Abdel-Messih v Wang

Whether Leave to Appeal Out of Time Required

1. The tenant lodged his notice of appeal on 8 September 2017. The landlord submitted that the tenant required leave to proceed as the appeal was lodged one day late.
2. In residential tenancy proceedings, a notice of appeal must be lodged 'within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision 'whichever is the later': Civil and Administrative Tribunal Rules 2014, rule 25(4)(b). The date of the giving of the reasons for the orders made was 25 August 2017. The rule for the reckoning of time, rule 6, provides that 'If a time of one day or longer is to be reckoned by reference to a given day or event, the given day or the day of the given event is not to be counted': rule 6(3). Accordingly time under rule 25(4)(b) started to run on 26 August 2017. The appeal was therefore filed on the 14th day and is in time.

The Appeal

1. An appeal may be made by a party to proceedings 'as of right, in relation to any question of law' that might arise in connection with the proceedings or the reasons given by the Tribunal, or 'any other grounds' with the leave of the Appeal Panel: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b). In effect, 'other grounds' embraces questions that are not purely ones of law (so-called questions of mixed law and fact) and questions that are solely ones of fact. When exercising the discretion to allow grounds other than questions of law to be heard, the Appeal Panel, in this class of appeal (one from the Consumer and Commercial Division) must have regard to the criteria set out in cl 12 of Sch 4 to the NCAT Act.
2. In this instance, the tenant set out 7 grounds of appeal in the main section of the notice of appeal, and in the section concerned with applications for leave to extend the appeal to other grounds, included reasons addressing the criteria set out in cl 12 of Sch 4.
3. The parties exchanged submissions in accordance with the timetable set by directions. The tenant filed submissions on 24 October 2017 (49 pages) and the landlord replied to those on 17 November 2017. In addition the tenant filed a 'revised' version of the 24 October 2017 submissions on 1 November 2017 (61 pages) and a 're-revised' version of that document on 27 November 2017 (66 pages), the day before our hearing. The landlord's agent informed the Appeal Panel that she had only received them at 5 pm the night before the hearing.
4. We ruled that we would have regard to the appellant's written submissions as filed 24 October 2017, and the landlord's reply of 17 November 2017.
5. We ruled further that we would only have regard to the 're-revised' submissions - to the extent that it was not unfair to the landlord. In that regard the tenant did refer in oral submissions at para [16] to [17] (pp 4-7), and we have had regard to the points made there, which are in addition to the submissions filed 24 October 2017.
6. We note at this point that this litigation has all the hallmarks of prolixity. The Tribunal at first instance noted at least five prior matters to which the landlord and tenant had been parties, and disputes between the tenant and sub-tenants which has led at the least to one proceeding in this Tribunal in relation to the premises. The tenant has also been the applicant in a number of case involving sub-tenants in other premises that he is rented and made sub-let arrangements. This history is set out at [15] and [16] of the Tribunal's reasons.

Rent Arrears Order (Order 5)

1. There is one appeal ground relating to the order for rent arrears: Ground 4. It states: 4. The Tribunal may, via its own motion, amended the landlord's claim without the landlord's consent, to bring it within jurisdiction. In that circumstance, there was no jurisdiction to make Order 5.
2. The tenant contended that it was wrong of the Tribunal to adjust downwards to $15,000 the amount claimed by the landlord (which, as finally calculated by the landlord had been $15,536.29). It was said that this was wrong because there had been no application by the landlord for a lesser order than $15,536.29, and neither party had been given notice in the proceedings of such a possibility, and the tenant had thereby been denied procedural fairness.
3. The Tribunal can only make orders that it has jurisdiction to make, both as to the substance of the order and the amount of the order. The Tribunal found established the landlord's right to an order for rent arrears. The tenant did not dispute that there were rent arrears for the period in issue (see reasons [36.1]), and there was minor difference over the exact amount of the arrears, see [36.2]).
4. Assuming that the tenant is correct in his assertion that he was not put on notice of the Tribunal confining the order to the limit of its jurisdiction, he suffered no harm, but received a small benefit. The Tribunal had, in respect of making a money order for rent arrears, the jurisdictional power to make an order for an amount up to $15,000.00 in respect of rent arrears, irrespective of any agreement by the parties that the actual amount of arrears exceeded that figure. The order made for rent arrears, and the reasons at [10] simply reflects the jurisdictional power of the Tribunal, and there is nothing erroneous in the approach of the Member in this regard. This appeal ground is vexatious, in the sense that it has no prospect of success.
5. As Gleeson CJ has observed (Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice
6. The appellant suffered no practical injustice by not being alerted to this point, accepting for this purpose his assertion in that regard. The ground has no substance and is vexatious.
7. The application for leave to extend the appeal to grounds other than questions of law arising from the order for payment of rent arrears is refused for the same reasons.

