On 11 March 2016 Philip Bartush (the landlord) lodged with the Tribunal an application making the following claims against Matalena Ale, Jerome Ale and Antonio Ale (the tenants) in respect of a property at Wentworth Falls:
(1) Claim for rectification costs of tenants' damage to the property not repaired upon the tenants' vacancy $4,265.
(2) Claim for the cleaning of the property after the tenants' vacancy $423.50.
(3) Claim for the replacement of the tenants' lost door key $231.
(4) Claim for tenants' unpaid Sydney Water account $27.31.
(5) Claim for the 4th person residing at the property contrary to the RTA $7,015.
The application was originally numbered RT 16/122211 but later changed to RT 16/21284.
On 9 June 2016 the Tribunal gave directions which included the following:
2. The applicant shall provide to the respondent and the Tribunal, a copy of all documents, including but not limited to witness statements, statutory declarations, photographs, accounts, receipts, quotations and reports and (sic) the issue (sic) on whether the Tribunal still has jurisdiction to determine the matter on which the applicant intends to rely at the hearing by 23/6/16.
The parties had previously appeared against each other, in the Tribunal. The Tribunal Member described the outcome of these cases as follows:
A previous application had been filed on the 18/2/16 seeking the same orders that was (sic) listed before the Tribunal on the 3/3/16. As there was no appearance of the applicant the matter was dismissed. Mr. Bartush sought to re-instate the matter on the 14/4/16 stating that due (sic) a motor vehicle accident he was not able to attend the Tribunal on time on the 3/3/16. The re-instatement was granted and the order dismissing mater (sic) RT 16/12261 was set aside and the proceeding re-instated (sic).
The parties had previously appeared before the Tribunal on matter RT 15/503300 where the applicant landlord had sought orders under s 187 (c) for an order of an amount of money in the sum of $7234.73 and an order for compensation under s187(d) seeking an order for compensation in the sum of $7234.73. An order under s187(1)(e) for an order that a party to a residential tenancy agreement perform such work or take such other steps a (sic) the order specifies to remedy the breach of the agreement. An order under s87 for termination where the tenant has breached the residential tenancy agreement.
The parties appeared before the Tribunal on the 17/9/15 and agreed to the following orders by consent:
"1. By consent, the residential tenancy agreement is terminated and vacant possession is to be given on 30 October 2015.
2. If the tenants have not given vacant possession on the 30 October 2015 they are to pay a daily occupation fee of $100 per day.
3. The landlord has leave to apply for determination of any occupation fee on or before the 31 December 2015."
The parties has (sic) also appeared before the Tribunal on matter RT 15/49715 on the 10/12/15 when the tenants sought orders under s 44 (1) (b) on the basis that the rent was excessive due to a withdrawal of goods, services or facilities for the period 21/4/15 to 9/5/15 and under s 44 (1) (a) that a rent increase is excessive.
The matter was listed for hearing on the 10/12/15 and the following orders were made by the Tribunal:
"1. By consent, the landlord Philip Bartush is to pay the tenant the sum of $2400.00 on or before 17/12/15.
Reasons:
Compensation: $2400 in accordance with section 187 of the Act."
The Tribunal Member's reasons for decision the subject of this appeal stated:
The parties were specifically asked to address the issue of jurisdiction with respect to the Tribunal having authority to make the orders sought by the applicant. The applicant has failed to address the issue of jurisdiction.
The respondent has addressed the issue in their submissions in the following terms:
"The tenancy agreement was terminated on the 5th October, 2015. Please find attached the following documents in support of this: ….."
A number of documents were then described. The inference to be drawn from the descriptions is that the tenancy agreement was terminated on 5 October 2015, if not before, by virtue of the consent orders of 17 September 2015, and the tenants vacated the premises on or about 5 October and at the very latest on 7 October.
The tenants' submissions on jurisdiction were set out at length in the Tribunal's reasons. Those submissions referred to the fact that both of the landlord's applications were based on grounds of breach of the tenancy agreement.
The submissions then referred to s190 of the Residential Tenancies Act, 2010 and cl 22 (9) of the Residential Tenancies Regulation 2010, the combined effect of which is that the prescribed period for making an application for an order in relation to a breach of a residential tenancy agreement was within 3 months after the applicant became aware of the breach. The submissions (as extracted in the Tribunal's reasons) then continued:
The landlord's application therefore needed to be lodged by 5th January 2016. The application was lodged two months and six days after this date, however significantly out of time. Under the circumstances the Tribunal has no jurisdiction and the application should be dismissed.
