Mesiha v Murrell

NCAT Appeal Panel|2016-12-02

reasons for decision

The appellant was the landlord in respect of a residential tenancy agreement of a property at Earlwood. The respondents were tenants in the property.
On 13 April 2016 respondents filed application RT 16/17801 in the Tribunal seeking compensation for breaches of the residential tenancy agreement by the landlord and rent reduction. On 19 April 2016 the appellant subsequently filed application RT 16/18589 seeking compensation for damages to the premises said to be caused by the respondent, together with claims for rent arrears and unpaid water usage charges.
The proceedings were heard by the Tribunal on 14 July 2016. The Tribunal delivered written reasons for decision dated 18 August 2016. The Tribunal made the following orders: 1. The landlord's claim for compensation was dismissed; 2. By consent, the tenants were ordered to pay the landlord $750 for rent arrears and $149.16 for water usage, such payment to be made on or before 11 September 2016; 3. The landlord was to pay the tenants the sum of $3200 compensation on or before 11 September 2016; 4. The whole of the rental bond plus interest was to be returned to the respondent.
The appellant appeals that part of the Tribunal's decision relating to his claim for compensation in application RT 16/18589. He also seeks leave to amend the Notice of Appeal and appeal the decision in application RT 16/17801.

The appellant said he should have been awarded the sum of $7602.50 together with the bond of $1800.00, which is a total of $9402.50. It would appear there is a minor mathematical error in calculation in that if the appellant was entitled to receive the bond of $1800.00, only $7282.50 would otherwise have been payable as the balance of compensation.
Be that as it may, it is sufficient to note at this point that the Tribunal dismissed the appellant's claims for compensation, being items 2-5 above, because there was no evidence to prove the state the premises were in at the commencement of the residential tenancy agreement. Therefore the Tribunal was not satisfied that any defects in the premises at the end of the residential tenancy agreement was caused by the tenants or that the tenant had failed to comply with their obligations under s51 (3) of the Residential Tenancies Act, 2010 (RT Act).
Otherwise, the Tribunal made a consent order in favour of the landlord for rent and water usage charges as set out above and noted that the claim were not in dispute.
The appellant provided written submissions and made oral submissions about each of the claims listed above.
In relation to the additional claim for rent, the appellant said the amount claimed represented rent from the date of termination until the property was re-let, a period of 7 weeks. The appellant relied on clauses 15 and 27 of the residential tenancy agreement and said that the tenancy had been terminated by reason of the respondent breach in using the residential premises for commercial purposes. The whole of the residential tenancy agreement was not in evidence in the appeal. However, it is noted that these clauses of the standard residential tenancy agreement relating to the use of premises (clause 15) and the tenant agreeing not to alter or make additions to the premises without consent (clause 27).
In relation to the other claims, the appellant's challenge was on two bases.
Firstly, the appellants said that the Tribunal wrongly rejected evidence which he sought to tender at the hearing on 14 July 2016 and that the Tribunal wrongly rejected his application to extend the time for filing and service of evidence. The appellant said this was unfair. In doing so, the appellant did not challenge the findings of the Tribunal at [4] and following concerning the history of the proceedings, the directions made or the appellant's failure to comply with those directions. The appellant also said that he had, on 26 June 2016, applied for an adjournment prior to the hearing and had had no response to his request.
The appellant agreed he did not do anything further to follow-up his request for an adjournment when he did not hear from the Tribunal.
When asked by the Appeal Panel to explain why he did not comply with the Tribunal's directions, he said he was organising tradesmen, that his son was doing the Higher School Certificate and that he was working and did not have time to get ready for the hearing.
