Galea v Yazbek

Procedural history of proceedings between the parties in the Tribunal

1. On 1 February 2021, the respondent lodged application 21/04375 against the appellant seeking a variety of orders including compensation for goods wrongly taken or disposed of from the rented premises.
2. On 18 March 2021, the appellant filed an application 21/12576 seeking compensation for unpaid rent and the costs of disposing of rubbish from the respondent.
3. On 30 August 2021 both of those applications were listed for hearing by the Tribunal. The appellant appeared. The respondent did not. The respondent's application 21/04375 was dismissed due to there being no appearance by her under s 55(1)(c) of the NCAT Act. The written order sent to her advised that she had 7 days to apply for the application to be re-instated, if she could convince the Tribunal that she had a reasonable excuse for not attending.
4. On the same day, the Tribunal heard the appellant's application 21/12576 and made orders in his favour for the payment of $4,985.50 before 27 September 2021.
5. On 7 September 2021, the respondent filed an application to set aside the orders made in the appellant's favour in application 21/12576. The set aside application numbered 21/38127 did not refer to her dismissed application or seek to set aside its dismissal. The set aside application was out of time but time was extended for the making of the set aside application under s 41 of the NCAT Act. The set aside application resulted in the order in favour of the appellant in application 21/12576 being set aside. In its reasons for making that decision the Tribunal wrote: "The tenant's set aside application of RT21/12576 was listed today. Both parties attended the hearing. The landlord objected to the set aside order being made. I have considered the landlord's written submission provided in response to the set aside application. I find that the tenant did not attend the hearing on 30 August 2021 due to illness and the Tribunal is satisfied that her absence resulted in her case not be adequately put to the Tribunal. In the exercise of discretion, the Tribunal is satisfied that it is appropriate to set aside the decision because the tenant ought be granted a further opportunity to have the landlord's claims determined on the merits, rather than by default of her attendance at the hearing, especially given that the tenant has her brother in law assisting her and is confident that if given a further opportunity to have the matter heard, she will either attend herself or be represented if she is unwell."
6. There was no reference to application 21/04375.
7. After the set aside application was granted the appellant's application 21/12576 was allocated a new case number in accordance with the Tribunal's usual procedures: it was then numbered application 21/41958.
8. On 16 November 2021, the respondent filed a fresh application 21/47051 in which she sought compensation for the wrongful disposal and destruction of her goods by the appellant.
9. Those two applications were heard together by the Tribunal on 6 December 2021. It is the orders made by the Tribunal on that day, quoted in paragraph 1 above, which are the subject of this appeal.

Applicable legal principles in internal appeals

1. Section 80(2) of the NCAT Act states: 80 Making of internal appeals … (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
2. Clause 12(1) of Schedule 4 to the NCAT Act states with respect to decisions made in the CCD that: 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).
3. A question of law for the purposes of s 80(2)(b) may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also by taking into account an irrelevant consideration or not having regard to a relevant consideration. This includes not making a finding on an element or central issue that is required to be made out in order to claim an entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 at [45] (Full Fed Ct), [2000] FCA 1343, applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58.
4. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [13], the Appeal Panel said that the following are specifically included: 1. whether the Tribunal provided adequate reasons, which explain the Tribunal's findings of fact and how the Tribunal's ultimate conclusion is based on those findings of fact and relevant legal principle; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
5. That Appeal Panel stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations in favour of the respondent: Prendergast at [12].
6. The categories of errors of law that give rise to an appeal as of right, discussed in Prendergast are not exclusive.
7. With respect to the adequacy of reasons in a Tribunal context, in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [67] to [77] Bell P (as he then was) explored the quality and quantity of reasoning required in NCAT's reasons for decision (Ward JA at [109] agreeing). With respect to the minimum necessary characteristic, he observed, at [71]-[72]: "[71] That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (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, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. [72] Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed."
8. His Honour went on to discuss a series of cases which illustrate the expectations on the Tribunal to provide basic, understandable explanations for the conclusion it reached, of which Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187, per Fitzgerald P, is one example.
9. In the present appeal the appellant seeks leave to appeal on the basis that he suffered a substantial injustice because the decision of the Tribunal was not fair and equitable and was against the weight of the evidence.
10. Even if the appellant establishes that he may have suffered a substantial miscarriage of justice within clause 12 of Sch 4 to the NCAT Act, the Appeal Panel has a discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban [2014] NSWCATAP 17 at [84(2)] will come into play in the Panel's consideration of whether or not to exercise that discretion.

