Armee v Brealey

NCAT Appeal Panel|2016-08-02|Before: Dr J

32 NSWLR 524 Sola Optical Australia Pty Limited v Mills (1987) 163 CLR 628 Squire v Rogers (1979) 27 ALR 330; 39 FLR 106 Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 Texts Cited: Nil Category: Principal judgment Parties: Saskia Gabriella Reka Armee (Appellant) David Brealey (Respondent) Representation: Solicitors: Robertson Saxton Primrose Dunn (Appellant) Arnotts Lawyers (Respondent) File Number(s): AP 16/25242 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 11 May 2016 Before: S De Jersey, General Member File Number(s): RT 16/11790

REASONS FOR DECISION

This is an appeal from an order made by the Tribunal on 11 May 2016 that the application of Saskia Armee (the appellant) be dismissed.
For the purpose of conducting the appeal on grounds of appeal 1 - 5, the Appeal Panel admitted into evidence a statement by the appellant dated 24 June 2016 and other documents. Some of those documents will be referred to in these reasons.
Those documents show that the appellant and Richard Cabala, as tenants, entered into a standard form residential tenancy agreement (the agreement) on 29 September 2015, with David Brealey (the respondent). The agreement related to residential premises in Newport at a rent of $2,000 per fortnight.

History of the proceedings

On 4 March 2016, the appellant filed in the Tribunal a tenancy application in the Consumer and Commercial Division.
Paragraph 12 in the tenancy application asked the question: "What order/s do you want?". That was answered by referring to ss31, 45, 65 (5), 65 (1) (a), 187 (1) (d), 187 (1) (f) and 187 (1) (h) of the Residential Tenancies Act 2010 The terms of the orders sought were written in as follows: "Health issues, smoke alarms, safety of decks Rent to be paid to the Tribunal until repairs are done adequately Address health & safety hazards Compensation of rent (30%) from start of lease + damages to personal belongings". There was also written into the form: "Order: repair & rent reduction on 30%."
The question in the application: "What are your reasons for requesting the order/s?" was answered as follows: Landlord denies issues and refuses rent reduction and compensation after we flagged health, safety and compliance issues on numerous occasions over a period of 5 months. These issues have been confirmed in an independent building inspection report. We have suffered damages to our personal belongings and loss of work time. The ingoing condition report contains errors and this was ignored. We tried to resolve it with the real estate agent, but they neglected their duty of care. The property is not worth what we pay in rent due to long term neglect. We are concerned about the safety of our kids & the whole family. Major issues are: rotten decks, balustrades, outdoor wooden stairs/steps, rat infestation, damp & mould issues, faulty wiring, failure of waterproof membrane in ensuite bathroom and garage, poor ventilation, leaking gutters, faulty glass shower door, insulation. Smoke alarms have been installed only after we said we would go to Fair Trading, four months after we moved in (please see attached report.)
Attached was a 53 page report. It was described as "Sydney PrePurchase". It was stated to be a combined pre-purchase and building & timber pest inspection report. It was said to contain two stand-alone reports - one was a building report and the other was a timber pest report.
At the first group list hearing on 23 March 2016, orders were made for the appellant to provide a copy of her amended claim and all documentary evidence by 6 April 2016.
A notice of formal hearing was sent out by the Tribunal on 5 April 2016 notifying the parties that the hearing would be on 11 May 2016.
On 14 April 2016 at the request of the appellant, the time for the appellant to provide her evidence was extended to 22 April 2016.
On 22 April the appellant sought a further extension of time to 2 May 2016.
By the time this request was considered by the Tribunal on 6 May the appellant had not provided any documents.
The request for the extension was refused.
The first time the respondent was given a copy of the amended claim and the documents to be relied upon by the appellant, was at the beginning of the hearing which commenced on 11 May.
The respondent had provided his documentary evidence in accordance with the extension of time orders made on 14 April.
In her written statement of reasons, the Tribunal Member dealt initially with what she described as "the tenant's application to serve documents out of time" (the first application). After she refused that application she dealt with what she described in her statement of reasons as "the tenant's adjournment application."
In her reasons dealing with the first application, the Tribunal Member recorded that the appellant arrived at the hearing with two folders of evidence for each of the landlord and the Tribunal which had not been provided to either the landlord or the Tribunal prior to that day's hearing. She sought to file them, so they could be relied upon during the hearing.
The Tribunal Member then recorded what appears in pars 9 - 16 above.

Ruling on first application (application to rely upon late evidence)

The Tribunal Member then recorded that the respondent did not consent "on the basis that: the landlord and his agent had been unable to prepare a response to the tenant's claims and had provided their evidence on time without knowing what the tenant's evidence would be. I refused the application on the basis that the tenant had had more than sufficient time to prepare her evidence and that most". That sentence concluded with the word "most".
The Tribunal Member's statement of reasons does not record that she considered the appellant's prospects of success on the mould claim, which we deal with in more detail below. There is nothing in the statement of reasons which would support a finding that the Tribunal Member considered the appellant's prospects of success when she was dealing with the first application.

Ruling on second application (adjournment application)

Immediately after making the ruling recorded in par 20 above, the Tribunal Member dealt with the second application in these terms: Given my refusal to grant leave to extend time to have the documents provided today, the applicant asked for an adjournment of the hearing. This application was not consented to as the landlord had travelled from Byron Bay to attend the hearing, and arranged for the agent to attend. The landlord was ready to proceed with the hearing and wished to do so. The adjournment application was refused by the Tribunal on the basis of the Tribunal's guiding principles set out in section 36 of the Civil and Administrative Tribunal Act 2013 which provides that the Tribunal must facilitate the quick, just and cheap resolution of issues in dispute between the parties. Parties are under a duty to cooperate with this principle. An adjournment necessitated by the tenant's breach of the orders to provide documents in accordance with the orders dated 23 March 2016 and 14 April 2016, would not be in accordance with the principles set out in section 36 and would cause inconvenience to the landlord. For these reasons the application for an adjournment was refused.
There is nothing in the statement of reasons which would support a finding that the Tribunal Member considered the appellant's prospects of success on the mould claim when she was dealing with the second application. Nor was there anything to suggest that she considered the appellant's explanation for her failure to serve evidence within the time provided for in the Tribunal's directions.

