Almahy v Jones

Background

1. On 1 November 2019, the respondent ("the landlord") commenced proceedings in the Tribunal. He sought termination of his residential tenancy agreement with the appellants ("the tenants") for non-payment of rent, under s 87 of the Residential Tenancies Act 2010 (NSW).
2. When the matter was first listed in the Tribunal, on 15 November 2019, the parties attended a conciliation and reached an agreement for resolving the dispute. The Tribunal then made consent orders, including an order terminating the residential tenancy agreement on 16 January 2020 and giving possession to the landlord on the date of occupation and an order requiring the tenant to pay the landlord a lump sum (in respect of rental arrears) by 6 December 2019.
3. On 15 January 2020, the tenants lodged an appeal from the Tribunal's decision. The tenants claimed that the consent orders did not accurately reflect the agreement they had made with the landlord. They said that the agreement was that, if they paid rental arrears by 6 December 2019, and had paid rent in advance by 17 January 2020, the residential tenancy agreement would not be terminated.
4. The tenants sought an extension of time to lodge the appeal. They said they only learned of the landlord's intention to evict them on 13 January 2020 and that, prior to that time, the real estate agent had confirmed that they would not be evicted if their rent was paid in advance by 17 January 2020.
5. The Appeal Panel granted a stay of the termination order on 28 January 2020.
6. We heard the application for leave to appeal and the appeal on 26 February 2020. Mr Almahy (also known as Mr Fathula) represented himself and the other tenant. Ms Wathen, the landlord's real estate agent, represented the landlord. We reserved our decision.
7. After the hearing, we noticed that, in an email to Mr Fathula on 13 January 2020, the real estate agent stated that "the owner" was "flying up from Melbourne to collect the keys from our office." The landlord's application to the Tribunal did not provide the landlord's residential address, but rather gave his address as "c/- Pulse Property Agents."
8. At our request, the registrar informed the parties that we needed some additional information and arranged for them to be available for a short telephone hearing on 4 March 2020.
9. At the telephone hearing, we asked Ms Wathen, who appeared for the landlord, and Mr Fathula, about the parties' residential addresses. Mr Wathen told us that the landlord lives in Melbourne. Mr Fathula said that, although he worked in Melbourne and often travelled interstate for work, he resided at the leased property in Sydney with his family and regularly worked from home.
10. We explained to Ms Wathen and Mr Fathula that there was an issue as to whether the Tribunal had jurisdiction in this matter, given that it appeared that the landlord and the tenants were residents of different States. We directed the parties to file any submissions or other material on the jurisdictional issue by close of business on 11 March 2020.
11. In response to the Appeal Panel's directions, Ms Wathen emailed the Tribunal, providing different information about the landlord's residence from the information she had provided at the Tribunal hearing. The documentary evidence she provided was evidence as to the landlord's address in November 2017. She stated that the information was confidential and could not be disclosed to the tenant.
12. On 17 March 2020, at our request, the Registrar wrote to the parties again, informing them that the landlord's representative had emailed to the Tribunal some evidence which she requested not be disclosed to the appellant. It said that it could not have regard to that evidence without providing it to the appellant in the absence of an order under s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), which had not been sought by the landlord. The Registrar informed the parties that the Tribunal had directed each of the parties to provide to the Tribunal and to the other party, within 7 days, evidence as to the party's residence as at the date of the commencement of the proceedings and, if a party had changed residence, evidence about this.
13. Neither party responded to these further directions.

Extension of time

1. The principles applicable to the extension of time were considered by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. Relevant factors include the length of the delay, the reason for the delay, whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent to the appeal.
2. We consider that it is appropriate to extend time for tenants to lodge their appeal. The tenants have provided a reasonable explanation for the delay and it was not excessive. The tenants appear to be arguing that the consent orders were affected by mistake. A consent order may be set aside if it is affected by matters such as fraud, mistake, duress or undue influence (Jones v Dempsey [2015] NSWCATAP 28 at [28]). The tenants' case is fairly arguable. They have been paying their rent such that any prejudice to the landlord is minimal.

