McWilliam v Chee

NCAT Appeal Panel|2024-10-10

REASONS FOR DECISION

Jeong McWilliam is a tenant of premises owned by Austin Kwong Chee and Lyndy Kim Ying Yam (the landlords). The landlords are the owners of the building in which Mr McWilliam resides. There are seven units in the building and some common areas. Mr McWilliam made an application to the Tribunal seeking reimbursement of amounts paid for electricity and an order that he not have to pay for electricity in circumstances where it was said that the premises were not separately metered in accordance with the Residential Tenancies Act 2010.
The matter was listed for hearing on 20 June 2024 along with a similar application from another tenant in the same residential building, Mr McDonald. Mr McWilliam did not appear at the Tribunal hearing. Prior to the hearing he had made applications that the matter be adjourned or that it be dealt with on the papers without the need for a hearing under s 50 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). Both those applications were refused and Mr McWilliam's application was dismissed for non-appearance.
Mr McWilliam made an application under s 55(2) of the NCAT for reinstatement of proceedings but that application was refused on 15 July 2024. On 19 July 2024 he appealed against the decision dismissing his original application.

Background

From the material available to us on the appeal it seems that Mr McWilliam made an application to the Tribunal on 1 March 2024 seeking the orders as set out above in relation to electricity charges. He also sought a range of other orders in relation to excess rent, right to quiet enjoyment, etc but, as we understand it, his primary issue relates to the electricity charges. There was a hearing before the Tribunal on 26 March 2024 at which directions were made for the filing of evidence. There was also a direction that a similar application made by another tenant in the building, Mr McDonald, be heard with Mr McWilliam's application. As noted above, the final hearing was scheduled for 20 June 2024. From what we understand all parties had filed evidence in advance of that hearing.

The hearing and Tribunal decision

Neither party has provided a copy of the transcript or recording of the Tribunal hearing and we are therefore unaware of exactly what was said at the hearing. The Tribunal member, however, gave brief reasons for his decision which sets out his reasoning for dismissing Mr McWilliam's application.
At the beginning of his reasons the member noted that both matters were being heard together. He then stated that the applicant in this matter (Mr McWilliam) was represented by Mr McDonald and the landlords' agent, Mr Karas, appeared on their behalf. The member then states: Mr McDonald made an adjournment application for both matters. He stated that the applicant has a criminal matter before Burwood Local Court today and tendered a bundle of documents, which is marked "Exhibit Al". In that exhibit, there is a Court Attendance Notice which required the applicant to attend Burwood Local Court on 20 June 2024. The Court Attendance Notice states that the applicant was arrested on 6 June 2024 at night and I am informed by Mr McDonald that he was released on bail on 7 June 2024 at 4am. The applicant's first email to the Registry was on 13 June 2024 and attached an adjournment request. There is further email correspondence between the applicant and the Registry between 14 June 2024 and 17 June 2024. The applicant also made a request for the matter to be dealt with on the papers on 17 June 2024. There is no explanation of why the applicant did not contact the Registry or made an adjournment application as soon as he was released on bail on 7 June 2024 when he was aware that his matter was listed for hearing today. Mr McDonald was not able to provide any explanation in that regard.
After recording that Mr Karas said he was ready to proceed that day and noting that both parties had filed their evidence, the member stated that Mr McDonald had informed him that the evidence in both cases was the same and, while he was able to proceed with his case, he preferred Mr McWilliam to be present. The member then states: I note that both Mr Karas and Mr McDonald have taken time off work to attend today's hearing. I also note that the parties have spent some considerable time to put together with evidence and have set aside time away from their employment to attend the hearing today. I do not consider delaying the matter any further will benefit either party and is not in accordance with the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings. For the above reasons, the applicant's request for adjournment is refused.
The member then went on to deal with the application made by Mr McWilliam that his application be dealt with on the papers without a hearing. Mr McDonald apparently made a similar request at the hearing. The member refused these applications on the basis that the member did not consider the matter to be suitable to be determined on the papers as "both parties were robust in their submissions and made references to their respective evidence".
The member also records that Mr McDonald informed him that he was unable to represent Mr McWilliam at the hearing. The member then proceeded to dismiss the matter for non-appearance.

