El Ali v Beaini Enterprises Pty Ltd and Anor

NCAT Appeal Panel|2022-04-06

Solicitors: Roberts and Partners Lawyers (Second Appellant) Memcorp Lawyers Pty Ltd (Respondents) File Number(s): 2021/00361561 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 08 December 2021 Before: E Sarofim, General Member File Number(s): RT 21/42308

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 8 December 2021. The respondent is a landlord and the appellants are tenants / signatories under a lease for residential premises. A key issue in this appeal concerns who was the correct party to the Residential Tenancy Agreement and as a result the entity with standing to seek relief before the Tribunal in relation to the tenancy.
The Landlord, Beaini Enterprises Pty Ltd initially sought relief in the Consumer and Commercial Division of the Tribunal against the tenant Yates Holdings Victoria Pty Ltd and Nathan El Ali in October 2021 to enforce a termination notice dated 30 September 2021. During those proceedings and prior to hearing Nathan El Ali was removed as a respondent as he was not listed on the Residential Tenancy Agreement. During the hearing of the matter Yates Holdings Victoria Pty Ltd (Yates) through their legal representative confirmed that they were the appropriate tenant. Yates confirmed that they were in rental arrears. The arrears were in excess of the 14 days when the termination notice was issued and totalled $18,182 on the day of the hearing. In reply the tenant Yates challenged the application on the basis that the termination notice was not properly served.

The application before the Tribunal

In proceedings RT 21/42308 Beaini Enterprises Pty Limited initially sought orders against Yates Holdings Victoria and Nathan El Ali. Orders were sought under s 123, 175 and 87 of the Residential Tenancies Act 2010 (the RT Act) concerning the payment of an occupation fee, the payment of a rental bond and a termination order for non-payment of rent. Other claims were made in respect of water usage.
The reasons in the application for requesting an order were as follows: The tenant Effective Paid to date is the 1/06/2021 with 133 days in rent arrears amount of $16,397.00 until the 11th October 2021. A request for a hearing in regard the following: [sic] A termination of this tenancy and possession of the property Claim of bond money bond number (S484703-5) An order to pay rent arrears An order to pay outstanding water usage Water invoice period: 14/04/21 to 09/07/21 amount of $188.27 An order to list the tenant on the tenancy national data base Specific performance (SPO) order Collection of bond money Collection of occupies [sic] fees An order to relist the matter before the NSW Civil and Administrative Tribunal is being sought after please. ..
The Tribunal heard the application on 6 December 2021 and lawyers were engaged by the managing agents to represent Beaini as Landlord. Both Yates and Mr El Ali were initially listed as respondents to the proceedings but during the course of the hearing the Tribunal removed Mr El Ali as a respondent in the proceedings. The relevant passage of the hearing where this occurred is reproduced in the copy of the sound recording tendered before the Appeal Panel and agreed on by the parties to the Appeal. For the hearing Yates had been given leave to be legally represented. Mr Smith of Counsel appeared at hearing for Yates. Mr Fahd Solicitor appeared for Beaini. Prior to addressing this issue the Tribunal heard submissions from Beaini that Mr El Ali had signed the lease on behalf of Yates. In this regard Beaini relied upon s 126 of the Corporations Act (Cth) which provided for power to be exercised on behalf of a company by an individual acting with the company's express or implied authority. Beaini maintained at hearing that Yates was the tenant.
Yates maintained at hearing that (a) Yates was the proper tenant and that (b) the application should be dismissed because Yates was not properly served with the termination notice and by the time that it was received by Yates the date specified in the notice had passed. In addition, Yates submitted that there was a defect in the current proceedings because only one respondent (Yates) was a party to the proceedings even though two respondents (Yates and El Ali) had been named. The agreed transcript records the following: Mr Smith: No, there seems to have been a misunderstanding about the role Mr Nathan El-Ali has played in these proceedings. In fact we had thought he was named as a respondent to these proceedings. He is not a tenant and he is not a person in possession. Tribunal: Okay. Who is in possession? Mr Smith: Mr El-Ali's brother who also has the surname El-Ali. Mr Nathan El-Ali has been paying rent for at least some of the period during which the Residential Tenancy Agreement has been on foot. Tribunal: Okay. So what is your position as to whether Yates Holdings Victoria Pty Limited is the appropriate respondent. Do you have any issues with that? Mr Smith: No we accept it's the proper respondent.
Later in the hearing Yates made submissions about the defect in service of the termination notice as well as a second issue that the notice failed to name the second landlord's identity. During those submissions Mr Smith submitted: Mr Smith: … In relation to the rental arrears, it is accepted that Yates is the tenant under the Residential Tenancy Agreement and submissions which in my submission have little or no foundation the evidence that Mr El-Ali signed this Residential Tenancy Agreement on behalf of Yates are in my submission neither here nor there. … Yates has not paid the rental arrears because it was not properly served with the termination notice in a manner to that notice taking effect and now faces these allegations of fraud. It accepts that it is the tenant and is going to need to make up the arrears and there is some evidence, there is evidence that it has assets.
The Tribunal made orders on the day of the hearing and provided reasons two days later on 8 December 2021. The relevant parts of the reasons for the purposes of the appeal are as follows: On 09 Dec 2021 the following orders were made: 1. Beaini Corp Pty Ltd is joined as an Applicant. 2. The Applicant's have leave to be legally represented. 3. The tenant in this matter is YATES HOLDIGNS VICTORIA PTY LTD .. 7. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 8. The order for possession is suspended until 20 December 2021. 9. The tenant shall pay the landlord a daily occupation fee at the rate of $136.00 per day from the day after the termination, namely 9 December 2021 until the date vacant possession is given by the landlord. … 11. The tenant YATES HOLDINGS VICTORIA PTY LTD (xxx) Junction Road BEVERLY HILLS NSW 2209 Australia, is to pay the landlord BEAINI ENTERPRISES PTY LTD and Beaini Corp Pty Ltd C/- Australian Property Choice 432 Stoney Creek Road KINGSGROVE NSW 2208 Australia, the sum of $15,223.72 by two instalments as follows: -first payment $7500 by 20 Dec 2021 - second payment $7723.72 by 2 January 2022 Reasons: -Rent arrears capped at the Tribunal's jurisdictional limit of $15,000.00 -Water usage 10 July 2021 to 15 October 2021 $223.72 REASONS 2. .. The respondent was given leave to be legally represented on 2 December 2021. The respondent YATES HOLDINGS VICTORIA PTY LTD were represented by Mr Smith of Counsel, instructed by Roberts & Partners Lawyers. 3. Mr Fadh, Solicitor from Memcorp Lawyers Pty Limited, appeared for the applicant Beaini Enterprises Pty Ltd and he sought and was granted leave to appear. 4. The identity of the landlords and tenant in this matter appear to have been conflated at various points in time due to the involvement of incorporated entities and the individuals behind them at different material points in the life of the tenancy. 5. Nathan Ali was removed as a respondent in these proceeding as he is not listed as a tenant on the residential tenancy agreement dated 21 May 2019. 6. The residential tenancy agreement records the appropriate tenant as YATES HOLDIGNS VICTIORIA PTY LTD and it confirmed today through Mr Smith that it does not dispute that it is the appropriate tenant. Nor does the respondent dispute that it is in arrears. It has not provided an explanation for the arrears. The arrears were well in excess of 14 days when the notice of termination was issued on 30 September 2021 and were $18,182 on the day of the hearing. I am therefore satisfied that at the date of the notice the Landlord was entitled to issue a termination notice under section 87 for non-payment of rent.
The Tribunal considered and determined the defences raised by the respondent concerning the claimed defect in service on Yates and the discrepancy with two landlords being listed in the Residential Tenancy Agreement but only one in the application to the Tribunal. Those matters do not concern this appeal. The Tribunal considered adding the second landlord subject to the Solicitor for the first landlord obtaining instructions as there was a sufficient interest in the proceeding. The Tribunal exercised the discretion under s 113 of the RT Act to cure the defect in service on Yates. The reasons relevantly continue: … 17. The Tribunal received the following communication from the Respondent: We act for the respondent in the subject proceeding. The respondent's position, subject to the communication from the other landlord yet to be joined as a party being satisfactory, is as follows: 1. The respondent to pay a total of $15,000 in satisfaction of the rental arrears to the landlords by 13 December 2021. 2. The tenancy agreement between the parties be terminated effective from 14 January 2022. 3. The respondent to give vacant possession of the property 35A Junction Road Beverly Hills by 15 January 2022. 4. The proceedings be otherwise dismissed with no order as to costs. 18. The Tribunal received a communication from the director of Beaini Corp Pty Ltd as follows: 'I Elias Beaini, director of Beaini Corp Pty Ltd (ACN: 606 713 553) have instructed Mr Mema Fahd solicitor to appear for me in this matter and seek that the company Beaini Corp Pty Ltd be added as an applicant to the proceedings in the NCAT Consumer and Commercial Division (RT 21/42308) Yours sincerely Elias Beaini Beaini Corp Pty Ltd … 20. The Tribunal considers it entirely appropriate in these circumstance for Beaini Corp Pty Ltd to be added to the application. This is consistent with the guiding principle in this Tribunal that disputes that come before the Tribunal be determined in a just quick and cheap manner. …
The remainder of the reasons concern the orders made as set out above.

