Godla v Sundaramurthy

Availability of appeal

1. By virtue of s 80 of the NCAT Act the tenant may appeal against the decisions of the Tribunal as of right on a question of law or, with the leave of the Appeal Panel, on other grounds.
2. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act, leave to appeal may only be granted under s 80(2)(b): 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. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred.
4. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
5. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.
6. The Notice of Appeal was lodged one day after the period of 14 days specified in rule 25(4) of the Civil and Administrative Tribunal Rules 2014 for the lodgement of an internal appeal against a decision made in residential proceedings, and the tenant requires an extension of time.

Notice of Appeal

1. The tenant's Notice of Appeal stated two grounds of appeal, being denial of procedural fairness, and the failure of the landlords/agent to fulfil their obligation to replace the secured car park remote.
2. The tenant sought leave to appeal, on the grounds that the decision was not fair and equitable; that it was against the weight of evidence; and that there was significant new evidence.
3. The tenant applied for an extension of time to lodge the appeal, stating that he had made an application to set aside and stay the orders, however that was refused and he now wished to appeal.
4. The tenant sought that orders be made on the appeal that the order for possession be suspended until the end of May, or that the tenancy be renewed for a further 6 months.

Reply to Appeal

1. The landlords' Reply to the Appeal dated 21 March 2017 states that the tenant was at that date 33 days in arrears; the garage remote had not been replaced by strata; and that leave to appeal should not be granted as the tenant is still in arrears, and the notice of appeal was not lodged until after the date by which the tenant was ordered to provide vacant possession. The landlords opposed an extension of time on the ground that the notice of appeal was not lodged until 3 days after vacant possession was required.

Application for adjournment

1. On 21 April 2017 by email the tenant requested an adjournment of the appeal hearing to after 22 May 2017. He was advised that there was insufficient time to consider the request prior to the hearing and that the request would be placed on the file, and he could pursue the adjournment request at the hearing. The tenant did so, stating as his grounds for seeking an adjournment that he was unwell, having been assaulted on Friday evening; that he had not been able to get a copy of the sound recording of the first instance hearing; and that he has other things in his life, namely working 10 hours a day as a software consultant and driving, and having a hearing for his parenting matter on 15 and 16 May 2017.
2. The tenant stated that he had received a copy of the sound recording of the hearing on 11 April 2017. He had not informed the respondents, or provided a copy of the recording to the respondents and the Tribunal. In support of the claim that he was unwell the tenant provided a copy of a Discharge Referral from Royal Prince Alfred Hospital printed on 23 April 2017 which refers to "assault by passenger earlier today ~ 1830", and "Driving car Strangled from behind, forearm across throat". The document records that there was sign of no head injury or neck pain; there was worsening chest pain; and records paracetamol and ibuprofen as the treatment plan. The tenant provided a printout confirming that he has a hearing listed for 15 and 16 May 2017 in the Federal Circuit Court.
3. The landlords' agent opposed the application for an adjournment, stating that he had had to come to the Tribunal 7 times for these matters. He accepted that the tenant had now paid to 20 April 2017 and the rent arrears had been cleared, however the owner wants the property back and wants the matter resolved.
4. The Appeal Panel refused the application for an adjournment, advising that reasons would be provided later. The following are the reasons for the refusal of the adjournment.
5. As the Appeal Panel observed in Donna O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22]: "…a number of principles apply to applications for an adjournment: (1)matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2)an application for an adjournment should be seen as the exceptional rather than the ordinary course; (3)where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment.
6. The Appeal Panel was not satisfied that an adjournment was warranted on medical grounds. The Discharge Referral does not indicate any ongoing medical issue other than chest pain, with analgesics, and does not state that the tenant would be unfit for work or other commitments for any specified period of time. Secondly, the tenant's evidence as to the availability of the sound recording was equivocal. In an email to the Tribunal on 5 April 2017 he stated that he had been advised he would receive the recording on 6 or 7 April, and thus would not be able to comply with the direction of 23 March 2017 that he provide his documents in support of the appeal including the sound recording by 7 April 2017. In an email of 21 April 2017 the tenant advised the Tribunal that he had received the sound recording on 11 April 2017. The tenant was not able to explain why he did not inform the landlords of the timing, or why he did not provide a copy of the sound recording when he received it, so that it would be available at the hearing of the appeal. The Appeal Panel accepts that the tenant has forthcoming Federal Circuit Court proceedings on 15 and 16 May 2017, and that this would be stressful for him and his family. His payment of the rent arrears is a condition of the stay of the order for vacant possession, however long it takes for the appeal proceedings to be resolved.
7. Those are personal factors to be weighed in favour and against the granting of an adjournment. An additional factor weighing against an adjournment was that adjournment of the appeal hearing would further delay resolution of the matters in dispute in the proceedings, which would impact not only on the parties, but on the proper management by the Tribunal of the resources available to it in terms of the allocation of hearing time. The Appeal Panel is conscious of the general principle that matters should proceed on the date fixed for hearing, and an application for an adjournment should be seen as the exception rather than the ordinary course.
8. The Appeal Panel was not satisfied that adjourning the hearing would be consistent with the guiding principle in s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) to facilitate the just, quick and cheap resolution of the real issues in the proceedings, or with the direction in s 36(4) of the NCAT Act that practice and procedure be implemented so as to facilitate the resolution of the issues in such a way that the cost to the parties and to the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings.
9. After the Appeal Panel advised the parties of the decision to refuse the application for an adjournment of the hearing, there was a short adjournment to enable the tenant to prepare to put his submissions in support of the appeal.

