This is an internal appeal, under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), against a decision made in the Consumer and Commercial Division of the Tribunal, in relation to an unsuccessful application for compensation made by the appellant against the respondents.
Having considered the documents lodged by the parties and their oral submissions, we have determined that no extension of time for lodging the Notice of Appeal should granted.
[2]
Scope and nature of internal appeals
Internal appeals may be made as of right on a question of law, and otherwise with leave (ie, the permission) of the Appeal Panel: s 80(2) of the NCAT Act.
In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] listed of questions of law 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 had been applied.
(4) Whether there was a failure to afford procedural fairness.
(5) Whether the Tribunal failed to take into account relevant (i.e., 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 is so unreasonable that no reasonable decision-maker would make it.
Brahmbhatt v Osorio [2023] NSWCATAP 188 | Case summary | Zoe
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
(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).
In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:
… there 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.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins, at [84], the Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
either with or without further evidence, in accordance with the directions of the Appeal Panel.
When parties to an appeal do not have legal representation, the which arises is whether the Tribunal should consider whether there is either a ground of appeal or a basis for leave to appeal which has not been raised by the appellant. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), at [13], the Appeal Panel said:
It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice".
In the NCAT Act, s 41(1) gives the Tribunal the power to extend the time for lodgement of a Notice of Appeal and s 41(2) permits that power to be exercised even if the relevant time has expired.
The relevant considerations as to the exercise of the discretion were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22] and they are as follows:
(1) Is there proof that strict compliance with the rules will work an injustice on the applicant?
(2) In the context of a pending appeal, the expiration period for the appeal gives a vested right to retain the decision in question with the consequence that the time for appealing should not be extended unless the proposed appeal has prospects of success.
(3) It will usually be necessary to consider:
(a) the length of the delay,
(b) the reason(s) for the delay,
(c) the applicant's prospects of success, i.e. whether there is a fairly arguable case, and
(d) the extent of any prejudice suffered by the opponents.
If the explanation for the delay is less than satisfactory and/or if the opponent has a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable.
[3]
Documents
Documents lodged by the parties in respect of this appeal were as set out below:
1. The Notice of Appeal, received on 17 May 2023.
2. The Reply to Appeal, received on 2 June 2023.
3. Respondents' submissions, received on 30 June 2023.
[4]
Time to appeal
Orders were made and reasons provided on 13 February 2023. As the Notice of Appeal was received on 17 May 2023, the appeal was lodged well outside the applicable time limit, being the 14-day requirement of r 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules).
[5]
Notice of Appeal
The Notice of Appeal suggested the member who heard and determined the application at first instance did not have an opportunity to see the rental ledger and that the tenant did not provide a "legal bank statement". The grounds of appeal also seem to refer to the 10 October 2022 hearing, which the appellant failed to attend. On that occasion, two applications were considered: the appellant's application was for compensation was dismissed, and the respondent's application for a refund the $2,800 rental bond was successful.
Leave to appeal was also sought on the same basis, namely that the member did not have the rental ledger and was not provided with the "original bank statements". On that basis, it was asserted that the decision was not fair and equitable, and that the decision was against the weight of the evidence. It was also suggested that significant new evidence is now available that was not reasonably available at the time of the hearing. That evidence was said to be the rental ledger.
Although no reasons were provided as to why leave to appeal should be granted, reasons were provided as to why the time for lodging the Notice of Appeal should be extended. The appellant submitted that he runs a small business, that when he "first got the opportunity to review this matter", he reached out to the real estate agent who took some time to lodge the appeal. It was also contended that the presiding member "noticed I was not available on the day when the decision was made due to my absence".
[6]
Reply to appeal
The Reply to Appeal referred to an 11-page accompanying document. That document contained the following submissions: (1) no question of law was identified, (2) the appellant was represented at the hearing by his wife, (3) like the appellant, she was a director of the company which was, in fact, the landlord, (4) a report which was not a rental ledger was provided for the landlord, (5) the tenants did not submit fraudulent bank statements, (6) the appellant had an opportunity to submit documents for consideration at the first instance hearing, (7) there is no new evidence that was not available at the time of the hearing, (8) there is no reason why leave to appeal should be granted, (9) the appellant should not be granted an extension of time for lodging the Notice of Appeal, and (10) there were special circumstances which warranted an order that the appellant pay the costs of the respondent.
[7]
Hearing
The appellant's son was in the hearing room shortly after 2.15pm but there was no attendance by Mr Subodh who is the managing agent for the subject property. On 26 May 2023 he was granted leave to represent the appellant. As it was indicated that Mr Subodh wished to attend by audio-visual link (AVL), we checked the link for the hearing room but there was no-one present. We were then given the telephone number of Mr Subodh but, when rung, it was not answered. The question of whether the hearing could be adjourned was raised but opposed by Mr Yen, who appeared for the respondent.
The original application was filed on 10 August 2022 with the result that it is now almost a year since these proceedings were commenced. There was no attendance for the appellant at the hearing on 10 October 2022 and it appears that the appellant's wife attended the first instance hearing. The hearing date for this appeal was indicated to the parties on 26 May 2023, more than six weeks ago, no documents have been lodged in support of the appeal in response to the direction made on 26 May 2023, and it was not until 1.57pm, less than 20 minutes before the hearing, that Mr Subodh first sought to attend by telephone. In those circumstances, we decided the preferable course was to proceed with the hearing of the appeal, permitting the appellant's son to speak on his behalf.