Notice of Appeal, history of appeal and subsequent proceedings

The appeal was commenced by Notice of Appeal filed 20 December 2021. The appeal named Alan El Ali as the appellant with Nathan El Ali named as his representative. The Notice of Appeal named a single respondent Beanini Enterprises Pty Ltd [sic]. The appeal sought to overturn a number of decisions of the Tribunal concerning various proceedings relating to the determination of the Residential Tenancy Agreement. Two Tribunal applications were referred to on the Notice: RT 21/42308 and RT 21/51342. Specifically Mr El Ali was seeking to overturn the decision of the Tribunal of 7 December 2021. That matter was listed for call-over and a stay hearing on 23 December 2021. Both appellant and respondent were given leave to be legally represented on the stay. The application for a stay was dismissed on 23 December 2021 due to the failure of the appellant to provide a copy of the Residential Tenancy Agreement. (2021/00361561). Various directions were made bringing the appeal back for a further call-over on 28 January 2022.
A separate application was made by Mr El Ali to set aside the orders of the Tribunal of 7 December 2021. That application was dismissed on 20 December 2021 because Mr El Ali had not provided a copy of a Residential Tenancy Agreement between himself as tenant and the landlords Beaini Corp Pty Ltd and Beaini Enterprises Pty Ltd. (RT 21/51342).
Separate to the above matters, on 10 December 2021 Mr Nathan El Ali filed an application with the Tribunal (RT21/50383) to be recognised as the tenant of the premises under s 77 of the RT Act. In the listing Notice dated 10 December 2021 a number of directions were made. The applicant failed to comply with the directions and the matter was dismissed at hearing on 14 January 2022 because the tenancy had been terminated on 7 December 2021 by the Tribunal's orders. A further request to stay the writ of possession was refused as the Tribunal determined that it did not have power to make the order.
Prior to the appeal callover on 28 January 2022 the matter was adjourned until 11 February 2022. At the callover on 11 February 2022 the Appeal Panel directed that Beaini Corp Pty Ltd be named as a respondent to the appeal as they were a party in the proceedings under appeal. Each respondent was given leave to be legally represented. The appeal was fixed for hearing on 6 April 2022 with standard direction made to the parties.
The Notice of Appeal listed the following grounds of appeal: Orders Challenged on Appeal- the member dismissed application RT 21/51342 to set aside orders made 7/1/2021 till our application is heard 14/01/2022 without proper consideration. [sic] Member reason was "not provided copy of residential tenancy agreement'. Had the member reviewed out [sic] application, he would have realised we were not provided with tenancy agreement and were excluded and never notified of the hearing determined 7/12/2021 even though we are the only occupants who paid bond, rents, repairs and all utilities charges. Grounds of Appeal: -we were not provided with a tenancy agreement, -we provided sufficient evidence and have lots more to prove our occupation and rental payments, -we were intentionally excluded from original application and still have not received copy of any orders.
The orders sought in the Notice of Appeal were as follows: Set aside 7/12/2021 orders pending outcome of scheduled hearing RT 21/50383
The appellants noted that they required leave to appeal and under this section in the Notice of Appeal provided the following: Leave to Appeal: we are the only occupants and have been since May 2019, paid bond, rent repair and all utilities charges but were not advised or joined in the proceedings which has resulted in orders on 7/12/2021. There is misapplication of justice as the occupants and sole payee of rent were not heard or were intentionally excluded. It is surprising that the member did not make orders for all other parties to explain such deliberate and likely illegal act. Those grounds were repeated under the various sections of the Notice of Appeal concerning leave to appeal, and the submission that the decision was against the weight of evidence.
An amended Notice of Appeal was filed by the appellant on 18 February 2022, after the date of the final callover on 11 February 2022. As such this amended Notice of Appeal has not been considered by the Appeal Panel prior to the hearing. The amended Notice of Appeal adds Yates Holding Victoria Pty Ltd as a second appellant and refers to decisions RT 21/42308 and RT 21/503786 as being the relevant decisions under appeal.
The grounds are produced as an annexure and set out that the appellants appeal from two decisions: (a) Member E Sarofim of 8 December 2021 in file RT 21/42308 (the substantive matter set out above), and (b) Member P Gardner of 14 January 2022 in file RT 21/50383.
The amended Notice of Appeal appeals the earlier decisions insofar as they: a. Upheld the Respondent's application in RT 21/42308 b. Ordered the second named appellant (Yates) to pay rental arrears of $15,223.72 to the Respondents, and c. Dismissed the first named appellant's (Mr El Ali) application in proceedings RT 21/50383.
The appellant submitted that the decision was not fair and equitable because the Tribunal did not determine who was the residential tenant of the premises, that Mr El Ali and his family were removed from the premises without being heard and a judgment debt was entered against Yates.
The appellants relied upon the Notice of Appeal filed 20 December 2021, the Amended Notice of Appeal filed 18 February 2022, written submissions filed 14 March 2021 and the copy of the section of the Transcript tendered at the appeal hearing on 6 April 2022.
The respondent relied upon their written submissions dated 24 January 2022, the Reply to Appeal dated 25 February 2022, further written submissions of 28 March 2022 attaching a USB stick of the transcript / sound recording, and further written submissions dated 5 April 2022.
The appellants also sought to tender fresh evidence.