Submissions on the appeal

1. The tenant submitted that he was denied procedural fairness as he did not have an opportunity to explain about his reasons for non-payment of rent, or the opportunity to explain that the termination application was brought on false grounds, namely the dispute about replacement of the garage remote. He had attempted unsuccessfully to resolve the issue about the replacement. The Tribunal Member did not ask him what evidence he had, and only wanted to discuss the rent arrears. There was no evidence of a rent ledger until after the agent showed the Tribunal Member photographs of the termination notice. The tenant accepted that he was in arrears in payment of rent at the time of the hearing, and stated that he was not able to pay $3130 at the time, but had paid $2000 on 8 March 2017. The Member should have given him an opportunity to make an application for rent reduction and adjourn so the matters could be heard together. He has now lodged an application for rent reduction on 13 March 2017, and the hearing is listed for 17 May 2017.
2. In a statutory declaration affirmed on 21 March 2017 the tenant states that he sees the landlords' application as a defence against the failure to replace a lost secured car park remote which has been outstanding since September 2016 and notified on 9 December 2016. The strata has quoted him $530 for replacement of the secured car park remote, which he says is a ridiculous price, and he was quoted $180 on 9 December 2016.
3. The landlords' agent submitted that the termination notice was not related to the dispute about the remote. The tenant had reported the remote as lost or stolen 3 months earlier. The Tribunal Member had listened to the tenant about the remote, however holding back rent because of that matter was not sufficient reason.

Extension of time

1. The tenant lodged his appeal on 16 March 2017, stating he received the Tribunal Member's reasons dated 27 February 2017 on 2 March 2017. The Notice of Appeal was lodged one day after the period of 14 days specified in rule 25(4) of the Civil and Administrative Tribunal Rules 2014 for the lodgement of an internal appeal against a decision made in residential proceedings. The landlords' agent opposed the grant of leave under s 41 of the NCAT Act, however there was no indication of any prejudice caused to the landlords by the late lodgement of the appeal. The Appeal Panel is satisfied that in the interests of determining the issues raised in the appeal that the time for lodging the appeal should be extended.

