MPP Property Pty Ltd v Soliman Hospitality Pty Ltd

NCAT Appeal Panel|2021-03-22

Summary

The appellant seeks to appeal from five decisions of the Consumer and Commercial Division of the Tribunal (Tribunal).
The first decision was made on 1 July 2020. The Tribunal refused to adjourn a hearing which was to be held on 6 July 2020.
The second decision was made on 2 July 2020. Again, the Tribunal refused to adjourn the hearing which was to be held on 6 July 2020.
The third decision was made on 6 July 2020. The Tribunal refused to adjourn the hearing which was to be held that day.
For these three appeals, the appellant requires an extension of time in which to file the appeal. For the reasons set out below, we have decided not to grant that extension and the appeal is accordingly dismissed.
The fourth decision was made on 20 October 2020. This was the substantive decision of the Tribunal in this matter. For the reasons set out below, we do not consider that the appellant has identified any error of law, or any other error in respect of which leave to appeal should be granted. Accordingly, the appeal is dismissed.
The fifth decision was made on 27 January 2021. This was the costs decision in relation to the substantive decision. For the reasons set out below, we do not consider that the appellant has identified any error of law, or any other error in respect of which leave to appeal should be granted. Accordingly, the appeal is dismissed.

Background

By application dated 27 August 2019, the respondent (a lessee of a property owned by the appellant in Croydon Park) sought orders pursuant to the Retail Leases Act 1994 (NSW). The respondent accused the appellant of unconscionable conduct and repudiatory conduct entitling it to terminate a retail lease and to claim damages.
On 26 May 2020, the parties were notified that the respondent's application had been set down for hearing on 6 July 2020. The appellant did not appear at the hearing. Nor had it filed any documents pursuant to directions of the Tribunal. A cross application filed by the appellant had previously been dismissed for lack of prosecution.
The Tribunal proceeded in the absence of the appellant, accepted the respondent's claims, found that the appellant had invalidly terminated the retail lease and as a consequence repudiated the lease, that the respondent accepted that repudiation, and ordered the appellant to pay the respondent damages of $106,394.69.
The Tribunal's reasons for decision were published on 26 October 2020 (Decision).
Further reasons, primarily relating to costs, were published on 27 January 2021.

Tribunal proceedings leading to hearing

After the application was filed on 27 August 2019, a directions hearing was held on 17 September 2019. The Tribunal gave directions requiring the appellant to file its points of defence, a cross-application and submissions on an application for security for costs by 8 October 2019. The appellant provided points of defence and a cross application to the respondent on 25 October 2019.
The matter was next listed for directions on 19 November 2019. Relevantly those directions provided that the appellant was to file and serve any amended points of claim, any amended points of defence and its application for security for costs by 14 December 2019.
On 16 January 2020, the appellant provided to the respondent a letter addressing amendments to its points of claim, mediation and confirmation that the appellant did intend to make an application for security for costs.
On 18 February 2020, the Tribunal directed that the parties give each other and the Tribunal all documents on which they intended to rely at the hearing by 17 March 2020, with documents in reply to be provided by 17 April 2020.
No documents were provided by the appellant in accordance with those directions.
On 19 February 2020, the Tribunal set the matter down for hearing on 5 May 2020 at 9:15 am.
On 9 March 2020, the respondent was advised by the appellant's solicitors that they had been unable to obtain further instructions from the appellant and accordingly had ceased to act for it.
On 4 May 2020, the respondent's solicitor Ms Tzouras received a telephone call from Ms Mouna Elissa-Emsis. Ms Elissa-Emsis is the sole director of the appellant. (As Ms Elissa-Emsis is referred as Ms Emsis throughout the Decision, we will also do so in these reasons.)
Ms Emsis asked how the hearing was going to go ahead when "the courts" were closed. Ms Tzouras advised her that the parties would attend by telephone and recommended that Ms Emsis contact the Tribunal urgently to provide it with a current contact telephone number. Ms Emsis said that she would be doing "the talking tomorrow", and that she would contact the Tribunal.
On 5 May 2020, at the request of the appellant, the Tribunal adjourned the hearing and make directions for the notification of unavailable dates and which witnesses were required for cross-examination. In addition, as the appellant had failed to comply with the timetable of 18 February 2020, the Tribunal made further directions for the appellant to file and serve all documents on which it wished to rely by 29 May 2020.
No documents were provided by the appellant in accordance with those directions.
On 26 May 2020, the Tribunal set the matter down for a two day hearing on 6 and 7 July 2020 at 9:15 am.
On 5 June 2020, the respondent requested the Tribunal to re-list the matters due to the appellant's non-compliance with the orders made on 5 May 2020. The respondent indicated that it would be seeking orders determining the respondent's application against the appellant in favour of the respondent and dismissing the appellant's cross application.
On 23 June 2020, at a hearing the appellant did not attend, the Tribunal dismissed the appellant's cross application for want of prosecution, but refused to give summary judgement for the respondent in its matter. The Tribunal did however make an order preventing the appellant from filing any new evidence without leave of the Tribunal, such leave only to be granted in exceptional circumstances. The Tribunal noted in its written reasons that the appellant had delayed "at every stage", failed to provide timely instructions to its solicitor and that it had conducted the proceedings in a way that unnecessarily disadvantaged the respondent. The appellant was ordered to pay the respondent's costs.
By the time of the hearing on 6 July 2020, the appellant had not filed any evidence in response to the respondent's application.