Questions of law identified by the Appeal Panel

1. In this case two issues that arise as a result of our consideration of the materials, namely: 1. whether the Tribunal had jurisdiction to hear and determine the respondent's application 21/47051 as it was out of time; and 2. whether the reasons for decision provided by the Tribunal were adequate.

Consideration

1. On its face, the compensation order made by the Tribunal was made between a landlord and a tenant with respect to the "disposal of the tenant's goods", in circumstances where that part of the RTA which had dealt with "Goods left on residential premises" namely, Part 6, Division 2 (ss 126 -135) had been repealed by the Fair Trading Legislation Amendment (Miscellaneous) Act 2018 (NSW). Those provisions were replaced by Part 3A (ss 31A-31B) of the Uncollected Goods Act 1995 (NSW), which commenced on 1 July 2020.

The Uncollected Goods Act

1. As a result, proceedings to recover compensation for the wrongful disposal of a tenant's goods should now be made under the Uncollected Goods Act. Among other things, s 5(2)(c) of that Act provides that: 5 When goods uncollected for purposes of Act … (2) Goods are also uncollected goods if - … (c) a landlord reasonably believes the goods have been abandoned or left behind by the tenant or an occupant of the premises after vacant possession of the premises is obtained or the premises are abandoned (within the meaning of the Residential Tenancies Act 2010), or
2. For the purposes of that Act, the definitions in s 3 provide that: depositor means the person who gives possession of goods (whether or not the person is the owner of the goods), and includes a bailor. receiver means the person who takes possession of goods, and includes a bailee. uncollected goods means goods that are uncollected as referred to in section 5.
3. Thus a tenant will be a depositor of uncollected goods, and a landlord will be a receiver for the purposes of the Uncollected Goods Act, where premises are abandoned and goods are left behind.
4. A receiver of uncollected goods has a number of options when seeking to dispose of the goods. The receiver may apply to the CCD for directions under s 31A of the Uncollected Goods Act, which enables the Tribunal to make orders for the sale and disposal of uncollected goods: see clause 3 of Sch 4 of the NCAT Act which allocates the Tribunal's function under the Uncollected Goods Act to the CCD. Alternately, the Act makes provision for a number of methods for disposing of uncollected goods following specified notice to the depositor, depending on the value of the good (see ss 20 to 22). Special provision is made with respect to personal documents in s 22A. Uncollected goods worth less than $1,000 are treated as low value uncollected goods and may be disposed of after giving at least 14 days notice to the depositor (s 20). Uncollected goods valued at more than $1,000 but less than $20,000, called medium value uncollected goods, require 28 days notice of intended disposal to the depositor (s 21). High value uncollected goods, valued at $20,000 or more may only be disposed of with a Tribunal order (s 22). All uncollected goods may be moved and stored in an appropriate manner. Perishable goods and rubbish may be disposed of without notice (s 24). Where uncollected goods are sold, the receiver is entitled to retain relevant charges and the balance if any is to be treated as unclaimed moneys under the Unclaimed Money Act 1995 (NSW).
5. Where uncollected goods are disposed of by a receiver without an order of the Tribunal, or without the depositor being given the requisite notice of intended disposal by the receiver, then a depositor may, by application to the Tribunal, claim, "compensation for uncollected goods disposed of by the receiver otherwise than in accordance with this Act": see s 31B(1)(a). This is precisely what the respondent appeared to be claiming when she filed her application for compensation on 16 November 2021.

