Solicitors: Mr Shehadie (Respondent)
File Number(s): AP 14/46512
Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal
Jurisdiction: Consumer and Commercial Division
Date of Decision: 21 July 2014
Before: B Howe
File Number(s): RT 14/35591
[2]
Introduction
In this matter the appellant seeks to appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 31 July 2014.
The appellant was the tenant and the respondents the landlord of residential premises in Elanora Heights. In these reasons we shall refer to the parties as the tenant and the landlord respectively. The tenancy had commenced on 2 December 2013. On 31 July 2014 the Tribunal terminated the residential tenancy agreement immediately and ordered the tenant to give the landlord immediate possession, but suspended the order for possession until 15 August 2014, a date chosen by the tenant. Thenceforth the tenant was to pay a daily occupation fee to the landlord until vacant possession was given. In addition the tenant was ordered to pay rental arrears of $7,228.59 on or before 15 August 2014.
The orders for termination and possession were subsequently stayed by order of the Tribunal, until further order. The stay was conditional on the tenant paying any rental arrears outstanding as at 29 August 2014 on or before that date, and then continuing to pay the occupation fee specified in the orders of 31 July 2014 on each second Friday after 29 August 2014. Neither the arrears or ongoing rent were paid and the landlord eventually obtained possession of the premises.
This is a matter in which the tenant has filed his appeal out of time, and requires leave from the Appeal Panel to extend the time for the filing of the appeal. The decision of the Tribunal was made on 31 July 2014, and the notice of appeal was filed on 22 August 2014. Unless the Appeal Panel grants an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013, appeals in respect of residential proceedings must be lodged within 14 days from the day on which the tenant was notified of the decision to be appealed or given reasons for the decision (whichever is the later): see rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014.
The notice of appeal should have been lodged on or before 14 August 2014. The respondent objects to the Appeal Panel extending the time for the lodging of the appeal. Were we persuaded of the merits of the appeal we would extend the time for filing the notice of appeal. However, for the reasons that follow, we have concluded that there is no substance in the grounds of appeal raised by the tenant. In the circumstances, we decline to extend the time in which to file the notice of appeal. Consequently the appeal is dismissed.
[3]
Notice of Appeal
The grounds of appeal are stated as:
[1] Failure by Tribunal to grant adjournment was a denial of natural justice.
[2] Failure by Tribunal to take evidence as to set off.
[3] Decision of Tribunal to allow [respondent] to appear via an agent who is not a director/office bearer of company rendered application void.
These grounds are set out in a fuller form in the tenant's document titled "Grounds of Appeal" filed on 22 September 2014 as follows:
(1) That Tribunal Member Howe erred when he refused to grant the short adjournment of one week sought by the Appellant when proceedings No RT 14/35591 on 31 July 2014, being the first occasion that the Application had been listed, and by refusing to grant the adjournment he denied the Appellant natural justice in being able to properly prepare and present this defence to the application.
(2) That Tribunal Member B Howe erred in relation to the hearing conducted on 31 July 20114 in proceedings RT 14/35591, he failed to allow the Appellant to present evidence relating to a claim of set-off for an amount greater than the amount of the claimed rental arrears.
(3) That Tribunal Member B Howe erred in relation to the hearing conducted on 31 July 20114 in proceedings RT 14/35591, he allowed Ms J Keys to appear as a representative of the managing agent Swannvuka Pty Ltd, when was not a duly appointed office bearer of the company as required under the Corporations Act 2001, and that she did not present any documentation or authority signed by the company authorizing her to seek leave to appear for the company as required by the Uniform Civil Procedure Rules 2005.
These matters are amplified in the tenant's detailed submissions.
The tenant seeks orders returning the matter to the Tribunal for rehearing, and a stay of all orders made on 31 July 2014 pending the appeal.
[4]
Respondent's Submissions
The landlord opposes any extension of time being granted and submits that there are no arguable grounds of appeal. They too have filed detailed submissions together with over 80 pages of attachments.
The landlord's submissions set out a brief history of the tenancy. As noted above the residential tenancy agreement commenced on 2 December 2013. The term of the tenancy was 26 weeks, with an option of an additional 26 weeks. The weekly rent was $900. The landlord's first application to the Tribunal in respect of the tenancy (RT 14/14650) was filed on 25 March 2014. It was resolved on 7 April 2014 when the Tribunal made orders by consent requiring the tenant to pay $6,100 in respect of rental arrears.
