Mohamud v Raad

[2023] NSWCATAP 324

NCAT Appeal Panel|2023-11-27

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2023-11-27

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

Introduction

This is an appeal of the appellants (Tenants) from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) on 10 July 2023 in matter RT 23/25025 (Decision).
By consent, the Tribunal terminated the residential tenancy agreement between the Tenants and the respondent (Landlord), ordered the Tenants to give vacant possession of the premises to the Landlord by 21 August 2023, and ordered the Tenants to pay the Landlord a total of $3,700 in respect of outstanding rent (Consent Orders).
A Notice of Appeal was filed 27 September 2023. In summary, the Tenants say that their decision to consent to the orders of 10 July 2023 was made in the context of a lack of full understanding and appreciation of all the issues and pressure from their solicitor to accept the Decision otherwise "you will be thrown out on the street with your seven children if you don't".
The Tenants say their English skills are poor and insufficient to comprehend the Tribunal processes. This included the conciliation process, which took place before the hearing.
The Tenants also say that they relied on their solicitor to explain the Tribunal proceedings to them but that she failed to do. They say that they only realised after the hearing that the rental ledger prepared by their 15-year-old daughter was inaccurate.
The Tenants say they relied on the interpreter at the Tribunal hearing to interpret the proceedings in a way that made sense to them. While they do not say the interpreter failed in that task, apparently the interpreter was late. They say that if the Tribunal proceedings had been conducted in their native language, they are certain they would have won the case.
For the following reasons, we have decided to refuse leave to extend the time for filing the notice of appeal, which was filed approximately 11 weeks late. This has the effect of dismissing the appeal.

[3]

The Notice of Appeal

The Notice of Appeal states that the Tenants were seeking leave to appeal because they may have suffered a substantial miscarriage of justice because the Decision was not fair and equitable, and that the Decision was against the weight of the evidence, and that significant new evidence was now reasonably available which was not available at the time of the Tribunal hearing.
As to the Decision not being fair and equitable, the Tenants submit: The Tribunal decision of 10 July was not fair and equitable and we feel there was a miscarriage of justice due to our lack of English language skills, lack of proper interpreting and legal support and a lack of understanding of proceedings at the hearing. Since the Order of 10 July, we have discovered that the rental record presented by our landlord contained errors and it appears that our solicitor did not check it. These errors were pointed out to me, Afrah by the caseworker that I have been engaging with after the tribunal hearing.
As to the Decision not being against the weight of the evidence, the Tenants submit: What evidence did you give at the hearing? What documents did you show the Tribunal? Our rental record was provided to our solicitor to present at the hearing but we are unsure as to whether it was presented or not? It was prepared by our 15 year old daughter and has subsequently been found to be inaccurate. What evidence did the other party give? What documents did the other party show the Tribunal? Landlord's rental statement, also inaccurate and missing some rental payments. What evidence should the Tribunal have given more weight to? Why? We are not disputing the weight of evidence as both sets of evidence had errors.
As to significant new evidence now being reasonably available which was not available at the time of the Tribunal hearing, the Tenants state: What evidence/documents do you now seek to produce to the Tribunal? The new evidence that we now seek to produce is the revised rental record, prepared by the caseworker we engaged with after the hearing. This revised record shows we were not in arrears. At the hearing, we were aware that we were not in arrears, but could not challenge the landlord's rental record as we did not understand what was happening and our solicitor did not tell us that the landlord's record was inaccurate. We only met our solicitor at the hearing for the first time, as all of our communication was over the phone, due to the shortness of time between being granted legal aid and the date of the hearing. A face to face meeting with our solicitor, to examine the landlord's record and our record would have made a difference to the rental arrears decision. Why was this evidence (including documents) not available at the time of the hearing? An accurate rental payment record was not available at the hearing. The rental payment record we gave our solicitor was prepared by our I 5year old daughter. We have since discovered that the payment periods were not calculated correctly and the record was not completely accurate.
Attached to the Notice of Appeal was a document headed "Ground of Appeal". That document states: Our decision to consent to the Order of 10 July was made within the context of a lack of full understanding and appreciation of all of the issues and with pressure from our solicitor to accept the Order" or you will be thrown out on the street, with your seven children' if you don't. We got frightened and consented. As our English skills are poor and insufficient to comprehend the processes of the Tribunal, which is unfamiliar to us, we accepted. I, Afrah wish to highlight an example of this lack of understanding of the Tribunal's proceedings on 10 July. When I saw my solicitor in a room with the landlord, I couldn't understand why she, who was supposed to work for me, was talking with the landlord. It has now been explained to me, by my caseworker, that our solicitor was consulting with the landlord to reach an agreement and that this process is referred to as "conciliation." We had no idea on the day that this is what was happening. We relied on our solicitor to explain the Tribunal proceedings to us, through the interpreter, but instead she urged us to accept the Order without a clear explanation and without having satisfied herself that the rental record we had given her to present as evidence against the landlord's record was correct. Our rental record was prepared by my 15 year old daughter and we only discovered after the hearing that it was inaccurate. The revised rental record is attached and shows that we did not owe $3,700 as claimed by the landlord. We also relied on the interpreter to interpret the proceedings in a way that made sense to us. The interpreter's late arrival didn't help either and caused us undue anxiety. If the Tribunal proceedings were conducted in our native language, we are certain that we would have won the case, as we could have defended our clean rental record. We have lived in Australia for 20 years but I, Afrah did not have the opportunity to complete the English course started when I arrived, as I had to go to work to support myself. After 2 years I got married and had 7 children in succession and have been busy since then working and looking after my family, with no opportunity to study English.