Consideration of the Appeal

In considering the appeal, having set out the background and context we will revert to the terms Mr El Ali and Yates when identifying each of the appellants and the term respondents for the disposition of the Appeal.
Put plainly, an appeal is not a rehearing of a matter, but a reconsideration of the matter at first instance to examine whether the Tribunal erred in its approach to the evidence and material before it, and to determine whether in that approach and the conclusions that flow, the Tribunal fell into error. It does not matter whether, on the same evidence, we might have reached a different conclusion to the Tribunal. We set out the legal basis of appeals of this nature below.
This is an appeal brought under s 80 of the NCAT Act. By that section the appellant is able to bring an appeal as a right on any question of law or with the leave of the Appeal Panel on any other ground. The other grounds are set out in the provisions of cl 12 of Sch 4 of the NCAT Act. Clause 12 provides as follows: 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) 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). 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.

Question of Law

It is appropriate for the Appeal Panel to consider whether the grounds of appeal raise a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. In Prendergast, the Appeal Panel set out a non-exhaustive list of questions of law that might arise from Tribunal decisions. In summary, the questions of law identified are whether there has been a failure to provide proper reasons; whether the Tribunal identified the wrong issue or asked the wrong question; whether a wrong principle of law had been applied; whether there was a failure to afford procedural fairness; whether the Tribunal failed to take into account relevant considerations; whether the Tribunal took into account an irrelevant consideration; and whether there was no evidence to support a finding of fact; and whether the decision is so unreasonable that no reasonable decision-maker would make it.
The grounds of appeal raise questions of fact and law. The appeal appears to be based on a denial of procedural fairness in that Mr El Ai was not given the opportunity to put his evidence and case before the Tribunal and as a result was not given the opportunity to be heard. However we note that Mr El Ali was removed as a party to the proceedings in the Tribunal. Yates appeared and was legally represented by Counsel. Yates submitted that the Residential Tenancy Agreement was between the landlords and Yates as tenant. Whilst Mr El Ali might have been occupying the premises, he was not a party to the Residential Tenancy Agreement.
There was no evidence before the Tribunal concerning Mr El Ali being a party to the Agreement other than that he had signed the Agreement on behalf of Yates. There was no dispute that Mr El Ali and his family might have occupied the premises during the tenancy and the submission that when rent had been paid it was paid by him. The Tribunal focused on who were the proper parties to the Agreement. In this regard the Tribunal had regard to the submission / concession from Yates' Counsel that Yates were the proper tenant. The transcript provided the following on this point: Mr Smith: No, there seems to have been a misunderstanding about the role Mr Nathan El-Ali has played in these proceedings. In fact we had thought he was named s a respondent to these proceedings. He is not a tenant and he is not a person in possession. Tribunal: Okay. Who is in possession? Mr Smith: Mr El-Ali's brother who also has the surname El-Ali. Mr Nathan El-Ali has been paying rent for at least some of the period during which the Residential Tenancy Agreement has been on foot. Tribunal: Okay. So what is your position as to whether Yates Holdings Victoria Pty Limited is the appropriate respondent. Do you have any issues with that? Mr Smith: No we accept it's the proper respondent.
Because of this concession by Yates we infer that the Tribunal was (after hearing further from the parties) content to make the orders to characterise the proper parties to the application. Having done that and noting the concessions by Yates that if it did not succeed on the procedural grounds that it was running (concerning defects in the notice and insufficient time to respond), then it would agree to certain orders (as set out at [17] above), and the Tribunal resolved to finalise the matter.
Much of this appeal centres on what was put to the Tribunal by the parties' legal representatives. We are unable to discern any departure by the Tribunal from the submissions put to it by the legal representatives of the parties. The Tribunal had before it a lease which recorded the appropriate tenant as Yates Holdings Victoria Pty Ltd. Counsel for Yates confirmed that they did not dispute that Yates was the appropriate tenant. Whether Mr El Ali was actually paying rent was not a matter to be considered by the Tribunal. As the tenant on the Residential Tenancy Agreement the obligation to pay rent fell to Yates. How that obligation is met is not, in our view, material.
In the respondent's reply to appeal (which addresses the amended Notice of Appeal) the respondent submitted that there was no requirement to give Mr El Ali notice of the proceedings about the Beverly Hills premises, and no requirement to join Mr El Ali as a party to the proceeding and as a result no requirement to give Mr El Ali an opportunity to be heard.
The respondent submitted that the Tribunal did not err in the finding that the Residential Tenancy Agreement was between Yates and the Landlords because that was what the parties submitted and ultimately what Yates (as tenant) conceded liability for, being rent arrears for unpaid rent under the Agreement. The respondent relied upon the Tribunal's finding concerning s 126 (1) of the Corporations Act 2001 (Cth) that Mr El Ali was empowered to sign the agreement on behalf of Yates. Agent exercising a company's power to make contracts (1) A company's power to make, vary, ratify or discharge a contract may be exercised by an individual acting with the company's express or implied authority, and on behalf of the company. The power may be exercised without using a common seal.
The respondent submitted that there was no error by the Tribunal in respect of Mr El Ali. It was never disputed that he occupied the premises (to the extent such evidence was before the Tribunal), but as the proceedings were between the landlord and the tenant Mr El Ali had no role to play in the proceedings and no reason or right to be involved.
In respect of the ground challenging the order that Yates was liable for the rental arrears, the respondent submitted that there was no basis for that ground. Yates had provided no evidence to explain the rental arrears and as the appropriate respondent, it was liable for any rent arrears order. The Appeal Panel notes that Yates conceded this point before the Tribunal but now (via the amended Notice of Appeal) wishes to agitate the rent arrears argument.
The respondent submitted that the Tribunal did not err in that it did not fail to find that Mr El Ali was the occupant of the premises, but rather the proceedings heard on 7 December 2021 related to the Residential Tenancy Agreement for the premises, as between the landlord and tenant not the occupant.