The Tribunal Member's statement of reasons

We have dealt above in pars 9 to 20 with the background to and the Tribunal Member's statement of reasons which relate to the first application.
After refusing that first application, the Tribunal Member dealt with the second application as shown by par 22 above.
Under a heading "The hearing," the statement of reasons then moved to the hearing and recorded that after the refusal of the adjournment, the parties attended conciliation with the Tribunal's conciliator but the matter did not resolve. The reasons recorded that the hearing proceeded on the oral evidence of the parties, the documentary evidence of the respondent which had been provided in accordance with the previous orders of the Tribunal and any documentary evidence that had been provided from the appellant to the respondent prior to that day's hearing. The reasons record that the appellant identified those documents as being the Sydney Pre-Purchase Report attached to the application and an email from the appellant to the Tribunal and the respondent dated 6 May 2016 sent at 4.48pm (that is, five days before the hearing). The reasons record that the "tenant" (but obviously intended to read "landlord") "objected to the report from Dr Heike Neumeister-Kemp which was attached to that email as they had not had sufficient opportunity to get advice to respond to it. The Tribunal stated in its reasons: I considered it fair to uphold this objection due to the prejudice to the other party and did not allow the report in."
The Tribunal Member then dealt with the appellant's claims. The reasons record that the appellant "confirmed at the beginning of the hearing that she was seeking compensation in the amount of $22,163.44 for breach by the landlord to fail to maintain the premises in a reasonable state of repair, having regard to the age of, rent payable for, and prospective life of the premises. This is the obligation set out in s 63 of the Residential Tenancies Act. The tenant was informed that the Tribunal's jurisdiction is $15,000 which means that no order can be made in excess of $15,000."
The reasons recorded the following: the appellant had a 2 page spreadsheet listing approximately 50 separate items with a monetary amount specified for each item. This spreadsheet was not provided to the respondent prior to that day's hearing. The Tribunal Member accepted it as part of the appellant's documents because it did not constitute evidence as such, but was rather a points of claim document setting out the particulars of the compensation claim. The claim covered compensation for the following items: damp rid products; damaged personal items such as shoes, hairdryer, hair clips, mattresses, clothes; expert reports; medication; dry-cleaning; secure storage; insurance at temporary accommodation; temporary accommodation; takeaway meals; takeaway coffees; medical appointment charges; car hire; taxi fares; stationery; and data based checks. The appellant said these claims were supported by receipts and invoices which were in her folder of documents. However, none of those receipts and invoices was allowed into evidence.
The statement of reasons then summarised the appellant's oral evidence. That summary included the following: 1. very early in the tenancy the appellant noticed mould inside a storage cupboard: the appellant emailed the agency regularly for four months regarding repairs to stop the leaks, repairs to venetian blinds, the smoke alarm not being fitted; a number of trades persons attended during the tenancy to do repairs - plumber, electrician, handyman, pest control contractor and gardener; the appellant followed up the agency by email at least once a month (sometimes twice or three times) regarding what had not been repaired; 2. there was a continuing smell of mould during the tenancy; many items had been affected by mould - clothes, personal belongings, children's rooms, furniture; after the tenant warned the agent that she would file an application to the Tribunal a large number of outstanding matters were attended to; 3. one of the main concerns was the deck and balustrades which the appellant claimed were not structurally sound - this was first raised by the appellant by an email dated 12 January 2016; a carpenter engaged by the respondent did some repair work; 4. the respondent refused to give the appellant access to under the house - it was locked and she was not provided with a key; this prevented her being able to prepare a report for the hearing; 5. on 13 February 2016 part of the landing collapsed under the appellant's partner's feet; 6. the appellant was concerned for the wellbeing of her family and moved into temporary accommodation in April and May 2016; 7. the appellant stopped paying rent when she received a report stating that the premises were not safe to live in; 8. the appellant relied on the report from Sydney Pre-Purchase dated 15 February 2016 and commissioned by the respondent. The report stated as follows: the front entrance timber steps had decay and the step structure was leaning due to structural inadequacy; the rear timber steps had completely failed around the landing area with extensive wood rot; the rear timber steps were also leaning away from the main deck; some of the timber decking boards were decayed and were a potential safety hazard; timber handrails had deteriorated; the report also set out water penetration issues which the appellant said she was not aware of until she received a copy of the report.
The statement of reasons then summarised the respondent's (and agent's) evidence and that summary included the following: 1. the agent had attended to many issues during the tenancy when raised by the appellant; 2. the issue of the deck and timber steps and balustrades was first raised by the appellant in an email dated 9 February 2016; 3. the agent engaged a carpenter to inspect the structures and he rectified the damaged boards and reattached the balustrades - this work was done within 24 hours of the complaint; 4. a further complaint was made by the appellant regarding damaged boards on a lower landing on Saturday 13 February 2016; 5. this was the first time this complaint had been raised and the respondent arranged for a carpenter to attend on Monday 15 February 2016; 6. the carpenter placed an order for the required material on that day and the carpenter commenced and completed the work on Monday 22 February 2016; 7. due to continued concerns by the appellant, the respondent commissioned the report from Sydney Pre-Purchase dated 15 February 2016 and this report was immediately made available to the appellant; 8. due to repeated complaints about mould, the respondent arranged for Mould Rescue to do a report on 15 March 2016; 9. that report indicated that there was a high level of relative humidity and lack of ventilation; 10. the appellant's claim of faulty wiring was not substantiated; 11. the appellant's rent was paid up to 15 April 2016 12. the appellant was still living at the premises and the respondent had issued a notice of termination based on rent arrears.
Under a heading "Decision," the Tribunal Member noted "that most of the items claimed for compensation had been incurred after the proceedings were commenced, and indeed since the first group list hearing on 23 March 2016". The statement of reasons then continued as follows: There are several reasons why the applicant's claim is dismissed: 1. For mould related claims, a claim regarding any such breach should have been brought within 3 months of first being aware of the claimed breach (section 190 of the Residential Tenancies Act and Regulation 22 (9). Based on the tenant's oral evidence that she emailed the agency in mid-October 2015 to complain about the mould and the smell of the mould and which was repeatedly raised in emails, that the tenant was first aware of the mould issue about 15 October 2015. The emails were not in evidence. The Tribunal has power to extend time for bringing the claim if a satisfactory reason is provided to explain the delay. The tenant's oral evidence was that the reason she did not bring a claim earlier was because the agent told her there was no issue. I am not satisfied that this reason has sufficient merit to exercise my discretion to extend time. 2. With respect to the claims relating to the structural issues, I find that the tenant was not aware of these issues until she received the Sydney Pre-Purchase report about 17 February 2016. I find that as soon as the landlord was aware of the tenant's complaint, he engaged a carpenter to examine and repair the problem. There was no evidence before the Tribunal whether the carpenter was a licenced builder or not. However there was no evidence before the Tribunal from the tenant that the work done by the carpenter failed to render these structures safe. Accordingly the tenant has not established on the balance of probabilities that the landlord was in breach of the covenant to maintain the premises. I find that the landlord attended to the repairs as soon as he was notified of the issue. 3. There are no receipts in evidence to establish the quantum of any of the items claimed in the schedule, even if liability could be proven on the balance of probabilities, which it has not. For these reasons the application is dismissed.

