Bowers v Karai

Background

1. The appellant entered into a six-month residential tenancy agreement relating to the Premises. The rent was $1,826.75 per month, payable in advance. The commencement date of the agreement was 22 July 2019. A rental Bond was payable in the amount of $1,700.
2. The appellant remained in occupation after the end of the six-month term. He continued to pay rent but was at times late in doing so. The landlords informed the second respondent that the appellant may have vacated the Premises on 6 August 2020. On 8 August 2020, the second respondent arranged for a locksmith to enter the Premises after several failed attempts to contact the appellant by email, telephone and on attendance at the Premises. Upon gaining entry to the Premises a view was formed that the appellant had abandoned the Premises, given they were empty, there was no furniture or other possessions therein. The locksmith changed the locks on the instruction of the second defendant.
3. A notice to terminate the tenancy agreement was served on the appellant dated 8 August 2020. The reasons for termination included non-payment of rent in excess of 14 days (sections 88 and 89 of the RTA).

Tribunal proceedings and reasons for decision

1. The landlords filed in the Commercial and Consumer Division of the Tribunal an application for termination and possession for non-payment of rent on 19 August 2020. The landlords claimed: rental arrears of $1,846.75 for the period 24 July to 23 August 2020, compensation for abandonment (which was refused), $220 as a replacement cost of locks due to the failure of the appellant to return the keys (which was allowed), cleaning costs (which was refused) and unpaid water charges (a claim which was not pressed). The Tribunal made an order in favour of the landlords for the appellant to pay the sum of $1,463.36 ($1,846.75 + $220) less $602.39 for water usage claimed by the appellant (as set out below). The Tribunal directed that the amount of $1,463.36 be deducted from the rental bond and any balance be paid to the appellant.
2. The appellant made a claim for fraud/fraudulent misrepresentation concerning the water meter at the premises and in respect of water charges claimed by the landlords. He claimed that the water devices in the Premises did not meet the requirements to save water set out in the RTA, meaning that he was not liable to pay for water usage. The landlords conceded in the hearing below that the Premises were not separately metred for water. The Tribunal found that the appellant was therefore entitled to compensation comprising payments he made for water usage. The Tribunal found in favour of the appellant and awarded the sum of $602.39 as compensation for previous amounts he paid for water.
3. The appellant made a further claim for compensation for a water leak in the roof/roof cavity. He relied upon a report from a plumber dated 27 July 2020. The tribunal inferred that the plumber's report was given to the landlords, through the second defendant on 27 July 2020 or soon thereafter. The Tribunal found the report was deficient in establishing that there was any loss of amenity of use by the appellant because it went only in so far as establishing water entered the roof cavity but no further. A separate claim by the tenant for compensation for non-economic loss being disappointment and distress of breach of quiet enjoyment ($30,000) was refused.

Scope and nature of internal appeals

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
2. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is 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. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
3. Where the appeal is from a decision made in the Consumer and Commercial Division (other than in respect of interlocutory decisions), there is a further qualification to the possible grant of leave in that we may only go on to consider a grant of leave in the broader sense if we are first satisfied that the elements of cl 12(1) of Sch 4 of the NCAT Act are made out, in that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. We agree with the Appeal Panel in Collins v Urban where it said, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: ... [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
5. We may decide to conduct a new hearing if we are satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning": Yuen v Thom [2016] NSWCATAP 243 at [17].

The Grounds of Appeal

1. The Notice of Appeal raised two grounds, as follows: 1. The Tribunal failed to make a finding of fraud against the four respondents. 2. The Tribunal was wrong to allow Mr Karai to appear for the other three respondents.
2. As the appellant is unrepresented, a broad interpretation of the grounds of appeal should be allowed unless it unreasonably prejudices the respondent(s): Prendergast v Western Murray Irrigation Ltd [2004] NSWCATAP 69. However, there is a proper limit to this process, in that it is not the role of the Appeal Panel to draft grounds of appeal for the appellant(s) not raised, and then resolve them (ZNX v ZNY [2020] NSWCATAP 41, citing SZTOG v Minister for Immigration and Border Protection [2018] FCA 112), unless the issues go to the jurisdiction of the Tribunal or are otherwise necessarily considered to resolve the appeal.
3. The requirement to assist an unrepresented litigant is not unfettered. In Bauskis v Liew [2013] NSWCA 297 at [67]- [70] the Court of Appeal said in setting out principles apposite to the Tribunal and matters where neither party is legally represented, as follows (citations omitted): First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties.... Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just... Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant... Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant...
4. It is sufficient, in our view, to note that a thorough review of the Notice of Appeal and the material filed by the appellant with it take the allegation(s) of error by the Tribunal no further than the grounds as drafted above.
5. Whilst we may decide to conduct a new hearing, the parties did not ask us to do so and we were not satisfied that the grounds of appeal warranted it.
6. There is no requirement for us to consider any time limitation as the appeal was commenced within time.

