khanna has some difficulty grasping the limits on the Tribunal’s jurisdiction under the RT Act, and in accepting and in acting in accordance with directions given to the tenant by the Tribunal. However, these are essentially case management concerns that cannot take priority over what is in the interests of justice. In any event, Mrs Khanna has authorised Mr Khanna to represent her at the hearing, and did not herself attend the hearing. The landlord and the Tribunal will therefore have to deal directly with Mr Khanna whether he is a party or not.

72. Weighing these competing considerations in the balance, the Tribunal determined that justice required that Mr Khanna be joined as a party to the proceedings.

Should the Tribunal grant leave to the tenant and Mr Khanna to further amend their claim?

73. As has been noted above, despite Member Sarginson determining at the directions hearing conducted on 27 October 2016 that the tenant was not granted leave to further amend her claim, the tenant and Mr Khanna have filed a series of documents from that time up to the hearing, and sought to hand up at the commencement of the hearing, a further document, which seek, among other things, to further amend the tenant’s claim. It appears to me I am obliged to consider if it is in the interests of justice that the tenant and Mr Khanna be granted leave to amend their claim, even at this very late stage in the proceedings, and despite Member Sarginson’s determination that no further such leave would be granted, because to do otherwise would give precedence to case-management considerations over what the interests of justice requires. However, Member Sarginson’s determination, and the reasons he gave, are clearly a relevant and compelling factors to be taken into account in my consideration.

74. The procedural history outlined above indicates that the tenant and Mr Khanna were twice directed to particularise their claim for compensation prior to the directions hearing conducted before Member Sarginson on 27 October 2016, but failed to do so. This resulted on 23 August 2016 in Member Smith directing that their Applications be stood out of the list (that is, not advanced to hearing by the Registry) until this occurred. The record also reveals continuing attempts by the tenant and Mr Khanna to add to and amend their claims throughout the proceedings.

75. The tenant and Mr Khanna’s conduct of the proceedings resulted in Member Sarginson amending the tenant’s claim at the directions hearing on 27 October 2016 to identify those issues that were before the Tribunal for determination and in relation to which evidence was to be filed and served. As I have already stated, although Member Sarginson expressed this intervention as a grant of leave to the tenant to amend her claim, properly viewed, it was an exercise of power pursuant to section 53 of the NCAT Act to amend her applications in the interests of justice. Had Member Sarginson not done so, the scope of the tenant’s claim before the Tribunal would have remained uncertain. It was in the interests of justice for both parties that the tenant’s claims be made transparent and concrete so that the tenant had clarity and focus as to the case she had to prove, and the landlord knew the case he had to answer. Against this background, the Tribunal would not lightly allow the tenant and Mr Khanna to further amend their claim from that formulated by Member Sarginson on 27 October 2016.

76. It appears to me that the factors relevant to the Tribunal’s consideration of the issue include the tenant and Mrs Khanna’s explanation for any failure to raise an issue they now seek to pursue earlier in the proceedings, whether the tenant or Mr Khanna would lose the opportunity to pursue the issue if the Tribunal refused leave, whether the claim sought to be pursued is arguable, and because the application to amend is being made at this very late stage, whether such a claim has substantial prospects of success, such that it would work an injustice to the tenant or Mr Khanna to deprive them of the opportunity of pursuing it. The Tribunal should also consider the desirability of all aspects of the dispute between the parties being brought to finality by the proceedings and any prejudice that would accrue to the landlord from allowing an amendment of the claim at this stage of the proceedings.

77. Having considered each of these factors, I have determined that the tenant and Mr Khanna should be granted leave to further amend their claim from that set down for hearing by Member Sarginson on 27 October 2016 to include an application by Mr Khanna pursuant to section 77 of the RT Act for recognition as a tenant of the residential premises and to be joined as a party to the proceedings. It is clear that these claims were made by the tenant and Mr Khanna from the outset in their first and second applications. In this respect there has been no delay in them raising these issues in the proceedings. On 23 August 2016 Member Smith removed Mr Khanna as an Applicant on the basis that he was not a tenant. However, it is otherwise not clear why, in the conduct of the proceedings up to this point, Mr Khanna has been deprived of the opportunity to pursue these claims.

78. It appears to me that in removing Mr Khanna as an Applicant because he was not a tenant, Member Smith asked the wrong question. It is axiomatic that a person who applies to the Tribunal under section 77 of the RT Act to be recognised as a tenant will not be a tenant. It is also clear that section 77 of the RT Act contemplates that there will be circumstances in which an occupant will have a sufficient interest in proceedings concerning residential premises to be joined as a party to proceedings concerning those residential premises. If Mr Khanna is not able to pursue these claims in the context of these proceedings he may be deprived of the opportunity of doing so forever, as the Tribunal is required to determine, among other things, if the RTA should be terminated. Mr Khanna has persistently agitated these issues in the course of the proceedings. As a result the landlord is not taken by surprise by these claims, and having regard to the evidence filed by the landlord, is in a fair position to make any response.

