Baillieu v St George Community Housing Limited

Extension of time

1. The appellant's appeal was filed on 24 February 2020. By virtue of rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules), and the definition of "residential proceedings" in rule 3 of the Rules, an appeal from the decision was required to be filed within 14 days of the appellant being notified of the decision, that is by 30 January 2020. Accordingly the appeal was filed 25 days late. The appellant's application constituted residential proceedings as it arose under s 47 of the RTA.
2. Section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) permits the Appeal Panel to extend time for the lodgement of the appeal. The considerations relevant to the decision to extend time for lodging an appeal pursuant to s 41 are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: 22 The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant…; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision…and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success…; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), …and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable… [citations omitted]
3. We have determined that we should extend the time for the lodgement of the appeal. . The respondent did not identify any prejudice arising from an extension of time.
4. The appellant's Notice of Appeal did not explicitly provide any explanation for the delay in lodging the appeal.
5. However, it is apparent from documents attached to the Notice of Appeal that the appellant had on 24 January 2020 engaged in correspondence with the Attorney-General complaining of the conduct of the hearing and had undertaken enquiries of the Registry, albeit apparently outside the time for the lodgement of an appeal. We accept that this constitutes some explanation for the delay in filing an appeal. Although that explanation is not entirely satisfactory, as we have concluded for reasons which are outlined below that the Member made an error of law which will cause an injustice to the appellant if not remedied, we will make an order extending the time for filing the appeal to 24 February 2020.

The Scope and Nature of Internal Appeals

1. By virtue of s 80(2) of the NCAT Act, internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel.
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 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).
3. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered 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.
4. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
5. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.

Grounds of appeal

1. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] provided a non-exhaustive list of possible questions of law: 13. Without expressing exhaustively possible questions of law, they include in no particular order: (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: … (8) Whether the decision is so unreasonable that no reasonable decision-maker would make it: … [citations omitted].
2. In a document attached to her Notice of Appeal the appellant set out in narrative form over two pages what were described as her grounds of appeal. Adopting the approach identified as appropriate in the case of self-represented litigants in Cominos v Di Rico [2016] NSWCATAP 5 at [13], we extract from the document attached to the appellant's grounds of appeal the following grounds. 1. The appellant was not accorded procedural fairness in that "the Member would not allow the applicant to present her evidence or even refer to it". 2. The Member wrongly imposed the burden of proof on the appellant. 3. The Tribunal relied upon the proposition that the appellant had "conceded the Statement [being the Tenant Statement produced by the respondent] accurately records amounts due and payments made" when the appellant had made no such concession. 4. Other alleged errors of fact which clearly do not raise any question of law.
3. The appellant also sought leave to appeal on the grounds that the decision was not fair and equitable and that the decision of the Tribunal was against the weight of evidence.
4. The appellant included with her submissions in support of her appeal a transcript of the sound recording of the hearing on 16 January 2020. The transcript was apparently prepared by the appellant rather than an independent transcription service. Mr Evano, who appeared for the respondent, stated that he had not checked the transcript against the original recording but was unable to point to any error in the transcript. We note that the transcript was provided to the respondent by the appellant more than three weeks ahead of the hearing.
5. We will consider in turn the grounds of appeal we have identified above.

Ground 1 - Procedural Fairness

1. A failure to accord procedural fairness is an error of law. However, we are not persuaded that the appellant was not accorded procedural fairness.
2. We have reviewed the transcript produced by the appellant and do not accept that it supports the appellant's first ground of appeal. The Member accepted the Tenant Statement as evidence of the amounts received by the respondent and the amounts charged to the appellant. The document appears to have been generated by a computer and appears to record charges and receipts in respect of rent and other charges. The Tribunal was entitled to accept that document as evidence of those charges and receipts and the consequent state of account between the appellant and the respondent.
3. There is nothing in the transcript which suggests that the Member refused to receive evidence from the appellant. At one point the Member permitted the appellant to rely upon a report prepared by her husband, a qualified accountant, which he had prepared by hand in the course of the hearing.
4. Accordingly, the appellant's first ground of appeal must fail.

Ground 2 - Onus of Proof

1. The appellant's second ground of appeal, that is the incorrect imposition of the onus of proof upon the appellant, is founded upon the erroneous assertion that the onus of proof lay with the respondent. In the absence of specific statutory provision to the contrary, the onus of establishing an entitlement in the Tribunal falls upon the party seeking to maintain that entitlement. In this case that was the appellant.
2. The Tribunal required the appellant to establish on the balance of probabilities that she was entitled to reimbursement of funds from the respondent. There was no error of law in the Tribunal's approach to the burden of proof.