The option was subsequently exercised and a new residential tenancy agreement entered into on 14 May 2014. The new tenancy commenced on 2 June 2014, and was to terminate on 1 December 2014. On 25 June 2014 the landlord filed a second application (RT 14/32469) for termination and possession, again based on rental arrears. This matter was dismissed on 4 July 2014. However the Tribunal made orders by consent requiring the tenant to pay $4,242.86 in respect of rental arrears.
The landlord submits that it was on this occasion that the tenant first mentioned that he intended to make a "set off" claim. The member constituting the Tribunal on that occasion informed the tenant to make his own application for compensation.
The landlord's lengthy submissions set out detailed arguments as to why the tenant's grounds of appeal are without merit.
[5]
Extension of time - principles
In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, the Appeal Panel considered the principles which govern the granting of an extension of time. The Appeal Panel stated that generally, in an application for an extension of time to appeal, the Appeal Panel will be required to consider the length of the delay, the reason for the delay, the appellant's prospects of success (that is usually whether the applicant has a fairly arguable case); and the extent of any prejudice suffered by the respondent (to the appeal).
The most important matter when considering whether or not to extend the time in which to lodge an appeal is an appellant's prospects of success on appeal. We shall consider these below.
[6]
Failure to grant adjournment
The first ground is the failure by Tribunal to grant adjournment was a denial of natural justice.
The tenant submits that by refusing to grant an adjournment of seven days the Tribunal denied the tenant natural justice in being able to properly prepare and present his "defence" to the landlord's application. During the appeal hearing, Mr Conomos, who appeared for the tenant, confirmed that the "defence" referred to was a reference to the tenant's set-off claim. It was not a reference to the rent claimed. The tenant did not dispute the amount of the rental arrears claimed, and subsequently ordered to be paid.
Because of its relevance to the appeal we set out order 8 of the orders made by the Tribunal. It states:
The application by the tenant to adjourn the proceedings is declined as the tenant has indicated that he intends to bring an application for compensation but that claim involves different issues for determination to the orders sought today.
The hearing took place on 31 July 2014. The tenant claimed in his submissions that the notice of hearing had only been served on 27 July 2014. It is somewhat surprising that at no point in the transcript of that hearing is the tenant recorded as informing the Tribunal of that fact. The tenant simply sought an adjournment for seven days "on the basis of a set-off claimed against the rental arrears, that amount [being] equal or greater to than the rental arrears". As the tenant did not raise this matter before the Tribunal at the hearing, it is difficult to accept there is any basis on which to raise it on appeal.
We note that Mr Shehadie, the landlord's representative at the appeal, conceded that there was no dispute about the tenant being served with the notice of the hearing on 27 July 2014. As 27 July 2014 is a Sunday that is a somewhat surprising concession, especially so when correspondence on the Tribunal file shows that each party was informed by correspondence from the Tribunal dated 4 July 2014 that the hearing was to take place on 31 July 2014. Mr Conomos indicated to the Appeal Panel that the position was that the tenant had been away and he did not become aware of the notice of the hearing until 27 July 2014.
In our view there is no substance in the ground of appeal that the tenant was denied natural justice when the Tribunal refused to adjourn the matter so as to allow him the opportunity to file an application in relation to his claimed set off.
The landlord submits the tenant had been informed at the hearing on 4 July 2014 of the need to file a separate application for the claim he describes as a set-off. The transcript of the proceedings of 4 July 2014 records the Tribunal member as saying to the tenant:
The only application before the tribunal today is the notice of termination based on rent arrears. If you have a claim relating to something else that's a different matter. It is not up to the tenant to go on a rent strike on the basis that they have got some claim for compensation relating to some other matter for which they can file an application in this tribunal and have it heard and determined.
The tenant sought an adjournment of 7 days on that occasion so as to enable him to file an application claiming a set-off. When the subsequent hearing took place before Member Howe on 31 July 2014, no claim for set-off or compensation had been filed by the tenant. The tenant told Member Howe that he needed an adjournment of seven days in which to do so, and that he expected to receive the one remaining document to enable him to do so the following day.
Despite what had occurred on 4 July 2014 the tenant had not filed any application in respect of set off or compensation. Despite the statement to Member Howe on 31 July 2014 he did not file proceedings RT 14/42448 until 22 August 2014. In those proceedings the tenant sought the following order:
Landlord to set off part rental due to failure to provide leased property in a fit and healthy condition.
The reasons for requesting that order included the landlord's alleged failure to repair and provide a sewerage and drainage system in working order. The tenant claimed damages for pain and suffering and for breaches of various clauses of the residential tenancy agreement.