Mr McWilliam's evidence on the appeal

Mr McWilliam has provided copies of his communications with the Tribunal concerning his request to adjourn the hearing on 20 June 2024. He also provides a statement and timeline of events.
Mr McWilliam states that he was arrested on 6 June 2024 and placed in custody. He was released at about 5:00 am the next day, a Friday, and went home. He was given a court attendance notice for 20 June 2024 and was told by police when he informed them that he had a civil case the same day that he could get the court date changed. He went to sleep at about 8:00 am when he got home and slept until 4:30/5:00 pm at which point he contacted the Tribunal and Legal Aid. Both offices were closed. Monday 10 June was a public holiday.
Mr William states he spoke to a registry officer on 11 June 2024 about his case and was given advice about how to apply for an adjournment. He has provided a record of calls he made that day to the Tribunal's 1300 number. He also states that he contacted Burwood Local Court in an attempt to have his court matter adjourned. He has provided copies of emails sent to the court between 11 and 14 June 2024. On 14 June Mr McWilliam was advised that the Magistrate had considered his email and "has noted that you are on bail and failing an appearance a warrant may issue."
Mr McWilliam has provided copies of further emails sent to the Tribunal and to the landlord's agent in an attempt to seek an adjournment of the hearing. He continued to send emails to the Tribunal and made phone calls seeking further information between 14 and 17 June 2024. He made a request on 14 June 2024 on behalf of himself and Mr McDonald that their applications be determined on the papers. He was then advised to request an adjournment on the day of the hearing. In an email to the Tribunal Mr McWilliam said that Mr McDonald did not want to attend the hearing alone or represent him. Furthermore, Mr McWilliam would prefer to represent them both at the hearing.
One of the emails sent to the Tribunal by Mr McWilliam stated that Mr McDonald would attend the hearing with a copy of all the relevant correspondence concerning the adjournment request. We note that some of the correspondence was with the Tribunal's Appeals Registry and dated from April 2024. This correspondence clearly deals with a different matter and can be put to one side.
Mr McWilliam states that the member was in error in stating that he was represented by Mr McDonald. He states that, while Mr McDonald attended the hearing as advised by the registry to make the adjournment application, it was he who was representing Mr McDonald and who had prepared their joint cases.
Mr McWilliam has also provided a copy of the evidence that he provided to the Tribunal in relation to the substantive issues concerning electricity charges. He had provided photographs, copies of his electricity bills, copies of correspondence with the landlord's agents about the electricity issues and a statement from an electrician that there are 7 meters at the property and no meter for house power and electricity. Mr McWilliam states that each unit has a power point in the common property laundry area connected to their meter. He believes others are stealing his power. His quarterly electricity bills range from approximately $500 to $950 and before the Tribunal he was claiming repayment of an amount in excess of $7,000. At the appeal hearing he stated he is now also claiming additional amounts up to the date of the hearing.

The landlords' evidence

The landlords oppose the appeal and support the reasoning of the member who dismissed the original application. They state that Mr McWilliam did not provide them and the Tribunal with evidence of the Burwood Local Court date, although a copy of that notice is attached to their reply to the appeal.
The material provided by the landlord on the appeal is primarily directed to the substantive issue in the original proceedings. There is a letter dated 23 April 2024 from an electrician who states he had conducted a visual inspection of the meters at the property and found them to be in working order without any malfunctions. The electrician suggested the tenant contact their energy provider to check the status and functionality of the meter. The landlord also provided copies of quarterly electricity bills from two other tenants in the building. These bills are considerably lower than those provided by Mr McWilliam.