Ground 3 - Reliance upon a "concession" by the appellant

1. We do however find that the appellant has established the third ground of appeal. The Tribunal stated, in paragraph [17] of its decision, that the appellant had "conceded the Statement accurately records amounts due and payments made". However, it is plain that the thrust of the appellant's position before the Tribunal (and before the Appeal Panel) was that the Statement was unreliable.
2. Mr Evano was unable to point to any such concession in the transcript of the hearing provided by the appellant. Mr Evano submitted that he would have to check the transcript against the recording. He did not provide any explanation why he had not undertaken that task in advance of the hearing. As this issue was clearly raised by the appellant in her Notice of Appeal, we see no reason not to accept the transcript as accurate. Accordingly, we conclude that the Member's statement that the appellant had accepted the accuracy of the Tenant Statement was erroneous.
3. In our view that error vitiates the Tribunal's decision as, by reason of the erroneous conclusion that the appellant had not challenged the accuracy of the Tenant Statement, the Tribunal failed to address the issues raised by the appellant regarding the accuracy of the Tenant Statement, and thereby made an error of law.
4. Alternatively, we consider it appropriate to grant leave to appeal against the decision as the decision was founded upon a factual error that was clearly mistaken. Accordingly, we consider the decision should be set aside.

Disposition of the Appeal

1. We do not consider it appropriate to remit the proceedings to the Consumer and Commercial Division. Section 80(3) of the NCAT Act provides: (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
2. As is customary in internal appeals in the Tribunal, directions made by the Tribunal for the preparation of the appeal included the following note: "(2) At the hearing the Appeal Panel may proceed, if appropriate, to deal with the appeal by way of a new hearing, under the Civil and Administrative Act 2013 (NSW), section 80(3). The parties should be prepared to put before the Appeal Panel any fresh evidence as well as any evidence that was before the Tribunal at first instance and make any submissions in relation to the original application that they want to make."
3. At the hearing of the appeal we invited the parties to address any matters they wished to put before the Appeal Panel in the event we determined that the Member's decision should be set aside. Neither party sought to supplement the evidence put before the Tribunal at first instance.
4. We have concluded that we should, pursuant to s 80(3) of the NCAT Act, deal with the appeal by way of a new hearing, on the basis of the material provided by the parties for the purposes of the appeal.

Determination of the appeal by way of a new hearing

1. As noted above, the appellant raised three items in respect of which she submitted she was entitled to reimbursement by the respondent.

Miscalculation of rental payments

1. The appellant asserted that rent had been paid for 285 weeks and five days and that only 283 weeks and five days were acknowledged by the respondent in the Tenant Statement.
2. The difficulty for the appellant in that submission is that, apart from the first payment on 17 February 2014, a catch-up payment on 2 June 2014 and the last two months of the tenancy, all payments in respect of rent and other charges under the lease were made by Centrelink on the appellant's behalf.
3. The only evidence before the Tribunal or the Appeal Panel, apart from the Tenant Statement, of the amounts paid by Centrelink was a page extracted from the Centrelink website which appeared to record the history of "Regular Payment Deductions" in respect of the appellant. That document (the Centrelink Payment Deduction Summary) set out the regular payments being made by Centrelink to the appellant at the time of printing (27 September 2019) and also a history of regular payment deductions made by Centrelink. The document set out both the amount of regular deductions being made from time to time from moneys payable to the appellant and the start and end dates for changes to the amount of each regular payment deduction.
4. The Centrelink Payment Deduction Summary recorded the payment of the sum of $402.80 per fortnight from 21 February 2014.
5. The appellant submitted that the Tenant statement relied upon by the respondent did not record the first payment made by Centrelink. The first payment from Centrelink recorded in the Tenant Statement was dated 7 March 2014, that is 2 weeks after the date recorded on the Centrelink Payment Deduction Summary.
6. Mr Evano explained that discrepancy on the basis that the payment had been receipted later than the date on which it had been received. Mr Evano could point to no evidence to establish that that was the case.
7. Without more, we might have drawn the inference that the respondent had failed to record a payment and that the first payment recorded by the respondent was actually the second payment from Centrelink.
8. However, the Centrelink Payment Deduction Summary records the dates from which the rental payments were adjusted (in some cases downwards). The first increase in the deductions for rent (to $408.10) is recorded by Centrelink as having commenced on 13 August 2014. The first payment of $408.10 is recorded in the Tenant Statement as received on 22 August 2014.
9. Subsequent records show payment adjustments on the following dates: Centrelink Payment Tenant statement Deduction Summary 15 April 2015 17 April 2015 11 November 2015 13 November 2015 20 May 2016 27 May 2016 20 December 2016 22 December 2016 16 August 2017 18 August 2017 14 March 2018 16 March 2018 5 December 2018 7 December 2018 8 May 2019 10 May 2019