79. However, I otherwise refuse leave for the tenant and Mr Khanna to further amend their claims to include a claim for compensation equivalent to the whole of the rent they have paid under the RTA on the basis either that the residential premises have been uninhabitable since the commencement of the tenancy and/or because the landlord is not the registered proprietor of the residential premises and is therefore not entitled to collect rent in respect of them. These claims are not arguable at all, or, for reasons that will emerge, are not arguable in the circumstances of this case. Allowing the tenant and Mr Khanna to pursue these claims would add to the complexity of the proceedings and likely add to the time and cost of bringing the proceedings to finality. It is therefore not in the interests of justice for leave to be granted to the tenant and Mr Khanna to amend their claim to pursue these issues.

Should the Tribunal direct the Registrar to issue the amended summons?

80. In various of the documents filed by the tenant and Mr Khanna between the last directions hearing on 27 October 2016 and at the commencement of the hearing, Mr Khanna has sought to re-agitate the tenant’s application to issue a summons on the landlord requiring him to produce information and documents the tenant and Mr Khanna assert are essential to the proof of their claims.

81. As noted above, at the Return of Summons hearing conducted on 23 August 2016, Member Smith set aside a summons issued to the landlord by the Divisional Registrar, which was subject to extensive objection by the landlord, on the basis that the information and documents it sought to produce were not relevant to any issue in dispute in these proceedings. As also noted above, on 22 August 2016, prior to the Return of Summons hearing on 23 August 2016, the tenant and Mr Khanna made a further application to the Divisional Registrar to issue a so-called “amended summons”. The Divisional Registrar declined to issue this amended summons and referred it for Member consideration at the Return of Summons hearing on 23 August 2016. It appears that Member Smith declined to direct the Registry to issue the amended summons also on the basis that the information and documents it sought to have produced were not relevant to any issue in dispute in these proceedings.

82. The Tribunal record shows that on 29 August 2016 the tenant and Mr Khanna made a request to the Divisional Registrar to have Member Smith’s order setting aside the summons set-aside or varied. The Divisional Registrar responded to this application by letter dated 2 September 2016 advising the tenant and Mr Khanna that decisions of the Tribunal are final and binding, but may be the subject of an appeal. The tenant and Mr Khanna were advised to consider that course if they wished to dispute Member Smith’s decisions. No appeal was lodged.

83. It is the issue of the amended summons that Mr Khanna now seeks to re-agitate, apparently not by way of appeal from Member Smith’s decision, but on the basis of a fresh application in light of each party’s case and evidence as it now stands. Viewed in that light, it appears to me that I am obliged in the interests of justice to consider if a direction should now be given to the Divisional Registrar to issue the amended summons.

84. Pursuant to section 48 of the NCAT Act the Divisional Registrar may issue a summons on the application of a party to the proceedings or at the direction of the Tribunal provided the applicant for the summons pays the prescribed fee. An application may be made at any stage of the proceedings, but it is logically and usually made prior to the filing of evidence so that any document relevant to the proof of the party’s case can be included in the evidence filed and served. In this case, the tenant was directed to file and serve her evidence on or before 7 November 2016 and did so.

85. It is in the interests of justice that a party to proceedings has a reasonable opportunity to formulate its case and adduce evidence in support of its case. To the extent that other parties or non-parties to the proceedings have possession or control of documents that a party requires to formulate its case and prove it, the party is entitled to invoke the compulsory powers of the Tribunal to compel production of those documents. In this respect, the Tribunal has a duty pursuant to sub-section 38(5)(c) to “take such measures as are reasonably practicable … to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.”

156. 154.7   The landlord’s evidence includes a Rental Comparative Analysis prepared by RP Data Pty Ltd trading as CoreLogic. That report states the opinion that the market rate estimate of the weekly rental price for the residential premises is $540.00 as at 2 May 2016. It reports that the rent range for comparable properties in the locality of the residential premises is $500.00 to $584.00 per week. The median and average rent for similar residential premises in that locality is reported at $535.00.

157. 154.8   since his acquisition of the residential premises in June 2013, the current landlord has increased the rent on two occasions: by $80.00 per week in August 2013, and by a further $20.00 in March 2015.

Applicable law

159. The law that applies to the determination of a claim that rent is excessive is found in section 44 of the RT which has been set out above. Pursuant to sub-section 44(2) and Regulation 22(1) of the RT Regulation the time limit prescribed for the making of such an application is within 30 days after the notice is given.