Consideration

It is apparent from the member's reasons that he had before him at the hearing a copy of the notice requiring Mr McWilliam to attend Burwood Local Court on 20 June 2024. He also had copies of correspondence between the Registry and Mr McWilliam in which he sought an adjournment. As we understand it, Mr McWilliam also provided the member with the email from the court referred to above where the Magistrate had indicated that if did not appear at court a warrant may issue. There is also a screen shot of the many telephone calls made to the registry from 11 June 2024 onwards. All of this material demonstrates that Mr McWilliam made every attempt to comply with the advice he was given in order to have the hearing adjourned.
The landlords state that they did not receive a copy of the court notice but, as noted above, a copy is attached to their evidence. Mr McWilliam also provides a copy of emails dated 13 June 2024 sent to someone called John at the office of the landlord's agent seeking consent to the adjournment. He later filled out an adjournment request form which states he received no reply from the agent.
We do not understand the Tribunal member's reference to Mr McWilliam not contacting the Tribunal or making an adjournment request upon his release from custody on 7 June 2024. We infer from the reasons, however, that this was a matter that was taken into account by the member in refusing the adjournment request. The member appears to have overlooked the weekend and the Monday public holiday and the material supplied by Mr McWilliam, which showed that he had tried to adjourn the court proceedings as a first step and that he made numerous calls and sent emails to the Tribunal. In our view, the reasons show that the member failed to grapple with the substance of the adjournment request, that is, that Mr McWilliam was required to attend Burwood Local Court and faced arrest if he did not. Whether he made the adjournment application as soon as he was released from custody was irrelevant.
We accept Mr William's evidence that the member's statement that Mr McDonald was representing Mr McWilliam is a misunderstanding and an error and that he in fact was representing Mr McDonald. It is clear from the reasons that Mr McDonald told the member that he could not represent Mr McWilliam at the substantive hearing once the adjournment application was dealt with. Nevertheless, the member's statement at the beginning of the reasons that Mr McDonald was representing Mr McWilliam seems to have influenced the outcome. This is evident from his statements in the reasons that the landlords agent, Mr Karas, and Mr McDonald had taken time off to attend the hearing and that the matter should therefore not be further delayed.
We are also concerned that the member did not appreciate that, although the two applications were listed to be dealt with together, they were two separate applications and each had to be dealt with on their merits. This also included that, to be procedurally fair, Mr McWilliam's application for an adjournment had to be considered in relation to his own application irrespective of that of Mr McDonald. In circumstances where Mr McDonald said he was not representing Mr McWilliam, the member was required to consider whether Mr McDonald had a valid and substantiated reason for not attending the hearing. We do not consider that he did so.
Overall, we are of the view that the decision of the member was procedurally unfair in that it failed to grapple with the reasons why the adjournment was sought in circumstances where Mr McWilliam had provided compelling evidence - a threat of arrest - for why he could not attend.
We would therefore allow the appeal on this basis. However, there would be little utility in doing so, and not in keeping with the Tribunal's guiding principle concerning the just, quick and cheap resolution of the real issues in the proceedings, if Mr McWilliam did not have an arguable case.
It is a term of every residential tenancy agreement that a tenant must pay all charges for the supply of electricity to the residential premises "if the premises are separately metered": s 38(1)(a) Residential Tenancies Act. "Separately metered" is defined in s 3 of the Residential Tenancies Act to mean: separately metered means that there is, in respect of residential premises, a meter - (a) that satisfies an Australian Standard prescribed by the regulations (if any) dealing with electrical, gas, oil or water metering equipment, and (b) that has been installed in accordance with the manufacturer's instructions for installation or industry practice, and (c) that measures the quantity of electricity, gas, oil or water that is supplied to, or used at, only those residential premises, and (d) that enables a separate bill to be issued by the supplier for all charges for the supply and use of the electricity, gas, oil or water at those residential premises, and ….
A tenant is therefore only required to pay for charges for electricity used at the individual premises they rent and only if there is a separate meter for those premises. The claims made by Mr McWilliam are that there are 7 units in the building and only 7 meters which means that any communal power from common areas is charged to individual units. He has a report from an electrician confirming that there are 7 meters and no meter for common property power. Mr McWilliam also refers to photographs of unsecured power points in the communal laundry which he states are connected to individual unit meters. He believes that others use the power point connecting to his meter, thus increasing his electricity costs. Mr McWilliam states that his requests to the landlords to have an electrician do testing to ascertain what power is being charged to which meter have been refused.
The landlords have provided a letter from an electrician to the effect that all 7 meters are in working order. The letter makes no mention of common power and how it is metered. The landlord's agent states that the landlords pay for common power but have not provided any electricity bills to evidence those charges or payments. As noted above, they have provided copies of electricity bills from two other units which are much lower than those provided by Mr McWilliam. The landlords state that it is up to Mr McWilliam to raise with his provider why his consumption is so high.
In our view it cannot be said that Mr McWilliam's case is hopeless. We note that the member who refused Mr McWilliam's reinstatement application referred to the fact that Mr McDonald was unsuccessful before the Tribunal on the same day and this was a reason not to exercise the discretion to reinstate the matter as both cases relied upon the same documents. That member also stated that Mr McWilliam was represented by Mr McDonald, apparently also overlooking Mr McDonald's statement, as recorded in the previous member's reasons, that he was not representing Mr McWilliam at the substantive hearing. We do not consider the fact that Mr McDonald's case was dismissed on the merits is conclusive as to how Mr McWilliam's case may have been dealt with, if he had been permitted to give evidence to the Tribunal, bearing in mind that it was he who prepared the written material and could be questioned on it.
Before deciding whether to allow the appeal, one further matter needs to be dealt with. Under s 47 of the Residential Tenancies Act a tenant may make a written request to the landlord that the landlord repay to the tenant any rent, or other amounts, paid by the tenant that are not required to be paid under that Act or the residential tenancy agreement. The tenant may then apply to the Tribunal for an order for the repayment of rent or any other amount paid by the tenant if a written request by the tenant for payment is not complied with by the landlord within 14 days.
An issue arose in the appeal as to whether Mr McWilliam had made such a written request. The landlord states that no such request was made. Mr McWilliam has provided a copy of a text sent to the landlord's agents on 14 February 2024 in which he states: "Still waiting on reply to best way to sort out refunds for power as formally requested." At the appeal hearing Mr McWilliam said he could provide a copy of the formal request but did not have it with him at the time. Mr Karas, the agent present at the appeal hearing, said he was not personally included in the correspondence. That does not mean, however, that a formal request was not made by Mr McWilliam to the real estate agency acting on behalf of the landlord. From the material before us we are satisfied that it is more likely than not that a formal request was made by Mr McWilliam some time prior to 14 February 2024, although we form no concluded view in that regard. In our view it cannot be said that there is no utility in granting the appeal.
For the above reasons, we grant leave to appeal and allow the appeal. The most appropriate course is to remit the matter to the Tribunal to be determined and for each party to be given an opportunity to provide further evidence to support their positions. We set aside the orders made on 20 June 2024. In those circumstances it is not necessary to make any orders in respect of the decision made on 15 July 2024 to refuse the reinstatement application.

Orders 1. Leave to appeal insofar as it is required granted. 2. Appeal allowed. 3. The orders made in matter 2024/00080973 on 20 June 2024 are set aside. 4. The proceedings are remitted to the Consumer and Commercial Division of the Tribunal differently constituted for determination consistently with these reasons on the basis of the evidence previously filed and such further evidence as the parties may see fit to adduce.

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: 28 January 2025

At a glance

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Judgment (9 paragraphs)

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Cases Cited (12)