Kelly v Mechler

NCAT Appeal Panel|2020-12-07|Before: Blake AM, Dr J

Introduction

This is an internal appeal from two decisions of the Consumer and Commercial Division of the Tribunal made on 7 October 2020.
The appellant ("the tenant") is a tenant of a property owned by the respondent ("the landlord"). The tenant brought proceedings RT 20/26827 against the landlord in the Tribunal (the "tenant's proceedings"), claiming compensation and a reduction of rent on the basis that the premises were uninhabitable for a period of time.
The landlord brought proceedings RT 20/34684 against the tenant in the Tribunal (the "landlord's proceedings") seeking a termination order on the basis that the tenant had frequently failed to pay rent and an order that he pay unpaid rent.
Both matters were listed for hearing on 7 October 2020. The tenant did not appear at the hearing. The Tribunal recorded in its reasons for decision that it telephoned the tenant at the time of the hearing. The tenant denies receiving any call.
The Tribunal dismissed the tenant's proceedings for failure to appear and made the orders sought by the landlord in the landlord's proceedings.
The tenant has appealed from both decisions.
In the course of the hearing, the tenant withdrew his appeal against the Tribunal's decision in the tenant's proceedings and we dismissed it accordingly. We have decided that the Tribunal did not make any error in the landlord's proceedings and have also dismissed that appeal.

Tribunal decision

As indicated above, the Tribunal dismissed the tenant's proceedings because the tenant did not appear at the hearing. The appeal from that decision has been withdrawn and it is not necessary to say anything further about it.
In the landlord's proceedings, the Tribunal made a termination order in accordance with s 87 of the Residential Tenancies Act 2010 (NSW), on the basis that the tenant had breached the residential tenancy agreement by failing to pay rent. The Tribunal also made an order for immediate possession and ordered the tenant to pay $8,245 to the landlord immediately. The sum of $8,245 represented rental arrears.
The Tribunal indicated in its reasons that the tenant had not appeared at the hearing and that a notice of hearing had been sent to him. It stated that it had telephoned him on two occasions at the time of the hearing and left a message for him on the first occasion. The Tribunal also noted that the tenant had not complied with the procedural directions made on 21 September 2020.
The procedural directions made on 21 September 2020 required the tenant to provide to the landlord and the Tribunal, in hard copy, all documents on which he intended to rely, by 21 September 2020. Those directions contained a note stating: "A failure by a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on the documents at the hearing, unless leave is granted to do so."
The tenant did not provide any documentary evidence to the landlord or the Tribunal.
The Tribunal made a number of findings, in reliance on the evidence filed by the landlord, supporting the termination order and the order to pay rental arrears. It stated: "There is no evidence which provides a reasonable explanation for the tenant's failure to pay rent. There is little evidence that the tenant is an impacted tenant."
The term "impacted tenant" is used in Part 13 of the Residential Tenancies Act. An "impacted tenant" is defined in s 228A of that Act to mean "a tenant who is a member of a household impacted by the COVID-19 pandemic."
The tenant lodged an appeal from the Tribunal's orders on 12 October 2020.
On 30 October 2020, the tenant lodged an application to set aside or vary Tribunal decision. The Tribunal registry treated this as a document filed on the appeal and we had regard to it as part of the appeal. In this application, the tenant stated that the landlord was lying about the amount of rent owing, that the tenant submitted his bank account to the Tribunal to show he had paid rent and how much he had paid and the Tribunal still ruled that he owed $8,000.
Following the hearing of the appeal, we made a direction that the Registrar forward the application to set aside or vary Tribunal decision to the Consumer and Commercial Division for it to be processed. It appeared to us that it was placed with the appeal papers in error.

The Appeal Panel proceedings

In the appeal from the decision in the landlord's proceedings, the tenant: 1. challenges all orders made by the Tribunal; 2. lists the following grounds of appeal (relevant to the landlord's proceedings) in his Notice of Appeal: "I was not called for the hearing. I received no call. No call, missed or otherwise, appeared on my phone. No phone messages were received. The decisions were not commensurate with the facts. I do not owe any money. My bank statement (submitted) proves this, but it was ignored by NCAT"; 1. seeks the orders he "asked for originally" (presumably, the dismissal of the landlord's proceedings); 2. seeks leave to appeal because the Tribunal decision was not fair and equitable, because it was against the weight of evidence and because significant new evidence is now available that was not reasonably available at the time of the hearing.
On 19 October 2020, the landlord filed her reply to appeal in which she supports the original orders made by the Tribunal and opposes leave to appeal being granted.