160. A landlord (and Managing Agent) must comply with section 41 of the RT Act when they give the tenant notice of a rent increase. Failure to do so may mean that the rent increase cannot come into effect. Section 41 relevantly provides:

41 Rent increases

(1) The rent payable under a residential tenancy agreement may be increased only if:

(a) the tenant is given a written notice by the landlord or the landlord’s agent specifying the increased rent and the day from which it is payable, and

(b) the notice is given at least 60 days before the increased rent is payable.

(2) …

(3) A rent increase is not payable by a tenant unless the rent is increased in accordance with this section or the rent is increased by the Tribunal.

(4) The residential tenancy agreement is varied to specify the increased rent from the date the rent is increased in accordance with this section.

(5) …

(6) …

(7) ....

(8) Subsections (1)-(7) are terms of every residential tenancy agreement.

(9) A landlord or landlord’s agent must not contravene this section.

161. Section 223 of the RT Act sets out the requirements for service of a document under the RT Act. It provides, relevantly to this case, that the document may be sent to a person by post to the address specified by the person for the giving or service of documents. If a document is served by post under the RT Act, section 76 of the Interpretation Act 1987 applies. Pursuant to subsection 76(1)(b) if the document is posted to an address in Australia it is taken to have been served on the addressee on the fourth working day after the letter was posted, unless evidence sufficient to raise doubt is adduced to the contrary.

Consideration

162. Having regard to the applicable law, the questions the Tribunal must pose and answer to determine this element of the tenant’s claim are as follows:

1. has the landlord or agent given the tenant a rent increase notice which complies with the requirements of section 41 as to its form and service?

2. if so, has the tenant applied to the Tribunal for an order declaring the rent increase is excessive within the prescribed 30 day period from receipt of the notice within which such an application may be made?

3. if not, should the Tribunal exercise discretion to extend the time in which the application may be made?

4. is the rent increase excessive having regard to the factors enumerated in section 44(5) of the RT Act and any other relevant factor? and

5. if it is, by what amount is the rent increase excessive, and by what amount should the Tribunal order it not exceed, and for what period of time (up to a maximum permissible period of 12 months)?

163. I am satisfied that rent increase notice dated 10 March 2016 complies with the requirements of section 41 of the RT Act, and that it has been served on the tenant by a method authorised by section 223 of the RT Act, being by post. Pursuant to subsection 76 of the Interpretation Act 1987 the notice was deemed served on the tenant on 16 March 2016, being the fourth working day after its postage. That provided the tenant with 62 days’ notice of the date the rent increase would come into effect, which is more than the period of notice required by sub-section 41(1)(b) of the RT Act.

164. The tenant made her first application to the Tribunal for an order declaring the rent increase to be excessive on 13 April 2016, which is within the 30 day period after the rent notice was deemed served permitted for the making of such an application.

165. At the directions hearing conducted before Member Marzilli on 23 June 2016 the tenant’s attention was specifically drawn to the factors relevant to the Tribunal’s consideration of whether a rent increase is excessive as these are set out in sub-section 44(5) of the RT Act.

166. Despite this, the tenant and Mr Khanna have filed no evidence relating to the general market level of rents for comparable premises in the locality of the residential premises. By contrast the landlord has included in his evidence a Rental Comparative Market Analysis which provides persuasive evidence that the rent increase proposed is at the lower end of the spectrum of market rents for similar residential premises in the locality. It is $25.00 under the median and average market average rent for similar premises, and $30.00 under the estimated market rent value of the residential premises. In the absence of any evidence to the contrary, the Tribunal accepts this evidence.

167. I take into account that the residential premises does not have air-conditioning upstairs, however, it would appear that this is also true for a number of the comparison residential premises in the locality which attract higher rent than $510.00 per week. I also take into account the fact that the hot water system is of some age and apparently problem prone. Nevertheless it is in working order and there has been no failure by the landlord to carry out repairs to it (or any other item requiring repair) with reasonable diligence. The stove/oven is also old and apparently problem prone but the landlord intends to replace it with a new cooktop and oven. There is a recurring water seepage problem in the garage and the garage otherwise is somewhat dilapidated. However, the tenant and Mr Khanna have not made out their claim that this has resulted in any reduction in the use of this facility. There is no evidence that the tenant has undertaken any improvement to the residential premises in the course of the tenancy.

168. The last rent increase took place 14 months prior to the date the current rent increase came into effect. Ms Hase gave oral evidence that the landlord’s outgoings, including rates, water charges and general maintenance costs have increased since the last rent increase took effect.

169. Weighing all these issued in the balance, I am not satisfied that the rent increase from $470.00 to $510.00 per week effective from 16 May 2016 is excessive. Even with this increase and taking into account limitations of the residential premises the rent remains below the median and average weekly rent for similar residential premises in the locality. It is also below the estimated actual market rent value of the residential premises.

Retaliatory eviction claim – section 115 of the RT Act

170. The tenant has applied to the Tribunal for an order pursuant to section 115 of the RT Act that would declare a Notice of Termination of the tenancy served on her by notice dated 27 June 2016 under section 85 of the RT Act is of no effect on the basis that it is retaliatory.

