Mae v Warner

Background

1. From June 2018, the tenants and the landlords were parties to a residential tenancy agreement ("Residential Tenancy Agreement").
2. On 25 July 2019 (in RT 19/20366) and on 22 March 2021 (in RT 21/09240), the Tribunal made consent orders under the Residential Tenancies Act 2010 (NSW) ("RT Act") for the reduction of the rent payable, pending the completion of particular repairs. The orders made on 22 March 2021 in RT 21/09240 allowed the tenants to renew those proceedings if the repairs had not been carried out by 22 May 2021.
3. On or about 9 April 2021, the landlord served a "no grounds" termination notice upon the tenants, requiring vacant possession by 14 July 2021 ("9 April 2021 termination notice"). The tenants made no payments of rent after that notice was served.
4. On 26 May 2021, the landlord served another termination notice, based on non-payment of rent, requiring the tenants to provide vacant possession by 9 June 2021 ("26 May 2021 termination notice").
5. On 9 June 2021: 1. the tenants had not vacated the premises; and 2. the landlord lodged an application with the Tribunal for an order terminating the Residential Tenancy Agreement ("landlord's application").
6. On 23 June 2021, the tenants filed an application in the Tribunal against the landlord, seeking orders that the rent payable was excessive and an order under s 115 of the RT Act declaring that a termination notice had no effect because it was a retaliatory notice ("tenants' application"). The tenants' application was allocated file number RT 21/27286.
7. The tenants' application included a request for an extension of time on the basis that: "I had to lodge Section 115 within 30 days of the termination notice and only found out when I spoke with someone from Eastern Suburbs tenancy advisory group today."
8. On 30 June 2021, the Tribunal heard the landlord's application and made the orders described at [1] above, and provided written reasons.
9. On 21 July 2021, a Notice of Appeal dated 15 July 2021 was received by the Appeal Panel. The Notice of Appeal was filed out of time and includes a request by the tenants for extension of time. The tenants also sought a stay of the operation of the order for possession.
10. On 6 August 2021, the tenant's application for a stay was heard and dismissed.
11. On 26 August 2021, the Tribunal heard the tenants' application. The Tribunal made an order for $250 in favour of the tenants as compensation for an unauthorised entry by the landlord on 9 June 2021, but otherwise dismissed the tenants' application.
12. In early September 2021, the tenants vacated the premises. The arrears of rent remain unpaid.

The Tribunal's reasoning

1. The salient parts of the Decision are as follows: 1. on 26 May 2021, the landlord served the 26 May 2021 termination notice, requiring the tenants to provide vacant possession by 9 June 2021. The termination notice was: 1. valid as it met the requirements of ss 87 and 88 of the RT Act; and 2. duly served; 1. the tenants failed to vacate the premises as required by the 26 May 2021 termination notice and remained in possession as at 30 June 2021; 2. the tenants had paid rent up to and including 11 April 2021. From 12 April 2021 to 30 June 2021 is 80 days. The daily rental was $66.71 (i.e. $467 per week). Thus, the rent owed by the tenants to 30 June 2021 was calculated as follows: No. of days x daily rent = 80 days x $66.71 = $5,536; 1. the tenants' argument based on the impact of COVID-19 was rejected because the rental arrears commenced from 12 April 2021 and the moratorium period had expired; 2. the tenant's application for a declaration of a retaliatory termination notice related not to the 26 May 2021 termination notice, but to the 9 April 2021 termination notice; and 3. the tenants' application also sought an order for rent reduction, but the tenants admitted at the hearing that this application was meant to be a renewal of RT 21/09240.

Notice of Appeal

1. The only order challenged on appeal is the termination order. The Appeal Panel raised with Mr Mae, who appeared for the tenants, the utility of the appeal in circumstances where the tenants had vacated the premises, but Mr Mae wished to persist with the appeal.

Extension of time to appeal

1. The Notice of Appeal was lodged outside the 14-day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014. The tenants received the Decision on 4 July 2021 but the Notice of Appeal was not received by the Appeal Panel until 21 July 2021.
2. The Appeal Panel has power to extend time under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"). In Café Great Pty Ltd v Oh [2019] NSWCATAP 203, the Appeal Panel set out the relevant principles as follows: 39 The principles on which an extension of time would be granted to bring an appeal were set out by the Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [21]-[22], drawing on early orthodox principle and authority: "Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice." 40 The criteria for assessing an extension application can be summarised from Jackson as follows: (1) the appellant must demonstrate that strict enforcement of the time limit will work an injustice on the appellant; (2) the respondent, having obtained a favourable primary decision, can be thought of as having a "vested right" to retain the benefit of that decision after the normal time for appeal has expired; (3) Consistent with the foregoing, the factors to be considered are the length of the delay, the reason for the delay, the prospects of success ("that is usually where the applicant has a fairly arguable case"), and the extent of any prejudice suffered by the respondent to the appeal; (4) "It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable".
3. The period of the delay is short - the Notice of Appeal should have been filed by 19 July 2021 and it was filed on 21 July 2021.
4. The tenants provided no evidence as to the reasons for delay in filing the Notice of Appeal. In submissions, Mr Mae suggested that he was pre-occupied with other things in dealing with the pandemic, including searching for replacement accommodation.
5. The landlord does not suggest that it is prejudiced by the delay and has consented to the extension of time.
6. The critical factor in the exercise of the discretion to extend time is the prospects of success of the appeal. Thus, it is appropriate to consider the appeal and then return to the question of an extension of time.

The appeal

1. This is an internal appeal. Internal appeals may be made as of right on a question of law, and otherwise with the leave of the Appeal Panel: s 80(2) of the NCAT Act.

