This is an application by a former tenant (tenant) of rented premises pursuant to section 190 of the Residential Tenancies Act 2010 (the Act) which alleges breaches by the former landlord (landlord) of sections 40(c), 50(3), 70(1), 71 and 72 of the Act and their corresponding provisions in the Residential Tenancy Agreement that subsisted between the tenant and landlord of the rented premises (the Agreement). This Application was made on 16 July 2015.
The tenant seeks Orders from the Tribunal pursuant to sub-sections 187(c) and (d) of the Act directing the landlord to pay him money and compensation respectively in unspecified amounts as remedies for these alleged breaches.
The Agreement which gives rise to this Application commenced on 27 November 2009 and continued up to 27 April 2014 when the tenant gave vacant possession pursuant to consent orders made by the Tribunal on 17 April 2015.
In the course of the tenancy, on 21 October 2014 the tenant entered into a new lease agreement with a new landlord following the sale of the rented premises. This Agreement was expressed to run from 5 September 2014 to 5 March 2015.
The former tenant claims that for the whole of the period up to or about 5 September 2014 he was charged excessive electricity supply costs in circumstances where electricity to the rented premises was not separately metered from a downstairs shop. He also says that for the whole of the period up to or about 5 September 2014 there was inadequate security for the rented premises which resulted in persons entering the rented premises from the downstairs shop. For the same reason, the former tenant claims he was deprived of quiet enjoyment for the whole of the period of the tenancy up to or about 5 September 2014.
It was an agreed fact between the parties that upon purchase of the rented premises, the new landlord installed a separate electricity meter and rectified the security problems alleged by the tenant.
Bates v Lien [2015] NSWCATCD 98 | Case summary | Zoe
The tenant's Application therefore relates only to the period from 27 November 2009 up to or about 5 September 2014.
Section 190 of the Act relevantly provides:
Applications relating to breaches of residential tenancy agreements
(1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations,
(2) An application may be made:
(a) during or after the end of a residential tenancy agreement, and
(b) whether or not a termination notice has been given or a termination order made.
(3) …
Sub-clause 22(9) of the Residential Tenancies Regulation 2010 provides that the prescribed period for making an application for an order in relation to a breach of a residential tenancy agreement is within three months after the applicant becomes aware of the breach.
The tenant gave evidence to the Tribunal to the effect that he knew about the breaches he alleges for the whole of the period of the tenancy. He says he complained about the alleged breaches to the landlord's Managing Agent on numerous occasions, but nothing was done to rectify the breach. He says that he did not make an earlier application to the Tribunal in relation to these alleged breach because he did not know about the Tribunal or its role, or of his right to do so, until he became involved termination of tenancy proceedings in April 2015. In short, he says he did not know he could do anything about these breaches.
In these circumstances the tenant asks the Tribunal to extend the time in which his Application may be made to the Tribunal from on or about 27 February 2010 (three months after the commencement of the tenancy) up to 16 July 2015 when the Application was lodged with the Tribunal.
The Tribunal has discretion to extend the time for the making of an Application alleging breach of a residential tenancy agreement pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). This discretion is unfettered, but it must be exercised judicially and with regard to the statutory command in section 36 of the NCAT Act which is to the effect the guiding principle applying to the Tribunal's procedure "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at 18 (Jackson).
In Gallo v Dawson [1990] 93 ALR 479 McHugh J, sitting as a single justice of the High Court, said at 2:
The grant of an extension of time … is not automatic. The object … is to ensure that those Rules which fix times for doing acts don't become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Tribunal to do justice between the parties. This means that the discretion can only be exercised in favour of an applicant on proof that strict compliance with the rules will work an injustice to the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for an extension of time (references omitted).
In Jackson, the Tribunal's Appeal panel set out the principles that are to apply to the exercise of a discretion to extend the time in which an appeal may be made from a division of the Tribunal. This is not an Application to appeal, but these principles apply mutatis mutandis in the present case. In this respect, the Appeal Panel said (relevantly) [at 21], subject to the principle enunciated by McHugh J in Gallo set out above:
Time limits … 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, … and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced.
