Bourke v Robertson and Caffrey

History of Appeal

1. Directions made included those of 24 June requiring the appellant to provide a statement setting out the rent paid and outstanding on 13 May 2014.
2. The matter came before the Appeal Panel for hearing on 28 October 2014.
3. During the course of the appeal, an issue arose concerning a further disputed payment of $690.00 which the appellant asserted included a payment of $680.00 which had not been recorded in the Tenant Ledger and had not been taken account in calculating the rent outstanding at the date the termination notice had been served.
4. At the conclusion of the appeal the decision was reserved. Directions were also made concerning providing documents in relation to the payment of $690.00 and for further submissions. The appellant was directed to file and serve: 1. A statement setting out each and every payment of rent from the commencement of the residential tenancy in March 2013 until 30 December 2013, 2. A copy of her bank statements recording each payment, and 3. Any written submission as to why the appellant says the termination notice is invalid and does not comply with the Residential Tenancies Act 2010.
5. The respondents was directed to file and serve any submissions in reply and the appellant had on opportunity to reply to the respondents submissions,

Grounds of Appeal and Appellants Submissions

1. The Notice of Appeal lodged on 19 May 2014 listed as the grounds of appeal the following; 1. There is not sufficient evidence to support the decision for termination that was given on 13 May 2014, 2. The termination notice has been issued on the basis that 14 days in arrears or longer as at 30th December 2013 which is incorrect, 3. Taken into consideration orders granted on 4th December File no:RT13/52360 the Tribunal determined that as at 4 December 2013 the rent was paid to 6 December 2013 with $510 in credit, 4. Document "H" for case RT14/04914 heard on 13 May 2014 supports the deposits of rent payments on the 8th December and again on the 18 December for amount of $680 on each occasion,
2. Attached to the Notice of Appeal was a further document headed Grounds of Appeal listing various issues. This document is a submission and a narrative of historical matters
3. The appellant's contentions before the Appeal Panel were 1. That the rent was not at least 14 days in arrears as at the date of service of the termination notice (30 December 2013) as required by the Residential Tenancies Act, as the rent was not in arrears at all at that date, 2. Payments had been made by the tenant to the landlords' agent that had not been accounted for in the landlords' agent tenant ledger (Tenant Ledger) provided by the landlords' agent. Specifically there was: 1. a payment of $1360 made on 11 May 2013 and later reversed, 2. a payment of $3400 was made on 31 July 2013 but only $2000 had been credited; and 3. $680 was paid on 17 November 2013 which did not appear in the Tenant Ledger as at 30 December 2013. 1. That the termination notice served on the tenant was served by email only which is not a valid method of service provided under the Residential Tenancies Act 2010.
4. In relation to contention (2) it was apparent from discussions with the appellant that the payments referred to were in fact recorded in the Tenant Ledger but on days different to the date on which the appellant paid the moneys.
5. However the appellant raised a new disputed payment of $690.00 alleged to have been paid on 28 June 2014. This item was the subject of directions made at the conclusion of the hearing and is dealt with below.
6. In relation to the written submission filed after the appeal, they essentially repeated earlier submissions and can be briefly summarised as follows: 1. The appellants reiterated that payments made before 4 December 2014 had not been taken account of. 2. The decision in connection with rent remaining unpaid at 30 December 2013 for more than 14 days was against the weight of evidence. 3. The proper method for determining what rent was unpaid was to calculate unpaid rent from 6 December 2013 and allow for the credit of $510.00

