This is an internal appeal of Mr Michael Fox and Ms Natasha Dumas against a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 30 March 2017 (the Decision). The Tribunal terminated the residential tenancy agreement between Mr Fox and Ms Dumas (the tenants) and Vaucluse Bowling Club Ltd (the landlord), ordered the tenants to pay the sum of $3,385.71 for rent owed under the residential tenancy agreement for the period 16 February 2017 to 30 March 2017, and further ordered that the tenants give possession of the premises to the landlord immediately.
In its orders, the Tribunal also indicated that it was satisfied in accordance with s 89(5) of the Residential Tenancies Act 2010 (the RT Act) that the tenants had frequently failed to pay rent owing for the residential premises.
The order for possession was suspended until 6 April 2017, and subsequently stayed by the Appeal Panel.
For the following reasons, the Appeal Panel has decided to dismiss the appeal. To the extent that the tenants seek leave to appeal for reasons other than an error of law, leave is refused.
It follows that the stay on the order for possession should be lifted with immediate effect.
[2]
Preliminary
There are a number of preliminary matters to address. The first relates to the evidence sought to be relied on by the tenants at the hearing. Prior to the first directions hearing, on 13 June 2016, the tenants filed a bundle of documents with the Tribunal. The tenants failed to provide these documents to the landlord or its agent. At the appeal hearing, we provided a copy of these materials to the landlord's agent, and adjourned to allow their agent time to consider the documents. Upon resumption of the hearing, no objection was made to the matter proceeding with the tenants relying on those documents.
The second matter was the tenant's failure to comply with the directions of the Appeal Panel of 15 June 2016. Those directions provided for filing and the provision to the landlord of any documents the tenants wished to rely on at the appeal hearing. We note that the tenants had asked for an extension of the timetable prior to the hearing, and that they were informed that any issue about extending the timetable would be made at the hearing of the appeal. However, at the hearing, the tenants indicated that they were ready to proceed, and did not wish to file or rely on any further documents.
It is appropriate to briefly indicate the materials filed by the tenants and relied on at the appeal hearing. The documents included overdue electricity accounts; correspondence between the tenants and their electricity provider about whether or not there was more than one meter at the premises; correspondence between the tenants and the landlord about a notice of termination; this correspondence included an indication that the tenants would be listed on the Trading Reference Australia Database, which may affect their ability to rent properties in the future. Relevantly for the purposes of the appeal, the tenants included handwritten rental ledgers, together with various St George Bank Internet payment receipts evidencing rental payments.
Finally, we note that the landlord claimed at the hearing that the Notice of Appeal had not been filed within the 14 days required by the Tribunal's Rules. This submission is correct. Rule 25(4) of the Civil and Administrative Tribunal Rules 2014 relevantly states that, unless the Tribunal grants an extension under s 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act), an external or internal appeal must be lodged, in the case of an internal appeal against a decision made in residential proceedings, within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision.
The Notice of Appeal was filed on 6 June 2017. The Notice indicates that notice of the Decision was received on 26 May 2017. That is not correct. The Tribunal's files indicate that the decision was sent to Ms Dumas at her email address on 30 March 2017, and Ms Dumas told us that this was correct. Neither Ms Dumas nor Mr Fox could explain why their Notice of Appeal indicated otherwise.
In the circumstances, we find that the Notice of Appeal was filed on 6 June 2017, in circumstances where the tenants were notified of the Decision on 30 March 2017. Accordingly, the Notice of Appeal was filed approximately seven weeks late.
We asked the tenants why there had been such a delay in filing their appeal. As we understood their position, the tenants were overcome with anxiety about losing their home, and were highly stressed.
The principles governing an extension of time appear in the Appeal panel decision of Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [3]. Generally, in an application for an extension of time to appeal. the Appeal Panel will be required to consider:
1. The length of the delay;
2. The reason for the delay;
3. The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
4. The extent of any prejudice suffered by the respondent to the appeal.
As the tenants' prospects of success is a relevant factor to take into consideration in granting an extension of time to file the Notice of Appeal, we shall defer consideration of whether or not to grant an extension of time until the conclusion of these reasons.