Appeal as of right

1. Where, as in the present case, the tenants are not legally represented it is appropriate for the Appeal Panel to review the stated grounds of appeal, the material provided, and the Decision to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: Cominos v Di Rico [2016] NSWCATAP 5 at [13].
2. Having done so, the Appeal Panel considers that the tenants seek to raise as a question of law whether the Tribunal failed to afford procedural fairness to the tenants, on the basis that, as is set out in the Notice of Appeal: "The member did not even allow the matter to progress to a hearing for us to present evidence. We believe the member showed unfair bias against us"
3. Section 38(5)(c) of the NCAT Act and the general law rules of procedural fairness require that the Tribunal afford each party a reasonable opportunity to appear and present their case. Failure to afford procedural fairness is an error of law. If such an error of law were to be established it would also be necessary to consider whether the tenants could have obtained a different result if procedural fairness had been afforded: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54.
4. To determine whether there has been a failure to afford procedural fairness it is necessary to consider evidence of what occurred at the hearing before the Tribunal. However, there is no such evidence despite: 1. the Appeal Panel's directions on 6 August 2021 that the tenants were to lodge with the Tribunal and give to the landlord by 27 August 2021, amongst other things, the tenants' written submissions in support of the appeal, together with: 1. all evidence given to the tribunal on which they intended to rely; 2. "The sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts"; and 1. the tenants lodging on 26 August 2021 their written submissions together with various items of evidence.
5. Absent evidence of what occurred at the hearing conducted by the Tribunal, the Appeal Panel is not in a position to consider this ground of appeal and it must fail.
6. Accordingly, the Appeal Panel is not satisfied that the Tribunal erred in law.

Leave to appeal

1. 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. Clause 12(1) provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 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 the proceedings under appeal were being dealt with).
2. In Collins v Urban [2014] NSWCATAP 17 ("Collins"), an Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of 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."
3. Even if the tenants were to establish that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. The tenants must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
4. In Collins, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; or (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; or (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."
5. The matters raised by the tenants which are relevant to the question of whether leave to appeal should be granted are considered below.

(1) The operation of the moratorium

1. The tenants' position as set out in the Notice of Appeal is: "The member suggested that the rent arrears which was the reason for termination were not accrued during the moratorium, however some of the arrears were, which meant that we should have been protected by the moratorium on evictions."
2. The Tribunal dealt with this issue as follows: "The tenant put evidence before the tribunal that the tenant was Covid-19 impacted. However, from 27 March 2021, impacted tenants who have arrears which accrued during the moratorium period may still be protected from termination in relation to these arrears for a six month transition period. The rent arrears in this claim accrued from after the moratorium period was over."
3. The Tribunal's statement of the law in the first sentence on the above passage is accurate: see s 226 and Part 9 of Sch 2 to the RT Act. It is not challenged by the tenants.
4. The tenants' challenge is to the factual finding in the second sentence in the above passage: "The rent arrears in this claim accrued from after the moratorium period was over". However, it is not apparent from the evidence before the Appeal Panel that the Tribunal erred. The Appeal Panel invited Mr Mae to indicate where on the rental ledger arrears which accrued prior to 27 March 2021 were shown, but he was unable to do so. The ledger appears to show that rent was paid to 10 April 2021 and, as noted above, the Tribunal concluded that rent had been paid up to and including 11 April 2021.

(2) The tenants' application

1. The tenants' position is that the Tribunal erred in finding that the tenants' application under s 115 of the RT Act was limited to the 9 April 2021 termination notice and that the true position was that the tenants' application related to both the 9 April 2021 and the 26 May 2021 termination notices.
2. The Tribunal's finding on this point was: "The tenant lodged a cross application for declaration of a retaliatory termination notice. But this related to a No-grounds notice and not the termination notice for rent arrears (RT 21/27286)."
3. As noted above: 1. there were two termination notices - the 9 April 2021 termination notice (being a "no grounds" notice) and the 26 May 2021 termination notice (being a notice for rental arrears); and 2. the tenants' application, filed on 23 June 2021, did not specify a particular termination notice but did include a request for an extension of time on the basis that: "I had to lodge Section 115 within 30 days of the termination notice and only found out when I spoke with someone from Eastern Suburbs tenancy advisory group today".
4. In circumstances where: 1. the appellants contend that the landlord retaliated to the 22 March 2021 order for a reduction in rent pending completion of repairs and the 9 April 2021 termination notice was considerably closer to 22 March 2021 than the 26 May 2021 termination notice was; and 2. the tenants' application filed 23 June 2021 referred to the need for an extension of time because more than 30 days had passed since the termination notice, and 30 days had passed since the 9 April 2021 termination notice but not since the 26 May 2021 termination notice, it was open to the Tribunal to conclude that the tenants' application related only to the 9 April 2021 termination notice.

Conclusion as to the application for leave to appeal

1. For the reasons set out above, the Appeal Panel is not persuaded that the Tribunal erred, or that its decision was not fair or equitable, or against the weight of evidence. The tenants did not seek to rely upon any new evidence. In these circumstances, the Appeal Panel is not satisfied that the tenants may have suffered a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 to the NCAT Act. Thus, the precondition to the exercise of the Appeal Panel's discretion to grant leave to appeal is not satisfied, and the application for leave to appeal must be dismissed.

Extension of time

1. In circumstances where the Appeal Panel is not satisfied that there has been an error of law or that leave to appeal should be granted, there is no utility in granting an extension of time to appeal and that application is refused.

Orders

1. The Orders of the Appeal Panel are: 1. The application for an extension of time to appeal is refused. 2. The application for leave to appeal is refused. 3. The appeal is otherwise 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: 06 October 2021