1. Thus, although in most instances the delay between the date recorded on the Centrelink Payment Deduction Summary and the date the adjusted payment is first recorded on the Tenant Statement is short, there was always a delay and on two occasions the delay was a week or longer. The fact that adjusted payments were on no occasion recorded on the Tenant Statement on the same day they were recorded on the Centrelink Payment Deduction Summary suggests that the payment recorded on the Tenant Statement as received on 7 March 2014 could not have been paid by Centrelink on 7 March 2014. Once that is accepted, it must follow that the payment recorded on the Tenant Statement as received on 7 March 2014 was the payment recorded in the Centrelink Payment Deduction Summary as made 2 weeks earlier, on 21 February 2014.
2. We further note that the Centrelink Payment Deduction Summary does not in fact record the dates upon which payments were made. All it purports to record is the date on which deductions from the appellant's Centrelink payments in particular amounts were commenced.
3. In our view the evidence does not establish on the balance of probabilities that Centrelink made a payment on the appellant's behalf which is not recorded on the Tenant Statement. Accordingly, the appellant's first claim, that is the sum of $315.74 in respect of rental overpayments, must fail.

Overpayments for general water usage

1. The appellant's second claim is that the respondent had overcharged for water and failed to credit the appellant with the amount overcharged. The amount claimed by the appellant was $68.23. The appellant calculated this figure by reference to an email dated 14 September 2016 from the respondent in which Mr Conway of Tenancy Services explained to the appellant the process by which the respondent undertook reconciliation of water charges for all tenants in the appellant's building "to ensure that the charges for all of the tenants combined does not exceed the total water invoice for the building".
2. The letter recorded that a reconciliation was carried out for the financial year ended 30 June 2016 and that, as total usage payments made to Sydney Water exceeded the total receipts collected from tenants, no refund was due.
3. The letter noted, however, that the appellant had a credit to her non-rent (ie water) account of $34.59 because Centrelink had been paying on the appellant's behalf $13 per week, which was slightly higher than the amount the appellant was obliged to pay. The email suggested that if the appellant wished to have a refund of the $34.59, she should advise and a cheque would be issued.
4. The appellant asserted that she had not received this $34.59 and argued that, as the overpayments had continued after that date, she was also entitled to a credit in respect of subsequent payments for water charges.
5. The appellant's argument is clearly misconceived. The Tenant Statement does show a credit of $34.59 against the appellant's "Non-rent Account" as at 13 September 2016, after a debit (that is a charge levied on the appellant) on that date of an amount of $18.90.
6. The Tenant Statement shows that over the previous years the appellant's account had been debited weekly with amounts between $6.04 and $6.33 and credited fortnightly with a payment of $13.00.
7. The Tenant Statement also records that the amount debited to the appellant each week from 13 September 2016 to 19 December 2018 was variously $6.33, $6.32, $6.40, $6.44 and, for 2 weeks $6.50. Each fortnight throughout that period the appellant was credited with her payment of $13.00.
8. For unexplained reasons, on each of 12 April 2017 and 30 August 2017, the appellant's account was debited with two water charges in the amounts of $6.32 and $6.40 respectively.
9. The respondent apparently failed to debit the appellant for water charges on 26 September 2018.
10. The weekly rate in September 2018 was $6.44.
11. Apart from the two occasions when the appellant was charged twice, the credit standing to the appellant's water account continued to increase from September 2016 to 10 May 2019 when Centrelink ceased making payments on the appellant's behalf. At that date the credit stood at $103.43.
12. That credit fluctuated over the following two months until, after "end of term adjustments", on 24 July 2019 the appellant was paid the outstanding balance of $109.67.
13. It is clear that the appellant did receive the benefit of the overpayments on account of water charges that she made through the term of her lease, apart from the two occasions when she was charged twice.
14. As she was then not charged once, the evidence suggests she was overcharged $6.32 plus $6.40 minus $6.44, which equals $6.28.
15. The Appeal Panel raised with Mr Evano the deduction of $18.90 made on 13 September 2016. That deduction is described in the Tenant Statement as "water usage - shared meter" in respect of the period 1 January 1900 to 1 January 1900. Mr Evano was unable to explain that deduction.
16. Although the appellant bears the onus of establishing that she had overpaid the respondent, the respondent's own records establish the overpayment of $6.28 as explained above, and the apparent incorrect charge of $18.90 on 13 September 2016. In the absence of any logical or coherent explanation for the charge of $18.90, we conclude on the balance of probabilities that it was not justified.
17. Accordingly, we conclude in respect of her second claim, that the appellant is entitled to a payment of the sum of $25.18.

