Kalice v Borck & Ors

Documents of the landlord

1. The documents the landlord filed in support of the appeal included the written residential tenancy agreement; the ingoing inspection report (with comments of the tenant dated 14 February 2015); comments by the landlord in the outgoing inspection report regarding the condition of the premises at the end of the tenancy; undated photographs of the residence; documents from NSW Police and NSW Corrective Services regarding the landlord being a witness in a serious criminal matter that occurred in 2006; a list of damages the landlord alleged the tenants had caused; bank records of the landlord; and a statement of Mr L Alexander, who is described as a "friend" of the landlord, dated 23 June 2016.

Documents of the tenants

1. The documents of the tenants in reply included a statement by one of the tenants setting out what said occurred on 30 September 2016. Relevantly, that statement was to the effect that the matter was heard by the Member approximately 45 minutes after the time it had been listed for hearing, and that immediately after the decision was handed down with oral reasons given by the Member, the landlord arrived at the Tribunal and took issue with the Member for the decision having been made in his absence.

Response of the landlord as to the time he attended the Tribunal hearing

1. The landlord disputed that he arrived 45 minutes late. According to the landlord, he arrived 15 or 20 minutes late, and after having left a telephone message with Sutherland Local Court that he was running late. The landlord stated that he had made a number of attempts to telephone Sutherland Local Court to state he was running late, but was "put on hold".

At what time was the decision made on 30 September 2016?

1. The landlord provided no evidence, such as a transcript of the proceedings, to establish the time at which the Member made the decision. It is immaterial to our decision whether the landlord arrived at the Tribunal hearing 15 to 20 minutes late, or 45 minutes late (as suggested in the written submission of the tenant).

Previous history of non-attendance by the landlord

1. The hearing of the matter on 30 September 2016 was not the first occasion the matter had been listed for hearing at the Tribunal. The matter had been previously listed for hearing, and the landlord had failed to appear. The Tribunal made an ex parte order that the landlord refund the bond in full to the tenant. The landlord had applied for that decision to be set aside under cl 9 of the Civil and Administrative Tribunal Regulation 2013. The landlord's application for a set-aside order was successful and the proceedings were re-listed for a Group List and Conciliation hearing on 30 September 2016. Accordingly, the decision on 30 September 2016 occurred in circumstances where the landlord had failed to appear previously in the Tribunal.

Submissions of the landlord as to why he was late to the Tribunal on 30 September 2016

1. The landlord's submission was that he had been delayed in attending the Tribunal on 30 September 2016 because he was suffering from psychological issues and could not use public transport. The landlord stated that he did not have any resources and could not afford a taxi. The landlord stated that he had arranged for a friend to transport him to the hearing, but the friend's car had broken down and the friend had "got lost" on the way. The landlord submitted that he had telephoned Sutherland Local Court while on route to the Tribunal to say he was running late.

Grounds of Appeal

1. The Notice of Appeal filed by the landlord did not clearly articulate the alleged errors of law or errors of fact in the decision of 30 September 2016.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel identified at paragraph [13] the following as questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. In respect of a self-represented litigant who cannot clearly articulate grounds of appeal and distinguish between errors of law and errors of fact, it is appropriate for the Appeal Panel to consider the grounds of appeal generally to discern what the grounds of appeal are (Prendergast at [12]).
4. No transcript of the reasons of the Member was filed by the landlord, and the written submission of the tenant indicates that the Member gave oral reasons for the decision. We do not regard absence of reasons or inadequacy of reasons as a ground of appeal in this matter.
5. We discern the grounds of appeal to be: 1. The landlord was not afforded procedural fairness by not having a reasonable opportunity to put his case at hearing prior to the decision of 30 September 2016; 2. The landlord may have suffered substantial miscarriage of justice because the tenant had not returned the premises in the same condition it was rented in accordance with the tenants' obligations under s 51(3) of the RT Act, and the landlord would incur significant costs in repairing the premises.

Was there a denial of procedural fairness?