Having identified the relevant documents, the Tribunal proceeded to hear oral submissions.
[8]
Appellant's submissions
No written submissions or other documents were filed in support of the appeal other than the Notice of Appeal and the documents that were submitted together with that notice.
When asked to put the appellant's case in support of an extension of time for lodging the notice of appeal, it was said that, following the hearing, the appellant went to the tenanted premises, but the respondents had taken the documents and it was only when the documents were received that the Notice of Appeal was lodged.
The other oral submissions for the appellant were that the respondents were behind in the rent "from day one" and that, over the course of the tenancy arrears of more than $9,500 accrued. It was contended that the respondents obtained the rental bond but still owed more than $7,000 in rent, that documents were provided but they were overlooked. Further, that the real estate agent did not attend the hearing with the result that the appellant was represented by his wife, who was said to not speak English well.
[9]
Respondents' submissions
The submissions received on 30 June 2023 comprised a copy of the evidence filed for the first instance hearing and the respondent's written submissions in opposition to the appeal.
The oral submission for the respondents was that what had been said for the appellant was no more than a repetition of the case put at first instance and that there was no evidence to warrant the outcome for which the appellant contended.
[10]
Consideration
It is important to first note two matters in relation to an appeal. First, that an appeal to an 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]. That point is made clear by the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) which includes the words: "an appeal is not an opportunity to have a second go at a hearing".
Secondly, that it is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: an appellant must demonstrate either that an error was made on a question of law or that there is a basis upon which leave to appeal should be granted.
The history of the applications involving these parties is that the appellant's original application for compensation, dated 19 August 2022, was dismissed on 10 October 2022 as there was no appearance by or for him. On that occasion, the respondent's application for a refund of the rental bond was successful. The dismissal of the appellant's application was set aside on 22 November 2022 and the re-hearing commenced on 12 December 2022 and concluded on 13 February 2023 when the orders now challenged were made.
Accordingly, there is no basis for now challenging the 19 August 2022 decision to dismiss the appellant's application, due to his non-attendance, since that decision was set aside on 22 November 2022. Further, there is no basis for now challenging the decision to refund the rental bond to the respondent since (1) that rental bond has already been refunded, and (2) the landlord would only be entitled to all or part of that rental bond if his claim for compensation succeeds by providing him with an order to compensation since a rental bond is the property of the tenant(s) unless and until the landlord proves a claim.
It must be noted that the presiding member at first instance identified that the landlord was, in fact, not the appellant but a company, Udichi Pty Ltd, the directors of which were the appellant and his wife. Accordingly, the appellant does not have standing to pursue this appeal: only Udichi Pty Ltd could appeal the 13 February 2023 decision. That is the first reason why this appeal cannot succeed.
We note that, when this issue was raised early during the hearing, the appellants' son said he was also attending on behalf of that company. However, he did not have any supporting document although he said he could obtain such a document, if required. The issue of whether the company should be the appellant is of no consequence since the outcome of the appeal would be the same, even if the name of the appellant was changed to the name of that company, for the reasons indicated below.
Secondly, the appellant has failed to identify any error on a question of law and, applying what was said in Cominos, we have been unable to discern any such error. Thirdly, having considered both the published reasons and the submissions of the appellant, it does not appear the decision was not fair and equitable. Fourthly, it cannot be said that the decision was against the weight of the evidence when the appellant has failed to place before us the evidence that was before the Tribunal at first instance. Fifthly, there is no fresh evidence because the rental ledger to which the appellant referred was available to him at the time of the hearing. Sixthly, no reason has been advanced as to why leave to appeal should be granted.
Seventhly, the reasons advanced in support of the application for an extension of time are insufficient, having regard to the considerations set out in Jackson, for the reasons set out in the respondent's submissions which accompanied the Reply to Appeal, at [28]-[43]. It is noted that the oral explanation provided at the hearing differs from what was set out in the Notice of Appeal. Also, the appeal papers reveal that a copy of the orders and reasons was posted to the address of the appellant's real estate agent.
Applying what was said in Jackson, namely that the time for lodging an appeal should not be extended unless the proposed appeal has prospects of success, we do not consider the appellant should be granted an extension of time which is sufficient to finalise this appeal, other than a consideration of the respondent's request for an order for costs.
[11]
Costs
In written submissions received on 2 June 2023, the respondent sought an order for costs. However, it must be noted that on 21 June 2023 the following order was made:
Leave is granted for the respondent to be legally represented by a tenancy advocacy service, on condition that there is no application or costs of the appeal.
In view of that order, it is understandable that the respondent did not seek an order for costs in the written submissions received on 30 June 2023. At the hearing the respondent's clam for costs was not pressed.
[12]
Orders
For the reasons set out above, the orders that will be made are as follows:
1. Leave to extend time to lodge the Notice of Appeal is refused.
2. No order as to costs.
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: 13 July 2023