This is an appeal by Ms Natalie Boyle and Mr Joel Fogarty. They were tenants at premises in Illawong. In these reasons we will refer to Ms Boyle and Mr Fogarty as the tenants.
This is a matter in which the tenants require the leave of the Appeal Panel for the appeal to proceed. For the reasons below we consider that leave should be refused and the appeal otherwise dismissed.
[2]
Background
On 18 January 2013 the tenants entered into a residential tenancy agreement with Mr and Mrs Bereveskos. We shall refer to Mr and Mrs Bereveskos as the lessors. The term of the residential tenancy agreement was from 19 January 2013 to 17 January 2014. The rent was $1,900 per fortnight, increasing to $2,000 per fortnight from 8 March 2014.
On 15 April 2014 the Tribunal made an order terminating the tenancy immediately and requiring vacant possession to be given by the tenants on 3 May 2014. The tenants returned the keys to the real estate agent on 6 May 2014, but did not collect their possessions from the premises until 27 July 2014.
Both the tenants and the lessors subsequently commenced proceedings in the Tribunal. On 14 July 2014 the tenants filed application RT 14/35737 in the Consumer and Commercial Division. They sought orders for the delivery of the goods, access to the premises to recover the goods, and payment of the rental bond. On 25 July 2014 the lessors commenced proceedings RT 14/37732. They sought compensation for rent owed and payment of an occupation fee. The application states that the lessors had made a claim for the bond, which had already been released to them. The application states that the tenants had been advised of the bond claim and did not dispute it.
Both proceedings were heard on 12 September 2014. The tenants did not appear. Accordingly the Tribunal dismissed the tenants' application RT 14/35737 pursuant to s 55(1)(c) of the Civil and Administrative Act 2013 (the Act). That section provides that proceedings may be dismissed where a party fails to appear.
In the tenants' application RT 14/37732 the Tribunal ordered the tenants to pay the lessors the sum of $4,435.35 in respect of rent, and an occupation fee from 12 April 2014 to 20 May 2014. In its reasons the Tribunal noted that the tenants' agent told the Tribunal that the lessors could not rent the premises because the goods belonging to the tenants had been left there. He told the Tribunal that the goods were not removed until 27 July 2014. A rental ledger showed that the bond already claimed by the landlord had been applied towards the payment of maintenance and repairs, outstanding water usage, garden maintenance and the arrears of rent. The Tribunal was satisfied that the tenants did not give the lessors vacant possession of the premises until 27 July when the goods were removed from the premises.
On 19 September 2014 the tenants filed proceedings RT 14/46702. This was an application to set aside the order in RT 14/37732. This was an application pursuant to clause 9 of the Civil and Administrative Tribunal Regulation 2013. That clause provides:
9 Additional power to set aside or vary decision determining proceedings
(1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances:
(a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision,
(b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
The application states, incorrectly, that the order sought to be varied was made on 28 July 2014.
In her application Ms Boyle stated:
I had applied for this court hearing several months ago. I work as an on-call midwife. I was called to work [Thursday] pm 1300 hours at Nepean Private Hospital Penrith. I had to work 18 hours and finish at 0800. The M5 traffic was blocked [and] I couldn't get to Court in time. I had to return to work at 1500 same day. I was unable to call as phone suspended Friday morning.
Accompanying the application was a statutory declaration of Ms Boyle dated 19 September 2014. In her declaration she explains that on 12 September 2014 she had been working in the delivery suite of the hospital.
However, on 22 September 2014 the Tribunal dismissed the application. It is not clear why, but the Tribunal treated the application as an application to set aside the decisions made on 12 September 2013 in proceedings RT 14/37732 and RT 14/35737, stating:
Although the decision was made in the absence of the applicant the Tribunal is not satisfied that the applicant's absence has resulted in the applicant's case not being adequately put to the Tribunal.
There is no evidence the tenant, due to work commitments, sought to adjourn the proceedings. No material was ever filed by the tenant either in her case or the landlord's claim. The Member's decision is supported by the written reasons.
In the notice of appeal Ms Boyle stated that she wished to appeal from that decision. It is from that dismissal that Ms Boyle now seeks leave to appeal. However, she states in her notice of appeal that she is challenging the following orders:
$3,800 bond towards maintenance not required and not due to tenant
Claiming $2,000 storage when we were refused access to collect our goods from property for four months
She states the grounds of appeal as follows:
1. property perfectly clean - better than when moved in
2. Gardening - property better than moved in $900
3. $345 - carpets - carpets already professionally cleaned and receipt given
4. Pool crystal clear no need for pool specialist. 3 way valve broken and reported 6/12 ago
5. 40 lights not working when we moved in. We paid [and] fixed -? Charged when left more working. $800
6. laundry door lock never accessed, not broken. Gutters were full on arrival one year ago $187. Photo proof. $660
She said that the orders the Appeal Panel should make are to refund the bond in full, and to change the orders made stating that the tenants owed $2,000 for storage as they had been refused entry.
