Bratby v Blain

Background 4On 30 January 2014 the Consumer and Commercial Division of NCAT decided not to accept two claims by Mr Bratby against his landlord, Ms Blain, because they had been lodged out of time. The time limit for applying for an order in relation to a breach of a residential tenancy agreement is 3 months after the tenant becomes aware of the breach: Residential Tenancies Act 2010 (NSW), s 190(1) and Residential Tenancies Regulation (NSW) 2010, cl 22(9). There was no dispute that the claims, which were lodged on 5 July 2013, were out of time or that the Tribunal has power to extend time: Consumer Trader and Tenancy Tribunal Act 2001(NSW), s 81. 5The two claims which the Tribunal did not accept concerned a claim for electricity paid by Mr Bratby and a claim for compensation for painting material left a the tenanted premises. The application lodged by Mr Bratby does not identify the amount of compensation being sought except to say that he had received a statement for electricity totalling $13657.22 and that the painting material cost him $121.40. 6Because this appeal relates to an 'interlocutory decision' of the Tribunal, (a decision concerning the extension of time for any matter including for the lodgement of an application) Mr Bratby needs the Appeal Panel's 'leave' or permission before the appeal can go ahead: NCAT Act, s 4 and s 80(2)(a).

Grounds for seeking leave to appeal 7Mr Bratby's ground for seeking leave to appeal is that at a directions hearing in September 2013 Member Sponza accepted his claims out of time. Mr Bratby says that when hearing his claims in 2014, the Tribunal should have recognised that order. 8At the hearing on 30 January 2014, Mr Bratby provided the Tribunal with the following excerpt from a transcript of the earlier hearing before Member Sponza: Member Sponza: I'm prepared to grant you under section 81 an extension of time. I accept that application is lodged out of time. 9Mr Bratby also wrote in his Notice of Appeal that he brought the audio recording of the 26 September 2013 hearing to the hearing on 30 January 2014 hearing and offered it to the Tribunal.

Tribunal's reasons for decision 10At [7] of the Tribunal's reasons for decision dated 10 February 2014, the Tribunal acknowledged that Mr Bratby had written to the registry about this issue in October 2013, but found that there was no record of an order accepting the claims out of time: The Applicants did write to the registry on 13 October 2013 asserting that Member Sponza had already "accepted the extension of time". As stated above, the Tribunal record discloses no such order. The Respondent indicates that, following her attendance at the Tribunal on this date, she expected that the issue of whether or not an extension of time was to be granted was one of the issues to be determined by the Tribunal at final hearing. 11At [12] the Tribunal gave its reasons for refusing to accept the claims out of time: 12. In exercising its discretion as to whether it is fair and reasonable to grant an extension of time for the present Application notwithstanding the time provisions prescribed by the Residential Tenancies Act and Regulations, the Tribunal has regard to a number of factors which it is satisfied are proven and established in this matter: the extreme and largely unexplained delay since commencement of the tenancy in 2007 until late 2013 when the tenant decided to file the present Application about the paint, and the electricity for the fencing and a power point in a shed not being separately metered; the decision not to bring the present proceedings until a time which was at the earliest during the earlier proceedings between the parties or after the decision in favour of the landlord in those proceedings; the decision of the tenants to leave their paint at the premises without any plan to use the paint or to retrieve it until after the previous proceedings had been concluded, together with a failure to make any formal demand for its return, and; the quite insignificant amount of electricity likely to have been used by the landlord in breach of section 40(1)(c) of the Residential Tenancies Act 2010.

Principles for granting leave 12The legislation does not provide any guidance as to the considerations that are relevant when determining whether to grant leave. Those principles must be derived from other sources including the objects of the Act and the nature of the appeal. 13The 'guiding principle' of the NCAT Act is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36. The purpose of requiring leave to appeal from interlocutory decisions is to save costs and to make sure that the real issues in dispute are determined justly and quickly. But the importance and complexity of the subject matter is also relevant: In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: NCAT Act, s 36(2). 14While there is no rigid test or criteria for the granting of leave, the Supreme Court has set out relevant principles which, depending on the circumstances, may also apply to the Appeal Panel when considering leave applications against interlocutory decisions. 15The principles which we regard as relevant to this appeal are: (1)in relation to the merits of the appeal, an Appellant needs to demonstrate something more than that the Tribunal's conclusion was 'arguably wrong': Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 (followed in Zelden v Sewell [2011] NSWCA 56 at [22]), per Sheller JA at [2]; and (2)where small claims are involved it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 at [6] per Cole J; (3)the Appeal Panel should take into account the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction is another relevant consideration: See Civil Procedure Act 2005 (NSW), s 58(2)(b)(vi).

Consideration 16In relation to the merits of the appeal, we have listened to the audio tape recording of the hearing before Member Sponza on 26 September 2013. Mr Bratby was present but the landlord, Ms Blain, was not. While the excerpt set out above at [8] is a correct transcription of Member Sponza's words, when these words are viewed in the context of the entire proceedings, it is more likely that the Member was referring only to the claim relating to the bond, not to the two claims that are the subject of these proceedings. 17Member Sponza begins by asking Mr Bratby whether the 'bond issue' was dealt with in previous Tribunal proceedings. Mr Bratby says that it was not. After looking at the file, Member Sponza says: There doesn't appear to be any issue here in relation to a bond that I can see. I'm prepared to grant you under s 81 an extension of time. I accept that the application's lodged out of time. I accept that the Respondent's been served. There is a notice on file. 18Member Sponza then questions Mr Bratby about issues relating the bond. After some discussion Member Sponza says, "I'll make an order for the refund of the $500. That's the only order I can make today." 19The discussion then turns to the other two claims relating to alleged breaches of the tenancy agreement. Member Sponza points out that Mr Bratby has not filed any evidence to support those claims. Ultimately Member Sponza agrees to adjourn the hearing in relation to those claims so that further evidence can be filed. 20On the basis of the tape recording of the hearing on 26 September 2013 an Appeal Panel hearing this appeal would be likely to find that the order extending time related only to the claim about the rental bond. Such a conclusion would be supported by the fact that the prescribed period for applying for an order as to the payment of the amount of a rental bond, is within 6 months after the bond is paid. The time for applying for an order in relation to a breach of a residential tenancy agreement is 3 months after the applicant becomes aware of the breach: Residential Tenancies Regulation 2010, cl 22(8) and (9). As the two claims under consideration in these proceedings related to alleged breaches of the residential tenancy agreement, the Tribunal would have had to give separate consideration to the issue of whether those matters should be accepted out of time. 21While we accept that Mr Bratby has the impression that all three of his claims were accepted out of time in September 2014, he is unlikely to be able to prove that that was the case on appeal. 22The amount in dispute is small. The Tribunal found that the amount of electricity that was likely to have been used by the landlord was insignificant. If this matter were to proceed, the costs involved to all would be likely to swamp the amount in dispute. 23Finally, apart from the potential loss of the small amount of money involved, there is no injustice to Mr Bratby if leave is refused.

Orders (1)The Appellant's application for leave to appeal against two interlocutory decisions of the Tribunal is refused. 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. Principal 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: 11 June 2014