As noted, the context in which this opinion was expressed was an Application to extent time in which to lodge an appeal from a decision made in a division of the Tribunal. In this case, there has been no vesting of a favourable decision in the Respondent which would be disturbed if time were to be extended.
Nevertheless, an extension of time in this case would disturb the finality of the legal relationship between the parties, at least with respect to their rights and obligations under the Residential Tenancies Act 2010, that might be viewed as having finally vested on or about 5 December 2014, three months after the sale of the property and the rectification of the alleged breaches by the new owner. Moreover, it is an application which asks the Tribunal to disturb the finality of the legal relationship between the parties which might be viewed as having vested progressively from 27 February 2010 (three months after the commencement of the tenancy) up to 5 December 2014.
In considering this Application, the Tribunal must bear in mind the specific legislative context in which the Application is made and the broader implications for the administration of this legislation if time were to be extended as requested by the Applicant.
The Application is made under residential tenancy legislation. The time limits set for the doing of things under this legislation provide important protections for tenants, landlords and some third parties against claims being asserted against them in relation to matters that arose outside the temporal range of those time limits. These time limit the risk and liability of parties in tenancy relationships. The broad policy of this legislation might be viewed as requiring tenancy disputes to be asserted promptly and brought to finality quickly.
In Jackson, the Appeal Panel identified the following factors as relevant to the exercise of the Tribunal's discretion to extend time pursuant to section 41 of the NCAT Act:
1. the length of the delay;
2. the reason for the delay;
3. the applicant's (appellant in that case) prospects of success; that is, does the applicant have a fairly arguable case;
4. the extent of any prejudice that would be suffered by the Respondent if time were to be extended; and
5. particularly where the applicants explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, whether the applicant is able to show that his or her case has more substantial merit than merely being fairly arguable.
Given the need for the Tribunal to consider (without deciding) the substantial merits of an Application in order to determine if the time in which to make that Application ought to be extended, a common practice in the Tribunal is to determine the issue of leave to extend time in the context of the hearing of the Application as a whole: Anarene v Solomon & Ors (Tenancy) [2012] NSWCTT 150 (16 April 2012); Banna v Parkes (Tenancy) [2012] NSWCTTT 433 (24 October 2012).
The Tribunal has not opted for this course in this case. If an extension of time were to be granted in this case, according to the terms in which it is sought, it is likely to require the parties to retrieve documents and prove facts in issue over an extended past period of time. This will involve considerable effort, and potentially, expense. Additionally, for reasons that will emerge later in these reasons it is clear that the Applicant's claim has, prima facie, substantial merit. It is therefore unnecessary to put the parties to the inconvenience of a hearing of the substantial Application on its merits in order to determine the preliminary issue of leave to extend time.
[2]
Length of delay
The Applicant asks the Tribunal to extend the time in which he can make his Application from on or about 27 February 2010 (three months after the tenancy commenced) up to 16 July 2015 (when the Application was lodged). This involves an extension of time of approximately five and a half years.
This requested extension obviously involves a very significant delay in making this Application to the Tribunal.
The tenancy relationship between the tenant and landlord ended on or about 5 September 2014. Even if the Tribunal were to consider that date as a date from which time was to run, the tenant would have had to lodge the Application with the Tribunal before 5 December 2014 if it were to be within the prescribed time limit for such an application.
The tenant's delay in making this Application to this Tribunal is thus very significant, being more than six months, even if taken from that date.
[3]
Reason for the delay
The reason given by the tenant for the delay in making this Application is set out at paragraph 10 of these reasons. In short, the tenant says that he did not know about his rights to make this Application, or about the Tribunal and its role, until he was involved in proceedings before the Tribunal related to the termination of the tenancy in April 2014.
The Tribunal notes that those proceedings were commenced by an Application made on behalf of the (new) landlord dated 1 April 2015 and that they were finalised on the basis of consent orders made on 17 April 2014 (first proceedings).
The Tribunal further notes that this Application was not made until a further three months after the first proceedings were finalised.