1. Failure to accord procedural fairness is a question of law under s 80 of the Civil and Administrative Tribunal Act 2013 that does not require leave to appeal under Schedule 4 Clause 12 of the Civil and Administrative Tribunal Act 2013.
2. The landlord has adduced further evidence in his documents that was not adduced in the hearing before the Member, including documents pertaining to his explanation for running late to the hearing on 30 September 2016. We are satisfied that, in the circumstances of this matter, it is appropriate to consider such evidence in the appeal (Yuen v Thom [2016] NSWCATAP 243 at [14]-[20]).
3. Under s 38(5) of the Civil and Administrative Tribunal Act 2013, the Tribunal has a duty to "take such measures as are reasonably practical" to "ensure that parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings". Failure to accord procedural fairness is an error of law (Prendergast at [11]-[14]).
4. Under cl 35(2)(a) of the Civil and Administrative Tribunal Rules 2014, the Consumer and Commercial Division of the Tribunal may hear and determine proceedings in the absence of a party if the Tribunal is satisfied notice of the hearing was duly served on the party.
5. The procedure of the Registry of the Tribunal is to send a notice of hearing to a party, identifying the time, date and place of the hearing. The notice states that parties should take measures to ensure they are present at the hearing venue at least 15 minutes prior to the allocated hearing time, and that a binding decision may be made in the absence of a party. It is clear that the landlord received a notice of the hearing in respect of the hearing on 30 September 2016 as he did attend the Tribunal, albeit late.
6. We are not satisfied that the landlord was denied a reasonable opportunity to be heard on 30 September 2016 or that it was a denial of procedural fairness for the Member to hear and determine the matter in the absence of the landlord. A rental bond is the property of the tenant, and it is for the landlord to establish an entitlement to the bond, or any component of it (Toberty v Lacey [2017] NSWCATAP 28 at [93]). Such an entitlement may be established if the tenant breached the tenant's obligations under s 51(3) of the RT Act regarding the condition of the property at the end of the tenancy in comparison to its condition at the commencement of the tenancy.
7. The landlord was aware of the hearing on 30 September 2016, and the notice of hearing from the Tribunal made clear a decision could be made in his absence if he failed to appear. The landlord had also previously experienced the ramifications of failing to appear, in circumstances where there had been an earlier decision to order the refund of the rental bond to the tenant in the absence of the landlord.
8. The obligation of the Tribunal under s 38(5) of the NCAT Act is that it must be satisfied a party has had a reasonable opportunity to appear and put their case before the Tribunal. To determine a matter in the absence of a party, it must further be satisfied that the party had notice of the hearing. The opportunity to be heard is not an immutable right, and the Tribunal must consider the just, quick, cheap and efficient resolution of the real issues in the proceedings under s 36 of the Civil and Administrative Tribunal Act 2013. As the Appeal Panel stated in Waters v Waghorn [2016] NSWCATAP 247 at [33]-[34]: "What emerges from a review of authorities is that, in order to demonstrate breach of procedural fairness, it is necessary to point to something outside the control of the party which led to the denial of procedural fairness…An appeal on the grounds of breach of procedural fairness is unlikely to succeed where the party had notice of his unavailability and through contumelious or dilatory conduct failed to appear."
9. The Member on 30 September 2016 had evidence to be satisfied the landlord was aware of the hearing, and had a reasonable opportunity to appear. At least one of the tenants was present, and ready to proceed. The rental bond is prima facie the property of the tenant, and there is clear prejudice to the tenant if proceedings are not determined with reasonable expedition, as the tenant is denied property which the landlord is only holding on trust.
10. In respect of the landlord running late, none of the issues raised by the landlord were issues that he was not aware of prior to 30 September 2016. There was no medical evidence provided that the landlord was unable to use public transport. Even if the landlord was unable to use public transport for medical reasons, he had ample opportunity to make arrangements so that he could attend the hearing on time, or arrange for another person to represent him at the hearing and for that person to attend the hearing on time. The landlord also had ample opportunity to arrange his financial affairs prior to the hearing so that he could catch a taxi to the hearing if he was unable to use public transport.
11. There is no evidence of any sudden or extraordinary event occurring that prevented the landlord from attending the Tribunal at the appointed time on 30 September 2016. Even if it is accepted that the landlord's friend had car trouble and the driver of the vehicle became lost on the way to the Tribunal (and no sworn evidence was provided to establish this), such events are not extraordinary.
12. A decision made in the absence of a party can constitute a failure to provide procedural fairness if there were "compelling" reasons why the party failed to appear (Hood t/as UR Place Landscape v Rutten [2016] NSWCATAP 250 at [13]-[16]). Such a principle is equally applicable to circumstances where a party attends a hearing, but arrives late and after the decision has been made. However, the reasons provided by the landlord as to why he did not appear at the Tribunal at the appointed time of the hearing fall significantly short of being "compelling". Rather, the failure to appear on time is due to the dilatory conduct of the landlord.
13. Further, the landlord provided no evidence or explanation as to why he failed to make a set aside application under cl 9 of the Civil and Administrative Tribunal Regulation 2013 in respect of the decision of 30 September 2016, which is also a relevant factor to consider in the circumstances of this matter: Hood t/as UR Place Landscape v Rutten [2016] NSWCATAP 250 at [17]. No failure to provide procedural fairness has been established by the landlord in respect of the decision of the Member to hear the matter in the absence of the landlord on 30 September 2016 and award the bond to the tenant.

