Barodawala v Little Tootsies Pty Ltd t/as Ray White Carlton

Evidence and submissions on the appeal

1. The appellant provided a two page statement and two annexures with her Notice of Appeal, and written submissions together with several pages of annexures, received on 9 November 2017. Further written submissions were received on 7 December 2017. The appellant was represented by her husband, Mr Barodawala, who made oral submissions.
2. The respondent provided submissions with the Reply to Appeal received on 10 October 2017, and written submissions in reply to those of the appellant, received on 24 November 2017. The respondent was represented by Ms Carly Lagoudakis, who made oral submissions.
3. The appellant provided some of the documents on which she had relied at the first instance hearing. The respondent did not provide a copy of any of the evidence on which it had relied. The Appeal Panel was not provided with a copy of the sound recording or transcript of the hearing at first instance.

Extension of Time for Appeal

1. The decision under appeal was made on 9 May 2017, and posted to the appellant. The Notice of Appeal was lodged on 22 September 2017.
2. Rule 25(4) of the NCAT Rules provides that an appellant must lodge an appeal within 28 days from the day on which they are notified of the decision to be appealed or given reasons for the decision, whichever is the later. The Notice of the decision posted to the appellant included written reasons and it is clear that the appellant did not lodge her appeal within 28 days of receiving notification of the decision.
3. The appellant's request for an extension of time to lodge the appeal was opposed by the respondent, on the grounds that there is no new evidence, the circumstances have not changed, and it no longer manages the property.
4. The Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [21]-[22] set out the relevant principles in relation to an extension of time in which to bring an appeal (references omitted): 21. Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. 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.

The length of the delay

1. The decision under appeal was posted to the appellant on 9 May 2017, addressed to the post box address specified by the appellant in her application. By rule 13(4) of the NCAT Rules, unless proved otherwise, the notice of the decision is taken to have been given to the appellant at the end of the fourth working day after the date on which it was posted, namely 15 May 2017. The appellant states that she received the decision on 23 May 2017. Even if the latter date is accepted as the date of receipt, the appeal was lodged 95 days after the date specified by rule 25(4). The delay is significant.

The reason for the delay

1. The appellant states that she needs an extension of time "as we just inspected missing documents through NCAT staff after making appointment recently", and that her husband handles these matters and he has had chronic back pain for many months and was unable to do the appeal on time. The further written submissions, prepared by Mr Barodawala, state that he "started making inquiries regarding the Appeal process with NCAT" and also made inquiries in getting missing copies, and that the appellant relies on him as she has little or no knowledge of various procedures, which are complicated.
2. The appellant provided a medical certificate dated 24 August 2017 which states that Mr Barodawala was unfit for normal work from 1 July 2017 to 30 September 2017, diagnosis "Medical Condition". That certificate does not explain either why no action was taken on an appeal before 1 July 2017, or how the asserted medical condition interfered with the ability of either the appellant or her husband to take steps to lodge an appeal. The appellant also provided an email from Mr Barodawala to the Tribunal dated 20 April 2017 advising that his PC had crashed. That was well before the hearing on 8 May 2017. It is not clear on the material available why the appellant asserts that computer problems in April 2017 were responsible for the extended delay in lodging the appeal.
3. The Tribunal's records do confirm that Mr Barodawala was making inquiries with the Tribunal after the notice of the decision was received. Initially Mr Barodawala sought reasons for the decision. The appellant was advised on 13 June 2017 that extensive written reasons had already been given. On 15 June 2017 the appellant was advised that there may be a right to lodge an internal appeal, and that independent advice should be sought. On 16 June 2017 the appellant was advised to consider her appeal options as previously advised. The Appeal Panel is satisfied that at least as early as 15 June 2017 the appellant was on notice that she could consider lodging an appeal.
4. The appellant's explanation for the delay in lodging her appeal is not convincing. The appellant was on notice at least as early as 15 June 2017 of her appeal rights; the medical certificate does not explain why no action was taken by either the appellant or her husband before 1 July 2017, or how the asserted medical condition interfered with the ability of either the appellant or her husband to take steps to lodge an appeal; and, even accepting that computer issues may have hindered the appellant's access to obtain the forms and information available on the Tribunal website, the appellant has provided no explanation as to why it took 18 weeks to lodge the appeal.

Prejudice to the respondent

1. The respondent opposes the grant of an extension of time. However, other than disputing the extent to which Mr Barodawala was incapacitated during the period stated, and stating that the agency's file has been closed, the respondent did not identify any specific prejudice which it would suffer if the appellant were permitted an extension of time for the lodgement of the appeal. The Appeal Panel accepts that undue delay of itself can impose strain and uncertainty on litigants, contrary to the interests of justice: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27. However, the respondent has been able to respond adequately to the appeal, and no prejudice to the respondent has been shown beyond the inherent prejudice to a respondent in an appeal being pursued well after the time for doing so has expired,. The Appeal Panel does not consider that potential prejudice to the respondent would weigh strongly against extending time.

