In a long running dispute between the appellant tenant and the respondent landlords, the Tribunal made orders on 17 February 2021 for the landlords to give possession of the rented premises to the tenant.
Directions were also made at that time for the landlords and tenant to make written submissions on costs and to address whether special circumstances existed warranting an order for costs under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act). The parties were also advised that it was proposed that a hearing could be dispensed with for the costs application in accordance with s 50(2) of the Act and the costs application may be determined on the papers. Both parties were, by leave, legally represented in those proceedings.
Section 60 of the Act relevantly provides:
60 Costs
(1) Each party to proceedings in the Tribunal is to pay the party's own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following -
…
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
…
(g) any other matter that the Tribunal considers relevant.
The tenant applied for his costs, submitting that special circumstances warranting an order existed in that the landlords unreasonably delayed the hearing by failing to make an application under s 92 of the Residential Tenancies Act 2010 (NSW) for termination of the tenancy due to alleged threats and harassment etc. as earlier foreshadowed by them, and because the landlords did not concede until the hearing that the termination notice they gave the tenant was invalid. The appellant submitted the proceedings were, as a result, unreasonably prolonged and without reasonable prospects of success pursuant to ss 60(3)(b) and (c) of the Act.
The tenant also submitted that the landlords' position that an Apprehended Personal Violence Order in force between the parties did not allow the tenant to reside at the property was untenable.
The Tribunal determined the costs application on 7 May 2021 and dismissed the application for reasons set out in its decision: Bechara v Kazzi [2021] NSWCATCD 11.
The tenant has appealed that decision, but has not lodged his Notice of Appeal within the 14 days required to appeal from a decision made in residential proceedings: Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014.
The reason for the delay, as asserted by the tenant, relates to the respondent having lodged an appeal from the substantive decision. The tenant lodged this appeal two days after the landlords' appeal from the substantive decision was dismissed: Kazzi v Bechara [2021] NSWCATAP 166. The Notice of Appeal was lodged about ten days late.
On 2 July 2021, the appeal came before Deputy President Harrowell for directions. Those directions record the Deputy President's preliminary view that the appeal could be determined on the papers and directed the parties to make submissions in that regard. Neither party submitted that the matter could not appropriately be determined on the papers.
Having considered their submissions in the substantive appeal, which are brief, I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions lodged. I will dispense with a hearing and determine the matter, below.
[2]
Background
Relevantly to this appeal, the landlords had let a "granny flat" on their property to the tenant, without proper council approval. When a dispute arose between the parties, the situation became volatile and a provisional apprehended violence order ("APVO") was made, affecting the parties, on 30 October 2020.
The APVO was issued by NSW Police against the tenant. The protected person named in the APVO was Mr Kazzi.
The APVO did not, however, prohibit the tenant returning to the property.
On or about 10 November 2020, the landlords locked the tenant out of the granny flat when they put locks on the granny flat and prevented the tenant obtaining access. It is apparent that the landlords relied, at least in part, on the existence of the APVO in support of their actions.
The tenant then brought his, ultimately successful, application to the Tribunal.
[3]
Scope and nature of internal appeals
To succeed in the appeal, the appellant tenant must demonstrate either an error on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: The Act, s 80(2).
The Notice of Appeal raised one ground of appeal, to which the appellant sought to add another ground in submissions. Those grounds were as follows:
1. The Tribunal made an error in law in determining that the APVO was relevant to consideration and that the arguments put forward by the Respondent were not manifestly unreasonable or untenable; and
2. The Tribunal made an error in law in determining that the withdrawal of the termination notice was properly conceded at the day of the hearing.
[4]
An Appeal commenced out of time.
The parties agree that the Notice of Appeal was lodged out of time. I may, though, extend time for filing the Notice of Appeal: The Act, s 41.
In Kelly v Szatow [2020] NSWSC 407, the Court summarised the principles that apply to an extension of time to appeal. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the appellant's case and consideration of whether the respondents would be prejudiced by a granting of the application: see Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5]; Tomko v Palasty (No 2) [2007] NSWCA 369 at [55].
The appellant bears the onus of demonstrating that strict compliance with the timeframe would work an injustice: Gallo v Dawson (1990) HCA 30; 93 ALR 479.
The respondents object to an extension, but point to no real prejudice if I were to grant it.
[5]
The Grounds of Appeal
Whilst couched in terms of error of law and impermissible considerations, the proposed grounds are really an appeal to the merits.
No question of law has been identified and the appellant has not sought to grapple with what Bathurst CJ and Bell P in Orr v Cobar Management Pty Limited [2020] NSWCCA 220 described at [52] as the distinction between "the question of law/question of fact dichotomy and the error of law/error of fact dichotomy."
The second proposed ground, in fact, alleges an error in the Tribunal's fact finding and cannot be properly construed as raising an error of law.
The impugned reference to the APVO by the Tribunal that the appellant relies upon is contained at [13] of the Decision: -
"… The argument about the APVO was relevant to the consideration in relation to access and was therefore not a manifestly unreasonable or untenable argument."
Properly considered, this cannot be an argument that the Tribunal gave weight to an impermissible consideration. The appellant simply wishes to argue that the Tribunal, having determined that the APVO never prevented the appellant returning to the Premises, should have determined that the respondents unreasonably prolonged the process by raising that as an issue in the proceeding, or that by doing so a costs order was warranted because it had no tenable basis in fact or law.
I have not been provided with a copy of the submissions made by the parties on this issue below, in order that I might make even a cursory assessment of the other issues raised by the parties to be weighed in this regard, beyond what is contained in the Tribunal's reasons. Even if satisfied that the issues raised by the appellant fell within the terms of the subparts of s 60 of the Act, I would still need to weigh, as the Tribunal did, "whether those circumstances are sufficient to amount to special circumstances that justify departing from the general rule that each party bear their own costs": Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81].
I would, then, if an extension of time were to be granted, be left in no position to better exercise the evaluative discretion in the determination of the costs application than the Tribunal was.
I am not satisfied, on that basis, that the appeal has any relative prospect of success. The appellant would require leave and, leaving to one side the additional relevant constraints to a grant of leave in these proceedings set out in cl 12 of Sch 4 of the Act, there is nothing to indicate an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable which might lead to a grant of leave: Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 at [28].
In those circumstances, there can be no suggestion that a strict compliance with the timeframe to lodge the appeal would work an injustice on the appellant. Despite the relatively brief delay and the lack of appreciable prejudice to the respondent, I will not extend time to lodge the notice of appeal.
[6]
Costs of the appeal
The respondents indicated in their submissions that, in the event that they were successful in the appeal, they sought costs. They did not, however, make submissions in support of that application as directed on 2 July 2021: Notation 2 to those directions.
Whilst the respondents' substantive submissions went to the merits of the appeal and the application to extend time, they did not address the finding of special circumstances warranting an order for costs I would need to make in order to make a costs award in the appeal. Given that the appeal, whilst wholly unsuccessful, was determined on the papers based on written submissions of the parties extending to no more than three pages each, I am unsatisfied that such circumstances exist and it would be a disproportionate expense to the parties and use of the Tribunal's resources to seek further submissions on costs at this point.
The respondents' application for costs of the appeal is dismissed.
[7]
Orders
My Orders are as follows:
1. A hearing of the appeal is dispensed with.
2. An extension of time to lodge the Notice of Appeal is refused.
3. The respondents' application for costs of the appeal is dismissed.
[8]
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: 10 December 2021