Dominic Dep v Busakorn Chentrens

NCAT Appeal Panel|2015-03-11

Introduction

This appeal arises out of a dispute between a landlord (the appellant) and a tenant (the respondent) in respect of a residential tenancy agreement. The dispute was decided at first instance by the Tribunal on 10 October 2014 when orders were made requiring the appellant to pay to the respondent the sum of $44,440.00.
As stated the appellant seeks to appeal from the decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 10 October 2014. At the conclusion of the appeal the Appeal Panel indicated, in summary, that except for the limited purpose of correcting certain errors appearing in the decision and reasons appealed from, leave to appeal was refused, and the appeal otherwise dismissed. The Appeal Panel indicated that written reasons would follow. In addition following the hearing the Appeal Panel sought and obtained written submissions from the parties as to whether the Tribunal was prevented from making an order in excess of $15,000.00, and in respect of costs.
Each party was represented at the hearing of the appeal by legal representatives. Mr van Ede, solicitor, appeared for the appellant. Mr Paterson of counsel, instructed by the Legal Aid Commission appeared for the respondent. Each party consented to the other being legally represented. Accordingly, pursuant to s 31(2) of the Civil and Administrative Tribunal Act 2013 (the Act) the Appeal Panel granted leave to each party to be legally represented.

Background

The appellant was the landlord and the respondent the tenant of residential premises in Pymble. They signed a residential tenancy agreement during 2012. The tenant remained in possession until late 2014.
On 11 August 2014 the respondent commenced proceedings RT 14/40793. She sought orders pursuant to various sections of the Residential Tenancies Act 2010 (the RT Act), but including ss 44(1)(b) and 45. She alleged that the landlord had, for extended periods, failed to carry out repairs and withheld services, and otherwise failed to maintain the premises. These proceedings were listed for conciliation and hearing on 25 August 2014. The matter did not resolve, and on that day the Tribunal adjourned the matter, noting that an adjournment would only be granted on the next occasion in exceptional circumstances. The Tribunal also made orders, by consent, for the filing of documents (including evidence and submissions) by the respondent tenant by 9 September 2014 and the appellant landlord by 23 September 2014.
On 5 September 2014 the tenant sought a three week extension of time in which to file her documents. The Tribunal contacted the landlord's agent to ascertain their response. On 9 September 2014 the landlord's agent informed the Registry that it did not consent to the extension of time.
On 11 September 2014 the Tribunal extended the time for the filing of documents to 18 September 2014 (in respect of the tenant) and 30 September 2014 (in respect of the landlord). Pursuant to those directions the tenant filed materials on 18 September 2014, and then again on 3 October 2014.
Meanwhile, on 9 September 2014 the landlord had commenced proceedings RT 14/45169. The landlord had issued a 90 day ("no grounds") notice of termination. He sought orders for termination of the tenancy agreement and possession of the premises. On 25 September 2014, by consent, the Tribunal terminated the agreement, and ordered the tenant to give possession to the landlord immediately. The Tribunal then suspended the order for possession until 31 October 2014, and, again by consent, ordered the tenant to pay an occupation fee on a weekly basis.
On or about 9 September 2014 the Registry issued a notice to the landlord, care of his agent, notifying him that a hearing was to be held in the tenant's proceedings on 10 October 2014. On 30 September 2014 Vanessa Turner, a property manager employed by Richardson & Wrench Turramurra, the landlord's agent, sent an email to the Registry seeking an adjournment of the hearing. Her email states: The hearing is booked for 10th October 2014 - however, the owner is away and will be back on after the 30th October 2104 and has requested that we ask to delay the hearing until he is back. Most days are alright for us except "Wednesday". Please confirm if we could have the date changed to after 30th October 2014.
On 1 October 2014 the Tribunal refused the request for an adjournment, and notified the landlord's agent accordingly. The reasons for the refusal were: Orders were made by consent with the intention that the claim would proceed that day. The owner is represented by an agent. No adjournment is justified. The matter remains listed on the above date and your attendance at the hearing is required.
Evidence from the landlord shows that the landlord had purchased a ticket in April 2014 to fly overseas on 27 September 2014 returning to Australia on 23 October 2014.
The hearing took place on 10 October 2014. At the hearing the tenant appeared in person, assisted by an interpreter in the Thai language. The landlord was represented by Ms Turner. It is common ground that no further application for an adjournment was made, and that the matter proceeded for approximately four hours At the conclusion of the hearing the Tribunal gave a decision orally and also published the following orders and reasons: 1 The landlord . . . is to pay the tenant . . . the sum of $44,440 on or before 07-Nov-2014. . . . REASONS 2 After hearing evidence and reading evidence from both parties detailed oral reasons were provided in support of my findings and final orders. Insofar as is necessary the time for commencement of the proceedings is extended pursuant to s41 of the Civil and Administrative Tribunal Act to 11 August 2014. 3 In summary as a consequence of a continuous failure to repair in breach by the landlord in breach of s65 of the [RT Act] compensation is assessed as follows: Compensation under s187 - $15,600 calculated from 10.10.12. Non-economic loss $5,500 assessed at 15% of a most extreme case under the Civil Liability Act 2002. Reimbursement of medical expenses $620.00. Reimbursement of medical report fee $500.00. TOTAL $22,220.00.
It is to be immediately observed that the amounts set out in order 3 total $22,000, and that the figure of $44,440 in order 1, appears to be incorrect. On its face this was an error of law in the decision and reasons of the Tribunal. This error had been conceded by the respondent in her submissions filed before the commencement of the appeal hearing. Accordingly, the appeal then proceeded on the basis of leave being required in relation to the other matters agitated by the appellant.