The landlord has referred in his application to reinstate the matter in his application file number RT 15/50300 attached. The landlord states that this matter was heard on the 10th December 2015. File number RT 15/50300 was heard and finalised on 17th September 2015 with the landlord's application withdrawn on the advice of the Member Levingston.
We note that by the landlord's own admission in the final paragraph of his application to reinstate "the Member advised me to withdraw the matter as he could not hear the matter until the tenants moved out." We moved out two weeks and four days later. The landlord, despite the above advice from the Member, made his application some six months later.
This application should be dismissed on the issue of jurisdiction as the application was not filed in the prescribed time.
The Tribunal referred to the landlord's oral submissions which were to the effect that he was not a lawyer, he was not aware of "time based issues", he had informed the Registry at Penrith that he had had medical issues, and that "if he was aware that he could of [sic] applied for an extension he would have done so."
The Tribunal then recorded that it accepted the submissions of the respondents with respect to the applicant being out of time and noted that the applicant had not sought an extension of time to pursue his claims.
The Tribunal Member referred to s41 of the Civil and Administrative Tribunal Act 2013 (NSW) which enables the Tribunal of its own motion or on the application of any person to extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction. The section enables such an application to be made even though the relevant period of time has expired.
The reasons then continued as follows:
No application for an extension of time has been made by the applicant. To do so now would unfairly prejudice the respondent. The Tribunal relies on the comments made by the High Court in Brisbane South Regional Health Authority v Taylor (1966) CLR and referred to the rationales for the existence of limitation periods at 551/554:
"In enacting limitation periods, legislatures have regard to these rationales. A limitation period represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. … A limitation period is the general rule; an extension provision is the exception to it … Accordingly, when the applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."
An application is now sought by the applicant in regard to the extension of time. In order to extend time, the Tribunal must be satisfied as to whether there is an acceptable explanation for the delay and whether, in the circumstances, it would be fair and equitable to extend time.
After considering the submissions of both parties the Tribunal declines to exercise its discretion to extend the time limit in respect of the breaches. I am not persuaded that the explanation for the delay in lodging a claim warrants exercising the Tribunal's discretion to extend the time limit. In considering this, I have also given consideration to the merits of the applicant's case.
…………
The time limit imposed is intended to give all the parties to disputes of this nature some closure on their dispute. There was no reason, other than the applicant's lack of understanding of the law, which prevented the applicant pursuing their (sic) claim in the Tribunal within the allowable time frame. To allow the matter to proceed by extending the time limit would be a matter of considerable prejudice to the respondent who, if properly informed, would be entitled to expect to (sic) that the right to bring any such claim had long since expired.
Accordingly, I find that the application is out of time and the application is dismissed.
[2]
Grounds of Appeal
The appellant's rights of appeal are limited by s80(2) of the Civil and Administrative Tribunal Act which provides:
"(2) 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.
As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of clause 12(1) of Schedule 4 to the Civil and Administrative Tribunal Act, leave to appeal may only be granted under s80(2)(b):
If the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
(a) the decision of the Tribunal under appeal was not fair and equitable, or
(b) the decision of the Tribunal under appeal was against the weight of evidence, or
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The grounds of appeal as set out in the Notice of Appeal are as follows:
Due to the Appellants extenuating Health circumstances, the Appellant could not make application within the prescribed time.
As the matter was dismissed, I have suffered a judicial miscarriage by not having the evidence heard by the Tribunal.
The Tribunal unfairly did not consider the Appellants weight of Evidence.
The Respondents have been fully aware of the Appellants weight of evidence and Claims against them.
Please see the attached
The landlord also sought leave to appeal both on the basis that the decision was not fair and equitable and on the basis that the decision was against the weight of evidence. The landlord identified the basis upon which he asserted that the decision was not fair and equitable in the same terms as the grounds of appeal which are set out above. The landlord stated, in support of the proposition that the decision was against the weight of evidence:
As the matter was dismissed, the Tribunal did not hear my evidence
All documents evidencing my claim has been submitted to the Tribunal and the Respondents
i Please see the NCAT receipt of my documents.
ii The Respondents have replied to the Applicants Evidence.
iii The Applicant has replied to the Respondents Affidavit.
iv This matter is ready to be heard by the Tribunal.