Orders relating to Tenant's Application for Compensation for Unreasonable withholding of Consent for Partial Sub-Lets (Orders 6, 7)

1. The remainder of the tenant's appeal grounds relate to the way the Tribunal dealt with his application for an order for compensation in respect of the landlord's refusal to allow sub-letting. The bulk of the Tribunal's reasons is devoted to this application: paras [12]-[74], pages 6-35.
2. The appeal grounds are: 1. The appellant was denied procedural fairness. This comprises both a reasonable opportunity to respond to the landlord, and making findings without putting the substance of the matters before the appellant to make submissions which may bear upon the findings. 2. Especially the serious finding of the appellant not having told the truth. This comprises both procedural fairness and against the weight of the evidence. 3. The Tribunal had made substantial inaccuracies in its decision below, determinative to the decision, and against the weight of the evidence. 5. The Tribunal's assessment of reasonableness constitutes an error of law. 6. The Tribunal had went about its discovery in such an unorthodox manner, whereby it had allowed inadmissible evidence and drifted from its guiding principles in resolving the issues in dispute. 7. Consistent and repetitive errors of law throughout the Tribunal's decision.
3. It will be seen that with the exception of Ground 2, these grounds make generalisations about the Tribunal's reasons and do not clearly formulate any question of law with reference to specified parts of the reasons. Nor, in the case of procedural fairness objections, do they refer to specified conduct of the Tribunal that might be said to be unfair. The tenant's appeal submissions (the 24 October 2017 version) are then organised in a manner that does not adhere to the structure of the grounds of appeal. The submissions are very lengthy, 49 pages, and are accompanied by numerous attachments.
4. The landlord's reply to the appeal (filed 19 September 2017), prepared by the landlord's agent, rejects each of the grounds, and attaches numerous documents (such as email messages, account statements, pictures of the state of the premises). In our view the tenant is seeking to use the width of expression of his appeal grounds, and the breadth of the material placed before us, in a way that seeks to have us review the entirety of the proceedings below. This is an oppressive way to conduct an appeal.
5. Under the NCAT Act, the Appeal Panel's primary role (see s 80(2)(b)), is to hear and determine appeals in relation to questions of law, and leave is required in respect of supposed errors that do not qualify as involving questions of law. We must have regard to the strict criteria laid down by cl 12 sch 4 of the NCAT Act that limit the grant of leave to supposed errors of the latter kind.
6. In our view, the only matters that might reasonably be regarded as questions of law (taking account of the grounds of appeal as formulated, the tenant's written submissions, and his oral submissions at hearing) are these: 1. Did the Tribunal have regard only to relevant considerations in reaching the conclusion that the landlord had not unreasonably withheld consent 2. Did the Tribunal properly interpret the provisions governing the withholding of consent 3. Was it necessary for the Tribunal to take into account the dispute over the tenant's keeping of a dog, in breach of the lease, in considering the tenant's unreasonable refusal to sub-let application 4. Was the tenant accorded procedural fairness.