Jurisdiction of the Appeal Panel

Section 80 of the Act provides that an appeal against an internally appealable decision may be made to the Appeal Panel. There is no issue that the decision the subject of this appeal is one in respect of which the Appeal Panel has jurisdiction. Section 80(2) of the Act provides that an appeal from an internally appealable decision lies, as of right, on any question of law or, with leave of the Appeal Panel, on any other grounds. The question of leave is restricted in this case by the operation of clause 12 of Schedule 4 of the Act.
Clause 12 of Schedule 4 of the Act provides: 12 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) he 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). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.

Principles to be applied

The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel of the Tribunal conducted a review of the relevant cases at [65]-[79] and concluded at [84]: 84. The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) 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.
Collins v Urban also considered the meaning of "substantial miscarriage of justice" and stated at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [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 . . . 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."
As was explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

Grounds of Appeal

In his notice of appeal the appellant stated the grounds of appeal as follows: 1. Decision that there be compensation was based on findings of fact that were wrong. 2. Tribunal wrongly admitted materials as evidence in case, in particular some medical materials. 3. Decision against the weight of the evidence. 4. Decision was arrived at by a process which denied the appellant natural justice.
These grounds were amplified in detailed written submissions prepared by Mr Van Ede, solicitor, who appeared for the appellant. In summary his submissions stated that there were three bases on which leave should be granted.
The first basis is that the decision was not fair and equitable. Here the appellant submits that the Tribunal acted unfairly by proceeding with the hearing on 10 October 2014 in the absence of the appellant, particularly in relation to two issues, namely the non-habitation of the "downstairs bedroom" (in relation to which it is submitted the award of $15,600 was made) and the alleged psychological damage suffered by the tenant (in respect of which an award of $5,500 plus an amount of $1,120 for reimbursement of medical expenses was made). In relation to the first issue Mr van Ede submitted that had the appellant been present, he would have been able to give evidence now contained in an affidavit filed 23 December 2014 and filed in the appeal proceedings. In relation to the second issue Mr van Ede submitted that it was unlikely (or at least unclear) that the psychologist on whose report the Tribunal relied, Ms Joyce Chiu, had any awareness of other stressors in the respondent's life, one of which was referred to in an affidavit of Nicole Skelton dated 14 January 2014, also filed by the appellant in the appeal proceedings.
The second basis was that the decision was against the weight of the evidence. The appellant submitted that the entire characterisation by the Tribunal of the events which occurred was against the weight of the evidence, and the Tribunal ignored the fact that the tenant had actually been asked to vacate the premises at the end of the initial term.
The third and final basis on which leave is sought was that significant new evidence had arisen since the hearing. The appellant submitted that the evidence set out in Mr Dep's affidavit of 23 December 2014 is "self-evidently both significant and that it was not reasonably available at the time the proceedings were heard".

