Khanna v Baweja

Background

1. The present appeal is an "internal appeal" within the meaning of s 32 of the Tribunal Act, the decision of the Member on 6 July 2017 being a "general decision" within the meaning of s 29. The Appellant has exercised her right to bring the appeal pursuant to s 80(2) of the Tribunal Act.
2. The proceedings under appeal have their origin in proceedings instituted by the Respondent in October 2016. At that time, the Respondent, as landlord, sought an order against the Appellant, as tenant, pursuant to s 85 of the Residential Tenancies Act 2010 (NSW), terminating a residential tenancy of premises at 1 Hambro Avenue, Glenwood, together with an order giving possession of those premises to the Respondent. The orders sought by the Respondent were made by the Tribunal on 1 February 2017.
3. The Appellant appealed from the decision to make those orders. She also appealed from the decision made by the Tribunal on that same day, dismissing two applications that she had made under the Residential Tenancies Act. All three appeals were dismissed by an Appeal Panel on 17 May 2017 (Khanna v Baweja [2017] NSWCATAP 107 (the Khanna Appeal No.1)).
4. Notwithstanding the dismissal of the Appellant's appeal against the termination order made on 1 February 2017, there remained for determination by the Tribunal the amount (if any) payable by the Appellant to the Respondent as an occupation fee for the period between the date upon which the order terminating the Appellant's tenancy operated and the date on which possession was obtained by the Respondent. The Member hearing that remaining aspect of the Respondent's application, following dismissal of the earlier appeal, determined that vacant possession of the premises was not obtained until 8 June 2017, being the date upon which the Sheriff took possession of the premises upon enforcement of the Tribunal's order. He determined that for the period from 16 February 2017 to 8 June 2017 the occupation fee payable was to be calculated at the rate of $72.86 per day, totalling $8,102.22.