In response to the question which appears in the required form for Notices of Appeal "What evidence should the Tribunal have given more weight to? Why"?, the landlord stated:
The Members statement that the Respondents shall be disadvantaged?
The Respondents shall in no way be disadvantaged as the Appellant did supply all documentary evidence to the Respondents.
The Respondents did reply to my Affidavit.
I did then reply to the Respondents Affidavit.
On the day the matter was dismissed both the Appellant and the Respondent were prepared for the matter to be Heard.
Although the grounds of appeal and the application for leave to appeal on the grounds that the decision was not fair and equitable both state "Please see the attached", the only relevant attachment was a statement which was in the following terms:
1. As I have been unwell and to rectify a clear injustice, I request leave from the Appeal Panel to appeal on the grounds other than a question of law.
2. RT 15/503300 was first raised within the prescribed time.
3. Unfairly and against the weight of Evidence, the Member only heard part of RT 15/503300, stating the remainder of the Claim could not be heard till the Respondents vacated.
4. As my Health permitted, the subsequent Applications RT 16/12211 - RT 16/21284 were submitted.
5. Due to my ill-health, I was not physically or mentally capable in properly pursuing a Claim against the Respondents. In retrospect I should have advised the Tribunal of my plight, unfortunately in my condition I did not consider this option.
6. RT 16/12211 - RT 16/21284 these claims are materially the same as the application RT 15/503300, thus I claim an injustice in having this matter dismissed, as the dismissal was not fair not equitable and was against the weight of evidence.
7. The Respondents are fully conversant and have a full knowledge of the claims RT 15/503300 and RT 16/21284. This was matter was fully known the Respondents as all Evidence substantiating my claim was submitted to the Respondents.
8. Other than facing the consequences of their actions the Respondents shall in no way be further disadvantaged by the granting of an Appeal to have this matter heard:
i The Applicant has provided all documentary evidence to the Respondents.
ii The Respondents have replied to the Applicants Evidence.
iii The Applicant has replied to the Respondents Affidavit.
iv This matter was ready to be heard by the Tribunal.
v The Respondents Advocate, because of a Jurisdiction claim the matter was dismissed.
9. As the matter was dismissed, I have suffered a judicial miscarriage by not having the evidence heard by the Tribunal.
10. The Tribunals decision to Dismiss without testing my weight of evidence is a miscarriage of Justice.
11. Tribunal Considerations:
i I have considered the Tribunal as a venue where the Landlord and the Tenant would each present their case without the need for Legal representation.
ii I would assume the Respondents are as ignorant of the Tribunal requirements as myself, had the Respondents not relied upon the services of the Elizabeth Evatt Community Legal Centre this matter would have been Heard.
iii Unlike the tenant; as the landlord, I was discriminated against by not having access to Free Legal Advice and tribunal Representation.
iv Being unaware a Time Bar would result in the matter being dismissed, I submitted my claim RT 16/21284 as my state of health permitted, consequently suffering an injustice due to the dismissal.
12 Attached are 2 Medical certificates attesting to my ill health, due to privacy matters, these Certificates do not fully state the severity of my conditions.
Although the landlord did not seek leave to appeal on the ground that there was significant new evidence, the landlord did attach to his Notice of Appeal two medical certificates, one from a general practitioner and one from a surgeon, which had not been provided to the Tribunal Member at the hearing.
As the Member noted, the landlord did refer to his medical issues in his oral submissions. However, it does not appear that the landlord sought at the hearing to rely on his medical condition as a justification for his failure to commence the application within time. The medical certificates attached to the Notice of Appeal do not state that the landlord was unable to attend to his affairs, or specifically attend to the preparation of an application to the Tribunal, at any time between 5 October 2015 and 11 March 2016. The certificates do state that the landlord had required surgery, but both certificates bear dates in July 2016 and the certificate provided by a surgeon states that he first consulted the landlord on 9 May 2016, which would tend to suggest that the surgery occurred after that date. The certificates cannot be said to be "significant" new evidence and it cannot be said that evidence of the landlord's medical condition was "not reasonably available at the time" of the hearing before the Tribunal Member.