Reply to Appeal

The respondent filed her reply to the notice of appeal on 10 December 2014. In summary she states that the appellant should not be granted leave to appeal as he was well aware of the material before the Tribunal, but chose not to appear himself at the hearing. The respondent's opposition to leave to appeal being granted was made clearer in Mr Paterson's detailed submissions.
In relation to the decision appealed from not being fair and equitable, he submits that procedural fairness involves providing a party with a reasonable opportunity to prepare and present its case; it does not involve the imposition on a court or tribunal of the impossible task of ensuring that the party, given an opportunity, takes advantage of it.
In relation to the decision being against the weight of the evidence, he submits that in determining this issue the Appeal Panel can only have regard to the evidence before the Tribunal, not "new" evidence filed in the appeal. He says that appellate hearings are subject to "natural limitations" when compared to the comparative advantages of comprehension and evaluation which trial judges derive from their direct perception of witnesses and the progress of the trial.
In relation to the third point, the respondent submits that the evidence sought to be relied on, namely the affidavit evidence of the appellant and Ms Skelton, was clearly available to the appellant at the time of the hearing and does not meet the criteria in cl 12(1)(c) of the Act, namely that significant new evidence has arisen, being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. The respondent submits that all of the events referred to took place well before the hearing and were all known to the appellant at the time of the hearing on 10 October 2014.

Consideration

There are three bases on which the appellant submits that leave to appeal should be granted. The first basis is that the decision was not fair and equitable. Here the appellant submits that the Tribunal acted unfairly by proceeding with the hearing.
We reject this submission. The landlord was represented at the hearing by his agent. No reason has been advanced why he could not have filed evidence, appeared by telephone or otherwise participated in the hearing by appropriate instructions to his agent. No application for an adjournment was made at the hearing. His agent was present and made submissions. On the basis of all the evidence before it the Tribunal made the orders it did. While Mr van Ede made oral submissions to the effect that the appellant had no opportunity to deal with the documents filed and served by the respondent because he was overseas, we reject that submission. At all times the appellant had retained the same agent to manage the property rented by the respondent, and it seems improbable that the staff of the agency could not have prepared evidence and submissions based on the appellant's instructions. It was even indicated from the bar table that the appellant was in contact with his agent on the very day of the hearing. In these circumstances, there is substance in the respondent's submission that the appellant was afforded a reasonable opportunity to prepare and present his case at the hearing.
Furthermore, the appellant was aware prior to his departure overseas on 27 September of the Tribunal's directions that his evidence was to be filed and served by 23 September 2014. Indeed the appellant's agent opposed the respondent's request to have a 3 week extension to file her evidence (from 9 September to 30 September 2014) without informing the Tribunal that the appellant might have difficulties in either filing his evidence or attending a hearing during the period of the appellant's absence overseas between 27 September and 23 October 2014.
The appellant submitted that the Tribunal acted unfairly by proceeding with the hearing on 10 October 2014 in the absence of the appellant, particularly in relation to two issues, namely the non-habitation of the "downstairs bedroom" and the psychological damage suffered by the tenant. However, there is nothing in the order appealed from or the reasons that suggests that the order for $15,600 was made in relation to the non-habitation of the "downstairs bedroom". While a sound recording of the hearing had been ordered by the appellant, no transcript or other evidence of what occurred was provided to the Appeal Panel. As to the psychological damage, the appellant has submitted that Ms Chiu was unaware of other stressors in the respondent's life. However, there is no evidence before the Appeal Panel that Ms Chiu was required for cross-examination, and it was conceded by Mr van Ede that the landlord did not ask for the opportunity to do so. Nor was there any evidence that Ms Turner, who appeared for the appellant at the hearing, made any submissions about the weight that the psychologist's evidence should be afforded.
We conclude therefore that the appellant has not established that leave to appeal should be granted on the basis that the decision appealed from was not fair and equitable.
The second reason advanced by the appellant as to why leave should be granted is that the decision was against the weight of the evidence. The appellant's submission on this issue is difficult to understand. The appellant submits that the entire characterisation by the Tribunal of the events which occurred was against the weight of the evidence, and the Tribunal ignored the fact that the tenant had been asked to vacate the premises at the end of the initial term. This submission is not supported by any evidence, such as a transcript of the hearing, and does not arise in the reasons for decision. In circumstances where the appellant filed no evidence before the hearing, we do not accept that the Tribunal's decision was against the weight of the evidence before it.
The third and final reason advanced by the appellant is that significant new evidence had arisen since the hearing. We do not accept this submission. The new evidence was said to be the evidence of the appellant himself, and a staff member of his agent. No reason whatsoever was advanced why this evidence was not otherwise available at the time of the hearing. In relation to the appellant's evidence, there is substance in the respondent's submission that he made a forensic choice not to return for the hearing.