In respect of the second application referred to in the amended Notice of Appeal (RT 21/50383) the respondent submitted that no error arose because as the tenancy had already been terminated on 8 December 2021 due to the earlier order of the Tribunal, no power existed to join Mr El Ali to the Agreement. In addition that order (in respect of the termination of the Agreement) had not at the time of the 14 January 2022 hearing been challenged.
The respondent submitted that all relevant orders of the Tribunal were fair and equitable and should not be disturbed on appeal. In addition the respondent submitted that Mr El Ali was aware of the proceedings, as his own statement which he sought to introduce as fresh evidence refers to receiving notification in or about October 2021 from the Tribunal that he had been named as a respondent in certain proceedings. That reference includes reference to proceedings RT 21/42308 which are proceedings the subject of this appeal.
The respondent opposed the granting of leave to receive the amended Notice of Appeal and submitted that in respect of proceedings referred to in that Notice of Appeal, Mr El Ali was not a party to two of the appeals referred to in the Notice. In accordance with s 80 (1) of the NCAT Act because he was not a party to the other two proceedings, he could not appeal. The only matter that Mr El Ali had standing in which to appeal in accordance with s 80 (1) was RT 21/50383. However the respondent submitted that there was no utility in that appeal because it concerned being joined to proceedings involving a tenancy that had been terminated.
Whilst the respondents conceded that there was standing to bring an appeal on RT 21/50383 they submitted the appeal should be dismissed because like the proceedings below there was no utility in making any order.
Reference was also made to the appellant's submission that the Tribunal should have found that the tenancy vested to Mr El Ali under s 77 (2) (a) of the RT Act. That section provides: 77 Recognition of certain persons as tenants (1) The Tribunal may, on application by a person who is occupying residential premises, make an order recognising the person as a tenant under a residential tenancy agreement or join the person as a party to any proceedings relating to the premises, or both. (2) The Tribunal may make an order if - (a) the sole tenant under the residential tenancy agreement to which the premises are subject has died, or (b) the tenant no longer occupies the premises.
The respondent submitted that no tenant had died. In addition the tenant remained in occupation of the premises from the commencement of the residential tenancy until January 2022 when it left after the tenancy was terminated.
At the hearing of the appeal the first appellant Mr Alan El Ali submitted that as at 22 May 2019 he was in possession of the premises as occupant with his family until their eviction in December 2021 by the Sheriff. The first appellant maintained the position that Mr El Ali was never given notice of the proceedings. The first appellant submitted that the notice was given to Nathan El Ali rather than Alan El Ali.
The appellants referred in submissions to the case of John Alexander Clubs Pty Ltd v White City Tennis Club Limited [2010] HCA 19 at [131] -[136] where another party sought to be joined. Walker Corporation's submission: joinder of necessary parties 131. Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct [80]. The Court of Appeal's orders directly affected Walker Corporation. The majority of the Court of Appeal (Macfarlan JA, Giles JA concurring) erred when it held to the contrary[81]. 132. In News Ltd v Australian Rugby Football League Ltd the Full Federal Court (Lockhart, von Doussa and Sackville JJ) said[82]: "Where the orders sought establish or recognise a proprietary or security interest in land, chattels or a monetary fund, all persons who have or claim an interest in the subject matter are necessary parties. This is because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest." 133. The relief claimed and granted - a constructive trust and a transfer of the land subject to the trust to the Club so as to make the interest transferred indefeasible on registration - directly affects the interests of any other person, like Walker Corporation, claiming an interest in the land, because orders in the Club's favour would, to a corresponding extent, be detrimental to those other persons. The Court of Appeal majority then said: "The appeal has only resolved the issues which arose between [the Club] and [JACS]."[83] That would be true if only personal remedies had been granted; but the constructive trust, a proprietary remedy, was granted in a way which resolved issues against Walker Corporation through creating indefeasible proprietary rights without its being heard. 134. The Court of Appeal majority also erred in saying: "Walker Corporation's claim that it has an equitable interest in the land ranking in priority to that of the [Club] may be pursued by it in separate proceedings against the [Club]."[84] Walker Corporation's claim was not merely that its equitable interest ranked in priority to the Club's interest in the Option Land. One of its claims was that the Club never had any interest in the Option Land at all and that no constructive trust should have been declared because of the existence of its equitable interest of which the Club had notice both before the option was exercised and before the Court of Appeal's declaration of constructive trust. Indeed, Walker Corporation was entitled to claim, if it wished, that the Club's substantive case was insufficiently strong to succeed at all, whatever the remedy available if it did succeed to any extent. Walker Corporation was entitled to call evidence against that substantive case. Even if it did not wish to do that, it was entitled to be heard on the weaknesses in the substantive case. Counsel for the Club criticised the lateness of Walker Corporation's submission about calling evidence, which was made on the second day of the appeal to this Court. It may have been late, but it is sound. 135. The Court of Appeal majority's belief that adequate protection of Walker Corporation's position would be achieved by pursuing its claim to an equitable interest in "separate proceedings" took no account of s 63 of the Supreme Court Act 1970 (NSW). Section 63 provides: "The [Supreme Court] shall grant, either absolutely or on terms, all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided." The question is not whether any problem arising in the original proceedings could be resolved in separate proceedings, but, as explained above, whether that problem should have been resolved in the original proceedings without the need for separate proceedings. 136. The Court of Appeal majority next said that, in the separate proceedings in which Walker Corporation could pursue its claim that its Mortgage ranked in priority to the Club's constructive trust, "it would be open to Walker Corporation to seek interim relief preserving the status quo pending final determination of its claim."[85] That supports the view, contrary to what the Court of Appeal majority initially said, that its orders directly affected Walker Corporation, for here the Court of Appeal majority recognised that an interlocutory injunction of a judge in another Division of the Supreme Court was necessary to stop Walker Corporation's rights being taken away from it. The wisdom of the rule, which is about to be dealt with, that a person directly affected by an order in proceedings to which that person was not party is entitled as of right to have it set aside is thus demonstrated: it is a more efficient course than having to institute separate proceedings calling for an interlocutory injunction and an undertaking as to damages.
