Eskander v Saweris [2023] NSWCATCD 42 | Case summary

NCAT Consumer and Commercial|2023-05-11|Before: Bell P

Introduction

In these reasons I will refer to the applicant as the tenant and the respondent as the landlord.
On 11 April 2023, the Tribunal dismissed an application to set aside the decision of the Tribunal made on 21 November 2022 in matter RT 22/40873.
Brief reasons were given at the time.
The Tribunal has now received a request for written reasons pursuant to s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and drawn the Tribunal's attention to the Appeal Panel Decision of YDB v NSW Land and Housing Corporation [2023] NSWCATAP 55 at [56] to [65]. Those paragraphs state: Ground 4: Did the Tribunal provide adequate reasons in respect of the extension of time application? 56 YDB argued that the reasons for the extension of time application were inadequate in that they did not provide explanation as to what the grounds were and how it arrived at the conclusion which created a difficult task now for YDB to attempt to exercise her appeal rights. 57 The respondent contended, relying on the New South Wales Court of Appeal in Orr at [68], that there is no express statutory duty for the Tribunal to provide any (let alone detailed) reasons for its discretionary decisions. Even superior courts are not required to give reasons for every interlocutory decision and aspects "such as matters that necessarily call for estimation or impression" may require less or only allow for limited reasoning to be exposed. The Tribunal, exercising a discretionary evaluative judgment, was not required to detail each factor which was found to be relevant or irrelevant, nor was it required to make findings about each disputed piece of evidence. Nor, as a general proposition, do reasons need to be elaborate: they only need to go so far as necessary to indicate why the decision was made to enable them to exercise such rights in relation to the decision: Housing Commissioner of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386. 58 In our view, the Notice of Orders made by the Tribunal is not a statement of reasons under NCAT Act, s 62(3) but a notification of the decision. This is reflective of s 48 of the Administration Decisions Review Act 1997 (ADR) in respect of administratively reviewable decisions as defined in the ADR. 59 When a request for a written statement of reasons is made, the Tribunal is required to comply with NCAT Act, s 62(3) which is as follows: 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. 60 Section 62(3) is consistent with s 49 of the ADR. 61 Having regard to the statutory framework of the NCAT Act under which decisions are made in the Tribunal and the type of decisions under appeal in this matter, in our view there was no statutory obligation under the NCAT Act for the Tribunal to provide a detailed statement of reasons for the discretionary interlocutory decision to refuse the extension of time application. Absent a request under NCAT Act, s 62(3), the statutory obligation is to provide a notice of the decision: NCAT Act, s 62(1). This facilitates dealing effectively with the nature and "sheer volume of work undertaken by the Tribunals": see Orr at [70] (per Bell P). 62 Administratively, providing a short explanation of the decision on an interlocutory application in the Notice of Orders is of assistance to the parties and the Tribunal. However, when it comes to a review on appeal from that decision on the basis of inadequate reasons, in our view, having regard to the statutory framework in the NCAT Act and the nature or "quality of decision" (Basten JA in Resource Pacific Pty Ltd v Wilkinson [20143] NSWCA 33 at [48] referred to by Bell P in Orr at [66] and [70]) of the Tribunal on an interlocutory application, less strict standards (including compensation for "linguistic infelicities) should be applied than we might otherwise apply if we were reviewing a statement of reasons. 63 While we note the Notice of Orders is expressed in a very limited way, it was open to YDB to request written reasons under the NCAT Act, s 62(2) within 28 days of the decision of the Tribunal below. This course was available to YDB even after she obtained the assistance of Legal Aid. 64 In any event, read in context, the Tribunal was not satisfied on the evidence and submissions that the grounds for extending the time to make the set aside application were established. 65 Consequently, as the orders are a notice of the decision and no request was made for a statement of reasons, what appears in the orders made by the Tribunal is adequate and no question of law arise

