Counsel:
S Gardiner for the respondent
File Number(s): AP 15/60852
Decision under appeal Court or tribunal: Civil and Administrative Tribunal
Jurisdiction: Consumer and Commercial Division
Date of Decision: 21 September 2015
Before: P Smith - Member
File Number(s): SH 15/44096
[2]
Background
The appeal was lodged on 9 November 2015. Mr Cooke, a tenant, is appealing a decision of the Tribunal, made on 21 September 2015, for termination and possession of his residential premises. The application for termination and possession had been made by the landlord, NSW Land and Housing Corporation on 22 July 2015.
Mr Cooke did not appear at the Tribunal hearing on 21 September 2015 and orders were made in his absence. Those orders were:
1. The Tribunal is satisfied notice of the hearing was duly served on the respondent
2. The Residential Tenancy Agreement is terminated in accordance with:
• s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement.
• failure to pay rent in accordance with agreement.
3. The Tribunal is satisfied in accordance with s 89(5) the tenant has frequently failed to pay rent owing for the residential premises.
4. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.
5. The order for possession is suspended until 12-Oct-2015
6. The tenant shall pay the landlord a daily occupation fee at the rate of $29.67 per day from the day after the date of termination, namely 22-Sep-2015 until the date vacant possession is given to the landlord.
7. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.
8. The landlord's agent is to advise the tenant in writing by the delivery of a letter to the premises by 6:00 pm on 21-Sep-2015 of the orders made today.
9. The tenant, ROYDON NATHAN COOKE, ... is to pay the landlord, NSW LAND AND HOUSING…, the sum of $5,878.81 immediately.
Default in the payment of any Instalment will cause the whole of the balance then outstanding to become immediately due and payable.
Reasons :
• Rent to 21/9/15 $5,470.23
• Water usage $408.58
In 'residential proceedings,' an appeal must be lodged within 14 days from the day on which appellant was notified of the decision or given reasons for the decision, whichever is the later: Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(b).
The appeal has been lodged out of time and Mr Cooke requires an extension of time to appeal. While the parties did not specifically address the issue of an extension of time at the hearing, we were satisfied it was appropriate to extend time for the application pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW), (the Act).
It is noted that a set-aside application had been made by Mr Cooke following the hearing and was dismissed on 29 October 2015. That set-aside decision was not the subject of this appeal.
[3]
Requests for Adjournment
At the outset of the appeal hearing Mr Cooke requested an adjournment on the basis that he wanted to obtain legal advice and representation.
Mr Cooke stated that he had spoken to Legal Aid and the Aboriginal Legal Service in relation to the matter. Mr Cooke indicated he had received initial advice, but that he was told that his matter was not a priority and could give no definitive time as to if and when representation would be forthcoming.
The respondent opposed the application on the basis that the matter had a long history, the appellant had considerable arrears, the appeal lacked merit and that it would be unfair to further delay the matter. The respondent also noted that in all proceedings before the Tribunal between the parties, proceedings which had their genesis in November 2013, at no time had Mr Cooke been represented.
The Appeal Panel denied Mr Cooke's request for an adjournment on the basis that Mr Cooke was unable to identify if legal representation would become available or when a legal representative would become available.
Mr Cooke was assisted by his brother-in law, Mr Kennedy at the hearing. During the hearing Mr Kennedy requested an eight week adjournment to allow for Mr Cooke to obtain surveillance footage to establish whether the notice of hearing had had been served on Mr Cooke personally by a representative of the landlord in the initial proceedings. No information was provided to the Appeal Panel as to the source or availability of such surveillance footage.
That application for adjournment was also denied. It was clear from the statutory declarations that had been provided by the respondent to Mr Cooke and the Appeal Panel prior to the hearing that they would be making submissions that Mr Cooke had been personally served by them with notice of the initial hearing prior to the matter being heard. Mr Cooke had an opportunity prior to the hearing to obtain any evidence in support of his case in this regard.
[4]
The Appeal
In his Notice of Appeal, Mr Cooke stated that his appeal was on following grounds:
1. Housing NSW knew that the he was no longer working because of his illness, stress and depression.
2. That he is now receiving the New Start allowance and is looking for work.
3. That he has been paying $200.00 towards the arrears every fortnight.
4. That the landlord has ignored his request to transfer his housing to Aboriginal Housing.
Mr Cooke was seeking an order for the tenancy to remain in place while he obtained assistance from Mission Australia to pay the arrears and continued to pay the rent and arrears fortnightly by instalments.
Mr Cooke also stated that he never received the notice of hearing to appear at the hearing of the Tribunal conducted on 21 September 2015.