Notice of appeal

On 27 May 2016 the appellant filed a notice of appeal which contained the following seven grounds of appeal: 1. The Tribunal Member erred in refusing to grant leave for the Applicant to serve documents out of time. 2. The Tribunal Member erred in finding that the Applicant had not served any documents before the hearing. 3. The Tribunal Member erred in failing to have regard to evidence served within time explaining the Applicant's inability to obtain and serve the required evidence due to the Respondent's breach of the Residential Tenancy Agreement, namely the Applicant's right to vacant and exclusive possession of the subject property and the Respondent's refusal to provide a security code to the crawl space, being the source of the mould problem. 4. The Tribunal Member erred in refusing to grant an adjournment of the hearing to allow the Respondent to adequately respond to the Applicant's evidence. 5. The Tribunal Member erred in applying section 36 of the Civil and Administrative Tribunal Act 2013 in that the Tribunal Member's powers were not exercised in a manner that facilitated the just, quick and cheap resolution of the real issues in the proceedings. The proper exercise of the Tribunal's powers required the adjournment of the hearing and the finding of special circumstances that would have permitted a costs order to be made in the Respondent's favour for the Respondent's costs thrown away of attending the 11 May 2016 hearing, should that have been considered necessary. 6. The Tribunal Member erred in finding that the Applicant was first aware of an actionable and significant mould complaint in October 2015 and therefore that the Applicant was barred pursuant to s 190 Residential Tenancies Act. 7. The Tribunal Member erred in failing to have regard to evidence served within time that would justify the tribunal extending time for bringing a claim relating to a breach of the Residential Tenancy Agreement.

Reply to appeal

On 8 June 2016 the respondent filed a reply to appeal which put in issue each of the grounds of appeal and which included references to what were alleged to be matters of fact and matters of argument disputing the appellant's claims.

Contents of these reasons

We propose to deal initially with the mould related claims (see pars 35 - 154 below) and then with the structural claims (see pars 155 - 160 below).

Appellant's submissions

The appellant made a number of submissions which for present purposes, can be summarised as set out in the following paragraphs 36 - 49 and 52 - 62.
Should the Appeal Panel not find that a sufficient number of the grounds of appeal concern questions of law, leave should be granted to the appellant because she suffered a substantial miscarriage of justice due to the Tribunal's unfair and inequitable decision to refuse leave to rely upon her evidence and to refuse an adjournment.
It was acknowledged that leave to appeal was required because the two decisions of the Tribunal Member were interlocutory (see s 80 (2) of the Civil and Administrative Tribunal Act 2013 (the Act).
Leave to appeal should be granted because the primary errors of the Tribunal were erring in its application of s 36 of the Act; failing to take into account the relevant reasons for the appellant's delay in serving evidence; and erring in its application of s 38 of the Act.
By reason of the Tribunal's refusal to allow an adjournment the appellant was prevented from relying upon the documentary evidence required to establish her claim. The substantial merits of the case were not considered and the real issues in the proceedings were not resolved.
The Tribunal erred in its application of s 36 to the circumstances of the case which constituted an error of law.
The appearance on 11 May 2016 was only the second time the matter was before the Tribunal. It had been in the Tribunal's list for just over two months. By 11 May 2016 the appellant's evidence was collated and complete.
The appellant had advised the Tribunal of the reasons for her delay by emails on 4, 6 and 12 April 2016 advising that her expert required access to the crawl space which was locked by the respondent. The Tribunal did not take account of these reasons.
Access was only provided to the appellant's expert, Dr Heike Neumeister-Kemp, on 8 April 2016 when the appellant removed the lock with a screwdriver (and replaced it afterwards).
The expert's report took 3 weeks to be produced. It was received by the appellant after her evidence deadline had expired, on 29 April 2016.
The fact that the appellant did not serve Dr Neumeister-Kemp's affidavit for 7 days was not relevant. Had the report been served immediately upon receipt, it was unlikely the respondent would have had an adequate opportunity to respond with another mycologist report.
The appellant could not have legitimately obtained access to the crawl space earlier. The access code had been requested from the respondent and was not forthcoming.
The appellant could not control when the report was to be provided. The report was vital to the appellant's mould related application and it was not produced with sufficient time for service prior to the hearing.
It was open to the Tribunal to find special circumstances warranting an award of costs for the respondent's costs thrown away because of any adjournment.
While the decision of 11 May dismissed the application on the merits, in effect the appellant had been denied relief based on a procedural direction and circumstances outside the appellant's control.
We interpose here reference to emails from the appellant to the Tribunal: 1. on the hearing of the appeal there were tendered as exhibits 3 and 4 emails from the appellant to the Tribunal dated 4, 6, 12 and 22 April 2015. They were sent to an email address "NCATCCDSydney" which is an email address used by the Tribunal. There was no information before the Appeal Panel as to whether those emails had been brought to the attention of the Tribunal Member; 2. in the email dated 4 April 2016 it was said "we kindly request an extension on the deadline given to the applicant to provide evidence". The reasons given included that the real estate agent and landlord were obstructing and stalling the process of the appellant gathering evidence and they refused to give the 4 digit access code to the space underneath the house. It was also said that the appellant's experts were booked up and when they were able to attend they could not get into the space underneath the house to investigate due to the landlord refusing to give the code. The email also stated that the appellant was still in the process of obtaining quotes for mould remediation and moving costs and that the matter concerning the combination lock had taken up a lot of time and effort and therefore caused delays. The appellant asked for an urgent hearing to obtain an order in relation to s73 (a) for the landlord to provide the access code for the combination lock; 3. in the email dated 6 April 2016 it was said by the appellant that she did not know that there was a time limit on compensation claims and that she believed she was well within the time limit to claim compensation but the Tenants Advocate at the reconciliation hearing urged her to request an extension to be on the safe side; 4. the email stated that the severity of the issues affecting the claim for compensation did not become apparent until early 2016. In specific relation to the mould and damp issue the appellant detected a musty, mouldy smell in the hallway cupboards upon moving in on 4 October 2015 and wrote it down in the ingoing inspection report and in later correspondence with the real estate agent; 5. the email also stated that the appellant and her partner were assured by the landlord and real estate agent that there was no reason for concern. The email stated that on 12 January they expressed their concern about loose balustrades and deck slats and that on 13 February one of the landings of the wooden staircase from the house down to the garage collapsed; 6. the email included - "please be advised that in our email on Monday we erroneously described an order under section 73 (c) but actually asked for an order under section 73 (a) …. both sections are required for the urgent hearing that we requested concerning the lock on the door to the crawl space. We ask the Tribunal to make an order under section 73 (a) to allow us to temporarily take off the combination bolt lock"; 7. the email concluded with a statement that they can send supporting documents for all these statements and requests by email tomorrow providing NCAT allows for electronic submission of documents under these circumstances. "Please advise if this is the case"; 8. in the email dated 12 April 2016 it was said that following their correspondence dated 6 April 2016 they did not get any response with regard to their question if they could send documents to support their request for an extension and an urgent hearing. "In a phone call to NCAT yesterday we were advised by Registry officer Jo that the matter has been referred to a member for a decision today"; 9. in the email dated 22 April 2016 a request for an additional extension of time to 2 May 2016, to submit documents was made. The email set out the grounds for the extension of time. The email stated it attached emails from their experts regarding the delay and correspondence to the Tribunal regarding the access orders. It also stated that the landlord and his agents' denial of access to the appellant to the crawl space, delayed the whole process of obtaining expert reports and subsequent quotes for remediation.
The Appeal Panel admitted into evidence copies of those emails from the appellant to the Tribunal dated 4, 6, 12 and 22 April 2016, a statement by the appellant dated 24 June 2016 and the 2 folders which the Tribunal Member rejected when tendered before her. None of those documents was in evidence before the Tribunal Member. The Appeal Panel admitted them into evidence on the appeal for the purpose of understanding the grounds of appeal and the appellant's submissions.
We now return to the appellant's submissions which for present purposes can be summarised as follows. The Tribunal is under an obligation to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard: s38 (5) (c) of the Act. Where necessary this will entail the Tribunal offering an appropriate adjournment, whether sought or not: Italiano v Carbone [2005] NSWCA 177 at [105].
The Tribunal has power to adjourn proceedings to any time and place pursuant to s51 of the Act.
A refusal to grant an adjournment can constitute a failure to give a party the opportunity of adequately presenting their case: Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J; cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40].
The appellant had explained in correspondence her difficulty in complying with the timetable. In an email of 4 April 2016 the appellant requested an urgent hearing for an order under s 73 of the Residential Tenancies Act 2010 for the respondent to provide the appellant with the access code for the combination lock which locked the crawl space under the house.
The appellant was not aware of a substantive and actionable mould issue until 14 March 2016 when she found extensive mould covering her family's clothes and in the bedrooms.
The circumstances outlined in the appellant's written submissions establish that the appellant's claim relating to the mould issue has substantial merit and that the extent of the problem and inconvenience would lead to a gross injustice where strict compliance with s190 of the Residential Tenancies Act would lead to an injustice on the appellant.
The appellant's entitlement to a compensation order arises by reason of the respondent's failure to maintain the premises in a reasonable state of repair: s 63 of the Residential Tenancies Act.
On 18 March 2016 Mould Rescue Pty Ltd performed a microbial assessment on the request of the respondent's agent. Their report noted that there was visible mould on a number of contents in most rooms as well as high humidity readings. All the downstairs rooms were noted as having relative humidity levels in excess of 80% when the relative humidity levels in a built environment should be kept at 60% or below to prevent microbial growth.
On 8 April 2016 Dr Neumeister-Kemp attended the premises and conducted a level VI Mould Investigation. Dr Neumeister-Kemp specialises in environmental mycology and is the author of many peer reviewed articles and book in the area of mycology.
Dr Neumeister-Kemp's report dated 29 April 2016 noted that: 1. there were very high to extremely high levels of fungal concentrations in all indoor areas; 2. these indoor levels of fungal concentrations were significantly higher than the concentrations found outside; 3. a major water leak from the downstairs ensuite/bath caused leaks into the crawl space, causing extreme moisture which in turn led to high visible mould all over the contents and building features of the downstairs; and 4. Dr Neumeister-Kemp recommended a maximum of 2 hours exposure inside the property whilst wearing full personal protective equipment.
Based on the testing and results in Dr Neumeister-Kemp's report, the premises were held to be not habitable due to extremely high mould contamination.