Accordingly we will not further consider any grounds for appeal or leave to appeal arising in relation to the landlord's health or the medical certificates.
We note that although the landlord sought an extension of time for filing the appeal, no such extension was necessary. The decision under appeal was delivered on 7 July 2016. The Notice of Appeal was filed on 19 July 2016. Pursuant to rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) an appeal against a decision made in "residential proceedings" (defined in rule 3 as including proceedings under the Residential Tenancies Act) must be made within 14 days of the day on which the appellant was notified of the decision. The appeal was lodged 12 days after the decision in this instance and therefore the landlord does not require an extension of time for filing the appeal.
In Cominos v Di Rico [2016] NSWCATAP 5 an Appeal Panel stated:
12. The Appeal Panel must give effect to the guiding principle when exercising functions under the CAT Act, which is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 36(1)). This is reinforced by s 38(4) which provides that the Tribunal is required to act with "as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."
13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. 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. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
Having regard to the guiding principle and the matters set out in the extract from Cominos v Di Rico set out above, we have concluded that there are errors of law in the Tribunal's decision which are sufficiently raised by the Notice of Appeal. Those errors are: that the Tribunal Member failed to provide adequate reasons for the decision not to extend time and that he wrongly took into account matters which were not the subject of evidence. We will explain below why we have reached this conclusion.
The factors which might be relevant in the consideration of an application pursuant to s41 for an extension of time to commence proceedings would include:
1. The length of the delay;
2. The reason for the delay;
3. The applicant's prospects of success, that is the apparent merits of the application, whether the applicant has a fairly arguable case; and
4. The extent of any prejudice suffered by the respondent by reason of the delay.
These factors reflect those identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. Although the principles set out in Jackson were expressed in the context of an application for an extension of time in which to file a notice of appeal, they have been considered relevant and applicable in relation to the application of s41 in other contexts: see Thomas v Golde [2016] NSWCATAP 107 at [25]; Toki v Beirs [2017] NSWCATCCD 24 at [17]; and Roth v Pipeclay Creek [2014] NSWCATCCD 235 at [31].
Rule 8 of the Civil and Administrative Tribunal Rules provides that an application pursuant to s41 for an extension of time must be made in writing, unless the Tribunal dispenses with that requirement. It is apparent from the Member's reasons for decision that the landlord's application for an extension of time was not made in writing but rather orally in the course of the hearing. The Tribunal Member did not advert to the requirements of rule 8. However, as the Member entertained the landlord's application, although dismissing it, the Member should be taken as having dispensed with the requirement for writing.
The Tribunal Member appears, quite properly, to have taken into account each of the four factors referred to in paragraph 23 above. However, we have concluded that the Tribunal Member made errors of law in the way he dealt with the landlord's application for an extension of time.
We have concluded that the Tribunal Member failed to give adequate reasons:
1. explaining the manner in which he took into account the "merits" of the landlord's case in exercising his discretion adversely to the landlord; and
2. for his finding that to allow the matter to proceed by extending the time limit for commencing proceedings would be a matter of considerable prejudice to the tenants.
We have also concluded that the Tribunal Member wrongly took into account, when exercising his discretion, matters for which there was no evidence.
Although none of the above matters was explicitly identified in the landlord's Notice of Appeal, we consider that the inadequacy of the Tribunal Member's reasons in relation to the consideration of the 'merits' is sufficiently raised by the landlord's complaint that the "Tribunal unfairly did not consider the Appellants weight of evidence".
We consider that the inadequacy of the Tribunal Member's reasons in relation to the finding that there would be "considerable prejudice" to the tenants if the matter was allowed to proceed is sufficiently raised by the landlord's response to the question "What evidence should the Tribunal have given more weight to?" which is set out in paragraph 15 above. We also refer to paragraphs 7 to 10 of the attachment to the Notice of Appeal, set out in paragraph 16 above. Those parts of the Notice of Appeal and the attachment, which refer to the tenants not being "disadvantaged", clearly challenge the finding that there was "considerable prejudice" to the tenants.
