Tanious v NSW Land and Housing Corporation

[2017] NSWCA 43

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Tanious v NSW Land and Housing Corporation [2017] NSWCA 43
Hearing dates:	7 March 2017
Date of orders:	07 March 2017
Decision date:	07 March 2017
Before:	Leeming JA; Payne JA
Decision:	Application for leave to appeal dismissed.
Catchwords:	JUDICIAL REVIEW – Leave to appeal from decision of NCAT on question of law – NCAT confirmed decision to remove metal coverings from tenants windows – No question of law – No question warranting grant of leave – Application for leave to appeal dismissed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 83 Residential Tenancies Act 2010 (NSW), s 187
Cases Cited:	The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Category:	Principal judgment
Parties:	Mofeed Louis Tanious (Applicant) NSW Land and Housing Corporation (Respondent)
Representation:	Counsel: Applicant in person Mr C McMeniman (Respondent)   Solicitors: NSW Department of Family and Community Services (Respondent)
File Number(s):	2016/372861
Decision under appeal	Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: [2016] NSWCATAP 246 Date of Decision: 15 November 2016 Before: Wright J (President); Emeritus Professor Walker (Senior Member) File Number(s): SH 16/25006

EX TEMPORE Judgment

1. THE COURT: This is an application for leave to appeal from a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT) dated 15 November 2016: Tanious v NSW Land and Housing Corporation [2016] NSWCATAP 246. The Appeal Panel dismissed Mr Tanious’ appeal insofar as it was on a question of law, and otherwise refused to grant leave to appeal from a first instance decision of NCAT constituted by a general member made on 10 August 2016. A further appeal lies to this Court, where the appellate jurisdiction is narrower still. An appeal lies only by leave, and even then the appeal is confined to a question of law: Civil and Administrative Tribunal Act 2013 (NSW), s 83(1). The application for leave lies to the Court of Appeal, because the Appeal Panel was constituted by a judicial member and a senior member.

2. The underlying facts are straightforward. Mr Tanious has lived in a freestanding house in Peakhurst since at least 2005, which was originally let by the respondent to his mother. The tenancy agreement was transferred to Mr Tanious after her death. There is no dispute that Mr Tanious has substantially covered most of the area of the windows and some doors of the house with metal strips.

3. The Appeal Panel’s reasons record at [5] the following:

“At some time in or after 2013, Mr Tanious obtained strips of scrap metal and made coverings for the windows and some doors of the house from those strips. He fixed these coverings externally to the window frames and some door frames of the house with what appear to be sliding bolts. The coverings generally have two small slots at the top but otherwise cover the majority of the opening where they are located. Although described in the orders and reasons for decision of the Tribunal at first instance as ‘shutters’, the photographs of the coverings appear to show that the strips of metal were not able to be angled or moved so as to admit light or air.”

The reasons of the Appeal Panel included the following photographs of the house.

Figure 1 [View of one window of the house with the covering in place.]

Figure 2 [View of the front of the house from a distance showing coverings on three windows.]

4. Although, prior to the decisions of NCAT, the respondent had attempted to terminate Mr Tanious’ tenancy, that is not the subject matter of the present dispute. The respondent’s application to NCAT had extended to an order under s 187 of the Residential Tenancies Act 2010 (NSW) for Mr Tanious to remove the shutters. That order was made, requiring him to do so on or before 14 days from the date of the decision (10 August 2016). That order has not, so far as the materials available to this Court reveal, been stayed.

5. Mr Tanious brought an appeal from that order to the Appeal Panel, which was heard on 24 October 2016. The reasons of the Appeal Panel made reference to reports from the local council District Building Surveyor, dated 15 April and 22 June 2016, which state that the metal structures covering the windows “do not allow natural light and ventilation into the dwelling” and “present a health risk to its occupants”. Those letters were addressed to the respondent, the owner of the land. The earlier letter had stated that:

“Council requires all metal structures covering windows and door openings to be removed within seven (7) days from the date of this letter. Failing which, Council will consider all legal avenues available so as to rectify the matter.”