When the events in issue occurred

1. There was no dispute between the parties that the events giving rise to the respondent's claim before the Tribunal, an abandonment of rented premises according to the appellant, and an illegal lock out and eviction according to the respondent, occurred in November 2000.
2. The uncollected goods remaining on the premises were disposed of on 2 January 2021.

Inadequate reasons

1. The fact that the Tribunal made an order in favour of the respondent points to the conclusion that the Tribunal accepted that she was wrongly evicted from the premises - thereby repudiating the tenancy agreement - and had not abandoned them. This is a matter of inference.
2. The only findings made by the Tribunal are that the goods to the value of $5,986.00 were disposed by the landlord without the appropriate notice. There are no findings concerning how the goods became uncollected and with respect to how the Uncollected Goods Act applies.
3. The legal basis on which the Tribunal made the order for compensation is not clear from the decision, which was made using the language applicable to residential tenancy disputes, rather than to disputes arising under the provisions of the Uncollected Goods Act. Application 21/47051 made no reference to the Uncollected Goods Act and only referenced RTA provisions, none of which related to the wrongful disposal of a tenant's goods. The Tribunal had no jurisdiction to make a compensation order for the disposal of uncollected goods under the RTA as Part 6, Division 2 was repealed before the events in issue occurred.
4. The jurisdiction of the CCD therefore arose under the Uncollected Goods Act.
5. The Tribunal's failure to articulate its understanding of the applicable law is itself a failure to give adequate reasons and constitutes an error of law.

Was the application under the Uncollected Goods Act out of time?

1. The respondent's application 21/47051 filed on 16 November 2021 appears to be out of time when considered as an application under s 31B of the Uncollected Goods Act.
2. Section 31B(2) provides that application had to be made "within the period prescribed by the Regulations." Clause 8 of the Uncollected Goods Regulation 2020 (NSW) then provides: 8 Applications for Tribunal orders (1) For the purposes of section 31B(2) of the Act, the following periods are prescribed - (a) for an application for an order under section 31B(1)(a) or (b) of the Act - (i) if the uncollected goods are low value uncollected goods or medium value uncollected goods - 60 days commencing on the relevant date, or (ii) if the uncollected goods are high value uncollected goods or personal documents - 90 days commencing on the relevant date, (b) for an application for an order under section 31B(1)(c) or (d) of the Act - 180 days commencing on the relevant date. (2) In this clause - high value uncollected goods has the same meaning as in section 22 of the Act. low value uncollected goods has the same meaning as in section 20 of the Act. medium value uncollected goods has the same meaning as in section 21 of the Act. personal documents has the same meaning as in section 22A of the Act. relevant date means - (a) if a notice under Part 3 of the Act was given to, or served on, the depositor or person who has an interest in the uncollected goods - the day on which the notice was given or served, or (b) in any other case - the day on which the uncollected goods were left in the possession of the receiver.
3. The values claimed by the appellant and found by the Tribunal put the value of the uncollected goods at medium value, meaning that an application for compensation under s 31B(1)(a) should have been made within 90 days of the relevant date. The parties do not agree on the date when the goods were left in possession of the respondent (or how that came about). They do agree that it occurred prior to the end of November 2020. Ninety days from the end of November takes one to 1 March 2021. The appellant filed application 21/47051 on 16 November 2021, some eight and a half months out of time. Being within time is a pre-condition of the Tribunal's jurisdiction unless an extension of time under s 41 of the NCAT is granted. In this case no application for an extension of time was made to or considered by the Tribunal below.
4. As noted above we raised the question as to whether application 21/47051 had been made out of time with the parties. We explained that, if it was, the Tribunal (and the Appeal Panel) had no jurisdiction to deal with the appellant's substantive application under the Uncollected Goods Act.
5. We outlined for the benefit of the parties our understanding of the procedural history of the disputes between them as explained above.
6. The appellant told us that she believed that she had been granted a rehearing with respect to her initial application, which had been made in time. The Tribunal record demonstrates that this is not the case, and the appellant's lodging of application 21/47051 on 16 November 2021 is indicative that she was aware of this.
7. The appellant also told us that she had been advised to lodge application 21/47051 by Tribunal staff. That does not assist her. Tribunal staff does not have the power to make decisions on the Tribunal's behalf and cannot make decisions allowing for applications to be made out of time.
8. The respondent did not make any submissions on this issue.
9. While the Tribunal does have power to grant an extension of time of under s 41 of the NCAT Act, no such application was made to or considered by it. Application 21/47051 was made out of time, with the result that the Tribunal had no jurisdiction to hear it: see Craig v Southern Australia (1995) 184 CLR 163 at 177-178. ; [1995] HCA 58; IK Chemists Pty v CHOF4 Artarmon Pty Ltd [2015] NSWCATAP 144 at [75]; and Jonsson v Arkway Pty Ltd and Anor [2003] NSWSC 815 at [13]. The Tribunal should not have heard the application. There is no indication from the record that the Tribunal was aware of the time issue. We conclude that the Tribunal wrongly determined application 21/47051when it had no jurisdiction to do so.