An internal appeal may be made as of right on any question of law or with the leave of the Appeal Panel, on any other grounds pursuant to s 80(2)(b) of the Act.
In relation to appeals from the Consumer and Commercial Division, leave to appeal on grounds other than a question of law can only be granted in the limited circumstances set out in cl 12 of Sch 4 to the Act:
(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).
From the contents of the Notice of Appeal and the oral submissions made at the hearing before the Appeal Panel, in substance, Mr Cooke was appealing on the following grounds:
1. that there had been an error of law because he had never received the notice of hearing in relation to the initial proceedings and had been denied the opportunity to put his case to the Tribunal; and
2. that the decision subject of the appeal was not fair and equitable because the respondent knew of his difficult financial circumstances and he should have been permitted to catch up on the arrears by was way of a fortnightly payment plan.
[5]
Notice of the Hearing
Mr Cooke made submissions that he had never received notice of the hearing in the initial proceedings and for that reason did not attend and was not given an opportunity to put his case forward at the hearing.
In the documents provided by the respondent prior to the hearing, Ms Peisley, a Client Services Officer of the respondent stated in a statutory declaration dated 16 October 2015;
I declare that on 27 August 2015 at 2.20pm I attended the premises of Mr Roydon Cooke of…accompanied by client service officer Patricia Bellamy and personally served Mr Roydon Cooke with a hearing notice from NSW Civil and Administrative Tribunal for Monday 21 September 2015 at 11.15am. This notice was also included and submitted in evidence to both NSW Civil and Administrative Tribunal and Mr Roydon Cooke on 28 August 2015…
A further statutory declaration, in similar terms and dated 16 October 2015, was provided by the respondent and sworn by Ms Bellamy, a further Client Services Officer of the respondent, stating that she accompanied Ms Peisley at the time Mr Cooke was served with the notice of the hearing.
Mr Cooke stated he never received the notice of hearing and that it had not personally served upon him.
The Appeal Panel accepted that Ms Peisley had given Mr Cooke a copy of the notice of hearing, which was to be conducted on 21 September 2015, on 27 August 2015 as outlined in her statutory declaration. We find that Mr Cooke had been aware of the hearing conducted on 21 September 2015 and for reasons unknown to the Appeal Panel, failed to attend.
Accordingly, we find no error of law arising from this ground of the appeal.
[6]
Mr Cooke's Financial Situation
Mr Cooke stated that the respondent had been aware of his difficult financial situation and that he wanted the opportunity to pay the arrears of rent by instalments. He also indicated that Mission Australia was willing to assist him to pay the arrears. Mr Cooke was unable to provide the Appeal Panel with any evidence to support his claim that Mission Australia was willing to pay his arrears or when they had advised him of that (before or after termination).
The respondent provided a copy of the rental ledger which showed that there was an amount of $6,096.16 owing in outstanding rent up to 18 December 2015. They made submissions that Mr Cooke had been given repeated opportunities to rectify the breaches and that the amounts outstanding continue to increase.
This ground of appeal, which was largely misconceived by Mr Cooke, does not involve a question of law and accordingly leave is required in accordance with cl 12 of Sch 4 to the Act.
The principles set out in the decision of Collins v Urban [2014] NSWCATAP 17 are relevant to determine whether or not leave should be granted in such circumstances. Relevantly the Appeal Panel said:
76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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.
77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:
(1) ….
(2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, MainteckServices Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].
78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.
79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55].
Further, even if the Appeal Panel is satisfied there has been a substantial miscarriage of justice it must also decide whether, as a matter of general discretion, leave should be granted: see Collins at [80] and following.
Payment of rent is a fundamental obligation of a tenant and at the time of the orders for termination Mr Cooke had failed to comply with that obligation. The tenancy was terminated on the basis of non-payment of rent arrears. Nothing which Mr Cooke raised before the Appeal Panel would have altered that decision at the termination hearing. Even if the Respondent had of been aware of Mr Cooke's financial position, there was nothing to suggest that this would have altered the outcome of the hearing. The arrears at the time of termination of the tenancy were $5,878.81. Those arrears have continued to increase since that time.
The Appeal Panel was not satisfied that Mr Cooke may have suffered a substantial miscarriage of justice on the ground that the decision of the Tribunal under appeal was not fair and equitable. Further, the Appeal Panel was not satisfied that Mr Cooke may otherwise have suffered a substantial miscarriage of justice on any of the matters raised. Leave to appeal is denied.
The orders are made accordingly.
[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
[8]
Amendments
08 January 2016 - coversheet
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Decision last updated: 08 January 2016