Tribunal's Reasons and the Relevant Provisions

1. At various points during the lease the tenant lived at the premises. At other times he lived elsewhere. From the beginning he was active in seeking people to occupy the premises, and enter into sub-tenancy agreements with them to that end.
2. The RTA provides: Section 74 (1) A tenant may ... sub-let the premises to another person, if the landlord gives written consent to the ... sub-letting. Section 75 (1) The landlord may withhold consent to a .. sub-letting relating to the whole tenancy or residential premises whether or not it is reasonable to do so. Section 75 (2) The landlord must not unreasonably withhold consent to a ... sub-letting of premises if [it] results only in ... the partial sub-letting of the residential premises occupied by the tenant. Section 75(3) then sets out - 'without limiting sub-section (2)' - a series of considerations that a landlord may properly have regard to. Section 75(5) permits a tenant to apply to the Tribunal for an order permitting sub-letting if the Tribunal 'is of the opinion that the landlord's failure to consent is unreasonable'. The tenant claimed that the landlord's failure to consent had been unreasonable.
3. The tenancy agreement as executed on 18 August 2016 included a clause prohibiting the tenant outright from engaging in sub-letting. This is not permissible under the RTA, and the Tribunal, differently constituted, so ruled in Wang v Abdel-Messih [2017] NSWCATCD 11 (22 February 2017). We note that the landlord did subsequently consent to the sub-let application that had given rise to those proceedings. The tenant's claim for compensation for unreasonable refusal covered the period 4 April 2017 to 21 July 2017. By this time the landlord had applied for termination orders, the first, as previously noted, on the ground of breach of the lease by keeping a pet dog at the premises, and the second, on the ground of rental arrears.
4. In deciding to dismiss the tenant's claim, the Tribunal took into account several matters. We highlight below some of the more important ones: 1. the adequacy or otherwise of the tenant's care in the management of the premises, in particular the tenant's keeping of the pet dog at the premises during part or all of the period from approximately November 2016 to March 2017. There were sub-tenant complaints over its soiling of the premises and the common area. 2. The tenant had been in breach of the lease and the strata rules. 3. the tenant's history of sub-letting arrangements affecting the premises since the commencement of his tenancy.
5. The Tribunal's reasons at [36] provide a detailed history of the disputes between the landlord and the tenant as to the giving and withholding of approvals for sub-tenants to occupy the premises, and the disputes that occurred between the tenant and his sub-tenants over their occupancy. There has been a welter of litigation. The various cases in which the tenant has been involved in the Tribunal relating to these premises in the period August 2016 to July 2017 are recounted there.
6. We will not seek to recapitulate all that material here. In summary, there were ten actual or prospective sub-tenants introduced to the premises by the tenant during this period some without prior approval, some with approval. The tenant has taken action against the landlord for losses said to arise from the landlord's unreasonable refusal to give approval for proposed sub-tenants, or unreasonable delays in that regard. 1. the tenant's testimony to the Tribunal in regard to his keeping of a dog at the premises ([56]) which the Tribunal described as 'false' 2. the fact at the time of the applications put in issue, the landlord was pursuing an application for a termination for alleged breach of the tenancy (initially the issue of the keeping of the dog, later the issue of rent arrears) giving rise to an obvious difficulty for the landlord in that any grant of consent might have adversely affected the landlord's claims, and might have, if the landlord was successful in obtaining a termination order, have required any sub-tenants to be evicted. 3. the history of the landlord's dealing with applications to consent to sub-let, noting that he had agreed to three 'and each had ended in dispute and one had resulted in litigation' ([58]) 4. the impact on the premises, wear and tear and the like, by acceding to further applications for sub-letting.
7. The Tribunal went on to reject various allegations made by the tenant against the landlord in relation to the alleged unreasonableness of the landlord's demands for information, verification of identity, passport and visa information and the like. The Tribunal also rejected his criticism of the landlord's desire for incoming prospective sub-tenants to be informed of the existence of termination proceedings, and the history of disputation that had affected previous sub-tenants, including instances of the tenant suing the sub-tenant for arrears and damage of other kinds.

(i) Did the Tribunal have regard only to relevant considerations in reaching the conclusion that the landlord had not unreasonably withheld consent

(ii) Did the Tribunal properly interpret the provisions governing the withholding of consent