The appellants referred to the reference by the Court in the case of Walker Corp (as part of the joint High Court Judgment in John Alexander Clubs) that one can have an interest in property if a Court makes an order affecting someone who is not a party.
The appellants submitted that the parties and the Member understood that Mr El Ali was in possession not Yates. It was submitted that as the proceedings concerned possession of the premises then Mr El Ali at that time should have been served and heard in the proceedings. They submitted that whilst the lease gave Yates the right to occupy the premises, and that whilst the lease was signed it was never given effect to as Yates never occupied the premises.
In respect of the respondent's and the Tribunal's reliance on s 126 of the Corporations Act the appellants submitted that there was no evidence that Nathan El Ali had any authority from Yates to sign the lease on behalf of the Company.
In respect of s 77 of the RT Act, (see [50] above), the appellants submitted at the hearing that whilst proceedings had been finalised (and the Residential Tenancy Agreement is now terminated), relief could still be sought as a residual matter. It was submitted that in this regard writs remained to be executed.
The appellants submitted that Mr El Ali may be joined to the proceedings even after the proceedings are dismissed. This was because if he is able to show a sufficient case for the exercise of the Tribunal's discretion. In this regard reliance was made on the following passage from White City Tennis Club Ltd v John Alexander's Clubs Pty Ltd (No 2) [2009] NSWCA 194 prior to the matter going to the High Court. At [23]: 23 In the circumstances, it is not necessary to determine whether Walker Corporation has an interest in the land, the nature of the interest (if any) and whether it has priority over the interest of the appellant. Nor is it necessary to determine whether Walker Corporation would now be entitled, given the history of the proceedings only briefly touched on above, to assert that interest against the appellant in separate proceedings. Assuming, without deciding, that this Court would have power to join Walker Corporation as a third respondent in the proceedings, on its own motion filed following entry of judgment, such a power would be discretionary and no sufficient case has been demonstrated for an exercise of the power favourable to Walker Corporation. Accordingly, the first order sought in its notice of motion of 11 June 2009 should be refused.
We note that this case only reinforces the principle that the Court has a discretion, and that after this the overall case between John Alexander Clubs, White City and Walker was decided by the High Court. Walker had established that all of these parties were affected by the Court's discretion because there was a constructive trust involving Walker. In such circumstances the High Court found that they should have been joined to the proceedings. That was because unlike the present matter which involves the termination of a tenancy where the Tribunal was dealing with the parties to a lease, Walker dealt with a party having an ongoing interest. The interest was in something that persisted, land rather than an interest in a tenancy which had been terminated, possession given over, and was now occupied by other tenants under a fresh residential tenancy agreement.
The appellants made various submissions that the concept of joinder as referred to in the Uniform Civil Procedure Rules (UCPR) was equally applicable to these proceedings. English provisions dealing with the Civil Procedure Rule similar to the UCPR in New South Wales were also referred to by the appellants in written and oral submissions. The cases however referred to the party to be joined having something that could contribute to the recovery of a judgment debt post default judgment being entered. Again we note that these proceedings concern a Residential Tenancy Agreement where the parties to the Agreement were determined (by the submissions put before the Tribunal) to be Yates and the landlords.
The appellants also made submissions that the position was analogous to a cross claim in that courts had found that a cross claim may be filed even after judgment had been given in the principal proceedings. One of the matters considered by Brereton J in the case of Accom Finance Pty Ltd v Kowalczuk [2006] NSWSC 730 was that because the judgment for monies had not yet been executed, there was still a matter in which the cross claim can be pressed. Again we note that in the current matter, the agreement has been terminated and possession given up.
The solicitor for Yates submitted that they are setting aside the order for rent arrears. However, the Tribunal noted that at the time of the hearing in December 2021 Mr Smith appearing for Yates conceded that it was the proper tenant and liable for the rental arrears. We find that on this appeal the appellants are bound by the manner in which Mr Smith of counsel conducted the case at first instance.
Mr Horowitz appearing for the respondents submitted that the appellants have sought to put on fresh evidence which establishes that Mr Alan El Ali received notice of the proceedings. Nathan El Ali was aware of the proceedings but did not participate because he was removed from the proceedings. It was submitted that because Nathan El Ali was aware that the Tribunal can take action on the tenancy then Alan El Ali would also have been aware.
The respondents submitted that s 123 of the RT Act provided no rights or remedies for the appellants in the current context. 123 Liability of tenant remaining in possession after termination (1) A tenant who fails to comply with an order for possession of the Tribunal is liable to pay an occupation fee to the landlord for the period the tenant remains in possession of the residential premises after the date the tenant is required to vacate the premises. (2) The occupation fee payable is an amount equal to the rent that would have been payable for that period if the residential tenancy agreement had not been terminated. (3) The amount of the occupation fee may be deducted from the rental bond paid by the tenant for the residential premises. (4) The Tribunal may, on application by the landlord, order the tenant to pay to the landlord an amount of occupation fee.
The respondents submitted that the RT Act does not give any statutory rights to an occupier under the RT Act. The submission was elaborated upon to note that persons affected by orders do not always have a statutory remedy before the Tribunal and a right to be joined to proceedings.
In respect of the cases relied upon by the appellants, the respondents submitted that the current matter is not analogous such as where the occupiers maintain an interest or where the party can claim an interest. There is no land, chattels etc involved.
The respondent submitted that this appeal is governed by Schedule 4 Part 6 Cl 12 (2) (b) of the NCAT Act and can only consider an error of law established. (2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if - (a) …, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order.
