Azzi v Abulial and Hattab

NCAT Appeal Panel|2021-08-20|Before: Dr J

What was this appeal about?

This was an appeal from a decision of the Tribunal's Consumer and Commercial Division ("C&C Division") which dismissed the application by Mr Daniel Azzi, the owner and landlord of residential premises in Punchbowl ("the premises") for an order for termination and possession of a tenancy of those premises. The premises were let to and occupied by Mr Fathi Abulial and his wife Ms Areej Hattab.
Mr Azzi's application to the C&C Division was based on section 86 of the Retail Tenancies Act 2010 (NSW). That section enables a landlord to give a termination notice on the ground that the landlord has entered into contract for sale of residential premises under which landlord is required to give vacant possession of the premises. The section also empowers the Tribunal, upon application by the landlord to make a termination order where such a contract for sale has been entered into, the sale under the contact is proceeding and a termination notice has been given in accordance with the section.
The C&C Division hearing was on 16 July 2021. Mr Azzi's application was unsuccessful. The Tribunal Member dismissed it on the ground that it was ill-conceived, because although it had been based on section 86 which requires there to be a contract for sale requiring vacant possession, the only relevant evidence before the Member was a contract for sale of the premises ("the Contract for Sale") which provided for a sale "subject to existing tenancies". In her brief reasons for decision, the Tribunal Member summarised those matters and cited section 86.
Mr Azzi's property agent, Mr George Arrage, had represented him at the hearing and did so at the hearing of this appeal. Mr Arrage asserted and it appears to be uncontested that in fact the Contract for Sale had been amended prior to the hearing by agreement between the vendor and the purchaser to the effect that the sale should proceed only with vacant possession.
Mr Arrage's account, as we understand it, is that having been informed of the Tribunal's orders on the day of the hearing, later the same day he received a copy of an exchange of emails dated 13 May 2021 between the solicitors for the parties to the Contract of Sale. A copy of those emails was provided to us and we are satisfied that on their face, the emails establish an agreement between those solicitors (on behalf of their respective clients) to an amendment of the Contract for Sale, whereby the sale is made subject to vacant possession of the premises.

The real issues and our decisions

The appeal was brought on the basis that the solicitors' emails constituted important new evidence which showed that property had been sold with vacant possession and that therefore the Tribunal's decision should be set aside and a decision in the landlord's, Mr Azzi's, favour, including a termination order and an order for possession, should be made.
It therefore fell to us to decide: 1. whether Mr Azzi could bring his appeal as of right, because the Tribunal had made an error in determining a question of law; 2. whether we should grant Mr Azzi leave to appeal, in particular by reference to the matters set out in cl 12(1) of Schedule 4 of the NCAT Act (as explained below); and 3. what specific orders we should make.
We decided: 1. that there had been no error of law, 2. that Mr Azzi should not be granted leave to appeal; in particular because the new evidence which he had introduced could not be said to have been "not reasonably available at the time of the hearing"; and 3. we should order that leave to appeal was refused and the appeal dismissed.
These are our reasons for those decisions.

The relevant law: the nature and scope of appeals

An appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity simply to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"), s 80(2).

Questions of law

A question of law may include not only an error in ascertaining the appropriate legal principle or in applying it to the facts of the case, but also taking into account of an irrelevant consideration or failing to take into account a relevant consideration: see for example CEO of Customs v A M I Toyota Ltd (2000) 102 FCR 578; [2000] FCA 1343 at [45] (Full Court of the Federal Court).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ("Prendergast") the Appeal Panel set out at [13] a non-exclusive list of questions of law, as follows: 1. whether there has been a failure to provide proper reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision is so unreasonable that no reasonable decision-maker would make it.

Application for leave to appeal

The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the C&C Division are limited by cl 12(1) of Schedule 4 to the NCAT Act, by operation of which the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 ("Collins v Urban"), at [76], the Appeal Panel limited the possibility of a valid finding that a substantial miscarriage of justice had occurred to one where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. (The paragraph reference corresponding to those we have used at [14] above.)
As a final hurdle, even if an appeal from a decision of the C&C Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether or to exercise its discretion to grant leave to appeal, under s 80(2)(b) of the NCAT Act.
It is clear, from Collins v Urban, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45], that the applicant must demonstrate something more than that the decision was arguably wrong or that there is some bona fide challenge available to an issue of fact. In Collins v Urban, the Appeal Panel confirmed at [84] that ordinarily it is appropriate to grant leave 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.