Material facts

171. The material facts that relate to this element of the tenant’s claim may be summarised as follows:

171.1      by letter dated 10 March 2016, the landlord’s Managing Agent issued the tenant with a rent increase notice increasing the rent payable for the residential premises from $470.00 to $510.00 per week effective from 16 May 2016;

171.2      on 13 April 2016 the tenant and Mr Khanna filed their first application in the Tribunal. In part that application sought an order that the rent increase was excessive. That application was subsequently dismissed by the Tribunal on 5 May 2016 because the tenant did not attend the hearing. However, the order dismissing the application was subsequently set aside and the application re-registered.

171.3      the re-registered application first came before the Tribunal on 23 June 2016. At that listing of the application orders were made setting the application down for hearing. The tenant and Mr Khanna foreshadowed to the Tribunal and the Managing Agent that they would be applying for a summons that would require the landlord and others to produce information and other documents in the proceeding and that once they had this material they would likely be pursuing further claims against the landlord, including claims for compensation.

171.4   at some point which is not in evidence the landlord became engaged to be married and formed an intention recover possession of the residential premises so that he could live there with his wife after their wedding. This wedding took place on 18 June 2016;

171.5   in the period leading up to the Tribunal hearing on 23 June 2016 and afterwards there is extensive email and other communication between the tenant, Mr Khanna and representatives of the Managing Agent about various requested repairs and the water seepage and flooding incident in the garage. This correspondence is set out in detail above in relation to the tenant’s subsection 44(1)(b) rent reduction claim. This correspondence from the tenant and Mr Khanna is contentious and acrimonious at times;

171.6 on 27 June 2016 the Termination Notice was served on the tenant under section 85 of the RT Act. It required the tenant to give the landlord vacant possession of the residential premises on 1 October 2016. The tenants did not give vacant possession on that date;

171.7   on 27 June 2016 in response to an email dated 25 June 2016 from Mr Khanna in which he requests copies of photographs of the garage of the residential premises taken by the Managing Agent during an inspection on 20 June 2016 the Managing Agent states:

Hi Sanjeev

A copy of all the documents that we will be relying on at tribunal will be sent to you by the 14th as per the member’s instructions.

Please note that a 90 day termination notice has been sent to you via mail today;

171.8 on 21 July 2016 the tenant and Mr Khanna made their second application to the Tribunal. By this application they seek a number of orders including an order under section 115 of the RT Act declaring that the notice terminating the RTA dated 27 June 2016 is of no effect on the basis that it is a retaliatory notice.

171.9   since the tenant’s second application was filed in the Tribunal the relationship between the tenant and Mr Khanna and the Managing Agent and landlord has continued to deteriorate. The tenant, and Mr Khanna in particular, have sent extensive contentious and acrimonious correspondence to the Managing Agent in relation to various matters. In this correspondence, and before this Tribunal they have contended that Mr Baweaja is not the registered proprietor of the property on which the residential premises is situated and on this basis that he is not entitled to be recognised as landlord under the RTA or collect rent in respect of those premises; that the Managing Agent is not entitled to act in relation to the residential premises or the tenancy because it is appointed by Mr Baweja who is neither registered proprietor or landlord; and that the residential premises are uninhabitable and dangerous;

171.10   since on or about 12 July 2016, the tenant and Mr Khanna have also refused to permit the landlord’s contractors access to the residential premises to carry out necessary works because they do not accept that the contractors are qualified to do this work;

171.11   it also appears that the tenant and Mr Khanna have commenced, or intend to commence proceedings in another place against Mr Baweja claiming against him for personal injuries they claim to have incurred at the residential premises.

Applicable law

172. The Tribunal’s power to declare that a notice terminating a tenancy is of no effect because it is a retaliatory notice is found in section 115 of the RT Act. In this respect, section 115 provides:

115 Retaliatory evictions

(1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice:

(a) declare that a termination notice has no effect, or

(b) refuse to make a termination order,

if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application.

(2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons:

(a) the tenant had applied or proposed to apply to the Tribunal for an order,

(b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law,

(c) an order of the Tribunal was in force in relation to the landlord and tenant.

(3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.

173. Pursuant to subsection 115(3) and Regulation 22(4) of the RT Regulation any such application must be made to the Tribunal, in the case of a termination notice issued under section 85 of the RT Act, is before the termination date specified in the notice and within 30 days of being served with the notice.

174. A Termination Notice is only effective if it complies with the requirements for such a notice set out in Part 5 of the RT Act in terms of its form and method of service.

Consideration

175. Having regard to the applicable law, the questions the Tribunal must pose and answer in relation to this element of the tenant’s claim are as follows:

1. does the Termination Notice comply with the requirements of Part 5 of the RT Act; that is, is it a valid notice?