Appellant's written submissions filed 27 January 2017

The appellant made further written submissions filed on 27 January 2017, which for present purposes, can be summarised as set out in the following paragraphs 64 - 72.
An applicant seeking an extension of time to commence proceedings must show that, having regard to all the circumstances of the case, it is fair and just to grant the extension of time (Salido v Nominal Defendant (1993) 32 NSWLR 524 and Nominal Defendant v Manning [2000] NSWCA 80 at [133]).
The fair and just consideration is directed towards a concern for whether a respondent is unable to adequately defend the claim, due to the passage of time.
If the Tribunal was correct that time began to run in October 2016 for the mould claim, an application brought in March 2016 cannot be understood as being capable of adversely affecting the respondent's ability to defend the claim.
In light of the incorrect application of principle by the Tribunal Member, the Appeal Panel should allow the application for extension of time.
The appellant relies upon s 38 (6) (a) of the Act, which states: (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings.
Section 38 (6) expresses a clear legislative intention that Tribunal Members have a positive onus to avail themselves of all relevant material to determine all the relevant facts in issue. It does not appear from the Tribunal's reasons that sufficient attention or enquiries were made or that it availed itself of all the material relevant to the key facts in issue.
It does not appear that consideration was given by the Tribunal Member to whether there was any material that would assist in determining whether the October 2015 complaint about "mould and the smell of mould" constituted a breach for purposes of the time limitation, or whether they were separate incidents.
In circumstances where the respondent's own reports (Sydney Pre-Purchase and MouldRescue) established certain key facts, s 38 (6) required the Tribunal to adjourn the proceedings to allow the relevant evidence to be produced. Without that material the Tribunal was unable to correctly determine all of the relevant facts in issue, in breach of its obligations under s 38 (6).
In substance the notice of appeal contained grounds based on a breach of s 38 (despite not being explicitly pleaded).

