Ibrahim v Taylor

NCAT Appeal Panel|2022-09-14

Introduction

This is a residential tenancy matter, where the Appellant is the tenant, and the Respondent is the landlord (hereinafter we shall refer to the Appellant as the tenant and the Respondent as the landlord). By application filed with the Tribunal on 2 May 2022, the tenant sought a number of orders pursuant to ss 187, 217 and 115 of the Residential Tenancies Act 2010 (NSW) (the RTA).
The Tribunal by order made on 21 June 2022 dismissed the tenant's application (the Decision). The tenant appeals against this Decision.
For the reasons which follow we have decided to dismiss the Notice of Appeal.

Application for extension of time

The Notice of Appeal was filed on 6 July 2022. This was one day late as the time for lodging the Notice of Appeal is 14 days after notice of the orders of the Tribunal has been given.
The tenant sought an extension of time. He asserts that he was informed by the Tribunal that because the reasons for the Decision was forwarded to him on 22 June 2022, he had until 6 July 2022 to file his Notice of Appeal. This is incorrect because when the Decision and orders were made on 21 June 2022 this was at the hearing at which the tenant attended.
For the reasons which follow, we have decided that the grounds of appeal lack any merit. Accordingly, we decline to extend the time for the filing of the Notice of Appeal on the basis that the tenant has no reasonable prospects of success so that it would be futile to grant an extension of time: see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.

The Decision under appeal

At the hearing below, the tenant sought: 1. An order pursuant to section 115 of the RTA that the section 85 termination notice issued by the landlord to the tenant on 22 April 2022 is retaliatory. 2. Compensation of $4000.00 for breach of s 50 of the RTA. 3. An order pursuant to s 217 of the RTA. 4. A declaration as to the amount of rent owed by the tenant to the landlord.
The tenant tendered a folder of documents market exhibit A. The landlord tendered a folder of documents marked exhibit R.
In respect of the first order sought, the Tribunal was satisfied the termination notice provided was wholly or partly motivated by the tenant having commenced proceedings before the Tribunal in matter RT 22/08084.
However, in the exercise of its discretion, the Tribunal declined to rule that the notice of termination is of no effect because: 1. The landlord's long standing intention is to reside in the premises for financial reasons; 2. The landlord's first notice of termination was five months ago; and 3. The relationship of landlord and tenant has broken down with disputes over different matters since the beginning of 2022.
The Tribunal dismissed the claim under s 50 of the RTA because it was not satisfied that the landlord had breached the tenant's peace and quiet enjoyment.
The Tribunal dismissed the claim under s 217 of the RTA as there was no evidence that the landlord had listed any personal information about the tenant on a tenant data base.
The last claim was dismissed as the Tribunal has no power to issue a declaration.

Materials filed on appeal

The tenant relies upon the following materials: 1. Notice of Appeal, filed 6 July 2022; 2. Submissions and some limited number of documents filed 16 August 2022; and 3. Further submissions dated 11 September 2022, including some documents relating to the landlord's statutory declaration of 9 August 2022 (the Statutory Declaration) in support of the tenant's submission that the statutory declaration is false.
We note that the tenant, who represented himself, confirmed at the hearing that he had not filed all of the evidence tendered below nor lodged the transcript of the whole proceedings below, even though the previous directions of the Appeal Panel were for him to file all evidence and transcript sought to be relied upon.
The landlord relied upon: 1. Reply to appeal filed 2 August 2022; 2. Submissions and documentary material attached dated 20 July 2022; and 3. Submissions and some documentary material attached filed 6 September 2022.
Part of the landlord's material included the Statutory Declaration. As the Statutory Declaration constitutes new evidence that was available at the time of the hearing below and no explanation has been given for why it was not tendered at that hearing, we reject its tender before us. Correspondingly, we do not need to receive the tenant's submissions and documents dealing with the Statutory Declaration.

Scope and nature of appeals

An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) s 80(2).
On an appeal on a question of law, the exercise of a statutory discretion can only be overturned in limited circumstances: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505-506.
In Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 the Court of Appeal summarised the House v The King circumstances at [14] (Tobias AJA) and held that an attack on a discretionary decision must fail: "…unless it can be demonstrated that the decision maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning."
The Appeal Panel has a discretion whether to grant leave under s 80(2) of the NCAT Act.
The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.

