Tanious v NSW Land and Housing Corporation

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.

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.

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

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.

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:

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

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”.

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 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.

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]).

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.

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:

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].

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.

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.

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.

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.

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.

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.

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.

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.

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