The prospects of success

1. The length of the delay is significant, and the reason for the delay is less than satisfactory. As noted in Jackson, it may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory, and it may be relevant if the appellant can show that his or her case has more substantial merit than merely being fairly arguable.
2. The Notice of Appeal does not explicitly raise any questions of law. However, the appellant is unrepresented, and we have given consideration to whether any questions of law are nevertheless raised.
3. The appellant's references to findings under s 63 and to the issue of repairs appear to relate to earlier proceedings under the Residential Tenancies Act 2010 in which the appellant as landlord had been ordered to pay to the tenants of the property the amount of $840.00 (RT 16/45261) by reason of breach by the appellant of s63 of the Residential Tenancies Act. That decision is not the subject of this appeal, and there is nothing raised by the Notice of Appeal in that regard which is capable of raising a question of law. The third ground identified goes to the Member's consideration of the evidence. No error of law is raised by that ground, rather, it appears to be a repetition of the matters raised by the appellant's application for leave to appeal on the basis that the decision was not fair and equitable and was against the weight of the evidence.
4. The appellant's contentions are amplified in the written submissions received on 9 November 2017 in which the appellant submits: that the respondent made misleading representations in relation to the terms of the managing agency agreement (dated 30 October 2012); that the respondent failed to fulfil its obligations under the agreement in failing to carry out inspections, in failing to obtain confirmation before selecting tenants, and in failing to supervise repairs and maintenance of the property; that the Member failed to rely on the documentary evidence provided by the appellant; and that the respondent failed to take due care in providing its services.
5. The appellant also seeks leave to appeal on the further ground that there is substantial new evidence, which was not available at the hearing because of computer problems. At the appeal hearing Mr Barodawala produced documents said to be that new evidence; the only document which had not in fact been before the Tribunal Member was a copy of an application by the tenant dated 25 October 2016 which identified the tenant's former managing agent: Mr Barodawala's submission was that, if the respondent had checked with that agent, it would have been discovered that the tenant was "difficult".
6. A grant of leave in accordance with cl 12 of Sch 4 would require the Appeal Panel to be satisfied that that an appellant may have suffered a substantial miscarriage of justice, which, as discussed in Collins v Urban [2014] NSWCATAP 22, refers to 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.
7. The approach adopted by the appellant in the appeal is in substance to express disagreement with the Member's findings. That is not a basis on which the Appeal Panel could grant leave. As observed by the Appeal Panel in Temple v AMR Motors Pty Limited [2017] NSWCATAP 221: 38. … Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so). 39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. …
8. On a fair reading of the Member's reasons, there is no error in how she identified the relevant issues, evaluated the evidence, or reasoned to her findings. The Member approached the matter as a consumer claim under the Fair Trading Act 1987, for breach of the terms of the managing agency agreement between the parties, and in the alternative as a claim arising by reason of a breach of the guarantee imposed by s 60 of the Australian Consumer Law (NSW) that the services provided by the respondent would be provided with due care and skill. The Member received sworn evidence from both parties, and gave reasons for her findings based on the documentary and oral evidence. In particular, the Member gave reasons for preferring the evidence of the respondent to that of the appellant where the evidence was conflicting. The Member concluded that the appellant had not satisfied the onus of establishing a breach of the contract, or a failure to render services with due care and skill.
9. As to the submission that there is substantial new evidence, the evidence referred to in cl 12(1)(c) of Schedule 4 to the NCAT Act is evidence which was unavailable at the time of the hearing because no person could reasonably have obtained it. The fact that a party was unable to procure that evidence for reasons peculiar to that party would not be sufficient. That requirement is not satisfied in this instance. Moreover, even if it were established that the evidence was not reasonably available at the time of the hearing, the appellant has not established that the evidence may have made a material difference to the Member's evaluation of the evidence. The Appeal Panel is not satisfied that any substantial miscarriage of justice may have occurred on this ground.
10. In substance, the appellant's objection to the decision below is that the Member preferred the evidence of the respondent to that provided by the appellant. That is not a proper ground of appeal or for leave to appeal. The Member's reasons confirm that the appellant's evidence was taken into account. The appellant has not demonstrated that there was a substantial miscarriage of justice as that concept is explained in Collins v Urban. The appellant's prospects of success could not be described as even fairly arguable.

Conclusion

1. Having regard to the lack of prospects of success, together with the appellant's inadequate reasons for what was a significant delay in lodging the appeal, the Appeal Panel concludes that the appellant has not shown that strict compliance with the time limit in rule 25 of the NCAT Rules for the lodging of an appeal would work an injustice on the appellant. The Appeal Panel is not prepared to grant the appellant an extension of time in which to appeal. Accordingly, the appeal must be dismissed.
2. The Appeal Panel makes the following orders: 1. The application for an extension of time for the filing of the Notice of Appeal is refused. 2. The appeal is dismissed.

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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: 25 January 2018