Macdonald v Macdonald

The background to the dispute

1. The following narrative is derived from findings recorded in the reasons of the Appeal Panel: McDonald v McDonald [2016] NSWCATAP 252.
2. The plaintiff and Denis Macdonald (the defendant) entered into a residential tenancy agreement whereby the plaintiff was to rent premises at Tempe which were owned by the defendant, her former husband. He served a notice of termination pursuant to s 85 of the Residential Tenancies Act 2010 (NSW) which required the plaintiff to leave the premises within 90 days.

The proceedings in the Consumer and Commercial Division of NCAT

1. As the plaintiff failed to vacate the premises as required by the notice, the defendant commenced proceedings in the Consumer and Commercial Division of NCAT for an order for possession pursuant to s 187 of the Residential Tenancies Act.
2. The matter was referred for conciliation on 23 March 2016 at the conclusion of which a Conciliation Agreement Form was signed by the conciliator, the plaintiff and the defendant. The agreement recorded that the agreed arrears of rent were "nil" and that the "tenancy agreement between the parties will end today and the Tenant will vacate the premises on: 11/6/16". It was agreed that no occupation fee would be payable by the plaintiff after the termination of the tenancy agreement.
3. After the conciliation the matter was referred to Member Campbell who, on 23 March 2016, made orders by consent in terms of the Conciliation Agreement (the Consent Orders). According to the plaintiff, she first became aware of the orders when she attended NCAT on 24 June 2016 although she was, as the reasons of the Appeal Panel set out below record, actually present when they were made.
4. The plaintiff refused to vacate the premises. On 19 August 2016 the defendant filed a request for a warrant for possession of the premises.

The appeal to the Appeal Panel

1. On 28 August 2016 the plaintiff filed a notice of appeal against the Consent Orders with the Appeal Panel. The appeal was filed out of time as appeals in residential proceedings must be filed within 14 days from the day on which the appellant was notified of the decision. The Appeal Panel granted an extension of time to the plaintiff to appeal against the Consent Orders.

The plaintiff's arguments before the Appeal Panel

1. In the hearing before the Appeal Panel, the plaintiff, who appeared for herself, contended that there was no residential tenancy agreement. She argued that she had lived at the premises as a co-owner since 2011 and had never paid rent for the premises. She also argued that she had not been aware that the hearing of her matter on 23 March 2016 would involve conciliation. The Appeal Panel permitted the plaintiff to adduce evidence before it. The Appeal Panel recorded at [26] of its reasons: "The appellant gave sworn evidence. Whilst she seemed to understand most things, she said she required . . . [the] assistance of an interpreter and Mr Latu was sworn."