Respondent's submissions

1. The termination notice was valid and properly served.
2. As at 30 December 2013 all payments that had been made by the tenants were properly credited in the Tenant Ledger and the tenants were in fact in arrears.
3. The alleged payment of $690.00 had not been received. The landlords' agent said that if a payment of $690.00 had been made it would show up on the Tenant Ledger as two payments, one being $680.00 for rent and the other $10 as payment of an invoice alleged to be raised for the key. There was no evidence of any charge or invoice for $10 for a key.
4. The termination notice had been sent by post and email and delivered by hand. At the hearing below the Tribunal had accepted the respondent's evidence that the termination notice had been served by post, email and by hand delivery but pointed out that the service by email was not in accordance with the Act.
5. In regard to the service of the termination notice the landlords' agent acknowledged that he had failed to provide a copy of the mail book as evidence in relation to the service of the termination notice. However. A copy of the agent's mail book was provided as part of the submissions and records that the termination notice was posted to the appellant on 30 December 2013.
6. In regard to the $690.00 rent payment allegedly made by the tenants on 28 June 2013, the landlord's agent submitted the "bank statement" provided by the appellant did not specify the recipient of that payment and reiterated that the payment was not received.
7. The landlords' agent further submitted that the tenants are now some $8201 in arrears of rent, which if accurate would indicate the tenants are in breach of the condition placed on the stay of orders of the Tribunal. However, no application has been received to lift the stay for any reason.

Considerations relevant to determining an appeal

1. The Civil and Administrative Tribunal Act 2013 provides 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (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. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
2. That is, pursuant to s 80(2)(b) the appellant may appeal the Tribunal's decision as of right only on a question of law.
3. The Civil and Administrative Tribunal Act 2013, further relevantly provides at Schedule 4, clause 12 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only 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). Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.
4. Hence, for the appellant to be successful in this appeal she must establish that there was an error of law made by the Tribunal or that the Appeal Panel should grant leave pursuant to cl 12 as there was a substantial miscarriage of justice for one or more of the reasons provided under cl 12 (1)(a), (b) or (c).

Error of law

1. The Appeal Panel has recently considered the requirements to establish a question of law in its decision of Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. In that decision the Appeal Panel set out a non- exhaustive list of matters that may constitute an error of law which may be summarised as 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law has been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account a relevant (mandatory) consideration. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision was so unreasonable that no reasonable decision-maker would have made it.
2. The Appeal Panel at para 11 and 12 in that case also noted 11 …. It is necessary that a question of law be stated with precision, as an appellant's right to appeal arises from the question of law. Additionally, the question of law is the subject matter of the appeal: see for instance Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50]; in relation to appeals to the Federal Court of Australia, from the Administrative Appeals Tribunal, which lie only on "questions of law"; and Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [35] in relation to s 67 of the Consumer, Trader and Tenancy Tribunal Act (2001) (NSW) where appeals to the District Court lay only where that Tribunal had decided a question with respect to a matter of law. 12 In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.
3. In this case the unrepresented appellant has demonstrated a great deal of difficulty in stating the alleged error of law upon which she relies and in those circumstances as stated in Prendergast it is incumbent on the Appeal Panel to examine the arguments and evidence put to it to determine whether an error of law in fact exists.

