From 7 October 2023 the appellant and the third respondent occupied premises in Oran Park pursuant to a residential tenancy agreement with the first and second respondents (the landlords).
On 3 April 2024 the landlords filed an application in the Tribunal seeking termination of the tenancy for the non-payment of rent and payment of the bond.
It appears that the third respondent had ceased to occupy the premises by April 2024. As a tenant named on the tenancy agreement, he was a proper party to the original application and a necessary party to the appeal by virtue of rule 29(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules). He took no part in the proceedings.
The application identified: that a termination notice had been issued to the tenants on 12 March 2024; that the tenants were in arrears of rent in the amount of $14,050; and that:
"this matter was previously dealt with at the tribunal on 5 March 2024 - case number 2023/0044 1729, however the member did not give make orders for vacant possession. The tenant has paid only one weeks rent since then, rent is now paid to 1 December 2023 with credit of $350."
On 23 April 2024 the Tribunal made orders as follows:
"3. The Tribunal orders the Residential Tenancy Agreement is terminated immediately and vacant possession is to be given to the landlord on the date of termination.
4. The Tribunal makes an order under section 114(2) of the Residential Tenancies Act 2010, that the order for possession is suspended until 14 May 2024.
5. The tenant is to pay the landlord a daily occupation fee, at the rate of $114.29, per day from the day after the date of termination, 24 April 2024 until the date vacant possession is given.
6. The landlord may request the relisting of this application, to determine the occupation fee, owing, within 60 days from the date of possession.
7. The Tribunal orders that the respondents Clare Kennedy, lan Perry, is to pay the applicants Rajwinder Kaur,Pardeep Singh, the sum of $5,600.00, on or before 14 May 2024.
Details of the Money order:
1. Rent from 06 Mar 2024 to 23 Apr 2024 $5,600.00"
The appellant filed a Notice of Appeal and application for a stay of the decision on 14 May 2024.
On 16 May 2024 the Appeal Panel, constituted by Principal Member Suthers, declined to grant a stay ex parte (that is, without hearing from the landlords). The Appeal Panel noted that the Tribunal had made no finding that the appellant had frequently failed to pay rent so that "the appellant can save the tenancy by paying all outstanding rent before the warrant for possession is executed or if they enter into and comply with an agreed payment plan for the outstanding rent", by virtue of s 89(3) of the Residential Tenancies Act 2010 (NSW) (RTA).
The Appeal Panel indicated that it may revisit the issue of an ex parte stay if the appellant filed further evidence and submissions in support of the application for a stay.
The appellant did file further submissions on 17 May 2024 and, on that date, the Appeal Panel suspended the operation of the order for possession until 31 May 2024 or the finalisation of the appeal whichever was earlier in time.
On 31 May 2024 the Appeal Panel made directions for the preparation of the appeal. Those directions required the appellant to file by 21 June 2024:
"(a) All the evidence given to the Tribunal at first instance on which it is intended to rely;
(b) Any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely;
(c) The Appellant's written submissions in support of the appeal; and
(d) If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing."
The suspension of the order for possession was continued until 12 June 2024 on condition that the appellant paid the sum of $1450 to the landlords by 4 pm on 3 June 2024.
The appeal was listed for directions on 12 June 2024. On that occasion the appeal was stood over to 19 June 2024.
On 19 June 2024 the Appeal Panel ordered:
"1 In respect of the decision made on 23 April 2024 in matter number 2024/001777945 the operation of the order for possession is suspended until further order of the Tribunal or finalisation of the appeal, whichever is the earlier in time.
The preceding order is conditional upon Clare Kennedy (APPELLANT):
Paying $1000 to the respondent landlords' agents trust account on or before 4pm on 27 June 2024, and weekly thereafter, pending determination of the appeal.
NOTE: Pardeep Singh (RESPONDENT) and Rajwinder Kaur (RESPONDENT) are free at any time to make an application for the stay granted by these orders to be lifted, if a condition is not complied with or if there are any other sufficient grounds for doing so. They may do so by writing to the Tribunal and appellant, with evidence of alleged non-compliance with the stay."
As noted above, the appellant filed documents on 17 May 2024 supporting the application for a stay of the order for possession. The appellant also filed, on 11 June 2024, emails from Anglicare Community Services and Wesley Mission which referred in general terms to some payments to the landlords on account of rent having been made on the appellant's behalf. The appellant did not file any further documents. In particular, she did not provide a sound recording of the hearing at first instance or a transcript of any parts of that hearing.
