Moore v CTTT & 2 Ors

Moore v CTTT & 2 Ors - [2006] NSWSC 145 - NSWSC 2006 case summary — Zoe

[14]

JUDGMENT (Appeal decision of CTTT - failure to grant adjournment) 1 HER HONOUR: By summons filed 18 March 2005 the plaintiff seeks firstly, an order that the decision and orders dated 14 January 2005 of the Consumer, Trader & Tenancy Tribunal (CTTT) made by Member Cooper in proceedings RT 04/58087 be quashed; and secondly, an order that the CTTT hear and determine the plaintiff's application for orders under the Residential Tenancies Act 1987 (NSW) lodged on 8 December 2004. No specific grounds of appeal are raised in the summons. 2 The plaintiff is Danielle Moore. The first defendant is the CTTT who has filed a submitting appearance. The second defendant is K A Burke who has also filed a submitting appearance. The third defendant is B J Evans. Mr Evans has not taken an active role in these proceedings. There was no contradicter - see Holloway v Chairperson of the Residential Tribunal (2001) 51 NSWLR 716. 3 In Holloway one party did not appear. The issue in dispute was the interpretation of s 63 of the Residential Tribunal Act 1998. At [42] and [43] the Court of Appeal stated that it was not satisfactory and that there was no contradictor to assist the Court. The Court commented that the Chairperson, who was a party to the proceedings, had perhaps misunderstood his or her position in filing a submitting appearance. 4 The plaintiff relies upon s 65 of the Consumer, Trader and Tenancy Act 2001 (NSW) (the Act). Section 65(3) provides that a court is not prevented from granting relief or a remedy of a kind referred to in a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or a declaratory judgment or order, or an injunction, in relation to a matter in respect of which the CTTT has made an order if the ground on which the relief or remedy is sought is that (a) the CTTT had no jurisdiction to make the order, or (b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness. The plaintiff submitted that she had been denied procedural fairness. 5 Section 67(3) of the Act provides that, after deciding the question of the subject of an appeal, the court may affirm the decision of the CTTT or it may make an order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the CTTT, or it may remit its decision on the question to the CTTT and order a rehearing of the proceedings before the CTTT.

[15]

The CTTT generally 6 At the outset, it is helpful to set out some of the provisions of the Act. The functions of the CTTT are to adjudicate disputes between consumers and commercial disputes between landlords and tenants. The CTTT is not constrained by the rigour of the courtroom. Its objects are to ensure that the CTTT is accessible, its proceedings are efficient and effective, its decisions are fair and to enable proceedings before the CTTT to be determined in an informal, expeditious and inexpensive manner. The CTTT is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 28(3)). 7 Evidence must be given on oath or statutory declaration (s 39(1)) but the CTTT is not bound by the rules or practice of evidence and the CTTT may inform itself on any matter in such manner as it considers appropriate (s 28(2)). The CTTT must conform to the rules of natural justice, but broadly speaking, has control of and responsibility for its own procedures (s 28(1) and (2)). Its business is conducted in public (s 33). Section 35 provides that the CTTT must ensure that each party in any proceedings is given a reasonable opportunity to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise); and to make submissions in relation to the issues in the proceedings. Normally, a party to the proceedings has carriage of his or her own case and is not entitled to be legally represented (s 36(1)). The CTTT has the power to award costs (s 53), but usually each party bears its own costs. Pursuant to s 54 of the Act, the CTTT is obliged to use its best endeavours to bring the parties to a settlement before making an order. The CTTT has a power to correct its decision (s 50) and the Registrar can issue a certificate, which operates as a judgment (s 51). I shall refer to ss 28 and 35 in more detail later in this judgment.

[28]

This continued several times a day for six months. Sometimes as early as 6.00 am sometimes as late as 10.00 pm." 22 The plaintiff in her affidavit before this court stated that she did not mean to say in paragraph 4 (above) that the breaches of quiet enjoyment ceased after six months. Rather, what she meant to convey was that the frequency of driving across the premises several times a day lasted for six months. She deposed that she thought she would have an opportunity at the hearing to give evidence of what had happened and she had thought it was not necessary to include a lot of detail in the application form and that detail would be provided at the hearing. She deposed that in October and November the driving across the premises occurred about once a day or sometimes once every 2 days. However, it is important to remember that the Tribunal Member was not aware of the plaintiff's intended rectification of paragraph (4). 23 On 4 January 2005 the hearing was adjourned to a date by consent of the parties. The plaintiff telephoned the CTTT towards the end of the week commencing 4 January 2005 and the new hearing date allocated was 14 January 2005. She attempted to contact a tenancy advocacy service and heard a recorded message to the effect that the office would be unattended until 10 January 2005. On 12 January 2005 (some 2 days before the hearing) she spoke to someone at the tenancy advocacy service and was told the service would not be at the CTTT sittings on Friday 14 January 2005. 24 The plaintiff asked her employer, the proprietor of a café, for time off work to attend the CTTT and he replied with words to the effect, "it is too busy in the holidays and I do not have time to find a replacement. I cannot give you time off." The plaintiff called the tenancy advocacy service and told them she could not get time off work. She says the advocacy service told her words to the effect, "You will have to fax the Tribunal to ask for an adjournment. Write in the reasons why you cannot go." 25 On 12 January 2005 the plaintiff sent a facsimile message to the CTTT in the following terms: "To Tenancy Tribunal

[33]

c) The Applicant's claim for compensation for loss of quiet enjoyment was not sustainable because: (i) The property had not been advertised as a rural property. (ii) The tenant only leased part of the property. (iii) There was a second driveway on the property which had been used by heavy vehicles for a period of about 3 weeks in July/August 2004. This did not form part of the leased property." 29 The Tribunal Member decided to refuse the adjournment because no substantial reasons have been provided and injustice would result to the respondent. 30 The Tribunal Member then dismissed the plaintiff's application for termination and compensation on the following grounds: (1) The tenancy was terminated by consent of the parties on 29 December 2004. The Tribunal notes that the landlord acknowledges that the landlord has no grounds to make any claims against the tenant in relation to the tenancy. (2) The application for compensation allegedly applies to the period from April to September 2004. Section 16(1) of the Residential Tenancies Act 1987 requires the application to be filed within 30 days of the Applicant becoming aware of the breach. The application is therefore out of time." 31 The plaintiff availed herself of the opportunity to apply for an adjournment. She clearly stated what her reasons were for seeking the adjournment. Those reasons were taken into account by the Tribunal Member. The defendant opposed the application for adjournment and gave reasons for doing so. It is my view that the Tribunal Member was entitled in the exercise of his discretion to refuse to grant the adjournment. The Tribunal Member then dealt with the plaintiff's claim on its merits. Even if there was an error in the calculation of the plaintiff's time in which she could make a claim, this did not change the fact that the plaintiff would have required an extension of time. There has been no denial of procedural fairness. The decision of Tribunal Member Cooper dated 14 January 2005 is affirmed. The summons filed 18 March 2005 is dismissed. 32 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed.

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