Hoang v Halim

The Facts

1. The appellant entered into a residential tenancy agreement with the respondents in August 2016 and moved into the premises on 6 September 2016.
2. The tenancy was terminated by order of the Tribunal on 13 March 2017. The appellant unsuccessfully appealed that decision, and returned the key to the landlord on 29 April 2017.
3. Nearly one year later, on 23 April 2018, the appellant lodged an application with the Tribunal seeking compensation for various claimed breaches of the Residential Tenancies Act 2010.
4. Briefly, these alleged breaches involved: 1. a claim of misleading conduct as to the term of the tenancy; 2. a claim regarding cleanliness of the premises and for consequential abatement of rent; 3. a claim concerning withdrawal of services at the premises; 4. a claim regarding quiet possession; 5. a claim about damage to her possessions.
5. The appellant also claimed for general damages and certain costs.
6. The Tribunal correctly held that such claims are required to be brought under s187(1)(d) and s190 of the Residential Tenancies Act.
7. These provisions state: 187 ORDERS THAT MAY BE MADE BY TRIBUNAL (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders: … (d) an order as to compensation, … 190 APPLICATIONS RELATING TO BREACHES OF RESIDENTIAL TENANCY AGREEMENTS (1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations. (2) An application may be made: (a) during or after the end of a residential tenancy agreement, and (b) whether or not a termination notice has been given or a termination order made. (3) A landlord's agent may make an application on behalf of a landlord.
8. The time limit for bringing such claims is in the Residential Tenancies Regulations Reg 22(9) which states: (9) For the purposes of section 190 (1) of the Act, the prescribed period for making an application for an order in relation to a breach of a residential tenancy agreement or proposed agreement is within 3 months after the applicant becomes aware of the breach.
9. The application was clearly out of time. The Tribunal has the ability to extent time under s41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) which 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.
10. The Tribunal in considering whether to exercise its discretion referred at par.20 to the principles regarding exercise of discretion to extend time established by the Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSW CATAP 22 at [22] (Jackson No.1).
11. The appellant's explanation for the considerable delay in commencing was based largely on medical grounds but she added study commitments and housing uncertainty as additional grounds.
12. The Tribunal held that the medical documents did not sufficiently support the length of delay and reasons for delay. It also held that on the merits the applicant had little prospect of success. The claims were not even fairly arguable let alone having substantial merit, in the Tribunal's view.
13. The Tribunal decided not to exercise its discretion under s41 of the NCAT Act and dismissed the application as it was brought out of time.
14. An appeal against a discretionary decision is a difficult task, as the appeal body is bound by the decision of the High Court of Australia in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505-506 where the whole Court said in a case involving the exercise of discretion concerning the sentence for an offence against the Bankruptcy Act 1924(Cth): "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."
15. The appellant (who represented herself) founded her appeal on a claim of error of law, and also sought leave to appeal on grounds of a substantial miscarriage of justice.
16. The discretionary decision to refuse to extend time is an interlocutory decision of the Tribunal (see paragraph (d) of the definition of "interlocutory decision" in s4 of the NCAT Act and Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281). All appeals from interlocutory decisions require the leave of the Appeal Panel (s80(2)(a) NCAT Act).
17. Sec.80(2)(b) of the NCAT Act provides for an appeal as of right on any question of law "in the case of any other kind of decision including an ancillary decision", thus excluding interlocutory decisions dealt with by s80(2)(a) CAT Act.
18. In the circumstances we find, consistent with the principle in House v R that there are no grounds for interfering with the manner in which the Tribunal exercised its discretion. The Tribunal took into account the correct principles; outlined all the relevant and material facts; did not have regard to extraneous matters; and referred to the various criteria identified by the Appeal Panel in Jackson No.1.
19. Accordingly we refuse leave to appeal.
20. The appellant also needed an extension of time to file her appeal as it was out of time. As these were "residential proceedings" under the Residential Tenancies Act which had been allocated to the Consumer and Commercial Division she had 14 days from the day she was notified of the Tribunal's decision (NCAT Rule 25(4)(b)) to file.
21. She provided a medical certificate. The medical practitioner stated that the appellant had stated her medical conditions had prevented her from leaving the house. These included "severe osteoarthritis of the knees".
22. The respondents did not in fact file a reply or any submissions or evidence although they did appear at the hearing of the appeal. On the one hand, leave is not opposed; the delay of about 3 weeks was not excessive; and there is no apparent prejudice to the respondents. On the other hand, the medical evidence is weak, as it merely repeats the claims of the appellant rather than providing an independent assessment, and the appeal lacks substance for the reasons set out above. It follows a grant of leave to file out of time would lack utility. On balance, the factors in favour of leave are outweighed by those against, and leave to file out of time is declined.

Orders 1. Leave to file Appeal out of time declined. 2. Leave to appeal refused.

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: 07 January 2019