Applications for a stay

The tenant applied on 12 October 2020 for a stay of the termination order, the order for possession and the order for the payment of rental arrears (in the landlord's proceedings). Under s 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), the Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending appeal relates as it considers appropriate to secure the effectiveness of the determination of the appeal.
On 30 October 2020, the Appeal Panel, constituted by Deputy President Westgarth, stayed those orders. The stay order was conditional upon the tenant paying $5,000 by 6 November 2020.
The tenant did not pay $5,000 by 6 November 2020. The landlord applied to lift the stay order on 7 November 2020. On 23 November 2020, the Appeal Panel, constituted by Principal Member Suthers, set aside the stay order made on 30 October 2020.
On 10 December 2020 (after the hearing of the appeal), the tenant made another application for a stay. The tenant stated in the application form that he had been evicted the day before but wanted a stay so he could access his possessions.
As we have decided to dismiss the appeal, we have also dismissed the application for a stay. A stay is not "appropriate to secure the effectiveness of the determination of the appeal" (within s 43(3) of the NCAT Act) in circumstances where we have decided to dismiss the appeal.

The scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: NCAT Act, s 80(2)(b).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law which relevantly includes whether the Tribunal identified the wrong issue or asked the wrong question, whether the Tribunal applied a wrong principle of law, and whether the Tribunal failure to afford procedural fairness.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 ("Collins"), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 to the NCAT Act may have been suffered where: "… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 to the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 to the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 to the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
In Collins, the Appeal Panel at [84] stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that, in the case of an appeal from a decision under the Residential Tenancies Act, an internal appeal must be lodged within 14 days from the day on which the appellant was notified of the decision to be appealed. The tenant lodged the notice of appeal within time.
In Cominos v Di Rico [2016] NSWCATAP 5 ("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, 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 hearing of the appeal

The hearing of the appeal was conducted by telephone. The appellant appeared in person and the respondent's real estate agent, Anthony Romano, appeared on her behalf. Leave was granted to Mr Romano to represent the respondent at a directions hearing on 28 October 2020.
The parties both relied on their written submissions and made oral submissions.

The issues

Having regard to the principles in Cominos, we have discerned from the orders challenged on appeal, the grounds of appeal in the notice of appeal, the material provided the appellant, and the Tribunal decision the following grounds of appeal: 1. the Tribunal denied the tenant procedural fairness by hearing the proceedings in his absence and failing to telephone him at the commencement of the hearing; 2. the Tribunal's finding that the tenant owed rental arrears of $8,245 was erroneous; 3. the Tribunal erred in making a termination order in circumstances where the tenant was an impacted tenant.
The first and third grounds raise questions of law, and leave is not needed to appeal on these grounds. The second ground does not raise a question of law, and the Appeal Panel's leave is needed to appeal on this ground.