6. Clauses 12, 25 and 26 of Mr Tanious’ tenancy agreement relevantly provided:

“TENANT’S RIGHT TO QUIET ENJOYMENT

12. The landlord agrees:

12.1 that the tenant will have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title to that of the landlord, and

12.2 that the landlord or the landlord’s agent will not interfere with, or cause or permit any interference with, the reasonable peace comfort or privacy of the tenant in using the residential premises, and

12.3 that the landlord or the landlord’s agent will take all reasonable steps to ensure that the landlord’s other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises.

…

ALTERATIONS AND ADDITIONS TO THE PREMISES

25. The tenant agrees:

25.1 not to install any fixture or renovate, alter or add to the residential premises without the landlord’s written permission, and

…

26. The landlord agrees not to unreasonably refuse permission for the installation of a fixture by the tenant or to a minor alteration, addition or renovation by the tenant.”

7. The Appeal Panel addressed Mr Tanious’ arguments that his right to quiet enjoyment of the premises, and his right for the landlord to not unreasonably refuse permission for the installation of a fixture, entitled him to install the metal coverings, which he said “ensured his quiet enjoyment of the house by excluding noise, keeping the house warm and preserving his privacy”.

8. The Appeal Panel rejected Mr Tanious’ argument based on the right to quiet enjoyment, saying that it was based on a misunderstanding. The Appeal Panel said at [43]:

“The right to quiet enjoyment is not a right conferred on the tenant to take any action which in the tenant’s opinion might contribute to the tenant’s comfort, privacy or enjoyment of the property. Rather, as the terms of cl 12 itself make clear, the right to quiet enjoyment involves only the prohibition on the landlord or any person claiming through or under the landlord from interfering with the tenant’s possession or lawful enjoyment of the premises the subject of the tenancy.”

9. The Appeal Panel rejected Mr Tanious’ submissions based on the unreasonable withholding of consent because (a) Mr Tanious had not sought the respondent’s written permission, and (b) had permission been sought, it would not have been unreasonable to withhold consent given the stance of the local council.

10. The Appeal Panel also rejected Mr Tanious’ submission that it was an error for the Tribunal to have relied upon the letters from the District Building Surveyor, and refused leave to rely on further evidence (summarised at [72]-[88]).

11. Finally, the Appeal Panel addressed a range of particular matters sought to be raised by Mr Tanious at [89]-[97], as to which he required leave, and refused to grant leave.

12. Mr Tanious is unrepresented in this Court (and appears to have been unrepresented at all stages in NCAT). His proposed grounds of appeal are as follows:

“1   The decision from the court below has depended on unreliable evidence according to the evidence Act 1995 section 165 (1) (a) (hearsay evidence) as the expert did not inter inside the home as the information was provided in the letter. Inside has become well ventilated and sunlight can go in without damaging this metal cover. The presence of a lot of small spaces as appeared from the picture allowed air to easily inter inside the home in addition to this metal turn hot when exposed to sun reflecting heat to inside that is to say contradictory to what the expert said. The expert and the respondent did not provide any affidavit in order to confirm the information was provided.

2   The decision has considered the metal cover as a fixture contradictory to the fact of it did not replace the window and door frames which was permanently fixed to the walls but it replaced the previous non-functioning shutter which was not a fixture. It can easily be removed and reinstalled again by one person only that is to say it was not permanently fixed to the building in addition to it was easily be bended and light in weight making it safe to be used by one person only.

3   The appellant has the right to install the metal cover in order to protect his privacy and securing the premises according to clause 12 of the residential tenancy agreement in addition to the appellant verbally looked for alternative from the respondent office Ms LORRAINE HYLAND from HURTVILLE [sic] office in 2005 when the appellant started to live permanently in the premises before installing the metal cover who verbally confirmed that was the appellant responsibility that is to say no need for previous written permission according to clause 25 of the residential tenancy agreement in addition to clause 26 prevent the respondent from holding such permission.

4   The court below has refused to make a phone call to the respondent technical officer MR ALEX VELDHOEN on his mobile number […] and MR PAT McCARRTHY on his mobile number […] during the hearing day on 24th of October 2016 both expert can provide more information in order to clarify this proceedings.