The respondent submitted that the arguments now being ventilated by the appellants were only raised in the appeal for the first time, and this is contrary to the provisions as set out in Coulton v Holcombe [1986] HCA 33 that arguments being raised on appeal for the first time should only be allowed in exceptional circumstances. 15. The traditional requirement that the power to receive further evidence on an appeal by way of rehearing be exercised "on special grounds" does not preclude the power from being properly described and treated as a "full discretionary" one (see, e.g., Barham v. Inder (1925) 42 N.S.W.WN 146, at p 147). It must, of course, be exercised with due regard to the considerations which make it generally undesirable that the admission of further evidence be permitted at the appellate stage and to the requirement that there exist "special grounds" which must, at the least, be sufficiently cogent to outweigh the weight to be given to those considerations in the circumstances of the case. As has been seen, the members of the Court of Appeal identified and stressed the importance of those considerations. At the same time, however, their Honours were properly conscious of the impossibility of laying down a priori what will be a sufficiently special ground to justify the reception of further evidence (see Sir George Jessel M.R. (Cotton and Thesiger L.JJ. concurring), in In re Chennell (1878) 8 ChD 492, at p 505) or what circumstances will warrant permitting amendment of a notice of appeal to raise a new point at the appellate stage. Rigid judge-made rules should not be permitted to override the effect of a statutory conferral of general discretionary powers (see, generally, Norbis v. Norbis). In a case where there are countervailing considerations or special grounds favouring the exercise of such a full statutory discretion in a way which will allow the amendment of a notice of appeal to raise a new point or the receipt of further evidence, the question whether the discretion should be so exercised "is largely a matter of degree, and there is no precise formula which gives a ready answer" (per Lord Pearson in Murphy v. Stone-Wallwork (Charlton) Ltd. (1969) 1 WLR 1023, at p 1036; see also Mulholland v. Mitchell (1971) AC 666, at pp 676, 679; Martin v. Abbott Australasia Pty. Ltd. (1981) 2 NSWLR 430, at p 436). Where, notwithstanding the general undesirability of admitting further evidence on appeal because there ought to be finality in litigation, the scales are finely balanced, the guiding principle must be the search for justice in the particular circumstances of the individual case (see Burston v. Melbourne and Metropolitan Tramways Board [1948] HCA 36; (1948) 78 CLR 143, at p 167). 16. Some or all of the general considerations militating against allowing a new point to be raised by an appellant and receiving further evidence in relation to it are negatived or muted by the particular circumstances of the present case. The case is not one in which there was a tactical decision not to raise the new point at first instance and to keep it in reserve for the appeal. As has been seen, the reason why the point was not raised at first instance was that it was overlooked by counsel. I have already indicated that I do not find that oversight beyond understanding. … 18. There remains the primary consideration militating against allowing the amendment and receiving further evidence, namely, the need, in the interests of both the public and particular litigants, that there be finality in litigation. That consideration sounds somewhat strangely in the present case where it is advanced in support of an appeal to this Court challenging a discretionary decision about a matter of practice and procedure made by a superior appellate court in the course of proceedings before it. That aside, the consideration is of but muted significance in a group action such as the present where the new point concerns the validity of a general notification issued by a public authority in the purported exercise of its statutory powers and where the question of the validity of that notification could be raised in other proceedings. In such a case, there is much to be said for the view that it is in the interests of the public and conducive to the overall finality of litigation between the competing groups that a genuine challenge to the validity of such a general notification be resolved as expeditiously as possible. 19. Their Honours specifically identified "three considerations special to this case" which they saw as supporting the grant of leave to amend and to lead further evidence. Those three considerations are related. The first was that the issue which the first respondents sought to raise "touches upon the public law of the State". It involves the validity of a public notification by a statutory authority precluding further applications for licences to use the public waters of the system. The second was that there was another appeal listed before the Court of Appeal "involving another water site in which the same point may be raised". The third was that, a matter of public law being involved, the wider community had a legitimate interest in it.
We observe that the issues in the current proceedings are not matters of significant public importance as referred to by the High Court in Coulton. The respondents referred to the concessions made by the legal representative for Yates during the hearing before the Tribunal and noted that Yates were legally represented by both Solicitors and Counsel. They submitted that the argument ventilated before the Tribunal that the lease was signed by someone with authority cannot now be resiled upon on appeal. In doing so the respondents conceded that an agent cannot confer authority on another.
In respect of the appellants' submission that the Tribunal should have found that the tenancy vested in Mr El Ali under s 77 (2) (a) of the RT Act, the respondents argued that this was not supported by evidence of what had transpired at the hearing before the Tribunal. We observed that this matter was not supported by the evidence of what transpired before the Tribunal. No transcript or sound recording of the relevant part of the proceeding to substantiate the appellants' submission was provided to the Appeal Panel.
In closing the respondents indicated that they did not object to the tender of Alan El Ali's statement in relation to the specific paragraphs referred to in the respondent's submissions.
In reply the appellants submitted that the order made for possession directly effects the appellants. A submission was made that a tenant (as a matter of principle) has an interest in land.
A submission was made that Coulton did not apply because the appeal was primarily based on a lack of procedural fairness, which raises a question of law and an error of law if established.
In this regard we note from [35] of the appellant's written submissions that the case centred on a denial of procedural fairness. The central submission was as follows: 35. Mr Elali was the tenant and occupant premises, but he received no notice of the proceedings. The proceedings clearly affect Mr Elali's interests because he was an occupant in the Premises, and an adverse decision would, and did, result in Mr Elali and his family's sudden removal from the Premises. It was incumbent on the Tribunal to allow Mr Elali an opportunity to be heard, which did not happen.