Ground 1: the Tribunal failed to afford the appellant procedural fairness

The tenant claimed in his Notice of Appeal that the Tribunal did not telephone him for the hearing, that no missed call appeared on his telephone and that he did not receive any telephone message from the Tribunal. This may be characterised as a claim that the Tribunal denied the tenant procedural fairness.
The Tribunal recorded in its reasons for decision: "The tenant has not appeared before the Tribunal on the hearing today. A copy of the Notice of Hearing addressed to the tenant at the residential premises the subject of the tenancy appears on the tribunal's file. Having regard to the Registrar's statutory declaration concerning notice and listing procedures in the Tribunal's registries, the Tribunal finds that a copy of the Notice of Hearing was sent to the tenant. It has not been returned to the Tribunal. There is nothing to suggest that it was not received by the tenant. The Tribunal is satisfied that the tenant has been served with notice of the hearing today. The Tribunal telephoned the tenant on two occasions at the time of the hearing. The Tribunal left a message for the tenant of the first occasion advising him of the hearing and further advising him that if he wished to participate he needed to answer the telephone. The Tribunal further notes that the tenant has not complied with the procedural directions made by the Tribunal on 21 September 2020."
In support of his contention that the Tribunal did not call him at the time of the hearing, the tenant provided a print out of telephone calls sent to and received from an unspecified mobile number. This shows, in one column, a call made on "Saturday" and then calls made on 24 September 2020 and earlier. It shows, in another column, a call made on "Saturday", a call made on "Wednesday," then calls made on 29 September 2020 and earlier. The date on which the document was printed does not appear.
The tenant also provided what appears to be a transcript of a telephone call he had with a mobile service provider on 8 October 2020.
This evidence was not before the Tribunal and the Appeal Panel has a discretion as to whether to admit it. In Yuen v Thom [2016] NSWCATAP 243 at [21], the Appeal Panel commented: "An appeal on a question of law would rarely warrant the receipt of new evidence. There may nevertheless be circumstances where the particular question of law warrants the receipt of additional evidence to prove the error. In Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [13], in the context of an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975, it was stated that it is generally inapposite to receive new evidence on an appeal on a question of law. However, an exception may be made where the evidence is necessary to prove the circumstances to prove a breach of procedural fairness; and so, the receipt of evidence that was not before the decision maker may be appropriate (such as evidence that a hearing notice was not received: see, for example, Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127 at 129)."
We have decided to admit the evidence of the telephone calls and the transcript of a conversation with a telephone service provider, because the evidence is adduced to prove the circumstances to prove a breach of procedural fairness. We do not, however, consider that the evidence establishes that the Tribunal failed to telephone the tenant.
The most recent date shown on the print out of telephone calls was 29 September 2020. That was a Tuesday. The call made on "Saturday" (the most recent call) may have been made on 3 October 2020. If so, with no date of printing apparent on the document, and no evidence as to the mobile phone number to which the calls relate, the document does not establish that the tenant did not receive a call from the Tribunal on 7 October 2020.
The transcript of a conversation between the tenant and a person from a telephone company does not identify the company in question and there is no evidence as to the source of the document. In the transcript, the person to whom the tenant apparently spoke stated that there was no voice mail set up on the tenant's mobile phone and that the telephone company did not have access to the incoming call details. Whilst this tends to suggest that the Tribunal did not leave a voicemail on the tenant's telephone (as it stated it did), the evidence is not probative in the absence of any evidence to identify the source of the document and the telephone company in question.
Rule 35(2) of the NCAT Rules provides that the Tribunal may proceed to hear proceedings in the Consumer and Commercial Division in the absence of a party who has failed to attend the hearing if the Tribunal is satisfied that notice of the hearing was duly served on the party. The Tribunal stated, in its reasons, that it was satisfied that the notice of hearing had been served on the tenant. Assuming that the tenant "failed to attend the hearing" (as opposed to the Tribunal failing to call him), the Tribunal complied with r 35(2) when it heard and determined the proceedings in the absence of the tenant.
The Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (or procedural fairness) (NCAT Act, s 38(2)). Rule 35 is, in our view, to be read subject to the Tribunal's obligation to comply with the rules of procedural fairness.
The tenant has not provided any evidence which satisfies us that the Tribunal did not telephone him at the time of the hearing, as it stated that it did. The tenant did not provide a statement or a statutory declaration stating that he was waiting for the call, but that it did not come. There is no suggestion that the tenant contacted the Tribunal when (as he claims) the call to him was not made at the appointed time. Nor did he provide the Appeal Panel with the hearing directions (which would have indicated whether he was required to telephone the Tribunal at the time of the hearing, or whether he was directed to await the Tribunal's call).
The landlord's agent, Mr Romano, who attended the hearing before the Tribunal by telephone, said at the appeal hearing that the Tribunal member appeared to telephone the tenant.
In the circumstances, we are not satisfied, as a matter of fact, that the Tribunal failed to telephone the tenant at the time of the hearing. For this reason, we find that the tenant has not established that he was denied procedural fairness.
The tenant's first ground of appeal is dismissed.