Should the Appeal Panel extend time for the making of this appeal?

1. As the Tribunal's jurisdiction to award compensation for the disposal of uncollected goods without notice arises under the Uncollected Goods Act, the time for bringing an appeal under r 25 of the NCAT Rules is 28 days. This is so because, despite the fact that the disposal arose from a residential tenancy agreement, proceeding under the Uncollected Goods Act are not 'residential proceedings" for the purpose of r 25: see the definition in r 4. As a consequence, as the Uncollected Goods Act is silent on the issue of when appeals are to be made, r 25(4)(c) requires that the appeal be made within 28 days.
2. The appellant sought an extension of time for the making of the appeal under s 41 of the NCAT Act. He explained that the delay had been caused by the intervening Christmas period, with its attendant public holidays, personal demands, and difficulties obtaining advice. The respondent opposed the granting of an extension of time.
3. Section 41 of the NCAT Act provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
4. The principles to be applied by the Appeal Panel when considering an extension of time in which to appeal were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]-[22]. The Appeal Pane noted the discretionary nature of a decision to extend time and said that the discretion must be exercised judicially. Among the factors to be taken into account when considering whether to extend time are (see - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55]; [2007] NSWCA 369 (per Basten JA)): 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).
5. In this case the appeal was filed 10 days late. That is not a lengthy delay. The appellant's explanation for the delay is understandable and we accept that difficulties obtaining appropriate advice can be experienced over the Christmas break.
6. There can be no doubt, given our finding below, that the Tribunal had no jurisdiction to hear and determine the respondent's initial application, or that the appellant will suffer an injustice if he is refused an extension of time and is unable to pursue his appeal. While we accept that the respondent will lose the benefit of a vested order in her favour, the reality is that order was made without jurisdiction. Allowing her to retain the benefit of the order would work an injustice on the appellant.
7. In those circumstances we will extend time for the making of the appeal.

Leave to appeal

1. As we have found an error of law which requires that the appeal be allowed, there is no need to consider whether leave to appeal on other grounds should be granted.

Conclusion

1. We have concluded that: 1. we should extend time to enable the appellant to appeal; 2. the Tribunal had no jurisdiction to hear this matter under the RTA; 3. while the Tribunal has power to hear applications of this type under the Uncollected Goods Act it had no jurisdiction in this case because application 21/47051 was made out of time; and 4. the Tribunal's reasons for decision are inadequate.
2. We will allow the appeal and set aside the order made by the Tribunal and dismiss the application instead. As the Tribunal does not have jurisdiction to hear application 21/47051 no benefit would be gained from remitting it for rehearing. The orders we propose to make will ensure finality in the proceedings.

Orders

1. We makes the following orders: 1. time for lodging the notice of appeal is extended until 17 January 2022; 2. the appeal is allowed; 3. the decision of the Tribunal is set aside and in substitution therefore application 21/47051 is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2022