Secondly, the appellant made submissions in connection with each of the items of claimed. These submissions were as follows: 1. Rubbish removal Photographic evidence, which was rejected by the Tribunal at the hearing, showed rubbish left the residential premises. The appellant claimed $550 as damages but agreed no invoice for these costs had been provided to the Tribunal at all; 1. Pest Control The appellant submitted that the carpet was covered in dog urine and that he had been advised to take the carpet away and polish the floors. He said there were dog fleas and other pests which needed to be controlled; 1. Timber Floor The appellant said that quotation for polishing the floor had been rejected by the Tribunal, as had information concerning carpet cleaning and a report from L. J. Hooker. The quotation from David Hopkinson was part of the documents provided with the Notice of Appeal. The appellants said the carpets had been taken away, the floor cleaned and polished. However, the appellant did not explain why the carpet was not replaced, rather than having the floors polished. In this regard, the appellant included in the documents provided to the Appeal Panel, an invoice for carpet cleaning totalling $120, suggesting the carpet was capable of being clean. Again, the appellant did not explain this matter; 1. Walls and ceiling repairs, tiles and downpipe repairs and painting The appellant submitted that receipts in connection with these works were rejected by the Tribunal. In making this submission, when asked by the Appeal Panel, the appellant accepted directions were made for the service of his evidence which he did not comply with. 1. Fences In relation to this item, the appellants said that the respondents had inappropriately modified the property by installing metal sheeting upon the existing wooden fence which had cause the fence to fall down. The appellant said there were photos of the fence filed before the hearing in the Tribunal, included a bundle of material totalling about 300 pages. This folder was handed up on 9 May 2016 at an earlier hearing. In this regard the appellant identified the "Houspect" report dated 8 February 2016, particularly the photographs included in that report, to show the metal cladding on the fence. The respondents agreed this report was part of the evidence accepted by the Tribunal at the original hearing, having been provided prior to the date of the hearing by the appellant. The Appeal Panel notes that this report was prepared after the residential tenancy commenced, that is it did not disclose the state of the premises at the start of the tenancy before the tenant took possession. In relation to the costs to rectify the fence, the appellant indicated that an invoice for this work was part of the evidence rejected by the Tribunal at the hearing because it had not been served as directed.
During the course of the hearing, the appellant also sought leave to amend the Notice of Appeal to challenge the Tribunal's decision in connection with the respondent's application, RT 16/17801. This challenge was in connection with the compensation payable by the appellant to the respondents in respect of the rent reduction claim arising from the appellant's breach of his obligation to maintain and repair the residential premises and provide quiet enjoyment, particularly in relation to plumbing defects and/or in relation to the order for return of the bond.
The respondents, through their agent Mr Bevan, provided written submissions in reply and oral submissions at the hearing of the appeal.
In relation to the Tribunal's decision to reject the evidence of the appellant, the respondents say the Tribunal was correct to do so as the appellant did not comply with the Tribunal's directions and had not satisfactorily explained why. The respondents said there had been no denial of procedural fairness. In making this submission, the respondent set out the various directions the Tribunal had made for the provision of evidence prior to the date fixed for hearing and said that the applicant had two months to provide his evidence and that there was no error of law by the Tribunal in rejecting the evidence first provided at the hearing.
The respondent said that the appellant's wife was not denied the opportunity to give evidence. To the contrary, the respondents say the appellant never asked that his wife be allowed to give evidence. In this regard the respondents say that the appellant has not identified any evidence in the transcript to support his contention.
In relation to the issue of a major mathematical miscalculation, the respondent said this submission was unclear but appeared to relate to the issue of the claim for unpaid rent. The respondents say that the amount awarded by consent were the sums which the appellant had informed the Tribunal he was claiming. This discussion took place in the context of the appellant explaining to the Tribunal had recovered amounts from his insurance company and was not claiming those amounts in these proceedings. Consequently, the respondents submitted there was no error in the calculation.
As to the length of the hearing, the respondents say that it took nearly three hours to complete. Further, the respondents say that the Tribunal had regard to the information place before it and then reserved its decision.
Lastly, the respondents opposed the grant of leave to amend the Notice of Appeal to challenge the Tribunal's decision in respect of application RT 16/17801. In short, the respondents said that such application should not be allowed at the final hearing of the appeal, it being too late.