Was there a substantial miscarriage of justice?

1. In respect of errors other than errors of law, Schedule 4 Part 6 cl 12 of the Civil and Administrative Tribunal Act 2013 relevantly states: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only 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). Note : Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.
2. We are not satisfied the landlord has established that he may have suffered a substantial miscarriage of justice. There was no denial of procedural fairness to the landlord by reason of the Tribunal hearing the matter in the absence of the landlord. Further, it cannot be said the decision was not fair and equitable in circumstances where the rental bond is the property of the tenant and the onus is upon the landlord to establish an entitlement to any component of the bond. The landlord did not appear and did not give evidence at the hearing on 30 September 2016 and accordingly the decision was not against the weight of evidence. There is nothing to indicate the landlord now has evidence available that was not reasonably available on 30 September 2016.
3. In any event, the principles applicable to whether leave should be granted under Schedule 4 Part 5 cl 12 of the Civil and Administrative Tribunal Act 2013 are set out in Collins v Urban [2014] NSWCATAP 17 at paragraphs [65]-[79]. Relevantly, the landlord must establish there was a "significant possibility" or a "chance that was fairly open" of a different or more favourable outcome to the landlord by reason of the circumstances in cl 12 (1) (a)-(c). The onus is upon the landlord to explain what his case would have been, and to show that it was fairly arguable.
4. At the appeal hearing the landlord confirmed that the tenants do not owe rent arrears. The landlord's case was that he was entitled to compensation because the tenants had caused damage to the premises. However, the ingoing inspection report contained comments by the tenants about the condition of the property at the commencement of the tenancy and it would likely be difficult for the landlord to establish that the tenants were in breach of the tenants' obligations under s 51(3) of the RT Act.
5. We note that the landlord had some evidence of the alleged damage, and the cost of repairs, being quotations from Hire a Hubby Mortdale dated 23 June 2016, and Keyora Pty Ltd dated 8 July 2016. Both quotations list various items for repair. However, in light of the comments of the tenants set out in the ingoing inspection report - being contemporaneous evidence of the condition of the property at the commencement of the tenancy - we consider that there were limited prospects of the landlord being able to establish that the tenants had breached s 51(3) of the RT Act. We are therefore not satisfied that the landlord has established there was a "significant possibility" or a "chance fairly open" that he would have been able to prove an entitlement to the bond, or any component of it. Therefore, even if the landlord had established that he may have suffered a substantial miscarriage of justice, we would not have granted leave to appeal.

Conclusion

1. For the reasons set out above, leave to appeal is refused and the 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: 28 February 2017