Background to Set Aside Application

By application RT 22/40873 filed 12 September 2022 the landlord sought the following orders: "Section 106 - An order that the premises have been abandoned by the tenant on a specified date 11/09/2022 Section 107 - An order for the tenant to pay compensation for any loss caused by the abandonment of the residential premises $3045 Section 187(1)(c) - An order for the payment of an amount of money $2175 Section 187(1)(d) - An order as to compensation $4159.73 Section 187(1)(i) - A termination order or an order for the possession of premises".
The lengthy reasons for seeking those orders were, in summary: "Sections 106 & 187(1)(i) - I request an order of possession of my property as it is now clear the tenant has abandoned the premises and has left it in a bad state so I urgently need to get the premises back into a condition fit for a new tenant. As a consequence, I have been left in immense financial distress without the ability to confidently rectify the condition of my house, without having the tenant claim it's still occupied by him as has previously claimed several times. I urgently need to lease the house again as I'm on the verge of foreclosure so am in great need of legal possession of my rental property to move forward. On 8 Aug 2022 regarding the Conciliation Hearing for this same matter (RT 22/22/31959) [sic], the Tribunal Member, G. Bassett wished to grant me the order of possession as of that date. However, the tenant (Tamer Eskander) disputed it as he wanted the Member to back date it, which was denied resulting in the Member not granting the order and adjourned the matter for a Contested Hearing, which was supposed to be some time in September. I wish to have this order of possession effective immediately, not back dated (as was unsuccessfully demanded by the tenant in our previous 8 Aug hearing) denying me my legal right to the appropriate compensation for loss of rent in accordance with Section 51(3). I need to undergo substantial remediation to the rental property to get it back to its pre-tenancy condition before I could lease it out again so I would need to commence ASAP to have a chance at redeeming my current dire financial position by meeting my mortgage repayment obligations again to the bank with a paying tenant. … Section 187(1)(c) - The amount of $2,175 is for the tenants rent arrears of 5 weeks, from 21 June 2022 to 26 July 2022 at $435/week. Section 187(1)(d) - The total of $4,159.73 is compensation for damages, etc. by the tenant, which comprises of the following: - Damaged roller blind in living room + broken bedroom screen door lock/latch $565 - Reinstallation of original main door lock (which tenant illegally changed) $350 to gain access to the premises which was required for inspection purposes after tenants abandonment - Locksmith to conduct post tenancy re-keying of external doors only and mailbox lock $466.90 - End of lease clean $1,180. This also includes remediation of the damage caused by the tenants breach of contract arising from his extreme smoking inside the premises - Water damaged laundry $480 - 2 packages (car parts) the tenant deliberately sent back to sender (overseas), which he admitted to on video. This consisted of an Audi window regulator $634.43 and an Audi coolant tank $213.40 and - 2 car tyres the tenant vandalised $200 + $70 fuel to go to the only supplier who stocks that particular size & brand".
The matter was first listed for directions and conciliation on 26 September 2022.
At the hearing, which the tenant did not attend, the Tribunal made the usual directions for the filing of evidence. In addition, the Tribunal ordered the tenant to pay the landlord $2,610.00 on or before 11 October 2022 in respect of rental arrears to 1 August 2022 (Tribunal Order).
On 21 October 2022, the Tribunal Order not having been complied with, the landlord obtained a certificate under s 78 of the NCAT Act. Section 78 provides: 78 Recovery of amounts ordered to be paid (1) Recovery of non-penalty amounts For the purposes of the recovery of any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty), the amount is to be certified by a registrar. (2) A certificate given under this section must identify the person liable to pay the certified amount. (3) A certificate of a registrar that - (a) is given under subsection (1), and (b) is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate, operates as such a judgment. (4) Recovery of civil or other penalty amounts A civil or other penalty ordered to be paid by the Tribunal (other than for a contravention of a civil penalty provision of this Act) may be registered as a judgment debt in a court of competent jurisdiction and is enforceable accordingly.
The matter was listed for final hearing on 21 November 2022. The tenant did not file any documents pursuant to the Tribunal's directions. Again, the tenant did not appear. The Tribunal explicitly stated in its reasons for decision that it was satisfied that the notice of the hearing had been served on the tenant.
The Tribunal ordered the tenant to pay the landlord $2,561.90 immediately. Lengthy reasons were provided. In summary, the Tribunal made orders for compensation in respect of locks ($350.00), the supply and installation of a blind and broken screen door ($565.00), rekeying ($466.90) and cleaning ($1,180.00).
On 21 December 2022, that order not having been complied with, the landlord obtained a certificate under s 78 of the NCAT Act.

Set Aside Application

On 4 April 2023, the tenant applied to set aside the Tribunal Order. The application was made pursuant to cl 9 of the Civil and Administrative Tribunal Regulation 2022 (NCAT Regulation). The tenant stated that the decision was made in his absence which resulted in his case not being adequately put to the Tribunal. In answer to the question "Why were you absent when the Tribunal made the decision", the tenant stated: "The land lord put the application after unlawfly [sic - unlawfully] evacuate the unit on the 17th of July 2022. The land lord put his address as my current address even though I did not live there. The land lord did not provide the tribunal with anyother [sic] form to notify me".
In response to the statement "Describe in summary the case (evidence and arguments) you would have put to the Tribunal if you had not been absent?", the tenant stated: The order of the CAT issued in October 2022 has my previous address even though I has moved out in July attached the copy of the CAT order I got from my local court.
In the set aside application, the tenant states that he requires an extension of time, and further states that he only became aware of the NCAT order after "money has been taken out by the landlord using a garnish [sic - garnishee order]. However, he does not state when this was.