On 13 July 2024 the landlords' agent sent an email to the Tribunal seeking that the stay of the order for possession granted by the Appeal Panel be lifted "as the tenant has defaulted on the orders made on 21st June 2024, to pay money. No rent was received on 11 July 2024."
[2]
Extension of time
As the proceedings at first instance were "residential proceedings", rule 25(4)(b) of the Rules required that the Notice of Appeal be lodged within 14 days of the appellant becoming aware of the decision. As the appellant accepts that she became aware of the decision on 23 April 2024, her Notice of Appeal was required to be filed by 7 May 2024. As the Notice of Appeal was received by the Tribunal on 14 May 2024, the appeal was lodged seven days late.
However, s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) empowers the Tribunal, including the Appeal Panel, to extend the time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction.
The relevant considerations as to the exercise of the discretion to extend time were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]:
(1) Is there proof that strict compliance with the rules will work an injustice on the applicant?
(2) In the context of a pending appeal, the expiration period for the appeal gives a vested right to retain the decision in question with the consequence that the time for appealing should not be extended unless the proposed appeal has prospects of success.
(3) It will usually be necessary to consider:
(a) the length of the delay,
(b) the reason(s) for the delay,
(c) the applicant's prospects of success, i.e. whether there is a fairly arguable case, and
(d) the extent of any prejudice suffered by the opponents.
(4) If the explanation for the delay is less than satisfactory and/or if the opponent has a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable.
The delay is relatively short. The appellant's explanation for the delay in filing the Notice of Appeal was that she, and the tenancy support service which had been assisting her, had been in communication with the landlords' agent regarding the reconciliation of payments and it was only when the agent informed the appellant on 14 May 2024 that she intended to apply for a warrant for possession on that day that the appellant decided to lodge the appeal. We shall consider whether to grant an extension of time for the filing of the appeal after assessing the merits of the appeal.
[3]
Scope and nature of internal appeals
Section 80(2) of the NCAT Act provides that an internal appeal from a decision of the kind in this appeal can be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
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 of 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 the Appeal Panel set out the principles applicable when considering whether leave should be granted.
As the Appeal Panel noted in Bowers v Karai [2021] NSWCATAP 316 at [11] and Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]:
"An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal with the opportunity to run their case again."
[4]
Grounds of appeal
The appellant's grounds of appeal as set out in the Notice of Appeal were:
"I was not made aware of the hearing date as the notice from NCAT was posted to my address and I do not have access to the letterbox the agent is aware of this and a key was never provided.
I was granted leave to appear via phone - and with the assistance of a concilliator orders were made by consent and order for monies to be paid for a period of rent was also made that was not by consent despite some of the rent being paid."
The appellant also sought leave to appeal on the bases that the decision of the Tribunal was against the weight of evidence and that there was significant new evidence now available that was not reasonably available at the time of the hearing.
In relation to the application for leave on the basis that the decision was against the weight of evidence, the applicant stated that she was not present at the hearing, was never supplied with any documents by the other party and wasn't able to present any evidence. The appellant asserted that, if she had been able to present evidence, she would have provided "all my payment receipts as now supplied to the agent".
The appellant identified the new evidence that was not reasonably available at the time of the hearing as being "payment receipts detailing all payments made to the agents". The appellant stated that this evidence was not available at time of the hearing because "I attended the hearing via phone and an adjournment was refused despite not being notified of the hearing."
It is immediately apparent that the Notice of Appeal does not raise any question of law, save possibly the question whether the appellant was denied procedural fairness in that she had not been given notice of the hearing.
[5]
The Appeal Hearing
At the commencement of the appeal hearing, the appellant sought an adjournment on the basis that she was in the process of moving house and had not been able to prepare her documents because her son had been diagnosed with a serious illness.
The respondent opposed the adjournment application.
The Appeal Panel asked the appellant to explain the basis of her appeal.
The appellant stated:
1. That she was challenging the money order only, that is, she was not challenging the order terminating the tenancy and for possession;
2. That she had not consented to the money order; and
3. That she had produced documents to the agent for the landlords to show that not all rental payments had been acknowledged in the rental ledger. The appellant stated that some (at least one) payments had been made by her employer.
The Appeal Panel pointed out that the appellant had not produced a transcript or any recording of the hearing to make good her assertion that she had not consented to the orders made, and that the timetable had required her to file any documents by 21 June 2024.