Grounds of appeal

The tenant represented himself before us and drafted the grounds of appeal and submissions himself. We note that the tenant has not sought to clearly enunciate separate discrete grounds of appeal. Rather, the tenant has put forward his case on appeal in a wide-ranging and discursive narrative, frequently being repetitive and raising matters which are either irrelevant to an appeal from the orders below or which constitute serious allegations against various people without any evidentiary basis.
We have considered carefully all of the tenant's submissions and evidence and consistently with our obligation to a self-represented litigant sought to distil any recognisable grounds of appeal in a beneficial manner including whether any questions of law may be involved: see Ros v Commissioner of Police [2020] NSWCATAP 70 at [21]; Pollock v Hicks [2015] NSWCA 122 at [91] and Cominos v Di Rico [2016] NSWCATAP 5 at [13] (Cominos).
In Cominos at [13], the Appeal Panel stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.
The first ground apparently raised by the tenant is that the Member was biased and 'highly suspect that she was manipulated by members of police against me, as it happened before with member Bartrop'. We accept that this raises a question of law.
This allegation is totally unfounded and unsupported by any of the material relied upon by the tenant (summarised below). The allegation rested upon nothing more than the tenant's assertions.
Accordingly, we reject this ground of appeal.
The second discernible ground of appeal is that the Decision was unreasonable as the Tribunal relied on a wrong factual premise, in that the Tribunal took into account irrelevant considerations, being the breakdown of the relationship between the parties. The tenant contends the Tribunal should have exercised its discretion to find that the notice of termination has no effect.
We accept that a question of law arises as to whether or not the Decision was so unreasonable as to suggest that the discretion miscarried in accordance with the principles in House v The King. Similarly, taking into account an irrelevant matter may also mean the exercise of the discretion has miscarried.
Otherwise, leave to appeal is required.
In our view, the Decision was open to the Tribunal. The Tribunal did not take into account any irrelevant considerations and its conclusion was not unreasonable in accordance with the principles in House v The King. Further, based on the limited material that is before us (summarised below), we are unpersuaded that there is a basis for the grant of leave to appeal in accordance with the principles referred to above.
Accordingly, we reject this ground of appeal.
The third discernible ground of appeal is an allegation that the Tribunal failed to follow procedural fairness because the Member's 'mind was made up before she conducted the hearing'. We accept this allegation raises a question of law.
We note the tenant has only provided us with a very limited excerpt of the transcript of the hearing below. We have read this transcript and the other materials provided on appeal.
There is no support for the contention of prejudgement on the part of the Tribunal in the material before us and we reject this ground.
The next discernible ground of appeal is that the tenant contends the Tribunal was wrong not to require the landlord to be put on oath when the Tribunal relied upon the submission that the landlord wanted to move back into the premises.
Assuming, without deciding, that this may raise a question of law, we note the Tribunal is not bound by the rules of evidence and can inform itself in such manner as it sees fit: see s 38(2) of the NCAT Act. The Tribunal was not required to put the landlord on oath when accepting the landlord's contention that he wanted to move back into the premises.
Accordingly, we reject this ground of appeal.
Finally, the tenant contends that the Decision was against the weight of the evidence and sought leave to appeal on this ground. A number of matters were raised which largely amounted to an attempt to reargue everything that was put below. In this regard we have attempted to distil from the wide-ranging submissions the discrete matters raised.
The tenant contends in respect of the claim that he was not in arrears in his rent, that he produced evidence that the 'numbers/values' were not accurate and that he pointed out this issue to the Tribunal but the Tribunal 'ignored it'.
In response, we note that the tenant has not tendered or put before us the alleged evidence of his rent payments he refers to. In any event, the notice of termination does not rely on any ground such as unpaid rent. What was relied upon by the Tribunal was that the parties were in dispute, something the tenant did not challenge on appeal.
Accordingly, we reject this ground of appeal.
Nextly, the tenant contends that the Tribunal ignored, or failed to give sufficient weight, to his evidence, including from previous proceedings, and to his submissions. This evidence was said to include evidence of his disability, hardship and his claim that his quiet enjoyment of the premises was breached by the landlord or his agent harrasing him, causing significant stress and anxiety. In this regard, the tenant made a repeated and wide-ranging allegation that a criminal person with police support was harassing him and the agent was doing that person's bidding in terminating the lease.
At this point we summarise the evidence put forward on appeal by the tenant: 1. An email of 3 November 2020 asking the agent if he gave access to someone to his premises which was denied by the agent; 2. Emails from the agent seeking rent arrears and advising of the notice of termination or following up on the consequences of such notice; 3. One page of transcript between the agent and the Member which discusses the landlord's desire to move into the premises; and 4. The documents we rejected as new evidence.
In the absence of the entire evidence and transcript of the hearing below, we are not in a position to deal with the correctness of the contentions now put to us on appeal. We do not know what submissions were put below nor do we know the extent of the evidence below. The material that has been disclosed before us does not allow us to conclude that the Decision was against the weight of the evidence and not open to it.
Accordingly, we decline to grant leave to appeal on this ground.
Accordingly, we dismiss the appeal.

Orders

The orders of the Tribunal are: 1. The application to extend the time for lodging the appeal is dismissed. 2. Leave to appeal is refused. 3. Appeal 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: 23 September 2022

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (2)

Cases Cited (10)