Consideration

There are four issues to be resolved on this appeal, namely: 1. Was the Tribunal in error in rejecting the appellant's evidence? 2. If yes, should the Tribunal have made a money order in favour of the appellant for a total of $9402.50 (being the amount claimed of $7602.50 together with the bond of $1800)? 3. Was the Tribunal in error in failing to award the appellant damages being the loss of rent from when the appellant says the residential tenancy agreement was terminated by notice dated 4 April 2016 until the premises was re-let? 4. Should leave be granted to amend the Notice of Appeal to allow the appellant to challenge the Tribunal's decision in respect of the respondents' application RT 16/17801 concerning damages/rent reduction arising from blocked drain?
In respect of the substantive decision, the appellant has a right of appeal on a question of law and otherwise with leave: see s80(2)(b) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act). As the proceedings are an appeal from a decision of the Consumer and Commercial Division, leave to appeal may only be granted if the appellant demonstrates he may have suffered a substantial miscarriage of justice: see cl 12 of Sch 4 of the NCAT Act.
In respect of the application to extend time for the filing and service of evidence, an order to extend or refuse to extend time is an interlocutory decision for which leave to appeal is required: see s 4 NCAT Act- definition of "interlocutory decision" and s80(2)(a) of the NCAT Act.
In relation to leave to appeal an interlocutory decision, the Appeal Panel said in Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 at [18]-[19]: 18 The Appeal Panel has recently considered the principles which generally guide the consideration of whether leave to appeal should be granted under s 80(2) of the Act: see Collins v Urban [2014] NSWCATAP 17. At [84] the Panel summarised the principles as follows: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (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; (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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 19 It is settled law that leave to appeal against an interlocutory decision is reserved for cases with special features warranting appellate review. The fact that the statute imposes a leave requirement makes it clear that such appeals are not to be brought as a matter of routine: Niemann v Electronic Industries Ltd [1978] VR 431 at 436. The High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 acknowledged, referring to the often cited passage of Sir Frederick Jordan in In re the Will of Gilbert, that "a tight rein" had to be kept on interlocutory appeals if all exercises of discretion in interlocutory applications were not to be transferred to a court of appeal. Nonetheless, the High Court also held that it was unnecessary and indeed unwise to lay down rigid and exhaustive criteria, and specifically stated that the requirement for an error of principle and a risk of substantial injustice were not cumulative. Of the same mind in this latter regard was the Victorian Full Court in Niemann, where their Honours pointed out that if the appellate court were expected to say in all cases that the decision below was clearly wrong and that substantial injustice would follow if it went undisturbed, "leave would never be granted by the primary judge" ([1978] VR at 441). The Full Court considered that the use of the word "wrong" in this context was itself misguided and that the requirement would be better expressed as "attended with sufficient doubt".

Was the Tribunal in error in rejecting the appellant's evidence?