Respondent's submissions

The Respondent made a number of submissions which for present purposes can be summarised as set out in the following paragraphs 74 - 88.
The Respondent referred to authority including BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] to support the proposition that in order to be granted leave to appeal, the Appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact.
The Appellant belittled the directions made by the Tribunal indicating that the appearance on 11 May 2016 was only the second time the matter was before the Tribunal.
In complete indifference to the orders of the Tribunal the Appellant produced her evidence at the final hearing on 11 May 2016 without the Respondent or the Tribunal having the opportunity to view it.
It appears that the Appellant intentionally delayed service of a report by her expert.
It is clear that the Appellant had the object of attempting to frustrate the Respondent's ability to read her evidence in a timely manner and respond accordingly.
The Appellant's continual failures to comply with procedural directions concerning service of her evidence would cause the Respondent severe prejudice.
In regard to the request by the Appellant for the code to access the crawl space, the Appellant only gave the Respondent's agents four business hours notice.
In order to test the veracity of the claims in medical reports attached to a statement of the Appellant dated 24 June 2016, [which became exhibit 5 on the appeal], the Respondent would need to have the Appellant examined by his own doctors at considerable expense to the Respondent.
The relevant consideration is whether there will be an injustice if leave to appeal is not granted.
The Appellant carries the burden of proving that justice requires leave to appeal and leave to appeal will not be granted too readily. In Wentworth v Rogers (2006) 66 NSWLR 474 Santow JA warned against reviews being readily granted or allowed to become automatic.
The Appellant has failed to demonstrate something more than the primary decision maker was arguable wrong or that there was a bona fide challenge to an issue of fact.
The Appellant has not suffered a substantial miscarriage of justice. The Tribunal did not err in applying s 36 of the Act.
The Tribunal did not err in the application of s 38 of the Act.
The Respondent denies that the Appellant was deprived of procedural fairness.
Whenever the Appellant required attention to the property, the Respondent took prompt action in effecting any repairs to the property.

Respondent's written submissions filed 14 February 2017

The Respondent made further written submissions filed on 14 February 2017, which for present purposes, can be summarised as set out in the following paragraphs 89 to 98.
The Tribunal is entitled to consider prejudice to the Respondent: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348. The ongoing appeal is causing the Respondent to incur further legal costs and if the matter proceeds to a further hearing the Respondent will be required to make substantial travel and accommodation arrangements.
There must be an acceptable explanation of the delay caused by the Appellant.
So far as the question of granting an extension of time to commence proceedings is concerned, Gleeson CJ and Kirby P in Salido v Nominal Defendant (1993) 32 NSWLR 524 set out five propositions including whether it was fair and just to grant leave, the onus being on the applicant.
The Tribunal Member clearly articulated that most of the items claimed for compensation were incurred after the proceedings were commenced.
Even if the Tribunal Member did not apply the correct legal principle in regard to the extension of time, it would have made no difference to the decision making process of the Tribunal.
The Tribunal was correct in its determination refusing to provide the Appellant with an extension of time.
The Appellant's submissions based upon s 38 (6) (a) of the Act are flawed.
The Respondent objects to the Appellant now raising a ground of appeal based on s 38 of the Act.
If the Appellant wished to raise s 38 in her grounds of appeal, she ought to have made express provisions for it. She failed to do so and has failed to explain her omission of s 38 in her grounds of appeal.
Leave to appeal should be refused. If it is granted the appeal should be dismissed.

Issues in appeal

The issues in this appeal include the following: 1. Should leave be granted to appeal from the Tribunal's interlocutory decision refusing to grant leave for the appellant to serve documents out of time? 2. If so, did the Tribunal Member err in refusing to grant leave? 3. Should leave be granted to appeal from the Tribunal's interlocutory order refusing to grant an adjournment of the hearing? 4. If so, did the Tribunal Member err in refusing to grant an adjournment? 5. Should leave be granted to appeal from the Tribunal's interlocutory order refusing an extension of time to bring proceedings against the respondent under the Residential Tenancies Act, for mould related claims? 6. If so, should the appeal against that order be allowed?

First application (application to rely upon late evidence)

