Eileen Shahbazian and Michel Dalati v Annika Brahmann and Linda Degenhart

The decision at first instance

1. As already noted, the reasons for decision record that Ms Shahbazian did not attend the hearing but requested an adjournment by telephone. According to the reasons, the application was refused because there was no evidence to support the application and a phone call stating Ms Shahbazian was unable to attend was said to be "insufficient application for an adjournment".
2. The Tribunal proceeded with the hearing and found there was a breach of the three month residential tenancy agreement dated 14 March 2015. Relevantly, the Tribunal stated as follows: On the 18 March 2015 a representative of the landlord informed the tenants that the tenancy was terminated and requested vacant possessions. Police assisted the applicants in their vacating of the premises to ensure there was no breach of the peace. The tenants paid the sum of $1260 rental bond. $840 rent in advance and $100 key deposit. The Tribunal is satisfied that the landlord breached the residential tenancy agreement in the manner of the lease was terminated and in the absence of any appearance or submissions on behalf the landlord the Tribunal orders that all monies less one days rent be refunded to the applicants.

Grounds of appeal and submissions of the parties

1. In their notice of appeal the appellants contended that the decision at first instance was wrong, the orders were unfair because the Tribunal only heard one side and the decision was not fair and equitable because the Tribunal refused to grant an adjournment of the hearing. The appellants also sought to rely on new evidence, being text messages from one of the appellants' mobile telephones.
2. In written submissions provided in accordance with directions of the Appeal Panel, the appellants also contended that they did not terminate the residential tenancy agreement, the respondents left because they had found alternative accommodation and they stayed for nearly two weeks in the leased premises and therefore an order requiring that they refund the entire rental was unfair.
3. In their reply to the notice of appeal, the respondents stated they did not agree with the appeal and "wanted their money back". It was also contended that the second appellant had been aggressive and terminated the lease "for no reason".
4. The submissions of the parties clearly disclose a dispute as to the circumstances that gave rise to the proceedings at first instance. This was resolved in the respondents' favour in the absence of evidence from the appellants.
5. The appeal raises a question of law, namely whether the appellants were afforded procedural fairness in circumstances where the Tribunal refused to adjourn the proceedings. If there is no error of law, the appellants contend leave to appeal should be given on the basis that the decision was not fair and equitable and there was new evidence available.

