Kassab v Mandoukas

NCAT Appeal Panel|2021-04-21

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 2 February 2020. The respondent applied for orders for rent arrears arising from a Residential Tenancy Agreement. The application also sought an order for termination of the Residential Tenancy Agreement and possession of the premises. For convenience we shall refer to the appellant as the tenant and the respondent as the landlord.
The landlord filed an application in the Tribunal on 5 January 2021 seeking an order under s 87 of the Residential Tenancies Act, 2010 (NSW) (RT Act) being an order for termination of a residential tenancy agreement. The reasons in the application for requesting an order were as follows: During COVID 19, between landlord and tenant enter into an agreement on March 2020 [sic]. The agreement mention normal rent $860 fortnight postponed to $500 fortnight for 13 weeks. After 13 weeks holiday period, Tenant agreed normal rent paying $860 per fortnight plus $360 fortnight postponed rent instalment 13 weeks. Tenant had fail to replacement install from July 2020. Last date rent paid by tenant on 21/11/2020 rent covered period up to 22/11/2020. Rent had been in arrears over 44 days, on behalf landlord apply seeking terminate lease agreement and claim tenant's 4 weeks bond for part of rent.
The Tribunal heard the application on 2 February 2021 and terminated the Residential Tenancy Agreement in accordance with s 87 of the RT Act by finding that the tenant had breached the agreement by a failure to pay rent in accordance with the agreement. The Tribunal ordered possession of the premises but suspended that order for two weeks until 16 February 2021. An order for the tenant to pay a daily occupation fee at the rate of $61.42 was also made.
In addition the Tribunal ordered that the tenant, Maria Kassab, pay the landlord the sum of $4,422.85 for rent owed under the terms of the residential tenancy agreement for the period 23 November 2020 to 2 February 2021. It is relevant to note that the tenant vacated the premises in late 2020 and Mr Jon Ozcan, the tenant's fiancé, remained as an occupant in the premises. Leave was granted for Mr Ozcan to represent the tenant. The landlord was at all relevant times represented by a licensed real estate agent, Mr Sherman Kwong. However the agent did not appear at the hearing of the appeal. Ms A Mandoukas appeared for the landlord.

Notice of Appeal, history of appeal proceedings and submissions

The appeal was commenced by Notice of Appeal filed 15 February 2021. The appeal was filed in time, the appellant having received notice of the order and reasons for decision on or about 2 February 2021.
The tenant sought the following orders in her Notice of Appeal: "Pay Outstanding Monies Lawfully Contract (Rental) - to be put in (name of) Jon Ozcan"
The grounds of appeal are set out as follows: "The Tribunal wrongly calculated the monies outstanding because the Real Estate Agent was in error. Documentation will prove that we notified the Real Estate Agent and landlord with sufficient information to calculate the rent and tenants intent to pay rent and for lease to be changed into another name (Jon Ozcan). Real Estate Agent could not determine where my payments were."
The tenant relied upon 18 pages of material in support of her appeal. This material consisted of email exchanges between Mr Ozcan and Mr Kwong (the landlord's managing agent) and screen shots of text messages exchanged between Mr Ozcan and Mr Kwong.
The following background facts are not controversial: 1. The tenant left the residential premises in approximately October 2020. The landlord became aware of this development in December 2020. 2. Mr Ozcan, the tenant's fiancé, was an occupant of the residential premises prior to the tenant's departure and has remained in occupation of the premises to date. 3. No monies have been paid by or on behalf of the tenant since November 2020. 4. The tenant submits that the rent outstanding at the time of the Tribunal's order was approximately $3,200.00 not the amount of $4,422.85 as ordered by the Tribunal. 5. A stay of the order granted by the Appeal Panel on 25 February 2021 was lifted by the Appeal Panel on 18 March 2021. 6. The amount of $9,214.77 is now claimed by the landlord as the amount of rent outstanding as at the date of hearing of the appeal.
The landlord relied on brief written submissions dated 11 March 2021 in addition to the Reply to Appeal. The landlord supported the orders of the Tribunal and in the reply to the grounds of appeal stated that the landlord had attempted to resolve the non-payment issue and provided details of payments methods, but no payments had been forthcoming. As at the hearing of the appeal the landlord calculated the amount in dispute as $9,214.77 total rent owing. During the hearing of the appeal the parties confirmed that this amount was not in dispute.
The tenant sought to raise additional grounds of appeal and additional evidence at the commencement of the hearing. However, Mr Ozcan informed the Appeal Panel that the tenant's evidence had not been served on the respondent in accordance with earlier directions of the Appeal Panel. During a short adjournment the tenant was given leave to serve the material on the landlord by email. This was attended to and after the landlord's representative had an opportunity to inspect the material, the tenant's documents were admitted without objection. The evidence tendered by the applicant consisted of communications between the parties that had not been tendered before Tribunal below. Neither party was certain whether the exact material had been tendered before the Tribunal below, or whether fresh material had been included. As the landlord was not prejudiced by the material and the material was not objected to, the evidence was admitted. The Appeal Panel was satisfied that the hearing of the matter could resume.