1. In this instance in our view, the Tribunal's reasons, fairly read, show that it had regard to a range of factors that were reasonably relevant to the landlord's refusal to give consent. The factors started with the fact that at the time the tenant applied to the landlord (to allow a second person to occupy a bedroom in the flat, and a third person in an enclosed balcony) the applications for termination for breach were on foot. As the Tribunal cogently explained in its reasons, the landlord would have been at risk of an adverse finding in those proceedings if he consented to a course of use of the premises (through sub-lets) which might be seen as affirming the tenant's right to stay under the lease for the duration of the lease.
2. Moreover, there were good prudential reasons for the landlord's reluctance. The tenant had not supplied documentation, such as passports and visas, to verify the identity and right to residence of the persons proposed (often foreign students). It was plain in our view from comments made by the tenant at our hearing that he had the view that because the body corporate rules allowed up to four occupants in a flat of the kind he had rented (a two bedroom flat), the landlord should not stand in his way in allowing him to have three sub-tenants.
3. As the Tribunal noted in its reasons, a residential lease has a commercial character. It is clearly, a matter of concern for a landlord that he have in the flat people whose identity is known, and that they can be trusted in other ways, for example not to damage the flat. Reinforcing that point, the RTA itself at s 75(5) allows the landlord to access tenancy databases, which contain records that might be relevant to concerns of that kind.
4. It is also important that a relationship of trust exist between the landlord and the tenant on these issues. The landlord had taken termination action against the tenant for breach in relation to his keeping of a dog because there had been complaints from other residents. According to the landlord, the dog was not house-trained, and had urinated and defecated in common areas and inside the flat.
5. As a result of the termination applications being settled by consent, the Tribunal was no longer required to make any rulings on the allegations on which those applications were based, in particular the allegation in relation to the tenant's keeping of a dog. However, that did not prevent the Tribunal from having regard to the issues to which those applications had gone in assessing the factors that might have led the landlord to refuse the sub-let applications now the subject of dispute. The tenant's care in maintaining the premises was an issue that might reasonably be seen by a landlord as one bearing on a decision to allow sub-letting. In our view, the Tribunal had regard to relevant considerations in deciding whether the landlord had unreasonably withheld consent. It properly focussed on the matters that might influence a landlord's perspective, as this is the concern of the relevant provisions of the Act. It is not required to look at the matter from the point of view of the tenant, and the tenant's interest in, for example, splitting the rent impost of the tenancy agreement with other people that the tenant may have introduced to the premises, and are interested in living there.
6. As noted, in the course of its reasons, the Tribunal had regard to the tenant's history in relation to dealing with prospective sub-tenants, and depicted his activities as a kind of business operation. In our view, this is a matter which would clearly be in the mind of a landlord asked to approve sub-tenancy application. In the context of the evidence and the factual findings of the Member, there is no error of law arising from the Member's description of the tenant's activities as a 'sub-letting enterprise' and 'sub-letting business' at [73]. There is a big difference, practically, between a request to allow one or two sub-tenants for the bulk of the term remaining under the lease, and requests to allow sub-tenants for short duration (say 3 months) with the prospect of further applications. The Tribunal was seeking to look at the matter from a landlord's perspective (assessed objectively), which, as we see it, is what the statutory provisions require. This is reflected in the following observation of the Tribunal, with which we agree, at [57]: The tenant appears to approach the matter on the basis that the landlord was somehow under a duty to act promptly to approve sub-tenancies. The landlord had no such obligation. The landlord had his own interests to protect and obligations to fulfil. He was entitled to act cautiously with respect to those interests and obligations.
7. Grounds (i) and (ii) are dismissed.

(iii) Was it necessary for the Tribunal to take into account the dispute over the tenant's keeping of a dog, in breach of the lease, at the premises in considering the tenant's unreasonable refusal to sub-let application

1. The Tribunal had commenced hearing the landlord's application for termination on the ground of the tenant's breach of the lease by keeping the pet dog on 14 April 2017. It was part-heard on 21 July 2017 when the consent orders were made in relation to the two termination applications. The tenant's application for compensation for refusal to sub-let (17/16177) had been filed on 6 April 2017, but, as we understand the history given in the Tribunal's reasons [36.16-36.21] it came on for hearing on 21 July 2017.
2. While it was no longer necessary in its final reasons for the Tribunal to deal with the disputes that underlay the two termination applications, we are satisfied that the issue of the keeping of the dog in breach of the lease remained relevant to the consideration of the reasonableness of otherwise of the landlord's attitude to the tenant's application for permission to sub-let.
3. The Tribunal dealt with the tenant's conduct in bringing the dog onto the premises in this way (emphasis added): 55. There was really no dispute that the tenant had breached the RTA by keeping a dog at the premises. The question for the Tribunal was therefore whether this breach was, in all the circumstances, sufficiently serious to justify a termination to be made. The tenant's case, as I understood it at the time, was that he had remedied the breach by removing the dog in February 2017. He asserted this fact repeatedly in the course of the hearing while under a solemn promise to tell the truth. The landlord's case, as I understood it at the time, was that this was not the case, as the dog remained at the premises. Due to the consent orders made at the commencement of the hearing, I am not called upon to determine if a termination order should be made on the landlord's application. 56. However, after having carefully considered all of the evidence filed by the parties in relation to the termination application, I have no doubt that the tenant continued to have a dog at the premises after February 2017 and in all probability the dog remained at the premises at the date of the hearing. The landlord's case for a termination order on this ground was therefore never 'weak'. In my view it was likely to have succeeded, particularly in circumstances where it would appear that the tenant knowingly and repeatedly stated a falsehood about the presence of the dog at the premises while under a solemn promise to tell the truth to the Tribunal. In these circumstances, I think it unlikely that I would have been satisfied that there was any effective remedy for the breach other than a termination order.
4. Contrary to the tenant's submissions, we do not agree that the Tribunal was precluded by the making of the consent orders from continuing to turn its mind to dispute over the keeping of the dog in considering the reasonableness of the landlord's refusal to permit sub-lets. The tenant remained at risk of the use of that evidence in the present proceedings, and the possibility of a negative or adverse finding in relation to that evidence.
5. These were proceedings in which three applications because of their common facts and circumstances were, as at 21 July 2017, proceeding together. We note that the tenant had made a request as early as 22 May 2017 asking for the three applications to be heard together and that request was granted ([23] of Tribunal's reasons).
6. It was therefore open to the Tribunal to make credibility findings in respect of the tenant's evidence regarding having a dog at the premises. We are not satisfied that the tenant was taken by surprise by the Tribunal's consideration as part of the application that remained on foot of his evidence in relation to the keeping of the dog . As is reflected in the landlord's filings in connection with this appeal, there was a good deal of evidence submitted by the landlord to the Tribunal on the issue, and it strongly disputed the accuracy and honesty of the tenant's version of events.
7. Contrary to the tenant's submissions, we do not think that the Tribunal had any specific duty to warn the tenant that it might make adverse findings going to the honesty of his testimony on this issue. The issue was clearly in play between the parties.
8. Ground (iii) is dismissed.

