APPEALS — leave to appeal decision of Appeal Panel of NSW Civil and Administrative Tribunal (NCAT) — Civil and Administrative Tribunal Act 2013 (NSW), s 83 — refusal to grant leave to appeal NCAT’s decision — termination of social housing tenancy agreement — breaches of agreement requiring reasonably clean premises and prohibiting hoarding — whether the clause prohibiting hoarding involved disability discrimination — no evidence landlord was aware of any presumed disorder — whether termination notice retaliatory — no evidence of any motivation to terminate on that basis — neither discrimination or retaliation grounds raised at first instance — factual determinations required which cannot properly be raised here — leave refused
EVIDENCE — objection to tender of photographs documenting cleanliness of premises — Residential Tenancies Act 2010 (NSW), s 55A — where smoke alarm inspector disseminated photographs of the premises’ exterior and interior to the landlord whilst carrying out inspections — dissemination of exterior photograph outside terms of provision — dissemination of interior photographs allowable between agent and landlord for approved purpose — photographs not impermissibly “published” by email or tender — tender admissible
Quick Take
1An appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) is confined to questions of law from the Appeal Panel's decision; a challenge that is wholly or partly factual cannot be converted into a question of law merely by asserting that a question of law is involved, and the court will not construct complex arguments not raised below.
2Establishing that a tenancy termination involved disability discrimination under the Anti-Discrimination Act 1977 (NSW) — whether on the basis of actual or presumed disability — requires factual evidence including as to the nature of the disorder, its effect on the person, and the landlord's knowledge or belief; mere references to 'hoarding' in inspection reports are insufficient to prove the landlord thought the tenant had a disability within the statutory definition.
3Section 55A of the Residential Tenancies Act 2010 (NSW) prohibiting publication of interior photographs of tenanted premises does not apply to exterior photographs, and dissemination of interior photographs solely between a landlord's agent and the landlord for inspection or maintenance purposes is excluded from the prohibition by s 55A(5).