Consideration

The grounds of the appeal raised during oral submissions concerned issues that were not raised at the original hearing and could, in our view, not be resolved within the confines of this appeal. The tenant now seeks fresh orders that were not agitated in the original application and hearing. First, she seeks an order that the amount of rent arrears $4422.85, as ordered on 2 February 2020, be varied to $3200. Second, the tenant seeks an order that the residential tenancy agreement and the resultant order for rent arrears be "transferred" into Mr Ozcan's name.
The application before the Tribunal sought orders under section 87 of the RT Act, a termination order where the tenant has breached the residential tenancy agreement for non payment of rent. The proceedings below did not concern the transfer of the residential tenancy agreement into Mr Ozcan's name, nor was an application brought before the Tribunal to have Mr Ozcan recognised as a tenant. The issue cannot be determined by this internal appeal under s 80(2) of the NCAT Act as no final decision to that effect was made by the Consumer and Commercial Division of the Tribunal on 2 February 2020.
In any event, neither the Tribunal in the proceedings that are the subject of this appeal nor the Appeal Panel in these appeal proceedings may make orders substituting the parties to a residential tenancy agreement. Further, the Appeal Panel has no power to order that money payable by one party to a tenancy agreement to another, be paid by a third party, that is, by Mr Ozcan. We note that the landlord does not consent to either order sought in any event.
In addition, the question of whether or not the residential tenancy agreement should he "transferred" into Mr Ozcan's name was dealt with in separate proceedings. Mr Ozcan commenced application RT 21/10600 seeking orders to have the tenancy transferred into his name. . Those proceedings were dismissed by the Tribunal on 31 March 2021. The orders were as follows: RT21/10600 Applicant: Jon Ozcan Respondent: Dimitrios Mandoukas On 31-Mar-2021 the following orders were made: 1. The application is dismissed because the applicant seeks to have a tenancy transferred to his name, however he is not a tenant, and there is no power to make such an order. The Tribunal has no jurisdiction to determine the application. Note: The parties advised today that the tenancy, which is in the name Maria Kassab, is subject to NCAT appeal proceedings AP 21/06900.
The decision has not been appealed against and the findings and orders made in RT 21/10600 are not considered within the confines of this appeal.
The landlord submitted that she has no intention to enter into a residential tenancy agreement with Mr Ozcan and in the absence of any other submission from the tenant we dismiss the tenant's first ground of appeal as it cannot be considered within the confines of this appeal.
We turn to the second ground of appeal. The tenant seeks to vary the finding that rent arrears were $4422.85 as at 2 February 2021. In respect of the order for rent arrears, no evidence was submitted on appeal that establishes how the Tribunal fell into error.
Further, no evidence was provided to the Appeal Panel that establishes how the tenant calculated the amount said to be owing. The Member's critical finding was as follows: "On the landlord's material, the rent is $860 per fortnight, the arrears from 23 November 2020 to 2 Feb 2021 are $4422.85 …. The tenant provided correspondence between the current occupant herself and the agent from early December 2020. However there is no evidence establishing that these relieved the tenant from her obligation to pay rent in accordance with the existing agreement".
The landlord confirmed during oral submissions that a rental ledger was provided to the Tribunal member below, although none was provided to the Appeal Panel. The argument advanced by the tenant was to the effect that Mr Ozcan had tried to contact the agent for the landlord, but that the agent refused to accept payments.
When it was brought to Mr Ozcan's attention that no evidence had been filed that would demonstrate an error in the calculation of the Tribunal, the tenant raised a slightly different ground of appeal. She sought to rely on email correspondence and text messages to establish that the landlord had previously agreed to waive the rent arrears. We have had regard to the messages tendered by the tenant. In an email dated 9 November 2020, the landlord's agent sought to summarise the position between the parties as follows: 1.We have not (sic) Notice of Termination send out to 9 April 2020. 2.Landlord is clear mentioned lease (sic) will not agreed changed (sic) another name in the lease agreement different with name (Ms Maria Kassab) 3.I had discussed with landlords; they had agreed during the Covid-19 rent postponed 3 months from $430 per week to $250 per week. The total amount outstanding $2340. Can be installed by $50. On top of the normal rent from 6 July 2020. Total instalment would be 47 weeks. 4.Our account re-calculation (sic) of your total payment: current rent paid up to 29 November 2020. Instalments pay up to 21 of 47 at $50 per week. Have credit $390. 5.Landlord request rent pay up today from 30/11/2020 to 28/12/2020 four weeks rent pay before 11 December 2020. Plus, instalment paying from 22 - 25 of 47 @ $50 per week on top of rent. 6.The total amount is $430/4 weeks = $1720 plus 50/4 = 1920 - 390 credit $390. = 1530. 7.This offer will end on 7 December 2020 at 5 PM.
It is not clear to us how this email establishes that the Tribunal arrived at the wrong calculation. No submission was made which assists the Appeal Panel in this regard. In any event, as paragraph 7 above clearly states the email of 9 November 2020 constitutes an offer made to the tenant to settle rent arrears on terms. The offer was not accepted and a settlement was not reached by the parties. There was no agreement between the parties that the rent arrears as found should be varied on the basis of a settlement reached between the parties in or about November 2020.
In summary, we are not satisfied that the tenant has established that the finding as to rent arrears was against the weight of evidence. Nor has the appellant established that the "evidence in its totality so strongly preponderates against the conclusion found by the Tribunal". For these reasons we do not find an error in respect of the rent arrears calculation established.
Consequently, leave to appeal should be refused: see cl 12(1) Sch 4 of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act) and Collins v Urban [2014] NSWCATAP 17 at [77].
We note that since the stay on the order made by the Tribunal was set aside on 18 March 2021 and the parties were placed on notice that the orders for termination, possession and rent arrears remained in full force and effect.

Orders

The Appeal Panel makes the following order: 1. The application for leave to appeal is refused. 2. The appeal is otherwise 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

Amendments 06 May 2021 - Published without notification 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: 06 May 2021

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