2. has the tenant applied to the Tribunal for an order under section 115 within the time period permitted by subsection 115(3) of the RT Act and Regulation 22(4) of the RT Regulation?

3. if not, can and should the Tribunal exercise discretion to extend the time in which the application may be made?

4. (d) was the termination notice issued in any of the circumstances identified in subsection 115(2) of the RT Act?

5. (e)   does the evidence establish that the termination notice was issued in retaliation because of one or more of those circumstances?

6. (f)   if so, should the Tribunal exercise discretion to declare the termination notice of no effect on the basis that it is retaliatory?

176. The validity of the Termination Notice is considered in detail following in the context of the landlord’s application for a termination order based on that notice. It is a valid notice.

177. The tenant has applied to the Tribunal for an order under section 115 within the time period permitted by subsection 115(3) of the Act and Regulation 22(4) of the RT Regulation.

178. There is no dispute that the Termination Notice was issued in circumstances where, and at a time when, the tenant and Mr Khanna had applied to the Tribunal for orders, including that the proposed rent increase was excessive. It was also issued in circumstances where, and at a time when, the tenant and Mr Khanna had expressed an intention to the Managing Agent and to the Tribunal to take further action against the landlord in this jurisdiction and elsewhere to assert their rights, as they perceive them.

179. The landlord contends that the termination notice was not issued in retaliation against the tenant for instituting these proceedings. Through his Managing Agent, he contends it resulted from benign unrelated life events which occurred concurrently with the dispute with the tenant, being his forthcoming marriage and his intention to live in the residential premises with his wife following their marriage. There is no doubt that Mr Baweja was married on 27 June 2016.

180. Ms Hase also asks the Tribunal to recognise that despite the termination notice being issued, the landlord continued to authorise the carrying out of repairs requested by the tenant and Mr Khanna, and offered to replace the stove/oven with a new cooktop and oven. She says this demonstrates that the landlord did not issue the termination notice in order to avoid his obligations to the tenant.

181. On the other hand, the tenant and Mr Khanna contend that the Termination Notice was quite transparently issued in retaliation against them for disputing the rent increase, and for them pursuing other claims.

182. A finding that a landlord has acted in retaliation against a tenant for asserting their rights is a serious criticism of that person’s character and it should therefore not be made lightly. On the other hand section 115 is a protective provision designed to protect tenants from an abuse of power by a landlord in a tenancy relationship. A tenant is entitled to avail themselves of the protection it affords in appropriate circumstances.

183. In this case there is some evidence that is suggestive that the termination notice was issued in retaliation against the tenant and Mr Khanna for instituting their first application in the Tribunal. The termination notice was served just a few days after the first hearing of that re-registered application. The proximity of those events is disquieting. Moreover, Ms Hase’s email to Mr Khanna dated 27 June 2016 appears to establish that the two things were linked in her mind. I also entertain a doubt about the landlord concurrent life event narrative. If the landlord had wanted to recover possession of the residential premises to live in following his marriage, it is surprising that he did not move to terminate the tenancy prior to his wedding day. Pursuant to the Termination Notice served, he could not have recovered possession of the residential premises until 1 October 2016, which is more than 3 months after his wedding day.

184. However, that is the full extent of the evidence that the termination notice was issued by the landlord in retaliation against the tenant and Mr Khanna. There is otherwise nothing in the evidence whatsoever of any attempt to by the landlord or the Managing Agent to criticise, threaten, intimidate or bargain with the tenant or Mr Khanna in relation to proceedings in the Tribunal. As has been outlined above, there is extensive correspondence between the tenant and Mr Khanna in the period leading up to the issue of the notice and afterwards. The tenant and Mr Khanna’s communications become increasingly contentious and acrimonious, but the Managing Agent’s communications in response do not. The Managing Agent’s communications have a courteous and problem solving focus. There is no doubt that the landlord and Managing Agent continued to respond with reasonable diligence to the tenant and Mr Khanna’s repeated and escalating requests for repairs.

185. Weighing the totality of the evidence in the balance, while the matter is not beyond doubt, on the evidence before me I cannot be comfortably satisfied the civil standard of proof that the Termination Notice was a retaliatory notice. A finding that a landlord has engaged in an abuse of power in a tenancy relationship seriously impugns the landlord’s character. It therefore cannot be made lightly. In all the circumstances I cannot conclude there has been such an abuse of power by Mr Baweja in this case. It follows from this that the tenant is not entitled to an order that the termination notice is of no effect.

186. Although it is not strictly necessary to do so, for completeness I will add that even if I had been satisfied that the Termination Notice was a retaliatory notice, I would have declined to exercise discretion to declare the termination notice of no effect. It is clear that the relationship between the tenant and Mr Khanna and the landlord and Managing Agent has entirely broken down, even to the point where the tenant and Mr Khanna refuse to recognise Mr Baweja as landlord, or his entitlement to receive rent from them as tenants.