On appeal, the appellant accepted that if the Tribunal was correct to exclude the evidence then the Tribunal was also correct to dismiss the appellant's claim in respect of damage to the residential premises. On the other hand, the appellants said that if the Appeal Panel accepted the evidence had been wrongly excluded then the proceedings should be remitted for rehearing.
The Tribunal dealt with the issue of the late service of evidence at [4] - [12] of the decision under the heading "Application to Extend Time for Filing and Service of Evidence".
In short, the appellant says that he was denied an opportunity to be heard because evidence essential to his case was excluded. On appeal, he offered three reasons why the evidence was not served on time: 1. His son was doing the Higher School Certificate; 2. He was organising tradesmen; 3. He was working and did not have time to get ready for the hearing.
These reasons were in addition to those identified by the Tribunal in its decision, namely that he had not properly read the directions and that some of the documents had only recently been obtained by him: see decision at [8].
Whether or not the Tribunal was in error in refusing to extend the time for the filing and service of evidence requires a consideration of the discretion which is being exercised and whether or not there is an absolute right of a party to be granted such an indulgence where they have failed to comply with the directions of the Tribunal.
Starting point to a consideration of this question is the obligations imposed upon the Tribunal and the parties by the NCAT Act.
The Tribunal has a discretion to extend time on application by the party or of its own motion and may do so even though a relevant period of time has expired: s41 NCAT Act. The discretion must be exercised in accordance with the obligations imposed upon the Tribunal pursuant to any relevant legislation and having regard to the facts of the particular case.
Section 36(1) of the NCAT Act requires the Tribunal to give effect to the guiding principle which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". The Tribunal is required to exercise the powers given to it in order to give effect to this principle: S36(2). The parties are under a duty to cooperate with the Tribunal to give effect to this principle "and, for that purpose, to participate in the processes of the Tribunal and comply with directions and orders of the Tribunal": S36(3). In doing so the "practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the costs to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings": s36(5).
Section 38 of the NCAT Act provides that: 1. while the Tribunal is not bound by the rules of evidence, it is to observe the rules of natural justice: s38(2); 2. the Tribunal is to act with as little formality as the circumstances of the case admit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s38(4); 3. the Tribunal is to take such measures as are reasonably practicable to ensure that the parties to the proceedings: 1. understand the nature of the proceedings: s38(5)(a); 2. have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s38(5)(c).
These requirements make clear that in giving effect to the guiding principle the Tribunal is to have regard to the interests of both parties as well as issues of proportionality which include issues of cost and the impact upon the Tribunal in meeting its obligations in respect of other applications which it is required to determine.
The Tribunal must also have regard to the fact that in cases such as the application to which the present appeal relates, ordinarily each party has the carriage of their own case and must pay their own costs: see ss 45(1)(a) and 60 of the NCAT Act. This is so even where a party has leave to be represented, by a lawyer or an agent.
It is now accepted that these factors, the obligations imposed upon the parties to comply with directions and issues of case management mean that where there has been a failure to comply with directions there is no absolute right to an adjournment, even where an explanation is provided for any non-compliance. Rather, the Tribunal is required to weigh up all relevant considerations in exercising its discretion about whether or not an application to extend time should be granted.
In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, [2009] 239 CLR 175, the High Court considered a discretion to allow amendments to pleadings. The majority of the Court, Gummow, Hayne, Crennan, Kieffel and Bell JJ said , at [89]-[95] (citations omitted): 89 A power is given to the court by r 502(1) to permit the amendment of pleadings "in the way it considers appropriate". Rule 21(2) specifies, in pars (a) and (b), the objectives to be sought by the exercise of the power conferred by r 502(1). In this setting, some care is called for in describing the grant or refusal of an application to amend in such a way as to suggest a very wide discretion in the decision whether to permit amendment. The observations by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission are apposite: "'Discretion' is a notion that 'signifies a number of different legal concepts'. In general terms, it refers to a decision-making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result'. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made." Their Honours went on to point out that the latitude as to choice may be considerable or it may be narrow. Given the terms of r 21, it could not be said that the latitude as to the choice of decision, as to whether to grant or refuse leave to amend, was at large. The objectives in r 21(2) are to be sought in the exercise of the power given by r 502(1). 