The Tribunal's decision to refuse the appellant's application for an extension of time to file and serve her evidence was an interlocutory decision (see the Act, s 4 (definition of "interlocutory decision", paragraph (d)). An appeal from an interlocutory decision requires leave (s 80(2)(a) of the Act).
The Appeal Panel made the following comments in relation to leave to appeal an interlocutory decision in Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 at [18]-[19]: 18 The Appeal Panel has recently considered the principles which generally guide the consideration of whether leave to appeal should be granted under s 80(2) of the Act: see Collins v Urban [2014] NSWCATAP 17. At [84] the Panel summarised the principles as follows: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 19 It is settled law that leave to appeal against an interlocutory decision is reserved for cases with special features warranting appellate review. The fact that the statute imposes a leave requirement makes it clear that such appeals are not to be brought as a matter of routine: Niemann v Electronic Industries Ltd [1978] VR 431 at 436. The High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 acknowledged, referring to the often cited passage of Sir Frederick Jordan in In re the Will of Gilbert, that "a tight rein" had to be kept on interlocutory appeals if all exercises of discretion in interlocutory applications were not to be transferred to a court of appeal. Nonetheless, the High Court also held that it was unnecessary and indeed unwise to lay down rigid and exhaustive criteria, and specifically stated that the requirement for an error of principle and a risk of substantial injustice were not cumulative. Of the same mind in this latter regard was the Victorian Full Court in Niemann, where their Honours pointed out that if the appellate court were expected to say in all cases that the decision below was clearly wrong and that substantial injustice would follow if it went undisturbed, "leave would never be granted by the primary judge" ([1978] VR at 441). The Full Court considered that the use of the word "wrong" in this context was itself misguided and that the requirement would be better expressed as "attended with sufficient doubt".
The Tribunal's refusal to admit late evidence was a discretionary decision. The Appeal Panel recently considered the principles applicable to a refusal to extend time for the filing of evidence in Mesiha v Murrell [2017] NSWCATAP 1 at [33] to [45]. The Appeal Panel summarised those principles (at [45]) as follows: (1) the just resolution of proceedings remains the paramount consideration; (2) what is a just resolution needs to be understood in the context of the purposes and objectives of the power granted to the Tribunal to resolve disputes and involves a weighing of all relevant matters; (3) speed and efficiency, in the sense of minimum delay and expense are seen as essential to the just resolution of proceedings; (4) a party should be afforded a reasonable opportunity to present its case; (5) there are limits to what is necessary in providing a reasonable opportunity to be heard, which may involve the consideration of delay and cost both to the other party and to the Tribunal; (6) the nature of the case and its importance to the party seeking an extension of time needs to be considered; (7) reasons for failure to comply will generally need to be provided and must be weighed against the effect any delay will have both on the other party and upon the Tribunal; (8) an award of costs may not always be adequate to deal with issues of prejudice, which include wasted time and strain imposed upon litigants; (9) there is no absolute entitlement to an extension of time, even if the consequence of the refusal effectively prevents a party from presenting relevant evidence in support of its case.
The question the Appeal Panel has to consider "is whether, in refusing the application to extend time for the provision of evidence, the exercise of the discretion by the Tribunal miscarried": Mesiha v Murrell [2017] NSWCATAP 1 at [46].
In this case, the appellant failed to comply on 6 and 22 April 2016 with the obligation to file and serve her evidence in accordance with the Tribunal's directions. She appeared at the hearing with two volumes of evidence which had not been provided in advance to the respondent or to the Tribunal. The respondent had travelled some distance to attend the hearing. The question is whether the Tribunal applied the right tests in refusing to admit the evidence.
The Tribunal placed emphasis on the matters in points (3) and (5), referred to in Mesiha v Murrell, relating to speed, efficiency and delay. This was legitimate. However, the Tribunal failed to have regard to points (4), (6) and (7). In particular, the Tribunal made no mention of the appellant's reasons for the delay in serving her evidence.
The appellant's reasons for the delay were relevant to the Tribunal's determination of her application to file her evidence late. The Tribunal made no reference to those reasons in its written decision. Nor does it appear, from the written decision, that the Tribunal made any enquiries as to the appellant's reasons for the delay.
Further, the Tribunal does not appear to have considered whether, in the circumstances, the appellant had a reasonable opportunity to present her case. Its comment that she "had had more than sufficient time to prepare her evidence" expresses a conclusion without considering the circumstances which were relevant to whether the time was, in fact, sufficient. Whilst it may be accepted that there are limits to what is necessary in providing a reasonable opportunity to be heard, this cannot be determined with reference only to the Tribunal's timetable, in isolation from the surrounding circumstances.
The Tribunal also erred in failing to have regard to the nature of the case and its importance to the party seeking an extension of time. The Tribunal did not advert to the nature of the evidence sought to be relied upon, merely stating that the tenant had more than sufficient time to prepare her evidence and that any adjournment necessitated by admitting the evidence late would cause inconvenience to the landlord.
The two folders rejected by the Tribunal Member became exhibits 1 and 2 in the appeal. They included a variety of material, such as email correspondence between the parties. There was also the expert report of Dr Heike Neumeister-Kemp. The Tribunal made no distinction between any of the items of evidence upon which the appellant sought to rely. The expert evidence was critical to the success of the tenant's claim. Some of the email correspondence was material with which the respondent was familiar and, it would be thought, would not take the respondent by surprise. Our understanding is that the report indicates that Dr Neumeister-Kemp commenced her investigation on 8 April 2016 which included an inspection of the sub-floor. Opposite the reference to the sub-floor the report recorded "very moist condition from multiple water ingress, main problem is a massive shower leak from the ensuite bathroom."
At tab B4 of exhibit 1 is a copy of an email from Dr Neumeister-Kemp to the appellant dated 16 April 2016 which records: "This is the very first draft, everything in yellow is not ready yet but the results are final (asbestos will be another week). I would leave and make sure everybody is safe!"
The respondent's reply to appeal attached a copy of page 1 of Dr Neumeister-Kemp's report and stated that the applicant obviously had access to the crawl space on 8 April as the Mycolab attended to the inspection of the sub floor. (Mycolab was the business name shown on Dr Neumeister-Kemp's report).
The report recorded findings to the effect of those set out in par 60 above and a finding that the property was not habitable due to extremely high mould contamination and severe building defaults.
Exhibit 1 tab B4 contains the following email correspondence and a letter between the appellant and the respondent's agent for the property. On 29 March 2016 at 6.29pm the appellant gave the agent a demand for immediate access to what has been described as the crawl space area. The email requested that the access code be sent by email before 1 pm on 30 March. There was email correspondence between the appellant and the agent on 30 March which included an email from the appellant stating: "Once again and for the last time, can you please forward me the number for the combination lock. It is your and the owner's obligation to do so." On 4 April 2016 the appellant wrote a letter to the agent which included: "Last week we asked you to email us the four digit access code of the combination lock to the door underneath the house, which you refused to do. You repeatedly stated that the landlord will visit the property to "allow access". We told you that there is no need for the landlord to visit and we do not consent to this …." On 5 April the agent sent an email to the appellant which included: "In regards to the area under the house this was advised when you inspected the property that this area was not part of the property and is in fact not a place for a tenant to access. This space was not outlined in the lease nor included in the condition report ….."
Exhibit 1 tab B4 also included an email dated 6 April 2016 from Dr Neumeister-Kemp to the appellant confirming she was available for "the inspection this Friday, 8th of April at 15:30pm.
One of the oral submissions made to the Appeal Panel on behalf of the appellant was to the effect that the inability of the appellant to access the crawl space and the time taken to prepare Dr Neumeister-Kemp's report of 29 April, prevented the appellant complying with the directions given by the Tribunal as to the dates for filing documents to be relied upon by the appellant.
We are of the view that all of this correspondence was relevant to the reasons why the appellant had not complied with the directions as to when the appellant was to file the documents she intended to rely upon and in particular why the report of Dr Neumeister-Kemp had not been filed within the time required by the directions.
There is nothing in the Tribunal Member's reasons for decision to indicate that she looked at the folders and nothing in her reasons which refers to these documents. The conclusion that the Appeal Panel draws from those facts is that the Tribunal Member did not take those documents into account when she refused the request by the applicant to be allowed to rely upon the two folders of documents. Nor does it appear, from the written decision, that the Tribunal Member made any enquiries as to the appellant's reasons for the delay. In doing so the Tribunal Member failed to take into account relevant evidence on the question whether the appellant should be allowed to rely upon the two folders of documents. Without enquiring into the reasons why the directions were not complied with, it was not possible to conclude, as the Tribunal Member did, that the appellant had more than sufficient time to prepare her evidence.
We are satisfied that leave to appeal from the interlocutory decision to refuse an extension of time for the appellant to rely upon the late evidence should be granted. The decision led to an "injustice which is reasonably clear" and/or was infected by "an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral" (Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 at [18]). The centrality of the error is due to the fact that the exclusion of the appellant's evidence made it almost impossible for her to successfully prosecute her case.
We are also satisfied for the reasons given above, that the appeal against the refusal to extend that time should be allowed. The Tribunal failed to have regard to the principle that the appellant (the applicant below) should be afforded a reasonable opportunity to present her case. It did not consider the nature of the appellant's case and its importance to her and it did not have regard to, or seek, the appellant's reasons for failure to comply with the directions for the filing and service of evidence. Rather, it determined the question of whether to admit the appellant's evidence on the basis of its view that the appellant had more than sufficient time to prepare for her evidence. The Tribunal made that finding without considering what was involved in the appellant's gathering together the evidence or the time which would be required to do so.