Water usage reconciliation

1. The appellant's third claim related to what the appellant described as "book entries on Tenant Statement" in the amounts of $48.83 and $58.43.
2. Both these sums are recorded in the "Non-rent Account" section of the Tenant Statement as receipts by the respondent, that is credits to the appellant, and both amounts are taken into account in the calculation of the final balance owing to the appellant of $109.60 which, as we have noted above, was paid to the appellant on 24 July 2019.
3. The appellant's bank statements record the deposit of that sum.
4. The Tenant Statement records the $48.83 as "shared water credit adjustment up to September 2018". That is, as explained by Mr Conway's email of 14 September 2014, a refund of water charges calculated as a share of the excess of water charges received by the respondent in respect of the whole building over the payments made to Sydney Water.
5. The sum of $58.43 appearing in the Non-rent account in the Tenant Statement can, by comparison between the appellant's bank statements and both the Rent and Non-rent sections of the Tenant Statement, be seen to have arisen by reason of the manner in which the respondent dealt with the rental payments made by the appellant after she ceased to make payments by Centrelink deductions.
6. The appellant's bank statements for May to September 2019, which she tendered in evidence in the Tribunal, disclose that on 24 May 2019, 6 June 2019, 20 June 2019 and 4 July 2019, the appellant made five payments of $459.40. That sum consisted of $442.40 rent and $17 water charges.
7. For unexplained reasons, the respondent credited the entirety of each of the first four payments to the rental account, leaving the water charges to be deducted from the surplus standing to the credit of the Non-rent (ie water) account.
8. The rental account was then, prior to the last rental payment in respect of the appellant's tenancy, $41.43 in credit. From the appellant's last payment the respondent credited $400.97 against the rental account. That was the amount sufficient, after allowance for the $41.43 credit balance, to cover 2 weeks rental payments.
9. The difference between $459.40 and $400.97 is $58.43, which amount was debited to the rent account and credited to the Non-rent account.
10. The respondent then undertook end of lease adjustments to the water account (including crediting the appellant with one day's overpaid rent and water charges) before calculating that a payment was due to the appellant in the amount of $109.67.
11. The appellant's explanation for her claim to the sums of $48.83 and $58.43 was set out in a report prepared by the appellant's husband, Mr Anthony Nedderman. Mr Nedderman prepared the report in handwriting during the course of the first instance hearing before the Tribunal.
12. Mr Nedderman recorded that he was born on 25 April 1935, and stated that he is a life member and Fellow of the Institute of Chartered Accountants in England and Wales, and that he has been an associate member of the Institute of Chartered Accountants of Australia since 2011. Mr Nedderman stated that he had read the President's Procedural Direction 3 and the Experts' Code of Conduct and agreed to be bound by it.
13. Mr Nedderman stated in respect of the sums of $48.83 and $58.43 "the applicant has had no such funds remitted".
14. That is clearly incorrect.
15. It is clear on the face of the Tenant Statement that both credits increased the amount standing to the credit of the appellant in the Non-rent account and that both credits were taken into account in the calculation of the final payment to the appellant of $109.67, the receipt of which on 25 July 2019 is recorded in the appellant's bank statements.
16. We note that, when the connection between the $58.43 credit and her final payment of $459.40 was put to the appellant in the course of the appeal hearing, she appeared to accept it.
17. It is unfortunate that the respondent adopted an accounting practice which understandably served to confuse the appellant (and even her husband). However, we are not persuaded that the appellant has established that she has made any overpayment to the respondent apart from the net result of the apparent duplication of water charges in the amount of $6.28 and the unexplained debit of $18.90 on 13 September 2016.
18. We are satisfied on the balance of probabilities that the appellant did make overpayments in the sum of $25.18 and accordingly we will allow the appeal and order the respondent to pay the appellant the sum of $25.18 immediately.
19. It is, as we have noted, unfortunate that the respondent adopted a somewhat eccentric method of accounting for receipts, which caused confusion and required the attention of an Appeal Panel to rectify. It would be best if the respondent ensured that the processes by which it accounts for receipts of rent and other charges are transparent and easily understood.

Orders 1. Extend time for lodgement of the appeal to 24 February 2020. 2. To the extent necessary grant leave to appeal. 3. Allow the appeal. 4. Set aside the orders made by the Tribunal on 16 January 2020 in proceedings SH 19/40477. 5. Order the respondent to pay the appellant the sum of $25.18 immediately.

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: 16 July 2020