The Appeal Panel's findings about the residential tenancy agreement

1. The Appeal Panel relevantly found as follows regarding the existence of a residential tenancy agreement between the parties: "35. She [the plaintiff] was shown a copy of a document headed "[address], Tempe" which is annexure A to the Reply to Appeal filed by the Respondent. That document is typed and dated 17 September 2013 and is in the following terms: I, Sini Moa McDonald am prepared to rent [address], Tempe in its present state of disrepair for the sum of Seventy-Five Dollars ($75.00) per week. I absolve my landlord from any repairs or liable (sic) in respect to injuries to myself and any visitors on the property and that I will vacate the property should the landlord wish to renovate, after been (sic) given three (3) weeks notice of his intentions. I will be responsible for Gas and Electricity bills accrued on the property. 36. The document bears signatures above the names of the appellant (as occupier) and the respondent (as landlord). It also bears a signature next to a space provided for a Justice of the Peace. There is a stamp of John Freeman J.P. Registration number 123971 affixed underneath Mr Freeman's signature. The document states it was signed at Petersham in NSW. 37. The appellant accepted in evidence that the signature on the document above her name was hers. She asserted, however, that she had never signed the document. She said somehow her signature had been put onto the document and that it was a forgery. She was told that she bore the onus to prove on the balance of probabilities that the document was a forgery. She led no other evidence in support of, or to substantiate, the allegation that the document was a forgery. 38. She maintained that despite accepting that she had signed a "hand written" document at Petersham RSL which did deal with rent at the sum of $75 per week, and in light of the Contract for Rent, she had never been a tenant at the premises. . . . 47. Having regard to the evidence before us, we conclude that there was in existence a residential tenancy agreement. That agreement is evidenced by the Contract for Rent set out at 35 above. The appellant has not put before us any evidence that would enable us to find that the document is a forgery. She accepts that the signature on that document next to her name is her signature. . . . 49. We do not accept the appellant's evidence in respect to her signing another, different handwritten document at the Petersham RSL. Importantly, in her evidence, the appellant accepted that whatever document she did sign at the Petersham RSL was with respect to the premises and did refer to rent of $75 per week for the premises. That is the rent stated in the Contract for Rent. 50. She was confused about the timing of the Petersham RSL incident. Initially, she said it occurred in May of 2016 but when confronted with the fact that the consent orders were made in March 2016, she said she was unsure of the year and it may have been 2013. This uncertainty did not provide support for her version of events. 51. We think the most likely conclusion from all of the evidence is that the appellant did sign the Contract for Rent at the Petersham RSL. She understood when signing it that it was a document which stated that she was to pay rent for the premises."
2. The Appeal Panel found as follows concerning the Consent Orders: "61. The appellant's evidence, at its highest, was that she was told by the respondent that the form she was signing at the Tribunal (the Conciliation Agreement Form) was to allow her and her daughter to live at the premises. However, she accepted that the conciliator explained to her, and that she understood, the effect of the agreement she was making, namely that the residential tenancy agreement for the premises would be terminated and that she would have to give possession of the premises to the respondent. That understanding reflects the clear and unequivocal language in the Conciliation Agreement Form that "the tenancy agreement between the parties will end today and the Tenant will vacate the premises on 11/06/2016". It is difficult to reconcile her acceptance of those matters with an entitlement to any relief so as to set aside that agreement. 62. Her explanation that she trusted the respondent does not explain why, when she understood the nature of the agreement she was signing as it was explained by the conciliator, she did not question either the respondent or the conciliator and seek to understand why she was agreeing to give possession of the premises to the respondent when she apparently thought they could continue to live there. We do not accept her evidence in this regard. It must be remembered that the Tribunal member also explained the nature of the orders about to be made and the appellant accepts that she was asked whether she understood and agreed to them. 63. There is no evidence of pressure, threats, or influence which made the appellant's agreement as reflected in the Conciliation Agreement Form involuntary so as to have been made under duress or to be the subject of undue influence. We do not accept that there was any relevant mistake by the appellant in signing the conciliation agreement. The appellant was not at a special disadvantage at the time she made the agreement and had it explained to her by the conciliator. Nor was she of impaired faculties. On the evidence before us, she has not established any circumstance to enable her to seek to set aside the agreement as embodied in the Conciliation Agreement Form and which formed the basis of the consent orders." [Emphasis added.]