Second application (adjournment application)

The Tribunal has the power to adjourn proceedings under s 51 of the Act. The power to adjourn is to be exercised according to the principles set out by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, French CJ, Kiefel, Bell, Gageler and Keane JJ at 321 [51] (see O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [21]). Procedural fairness may be denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequately presenting the person's case: see Grozdanov v N&T Buildings Pty Ltd [2015] NSWCATAP 107 at [51]; Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 at [21]-[22].
The matter of Dubois v R & B Bergin Pty Ltd [2011] NSWCA 309 involved an application to the NSW Court of Appeal for leave to appeal against a refusal of the District Court to grant an adjournment and vacate a hearing. Young JA, with whom Giles JA agreed, in his reasons granting leave to appeal, allowing the appeal and vacating the hearing, stated at [42] that whilst it is seldom that an appellate court will feel justified in reviewing a decision to refuse an adjournment, the court has power to review such an order and in certain circumstances it is its duty to do so. His Honour went on to make the following statements: 43. As the Full Federal Court said in Petrovic at 460, it is not sufficient that the Court of Appeal considers that an adjournment should have been granted, the applicant must show that refusal of the adjournment produced, in the circumstances, an injustice. It must be remembered too, that the decision is a discretionary judgment. 44. "Injustice" is a coloured word with pejorative overtones. What is meant is that the refusal of the adjournment must not set up a situation where there is a likelihood that there cannot be a fair trial unless that factor is outweighed by prejudice to the opposing party. 45. In making the balanced judgment required, a judge must also take into account the public interest that the judicial process must be just, cheap and quick. 46. Again this matter must be considered in a balanced way. Mr Romaniuk relied on what the plurality said in Aon Risk Services Australia v National Australia University [2009] HCA 27; 239 CLR 175, 214 at [102], that the objectives of modern court rules do not require that every application for amendment (and by analogy, adjournment) should be refused just because it wastes costs and causes some delay. Whilst these are significant matters, they are not necessarily overriding considerations. I accept that submission.
In Carryer v Kelly (1969) 90 WN (Pt. 1) (NSW) 566 at 569 F - G, a similar statement was made by Asprey JA with whom Holmes JA agreed: "An adjournment which, if refused, would result in a serious injustice to the party applying for it should only be refused if that is the only way that justice can be done to the other party."
In Squire v Rogers (1979) 27 ALR 330; 39 FLR 106 (Federal Court) at 337, Deane J made the following statement: The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances: Conroy v Conroy [1917] 17 SR (NSW) 680 at 682. Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular court and may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing. A court of appeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal (see, for example, Federal Court of Australia Act 1976 s 27) and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion.
In O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22], the Appeal Panel identified the following principles governing applications for an adjournment: 1. "matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, 2. an application for an adjournment should be seen as the exceptional rather than the ordinary course; 3. where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment."
The refusal of the adjournment application by the Tribunal Member meant that the appellant was unable to place evidence before the Tribunal of the report prepared by Dr Heike Neumeister-Kemp. At the bottom of page 2 of that report Dr Neumeister-Kemp stated that the property was not habitable due to extremely high mould contamination and severe building defaults. On page 3 of that report Dr Neumeister-Kemp stated that no personnel/occupants should enter the property without the appropriate full personal protection equipment for level 4 contaminations which includes a maximum of 2 hours exposure when inside the property. The personal protective equipment was listed which included two pairs of disposable non-breathable overalls, two layers of latex gloves or sturdy impervious work gloves and a full face respirator. The report stated that failure to follow the above guidance may increase the potential risks for adverse health effects to the personnel/occupants. The refusal of the adjournment also prevented the tender of an email from Dr Neumeister-Kemp to the tenant dated 16 April 2016 which included: "I would leave and make sure everybody is safe!"
The Tribunal did not consider whether the refusal of the adjournment application deprived the appellant of the opportunity of adequately presenting her case.
The Tribunal Member's reasons for refusing the adjournment application do not show that any of the above authorities were taken into consideration. The reasons for the adjournment were stated to be on the basis of s 36 of the Act. It was also stated that an adjournment necessitated by the tenant's breach of the orders to provide documents in accordance with the orders dated 23 March and 14 April 2016, would not be in accordance with the principles set out in s 36 and would cause inconvenience to the respondent.
Inconvenience to the respondent is not a sufficient reason for refusing an adjournment as is shown by the authorities referred to above.
The fact that an adjournment would result in waste of some costs and some degree of delay is not a sufficient reason for refusing an appropriate adjournment application (Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at 214-215 [102]. See also the statement made by Young JA in par 46 of Dubois which is set out in par 122 above.)
Paragraphs 111, 113, 114 and 115 above refer to documents which are relevant to the delay and the failure of the appellant to file her evidence in accordance with the times directed by the Tribunal.
The Tribunal Member did not know why the appellant's evidence had not been filed in accordance with the directions. She did not know what was involved in gathering together that evidence.
In those circumstances the Tribunal Member could not conclude that the appellant had failed to cooperate with the Tribunal to give effect to the guiding principle namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings (see s36 (1) and (3) of the Act). In those circumstances the refusal of the adjournment produced an injustice (see par 121 above). In the circumstances brought about by the refusal to extend the time for the filing of evidence, the refusal of the adjournment meant that the appellant would not be able to rely upon the expert evidence of Dr Neumeister-Kemp. That in reality meant that the appellant would fail on the claim concerning the mould. The refusal of the adjournment thus brought about an injustice.
The Appeal Panel is therefore of the view that the Tribunal Member erred in refusing the adjournment application. It is also of the view that leave should be granted to the appellant to appeal against the Tribunal Member's refusal to adjourn the proceedings. The decision led to an "injustice which is reasonably clear" and/or was infected by an "error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral" (Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 at [18]). The centrality of the error is due to the fact that the refusal of the adjournment made it almost impossible for the appellant to successfully prosecute her case.
We are also satisfied, for the reasons given above, that the appeal against the dismissal of the adjournment application should be allowed. The Tribunal failed to have regard to the principle that the appellant (the applicant below) should be afforded a reasonable opportunity to present her case, it did not consider the nature of the appellant's case and its importance to her and it did not have regard to, or seek, the appellant's reasons for failure to comply with the directions for the filing and service of evidence.