Ground 2: the Tribunal erred in finding that the tenant owed $8,245

We understand the tenant's second ground of appeal to be that the Tribunal's decision that the tenant owed $8,245 in rental arrears was erroneous. This ground does not raise a question of law.
The tenant seeks leave to appeal on this ground on the bases that he may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, or was against the weight of evidence, or because significant new evidence has arisen since the hearing.
The tenant sought to rely on new evidence in support of this ground of appeal, none of which was before the Tribunal. This included the tenant's bank statements showing some payment of rent, text messages and emails between the tenant and the landlord and the tenant and the landlord's agent and a statement by the tenant about various matters.
As indicated above, if an appellant from a decision in the Consumer and Commercial Division requires leave to appeal, the appellant may only do so on limited grounds, including that the appellant may have suffered a substantial miscarriage of justice because "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)" (NCAT Act, Sch 4, cl 12(1)(c)). In Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23], the Appeal Panel said that "the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence." That approach has been consistently applied by the Appeal Panel (see, for example, Chen v NSW Land and Housing Corporation [2020] NSWCATAP 238 at [58]).
We have decided not to admit the new evidence on which the tenant seeks to rely because there is no reasonable explanation for why he did not put it before the Tribunal. We consider that it was reasonably available at the time of the hearing.
We also doubt that any of the new evidence is properly described as "significant."
The bank statements do not, in fact, prove that the tenant does not owe the landlord any money. The tenant appears to accept that he has not paid the agreed amount of rent per week but argues that a greater reduction should have been given.
An email from the landlord's agent dated 14 August 2020 indicates that the landlord agreed to a 25% reduction in rent to $660. The tenant stated, in a statement made in the appeal proceedings: "When 2/3 of our flat had no income a 25% reduction simply isn't enough. I kept trying to negotiate, even as more of us lost our jobs, but she refused. We simply didn't and don't have the money to pay $660/week + bills. Her position is unreasonable…"
The tenant appears to be arguing elsewhere that the rent had been reduced to $450 by the time the landlord agreed to $660, but has not provided evidence to support this. His own statement contradicts this claim.
The tenant has not established that he may have suffered a substantial miscarriage of justice on any other basis.
The tenant submitted that the decision was not fair and equitable because his bank account showed he had paid the rent and an email from the real estate agent showed that he was $455 in credit when the agent took over. As indicated above, even if we were to admit the evidence of the real estate agent's email dated 14 August 2020, it stated that the tenant was paid to 22 June 2020 with a $455 credit in hand. We take that to mean that he had paid rent to 22 June 2020, and about half a week's rent after that, but that he was about six weeks behind as at 14 August 2020.
We are not persuaded that the tenant's bank statements (if admitted) would establish that the amount of arrears, as found by the Tribunal, was erroneous. The bank statements do not establish that the tenant was paying the required amount of rent (or, at times, any rent). The statements indicate that he was paying $450 per week and then $300 per week in the months prior to the termination order. This is well short of the full amount of rent ($880) and the reduced amount ($660).
The tenant provided what he says is an email from the landlord on 7 August 2020 "where she accepts the $300/week rent." The record provided does not have the appearance of an email exchange (there are no email headers or dates in the usual format). The record indicates that, on 6 August 2020 (a date superimposed on to the document), the tenant's message said: "One more girl has left due to the continuing noise. Rent will now be $300/week." The landlord's reply the following day was: "Thanks for the update."
In our view, this does not establish that the landlord accepted a new, reduced rental amount of $300 per week. An email from the landlord's agent, a week later, indicates that she did not. There was no consideration on the tenant's part for any agreement to accept a lower rent in any event.
A statutory declaration made by Anthony Romano, the licensee in charge of the agent appointed by the landlord, on 11 November 2020, states that the tenant has not paid any money into his trust account since the date he was appointed to manage the property. A statutory declaration made by the landlord on the same date states that, since 7 October 2020, the tenant had only paid her $1500. We accept this evidence, as it is sworn evidence and it was not challenged.
For the reasons given above, we are not satisfied that, the evidence is "significant new evidence" which was "not reasonably available" at the time of the Tribunal hearing. Even if we were to admit the new evidence, we are not persuaded that it would establish that the Tribunal's decision was not fair and equitable or that it was against the weight of evidence.
Accordingly, leave to appeal is refused in respect of the tenant's second ground of appeal.

Ground 3: the Tribunal erred in making a termination order in circumstances where the tenant was an impacted tenant

The tenant sought to rely upon statements from his flatmates to the effect that they had lost their jobs as a result of COVID-19. This was to establish that he was an impacted tenant and the Tribunal erred in making a termination order in those circumstances.
Under cl 41B(1) of the Residential Tenancies Regulation 2019 (NSW), a landlord is prohibited from giving an impacted tenant a termination notice under s 87 of the Residential Tenancies Act on the ground specified in s 88 of that Act during the "relevant period". The "relevant period" is the period ending on 26 March 2021 (Residential Tenancies Regulation, cl 41A). A landlord may, however, give a termination notice or apply for a termination order that the landlord is otherwise prohibited from giving or applying for if the landlord has participated, in good faith, in a formal rent negotiation process with the impacted tenant, and it is fair and reasonable in the circumstances for the landlord to give the termination notice or apply for the order (Residential Tenancies Regulation, cl 41B(2)).
There was no evidence before the Tribunal to establish that the tenant was an impacted tenant.
The tenant's explanation for not providing the evidence from the flatmates earlier was that none of his flatmates wanted to provide evidence at the time of the hearing, because they had been threatened with legal action by a friend of the landlord. The evidence before us does not establish that this was the case. Even if this could be established as a matter of fact, we doubt that the new evidence from the flatmates would properly be characterised as evidence which was not "reasonably available" at the time of the hearing, within the meaning of cl 12 of Sch 4 of the NCAT Act.
We have decided not to admit it.
In circumstances where the Tribunal did not have evidence before it to establish that the tenant was an impacted tenant, it did not make any error in making a termination order.
The third ground of appeal is dismissed.

Orders

We make the following orders: 1. Leave to appeal on the ground of appeal which does not identify a question of law is refused; 2. Appeal dismissed; 3. The stay application made on 10 December 2020 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: 18 December 2020

At a glance

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Cases Cited (8)