The appellant stated that her son had fallen on 19 June 2024.
The Appeal Panel asked the respondent's agent (Ms Krishna) how much rent was outstanding. Ms Krishna stated that it was over $15,000 and pointed to a judgment given by the Tribunal against the appellant on 5 March 2024 in the amount of $11,314.29 in respect of rent from 28 November 2023 to 5 March 2024.
The Appeal Panel noted that that judgment is not the subject of the appeal and that the decision under appeal is the order for the payment of $5600 in respect of rent due from 6 March 2024 to 23 April 2024.
Although the appellant had not filed any evidence in support of her application for adjournment, the Appeal Panel determined to allow the appellant the opportunity to file documentation in support of her appeal. The Appeal Panel made orders as follows:
"2 By 31 July 2024 the appellant is to file and serve upon the respondents further documents including:
(a) the recording of the hearing in matter number 2024/00124382 on 23 April 2024 and a transcript of that recording;
(b) records, that is documentary evidence, of all payments (including payments made by the appellant's employer) which the appellant claims have been made to the respondent landlords since the commencement of the tenancy;
(c) submissions in support of the appellant's case, including a clear indication of the payments which the appellant asserts have not been acknowledged by the landlords' agent.
3 By 14 August 2024 the respondents are to file and serve on the appellant any further submissions and documents, in particular addressing the issues:
(a) Whether the transcript supports the appellant's case that she did not consent to the money order made on 23 April 2024; and
(b) Whether the specific payments which the appellant says have not been acknowledged were received and/or recorded in the rent ledger.
4 On receipt of the further documents the subject of the preceding orders the Appeal Panel will determine the appeal without a further hearing.
5 The stay of the order for possession made on 23 April 2024 in matter number 2024/00124382 (incorrectly referred to as 2024/001777945) granted on 19 June 2024 is lifted."
The Appeal Panel has received no further documentation from the appellant.
In the circumstances we cannot be satisfied that the appellant was denied procedural fairness through being denied the opportunity to put any material before the Tribunal. The appellant has not established, either by the provision of a transcript of the hearing or by documentary evidence, that she was not given an opportunity to present evidence, or that there was evidence which she could have presented, if given the opportunity.
Even if the appellant did not have a reasonable opportunity to appear at the hearing and present evidence, we cannot be satisfied that any such denial of opportunity was material to the decision.
In Sinha v NSW Land and Housing Corporation [2024] NSWCATAP 130, the Appeal Panel held, at [64] - [67]:
"64 The Tribunal is bound to accord procedural fairness to the parties - an obligation derived from the common law and reinforced by ss 38 (2) and (5) (c) of the CAT Act: see CKG v Public Guardian [2014] NSWCATAP 32 at [14]; Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41 at [62].
65 Section s 38 (5) (c) of the NCAT Act, provides:
The Tribunal is to take such measures as are reasonably practicable-
….
(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
66 The application of s 38 (5) of the NCAT Act must be considered in the context in which "the concern of the law is to avoid practical injustice": per Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].
67 Recently, in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610, making reference to earlier decisions of the High Court such as Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 and Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, the plurality of the High Court said in relation to the question of materiality of error, including by the denial of procedural fairness:
16. In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion)."
The appellant has been given a full opportunity to produce the evidence which she claims she was prevented from putting before the Tribunal. Having failed to produce any such evidence, the appellant cannot sensibly claim that there was any realistic possibility that evidence she was prevented from putting before the Tribunal might have affected the outcome of the proceedings.
Furthermore, in the absence of a transcript of the hearing, we cannot be satisfied that the appellant did not consent to the money order made on 23 April 2024, and we cannot be satisfied that the decision to make the money order was against the weight of evidence: see Aboss v Hafeez [2022] NSWCATAP 345 at [29] - [30].
Although the extension of time required is short and it has not been suggested that any prejudice to the landlords would flow from the grant of an extension of time for the filing of the appeal, we consider that the appellant's appeal does not have sufficient prospects of success to warrant the grant of an extension of time.
Accordingly, the appellant's application for an extension of time for the filing of the appeal will be refused and the appeal dismissed.
We note that the stay of the order for possession was lifted by order 5 made at the conclusion of the hearing of the appeal (see [37] above) and no further order is necessary in that regard.
[6]
orders
Our orders are:
1. The appellant's application for an extension of time for the filing of the Notice of Appeal is refused.
2. The appeal is dismissed.
[7]
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: 19 February 2025