Rent arrears

1. The issue raised by the appellant in relation to whether or not the termination notice was valid is a factual issue, not a question of law. The appellant asserts that in fact the rent had not remained unpaid in breach of the agreement for not less than 14 days before the notice was given and therefore the notice was of no effect: see section 88 (1) of the Residential Tenancies Act which provides: 88 Termination notices for non-payment of rent (1) A termination notice given by a landlord on the ground of a breach of the residential tenancy agreement solely arising from failure to pay rent (a "non-payment termination notice") has no effect unless the rent has remained unpaid in breach of the agreement for not less than 14 days before the notice is given.
2. A determination of this question requires the Tribunal to determine the amount of rent that was in fact due up to and including the date when the termination notice was given and the amount of rent that had in fact been paid up to that time. From the difference between these two amounts the Tribunal was to deduct that portion of the rent that remained unpaid in breach of the agreement for less than 14 days.
3. The appellant says that the calculation of rent is to be made having regard to an earlier decision of the Tribunal made on 4 December 2013 in application RT 13/52630 in which the Tribunal determined at that time the tenant was in credit in the sum of $510.00. The calculation made by the Tribunal on 4 December 2013 and the evidence on which the conclusion is based is not set out. However the Tribunal concluded that the Tenant Ledger did not record all payments made.
4. In determining the present application, the Tribunal concluded that it was bound by the findings made on 4 December 2013 and "manually updated the (Tenant Ledger) taking account of the tenant summary of rent payments". It would seem that the Tribunal calculated the rent payable after 4 December 2013, applied a credit of $510.00 and was satisfied that at the date the termination notice was served that rent had remained unpaid in breach of the agreement for not less than 14 days before the notice was given. Again, details of the calculation have not been provided. The Tribunal did not review the Tenant Ledger as at 30 December 2013 nor the actual payments that had been made during the course of the residential tenancy.
5. In the opinion of the Appeal Panel, it is necessary for the Tribunal, when determining whether or not rent remains unpaid for the purpose of section 88 (1) of the Residential Tenancy Act, to determine the amount of rent in fact unpaid at the date the termination notice is given. The fact that the amount of rent unpaid (or any credit) has been determined at 4 December 2013 does not relieve the Tribunal from its obligation to determine the issue of what rent remains unpaid at a future point in time pursuant to a subsequent notice.
6. The issue resolved by the proceedings determined 4 December 2013 was the issue of whether rent remained unpaid in breach of the agreement for not less than 14 days when the notice was given at that time.
7. In relation to the present proceedings it was necessary for the Tribunal to again evaluate the evidence to determine what, if any, rent remain unpaid in breach of the residential tenancy agreement for not less than 14 days when the 30 December 2013 termination notice was given. That is a mathematical calculation based on determining the rent required to be paid under the residential tenancy agreement which remained unpaid for not less than 14 days, from which was to be deducted the amount of rent that had actually been paid for that period.
8. Consequently, the determination of the Tribunal on 4 December 2013 does not operate in a manner which binds the Tribunal to a calculation method which assumes an earlier calculation is correct.
9. Indeed, the appellant herself brought forward payments made prior to 4 December 2013 and sought to argue that these payments ought to be accounted for in determining what rent remain unpaid in breach of the agreement at the time of the notice dated 30 December 2013 was given, a matter she continues to pursue in this appeal.
10. The Appeal Panel has undertaken the calculation of rent due from 9 March 2013 (when the residential tenancy agreement commenced) until 30 December 2013. Leaving aside any rent payable in advance, the total rent payable up to and including 30 December 2013 was approximately $28,851.00. After deducting the rent that was not at that time 14 days in arrears, the amount of rent that should have been paid for the purpose of calculating unpaid rent (again leaving aside rent payable in advance) for the purpose of s88 was at least $27491.00.
11. It was common ground that, since commencement of the residential tenancy agreement on 9 March 2013, the total rent recorded in the Tenant Ledger prepared by the landlord's agent as at 30 December 2013 was $26,310.00. It is also common ground that the rent payable under the residential tenancy agreement was at a rate of $680 per week, such rent payable in advance.
12. It is apparent from the amounts credited to the Tenant Ledger prepared by the landlord's agent that rent was paid at irregular times and in irregular amounts. The appellant's bank records confirm this fact.
13. Finally it is apparent from the submissions made by the appellant on 31 October 2013 and the documents attached (as confirmed by the Tenant Ledger) that the next payment made after 30 December 2013 was not made until 21 January 2014 in the sum of $1360.00.