The landlord's application was solely concerned with termination of the residential tenancy agreement as a result of the tenant's rental arrears. The tenant's submission on 31 July 2014 that he should have been allowed an adjournment of seven days during which would file his own application is without substance, given that he had been on notice of the need to do so since 4 July 2014. We see no merit in the submission that the tenant was denied natural justice by the Tribunal refusing to adjourn the application before it and do not consider that this ground of appeal has sufficient prospects of success to warrant extending the time in which to file the notice of appeal.
[7]
Failure of Tribunal to take evidence as to set off
The second ground of appeal is that the Tribunal erred in allowing the tenant to present evidence relating to a claim of set-off. The tenant submits (submission D(2)) that he sought to introduce evidence as to a claim of set-off, and that the Tribunal refused to allow that evidence to be heard.
This ground of appeal is entirely without substance, for this reason. The transcript of the hearing does not record the tenant at any point seeking to present evidence as to the claimed set-off. Instead, the transcript records the attempts by the tenant to have the hearing adjourned so as to enable him to file an application to claim a set-off.
The tenant also submits under this ground of appeal that the termination issued on 14 July 2014 was invalid because at that date there were no arrears of rent owing. This submission is also without substance. The question of validity of a notice of termination is not determined by whether or not there are rental arrears; validity is determined by ascertaining whether or not the notice is correct in form and content and has been served in accordance with the legislation. Whether there are rental arrears or not, the notice being valid, determines whether or not the residential tenancy agreement is terminated. As we have noted, during the hearing the tenant's representative did not dispute the amount of rental arrears.
We do not consider that these grounds of appeal have sufficient prospects of success to warrant extending the time in which to file the notice of appeal.
[8]
Capacity of Landlord's agent
The third ground of appeal is that the Tribunal erred in allowing Ms J Keys to appear as a representative of the landlord's managing agent Swannvuka Pty Ltd, in circumstances where:
1. she was not a duly appointed office bearer of the company as required under the Corporations Act 2001 (Cth);
2. she did not present any documentation or authority signed by the company authorizing her to seek leave to appear for the company as required by the Uniform Civil Procedure Rules 2005;
3. she had no authority to complete any application on behalf of Swannvuka Pty Ltd; and
4. she failed to seek leave pursuant to s 237 of the Corporations Act to commence the proceedings.
These submissions are misconceived. Neither s 237 of the Corporations Act, nor any of the other sections of the Corporations Act to which Mr Conomos referred during the course of the appeal hearing, has any relevance to these proceedings. Those sections relate to proceedings which have been brought on behalf of a company. Accordingly, there was no requirement for Ms Keys to be a duly appointed office bearer of her employer in order to lodge the landlord's application, or appear on its behalf.
Here the proceedings are brought by the landlord, two individuals. The relevant company, Swannvuka Pty Ltd, is their agent (the Agent). Pursuant to the exclusive managing agency agreement between the landlord and the Agent dated 22 August 2012, a copy of which was provided in the landlord's submissions:
the Agent may delegate from time to time to its employees all or any of the authority vested in the Agent by the agreement (clause 2);
the Agent is authorized to respond to any applications by tenants before the CTTT or the like and to represent the landlord in such proceedings (clause 12(ix));
the Agent is authorized to exercise the landlord's right to enforce or terminate tenancy agreements by services of notices as necessary (clause 12(x));
in respect of each tenancy, the Agent, and each and every one of their partners, employees or other officers from time to time as the case may be is authorized and directed on behalf of the landlord to make application before the CTTT (or the like) and to do all things necessary to commence and (as far as practicable) complete proceedings for:
1. the recovery of possession of the premises from tenants;
2. and the recovery of monies due (clause 13).
Nor is there any question of the applicability of the Uniform Civil Procedure Rules 2005 in this jurisdiction. In this respect we note that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (s 38(2)). It is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form (s 38(4)).
In the circumstances we do not consider that this ground of appeal has sufficient prospects of success to warrant extending the time in which to file the notice of appeal.
[9]
Conclusion
We do not consider that any of these grounds, either individually or cumulatively, have sufficient merit to warrant granting the tenant an extension of time in which to lodge his appeal. Accordingly the application to extend the time in which to lodge the notice of appeal is refused, and the appeal consequently dismissed.
[10]
Orders
For the above reasons, we make the following orders:
1. The application to extend the time in which the appeal was lodged is refused.
2. The appeal is dismissed.
[11]
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
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Decision last updated: 19 March 2015