Duggal v Just Chrisy Superannuation Fund

Background

1. The appellants entered into a residential tenancy agreement with the respondent in relation to premises at Kellyville Ridge, New South Wales.
2. From about June 2015, the appellants were frequently behind in their rent. From that time, until about December 2016, the appellants were late in paying their rent on approximately 79 occasions.
3. From time to time the appellants were also behind in paying the respondent amounts owed for water usage.
4. The respondent brought an application to terminate the tenancy in early 2016. In May 2016, the Tribunal ordered the tenancy to be terminated, but the parties entered into an agreed payment plan and that termination order was not enforced. Regrettably, the appellants continued to be frequently behind in their rent and payments for water usage.
5. In November 2016, the respondent commenced a further application for an order that the tenancy be terminated, and orders for the payment of outstanding rent and water usage.
6. That application was heard on 8 December 2016. The appellants did not appear at that hearing. A termination order was made, and the appellants were ordered to pay various amounts for outstanding rent and water usage.
7. The Tribunal gave oral reasons. It ordered the tenancy to be terminated because the appellants had failed to pay rent in accordance with their obligations under the residential tenancy agreement, and that those failures met the requirements set out in the Residential Tenancies Act 2010 (NSW) ("RTA") for a termination order. The Tribunal was also satisfied, pursuant to s 89(5) of the RTA, that the appellants had frequently failed to pay rent owing for the premises on or before the date set out in the residential tenancy agreement.
8. The appellants filed an application to set aside the decision of 8 December 2016 pursuant to cl 9 of the Civil and Administrative Tribunal Regulation 2013. That clause provides, relevantly for this appeal, that the Tribunal may set aside a decision made in the absence of a party if the decision was made in the absence of that party and the Tribunal is satisfied that the party's absence resulted in the party's case not being adequately put to the Tribunal.
9. Directions were made in that application that the appellants file and serve submissions as to, amongst other things, why they did not appear at the hearing on 8 December 2016. No such submissions were filed or served.
10. This appeal was filed on 20 January 2017, and seeks to appeal from the decision of 8 December 2016 and the decision of 18 January 2017. The appeal from the latter is within time, but the appeal from the former is out of time and requires an extension of time if it is to be considered.

Extension of time

1. The considerations relevant to an extension of time to appeal were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18] - [22]. They need not be repeated here.
2. The appellants submitted that they were not aware of the time limit for filing an appeal from the decision of 8 December 2016.
3. The respondent opposed the application for an extension of time on the basis that the appellants had been granted every opportunity to remedy the rent and water usage defaults.
4. The length of the delay in filing the Notice of Appeal is not considerable but is not insignificant. The reason for the delay is not compelling. There is no relevant prejudice to the respondents. The appellants' prospects of success on the appeal are nil for the reasons set out below. In the circumstances, we consider an extension of time to file the Notice of Appeal is not warranted. We refuse the application to extend time.

Appeal Prospects

1. The appellants accepted, with commendable frankness, that they were behind in their rent as at the date of hearing (8 December 2016), although they disputed the exact amount owing. They agreed they were about $800 behind (the respondent said $1,400).
2. Similarly, they accepted they were behind in water usage charges, although, again, they disputed the exact amount. They agreed they owed about $700 (the respondent said it was a little over $900).
3. The appellants did not contend that the Tribunal's decision terminating the tenancy on the basis of non-payment of rent was in any way erroneous (the difference in the amount said to be owing not being relevant to this issue).
4. The appellants also accept that they were behind on their rent "quite a few" times during the currency of their tenancy, although they disagreed that they were "frequently" [which is the term used in s 89(5) of the RTA] behind in their rent.
5. Although the appellants did not press this different description as a ground of appeal, they are not legally represented and we shall consider it. The question whether primary facts found were necessarily within or outside a statutory test is a question of law for the purposes of s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 No 2 (NSW). [1]
6. The common dictionary definition of "frequently" is regularly, habitually or often. It is not a term of art, and the ordinary dictionary definition ought to apply to the meaning of that word where it appears in s 89(5) of the RTA.
7. The uncontested evidence before the Tribunal was that the appellants were behind in their rent on 79 occasions between June 2015 and the hearing before the Tribunal in December 2016. Put another way, during that period the appellants were behind in their rent for every week other than for seven weeks in September / October 2015.
8. In light of that evidence, we are not persuaded that the Tribunal erred in finding that the appellants had frequently (habitually, regularly or often) failed to pay rent owing for the premises on or before the date set out in the residential tenancy agreement.
9. The appellants' remaining submissions on this appeal were limited to submitting that they were up to date with their rent (as at the date of the appeal) and only owed about $70 for outstanding water usage charges.
10. Unfortunately, this commendable effort by the appellants to bring their arrears up to date is not a defence to the respondent's case that they had frequently failed to pay their rent on time, nor is it a ground of appeal from the determination of the Tribunal to like effect.
11. Thus, apart from the question of law we have referred to, the appellants did not advance any ground of appeal, whether as a question of law or any other ground, and no ground of appeal was discernible to us from the material with which we were provided or from the appellants' submissions.

The Appeal from the Application to Set Aside

1. No grounds of appeal from this decision, whether as a question of law or any other ground, were advanced by the appellants, nor are any discernible to us from the material with which we were provided.
2. The appellants did not provide the Tribunal with any reasons for their non-appearance at the hearing on 8 December 2016 and thus it is unsurprising that the application was dismissed.
3. Further, and as is apparent from what we have said above, the appellants advanced no defence to the respondent's assertion that the appellants had frequently failed to pay their rent on time.
4. It follows that there is no basis apparent to us for the appellants to challenge the Tribunal's finding that it was not satisfied that the appellant's case was not adequately put to the Tribunal on 8 December 2016 because of the appellants' absence. As there was no apparent defence there was no case to put.
5. It is regrettable that the appellants now face eviction, but that is the necessary consequence of their frequent failure to pay rent on or before the date set out in the residential tenancy agreement.

Orders 1. Leave to extend time to appeal from the decision of the Tribunal dated 8 December 2016 is refused. 2. The appeal from the decision of the Tribunal dated 18 January 2017 is dismissed. 3. The order for possession is suspended for 21 days from the date of these orders.

1. 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.
3. (signed)
4. Principal Registrar

Endnote

1. Wesiak v D & R Constructions (Aust) Pty Ltd [2016] NSWCA 353 per McDougall J, with whom Beazley P and Simpson JA agreed, at [73]. 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: 13 April 2017