Adjournment application

1. We asked the appellant early in the hearing if he wished to press ground 2 of his appeal. He said he did. We indicated to the appellant that we did not have the benefit of a transcript or sound recording to understand what argument was raised at the hearing concerning Mr Nair's representation of the other parties, if any. That issue was not dealt with in the Tribunal's orders and reasons before us and there was no suggestion that the appellant had sought written reasons for the decision under s 62(2) of the NCAT Act.
2. The appellant agreed that he had not requested a copy of the sound recording, nor had he made available a transcript. He said: "I thought the Tribunal would have this," referring to the Appeal Panel. The appellant said he "thought" the Appeal Panel would ordinarily have the transcript and that the Tribunal would pay for the transcript. When asked why he was of this view he said: "I thought it was procedure".
3. The appellant sought the adjournment to obtain, lodge and serve the recording and transcript of the hearing below. The application for an adjournment was opposed by the respondents.
4. On 18 June 2021, the Appeal Panel made certain orders and directions. The first order being a notation that "[t]he Appellant has already filed all the material he relies upon in support of the appeal and is directed to serve copies on the respondents on or before 25 June 2021." At point 5 of the directions are notes which include the following: "(1) If a party does not lodge with the Appeal Panel and give to the other parties documents, sound recordings and submissions as directed above, the party may not be allowed to rely on those documents, sound recordings and submissions at the hearing of the appeal."
5. On 14 July 2021, the Registry wrote to the appellant in the following terms: "If a party wishes to rely on material filed in the original matter parties are required to re-file their material for the appeal matter."
6. There was nothing before us to suggest that it was reasonable for the appellant to assume that the Tribunal would pay for the transcript or place it before the Appeal Panel as part of its procedure. The appellant was satisfied on 18 June 2021 that he had filed all of the evidence he relied upon in the appeal and orders were made to that effect. The notations in the 18 June 2021 order also brought to the attention of the appellant the relevance of the sound recording as part of his evidence should he choose to rely on it. As it turns out, he did not.
7. Section 36 of the NCAT Act sets out the guiding principle, being the just, quick and cheap resolution of matters pending before the Tribunal. An adjournment for the reasons submitted by the appellant did not accord with the proper application of the s 36 principles. Further, there can be no proper suggestion that the Tribunal allowing the respondents to be represented by one of their number raises an error on a question of law. Even if the appellant could have established that the process of determining who was to represent the respondents was procedurally unfair, there was nothing before us to demonstrate that the appellant was thereby denied the possibility of obtaining a different result. We refused the application for an adjournment.

The Grounds of Appeal

1. The first ground raised in the appeal is an allegation that the Tribunal failed to find that each of the respondents knowingly participated in 'water fraud'. The appellant contends: The leased premises were only purchased by the Karai's 9 days before the lease and would have been informed by their conveyancing solicitor that there was only 1 adjustment for water charges. The Karais [sic] also knew or were recklessly indifferent to the fact that no water efficiency devices were installed. Nothing to the contrary was led or produced by the Karais [sic] of their solicitor on the conveyance or the real estate agent respondents so the inference in Jones v Dunkel applies against all of them ie the evidence would not have helped their case.
2. It is alleged that the landlords and the managing agent were complicit in fraudulently representing to the appellant that he was liable to pay for water calculated by a water meter that serviced two properties. The appellant contends that the water charges passed on to him for payment were not a true reflection of his actual usage. The appellant says he was, as a result, fraudulently charged for water usage and sought compensation.
3. In the appeal, the appellant submitted that the Tribunal Member erred in refusing to allow cross-examination of witnesses about the alleged fraud. He also contends the Member refused to consider the claim for fraud. The appellant revealed he requested summonses to be issued which the Registry refused. He says the summonses were for the landlord's solicitor who acted on the conveyance to give evidence along with the vendor's conveyancing solicitor and a representative from Sydney Water. The appellant has filed no probative evidence in relation to his contentions.
4. Mr Karai opposed the ground of appeal. He said the issue of fraud was raised in the hearing and the appellant was informed why that claim could not proceed. Ms Nair supported these submissions.
5. Without canvassing the jurisdiction of the Tribunal to make findings as to fraud and noting there appears to be a lack of precise particulars asserting fraud (which is essential if such a finding is to be made), we are not satisfied this ground raises an error on a question of law. Further, the appellant has provided no evidence about what occurred at the hearing in respect of any request for cross-examination of witnesses. Nor has he appealed the decision to refuse his proposed summonses. Without the benefit of a sound recording or the transcript of the hearing below, we are unable to make any findings of what was or was not said during the hearing and cannot be satisfied that the Tribunal erred at all, in not making the findings sought by the appellant.
6. As to the second ground of appeal, it was conceded by each party to the appeal that this was an interlocutory decision of the Member, meaning that the appellant requires leave to prosecute this ground, but that leave is not constrained by cl 12 of Sch 4 of the NCAT Act. The appellant has not demonstrated he could have suffered any prejudice by Mr Karai appearing on behalf of the respondents in the hearing leading to the decision which is under review. The appellant merely asserts: "The Tribunal does not allow appearances. This should apply." We have taken this submission to mean that the Tribunal does not usually allow an agent to appear on behalf of another party. On the contrary, s 45(1)(b) of the NCAT Act allows the Tribunal to exercise a discretion to grant leave for another person to act as representative for a party to the proceedings. Where several parties, whose interests co-incide, seek to be represented by one of their number it is unsurprising that such leave might be granted in order to ensure the efficient conduct of the hearing. Even if we infer leave was granted by the Member in these circumstances, which we cannot determine because of the lack of a sound recording or transcript, there is no evidence before us which demonstrates an error was made by the Member in allowing Mr Karai to participate in the hearing as alleged.

No Viable grounds

1. In short, there are no properly arguable grounds to find that the Tribunal erred on any question of law. On that basis, the appellant requires leave to appeal.
2. In respect of the first ground, we find the appellant has not demonstrated that the decision of the Tribunal under appeal was not fair and equitable; or was against the weight of evidence. Nor is there any probative new evidence in respect of the decision. The appellant has not demonstrated that he may have suffered a substantial miscarriage of justice as required by cl 12(1) of Sch 4 of the NCAT Act to obtain leave.
3. In respect of the second ground, there is similarly no proper basis for a grant of leave. No error has been identified.
4. It follows that leave must be refused and the appeal dismissed.

Costs of the appeal

1. No application was made for costs of the appeal.

Orders

1. Our Orders are as follows: 1. Leave to appeal is refused; 2. The appeal is dismissed.

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: 13 October 2021