Further consideration of the appeal

In respect of the provision of the fresh evidence we decline to receive that material. There is no reason provided either in submissions or at hearing as to why that evidence (if relevant) could not have been provided at the time of the hearing with reasonable diligence. If anything, the evidence goes against the appellants' case. Whilst it could be argued that one appellant did not have standing to lodge that material once that party was removed from the proceedings, this issue is bound up with the overall substance of this appeal.
As we have noted the legal representatives for the parties put a submission to the Tribunal that Yates was the proper respondent. Yates legal representative conceded this matter. Yates did not put on any evidence that the claimed rental arrears were without foundation, nor did it submit that in such circumstances there was no basis to issue the termination notice. Yates' position was that there was a defect in the notice and a defect in service.
In our view the Tribunal was entitled to take into account the submission put before it as to who were the proper parties to the application to the Tribunal. Whilst Mr El Ali had signed the Residential Tenancy Agreement the position put was that he had signed it on behalf of Yates. It was only in subsequent applications to the Tribunal that these alternate arguments were put. If Yates was not the tenant (as now claimed by both appellants on appeal) then this does not explain why Yates was named in the Agreement as a tenant. It was uncontroversial that Mr El Ali had indicated to the landlord's agent that the lease would need to be in the name of the Company. To the extent that it might have resolved the issue around who was the tenant, the reason for this arrangement was not pursued at the hearing from which this appeal arises. That was because the legal representatives for the named tenant made a submission (not a concession) to the Tribunal. The concession was made later in respect of the payment of the rent arrears.
Counsel for Yates before the Tribunal on two occasions during the hearing confirmed the position that (a) 'Our position is that Yates is the tenant under the Residential Tenancy Agreement', and (b) (when asked by the Tribunal whether Yates was the appropriate respondent) stated: 'we accept it's the proper respondent'.
The appellants appear to have conflated the terms tenant and occupier. At [14] c. of their written submission reference is made to 'Nathan (El Ali) also indicated that the tenant would be a company'. At [15] of those submissions: 'For the term of the lease, rental payments were paid or otherwise organised to be paid, by Nathan'. We note that at some stage in 2021 rental payments ceased and as such the Notice of Termination issued. At [35] of those submissions the appellants appear to concede that Mr El Ali was an occupier not a tenant of the premises under the lease.
In a matter where the Tribunal deals with the case before it and has regard to the submissions of the legal representatives of the parties, it is difficult to discern where an error of law might arise other than not affording a party a right to be heard. A Tribunal could in such circumstances have regard to and rely on an irrelevant consideration or ask itself the wrong question in determining a matter. However, from an examination of the transcript of the proceedings there is in our view no evidence that the Tribunal departed from anything other than an orthodox approach to the matter and arguments before it.
In determining the matter at first instance in our view the Tribunal appropriately clarified matters at the outset of the hearing with the legal representatives. The Tribunal was entitled to act on the case before it in the manner in which the case was argued by the parties, which in our view it did.
The issue as to who was the proper tenant was clarified before the Tribunal as a preliminary point. Whilst the initial listing and the issues of service had raised some questions over the proper identity of the tenant, this was clarified by the legal representative for Yates, who was named as the tenant on the Residential Tenancy Agreement. Prior to the hearing of this appeal and the filing of the amended Notice of Appeal, no argument to the contrary had been put by Yates.
Consistent with the reasoning of the High Court in Coulton we find that there is no basis to give leave for the appellants to now run a different case on appeal than the case run before the Tribunal. This finding applies especially to Yates who was found by the Tribunal on the available evidence and submissions, to be the tenant under the residential tenancy agreement.
In respect of any denial of procedural fairness, the Appeal Panel must consider the practical injustice arising if such a claim can be made out. As noted in Raslan v Pan [2015] NSWCATAP 12 at [28] (citing Re Minister for Immigration and Multicultural Affairs: Ex parte Lam (2003) CLR 1 at [37]) the focus of an enquiry about procedural fairness is on avoiding "practical injustice". It is not "an abstract notion". It is therefore relevant to consider whether the alleged breach of procedural fairness would have made any difference to the outcome of the case: Stead v State Government Insurance Commission [1986] HCA 54; at 145.
We note that there was no denial of the rental arrears and the issuing of the Notice of Termination on that basis. We are unsure what in those circumstances (noting that the liability to pay rent arose under the lease not the Notice) practical injustice if any arises.
We agree with the findings of the Tribunal on the basis of the evidence and material before it. As a result we cannot discern any error in the approach of the Tribunal which would constitute an error of law, or so as to be against the weight of the evidence.
For completeness, having considered the decision of the Tribunal dated 8 December 2021, in our view it complies with the requirements of s 62 (3) of the NCAT Act. 62 Tribunal to give notice of decision and provide written reasons on request (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following - (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.
The Tribunal provided reasons a couple of days after the hearing. The reasons for decision set out the applicable law.