1.Error of Law

The Appellant Mr Azzi was represented at the hearing by his agent Mr Arrage but was not legally represented. It was difficult for us to discern from Mr Azzi's Notice of Appeal or his supporting documents the existence of any assertion that the Tribunal had fallen into legal error in making its decision; that is, that it had made an error of law.
In Prendergast it was said, at [12], that where the appellant is unrepresented, it is appropriate for the Tribunal to approach the issue of whether there is a legitimate question of law in the appeal and the nature of any legal error: "…by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent."
However, the Appeal Panel in that case went on to say that it is not its role to draft grounds of appeal for the appellant which have not been raised and then resolve them, unless the issues go to the jurisdiction of the Tribunal or are otherwise necessarily considered to resolve the appeal.
We were also mindful of the warnings in cases including George Papazachariou v Michael Antoun [2015] NSWCATAP 157 and Cominos v Di Rico [2016] NSWCATAP 5 ("Cominos"), that it can be difficult for self-represented appellants to express clearly their grounds of appeal or, (which is in many cases, even more challenging) to identify an error of law. That must extend to the situation, as here, where the non-legally qualified appellant does not appear at the appeal hearing but is represented by an agent who is also not legally qualified.
In Cominos the Appeal Panel said, at [13]: "… In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the decision of the Tribunal at first instance, to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal… However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68])… Relevantly, s 38 (2) (of the NCAT Act) provides that the Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'."
That approach was approved and followed by the Appeal Panel more recently in ZTU v ZTV [2021] NSWCATAP 121 ("ZTU") at [29]- [31].
As was done in Cominos, in ZTU and the other recent cases cited in ZTU at [31], we endeavoured by discussion with Mr Arrage to assist him to clarify the grounds of the appeal and to identify any alleged errors of law, in particular, by seeking his clarification as to how, in his view, the Tribunal had made an error or errors in reaching its decision.
No error of law was identified in the Notice of Appeal and none became obvious as result of our discussion with Mr Arrage. In answer to questions from us, Mr Arrage confirmed the appellant's case was not based on any perceived unfairness in the hearing procedure itself and in our view it was not based on any ground identified in Prendergast; see [13] above.
What was clear was that Mr Arrage, on behalf Mr Azzi, relied solely on the fact that "new" evidence (in the form of the exchange of emails between the solicitors confirming their agreement the property was to be sold with vacant possession) had "arisen" since the hearing, at least in the sense of that evidence having become available to Mr Arrage on behalf of the appellant Mr Azzi. That may ground an application for leave to appeal and we consider that question below.
We concluded that there was no demonstrated error of law.

2.Leave to appeal

Mr Arrage agreed with our proposition put to him that the appeal was based on an application for leave to appeal from the Tribunal's decision on the basis which is set out in clause 12 (1) (c) of schedule 4 to the NCAT Act, which is in the following terms: "(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with."
Mr Arrage addressed us on this. In doing so he confirmed his account of the late notice of the solicitors' email we have summarised at [5]- [6] above.
We drew Mr Arrage's attention to the explanatory note in the pro forma Notice of Appeal under heading (iv) "Significant new evidence is now available that was not reasonably available at the time of the hearing". The note is in the following terms: "It is not sufficient to state that you did not have the evidence or you were unaware of the evidence at the time of the hearing. You must show that the new evidence could not have been obtained with reasonable diligence at the time of the hearing and that the new evidence is significant and could have made a difference with the decision."
Mr Arrage responded that he had not obtained the new evidence (that is, the exchange of the solicitors' emails) and was unaware of it at the time of the hearing. We pointed out to Mr Arrange that the explanatory note was directed to the appellant; that is, the landlord Mr Azzi and not to Mr Arrage as landlord's agent.
We put it to Mr Arrage that his client Mr Azzi, as the owner of premises and the appellant in these proceedings, must have been aware of this "new evidence" at the time of the hearing because the Contract for Sale had by that time been amended by agreement between the parties to it, reflected in the solicitors' exchange of emails on 3 May 2021, to be a contract for sale of the premises with vacant possession. We understood Mr Arrage to acknowledge that Mr Azzi must have been so aware.
There is substantial authority to the effect that in order for the Appeal Panel to consider granting leave to appeal on the ground that new evidence has become available, it must be satisfied that that evidence had been "not reasonably available" at the first instance hearing. See for example Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14; Bui v DB Homes Australia Pty Ltd [2017] NSWCATAP 218. The correct approach is to apply an objective test: to consider whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd, trading as Furnco Bankstown [2015] NSWCATAP 111 at [23].
In the absence of any clear evidence to the contrary, the suggestion that the "new evidence" here, being the exchange of emails between the solicitors for the parties to the sale of the premises was somehow "not reasonably available" to the vendor (that is, the appellant Mr Azzi) as at the date and time of hearing two months later, is simply not tenable. We do not understand that suggestion to be asserted or pressed by the Appellant here.
It follows that leave to appeal should not be granted on the ground that there is new evidence available that was not reasonably available at the time of the hearing.
We explored with Mr Arrage whether leave was sought on any other ground. He initially indicated it was on the basis that decision was "not fair and equitable" but it was clear that any unfairness or lack of equity was asserted to have arisen only by reason of the late evidence described above (the solicitors' emails) not being taken into account by the Tribunal.
Leave to appeal was not sought any other ground and we could see no basis upon which it could or should be granted.

3.Orders

It followed that leave to appeal should be refused and the appeal dismissed and we ordered accordingly.

ORDERS

Leave to appeal refused
Appeal 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 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: 30 August 2021

Retail Tenancies Act 2010(NSW)

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Cases Cited (14)