The present appeal

1. Mr Qoro, who appeared on behalf of the plaintiff in this Court, confirmed that the plaintiff did not press her claim to set aside the Consent Orders. He accepted that the only decision sought to be challenged was the Appeal Panel Decision. He also confirmed that she did not press her claim for repossession of the premises as it was common ground that the premises had been sold. Mr Qoro argued that the Appeal Panel erred in law by not setting aside the Consent Orders on the basis that the conciliation had not taken place in accordance with a procedural direction made under s 26 of the NCAT Act.
2. Section 26 of the NCAT Act provides: "26 Procedural directions (1) The President may give directions (procedural directions) relating to the practice and procedures to be followed in, and to the actual conduct of, proceedings in the Tribunal. (2) The procedural directions must be: (a) publicly available, and (b) consistent with this Act, enabling legislation and the procedural rules. (3) Without limiting subsection (2) (a), it is sufficient compliance with that paragraph if procedural directions are published on the website of the Tribunal. (4) Each member, and the parties to proceedings and their representatives, must comply with any applicable procedural directions."
3. Mr Qoro relied on Consumer and Commercial Division Procedural Direction No 3 dated 24 December 2013 (Procedural Direction No 3). Procedural Direction No 3, which has since been repealed, relevantly provided: "Introduction These directions are issued pursuant to section 26 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) and set out the procedure which is to apply when the same Member assists in conciliation of a dispute in Consumer and Commercial Division proceedings and then if the matter fails to resolve, determines the matter at hearing. The Tribunal is obliged pursuant to section 37 of the NCAT Act to promote the use of resolution processes such as conciliation to resolve or narrow the issues between them in the proceedings. The Tribunal's duty is also to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible. To meet both of these requirements the Tribunal may use the same Member to both conciliate and hear a matter, particularly in regional areas. Conciliation (1) Conciliation is an informal process to produce agreed outcomes that are lawful and acceptable to both parties. (2) Where there is no Tribunal Member or Deputy Divisional Registrar allocated to assist parties to reach an agreement, the Member hearing the list will explain the conciliation process to the parties in accordance with Tribunal procedures. (3) The Member will establish with the parties that there are no serious impediments to attempting to resolve the matter by conciliation. (4) The Member may facilitate discussions to assist resolution but will not provide legal advice or opinion to the parties. Legal questions and issues may however be canvassed with the parties. (5) Should the parties reach an agreed settlement by conciliation, the Member will establish that the agreed settlement is one which is within the powers of the Tribunal to make. The Member will also confirm the agreement is voluntary and that the parties understand the agreement. (6) The Member will explain to the parties that the agreed settlement will be made into legally binding orders as it thinks fit to give effect to the agreed settlement reached by the parties."
4. Mr Qoro did not rely on any evidence in support of his submission that Procedural Direction No 3 had not been complied with. The transcript of the proceedings before the Appeal Panel was not in evidence before me.
5. Mr Qoro relied on Lee v Imad [2017] NSWCATAP 128 in support of his submission that a breach of Procedural Direction No 3 ought lead an Appeal Panel to set aside consent orders made by a single member of NCAT following conciliation. In that case, the Appeal Panel was satisfied from the transcript of the proceedings before a single member of NCAT that no explanation had been given to the appellant of the conciliation process and that, accordingly, the consent orders made at the conclusion of the conciliation ought be set aside and the matter remitted to the Tribunal. The Appeal Panel's conclusions in Lee v Imad appear from the following: "53. In this case, we are of the opinion that it is appropriate to set aside the proceedings and the consent order made by the Tribunal based upon the agreement reached at the conciliation. That is because from the evidence of the appellant, it can be accepted that, had he had the conciliation process explained to him in accordance with the Procedural Direction, and had the Member otherwise complied with that Procedural Direction, there is a very significant prospect that he would not have entered into the agreement giving rise to the consent order. His evidence is clear that he thought the Member was still sitting as the Tribunal and determining the matter. He felt that the Member had expressed clear views as to his prospects of success. He felt that following the conciliation process he had no choice but to get something out of the matter and he thus entered into the consent agreement. 54. In our opinion, in light of the clear breaches of the Procedural Direction and the appellant's evidence, it would be a miscarriage of justice to hold the appellant to the consent order."
6. Mr Qoro did not suggest that the plaintiff had, in terms, alleged in her appeal to the Appeal Panel that Procedural Direction No 3 had not been complied in the Tribunal. Rather, he submitted that she required an interpreter before the Appeal Panel as she did not have a sufficient appreciation of what was occurring. He contended that there had, accordingly, been a denial of procedural fairness by the Appeal Panel and that its decision ought be set aside as a consequence.
7. The difficulty with this submission is that the reasons of the Appeal Panel record the evidence the plaintiff gave and the submissions that she made. The plaintiff had the opportunity before the Appeal Panel to argue that the Consent Orders ought be set aside. She did not argue that they ought be set aside because Procedural Direction No 3 had not been complied with. The Appeal Panel also recorded in its reasons that, although the plaintiff seemed to understand most matters, she said she required an interpreter to assist her in giving evidence and one was provided. The present case is to be distinguished from Lee v Imad. I am not persuaded that there was any denial of procedural fairness before the Appeal Panel or any non-compliance with Procedural Direction No 3 by the conciliator or Member Campbell, much less one that ought to have been apparent to the Appeal Panel. Moreover, the reasons of the Appeal Panel record that it considered the fairness of the conciliation process and the extent to which it had been established that the plaintiff understood the procedure, what was at stake and the consequences of signing the agreement which led to the Consent Orders.
8. As the findings extracted above indicate, the Appeal Panel was careful to examine what had occurred in the course of the conciliation, as well as the steps taken by Member Campbell before the Consent Orders were made to ensure that the plaintiff appreciated the effect of their being made. The findings made by the Appeal Panel, which were based on admissions made by the plaintiff in the course of her sworn evidence, do not indicate, much less establish, that there was any non-compliance with Procedural Direction No 3.
9. I do not regard the plaintiff's submissions as sufficiently arguable to warrant a grant of leave. Accordingly, leave to appeal will be refused with costs.

Costs

1. At the conclusion of the hearing before me I invited the parties to indicate whether there was any objection to an order that costs follow the event. Mr Qoro indicated that the plaintiff was impecunious and that each party ought bear his or her own costs. Ms Steer, who appeared for the defendant, contended that impecuniosity did not constitute a reason why a costs order ought not be made although it might affect the preparedness of the successful party to enforce it. I foreshadowed that I would permit the parties to make submissions on costs following consideration of these reasons.
2. As Mr Qoro informed me that the plaintiff was impecunious, the present case appears to me to be one in which it would be appropriate for a costs order to be made in a gross sum in accordance with s 98(4) of the Civil Procedure Act 2005 (NSW) to avoid the defendant having to incur costs in an assessment if an order for costs is made in his favour. Accordingly, provision will be made in the orders for such an application to be made.

Orders

1. For the reasons set out above I make the following orders: 1. Refuse leave to the plaintiff to appeal against the decision of the Appeal Panel made on 28 November 2016. 2. Unless an application for a different order is made in writing to my Associate within seven days hereof, order the plaintiff to pay the defendant's costs of the proceedings. 3. Grant liberty to the party in whose favour a costs order is made (whether by default or following an application under (2) above) to make an application for a gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), such application to be made in writing within seven days of a costs order becoming operative or within such time as directed by further order.

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 February 2018