(iv) Was the tenant accorded procedural fairness.

1. We will deal with this objection as it relates to order 6. It is clear, we think, that the Tribunal afforded the tenant an adequate opportunity to pursue his application. As the Tribunal clearly explained in its reasons, [31]-[33], the usual practice in courts and tribunals is that the conclusion of the hearing (here the afternoon of 21 July 2017) marks the end of the parties' opportunity to be heard. It also marks the point at which the court or tribunal moves on the deliberative stage of the process. The Tribunal also explained that there were no exceptional circumstances that might warrant any departure from the usual practice.
2. Ground (iv) is dismissed.

Application for Leave to Appeal on Other Grounds

1. The appellant must demonstrate that he may have suffered a substantial miscarriage of justice on one or more of the three grounds set out in cl 12 of Sch 4 of the NCAT Act.
2. The tenant wrongly asserts that the Tribunal 'limited its examination to the interests of the landlord'. What it did do, as we have already explained, was to apply the provisions of the legislation. As contemplated by ss 75(2) and (3) it examined closely the issue of whether the landlord had 'unreasonably' withheld consent to the partial sub-lets. It was entitled, as we have explained, to approach that question by having regard to what a fair-minded and reasonable landlord might do, in the circumstances of the case. The Tribunal proceeded in that way. It is not required to look at the case in a way that has regard to the perspectives of the fair-minded and reasonable tenant.
3. In our view, it cannot be credibly argued that the decision was 'not fair and equitable' (ground (a)) or that 'the decision of the Tribunal was against the weight of the evidence' (ground (b)). Ground (c) ('significant new evidence has arisen') was not raised.
4. The application for leave to appeal on other grounds is refused.

Costs

1. There is an application for the costs of the appeal from the landlord (see p 21 of respondent's submissions). We note that the landlord has not had legal representation in the course of these proceedings but has been represented by a professional agent.
2. The following directions are given: 1. No further submissions required from Respondent. But the Respondent is to file and serve a statement as to the amount of professional costs sought. Deadline: fourteen days from the publication of these reasons. 2. Appellant to file and serve brief submissions (not more than 1500 words) in reply to the respondent's submissions (at p 21 of its submissions in reply to the appeal). Deadline: twenty-eight days from the publication of these reasons. 3. The Tribunal proposes to determine the matter without any further hearing, subject to taking into account any submissions made by either party in that regard (see s 50 of the Civil and Administrative Appeal Tribunal Act 2013). The submissions on this point are to be no more than 500 words in length to be provided as part of the timetable set out in directions 1) and 2).

Order

1. Appeal dismissed.
2. Respondent's costs application to be dealt with in accordance with Directions given at para [58].
3. The stay orders made on 28 September 2017 are lifted.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2018