176. It is also manifest that the tenant and Mr Khanna are seriously dissatisfied with the residential premises. At one point in the proceedings, they even sought an order from the Tribunal terminating the tenancy on the basis that the RTA had been frustrated. While some of this dissatisfaction has the potential to be assuaged by repairs and replacement of electrical goods such as the stove top and oven, the tenant and Mr Khanna now refuse to permit the landlord’s contractors from carrying out this work. They have no reasonable basis for doing so.

177. It thus appears to be in the interests of both parties that the tenancy relationship is brought to an end.

178. Moreover, the landlord has a superior estate in the land and he is entitled to recover possession of it in accordance with law. The tenant is not entitled to assert a superior or alternative estate to that of the landlord as they appear to seek to do in this case. The landlord has issued a Termination Notice under section 85 of the RT Act which provides the tenant with 90 days to find alternative accommodation. This is commonly referred to as a “no-grounds” Termination Notice because it does not require the landlord to assert and prove any specific justification for the recovery of possession. Although the Tribunal is not prevented from declaring a section 85 Termination Notice of no effect on the basis that it is retaliatory these considerations remain relevant in the exercise of the discretion to do so.

Landlord’s application for termination of the tenancy

190. For the reasons outlined above, the Tribunal has determined that it will not exercise its discretion pursuant to section 115 of the RT Act to declare the Termination Notice dated 27 June 2016 of no effect. It must therefore deal with the landlord’s application for an order terminating the RTA and giving possession of the residential premises to the landlord.

Material facts

191. The material facts relevant to the landlord’s application for a termination order are as follows:

191.1   at the material time for this application the tenancy that subsisted between the tenant and landlord was a periodic tenancy;

191.2 on 27 June 2016 the landlord’s Managing Agent served the tenant with a Termination Notice issued under section 85 of the RT Act terminating the RTA. Pursuant to that notice the RTA was terminated and the tenant was required to give the landlord vacant possession of the residential premises on 1 October 2016;

191.3   the tenant did not give the landlord vacant possession of the residential premises on 1 October 2016. She remains living at the residential premises up to the date of the hearing; and

191.4 on 7 October 2016 the landlord applied to the Tribunal for an Order under subsection 85(3) terminating the tenancy.

Applicable law

192. Section 85 of the RT deals with termination of a periodic tenancy. It provides

85 Termination of periodic agreement

(1)    A landlord may, at any time, give a termination notice for a periodic agreement.

(2)    The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.

(3)    The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.

(4)    This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.

193. Section 82 of the RT Act sets out further requirements with which a Termination Notice. It provides:

82 Termination notices

(1)    A termination notice must set out the following matters:

(a)    the residential premises concerned,

(b)    the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given,

(c)    if the notice is not given under section 84, 85, 96 or 97, the ground for the notice,

(d)    any other matters prescribed by the regulations.

(2)    A termination notice must be in writing and be signed by the party giving the notice or the party’s agent.

(3)    A termination notice for a periodic agreement may specify a day other than the last day of a period for the payment of rent as the termination date.

194. As has been outlined above, section 223 of the RT Act sets out the requirements for service of a document, such as a Termination Notice, under the RT Act. Sections 36 and 76 of the Interpretation Act 1987 determine when such a document is deemed served if it is sent by post, being four working days later (unless sufficient evidence is adduced to the contrary).

195. Section 83 of the RT sets out the time period within which a landlord must make an application for a termination order. It also requires the Tribunal to make an order for possession when it makes a termination order. It is in the following terms:

83 Termination orders

(1)    If the Tribunal makes an order terminating a residential tenancy agreement under this Act, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect.

(2)    An application to the Tribunal by a landlord for a termination order:

(a)    must be made after the termination date specified in the relevant termination notice and within the period prescribed by the regulations, and

(b)    must be made only if vacant possession of the premises is not given as required by the notice.

196. Regulation 22(2) of the RT Regulation provides that the prescribed period for the making of an application by a landlord for a termination order under section 85(3) of the RT Act is within 30 days after the termination date specified in the Termination Notice.

Consideration

197. Having regard to the applicable law, the questions the Tribunal must pose and answer to determine if the landlord is entitled to an order terminating the tenancy are therefore as follows:

1. does the Termination Notice satisfy the requirements of sections 82 and 85 of the RT in its form and in relation to its manner of service?

2. if so, has the landlord applied to the Tribunal for a termination order within the time period allowed by subsection 85(3) of the RT Act and Regulation 22(4) of the RT Regulation?

3. if not, should the Tribunal exercise discretion to extend the time in which the application may be made?

4. should the order for possession be suspended for any period, and if so for what period?