Whether there was an error on a question of law

1. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel identified the following as examples of questions of law: 1. A failure to provide proper reasons; 2. The identification of the wrong issue or asking the wrong question; 3. The application of a wrong principle of law; 4. A failure to afford procedural fairness; 5. The failure to take into account relevant (i.e., mandatory) consideration; 6. The Tribunal taking into account an irrelevant consideration; and 7. There being no evidence to support a finding of fact; and 8. The decision being so unreasonable that no reasonable decision-maker would make it.
2. The Grounds of Appeal raise a possible question of law, namely denial of procedural fairness. The complaint of the tenant is that the Member did not given him an opportunity to present any evidence and kept cutting him off when he was explaining the reasons for non-payment of rent.
3. The Member's reasons indicate that he was aware of the tenant's dispute with the landlords about the remote. At paragraph 17 of his reasons the Member states that in response to an invitation to explain the reasons for not paying rent in accordance with the residential tenancy agreement the tenant provided an explanation. The explanation was that he was in dispute with the landlord about the missing remote device, and he contended he should not be obliged to pay rent while that issue remained unresolved. Further, at paragraph 18, the Member states that, in the context of the discussion about his capacity to pay rent arrears and future rent, the tenant kept coming back to the issue of the garage remote despite several warnings that that issue had no relevance to the issues to be determined.
4. The Member's reasons confirm that not only did the tenant have the opportunity to raise the issue with the Member at the hearing, but that he did so. Further, in his statement in the Notice of Appeal as to reasons why the Appeal Panel should grant leave to appeal, the tenant states that he now understands that a rent strike is not acceptable. The tenant informed the Appeal Panel that he had not provided to the Member his correspondence with the landlords' agent concerning the remote, in particular the email of 2 February 2017 (provided with the appeal documents) in which he states that he will reduce the rent by $25 per week until he has a replacement key for the car park.
5. In circumstances where the tenant did not provide relevant and available evidence to the Tribunal at first instance, and was given the opportunity during the hearing to explain why he had not paid rent in accordance with the residential tenancy agreement, there is no basis for the tenant's complaint that he was denied procedural fairness because he did not have the opportunity to explain his position on this issue to the Member.
6. The tenant had not provided a copy of the sound recording to the Appeal Panel or the landlords as directed, and while his evidence was that he received it on 11 April 2017, he did not have a copy of the sound recording with him at the hearing. The only issue raised by the tenant as to the way the hearing was conducted that might constitute a denial of procedural fairness was in relation to whether he was given a fair opportunity to put his case about his reasons for not paying rent in accordance with the residential tenancy agreement. For the reasons above, the Appeal Panel is satisfied that the tenant had that opportunity.
7. The tenant was not able to identify any other issue as to how the hearing was conducted other than his assertion that the Member should have asked him for his evidence. Section 38 of the NCAT Act imposes an obligation on the Member to ensure that the parties to proceedings understand the nature of the proceedings, explain any aspect of procedure, and ensure that parties have a reasonable opportunity to be heard. However, the tenant had an obligation to provide the evidence on which he relied in response to the opportunity provided by the Member (recorded at paragraph 17) to explain why he had not paid rent, and the notice of hearing included the statement that the parties should bring to the hearing all the material and documents on which they wanted to rely. The tenant accepted at the appeal hearing that he had not provided all his documents relating to negotiations with the agent as to the missing remote to the Member. There being no dispute that the tenant was in arrears, and given the Member's findings as to the tenant's payment history, the Appeal Panel finds no error in the Member's reasoning that the issue of the remote was not relevant to his determination of the landlords' application which was based on the notice of termination.
8. The second of the tenant's grounds of appeal challenges the issue of the termination notice. The tenant disputed receipt of the notice, and challenged its issue on the basis that the landlords/agent had not fulfilled their obligations to replace the remote and had applied to the Tribunal on false grounds of failure to pay rent.
9. The tenant is self-represented. The Appeal Panel has considered this ground in order to understand whether it raises a possible question of law, and concludes that it does not. The Member's reasons confirm that he addressed the applicable legal requirements under the RT Act for timing and service of a termination notice based on breach of the residential tenancy agreement by non-payment of rent, and that he considered the evidence before him as to service of the notice, the amount of rent arrears, and previous failures to pay rent. His findings were based on that evidence. The Member considered the tenant's evidence as to the dispute about the remote. The Member's reasons do not indicate that the tenant squarely put to the Member that there may have been a connection between the missing remote and the termination notice. In any event, the documents provided by the tenant to the Appeal Panel indicate that the issue of the remote was the subject of ongoing discussion between the tenant and the landlord's agent, and do not suggest any connection between that issue and the timing of the termination notice. Further, the Member had evidence that the amount of rent arrears was significant, being in excess of the rental bond held as security for the landlords, and that the landlords had twice previously issued the tenant with a termination notice on the ground of non-payment of rent.
10. No error of law has been established.