[4]
Prospects of success
In the course of the hearing, the landlord's Managing Agent conceded that the rented premises did not have a separate electricity meter from the downstairs shop during the period of the tenancy up to or about 5 September 2014. It also appeared to be conceded, at least to some extent, that the rented premises were not secure from the downstairs shop during this period.
On this evidence the Tribunal is comfortably satisfied that the Applicant's case has substantial merit, beyond being merely arguable. Of course, this is not to say that it is inevitable that the Applicant would succeed in the Application. That would be for determination when all relevant contentions and evidence are before the Tribunal.
[5]
Prejudice to the respondent
The tenancy relationship at issue in this proceeding concluded on or about 5 September 2015 when the landlord sold the rented premises. The legal relationship between the tenant and the landlord might be viewed as having been being finalised on or about 5 December 2014 for the reasons stated at paragraph 16.
The Tribunal considers that there would be a substantial prejudice to the landlord associated with re-opening this legal relationship such a long period of time after it has ended. It would require the landlord to respond to allegations and prove facts as to matters dating as far back as 27 November 2009, more five and a half years ago.
Although the Tribunal does not have actual evidence before it to this effect, it may reasonably infer that this would require the landlord to retrieve documents and recall circumstances dating from that date up to 5 September 2014. Any relevant documents may still exist or they may not.
The Tribunal might also reasonably infer that the landlord will have finalised taxation for most, if not all, of the period the tenant wants to bring into dispute. In the event that the Applicant succeeds with the Application, the landlord may be prevented from making any adjustment to tax assessments for this period. At the least, the landlord would be put to the expense and inconvenience of making such adjustments.
[6]
Consideration
The tenant has a strongly arguable claim for breach of the Agreement, but seeks to pursue this claim at a time distant from when these alleged breaches subsisted. He is well outside the period prescribed for the making of Applications of this kind, even if time were to be extended to a period confined the last year or months of the tenancy.
The temporal limit for the making of Applications of this kind is to be strictly enforced unless to do so would work an injustice to the Applicant. The Tribunal must also consider whether it would be fair as between the parties for it to extend time in all the circumstances.
The Applicant's stated reasons for the delay are not compelling. He gave evidence that he knew about the breaches of the Agreement he alleges at all relevant times, but did not know there was anything he could do about it, other than complain to the landlord's Managing Agent, until he became involved in termination of tenancy proceedings before the Tribunal in April this year. If that is the case, it is a circumstance of the tenant's own making. It is however difficult to believe that it would not have occurred to the tenant that the terms of the Agreement were capable of enforcement.
There are various organisations from which the tenant could have obtained advice about his legal rights in the circumstances, including the NSW Department of Fair Trading, a Tenants Advice and Advocacy Service, and Law Access NSW. These organisations provide such advice at no cost and are readily accessible by a range of media (telephone advice, printed brochures, on-line information).
The tenant appears not to have made any enquiry whatsoever about his legal rights in relation to the alleged breaches. If that is so, it is to his peril. This is not a circumstance that can be affirmatively asserted in support of an application to extend time at this distant point from the time the alleged breaches occurred.
There would be substantial prejudice to the landlord if time were to be extended to enable this Application to proceed. It would disturb a legal relationship that ended more than seven months ago and the finality of affairs extending back five and a half years. The landlord is entitled to retain the finality of his legal relationship with the tenant.
[7]
Conclusion
In conclusion, the tenant has not persuaded the Tribunal that there would be an injustice to him if the period prescribed for the bringing of this Application were strictly enforced. While the tenant may have a strongly arguable claim, no satisfactory explanation has been provided for the failure to bring the claim within the period prescribed or within any reasonable period thereafter. There has been far too long a delay in the Application being made, and there would be substantial prejudice to the landlord if the finality of the landlord's legal relationship with the tenant was to be disturbed at this point.
It follows from this that the application to extend time must be refused, and the substantial application dismissed on the basis that the Tribunal does not have jurisdiction to deal with it.
P French
General Member
Civil and Administrative Tribunal of New South Wales
10 August 2015
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
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Decision last updated: 01 October 2015