Extension of time to commence proceedings for mould related claims

Section 41 of the Act is in the following terms: Extensions of time (1)The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2)Such an application may be made even though the relevant period of time has expired.
The purpose of sections similar to s 41 is to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action is to be commenced (Sola Optical Australia Pty Limited v Mills (1987) 163 CLR 628 at 635, approved in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.)
For an applicant to obtain an extension of time she/he must show that it is fair and just for the extension to be given (Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532D per Gleeson CJ. See also at 541 F - G - "whether, having regard to all the circumstances of the case, it is fair and just, to grant or refuse the application," per Powell JA. See also at 539B - C per Kirby P where his Honour stated the test as whether it is just. See also Hall v Nominal Defendant (1966) 117 CLR 423 at 429 per Barwick CJ where the test was stated as - whether it is just in all the circumstances to grant or refuse the application. See also per Barwick CJ at 433 and 435 - a power to extend that time is given to a court of law so that justice may be done according to the circumstances.)
We are satisfied that leave to appeal from the interlocutory decision to refuse an extension of time to commence proceedings for the mould related claims should be granted. There is nothing stated in the Tribunal Member's reasons as to whether the appellant knew that there was a time limit of three months (or any time limit) on the commencement of proceedings for breach of a residential tenancy agreement. There is nothing in the Tribunal Member's reasons to show that she considered whether it was fair and just for the extension to be given. The decision led to an "injustice which is reasonably clear" and/or was infected by "an error that is plain and readily apparent which was central to the Tribunal's decision and not merely peripheral" (Commissioner of Police New South Wales Police Force v Fine [2014] NSWCATAP 24 at [18]). The centrality of the error is due to the fact that the order would result in the appellant's being unable to pursue her mould related claims.
We are also satisfied for the reasons given above that the appeal against the refusal to extend the time to commence proceedings for the mould related claims should be allowed. The Tribunal failed to have regard to the principle that the appellant (the applicant below) should be afforded a reasonable opportunity to present her case and it did not consider the nature of the appellant's case and its importance to her.
We are also of the view that the question whether the appellant should be granted an extension of time to bring proceedings against the respondent under the Residential Tenancies Act for mould related claims, should be reconsidered by the Tribunal with such further evidence, if any, as the Tribunal considers appropriate.

Appellant's section 38 (6) (a) submissions

The appellant has submitted in effect that s38 (6) (a) of the Act required the Tribunal to have regard to the four emails which were exhibits 3 and 4 in the appeal. Those emails contain information relevant to the reasons why the appellant did not comply with the directions for the filing of documents. However those emails were not served on the respondent. Having regard to the fact that we propose to allow the appeal on the mould related claims, we are of the view that it is unnecessary in this appeal to decide whether the appellant's submission on this point is correct.

Respondent's submissions

In coming to the above conclusions the Appeal Panel has taken into consideration the submissions of both parties. So far as the respondent's submissions are concerned the Appeal Panel is of the view that those submissions should be rejected where they conflict with the above conclusions. We now deal specifically with those submissions of the respondent set out in the following paragraphs of these reasons:

Paragraphs 75 - 78

We are not persuaded that these submissions should be accepted. We are not prepared to draw from the evidence the conclusions stated in these submissions. No evidence has been drawn to our attention where these matters were put to the appellant in cross examination.

Paragraph 79

In making the above findings, the Appeal Panel has taken into account the prejudice suffered by the respondent as a result of the appellant's failure to comply with the directions. Notwithstanding that prejudice the errors made by the Tribunal Member and the injustices suffered by the appellant are such that the orders which should be made are those set out in these reasons.

Paragraph 81

If this occurs it will occur because it is a step taken in the litigation. It is not a matter which would cause the Appeal Panel to refuse to make the appropriate orders to enable the issues between the parties to be determined.

Paragraph 84

The analysis of the law and the evidence which has been carried out by the Appeal Panel shows that this submission should be rejected.

Paragraph 85

The Appeal Panel is of the view that there has been a substantial miscarriage of justice. Because of the Tribunal's failure to enquire into the reasons for the non compliance with the Tribunal's directions for the filing of evidence, the Tribunal's orders resulted in the appellant losing the opportunity to have her claim heard by the Tribunal.

Paragraph 90

The incurring of legal costs of the appeal is not something which persuades the Appeal Panel not to make the orders which these reasons for decision show should be made because of the errors made by the Tribunal Member and the injustices suffered by the appellant.

Paragraph 91

The Appeal Panel is of the view that these reasons for decision show that there was evidence which provides an acceptable explanation for the appellant's delay in complying with the Tribunal's directions for filing of evidence.

Paragraph 93

If it is found that the respondent is liable to the appellant, losses suffered by the appellant from the mould after commencement of the proceedings are compensable.

Paragraph 94

Had the Tribunal Member enquired into whether it was fair and just for the extension of time to be given to commence proceedings, she should have had regard to the report of Dr Neumeister-Kemp which could well have resulted in the Tribunal granting an extension of time to commence proceedings.

Paragraph 95

These reasons for decision show that this submission should be rejected.

Paragraph 99

These reasons for decision show that this submission should be rejected.

Structural claims

The Tribunal Member's findings of fact and reasons which showed why she dismissed the structural claims are recorded in par 31 above.
No documentary evidence has been drawn to our attention which shows that those findings of fact are wrong.
The oral evidence which was given before the Tribunal Member was not provided to the Appeal Panel on the hearing of the appeal.
No submission of law has been made suggesting that the findings of fact of the Tribunal Member in relation to the structural claims are wrong.
In those circumstances the finding that the respondent was not in breach of the covenant to maintain the premises in relation to structural issues cannot be set aside.
The appeal against the order dismissing the application seeking orders in respect of the appellant's structural claims will therefore be dismissed.

orders The Appeal Panel makes the following orders: 1. Leave is granted to the appellant to appeal against the order refusing the appellant's application to file and serve evidence out of time in relation to mould related claims. 2. The appeal against that order is allowed. 3. Leave is granted to the appellant to appeal against the order refusing an adjournment in relation to mould related claims. 4. The appeal against that order is allowed. 5. Leave is granted to the appellant to appeal against the order refusing an extension of time to bring proceedings against the respondent under the Residential Tenancies Act for mould related claims. 6. The appeal against that order is allowed. 7. That part of the case which relates to whether the appellant should be granted an extension of time to bring proceedings against the respondent under the Residential Tenancies Act for mould related claims is to be reconsidered by the Tribunal with such further evidence, if any, as the Tribunal considers appropriate. 8. The proceedings are to be listed before the Tribunal for directions to be given in relation to: 1. the hearing of that part of the case referred to in order (7) and 2. the hearing of the appellant's mould related claims under the Residential Tenancies Act if it transpires that the appellant is granted an extension of time to bring proceedings against the respondent. 1. The appeal against the order dismissing the application seeking orders in respect of the appellant's mould related claims is allowed. 2. The appeal against the order dismissing the application seeking orders in respect of the appellant's structural claims is dismissed.

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 June 2017

At a glance

Court

Decision date

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Judgment (33 paragraphs)

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Cases Cited (25)

Cited By (32)