Decision against the weight of evidence

This ground was not argued by the appellants however it was inferred in the implied finding (by removing Mr El Ali as a party) that the Tribunal had made a decision against the weight of evidence. In our view this argument is not made out. The Tribunal, as we have found, relied on the matters put to it which were not controversial between the parties. Those matters being that Yates was the proper respondent, Yates was the tenant on the agreement and Yates had conceded a failure to pay rent resulting in rent arrears.
In summary, we are not satisfied that the appellants have established that the finding was against the weight of evidence.
In the case of Collins v Urban [2014] NSWCATAP 17 the Appeal Panel dealt with what constitutes a substantial miscarriage of justice on appeal. At [76] to [79] the Appeal Panel observed: 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). If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (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, Mainteck Services 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].
The appellant has not established that the finding of the Tribunal was not open to it on the available evidence. The matter in our view was never a matter about the Tribunal falling into error. The appeal appeared to be based around a technical issue with the residential tenancy agreement whereas the occupiers and the tenant liable under the agreement, had become enmeshed or otherwise intertwined. Once this issue was removed (by the submissions of Yates at hearing), there was no basis for the Tribunal to revisit that matter further. At all times Yates was named as a party in the proceedings below.
Because of the finding that we have made on the Tribunal's decision in RT 21/42308 in our view it is not possible to interfere in any manner with the findings of the Tribunal (differently constituted) in proceedings RT 21/50383. Any appeal in proceedings RT 21/50383 has no basis while the termination order in RT 21/42308 remains. That aspect of the amended Notice of Appeal must also be dismissed.
The appellant has not established that the "evidence in its totality so strongly preponderates against the conclusion found by the Tribunal". As indicated above, in our view the weight of evidence supports the conclusion by the Tribunal. For these reasons we do not find any error by the Tribunal.
Consequently, leave to appeal should be refused: see cl 12(1) Sch 4 of the NCAT Act and Collins v Urban at [77].
On a final point we note that by the time that the appeal was commenced, the tenancy had been terminated, possession of the premises had been given over to the landlord, and the occupiers (Mr El Ali and his family) had, (as was submitted during the appeal hearing) acquired premises elsewhere.
The case of Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 239 (Feeney) considered the utility in entertaining an appeal which was moot. Whilst there were remaining issues between the parties in the current matter, because events overtook the appeal prior to its lodgement (in the absence of any successful stay order) in our view this could lead to a finding that the Appeal is moot. The Appeal Panel in Feeney considered the utility of pursuing an appeal solely on an issue of public importance. At [29] - [32] the Appeal Panel observed: 29. The Secretary urged the Appeal Panel to determine the appeal because it raises a question of general importance to all public sector agencies about the meaning and operation of s 60(1)(e) of the GIPA Act. The first instance decision in these proceedings was the first time the Tribunal had considered the meaning of that paragraph. The only previous decision of the Appeal Panel addressing s 60 is Commissioner of Police v Danis [2017] NSWCATAP 7 (Danis). Section s 60 was amended to add s 60(1)(e) after that decision had been delivered. According to the Secretary, the Tribunal interpreted s 60(1)(e) too narrowly and inconsistently with the Appeal Panel's interpretation of s 60 in Danis. 30. In addition, the issue of the proper construction of s 60(1)(e) of the GIPA Act was said to be a significant one for the Secretary because of the number of subpoenas, statutory orders and notices issued to the Secretary since the amendment and the number of formal and informal access applications under the GIPA Act. Since the introduction of s 60(1)(e) in November 2018, the Secretary has refused to deal with 83 access applications in reliance on that provision. (Affidavit of Jodie Cobbin dated 22 June 2020.) 31. The grounds of appeal involve an issue of construction having a significance beyond the immediate rights of the parties. That is a factor in favour of determining this appeal. The impact of the Tribunal's decision on the time it takes for an agency to process a GIPA application, is reflective of the significance of the legal question in dispute. However, this is not a case where the Tribunal's decision is plainly wrong and can be disposed of quickly. Nor are there other proceeding on foot where the questions of law identified by the Secretary would be pivotal. 32. The single factor in favour of determining this moot appeal is that it raises a question of general importance to all public sector agencies about the proper meaning of s 60(1)(e) of the GIPA Act. For the reasons we have given, that factor is insufficient to displace the general rule that such appeals should not be entertained. Orders (1) The appeal is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) as misconceived or lacking in substance.
The case of NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15 also considered this issue. At [13] - [14] the Administrative Decisions Tribunal (ADT) Appeal Panel observed: 13 While we regard each of these points as valid, it would not be appropriate in the circumstances of this case to answer a question which is "merely moot, theoretical, abstract, hypothetical and advisory": Victims Compensation Fund Corporation v District Court of New South Wales and Anor [2002] NSWCA 355 at [27] per Heydon JA (with whom Sheller JA and Einstein J agreed). In Miller v Commissioner of Police NSW [2004] NSWCA 356 the Court of Appeal said that it "would not deliver what would, in effect, be an advisory opinion on an issue which had become moot." The Court went on to say that, "Courts do not entertain appeals on questions which would 'produce no foreseeable consequences for the parties'". These principles were recently endorsed by the Supreme Court of Western Australia in Rams Mortgage Corporation Ltd v Skipworth [2008] WASCA 148. 14 In Harrington v Rich [2008] FCAFC 61 at [36], the Federal Court declined to express a view in relation to a moot appeal because the proceedings had been resolved and no substantive issue remained to be determined. In this case, there is another reason for declining to exercise any discretion we may have to determine a moot appeal. In our view, there is a real question as to whether the Department's appeal is against an "appealable decision". Section 113(1) of the ADT Act allows a party to appeal to the Appeal Panel against an appealable decision of the Tribunal. An appealable decision is defined in s 112 of the ADT Act:
Whilst we do not make a finding that the appeal is moot, we note that the Appeal has been run on different arguments than those put before the Tribunal in the proceedings at first instance. In addition, as we have observed the Appeal concerns matters which have now been overtaken by subsequent events, and the utility of reventilating them, especially when no evidence was adduced as to the finding of rental arrears or the basis to issue the Notice of Termination creates a situation where there would appear to be little utility in reopening the matter, even if we were to find a basis at law which we do not.

Orders

The Appeal Panel makes the following orders: 1. Leave is granted to file the amended Notice of Appeal dated 18 February 2022. 2. The application for leave to appeal is refused. 3. The appeal is otherwise dismissed. 4. If any party desires to make an application for its costs of the appeal: 1. 2. A. that party is to so inform the other party within 14 days of the date of these reasons. 3. B. the applicant for costs is to lodge with the Appeal Panel and serve on the respondent to the costs' application any written submissions of no more than five pages on or before 14 days from the date of these reasons. 4. C. the respondent to any costs' application is to lodge with the Appeal Panel and serve on the applicant for costs any written submissions of no more than five pages on or before 28 days from the date of these reasons. 5. D. any reply submissions limited to three pages are to be lodged with the Appeal Panel and served on the other party within 35 days of the date of these reasons. 6. E. the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs' application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers.

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. 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

Amendments 05 October 2022 - Amended First Appellant Counsel from 'P Lim' To 'P Lin'. 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 October 2022

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