90 The overriding purpose of r 21, to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense, is stated in the rules of other courts in Australia, although those purposes and the obligations cast upon the court and the parties may be stated in somewhat different terms. 91 … 92 The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: "Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation". 93 Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected: "[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard ...". 94 It will be recalled that in J L Holdings the plurality said that nothing in Sali v SPC suggested that principles of case management might be employed "except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable". Their Honours said that case management was not to be seen as an end to itself and that the ultimate aim of the court remained the attainment of justice, even in changing times. In Gale v Superdrug Stores Plc Millett LJ expressed a similar concern, regarding the need to ensure that justice is not sacrificed. Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd, said that such a concern did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants. 95 The statement of Waller LJ identifies a fundamental premise of case management. What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question. The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management. The statements in J L Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied "in extreme circumstances" to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others.
The majority then said at [98]-[101]: 98 Of course, a just resolution of proceedings remains the paramount purpose …; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. … costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. 99 In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. …. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh. 100 The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corp Aust French J said of Bowen LJ's statements in Cropper v Smith: "... That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary." 101 In Ketteman Lord Griffiths recognised, as did the plurality in J L Holdings, that personal litigants are likely to feel the strain more than business corporations or commercial persons. So much may be accepted. But it should not be thought that corporations are not subject to pressures imposed by litigation. A corporation in the position of a defendant may be required to carry a contingent liability in its books of account for some years, with consequent effects upon its ability to plan financially, depending upon the magnitude of the claim. Its resources may be diverted to deal with the litigation. And, whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end. The stated object in the Court Procedures Rules, of minimising delay, may be taken to recognise the ill-effects of delay upon the parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution in their proceedings.
Finally, at [111], the majority said: 111 An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
There is no doubt that these principles equally apply when considering an application for extension of time, including in relation to the late service of evidence: see eg Cordon Investments Pty Limited v Lesdor Properties Pty Limited [2009] NSWSC 1370 per Einstein J at [42] and following and Bechara v Bates (No 3) [2015] NSWSC 1588 per Adamson J at [130].
From these cases can be derived the following principles to be applied in determining an application for extension of time in the Tribunal: 1. the just resolution of proceedings remains the paramount consideration; 2. what is a just resolution needs to be understood in the context of the purposes and objectives of the power granted to the Tribunal to resolve disputes and involves a weighing of all relevant matters; 3. speed and efficiency, in the sense of minimum delay and expense are seen as essential to the just resolution of proceedings; 4. a party should be afforded a reasonable opportunity to present its case; 5. there are limits to what is necessary in providing a reasonable opportunity to be heard, which may involve the consideration of delay and cost both to the other party and to the Tribunal; 6. the nature of the case and its importance to the party seeking an extension of time needs to be considered; 7. reasons for failure to comply will generally need to be provided and must be weighed against the effect any delay will have both on the other party and upon the Tribunal; 8. an award of costs may not always be adequate to deal with issues of prejudice, which include wasted time and strain imposed upon litigants; 9. there is no absolute entitlement to an extension of time, even if the consequence of the refusal effectively prevent a party from presenting relevant evidence in support of its case.
The question is whether, in refusing the application to extend time for the provision of evidence, the exercise of the discretion by the Tribunal miscarried.
In House v The King [1936] HCA 40; (1936) 55 CLR 499, at 504-505, the High Court said: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
It is in this context that the Tribunal's decision to refuse leave must be considered.