Whether leave to appeal should be granted

1. The tenant submits that the decision was not fair and equitable because he was not given the opportunity to explain his side of the story, he did not have the cash at the time to pay the arrears, and while he did not receive the termination notice he did approach the agent to resolve the issue when he received the Tribunal notice of hearing.
2. For the reasons above, the Appeal Panel is satisfied that the tenant was given the opportunity to explain why he was behind in rent; and he accepted that he was in fact in arrears. The Member's reasons reflect a careful evaluation of the evidence as to the matters specified in s 87(5) of the RT Act, his reasons for concluding that the breach was sufficiently serious to warrant termination of the tenancy, and his consideration of the tenant's family circumstances. The tenant has not established that the decision was not fair and equitable.
3. The tenant submits that the decision was against the weight of evidence because the Member was not prepared to take his evidence as to why the rent was not paid, and the Member should have given an opportunity to understand why the rents were not paid and come up with a solution, and asked for evidence of a rental payment plan. There is no basis for this claim. The tenant acknowledged that there had been an opportunity for conciliation, in accordance with the Tribunal's usual practice for a Conciliation and Hearing (Group List). The Member had evidence as to the amount of rent arrears and the tenant's history of rent payments on which he based his findings.
4. The tenant submits that he has new evidence that was not reasonably available at the time of the hearing, being a receipt for rent payment since the hearing. The tenant did not dispute that he did not have the funds to pay the arrears at the date of the hearing, and even if that evidence could be regarded as new, a payment made after the hearing could not have made a difference to the decision made on the day of the hearing based on the evidence as to arrears and the tenant's payment history at that time. The tenant also submits that he had emails available at the time of the hearing relating to his argument that the agent had failed to fulfil his obligations however the Member did not prompt him to produce it. That evidence is not evidence that was not reasonably available at the time of the hearing.
5. The Appeal Panel concludes that the tenant has not established any of the grounds in cl 12(1)(a), (b) or (c) of Sch 4 to the NCAT Act, and accordingly has not established that he may have suffered a substantial miscarriage of justice, such that the Appeal Panel should consider whether or not leave to appeal should be granted in the exercise of discretion. Leave to appeal is refused.

Conclusion

1. For the above reasons, leave to appeal is refused and the appeal is dismissed. The Appeal Panel is satisfied that in the exercise of the powers conferred by s 81 of the NCAT Act the appropriate course is to confirm the orders made on 27 February 2017, other than order 4 to suspend the order for possession until 13 March 2017. On 23 March 2017 order 4 was stayed subject to conditions.
2. The tenant submitted that if his appeal is unsuccessful, the order for vacant possession should be suspended for a further 30 days. The landlords' agent accepted that if the tenant continued paying rent that could be appropriate. The Appeal Panel accepts, as did the Tribunal Member at first instance, that the tenant's family circumstances are such that he requires time to find alternative accommodation. He has young children at school, and parenting order proceedings listed for 15 and 16 May 2017, and in his statutory declaration of 21 March 2017 states that moving now would have an impact on the current parenting proceedings. Given that the tenant has paid the rent arrears to 20 April 2017, and in light of the agreement of the landlords' agent, the Appeal Panel is satisfied that it is appropriate to vary order 4 to specify a date for vacant possession 30 days from the date of these reasons. If there is a dispute as to the amount of occupation fee owing as at the date of vacant possession, that can be determined should the landlord exercise the right conferred by order 6 made on 27 February 2017.
3. The Appeal Panel orders: (1) The time in which to lodge the appeal is extended to 16 March 2017. (2) Leave to appeal is refused. (3) The appeal is dismissed. (4) The stay granted on 23 March 2017 is lifted. (5) Order 4 made on 27 February 2017 is varied such that the order for possession is suspended until 30 days after the date of these reasons. (6) The orders made on 27 February 2017 are otherwise confirmed. 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: 22 May 2017