Background
Sylvia Boscolo held a social-housing tenancy in Glebe. Her tenancy agreement required her to keep the premises reasonably clean and included a clause prohibiting hoarding that impaired residential use or created health, safety or pest risks. Following inspections, photographs, warnings and termination notices, the landlord applied to NCAT to terminate the tenancy.
NCAT refused Ms Boscolo’s adjournment application and terminated the agreement under s 87 of the Residential Tenancies Act 2010 (NSW), finding serious and continuing breaches relating to the condition of the premises and fire safety. NCAT’s Appeal Panel dismissed her challenge. Ms Boscolo then sought leave under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) to appeal to the Supreme Court on alleged questions of law.
The Court’s Holding
McGuire J refused leave to appeal, dismissed the Further Amended Summons and ordered Ms Boscolo to pay the Land and Housing Corporation’s costs. A Supreme Court appeal from an NCAT Appeal Panel is confined to a question of law and requires leave; it is not a further opportunity to determine disputed facts.
The proposed disability-discrimination grounds required factual findings that had not been established below, including whether Ms Boscolo had, or was thought by the landlord to have, a relevant disability within the Anti-Discrimination Act 1977 (NSW). Ms Boscolo had denied having a hoarding disorder, and there was no expert evidence of such a disability or evidence that the landlord believed she had one. The retaliation argument under s 115 of the Residential Tenancies Act was likewise not properly raised before NCAT or the Appeal Panel, and there was no evidence that the termination notice was motivated by her enforcement of tenancy rights rather than the established breaches.
The Court also admitted photographs taken during a smoke-alarm inspection. The exterior photograph was outside s 55A, while the interior photographs fell within the statutory allowance for communication between a landlord and its agent for inspection, maintenance or repair purposes.
Key Takeaways
- An appeal from an NCAT Appeal Panel under s 83 requires leave and a genuine question of law.
- A disability-discrimination challenge cannot succeed without evidence of the relevant disability, or of a presumed disability, and the necessary factual findings.
- A retaliatory-eviction claim requires evidence that the landlord was wholly or partly motivated by the tenant’s exercise of rights.
Why It Matters
The decision confirms the narrow supervisory role of the Supreme Court in NCAT appeals. Parties cannot recast unraised factual disputes as legal errors on appeal, particularly where the issue could have been explored through evidence before the tribunal.
For social-housing landlords and tenants, the case also illustrates that anti-discrimination and retaliatory-eviction protections require properly articulated claims supported by evidence, even where a tenant is self-represented.