[3]
The Notice of Appeal
The Notice of Appeal was filed on 6 June 2017. In summary, two grounds of appeal are agitated. The first is that the Decision was "in error due to inaccuracy of information" provided by the landlord's agent. In particular, the tenants submit that the Tribunal's finding that they had frequently failed to pay their rent was based on an incorrect date of commencement of the residential tenancy agreement.
The second ground of appeal was that the termination was "retaliatory", presumably a reference to s 115 of the RT Act. Section 115(1) provides that the Tribunal may, on application by a tenant, or when considering an application for a termination order or in relation to a termination notice, declare that a termination notice has no effect, or refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application.
This ground can be disposed of immediately. No application has been made by the tenants seeking a declaration that the termination notice had no effect. Nor did the tenants, when the Tribunal was considering the landlord's application for termination, seek such a declaration. In this respect, we note that the tenants did not appear at the Tribunal hearing below.
The tenants also state that they are asking for leave to appeal because the Decision was not fair and equitable, was against the weight of the evidence, and there was significant new evidence now available that was not reasonably available at the time of the hearing.
In addition, the tenants have listed in the Notice of Appeal the following orders they say the Appeal Panel should make if they were successful on the appeal. For convenience, we have numbered each order:
1. Continuation of tenancy
2. New lease agreement including resolution of commenced occupation/payment dates.
3. Rebate for overpayment of electricity.
4. Separate electricity meter required.
5. Failing that, new agreement on electricity payment.
6. Assigned caretaker role to be included in new agreement or arrangement.
Orders (2), (5) and (6) are not orders which the Appeal Panel, or the Tribunal could make. They are misconceived. Order (1) may have been made indirectly had the landlord been unsuccessful before the Tribunal and/or the appeal allowed. Orders (3) and (4) would have required a separate application by the tenants and could not be made in the present appeal.
[4]
The landlord's Reply
The landlord filed its Reply to the Notice of Appeal on 9 June 2017. In summary, the landlord submits that the order was made by the Tribunal on 30 March 2017 under s 89(5) because the tenants, during the course of 2016, had repeatedly fallen into rental arrears. The landlord states that the tenants had a history of failing to acknowledge any forms of communication by its agent. The landlord submits that the Notice of Appeal lodged on 6 June 2017, together with an application for a stay of the orders of 30 March 2017, was "another attempt by the tenant[s] to delay vacating the premises under the orders made on 30 March 2017". In other, irrelevant matters, the landlord submits that:
1. It has been advised by police that the tenants are known to them;
2. Its agent and its agent's employees have endured "abuse, intimidation and harassment".
Neither of these matters, even if true and had been supported by evidence, are relevant to the disposition of this appeal.
Attached to the Reply is a copy of the tenants' rental ledger maintained by the landlord's agent who was before the Tribunal.
[5]
The nature of the appeal
It is appropriate to briefly make some observations about the role of the Appeal Panel in appeals of this nature. We are concerned with the correctness of the Decision of the Tribunal of 30 March 2017. We are not considering, as claimed by the tenants, whether the landlord responded to their correspondence, or whether or not the tenants were paying for electricity not used by them. These were not matters that were before the Tribunal: the tenants had not filed their own applications in respect of these matters, nor had they appeared at the hearing before the Tribunal to raise them.
Nor are we concerned with whether or not the tenants 'abused, intimidated or harassed' its agent. These were not matters that were before the Tribunal: the landlord had not filed an application in respect of these matters, nor had it raised them at the hearing below. Indeed, as is stated in Mr Caldwell-Eyles' statutory declaration of 9 June 2017,the landlord "is now" considering whether to commence a 'separate application in the Tribunal seeking relief in respect of breaches by the tenants of s 90 of the RT Act'.
In summary, as we tried to emphasise during the hearing, our role is to consider whether or not the Tribunal erred in reaching its conclusions, in making the orders that it did, or the process that it followed in reaching its conclusions.
Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Consumer and Commercial Division of the Tribunal may arise. That section states that an appeal may be made as of right on any question of law, or with leave of the appeal panel on any other grounds (s 80(2)(b)).