5   Respondent has intentionally acted high handed in repeating notice of termination for the applicant's tenancy with tribunal proceedings file number SH15 / 66143 which was dismissed for failure of the respondent to come up and the file number SH 16 / 10383 which was dismissed again because respondent has provided wrong information. The mentioned both cases had the same reasons to the current proceedings that is to say respondent did not provide new matter in order to have new decision to order applicant removing the metal cover confirming the bias way in which the court below has dealt with the current proceedings in addition to respondent has recently issued advice of potential relocation for the applicant on 24th of November 2016, another notice of termination for the tenancy on 29th of November 2016, and confirmation for relocation on 1st of December 2016 that is to say the major respondent's target is to terminate the appellant's tenancy in order to be able to sale the home neglecting the fact of appellant has laid paving more than 100 tone all over the home on his own expenses which was approved by the respondent's officer for the appellant with a written consent in 2010 after the applicant has started that work. The question should find an answer will respondent pay the cost all of this work for the appellant??”

13. The respondent opposed the grant of leave, submitting, first, that the application disclosed no question of law, and secondly, that it disclosed no issue of principle or issue of public importance or circumstances where it is reasonably clear that an injustice has occurred by reason of some error going beyond what is merely arguable: The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13].

14. On the question of leave, Mr Tanious points to the fact that, subsequent to the decision of the Appeal Panel, he has received notice of termination, based upon his continuing failure to remove the metal coverings from the windows and doors of the premises. The notice is dated 29 November 2016, and required him to give vacant possession of the premises on 18 December 2016. However, notwithstanding the terms of that notice, it was common ground at the bar table that Mr Tanious remains in possession of the premises.

15. Mr Tanious’ submissions reiterate what had previously been said by him, relying on the rights under cll 12 and 26 of the tenancy agreement. He also maintains that the metal covers are not a fixture, because they have not been permanently fixed to the building, and may easily be removed.

16. He also makes allegations of unfairness and bias from the respondent, and says that there has been “unreliable evidence” on which NCAT relied, and “negligence for all factual evidence of witnesses to provide further evidence over the phone in order to support [Mr Tanious’] opinion.

17. The reasons of the Appeal Panel in relation to cll 12, 25 and 26 are plainly correct. Even if, which is not shown by any of the evidence, Mr Tanious is right and the metal coverings are not fixtures, cl 25 is not confined to fixtures, but extends to alterations and additions. In this Court in oral submissions Mr Tanious contended that cll 25 and 26 were confined to fixtures. However, the structure of cl 26, which is reproduced above, shows that that is not so. In any event, there is no error, even taking Mr Tanious’ submissions at their highest, which gives rise to a question of law.

18. Mr Tanious’ complaints about the evidence relied upon below should also be rejected. No error was shown in the way the Appeal Panel dealt with that evidence, especially at [57], [61] and [62]. In any event, Mr Tanious’ complaints about the admissibility of the opinions expressed in the letters from the District Building Surveyor from Hurstville Council, and that there was no evidence for the matters relied upon by the respondent, are misconceived. The fact that the Hurstville City Council made the demand referred to at [14] of the Appeal Panel’s reasons was a sufficient basis for the respondent to act as it did. The correctness of the opinions expressed by the Council was not a matter that the Appeal Panel was required to address. And, once again, taking Mr Tanious’ submissions at their highest, there is no error giving rise to a question of law.

19. Although Mr Tanious makes the serious allegation of bias, there is nothing in the materials available to this Court to suggest that there is any proper foundation for the submission, let alone that it was made out.

20. Mr Tanious has referred in oral submissions to the past history of his dealings with the respondent, but it plain from the materials that this application is based not on those earlier dealings between him and the respondent, but was generated by the dispute seen in the correspondence from the District Building Surveyor of the local council.

21. It is not necessary to address the balance of Mr Tanious’ submissions in any detail. They do not on any view amount to an error of law, let alone an error of law warranting the grant of leave. There was no error of law on the part of the Appeal Panel in refusing leave to deal with those submissions.

22. For those reasons, the Court’s order is that the application for leave to appeal is dismissed.

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Decision last updated: 10 March 2017