198. I am satisfied that the Termination Notice complies with the requirements of sections 82 and 85 of the RT Act. It stipulates the residential premises concerned, the day upon which the RTA is terminated and by which vacant possession is to be given to the landlord (being 1 October 2016), it is in writing, and it is signed by an authorised representative of the landlord’s Managing Agent, Ms Paulette Hase. As this is a Termination Notice issued pursuant to section 85 of the RT Act, it is not required to specify a ground for termination.

199. Pursuant to subsection 85(2) of the RT Act a termination notice issued under section 85 of the RT Act must specify a termination date that is not earlier than 90 days after the day on which the notice is given. Section 223 of the RT Act sets out the means by which a Notice authorised or required under the RT Act may be given or served. Relevantly to this case, a Notice of Termination may be served on a natural person by sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document. In this case the landlord’s Managing Agent posted the Termination Notice to the tenant at the residential premises. The residential premises is the address specified for the service of notices on the tenant on the front page of the RTA. The Termination Notice was posted on 27 June 2016.

200. Section 36 of the Interpretation Act 1987 stipulates how time is to be reckoned in determining, relevantly, when a notice is “given” under the RT Act. Pursuant to subsection 36(1), where the Act specifies a period of time dating from a given act or event, time is to be reckoned exclusive of the day of that act or event. Section 76 of the Interpretation Act 1987 stipulates when a document is “given” by post under (relevantly) the RT Act. Pursuant to subsection 76(1)(b) such a document is taken to be given on the fourth working day after the document was posted. Subsection 76(2) provides that a “working day” means a day that is not a Saturday or Sunday or a public or a bank holiday in the place to which the letter was posted.

201. In this case, 27 June 2016 was a Monday. Excluding that day, the Notice of Termination is thus deemed to have been given at the end of 1 July 2016, the following Friday, four working days later. The Termination Notice required the tenant to give vacant possession of the residential premises to the landlord on 1 October 2016. Pursuant to subsection 85(2) of the RT Act the termination date specified in the Termination Notice is thus 93 days after the day upon which the notice was given to the tenant. The Termination Notice thus complies with the requirements of that section.

202. Pursuant to subsection 85(3) of the RT Act a landlord may apply for a Termination Order if a Termination Notice has been given in accordance with section 85(1) and the tenant has not vacated the residential premises as required by the Notice. Pursuant to subsection 83(2) an application to the Tribunal by a landlord for a Termination Order must be made after the termination date specified in the termination notice and within the period prescribed by the RT Regulation. As noted, the date of termination and by which vacant possession was required specified in the Termination Notice was 1 October 2016. There is no dispute that the tenant failed to give the landlord vacant possession of the residential premises on that date or on any subsequent date up to the date of the hearing. The landlord’s application for a Termination Order was made by application dated 7 October 2016, which was received by the Tribunal Registry on 11 October 2016. The Application has thus been made after the date vacant possession was required to be given and within the time period prescribed for the making of such an application.

203. For the foregoing reasons the Tribunal is satisfied as required by section 85(3) of the RT Act that the Termination Notice was given in accordance with section 85 and it is otherwise satisfied that the Termination Notice complies with the other requirements of Part 5 of the RT Act (Termination of Tenancy). The Tribunal is also satisfied that the tenant has failed to give vacant possession as required by the Termination Notice and that the landlord’s application for a Termination Order has been made in accordance with Part 5 of the RT Act.

204. These circumstances enliven the statutory command contained in section 85(3) of the RT Act. The Tribunal must make a Termination Order in these circumstances. It has no discretion to do otherwise. The Tribunal will therefore make an Order terminating the RTA.

205. A Termination Order terminates the RTA that subsists between the parties, but it does not terminate the tenant’s estate in the land to which that contract relates. For that estate to be terminated, the Tribunal must make a separate order giving vacant possession of the land to the landlord: Progressive Mailing House P/L v Tabali 91985) 157 CLR 17.

206. Subsection 83(1) of the RT Act provides that when the Tribunal makes an order terminating a RTA, it must also make an order for possession of the residential premises specifying the day on which the order takes effect. While it requires that an order for possession must be made upon termination, it provides the Tribunal with discretion as to when it will order vacant possession be given.

207. Pursuant to section 114 of the RT the Tribunal also has the power to suspend the operation of an order for possession of residential premises. Section 114 is in the following terms:

114 Suspension of possession orders

(1) The Tribunal may suspend the operation of an order for possession of residential premises for a specified period if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the landlord and tenant by the suspension.

(2) The Tribunal may impose an obligation on a tenant to pay a specified occupation fee for the period for which the order for possession is suspended.

208. In my view, the test contained in sub-section 114(1) of the RT Act is also the appropriate test to be applied in determining the operative date for an Order for possession made pursuant to section 83(1) if an order for possession is not given on the date of termination.