We also consider that the Member's taking into account of matters for which there was no evidence is sufficiently raised by the same parts of the Notice of Appeal and the attachment. In order to consider whether a conclusion is against the weight of evidence it would be necessary to consider the evidence in support of the conclusion. In that way, the assertion that the decision was against the weight of evidence raises for consideration the question whether there was any evidence to support the findings upon which the decision is based.
The landlord's central complaint, repeatedly stated in his Notice of Appeal, is that his case should have been heard. That did not occur because the Tribunal Member declined to extend time for the landlord to bring his claim. The landlord has identified in his Notice of Appeal that the tenants were aware of his case and had filed evidence in response. In the absence of evidence to the contrary it could be inferred that the tenants had come to the hearing prepared to meet the landlord's case.
The issues relating to the manner in which the Tribunal Member dealt with the merits of the application were the subject of discussion before the Appeal Panel on 14 October 2016. Because it was not clear from the material before the Appeal Panel on that occasion whether certain evidence relied upon by the landlord had been before the Member, the Appeal Panel adjourned the hearing and made directions (among others):
2. Adjourned for the purpose of the parties obtaining the tape recording or transcript of the hearing or other evidence … as to whether Tribunal Member Sponza had the folder of evidence (the blue folder) during the hearing on 7 July 2016. …
3. Both parties are to file submissions … on:
(a) Whether if the Member did not have the Appellant's blue folder of evidence, the Appellant has been denied procedural fairness;
(b) If the Member did have access to the blue folder, was the Member's consideration of the merits of the Appellant's case adequate and did he provide adequate reasons as to his finding on the merits;
(c) Whether the blue folder disclosed a reasonable case in favour of the Appellant.
The parties provided submissions in accordance with those directions. The landlord submitted that there was nothing in the recording of the hearing to prove that the Member had considered the blue folder. The tenants provided references to the recording of the hearing to establish that the Member had been referred to specific documents in the blue folder. The tenants submitted:
The Member's consideration as to the merits of the Appellant's case were adequate and he provided sufficient reasons as to his finding on the merits.
From the references provided by the tenants, it is clear to us that the blue folder was before the Member on 7 July 2016 and that the tenants' representative did refer the Member to documents in the blue folder. It follows that it cannot be said that the Member did not consider the blue folder in reaching his decision.
[3]
Adequacy of reasons
The Tribunal is obliged to give adequate reasons for its decisions (Collins v Urban [2014] NSWCATAP 17 at [56]).
One of the fundamental elements of a statement of reasons is that the decision maker (judge or tribunal member) should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts. Those reasons or the process of reasoning should be understandable and preferably logical as well (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at pages 443-444).
The balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal (Beale at page 444).
Most cases have assumed that the failure to provide reasons or the provision of inadequate reasons constitutes either an error of law or some other appealable error. Most cases have assumed the error is one of law (Beale at page 444. See also NSW Insurance Ministerial Corporation v Mesiti Unreported, NSW Court of Appeal, 1 December 1994, where Mahoney JA held that what was, in that case, the provision of inadequate reasons, was an error of law). An Appeal Panel of this Tribunal identified the failure to provide proper reasons as giving rise to a question of law permitting an appeal as of right in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13 and that decision has been repeatedly cited as authority for that proposition. We intend to proceed on the basis that the provision of inadequate reasons is an error of law.
[4]
The merits
At paragraph 10 above we have recorded what the Tribunal Member said about the merits of the case. It can clearly be inferred from his statement about the merits that he took them into account adversely to the landlord in exercising his discretion not to extend the time for commencement of the application. It is also apparent from the references to the tape of the hearing, provided by the tenants in their submissions in response to the Appeal Panel's directions of 14 October 2016, that the Member was taken to the evidence and gave it some consideration. However the Tribunal Member did not state what were the matters he took into account when considering the merits. Furthermore he also failed to disclose the reasons why he concluded that the "merits" of the landlord's application did not support the exercise of his discretion to extend the time to commence the proceedings.
We are therefore of the opinion that the Tribunal Member fell into error in failing to give adequate reasons identifying the matters he took into account in relation to the "merits" or explaining the manner in which he took them into account and the conclusions he drew in relation to the "merits".
We do not suggest that the burden on the Member to explain his conclusions in relation to the merits was onerous. It is not necessary for the purposes of our decision to seek to identify a minimum standard for such reasons. We refer to what was said by the Appeal Panel in Collins v Urban at [43] - [64].
