Balachandren v Wu [2015] NSWCATAP 1 | Case summary

NCAT Appeal Panel|2015-01-14

Introduction

In this matter the appellant seeks to appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 17 September 2014.
The appellant was the tenant of residential premises at Auburn. On 17 September 2014 the Tribunal terminated the residential tenancy agreement due to the appellant's failure to pay rent in accordance with that agreement. In addition the Tribunal also ordered the appellant to pay rental and water arrears in the total amount of $2,019.59 before 1 October 2014, and to pay a daily occupation fee until such time that vacant possession of the premises was given to the respondent landlord.
The orders of the Tribunal terminating the residential tenancy agreement, directing possession of the premises to be given to the respondent on the date of termination and suspending the order for possession were subsequently stayed until the hearing of this appeal.
This is a matter in which the appellant has filed his appeal out of time, and requires the Appeal Panel to extend the time for the making of the appeal; the appeal was filed on 16 October 2014, while the decision appealed from was made on 17 September 2014. Unless the Tribunal grains an extension of time under s.41 of the Civil and Administrative Tribunal Act 2013 (the Act), appeals in respect of residential proceedings must be lodged within 14 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later): see regulation 25(4)(c) of the Civil and Administrative Tribunal Rules 2014.
As the respondent has stated in her reply that she does not object to the Appeal Panel extending the time for the lodging of the appeal, the time to do so is extended to 16 October 2014.
As we explain below, no question of law is involved in this appeal, therefore the appellant requires the leave of Appeal Panel for the appeal to proceed. For the reasons which follow, leave to appeal is refused, and the appeal is dismissed.

Notice of Appeal

In the notice of appeal the appellant seeks the following orders: order to be set a side this will give us chance to explain our side of the story. 1) execute warrant 2) return bond to tenant 3) termination notice (text is reproduced as appears in the notice of appeal).
The grounds of appeal are stated as: at that time of order I was 14 days rent arrears. water bill was agree to paid by instalment. he has practice lease termination before the expire of the lease. Improper lease termination notice. Bond was not lodged to the appropriate office We have not given chance to explain our side. (text is reproduced as appears in the notice of appeal).
The appellant also states in the notice of appeal that evidence is now available that was not "reasonable" at the time. Presumably this is a reference to evidence not being reasonably available at the time of the hearing before the Tribunal. However the appellant does not state what this evidence is, or why it is now available.
In a statutory declaration accompanying the notice of appeal declared 16 October 2014 the appellant declares: I do not have any rent arrears or created depth to land lord. the landlord improbly pratise ending lease. I have not given opportunity to explain my side. I have not received any correspondence from any party. (text reproduced as appears in the statutory declaration).
These matters are also referred to in the appellant's submissions filed with the Tribunal on 18 November 2014. In summary the appellant submits that he is not in rental arrears, that all outgoing bills have been paid (including water), and there are outstanding maintenance issues requiring the attention of the landlord. He also asserts that the bond has not been lodged with the Rental Bond Board.

Respondent's Submissions

In summary, the assertions of the appellant set out above are denied by the respondent. The respondent states in her submissions filed 27 November 2014 that the appellant:

has failed to pay his daily occupation fees and is now 26 days in arrears, and now "owes more money than before";
failed to pay the amount ordered in respect of water arrears;
did not make the payment in respect of rent as ordered; and
"the landlord is struggling to find money to pay her mortgage. Please help her by making your Appeal determination ASAP".

Internal Appeals

Section 80(2) of the Act provides: Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
In his notice of appeal the appellant does not state whether or not he is asking for leave. We consider that this is a matter where leave is required, as we can discern that no question of law is involved in the appellant's submissions. Pursuant to clause 12 of Schedule 1 of the Act an Appeal Panel may grant leave under section 80(2)(b) only if the Appeal Panel is satisfied 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).
The meaning of the expression "substantial miscarriage of justice" was considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 and summarized at [71] as "a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred".

Leave to appeal - Principles to be applied

The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are set out in Collins v Urban. In that decision an Appeal Panel reviewed the relevant legal authorities and stated at [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.

Consideration

The Appeal Panel is unable to discern in the materials filed by the appellant that any issue of principle or public importance is involved in this appeal, that there has been any injustice, any factual error or that the Tribunal went about its fact finding process in an unorthodox matter. No submissions to that effect are made by appellant. The reasons of the Tribunal appear to reflect a straightforward decision to terminate a residential tenancy agreement due to rental arrears based on the evidence before it.
The application for leave to appeal must be refused. The Appeal Panel does not consider that the appellant has suffered a substantial miscarriage of justice in the way in which the matter was conducted or decided by the Tribunal which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred.

Decision

For the above reasons, leave to appeal is refused, and the appeal is dismissed.
The stay of the orders of the Tribunal of 17 September 2014 is lifted. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. 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: 14 January 2015

Balachandren v Wu

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Judgment (8 paragraphs)

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Cases Cited (3)