The appeal

1. On the hearing of the appeal the Appellant was represented by her husband, Sanjeev Khanna. The Respondent was represented by his agent, Ms P Hase.
2. The Notice of Appeal, apparently prepared without the benefit of legal assistance, identified three grounds of appeal although one of those grounds was not, with respect, readily understandable and appeared to be an alternate means of expressing one of the other grounds. One ground of appeal alleged "prejudice and bias" on the part of the Member by reason of his claimed failure to address the contention of the Appellant that a rent ledger produced by the Respondent to establish the state of the Appellant's account was not the ledger of the Respondent's agent. The second ground alleged a failure by the Member to take account of the fact that the Appellant could not pay any outstanding occupation fee immediately as both she and her husband were pensioners and could only meet any liability by making instalment payments.
3. Both the written outline of submissions and the oral argument before us on behalf of the Appellant raised a number of matters or issues that had been agitated before and determined by the Appeal Panel in the Khanna Appeal No.1. So much is apparent from the Appeal Panel's Reasons. The existence and validity of a tenancy agreement pursuant to which the Appellant occupied premises that are the subject of that agreement and the proper construction of the agreement were determined in that decision at [40]. So also, a challenge to the validity of the termination order made on 1 February 2017 was rejected by the Appeal Panel at [44].
4. Notwithstanding the terms of the Notice of Appeal, as we understand the primary arguments put to us on the hearing of the appeal, they were first that no occupation fee was payable because the premises for which the fee was payable were wrongly described. The second broad submission was that the tenancy ledger tendered to the Member on 6 July 2017 to prove the absence of any payment of an occupation fee was neither the ledger of the landlord nor of his agent. It was also submitted that there was irregularity attending certain statutory registration numbers relating to the Respondent's agent
5. The first of those contentions would appear to echo a submission made to and rejected by the Appeal Panel in the Khanna Appeal No.1. It is uncontroversial that the premises that are the subject of the proceedings are within a building located at the corner of Hambro Avenue and Dairy Court, Glenwood. That building is described as a duplex building, containing two units or apartments, that has been the subject of strata subdivision. The premises that are the subject of the tenancy agreement are identified by their Hambro Avenue address. Some documents, including accounts from utilities, identify the premises as either Lot 2 or number 12 Dairy Court, Glenwood.. This alternate description, so it seems, is the basis for the "misdescription" argument advanced on behalf of the Appellant.
6. Mr Khanna contended before us that the Hambro Avenue address was not the address of the residential premises but was only a "postal address" (sic), an address for the owners' corporation or an address of the common property under the strata scheme applying to the building. Thus, his submission was that the residential premises themselves had a Dairy Court address rather than a Hambro Avenue address. A similar submission was made and rejected in the Khanna Appeal No.1 at [38].
7. However, upon questioning by us, it was conceded by the Appellant that Hambro Avenue is an address of the building in which the Appellant was the tenant of the unit or apartment that is the subject of the tenancy agreement. Only one unit or apartment in that building was occupied by her. As a consequence, there is no substance in the Appellant's submission. The premises alleged to have been occupied by the Appellant between February and June of this year were the premises that were the subject of the tenancy agreement entered into between the parties on 4 March 2015 for a period of 12 months from 8 March of that year and are the premises that were the subject of the termination order made by the Tribunal on 1 February 2017, the validity of which was upheld in the Khanna Appeal No.1.
8. The Appellant's argument directed to the identity of the company whose ledgers were produced by the Respondent's agent at the hearing before the Member ultimately proved to be of no relevance to the Appellant's grounds of appeal. That is because other matters, to which we will turn, rendered it unnecessary to address the argument directed to those ledgers.
9. Initially, Mr Khanna asserted before us that the Respondent had, in fact, been given possession of the premises on 27 February, with the consequence that no occupation fee was payable. He contended that the Member had not correctly recorded his position in the decision given on 6 July when the Member said: "Mr Khanna first attempted to argue that the tenant gave vacant possession of the premises to the landlord on 27 February but then appeared to abandon this claim when he asserted that many of the tenant's and his own personal possessions remained in the premises on 8 June."
10. Notwithstanding directions earlier given by the Appeal Panel (differently constituted) for the conduct of the present appeal, requiring that the sound recording of any aspect of the hearing before the Member be provided to the Appeal Panel and to the Respondent, should there be any controversy as to evidence given or statements made in the hearing before the Member, no such recording or transcript of proceedings was provided at the hearing of the present appeal. Ultimately, the absence of a record of the proceedings before the Member proved irrelevant to the determination of this issue for the Reasons that follow.
11. The hearing of the Khanna Appeal No.1 took place on 3 April 2017. The Reasons published by the Appeal Panel on 17 May 2017 included the following at [60]: "On 2 March 2017 order 15 was stayed subject to conditions. At the hearing, Mr Khanna stated in response to the landlord's submission that he may have moved out, that he is still living in the premises, that he has partly shifted things out, and he sometimes sleeps there. He requested that if the appeal was unsuccessful, any order for possession be stayed for 2-3 months, as he and his wife are not well and he would need time to move his possessions." That statement, not denied by Mr Khanna before us, gives support to the statement of the Member as we have recorded it from his Reasons at [15] above.
12. Further, the argument directed by the Appellant to the source of the ledgers produced by the Respondent became irrelevant in the face of a concession made by Mr Khanna when questioned by us as to whether the Appellant claimed that there were any occupation fees paid by her for which credit had not been given, Mr Khanna stated that nothing had been paid for the period of occupation between 27 February and 8 June.
13. That concession, coupled with the inescapable finding on the material before us that the Appellant had remained in occupation of the premises throughout the period from 27 February to 8 June, renders untenable the argument advanced against liability for payment of the occupation fee that the Member ordered the Appellant to pay. Further, it renders irrelevant a number of subsidiary arguments directed to the identity of the Respondent's agent and the existence of either an Australian Business Number of an Australian Company Number for that corporate agent.
14. Having regard to the Tribunal's decision on 1 February 2017 and the determination of the Appeal Panel in the Khanna Appeal No.1, the only issue for determination by the Member on 6 July was whether an occupation fee was payable because possession had not been given by the Appellant until the possession was gained by the Sheriff on 8 June. The entitlement of the Respondent to the occupation fee claimed was established to the requisite standard, with the consequence that there is no basis upon which to disturb the order made by the Member on 6 July last.
15. In so determining, we do not overlook the ground of appeal identified in the Appellant's Notice of Appeal alleging "prejudice and bias" on the part of the Member because if his acceptance of the Respondent's ledgers in the face of the Appellant's objection to them. As we have determined that the ledger evidence is irrelevant, in light of the Appellant's concession to us, the attack upon the ledger evidence, being the sole basis of the bias allegation had, itself, become irrelevant.
16. Importantly, no submission directed to the reasons of the Member nor to any other material made available to us would cause us to conclude that a fair-minded lay observer might reasonably apprehend that the Member might not bring an impartial mind to bear upon the statutory task he was performing. Thus, the test of apprehended bias has not been made out: much less the test for actual bias.
17. In approaching our determination, we take account of the fact that the appeal is brought from a decision made in the Consumer and Commercial Division of the Tribunal. This circumstance has an important consequence for the determination of an appeal. That consequence flows from the constraints expressed in cl 12 of Sch 4 to the Tribunal Act that relevantly provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under s 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 of the proceedings under appeal were being dealt with).
18. The right of appeal exercised by the Appellant under s 80(2) of the Tribunal Act affords a right of appeal on a question of law but requires leave in respect of any other matter. The provisions of cl 12 of Sch 4 to which we have referred circumscribes the circumstances in which leave to appeal can be granted.
19. Although the Appellant did not identify any question of law, the claim of bias raised by her does identify a question that is properly so characterised. However, we have addressed that issue and ultimately determined that it does not have any bearing upon the outcome of the appeal. As Mr Khanna acknowledged, the contentions of the Appellant essentially raised questions of fact.
20. The principles that guide the grant of leave where issues of fact are raised on appeal have been usefully articulated in the Appeal Panel's reasons for decision in Collins v Urban [2014] NSWCATAP 17. Those principles, as apt to be applied in the present case, are reflected in Temple v AMR Motors Pty Limited [2017] NSWCATAP 221 at [55]-[60]. We do not repeat them.
21. Finally, we direct attention to the Appellant's Notice of Appeal in which she sought to rely upon the fact that both she and her husband were in receipt of pensions, as a consequence of which they were not able to meet the lump sum payment ordered by the Member. That is not a matter that gives rise to a ground of appeal in the present circumstances. Should the Appellant be unable to pay the amount that she has been ordered to pay, that circumstance is one to be addressed to the court in which the Respondent takes any enforcement action.

CONCLUSION

1. For the Reasons we have stated, no issue of law has been raised that requires the decision of the Member to be reconsidered. Further, there is no issue of fact arising that would, according to principle, require that leave to appeal be granted. No error has been demonstrated on the part of the Member when determining that an occupation fee is payable by the Appellant to the Respondent for the period from 27 February 2017 until 8 June 2017, totalling $8,102.22.
2. As a consequence, the order that we made was that the appeal be dismissed.

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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: 20 December 2017