Conclusion

For the above reasons, we are not persuaded that leave should be granted. As noted above Collins v Urban is authority for the proposition 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, 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, a factual error that was unreasonably arrived at and clearly mistaken, or 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.
As stated earlier, the Appeal Panel requested to the parties to make submissions as to whether the Tribunals jurisdiction in this matter was limited to making an order for payment of a sum not exceeding $15,000.00 because of the provisions of a 187(4) of the RT Act and reg 23 of the Residential Tenancies Regulation 2010 (RT Regulations). The respondent concedes this limit and the view of the Appeal Panel is also that in the circumstances of this case the Tribunal may not order payment of an amount exceeding $15,000.00.
We are not persuaded that any of the grounds for appeal have been established by the appellant. Save for the issue of correcting (what is accepted to be) both the typographical error and the jurisdictional error appearing in order 1, we do not grant leave to appeal.

Costs

The respondent seeks an order that her costs be paid by the appellant. The notice of appeal was filed on 27 October 2014 and in her submissions filed by her solicitor dated 24 February 2015, the respondent conceded that the order made ought to be amended by varying the requirement that the appellant pay $44,440.00 and inserting instead the sum of $22,220.00.
At the appeal hearing the respondent conceded that that part of the first instance order requiring payment of $15,600.00 ought to be amended to $15,000.00 because of the effect of s 187(4) of the RT Act and Regulation 23 of the RT Regulations.
Following the appeal hearing the respondent has conceded that the total amount which the Tribunal may order by reason of the above provisions of the RT Act and the RT Regulations in the circumstances of these proceedings is $15,000.00.
Notwithstanding these concessions the respondent seeks her costs relying upon s 60(2) of the Act. In summary s 60 provides that each party to proceedings in the Tribunal is to pay their own costs but the Tribunal may award costs if it is satisfied that there are special circumstances warranting an award of costs.
This appeal was necessitated because the Tribunal made orders beyond its power and, although the respondent made some concessions prior to and at the appeal hearing in relation to the monetary limit of the Tribunal's power, those concessions did not remove the necessity for the appellant to bring the appeal.
In the opinion of the Appeal Panel, while the appellant has had some success in bringing the appeal, there are no special circumstances which would warrant either the appellant or the respondent being awarded costs. Accordingly, there will be no order to costs.

Orders

For the above reasons, we make the following orders: 1. The time for filing the notice of appeal is extended to 27 October 2014. 2. Except for the limited purpose of correcting the errors referred to in order 3 below, leave to appeal is refused and the appeal otherwise dismissed. 3. Leave to appeal is granted for the purposes only of correcting the orders made below by: 1. setting aside the order made on 10 October 2014 and substituting a new order that the appellant pay the respondent $15,000.00 within 28 days of the date of these orders. 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: 01 July 2015

At a glance

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Judgment (11 paragraphs)

Parties

Cases Cited (5)