The Tribunal made the following findings of fact: 1. The respondents' application was lodged on 13 April 2016 and the appellant's application was lodged on 19 April 2016: decision [1]. The appellant sought compensation for damages to the premises, rent arrears and water usage. 2. Directions were made on 5 May 2016 requiring: 1. the appellant to file and serve evidence by 19 May 2016; 2. the respondents to file and serve evidence of their claim and in reply by 16 June 2016; and 3. the appellant to file and serve any documents in reply by 30 June 2016; decision [4]-[5]. 1. The directions were sent to both parties and included directions that a party may not be able to rely on documents, without leave, if those documents were not provided in accordance with the directions. The directions also included a statement that a party who requires an extension of time should do so in writing no later than the day prior to the due date: decision [6]; 2. The appellant accepted that the additional documents he wished to rely upon at the hearing had not previously been served on the respondents: decision [7]. 3. The reasons given for non-compliance were that the appellant had not properly read the directions and that some documents had only recently been obtained by him: decision [8].
The Tribunal set out the matters to be considered in determining whether an extension of time should be granted at [9] and then concluded at [10]-[11]: 10 I am satisfied that the landlord had an opportunity to file and serve is documents in accordance with the directions and failed to do so. Although he claims that some of the documents were only recently obtained, from his submissions it is apparent that he was in possession of many of the documents prior to the date set for service. Further, the claim that the landlord did not properly read the Tribunal directions is not a proper reason to extend time for compliance. 11 I find that if the documents were allowed to be put into evidence at this late stage, the tenants would be prejudiced in that they would not be able to immediately respond to those documents, and as a matter of procedural fairness, it would then be necessary to adjourn the proceedings. This would unnecessarily delay the hearing and not be in accordance with the Tribunal's guiding principle as set out in section 36 of the Civil and Administrative Tribunal Act 2013 which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings".
Accordingly, the Tribunal dismissed the application to extend time.
As indicated in the reasons, the Tribunal weighed the evidence before it in determining whether or not to grant an extension of time which was opposed by the respondents. In doing so, the Tribunal recorded that the appellant's evidence was originally due on 19 May 2016 and that any evidence in reply was due by 30 June 2016. These facts were not challenged on appeal.
The Tribunal noted that some of the evidence upon which the appellant sought to rely was in fact available to him prior to the hearing and prior to the date when his evidence was due. The bundle of material provided to the Appeal Panel corroborates this finding. For example, a quotation from Property Connect Maintenance in respect of wall, ceiling and roof repairs totalling $2500 is dated 27 June 2016.
In addition, it is clear that the appellant sought to rely on other documents which were in his possession and could have been given to the respondents prior to the hearing. These include: 1. The quotation from David Hopkinson Floors in respect of floor sanding totalling $1040 dated 1 July 2016; and 2. A tax invoice for carpet cleaning from Provisional Carpet Cleaning Pty Ltd in the sum of $120 dated 7 July 2016.
The Tribunal concluded that the late service of these documents, first delivered to the respondents at the hearing on 14 July 2016, could not then be responded to by the respondents and would have necessitated an adjournment of the hearing and consequently a delay in resolution of the claims. No error is apparent in this conclusion, it being clear that the respondents would otherwise be denied an opportunity to provide evidence in reply if the material was accepted and the hearing continued on 14 July.
As to the explanations given by the appellant for not complying with the Tribunal's directions, the Appeal Panel was asked to and has reviewed sound recording of the oral evidence given by the appellant concerning why he did not comply with the Tribunal's directions. At about time-mark 15:00 on the sound recording and following the appellant: 1. accepted that he had not served evidence on the respondents. Rather, he said he otherwise provided to the Department of Fair Trading at Hurstville; 2. said he had been waiting on his insurance company to inspect the property but had been too busy to go to the property to provide access because of work commitments; 3. said that he had been too busy to otherwise prepare his evidence and had been waiting on documents;
These matters further support the Tribunal's conclusion that there was no satisfactory explanation of the appellant's failure to comply with directions, which originally required the appellant to provide his evidence by 19 May 2016.
In our opinion, the Tribunal correctly identified the matters relevant to the exercise of its discretion, made findings of relevant facts and weighed those facts in deciding what to do. The Tribunal did not accept that the explanations provided by the appellant were an adequate excuse and found that the respondents would be prejudiced if the proceedings were adjourned because finalisation of the matter would be delayed. Otherwise the Tribunal found it would be unfair for the respondents to be required to immediately respond and for the proceedings to be otherwise adjourned and thereby delay finalisation.
This decision could not be said to be unreasonable or plainly unjust. Indeed, when one considers the additional evidence given by the appellant at the original hearing to which we have referred to above, it seems clear to us that the appellant was given nearly two months from 5 May 2016 to 30 June 2016 to prepare all evidence in support of his claim and provide it to the respondents. This he failed to do.
In these circumstances, no error in the exercise of discretion has been established, leave to appeal should be refused and of this ground of appeal should be dismissed.