Consideration

Clause 9 of the NCAT Regulation provides: 9 Additional power to set aside or vary decision determining proceedings - the Act, s 90(2)(a) (1) In addition to a power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if - (a) all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, or (b) the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. … (2) The Tribunal may make an order under this section of its own motion or on the application of a party. (3) Unless the Tribunal grants an extension under the Act, section 41, an application for an order under this section must be made within 7 days after the decision concerned was made. (4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this section unless the Tribunal has - (a) given the parties an opportunity to make submissions about the proposed order, and (b) taken any submissions into account. (5) A party may not make an application for an order under this section to set aside or vary a decision of the Tribunal if - (a) an internal appeal or appeal to a court against the decision has been lodged or determined, or (b) an application for a judicial review of the decision has been made or determined. (6) A party may not, without the leave of the Tribunal, make an application for an order under this section to set aside or vary a decision of the Tribunal if the party has previously made an application under this section to have the decision set aside or varied. (7) If the Tribunal sets aside a decision under this section, it may also set aside orders that it made consequent on the decision that has been set aside. … (8) Proceedings for this section are prescribed for the Act, section 50(1)(d). Note - A hearing is not required for proceedings that are prescribed for the Act, section 50(1)(d). (9) This section does not limit a power of the Tribunal to set aside, revoke or vary its interlocutory decisions or other decisions that do not operate to determine proceedings".
There is no suggestion that the parties have consented to orders to set aside the Tribunal's decision. Accordingly, the application is considered under reg 9(1)(b) on the basis that the applicant to set aside was not present at the hearing. That means the tenant must satisfy the Tribunal of two matters, namely: 1. that the decision was made in his absence; and 2. that his absence resulted in the his case not being adequately put to the Tribunal.
I am satisfied that that the decision of 26 September 2022 was made in the tenant's absence.
However, I am not satisfied that the tenant's absence resulted in his case not being adequately put to the Tribunal. That is because the tenant still has not explained what his case would have been in relation to the rental arrears which were the subject of the Tribunal Order. The tenant has concentrated on the fact he was not given notice of the hearing and that "The land lord put the application after unlawfly [sic - unlawfully] evacuate the unit on the 17th of July 2022.
As to the lack of notice, r 13 of the Civil and Administrative Tribunal Rules 2014 (NSW) relevantly provides: Service, giving and lodgment of notices or documents (1) Application of rule This rule applies for the purposes of each of the following - (a) the Act and the statutory rules under the Act, (b) the Administrative Decisions Review Act 1997 and the regulations under that Act. (2) Means for service or giving of notices and documents A notice or document may be served on or given to a person or body - (a) by means of personal service, or (b) by posting a copy of the notice or document, addressed to the person or body - (i) to the person's or body's address for service, or (ii) if the person or body does not have an address for service, to the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), or (c) by leaving a copy of the notice or document, addressed to the person or body - (i) at the person's or body's address for service, or (ii) if the person does not have an address for service, at the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), or … (emphasis added)
I note in particular cl 13(2)(b)(ii) - the application and the notices of hearing were sent to the tenant's residential address last known to the landlord.
As to the "evacuation" point, I do not understand the submission.
The short point is that the tenant has not provided any evidence, or even a submission, about what he says about the claim for unpaid rent to 1 August 2022 which was the subject of the Tribunal Order.
The set aside application was supposed to have been filed within seven days of the Tribunal Order. The decision was made on 26 September 2022, and the set aside application made on 4 April 2023. Accordingly, it was filed more than 6 months late. The tenant says he did not find out about the 26 September 2022 decision until his account was garnisheed, but he does not even state when that was, in circumstances where the s 78 certificate was issued on 21 October 2022.
In my view, there is no utility in extending the time for filing the set aside application. This because the tenant has still not explained what case, if any, he would have brought, had he appeared at the hearing. He has not provided any submission or evidence why the outcome would be different if the original decision would be set aside and the hearing re-listed.

Conclusion

In the circumstances, I am not satisfied that the tenant's absence has resulted in the tenant's case not being adequately put to the Tribunal.

Orders

The Tribunal orders: 1. The order dismissing the set aside application made on 11 April 2023 is confirmed. 2. The order made on 26 September 2022 in matter RT 22/40573 remains in full force and effect.

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: 17 July 2023

Eskander v Saweris

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