14. Therefore, subject to any unaccounted payments which the appellant alleges were not included in the Tenant Ledger, the total rent in fact paid was $26,310.00. This means that at 30 December 2013, or shortly after when the termination notice was given, the appellant was in fact in arrears of rent by an amount in excess of $1100.00.
15. Therefore it is necessary to consider whether any of the payments alleged by the appellant require an adjustment to the sum of $26,310.00 because the record of receipts in the ledger is incomplete.
16. In relation to the disputed payments of $1360.00, $3400.00 and $680.00 referred to in paragraph 16 above, the parties ultimately agreed that these payments were in fact recorded in the Tenant Ledger as part of the total of $26,310.00. In this regard, the Tribunal is satisfied from a review of the Tenant Ledger that: 1. the amount of $1360.00 paid on 11 May 2013 was entered in to the Tenant Ledger on 11 May 2013, reversed out of the Tenant Ledger on 14 May 2013 and subsequently re-credited to the Tenant Ledger on 12 November 2013; 2. the amount of $3400.00 was recorded in the Tenant Ledger as a credit of $2000.00 on 23 July 2013 and a further credit of $1400.00 on 4 December 2013; and 3. the amount of $680.00 paid on 17 November 2013 was credited to the Tenant Ledger on 27 November 2013.
17. However, as indicated above, the appellant raised a new issue at the hearing of the appeal concerning an alleged payment of an amount of $690.00 said to have been paid on 28 June 2013 of which the appellant says an amount of $680.00 was also not credited as rent to the Tenant Ledger.
18. The Tribunal notes the appellant did not comply with the Tribunal's directions made 28 October 2014 in relation to the filing of further documents, bank statements and submissions. The appellant failed to provide a complete statement setting out each and every payment of the rent since the residential tenancy agreement commenced until 30 December 2013. The appellant also failed to provide all relevant bank statements.
19. In relation to the payment of $690.00 a bank statement was not provided, only a screen summary. This is despite the fact the appellant would have received a bank statement for this date which would have formed part of statement 8 from Westpac. Statement 8 provided by the appellant covered the period from 26 April 2013 to 26 July 2013. This is demonstrated by a review of the submissions and attached bank statements provided to the Appeal Panel on about 31 October 2013. The attachments include bank statement 8 page 4 (to 20 June 2013) and bank statement 8 page 7 (from 8 July 2013). The bank statement covering the payment said to have been made to the landlord's agent on 28 June 2013 was not part of the documents provided.
20. As is evident from a review of the bank statements, direct transfers were made to an account recorded on the bank statement as "Bpay To Ray White Five Dock": see for example bank statement 10 page 7 relating to the payment made 19 December 2013. Otherwise, it would seem that cash deposits were made by the appellant into the landlord's agent's account. The appellant has provided deposit slips for other amounts of rent from time to time paid.
21. In relation to the payment of $690.00, no evidence has been provided to prove the person to whom this payment was made, no evidence of a Bpay transfer to the landlord's agent account has been provided and no bank deposit slip showing details of the account into which the alleged deposit was made has been provided. This lack of evidence is to be compared, for example with the payment of rent made 29 July 2013 where a deposit slip of $680.00 has been provided in the supporting documentation attached to the submissions provided on or about 31 October 2014.
22. In response, the respondent says that no payment was received. However again no bank statements of the relevant date, namely 28 June 2013, of the landlord's agent bank account were provided.
23. Be that as it may, it is for the appellant to satisfy the Appeal Panel that a payment of rent was made and that it has not been taken into account.
24. The Appeal Panel is not satisfied on the evidence that the amount of $690.00 shown in the "screen print" forming part of the bundle of material provided by the appellant to the Tribunal on about 31 October 2014 was an amount in fact paid to the landlord, nor that an amount of $680.00 of that sum had been paid for rent. The absence of the bank statement and/or any relevant deposit slip remains unexplained despite the directions made by the Appeal Panel on 28 October 2014. This view is supported by the fact that the appellant attached to her submissions directions made by the Tribunal on 12 November 2013 (in the earlier proceedings decided on 4 December 2013) which recorded there was an issue concerning the payment of $690.00 (see order 2 (i)). It seems improbable that the appellant would not have had available the relevant bank statements and deposit slips at this earlier time and/or could not have obtained a copy of the missing bank statement in the meantime for the Appeal Panel.
25. Further, on the Appeal Panel's calculations, even if this amount was in fact paid, the appellant was still in arrears at the date of the termination notice or when it was given shortly thereafter.
26. Accordingly, the submission that the termination notice was invalid by reason that the appellant was not in fact more than 14 days in arrears when the termination notice was given must fail.