Jurisdictional issue

1. As indicated above, the Appeal Panel raised a jurisdictional issue of its own motion. As this issue is capable of determining the appeal, we have considered it before considering the tenants' grounds of appeal.
2. The Tribunal does not have jurisdiction to hear disputes between residents of different States (Attorney General for NSW v Gatsby (2018) 99 NSWLR 1; Burns v Corbett (2018) 92 ALJR 423). This is because the Constitution provides, in s 75(iv), that the High Court has original jurisdiction in "all matters between … residents of different States" and, pursuant to s 77(iii) of the Constitution and s 39 of the Judiciary Act 1903 (Cth), that jurisdiction is invested in certain State courts. The Tribunal is not a "court of a State" (Attorney General for NSW v Gatsby (2018) 99 NSWLR 1) meaning that the High Court's original jurisdiction is not invested in the Tribunal.
3. The time at which jurisdiction is determined is the commencement of the proceedings. That is, the Tribunal does not have jurisdiction to hear or determine proceedings if the parties were residents of different States when proceedings were commenced (Watson v Marshall and Cade (1971) 124 CLR 621 at 623-624; Momcilovic v The Queen (2011) 245 CLR 1, Gummow J at 80 [134]).
4. The question arises as to which party, if any, has the onus to establish the facts on which the Tribunal's jurisdiction depends (that is, that the parties are not residents of different States).
5. As the Appeal Panel has stated, "in residential tenancy proceedings in the Tribunal, usually there is a legal burden upon the party seeking relief to prove its case which is not removed merely because the rules of evidence do not apply. Further, where the dispute involves civil proceedings, as is the present case, this is the ordinary standard of proof, namely the balance of probabilities" (Bull v NSW Land and Housing Corporation [2016] NSWCATAP 266 at [49]). This might suggest that the landlord, who seeks to invoke the Tribunal's jurisdiction, must prove the necessary facts on which that jurisdiction is founded. However, the Tribunal assumed the existence of those facts at first instance and, in an appeal, the appellant usually has the onus of proving the appellant's case.
6. In circumstances where it was necessary to establish that the parties were residents of different States for the High Court to have jurisdiction, the plaintiff was required to establish the facts which gave the High Court jurisdiction (Watson v Marshall and Cade (1971) 124 CLR 621 at 623). However, the High Court has also held that, "[i]n the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal" (R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-3). That is, where a court has undertaken an inquiry as to facts relevant to jurisdiction, and determined them, a person asserting that the factual findings are wrong has the onus of establishing that. The situation here could be seen to be different, because the Tribunal simply assumed that it had jurisdiction, without examining the relevant facts.
7. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (NCAT Act, s 38(2)). We consider that, in circumstances where the Appeal Panel has raised the issue of the Tribunal's jurisdiction and has provided the parties with opportunities to provide evidence relevant to the jurisdictional issue, it is appropriate to resolve the issue by asking ourselves whether we are satisfied that we have jurisdiction, and without applying an onus.
8. We are satisfied that the landlord has resided in Melbourne since the commencement of the proceedings in the Tribunal and the tenant has resided in Sydney during that period. The proceedings in the Tribunal were commenced in November 2019. On 13 January 2020, as indicated above, the real estate agent informed the tenant that "the owner" was "flying up from Melbourne to collect the keys from our office." This email conveyed that the purpose of the owner's trip up from Melbourne was to collect the keys. If the owner lived in New South Wales, one would not expect the agent to describe the purpose of the owner's trip as being the collection of keys. Further, the agent informed us that the landlord lived in Victoria on 4 March 2020. Whilst she later sought to retract this in an email which was not copied to the tenant, the landlord has not provided the Appeal Panel with any evidence as to his residential address as at November 2019.
9. We accept the tenant's evidence that, although he travels for work, he comes home on weekends to be with his family at the premises he is renting from the landlord, and that he also regularly works at home. We find that his residence is in New South Wales, and that he was a resident of this State when the proceedings were commenced.
10. It follows that the Tribunal did not have jurisdiction to determine the dispute between the parties and the Appeal Panel does not have jurisdiction to determine the appeal. We have accordingly decided to determine the appeal on the jurisdictional ground which we raised. We have decided to extend time for the commencement of the appeal, to allow the appeal, to lift the stay and to make orders pursuant to s 81(1) of the NCAT Act setting aside the Tribunal's orders and substituting for those orders an order declining to accept the landlord's application.
11. We note that a party may choose to make an application to the District Court or the Local Court in accordance with Part 3A of the NCAT Act. That Part provides that each of those courts may grant leave for an application to be made to it where, amongst other things, the determination of an application by the Tribunal would involve an exercise of federal jurisdiction.

Orders

1. We make the following orders: 1. The time to file the Notice of Appeal is extended to 15 January 2020. 2. The appeal is allowed. 3. The Tribunal's orders made on 15 November 2019 are set aside. 4. In substitution for those orders, the Tribunal declines to accept the application of the applicant (Brent Jones). 5. The stay order made by the Appeal Panel on 28 January 2020 is 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: 28 April 2020