[6]
Question of law
The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right and noted at [11] that, in circumstances where appellants are not legally represented, it is apposite to approach the issue by looking at the grounds of appeal generally. In addition, without expressing exhaustively possible questions of law, the Appeal Panel referred at [13] to the following as constituting errors of law:
1. Whether there has been a failure to provide proper reasons.
2. Whether the Tribunal identified the wrong issue or asked the wrong question.
3. Whether a wrong principle of law has been applied.
4. Whether there was a failure to afford procedural fairness.
5. Whether the Tribunal failed to take into account a relevant (mandatory) consideration.
6. Whether the Tribunal took into account an irrelevant consideration.
7. Whether there was no evidence to support a finding of fact.
8. Whether the decision was so unreasonable that no reasonable decision-maker would have made it.
We have carefully considered the matters set out in the tenants' notice of appeal. In our view, there is nothing in the Notice of Appeal, or said at the appeal hearing, which suggests that the tenants have an arguable question of law. In our view the appellant requires leave of the Appeal Panel for his appeal to be heard.
[7]
Leave to appeal
Schedule 4, cl 12 of the NCAT Act says that in an internal appeal in the Consumer and Commercial Division an Appeal Panel may grant leave only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
1. The decision of the Tribunal under appeal was not fair and equitable, or
2. The decision of the Tribunal under appeal was against the weight of evidence; or
3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The principles to be applied by the Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17, an Appeal Panel of the Tribunal conducted a review of the relevant cases at [65] - [79] and concluded at [84]:
84. The general principles derived from these cases can be summarised as follows:
(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
As was further explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]:
Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
The tenants state in their Notice of Appeal that they are seeking leave to appeal. They acknowledge that the Appeal Panel can only give leave if it is satisfied that they may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, the decision was against the weight of the evidence, or that significant new evidence was now available that was not reasonably available at the time of the hearing.
In relation to the decision not being fair and equitable, the tenants state:
Decision was based on insufficient evidence. evidence not considered due to relevant details not included by realtor for consideration by Tribunal. This lack of information was prejudicial to our case. This would lead to an inaccurate weighing of evidence.
In relation to the decision being against the weight of the evidence, the tenants state:
What evidence did you give at the hearing? What documents did you show the Tribunal?
Not present due to health issues.
Partner unable to cope with the situation on her own.
What evidence did the other party give? What documents did the other party show the Tribunal?
Unaware in attendance and lack of information subsequently requested from realtor that was not provided on request.
What evidence to the tribunal have given more weight to? Why?
Inability to attend meant that evidence in our favour was not Presented, thus no weight could be given to it. It is hoped that this evidence will be accepted to be given now to support our claim for continued residency at the address.
In relation to significant new evidence now being available that was not reasonably available at the time of the hearing, the tenants state that they wanted to produce to the Tribunal, and rely on at the hearing, bank statements, emails from Energy Australia, and emails from the landlord's agent in relation to rental arrears and termination of the tenancy. The tenants state that the evidence was not included previously:
due to receiving clerk at NCAT front desk stating the relevant documentation was not necessary. Documentation was present but not attached due to insistence of clerk that only the document of appeal was necessary.
[8]
Consideration
The tenants appeal from the decision of the Tribunal to:
1. Terminate the residential tenancy agreement;
2. To order them to give vacant possession of the premises the landlord; and
3. To order them to pay the sum of $3,385.71 for rent owed under the residential tenancy agreement for the period 16 February 2017 to 30 March 2017.
The tenants also say that the Tribunal erred in finding that it was satisfied in accordance with s 89(5) of the RT Act that the tenants had frequently failed to pay rent owing for the premises.
The tenants agreed at the appeal hearing that the sum of $3,385.71 was in fact owing, and that it had now been paid. Accordingly, this finding and order has no significance or relevance for the appeal.
In relation to the orders to terminate the residential tenancy agreement and the consequent order to give vacant possession of the premises, the tenants have provided no evidence at the hearing, nor on appeal, which would cause the Appeal Panel to find that there was any error by the Tribunal in reaching this conclusion. A submission was made that the tenants in fact had a residential tenancy agreement with a party other than the landlord as found by the Tribunal, but no probative evidence about this was produced. Nor was there any claim made that the notice of termination relied on by the Tribunal was not served in accordance with the rules or ineffective for some other reason. Indeed, the notice of termination was not in evidence on appeal.