Service of termination notice

1. The appeal also raised the issue of whether or not the termination notice had been served in accordance with the Residential Tenancies Act 2010.
2. The respondents' submission was that despite having served on the tenants an incorrect termination notice that related to a different tenancy, the landlords' agent had in fact served a correct notice on the tenants by hand delivery and email on 30 December 2013 and by post on the same date.
3. The Residential Tenancies Act 2010 s 223 provides 223 Service of notices or other documents (1) A notice or other document that is authorised or required by this Act or the regulations or a residential tenancy agreement to be given to or served on any person may be given or served by: (a) in the case of a natural person: (i) delivering it to the person personally at the person's residential or business address, or (ii) delivering it personally to a person apparently of or above the age of 16 years at the person's residential or business address, or (iii) delivering it in an envelope addressed to the person and leaving it in a mailbox at the person's residential or business address, or (iv) sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or (v) sending it by facsimile transmission to the facsimile number of the person, or (b) in the case of a corporation: (i) leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the corporation or to an address specified by the corporation for the giving or service of documents, or (ii) sending it by facsimile transmission to the facsimile number of the corporation, or (c) in the case of a government department: (i) leaving it at, or by sending it by post to, any office of the government department, or (ii) sending it by facsimile transmission to the facsimile number of the government department, addressed to the head of the government department. (2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner. (3) If there is more than one landlord or tenant under a residential tenancy agreement, a notice required to be served on a tenant or landlord under the agreement is taken to be served on all the tenants or landlords under the agreement if it is served on one of the tenants or landlords.
4. There is no provision in the legislation for service of a termination notice by email. To the extent therefore that the respondents relied on the emailed termination notice it is clear that there was no valid service.
5. The mail book provided by the respondents' agent in response to directions made by the Appeal Panel on 28 October 2014 indicates that the termination notice was served by post on 30 December 2013. Pursuant to the Interpretation Act 1987 s 36 and 76 it was deemed to have been received on 6 January 2014 unless there is evidence to the contrary.
6. While the appellant submitted that the termination notice had only been served by email, the evidence she provided of having received by post a copy of a letter of termination erroneously sent by post (which was a copy of documents sent to the other tenant by email as well) corroborates the evidence of the landlords' agent that following emailing the notice he arranged for the letter and termination email to be posted.
7. Therefore the Appeal Panel is satisfied that the termination notice was posted on 30 December 2013 with service deemed to be effected on 6 January 2014.
8. Further because service was effected by post on 6 January 2014, even if the Tribunal was bound by the earlier finding that there was a credit in the Tenant Ledger in the amount of $510.00 as at 4 December 2014, by 6 January 2014 the appellants' rent was in arrears by more than 14 days. Therefore the challenge to the validity of the termination notice would still fail as a matter of fact because the rent as at 6 January 2014 remained unpaid in breach of the agreement for not less than 14 days when notice was given by post.
9. In relation to the service of the termination notice by hand, there is no basis to conclude this did not occur and that the statements of the landlords' agent should be rejected. In any event, having regard to the conclusion that the termination notice was served by post and no further rent was paid in the intervening period, this conclusion does not affect the Appeal Panel's decision.
10. The Appeal Panel is therefore satisfied that the termination notice was, at least, validly served by post on 6 January 2014 and, on the evidence, was also served by hand on 30 December 2014.

Conclusion

1. The Appeal Panel is satisfied the termination notice was valid in that at the time it was given the rent has remained unpaid in breach of the agreement for not less than 14 days. The Appeal Panel is also satisfied that the termination notice was validly served.
2. Otherwise, there was no challenge to the orders determining the amount of unpaid rent.
3. Accordingly, the appeal should be dismissed.
4. The Appeal Panel makes the following orders: 1. Application for leave to appeal is dismissed; 2. Appeal is otherwise dismissed; 3. The stay made 25 August 2014 is lifted. 4. The orders made 13 May 2014 remain in full force and effect 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