[4]

The Tenants' submissions

On or about 1 November 2023, the Tenants filed a further document titled "Grounds of Appeal". This document amplifies the matters set out in the first Grounds of Appeal document attached to the Notice of Appeal, but also includes important additional information including the following: … I want to stress that the self-prepared rental schedule, referred to above, provided to my solicitor on 6 July, was prepared by my 15 year old daughter, with no skills or experience in these matters. When I showed this document to my current caseworker, she pointed out the errors in the document and we re-wrote it together and it is being submitted with this application as Schedule 1. When we compared it with the rental schedule provided by the landlord's agent (refer Schedule 2), it is clear to see the many errors in the schedule. Had my rental schedule been prepared with the support of a professional and skilled worker, I am convinced would have been successful in contesting the landlord's erroneous rental ledger. The termination notice issued on 30 May 2023 should have been contested on the basis that the landlord's rental schedule contains date and payment errors putting me in arrears when I was clearly not. I have attached copies of rental ledgers provided to me by the landlord's agent showing errors. For instance, on one schedule, payment made on 3/5/2023 states period of rent as 29/3 to 11/4 and on another schedule the period shown is from 1/5/ to 14/5 (a difference of just over 4 weeks). I am not sure which rental schedule the landlord provided to the Tribunal hearing on 10 July. I would like to add that during our tenancy we were never provided with regular rental statements. … As to why I did not appeal the decision earlier, after the hearing, I asked my solicitor on 18 July about an appeal and she advised that I need to lodge it within 14 days from the date of the Order, however she also told me that as my case was resolved by consent, there are no grounds on which to appeal. I felt discouraged and decided not to lodge the appeal. When I went to see a caseworker and explained the circumstances of my eviction and other issues leading up to the eviction and what we experienced throughout my tenancy, such as bullying and harassment and non- compliance with requests for basic repairs, I decided that I would appeal the decision on the grounds that the Order was unfair due to the high level of disadvantage with language barrier, lack of support to prepare my case and lack of understanding of how the NCAT works. This is not a case that I could face on my own. I did have a solicitor assigned to me, but the first time I met with her was on the day of the hearing! (underling as in original)

[8]

Leave to appeal

Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The principles to be applied by an appeal panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: 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.
Even if an appellant establishes 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. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

[9]