The singular issue agitated by the tenants was the fact that the Tribunal made a finding pursuant to s 89(5) of the RT Act. Section 89 relevantly provides that:
(5) The Tribunal may, on application by a landlord, make a termination order despite subsection (2) or (3) if it is satisfied that the tenant has frequently failed to pay rent owing for the residential premises on or before the day set out in the residential tenancy agreement.
(6) If the Tribunal makes a termination order as referred to in subsection (5), a warrant for possession may be issued as a result of that order, even if the tenant has paid all rent owing or complied with a repayment plan.
The difficulty facing the tenants is that they did not appear at the hearing below nor present any evidence to the Tribunal. As to their absence at the Tribunal hearing, the tenants stated in the Notice of Appeal that they were not present due to health issues, and that Ms Dumas was unable to cope with the situation on her own. At the Appeal hearing, the tenants stated that they did not attend the Tribunal hearing because they were "stressed", "really stressed", that they "couldn't go" and "didn't realise it was so important".
There were a variety of other matters raised at the appeal hearing, including the contributions that the tenants had purportedly made to renovating the property in their caretaker role, and their provision of certain items which improved the value of the premises, such as pavers. We were unable to discern or identify any error of law in the Tribunal's reasoning or processes, nor did the tenants identify any.
Based on the documentary evidence before it, and the oral submissions of the tenants, the Appeal Panel is not satisfied that the Tribunal made any error of law in its Decision.
Nor is the Appeal Panel satisfied that leave should be granted to the tenants in respect of any of the other matters agitated in in their Notice of Appeal or at the appeal hearing. In this respect, we have considered the grounds of appeal advanced by the tenants together and their oral submissions both individually and cumulatively. We do not consider they have raised an issue of principle, or a question of public importance, or matters of administration or policy which might have general application. Nor do we consider that they have established an injustice which is reasonably clear, that the Tribunal made a factual error that was unreasonably arrived at or clearly mistaken, or that the Tribunal went about its 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.
In the circumstances the application for leave to appeal should be refused, and the appeal dismissed.
As to the application for an extension of time for filing of the Notice of Appeal, as we have decided to dismiss the appeal, and have found that there is no merit in the tenants' appeal, we consider that leave to extend the time the following the Notice of Appeal should be refused.
[9]
Costs
There is one remaining matter to consider. The landlord sought an order, in the event that the appeal was unsuccessful, that the tenants pay its costs of the appeal.
At the hearing, the landlord's agent indicated that if the landlord was successful, that is if the tenants were unsuccessful, it sought an order pursuant s 60 of the NCAT Act that the tenants pay its costs.
Section 60 relevantly provides that:
(1) Each party to proceedings in the Tribunal is to pay the party's own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),
(g) any other matter that the Tribunal considers relevant.
In Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 the Appeal Panel stated at [43]:
"Section 60 has been considered in many recent decisions: see for instance CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48; and Rose Nettis Pty Ltd v Three Tall Trees Pty Ltd [2015] NSWCATAP 51. As the Appeal Panel noted in eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]:
"The authorities considering the meaning of the expression "special circumstances" were recently reviewed in CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]- [31]. From those authorities, it can be seen that "special circumstances" do not have to be extraordinary or exceptional. Further, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs."
In summary, "special circumstances" are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional: Mergerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11].
In our view, nothing has been advanced to warrant a finding that the circumstances of this application are anything out of the ordinary.
Accordingly, the application for costs is dismissed.
[10]
Orders
The Appeal Panel orders that:
1. The appeal is dismissed.
2. Leave to appear on an error other than a question of law is refused.
3. The application for an extension of time in which to file the Notice of Appeal is refused.
4. The respondent's application for costs is dismissed.
5. The stay on the orders of the Tribunal for possession of the premises is lifted.
[11]
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.
Principal 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
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: 28 July 2017