We sought to clarify with Ms Boyle what decision or decisions she was intending to appeal from. After discussion at the hearing, and with the consent of the tenants, we directed that the a notice of appeal be amended so as to be an appeal in respect of the decisions made on 12 September 2014 in proceedings RT 14/37732 and RT 14/35737. It is convenient to note at this stage that we also made an order that Mr Fogarty, who attended the hearing with Mr Boyle, be joined as an appellant to the appeal.
[3]
Nature of Appeal
We explained to the tenants that the Act sets out the basis upon which appeals from decisions of the Consumer and Commercial Division of the Tribunal can be made. Relevantly under s 80 of the Act an appeal may be made as of right on any question of law (s 80(2)(b)), or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).
The meaning of operation of s 80(2) was considered in Collins v Urban [2014] NSWCATAP 17. There an Appeal Panel of the Tribunal conducted a review of the relevant cases. The Appeal Panel concluded at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application; where an injustice which is reasonably clear so that it would be unjust to allow the finding to stand; a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal had gone about its fact finding process in an unorthodox or unfair manner.
Clause 12 of Part 6 of Schedule 4 of the Act provides:
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).
[4]
The notice of appeal
The starting point for determining whether leave to appeal is required or whether a party can appeal as of right is the appellant's notice of appeal. Section 12A (Application for leave to appeal) of a notice of appeal requires an appellant to state whether the appeal is being made on a question of law, or whether leave to appeal is sought. We note that Ms Boyle did not complete this section.
Section 12B (Application for leave to appeal from a decision of the Consumer and Commercial Division) of a notice of appeal states:
Unless you are appealing from a final or ancillary decision of the Tribunal in the Consumer and Commercial Division only on a QUESTION OF LAW you require leave to appeal.
[emphasis added]
The notice of appeal then asks an appellant whether or not they are asking for leave to appeal. Immediately below that question appears:
If yes, an Appeal Panel can only give leave if is satisfied that the Appellant may have suffered a substantial miscarriage of justice because:
(i) the decision was not fair and equitable
(ii) the decision was against the weight of the evidence
(iii) evidence is now available that was not [reasonably] available at the time of the hearing.
Provide information on each of those grounds to this Appeal.
Again, Ms Boyle did not provide any response.
Accordingly it is not clear whether or not the appellants sought to appeal on a question of law, on some other ground, or for both reasons.
The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right. The Appeal Panel stated at [12] that in circumstances where an appellant is not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally, and that 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. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred at [13] to the following as constituting possible errors of law:
(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 relevant (mandatory) considerations.
(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.
We have carefully considered the documents filed by Ms Boyle and her submissions. We are not persuaded that she has identified an error of law by the Tribunal.
[5]
Is it appropriate to grant leave to appeal?
We then discussed with the tenants whether or not it was appropriate to grant leave to appeal. We note that Ms Boyle states in the notice of appeal that the decision of the Tribunal was against the weight of the evidence, and that evidence was now available that was not reasonably available at the time of the hearing.
In relation to the decision of the Tribunal being against the weight of the evidence she states:
I was unable to attend court hearing as was called to work 2 PM the day before. Did not finish till 0800 morning of 12th. At Penrith - traffic too slow, no phone, could not make court 0915.
In relation to evidence now being available that was not reasonably available at the time of the hearing, Ms Boyle states:
All the evidence I had on date I missed court. Photos and txts of refusal to enter property. . . . Have had it all along, just unfortunately missed court hearing due to work/traffic. Copy of work time sheet enclosed.
We are not persuaded that the matters raised by Ms Boyle establish that the decision was against of the weight of the evidence. The only evidence before the Tribunal was the evidence that had been produced by the lessors. Nor are we persuaded that there is evidence available now that was not reasonably available then. As we understand Ms Boyle's position, the evidence was available and with her. She was simply unable to attend the hearing. She agreed with the Appeal Panel that the evidence she had with her at the hearing of the appeal was evidence she had available at the time of the hearings on 21 September 2014.
There remains the question of whether or not the decisions in proceedings RT 14/37732, RT 14/35737 and RT 14/46702 were not fair and equitable. As we explained to the tenants during the course of the appeal hearing, in circumstances where:
the Tribunal proceeded on evidence before it;
the evidence was uncontradicted;
the tenants had not filed any evidence pursuant to the directions made; and
and the tenants did not appear at the hearings,
it is difficult to accept that the decisions were not fair and equitable.
In the circumstances, we are of the view that the proper decision is to refuse the application for leave to appeal, and otherwise dismiss the appeal.
[6]
Decision
For the above reasons, leave to appeal is refused, and the appeal is dismissed.
[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: 19 March 2015
Parties
Applicant/Plaintiff:
Boyle
Respondent/Defendant:
Bereveskos
Legislation Cited (2)
Civil and Administrative Tribunal Regulation 2013(NSW)