If yes, should the Tribunal have made a money order in favour of the appellant for a total of $9402.50 (being the amount claimed of $7602.50 together with the bond of $1800)?

Having regard to our decision above, this issue does not arise. This is because of the concession of the appellant that the Tribunal was correct to dismiss his application if leave to extend time and allow the additional evidence was not granted.

Was the Tribunal in error in failing to award the appellant damages being the loss of rent from when the appellant says the residential tenancy agreement was terminated by notice dated 4 April 2016 until the premises was re-let?

This issue can be dealt with shortly.
First, it would appear that in respect of the claims for rent, a consent order was made for a total of $750.00. There is no reason why this consent order should be varied.
Secondly, insofar as the landlord validly terminated the residential tenancy agreement, the obligation to pay rent, even if possession was given prior to the date for termination specified in the notice, ceased upon the delivery up of possession. In this regard ss110(1) and (2) of the RT Act provides: (1) A tenant who is given a termination notice by the landlord, or who gives a termination notice, may give vacant possession of the residential premises at any time before the termination date. (2) If a termination notice is given by a landlord, the tenant is not liable to pay any rent for any period after the tenant gives vacant possession of the residential premises and before the termination date
Accordingly, even if this aspect of the claim was not otherwise compromised by the consent order, the claim should have been dismissed because there was no ongoing liability for rent after vacant possession was delivered up and therefore no claim for damages could be maintained for unpaid rent. Rather, the only claims which could be maintained were those relating to damages arising from breaches of clauses 15 and 27 of the residential tenancy agreement, namely damages arising from impermissible use, damage to the residential premises or from the making of unauthorised alterations or additions to the premises. These claims were dismissed as the appellant failed to prove any relevant breach: decision [47]. Therefore no entitlement to an award for consequential damage could arise.

Should leave be granted to amend the Notice of Appeal to allow the appellant to challenge the Tribunal's decision in respect of the respondents' application RT 16/17801 concerning damages/rent reduction arising from blocked drains?

This aspect of the appeal relates to the award for damages/ rent reduction claim arising from breaches of the residential tenancy agreement by the landlord, specifically in relation to the sewerage system, the obligation to repair and the obligation in relation to quiet enjoyment. The appellant not only requires leave to amend the grounds of appeal in the Notice of Appeal to include such a claim but also requires leave to appeal a decision in respect of separate proceedings RT 16/17801 which was not previously the subject of an appeal.
Application RT 16/17801 is "residential proceedings" within the meaning of Rule 3 of the Civil and Administrative Tribunal Rules, 2014 (Rules). Rule 25(4)(b) requires appeals from a decision in residential proceedings to be made within 14 days of the date the appellant was notified of the decision or given reasons for the decision, whichever is the later.
Consequently, the appellant needs leave under s41 of the NCAT Act to lodge such an appeal out of time.
The principles applicable to the grant of leave to appeal out of time are set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. At [22] the Appeal Panel said: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (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 - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
Even accepting that the appellant may have a poor understanding of the Tribunal processes, having regard to the date of the original decision and the 14 day time limit, the appeal is well out of time.
No suggestion was made in the Notice of Appeal filed on 29 August 2016 that there would be any challenge to the award made in favour of the respondents in application RT 16/17801. It would appear that the first time this issue was mentioned in documents filed by the appellant in the appeal was in his bundle marked "I am the appellant" filed on 14 October 2016. No explanation has been given as to why an appeal in connection with the respondents' proceedings was not lodged in time.
Further, it seems clear that at least for part of the tenancy there were in fact blockages to the sewerage system and/or that the toilet suite needed to be replaced because it was not working properly: see page 4 of the bundle headed "I am the appellant". In these circumstances, it appears that the appellant does not challenge the fact that the sewerage system was unserviceable but says the period allowed in calculating damages was incorrect.
At [52]-[53] of the decision, the Tribunal accepted the respondents' evidence concerning the nature and extent of the defects and also made findings concerning the relevant period in which the breach occurred. These were findings of fact for which leave to appeal would be required if the Appeal Panel determines that an extension of time should be granted. Therefore the appellant would also need to demonstrate he may have suffered a substantial miscarriage of justice: see cl12 of Sch4 of the NCAT Act.
We have not been referred to any material which would lead us to conclude any miscarriage of justice, let alone a substantial miscarriage of justice, has occurred in the Tribunal reaching its decision. To the contrary, the paragraphs of the decision to which we have referred show that the Tribunal considered the evidence of both parties and did not allow the whole of the period in which the respondents asserted the sewerage system was unserviceable.
Having regard to these matters, we are not satisfied that the time to the decision in application RT 16/17801 should be extended. Accordingly, the application is dismissed

Orders

It follows from what we have said that leave to appeal should be refused and the appeal should otherwise be dismissed.
Consequently, the Appeal Panel makes the following order: 1. Leave to amend the Notice of Appeal and to extend the time in which to appeal the decision in application RT 16/17801 refused; 2. Leave to appeal the decision in application RT 16/18589 refused and 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: 05 January 2017

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Cases Cited (16)

Cited By (24)