Procedural hearing and preliminary issues

1. The original application was filed by the respondents on 23 March 2015 and listed for hearing on 20 April 2015.
2. The appellants lodged the appeal eight days out of time. In answer to the question in the notice of appeal about whether an extension of time was required, the appellants ticked "no". The appellants did not complete this section of the notice of appeal and therefore provided no material in support of the application or explanation for the delay. The appellants sought a stay of the orders to "explain what was said by the respondents was not true".
3. The matter was listed for directions and for hearing of the application for a stay. The Tribunal also foreshadowed that the appeal had been lodged out of time and the appellants therefore required an extension of time if the appeal was to be heard. The stay was refused but the extension of time issue was not determined and was deferred to the hearing of the matter. As already noted, Mr Dalati was joined to the proceedings. The appellants were directed to file and serve an outline of written arguments and any material to be relied on by 3 July 2015. The respondents were directed to file and serve a response by 15 July 2015. The appellants participated in the directions hearing in person and Ms Brahmann participated by telephone. Ms Degenhart was unavailable and did not participate, although Ms Brahmann stated she was authorised to represent Ms Degenhart. Both respondents were travelling and according to Ms Brahmann she was due to return to her home in Europe in late July 2015.
4. The appellants filed the written submissions as referred to above. There was no further material filed by the appellants. The respondents filed did not file any material or submissions in response.
5. The preliminary issue for determination was whether the appellants should be given an extension of time to lodge the appeal.
6. The relevant considerations in exercising the discretion to extend time for the filing of an appeal have been summarised by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and the authorities cited at [18] - [22]. In summary, the key issue is whether strict compliance with the rules would work an injustice on the appellant in circumstances where the respondent has already obtained a decision in its favour and therefore has a "vested right". Generally, relevant matters that should be considered are the length of delay in lodging the appeal, the reasons for the delay, the prospects of success, namely does the appellant have a fairly arguable case, and the extent of any prejudice suffered by the respondent.
7. The appellants explained that the delay in lodging the appeal was because they had made an application for the decision to be set aside under reg 9 of the Civil and Administrative Tribunal Regulation 2013. This regulation gives the Tribunal discretion to set aside or vary a decision if the decision was made in the absence of the party and the Tribunal is satisfied the absence resulted in the party's case "not being adequately put to the Tribunal".
8. The application to set aside the decision was made on 24 April 2015 and determined by the Tribunal on 30 April 2015. The Tribunal dismissed the application for set aside. The order, which stated that "the Applicant's application was dismissed", was sent to Ms Shahbazian. The order created some confusion, as evidenced by Mr Dalati's submissions at the hearing of the appeal. Mr Dalati submitted that the respondents' original application had been dismissed when they did not appear at the hearing of the set aside application. Ms Shahbazian stated she understood this was not the case. However, it was apparent Mr Dalati had taken responsibility for the process and was the person who signed the notice of appeal. His mistaken belief that the tenants' application had been dismissed, which was still evident at the hearing, explained the initial delay in filing the appeal. While the explanation is less than satisfactory this is not a case where the appellants took no action to challenge the decision. The appellants were diligent in that they made the set aside application promptly. When this application was dismissed, they pursued their appeal rights. On balance, the delay and reasons for the delay do not militate against an extension of time.
9. It is also relevant to note that the Tribunal did not grant a stay of the orders made on 20 April 2015 and listed the proceedings, including the application for an extension of time, urgently to accommodate the respondents' travel plans. As such, there was no prejudice to the respondents in the delay nor was this an issue identified in their reply to the notice of appeal.
10. Finally, while we have decided to dismiss the appeal, there were issues raised in the appellants' grounds of appeal that warranted consideration. In particular, the appellants contended the decision was unfair because Ms Shahbazian had attempted to attend the hearing at first instance but had difficulties because of severe weather conditions and the fact she was being accompanied by her moderately disabled daughter who fell over. This was apparently an issue raised at the set aside application but was found to be "not compelling". This is somewhat surprising and while the appellants did not appeal this decision, the reasons for the decision to dismiss the application for set aside included the following: Given the applicant's evidence was accepted by the Tribunal, and given the circumstances of the applicant's leaving the premises, (assisted by police) it is not in the interests of the parties to have the matter revisited upon.
11. It is not clear why the Tribunal was not satisfied Ms Shahbazian's absence resulted in her case not being adequately put or why it was not in the interests of the parties (or at least the appellants) to have the matter revisit when the decision at first instance was made in the absence of any evidence or submissions from the appellants. It is clear from the appellants that this is why they have appealed. This is recorded in the notice of appeal and in their written and oral submissions in the appeal, which refer to a sense of injustice because the Tribunal has only heard "one side".
12. In summary, the Appeal Panel determined that the appellants should be given the opportunity to present their case through the appeal and to deny them the opportunity to do so would have worked an injustice. Therefore the Appeal Panel extended the time for the appellants to lodge the appeal.

Consideration

1. The first issue is whether the Tribunal erred in refusing the adjournment of the hearing in the circumstances of the case. The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present their case. The denial of procedural fairness is an error of law. Ms Shahbazian requested an adjournment on the morning of the hearing by telephone. Based on the information provided to the Tribunal, the adjournment was refused. In the absence of any other explanation, this was not an unreasonable course taken by the member. The matter was listed for hearing, there is no dispute Ms Shahbazian was notified of the hearing and the respondents attended the hearing and were ready to proceed. Accordingly, we are not satisfied there was a denial of procedural fairness by the Tribunal in refusing the adjournment although we accept, given the explanation now given by Ms Shahbazian in response to the set aside and in support of this appeal, that the appellants may have suffered a substantial miscarriage of justice warranting leave to appeal under cl 12(a) of Schedule 4 because the decision was "not fair and equitable".
2. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized 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."
3. 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 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.
4. As already noted, the appellants were directed to file and serve any material they wished to rely on by 3 July 2014. The only material filed was the written submission previously referred to.
5. There was a reference to text messages in the notice of appeal and during the hearing Mr Dalati said he could provide evidence that the respondents had lived in the unit for nearly two weeks. However, this evidence was not provided in accordance with the directions or at the hearing, which would have required leave in any event.
6. The appellants were given the opportunity to present their case at the hearing of the appeal but the only material provided was a submission, not otherwise substantiated, that the respondents had lived in their unit for nearly two weeks and the decision was therefore unfair. This was a factual matter disputed by Ms Degenhart. As noted in Collins v Urban at [79] to establish that a substantial miscarriage of justice may have occurred "it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable". The appellants were given this opportunity in the appeal but they failed to do so.
7. Even if there was substance to the submission that the respondents did not vacate the premises for nearly two weeks, this does not address the issue that the respondents vacated long before the end of the term of lease in acrimonious circumstances. The reasons record that police were involved. The appellants have not taken issue with this finding in their written submissions or the notice of appeal. We are therefore not satisfied that the decision made on 20 April 2015 resulted in "an injustice that is reasonably clear".
8. Having regard to these matters, we refuse leave to appeal and the appeal is dismissed.

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: 05 August 2015