Consideration

We note that the Tenants were only appealing the Decision in so far as the Tribunal ordered the Tenants to pay some $3,700 of rental arrears (being order (7) of the Tribunal's orders of 10 July 2023. The Tenants did not seek to disturb the orders in relation to termination of the residential tenancy agreement or the giving of vacant possession to the Landlord.
Before dealing with the Tenants' claim of a denial of procedural fairness, it is appropriate to say a little more about the events leading up to the hearing on 10 July 2023.
The Landlord had filed application RT 23/25025 on 30 May 2023. In her application, she claimed that the Tenants had failed to pay rent and was purposely withholding the rent and utilities payment.
The matter was listed for conciliation and hearing on 15 June 2023. The parties were not able to reach an agreement and the Tribunal made the usual orders for the filing of evidence; the Landlord by 22 June 2023, the Tenants by 29 June 2023. The matter was adjourned for a final hearing of three hours on a date to be advised.
It appears that the Tenants filed no evidence in accordance with those orders. We are uncertain whether the Landlord complied with the orders, although it appears she had evidence, in particular a rental ledger, at the hearing on 10 July 2023.
We have no transcript of the final hearing or a sound recording of the proceedings. No party had filed any form of statement setting out what occurred that day. All we know is that the Tribunal made orders by consent, presumably following the parties signing some form of document setting out their agreement, presumably following the Tribunal confirming with the parties (and in the Tenants' case with their solicitor) that they understood the orders and agreed to them.
Following the appeal hearing we called for the Tribunal file for matter RT 23/25025. Appearing on the file was a Conciliation Agreement Form dated 10 July 2023 apparently signed by the Landlord, Mrs Mahmoud or her husband, and the interpreter that day. This document was not before us at the appeal hearing, and had not been discussed with the parties. Accordingly, we notified the parties after the hearing that we proposed to treat the document as evidence that the terms of the Consent Orders made by the Tribunal were explained to Mrs Mahmoud, and gave the parties the opportunity to make any submissions on that proposal.
We received submissions only from Mrs Mahmoud. In those submissions, she explained what had occurred during the conciliation. We did not give her leave to do so and, as the conciliation process is confidential, we have had no regard to that component of her submissions. However, in conclusion she said that she did not believe it was fair to use the signed agreement as evidence that the terms of the Consent Orders were explained to her "because it is not as simple as that". She states: The solicitor handed me the Agreement to sign in a rush and didn't ask the interpreter to explain it to me, then my husband signed it. I believe I was signing a document to keep me in the house a few more weeks.
Mrs Mahmoud's understanding was correct. The conciliation agreement was signed on 10 July 2023, and provided for her and her husband to give vacant possession of the premises to the Landlord six weeks later, on 21 August 2023. It is difficult therefore to accept that Mrs Mahmoud did not understand the effect of the agreement.
It suffices to conclude that, as the conciliation agreement was on the Tribunal file, clearly it was handed to the Tribunal on the day of the hearing, and the Tribunal acted on it in making the Consent Orders, and did so in the presence of Mrs Mahmoud's solicitor.

[10]

Denial of procedural fairness

Against that background we now turn to the denial of procedural fairness.
The claim of a denial of procedural fairness is based on a variety of factors including Mrs Mohamud's lack of fluent English; her solicitor giving her poor advice; her solicitor not examining the Landlord's rental ledger and identifying errors; the Tribunal failing to examine the Landlord's rental ledger and identifying errors by complaint it to the Tenants' rental ledger and Mrs Mohamud generally not understanding what was happening both during conciliation and in the hearing room and being overwhelmed by the prospect of having to relocate her family, which included 7 children, in a short period of time.
As the Appeal Panel commented in Barnes v Barot [2023] NSWCATAP 199: 50. Procedural fairness is not abstract. As Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 said at [37] in respect of procedural fairness: ...Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. 51. Basten JA addressed the same issue in Italiano v Carbone & Ors [2005] NSWCA 177 at [88]: An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment," as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. The Tenants were represented by a solicitor the hearing of 10 July 2023, and had the assistance of an interpreter.
Applying that test, in circumstances where the Tenants were represented by a solicitor at the hearing on 10 July 2023, and had the assistance of an interpreter, especially given that they were represented by a solicitor at the time, and where the Tribunal was asked to make the Consent Orders, we do not accept that there has been any denial of procedural fairness.
While the Tenants may have a complaint against the solicitor, a matter on which we express no view, we do not consider that they have a legitimate complaint against the Tribunal in respect of this ground of appeal.
In conclusion, while the Tenants have raised a question of law, we see no error by the Tribunal.