209. On behalf of the landlord Ms Hase seeks an Order giving immediate possession of the residential premises to the landlord, or in the alternative as soon as possible. In this respect, Ms Hase submits that the tenant has already had a 93 day period pursuant to the Termination Notice to vacate the residential premises and a further 74 days to do so up to the date of the hearing. She submitted that the landlord’s circumstances have changed and he wants to recover possession of the residential premises so that he can take up residence in them. She submitted that the landlord is thus being seriously inconvenienced by the delay in the tenant giving up vacant possession, notwithstanding that the tenant is paying all rent due in accordance with the RTA.

210. Ms Hase indicated that she did not have any specific instructions from the landlord as to any externally imposed imperatives associated with the landlord’s desire to recover immediate possession. On this evidence, the Tribunal was satisfied that the landlord would experience inconvenience and frustration, but was unlikely to experience hardship, if the operative date for the Order for possession was delayed or suspended for a period in order to allow the tenant further time to vacate the residential premises.

211. On behalf of the tenant, Mr Khanna submitted he and his wife are both in ill-health and that this affected their capacity to find alternative accommodation and move out of the residential premises. Mr Khanna claimed that both he and his wife and chronic heart disease. He also claimed that they are both living with or recovering from physical injuries arising from accidents. Apart from Ms Khanna’s oral evidence, there is little objective evidence before the Tribunal that establishes the nature of any medical condition that Mr and Mrs Khanna may have, or how any such condition would impact on their ability to find alternative accommodation and move out of the residential premises.

212. The tenant’s evidence does include a copy of a letter to Mr Khanna’s General Practitioner dated 19 September 2016 from a Cardiology Specialist which confirms that both Mr and Mrs Khanna attended his offices for review on 17 August 2016. That letter sets out certain medical and other events and conditions and future investigation and treatment required by Mr Khanna. For privacy reasons, I will not traverse the contents of this report in any detail in these reasons. Suffice to say that the report provides some evidence of medical vulnerability and of planned further medical review and investigation. However, it does not in terms indicate that these conditions or the treatment plan associated with them would impact in any specific way on Mr Khanna’s ability to find alternative accommodation and move out of the residential premises. The highest this evidence rises in this respect is to the effect that Mr Khanna is to have a repeat stress echocardiogram in February 2017.

213. On this evidence I am satisfied that both Mr and Mrs Khanna have medical conditions and may have injuries which will make the task of finding alternative accommodation and moving out of the residential premises more difficult than it would be for most people in equivalent circumstances. This is to be taken into account in determining when they should be required to give vacant possession. However, it does not appear that there is any specific or acute medical vulnerability or planned treatment event that should be taken into account in determining when possession should be given.

214. The hearing of this Application occurred on 14 December 2016, in the lead up to the Christmas and New Year period. The Tribunal suggested to the parties that the mid-December to late January period is a period in which the rental property market significantly contracts which would make it more difficult for the tenant to find alternative accommodation. Neither party took issue with this proposition.

215. Weighing each of the competing considerations in the balance, the Tribunal determined to make an Order giving the landlord possession on the date of termination (being the date of these orders). However the order for possession is suspended until 27 February 2017. The Tribunal accepts that this delay will inconvenience the landlord but there was no evidence of any imperative externally imposed deadline governing the landlord’s desire to recover possession of the residential premises for the purpose of occupying them. Additionally, the evidence is that rent is being paid by the tenant in accordance with the RTA so there will be no financial exposure to the landlord on account of non-payment of rent during the period until vacant possession is given. On the other hand the December/January period is a period in which the tenant will experience significant challenges in finding alternative accommodation due to the contraction of the Sydney rental market during this period. The tenant and Mr Khanna also both have health conditions which mean that they will require reasonable time, from the date of termination of the tenancy, to find alternative accommodation and move out of the residential premises, notwithstanding that it is now 6 months since the Termination Notice that gives rise to these proceedings was given to them.

216. Until the date of vacant possession specified in these Orders, pursuant to sub-section 114(2) of the RT Act, the tenant is ordered to pay the landlord an occupation fee at the rate $72.85 per day, being one-seventh of the weekly rent formerly payable under the terms of the RTA.

Costs

217. Section 60 of the NCAT Act provides that the ordinary rule is that each party to a proceeding in the Tribunal is to bear its own costs. However, the ordinary rule is subject to exceptions. One such exception with potential relevance in this case is where there are special circumstances that warrant the making of an order for costs. Sub-section 60(3) sets out a series of factors that the Tribunal may consider in determining if special circumstances exist that warrant the making of an order for costs. A number of those factors are arguably present in this case.

218. In light of this the Tribunal grants leave to the landlord to make any application for costs by 13 February 2017. The tenant and Mr Khanna are to make any response to any application for costs by 27 February 2017.

Any application for costs will then be decided on the papers after that date.

P French

General Member

Civil and Administrative Tribunal of New South Wales

1 February 2017

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

Decision last updated: 24 March 2017