Kalache v Kalache

NCAT Appeal Panel|2017-03-24

Overview

Ackram and Ali Kalache are brothers. Ali married Dena Kalache in 2002 and they have three young children. Because each of the parties has the same family name, I will refer to them by their first names, with no disrespect intended.
Ali and Dena separated on 9 April 2016 and, in May 2016, Ali moved out of the house they had been living in since March 2009. Ackram owns that property. On 26 May 2016, after Ali had moved out, Ackram gave Dena and Ali a notice requiring them to leave the property within 90 days: Residential Tenancies Act 2010 (NSW), s 85. When Dena did not move out, Ackram applied to the Tribunal for an order that the residential tenancy agreement be terminated and that he be given possession of the property.
On 23 September 2016, Dena commenced proceedings in the Federal Circuit Court under the Family Law Act 1975 (Cth) seeking parenting and financial orders. Dena maintains that the only reason Ackram has sought to have her and her children evicted is because there is an Apprehended Violence Order (AVO) in place prohibiting Ali from residing in the property.
The first issue for the Tribunal was whether there was a "residential tenancy agreement" between Ackram, as landlord, and Ali and Dena as tenants: Residential Tenancies Act, s 13. The Tribunal found that there was an informal residential agreement between those parties. The Notice of Termination was served in accordance with the Residential Tenancies Act and the Residential Tenancies Regulation 2010 (NSW). Because Dena had not moved out by 29 August 2016, the Tribunal decided that the agreement should be terminated and possession given to Ackram.
Dena has appealed to the Appeal Panel of the Tribunal from that decision. We have extended time for Dena to lodge the appeal and set aside the Tribunal's decision. The reason we have set aside the decision is that the Tribunal did not give adequate reasons for finding that there was a residential tenancy agreement between Ackram and Dena. There was evidence before the Tribunal which supported a finding that there was a residential tenancy agreement between Ackram and Ali. The Tribunal did not refer to any evidence which supported a finding that there was such an agreement between Ackram and Dena. We have sent the decision back to the Tribunal to reconsider the whole case. Particular issues which arise are: 1. whether there is a residential tenancy agreement and if so who is a party to that agreement, 2. whether any agreement has been terminated and the implications of any termination for anyone who is a tenant and/or an occupant: Residential Tenancies Act, s 95.

Issues

The issues for the Appeal Panel are: 1. should we accept the appeal even though it was lodged late? 2. has Dena identified a question of law and, if so, did the Tribunal make an error of law? 3. should we give Dena permission to appeal on grounds other than a question of law?

Should the appeal be accepted even though it was lodged late?

The delay in lodging the Notice of Appeal is about 13 days.
Unless the Tribunal extends the time, an internal appeal from a decision made in residential proceedings must be made within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision, whichever is the later: Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(b) and Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 41.
Dena's solicitor, Mr Jordan, prepared an affidavit dated 23 March 2017 which gave the reasons the Notice of Appeal was filed late. Ackram's lawyer objected to this evidence on the basis that it had not been filed in accordance with the Appeal Panel's timetable. We have taken the evidence into account because it largely repeats the information provided in the Notice of Appeal and Ackram is not prejudiced by the late notice. In accordance with that evidence we find that Dena was notified of the Tribunal's decision on 9 December 2016. The Notice of Appeal was filed on 5 January 2017. The 14 day time period meant that the Notice of Appeal was due to be filed on 23 December 2016.
On 12 December 2016 Mr Jordan applied for a sound recording of the Tribunal proceedings. He received a CD on 19 or 20 December 2016 and engaged a transcription service to provide a written record of the proceedings. His offices were closed from 22 December 2016 until 9 January 2017 but Mr Jordan continued to attend work for some of that period.
Ackram submitted that Dena had legal representation and there has been a blatant failure to observe the statutory requirements for the lodging a Notice of Appeal in residential proceedings.
Generally, when considering an application for an extension of time to appeal, the Appeal Panel is required to consider: the length of the delay, the reasons for the delay, the appellant's prospects of success and the extent of any prejudice suffered by the respondent: Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [22].
The delay in lodging the Notice of Appeal is about 13 days. That is a relatively short period of time. The reason for the delay is essentially that the Christmas holiday period intervened. Dena's case has some prospect of success and Ackram did not point to any particular prejudice that would be suffered if time was extended.
The time for lodging the Notice of Appeal is extended to 5 January 2017.

