The appellant appeals against a decision made in the Consumer and Commercial Division of the Tribunal on 14 October 2021, when Tribunal Members George and Eftimiou extended time in RT 21/02275 for the making of an application, by the present respondent, for a warrant under s 121 of the Residential Tenancies Act 2010. The Notice of Order records that oral reasons for that decision were given.
By way of background, on 28 July 2021, in AP 21/149065 an Appeal Panel dismissed the appellant's appeal against orders made in RT 21/02275 on 10 May 2021 and extended the time for applying for a warrant to 26 August 2021. It was this time period that was extended by Members George and Eftimiou.
The orders made in RT 21/02275 on 10 May 2021 were, so far as is relevant:
'1. The Residential Tenancy Agreement is terminated in accordance with:
•s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement.
•failure to pay rent in accordance with agreement.
2. The Tribunal is satisfied in accordance with s 89(5) the tenant has frequently failed to pay rent owing for the residential premises.
3. The Residential Tenancy Agreement is terminated immediately 24-May-2021 and possession is to be given to the landlord on the date of termination.
4. The order for possession is suspended until 24-May-2021'
In making those orders the Tribunal found that the appellant, as tenant, was some 9 months in arrears of rent and owed the respondent (landlord) in excess of $30,000 in unpaid rent.
The appellant applied for an adjournment of this appeal listed for hearing on 25 January 2022. The basis for the adjournment was stated in an email to the Appeal Panel registry on 24 January 2022 in the following terms, so far as they are relevant:
'I'm sure jack the representative of other party will agree to it.
The reason is I'm exhausted due to detox treatment due to poisoning as stated in earlier statements during case.
Also I think I caught covid like early year start of pandemic it's the same symptoms of coughing every few minutes for a few hours but that's faded. I seem fine. Can't find any test kits yet but just like last infection im totally fine now.
So jack will respond soon. He has kindly packed up my stuff with his employees I think and is taking them to storage.'
Principles relating to adjournments in the Tribunal were considered by an Appeal Panel in Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95. At [55]-[56] the Appeal Panel stated:
'In O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22], the Appeal Panel identified the following principles governing applications for an adjournment:
"(1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above,
(2) an application for an adjournment should be seen as the exceptional rather than the ordinary course;
(3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment."
Refusing an adjournment may be inappropriate if it has the effect of depriving a party from adequately presenting the parties case: Armee v Brearley [2017] NSWCATAP 141 at [121] and [135]. However, in considering an adjournment application, the Appeal Panel must take into account all the relevant facts and circumstances of the matter, in the context of its guiding principle under s 36 of the Civil and Administrative Tribunal Act 2013.'
Section 36 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) states the guiding principle to be:
'guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.'
The section also states:
'(2) The Tribunal must seek to give effect to the guiding principle when it--
(a) exercises any power given to it by this Act or the procedural rules,'
The appellant did not support her application for an adjournment with medical evidence which would support her assertion of exhaustion due to a detox treatment, poisoning, or prior Covid infection and provide objective support to her assertion that she is prevented by medical reasons from presenting her appeal. There was also the fact that her appeal had no utility, nor any likelihood of success, which we will discuss later in these reasons. Granting an adjournment of an appeal in these circumstances impedes, rather than facilitates, the just, quick and cheap resolution of the real issues in these appeal proceedings. For these reasons, at the hearing of the appeal, the application for an adjournment was refused.
The decision of Members George and Eftimiou on 14 October 2021 extending the time for the making of an application for a warrant under s 121 of the Residential Tenancies Act was an interlocutory decision in RT 21/02275 made after the dismissal of the appeal and for the purpose of restoring possession to the present respondent: see (d) of the definition of "interlocutory decision" in s 4 of the NCAT Act.
Section 80 of the NCAT Act relevantly provides:
'80 Making of internal appeals
(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.
Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1).
(2) Any internal appeal may be made:
(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.'
The appellant therefore requires leave in order to proceed with her appeal.
The appellant's Grounds of Appeal state, omitting repetition and irrelevant aspects:
'-the appeal would be useless if the order is in forced as the order is directly related to the appeal regarding tenancy termination.
-member had allowed me in her reasons to be fully vaccinated before eviction.
However it was not written down on the order in detail due to the lack of time as there were a lot of people waiting at the hearing. If I catch covid I may die and I already have chronic illness that affect my cardiovascular system.'
On 19 November 2021 the Appeal Panel ordered the appellant to file evidence and written submissions in support of her appeal, including a sound recording or typed transcript by 15 December 2021 if oral reasons were given.
The appellant has not filed any such documents in support of her application for Leave to Appeal. At the hearing of the appeal, she said that this had occurred due to the tiredness she had referred to in her application for an adjournment of the hearing of the appeal. She had not, and did not, provide any material to substantiate this assertion.
At the Appeal hearing the appellant agreed that the respondent had re-taken possession of the townhouse which was the subject of the residential tenancy agreement the parties had entered into, and also the subject of RT 21/02275.
At the Appeal hearing the appellant stated that the utility of the appeal was that she wished to make some statements regarding the proceedings so that her position would be on the record given that the outcome of the proceedings would be contained in a document that would be available to the public. However, she did not do so saying that she was too exhausted to say anything further, apart from making some remarks which were critical of the landlord in pursuing her for the outstanding rent and terminating the tenancy.
The respondent opposed the application for an adjournment and otherwise had nothing to say.
In Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 an Appeal Panel set out the principles relevant to a grant of leave to appeal an interlocutory decision. Some of the relevant principle were stated to be, authorities omitted:
'Leave should only be granted where there are substantial reasons to allow an appellate review;
Circumstances justifying leave may be an error of principle resulting in substantial injustice: However, these concepts may not be cumulative;
There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights;
Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal;
Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case'
In considering the appellant's application for leave to appeal it is important to bear in mind that her appeal against the Tribunal decision terminating the tenancy and granting possession to the present respondent was dismissed 28 July 2021. This appeal relates only to the time when the respondent is able to apply for a warrant for possession.
We are not prepared to grant leave to appeal given that the appellant has not filed any material to seek to establish that there was any error made in making the order of 14 October 2021. Furthermore, there would be no utility in granting leave to appeal in circumstances where the appellant is no longer in possession of the premises. In this regard, the matters she referred to in support of the utility of the appeal appeared to be irrelevant to the subject matter of this appeal, particularly in circumstances where her appeal against the substantive orders made on 10 May 2021 was unsuccessful.
We will make orders that:
1. Leave to appeal is refused.
2. The appeal is dismissed.
[2]
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
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Decision last updated: 04 February 2022