[5]
Considerable prejudice
In his reasons the Tribunal Member referred to prejudice on two occasions recorded at paragraph 10 above. The significant conclusions reached by the Tribunal Member are encompassed in the sentence "To allow the matter to proceed by extending the time limit would be a matter of considerable prejudice to the respondent who, if properly informed, would be entitled to expect to (sic) that the right to bring any such claim had long since expired."
No reasons were given as to why allowing the matter to proceed by extending the time limit would be a matter of considerable prejudice to the tenants. Although it is implicit in the imposition of a time limit for the bringing of an action, that delay beyond the time limit may be presumed to cause prejudice to the other party to the action (see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 555), it would not be appropriate to describe such presumptive prejudice as "considerable" without some specific basis for doing so. The delay in the landlord's commencement of the proceedings was two months and six days. The tenants had been on notice of the landlord's intention to bring a claim since before their tenancy was terminated. The Tribunal Member provided no explanation how the tenants were prejudiced beyond the proposition that they might, properly informed, have been entitled to expect that, the time limit having expired, the landlord would not bring the claim. The Tribunal Member's reasons do not address the questions whether the tenants had been so informed, whether the tenants had concluded that the landlord would not commence proceedings and whether the tenants had acted in any way to their disadvantage by reason of such a conclusion. It does not appear that there was any evidence concerning those questions before the Member.
We are of the opinion that the Tribunal Member fell into error in failing to give adequate reasons why allowing the matter to proceed by extending the time limit would be a matter of "considerable prejudice" to the tenants.
[6]
Findings made without evidence
No evidence which was before the Tribunal Member has been brought to our attention which might establish that the tenants were "properly informed" or were consciously aware, before receiving notice of the application in proceedings RT 16/12211 in March 2016, that the time for the landlord to bring an action seeking compensation for breach of the tenancy agreement had expired.
No evidence which was before the Tribunal Member has been brought to our attention which might establish that the tenants expected that the landlord's right to bring the claim against them had "long since expired".
No evidence which was before the Tribunal Member has been brought to our attention which might establish that the tenants were, in any way beyond the mere fact of delay amounting to two months and six days, actually prejudiced by that delay in the commencement of the proceedings.
As recorded in the Tribunal Member's reasons, there have been a number of cases between the parties arising out of the lease of the property. In particular in the matter RT 15/50300 the landlord had sought orders and sums of money some of which were similar to the orders and amounts sought in the application RT 16/21284. If Senior Member Levingston did say words to the effect that the landlord should withdraw the matter as he could not hear it until the tenants moved out, then in the light of the history of the cases between the parties, the tenants may well have expected that the landlord would commence further proceedings to recover money from them.
We are of the opinion that the Tribunal Member took into account matters which were not the subject of evidence and that he allowed those matters to guide or affect his decision on whether he should exercise his discretion to allow an extension of time to commence the proceedings. It follows that the Tribunal Member's exercise of his discretion should be reviewed (House v The King (1936) 55 CLR 499 at 505).
We conclude that the Tribunal Member's decision to decline to extend the time for the commencement of the application was vitiated by error and must be set aside.
Although the Appeal Panel does have, in appropriate cases, the power to substitute its own decision for the decision under appeal, we do not consider that would be appropriate in this case.
It is not clear whether the tenants were given an opportunity to present evidence in response to the landlord's belated application for an extension of time. It is not apparent from the material placed before the Appeal Panel whether the landlord's application for an extension of time was the subject of submissions from the tenants. Before the determination of the landlord's application to extend time, the tenants must be given the opportunity to present evidence and make submissions in opposition to the application.
In the circumstances, the only available course is to set aside the decision of the Tribunal of 7 July 2016 and remit the proceedings to the Consumer and Commercial Division of the Tribunal for consideration whether the time for the commencement of the landlord's application should be extended pursuant to s41 of the Civil and Administrative Tribunal Act and, if time is extended, for the landlord's application to be determined on the merits.
Accordingly we make orders:
1. Appeal allowed.
2. Set aside the decision of 7 July 2016.
3. Remit the application to the Consumer and Commercial Division of the Tribunal for consideration of the Appellant's application for an extension of time within which to commence the application and, if an extension is granted, determination of the application.
[7]
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 July 2017