[11]

Leave to appeal

That means the Tenants need leave to appeal.
The basis for granting leave was that the Decision was not fair and equitable. Here the Tenants are raising the matters we have just considered under the procedural fairness grounds of appeal. We would not grant leave to appeal in relation to this ground.
The second basis for doing so was that that the Decision was against the weight of the evidence. We do not know whether any rental ledger was provided to the Tribunal all. The rental ledger of the Landlord presumably proved that $3,700 was owing in rental arrears. There is no evidence that the rental ledger prepared by the Tenants' daughter was ever given to the Tribunal, and in any event the Tenants now say it was incorrect.
Given these matters, and the fact that the Tenants say in their Notice of Appeal that they are not disputing "the weight of the evidence", this is not a ground of appeal in respect of which we would grant leave to appeal.
The final basis for a grant of leave is that there is now new evidence available that was not reasonably available at the time of the hearing. The evidence sought to be relied on was a revised rental ledger prepared by Mrs Mohamud with Ms Vitone's assistance based on the Tenants' bank statements.
The test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
We see no reason why Mrs Mohamud could not have obtained or prepared that evidence prior to the Tribunal hearing on 10 July 2023.
This is not a ground of appeal in respect of which we would grant leave to appeal.
As the Appeal Panel stated in Chapman v McLaughin [2016] NSWCATAP 212 at [37]: … The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.
In summary, we do not consider that any ground advanced warrants a grant of leave. Leave is only usually granted where these matters involve an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its factfinding process in such an unorthodox manner that it is likely to have produced an unfair result.

[12]

Consent Orders

It must be recalled that the Tenants are appealing from consent orders. In Roney v NSW Land and Housing Corporation [2015] NSWCATAP 269, see particularly at [33]-[49], the Appeal Panel has considered the applicable principles on an application to set aside consent orders which terminated a residential tenancy on the basis that they were agreed to by the tenant in circumstances where he was acting under pressure or duress. The Appeal Panel stated that, in summary, and without citing all of the authorities referred to, the following principles may be extracted: 1. s 59 of the NCAT Act gives the Tribunal power to make consent orders, including dismissing the proceedings, where the consent orders give effect to any agreed settlement reached by the parties which are signed by the parties; 2. grounds alleging that consent orders were entered into under pressure where the party ought to have been given an opportunity to be heard may raise questions of law, including: 1. whether the party was denied procedural fairness or; 2. whether there was some procedural defect relating to the making of the consent orders in the circumstance of the case; or; 3. whether the Tribunal miscarried in the exercise of its discretion because it failed to consider a mandatory consideration; or 4. whether the Tribunal exceeded authority in making consent orders in the absence of a jurisdictional fact 1. in exercising any discretion under s 59, the Tribunal must take into account the interests of any "vulnerable person" which includes a person who is "totally or partially representing himself or herself in proceedings because he or she is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled": r 37 of the NCAT Rules, and a failure to do so would be an error of law; 2. the Tribunal may err in law by making consent orders in the mistaken belief that the settlement agreement was untainted by undue influence or other conduct or circumstances that may vitiate the consent. Arguably, the issue of whether there was an "agreed settlement" is a jurisdictional fact on which the discretion under s 59 (1) is necessarily based, and in making the orders, the Tribunal was by implication, making a finding which may have been erroneous or mistaken, depending on whether the underlying agreement can properly be challenged. 3. a party who seeks to set aside an agreement (or consent orders) must provide evidence of the facts which support that ground. 4. the grounds for setting aside consent orders are the same as those for setting aside the agreement on which it is based, for example, illegality, misrepresentation, nondisclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like: Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243-4. Such grounds can also include unconscionable conduct by the party which stands to receive the benefit of the agreement: Hobson v NSW Land and Housing Corporation [2015] NSWCATAP 222 at [11]- [14].
None of these matters have been relied on by the Tenants, in circumstances where Mrs Mahmoud and the interpreter both signed the conciliation Agreement Form that was handed to the Tribunal on 10 July 2023 and, moreover, Mrs Mahmoud was represented by a solicitor on the day.
This militates against any decision to set aside any of the Consent Orders.

Mohamud v Raad

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