Has Dena identified a question of law and, if so, did the Tribunal make an error of law

Questions of law

Dena has the right to appeal on questions of law: Civil and Administrative Tribunal Act, s 80(2)(b). There are eight grounds of appeal listed in the Notice of Appeal. After hearing oral submissions from Dena's lawyer, we understand the grounds of appeal on questions of law to be that the Tribunal: 1. found that there was a residential tenancy agreement when there was no evidence to support that finding; 2. provided inadequate reasons for its decision; 3. did not join Ali as a party to the proceedings when he was the tenant.
Each of these grounds raises a question of law.

No evidence ground

It is an error of law for the Tribunal to make a primary factual finding when there is no evidence to support that finding and the finding is "crucial to . . .(the) decision": Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151. Similarly, if the Tribunal makes a finding "in the face of the evidence" that will constitute an error of law: Bugeja v Hatgiantounio [2002] NSWCA 132 at [9]. Dena submitted that there was no evidence of a residential tenancy agreement between Ackram and herself. If there was an agreement, it was between Ackram and Ali.
The Tribunal refers to Dena as 'the tenant' or Ms Kalache and to Ackram by his first name or as 'the landlord'. The Tribunal found that "there was an informal residential tenancy agreement in place between the tenant, her husband and Ackram". The Tribunal quoted the following evidence in support of that finding: "The landlord stated that his brother moved into the property at settlement under an informal verbal periodic tenancy agreement." "The rental agreement was for Ali to pay $1,250 rent per week." "The landlord stated that Ms Kalache was not involved in the financial relationship between himself and his brother.'
None of this evidence supports the Tribunal's finding. We note that the Tribunal did not refer to other evidence which was contrary to its finding including Ackram's evidence at [16] of his 20 October 2016 affidavit that the agreement was made exclusively with his brother Ali.
The only evidence that we are aware of which was consistent with the Tribunal's finding is the letter headed "landlord's termination notice to tenant" dated 26 May 2016. In that letter Ackram names Ali and Dena as the tenants. As there was some evidence to support the Tribunal's finding the 'no evidence' ground has not been established. The Tribunal's finding was arguably made 'in the face of' evidence to the contrary but, for the reasons we give below, we have characterised the error as giving inadequate reasons.

Inadequate reasons

Alternatively, Dena submitted that the Tribunal had provided inadequate reasons for its decision.
Section 62(3) of the NCAT Act provides that any written statement of reasons must set out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, the Tribunal's understanding of the applicable law and the reasoning process that led the Tribunal to the conclusion it made. Those three elements are also common law requirements for adequate reasons: Beale v GIO (1997) 48 NSWLR 430 at 442-444.
In this case, the Tribunal set out the relevant evidence and made a finding of fact that there was a residential tenancy agreement between Dena (and Ali) and Ackram. The Tribunal did not set out the reasoning process that led to that conclusion. Because the Tribunal's finding was crucial to the decision, the appeal should be allowed and the decision set aside. The whole of the case should be reconsidered by the Tribunal.
The Appeal Panel may send the matter back to the Tribunal to reconsider "either with or without further evidence": NCAT Act, s 81(1)(e). Dena applied to the Appeal Panel to put forward new evidence on appeal. That evidence was an affidavit from her sworn on 24 March 2017, the day of the appeal hearing. Ackram objected to that evidence because it was not provided in accordance with the Appeal Panel's timetable and because neither he, nor Ali, had had an opportunity to provide evidence in response. Dena also applied for a summons to be issued for production of documents relating to each of the brothers' financial affairs. Ackram opposed the issuing of that summons and the Appeal Panel did not approve it.
In our view, it is a matter for the newly constituted Tribunal to determine, in all the circumstances, whether the parties should be allowed to summons further material or provide further evidence.

Joinder issue

Ackram served the 90 day termination notice on 26 May 2016. The notice required both Ali and Dena to vacate the property by 29 August 2016. Ackram did not name Ali as a party to the proceedings in the Tribunal even though he alleged that Ali was a tenant. Because Ali was a person against whom Ackram sought an order for possession, Ackram should have named Ali as a respondent to the proceedings. We can make an order joining Ali: NCAT Act, s 81(2).

Grounds of appeal on questions other than questions of law

Having decided that the appeal should be allowed and the whole of the case reconsidered by the Tribunal, there is no need to consider the grounds of appeal on questions other than questions of law.

Orders 1. The time for lodging the Notice of Appeal is extended to 5 January 2017. 2. The appeal is allowed. 3. The Tribunal's decision is set aside. 4. The Tribunal, differently constituted, is to reconsider the whole case. 5. Ali Kalache is joined as a respondent to the Tribunal proceedings RT 16/40296.

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: 26 May 2017

Residential Tenancies Regulation 2010(NSW)

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Judgment (11 paragraphs)

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Legislation Cited (5)

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