The first adjournment application

On 1 July 2020, Ms Emsis on behalf of the appellant filed an Adjournment Request in which she stated: I believe there has been a hearing set on the 6/7/20. Since our last brief over the phone, I have had a fall which has left me in a unfit state. I am currently having tests done for my injuries. It is also known by the other party I don't have legal representation through this time. So I will need more time to seek interpretation of all the emails that have been sent to me whilst I haven't been well.
This application for an adjournment (the First Adjournment Application) was considered and refused by Senior Member Thode. Her written reasons were: The respondent is a company. The respondent has provided no medical certificate stating that the DIRECTOR is unfit to prepare evidence or to appear at a telephone hearing. The matter was already adjourned once and extensive reasons were given. Hearing date on 6 and 7 July 2020 is confirmed. The matter remains listed on the above date and your attendance at the Telephone hearing is required.

The second adjournment application

However, that same day, Ms Emsis had sent an email to the Tribunal attaching what she described as "a letter from my GP", "to confirm my health at the moment and therefore the request to adjourn the matter Til [sic] I'm fit enough".
The letter of the general practitioner is dated 29 June 2020 and states: This is to certify that I have today examined Ms Mouna Emsis. She had a fall 3 weeks ago and now she has ongoing headaches and right arm weakness for which I am doing further investigations. Her Tribunal case should be delayed for three weeks so that she can prepare her response.
We will refer to this as the Second Adjournment Application.
This letter was brought to the attention of Senior Member Thode. On 2 July 2020, the Senior Member again refused to grant an adjournment of the hearing. In written reasons she stated: The [appellant] is a company. If one representative of the company cannot appear, another must prepare documents or appear at the hearing. Further, the medical certificate and the fall of three weeks' ago does not explain the [appellant's] failure to file evidence. Any further adjournment application must be advised to the [respondent] and may be brought on the morning of the hearing."

The third adjournment application - at the hearing

The hearing commenced at 9:15 AM on 6 July 2020. The hearing was conducted by Senior Member Ulman. The Decision records: 49. At 9:15AM on Monday, 6 July 2020, I telephoned Mr Hutchinson, who was appearing for the [respondent]. After speaking with him I put the call on hold and then dialled Ms Emsis' mobile number Oxxxxxxxx3 which was on the Tribunal's file. There was no answer and I left a message in which I identified myself, advised that I was calling about the hearing of the [respondent's] application that that was about to commence, and asked that Ms Emsis call back on the telephone number in the hearing room which I provided. 50. At 9:29 AM, I received an email from a Tribunal Registry Officer containing an email Ms Emsis had been sent to the Tribunal at 7:59 AM that morning. That email reads as follows: To whom it may concern I Mouna Emsis director of Mpp [sic] Property have been feeling sick, coughing with a fever over the weekend and so l am undergoing tests for corona virus and therefore will not be in attendance for today's hearing. 51. I informed Mr Hutchinson of Ms Emsis' email and asked whether he consented to an adjournment. He did not consent. 52. I declined to adjourn the hearing. In short, my reasons were that there was no medical evidence to show that Ms Emsis was medically unfit to appear and represent the [appellant] by or any explanation as to why she was not able to undergo a COVID 19 test over the weekend prior to the hearing. In view of this lack of evidence, and having regard to the guiding principle in section 36(1) of the Civil and Administrative Tribunal Act, I was satisfied that the justice of the case required that the hearing proceed in the absence of Ms Emsis or any other representative on behalf of the [appellant].
We will refer to the Ms Emsis' email of 7:59AM as the Third Adjournment Application.
The hearing then proceeded in the absence of the appellant.
We note that the Decision states that at 6:21 PM on 6 July 2020, which is after the hearing had concluded, the Tribunal received an email from Ms Emsis. The email contained a screenshot which appeared to have been taken from the Sydney Local Area Health District website. The screenshot stated "Result is not yet available".

Refusal to grant the First Adjournment Application

The appellant submits that the Tribunal erred in refusing to grant the First Adjournment Application because: 1. the refusal to grant the adjournment was unfair and inequitable, and led to the appellant suffering a substantial miscarriage of justice. 2. there was a denial of procedural fairness by the Tribunal in that it failed to take such measures that were reasonably practical to ensure that the Appellant had a reasonable opportunity to be heard contrary to s 38(5) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act); 3. the Senior Member proceeded on the basis that there was no evidence that Ms Emsis was a director of the appellant. The appellant submits this finding of fact was clearly wrong, as a result of which the discretion of the Tribunal miscarried.
These grounds of appeal should be rejected for the following reasons.
First, the only material before the Tribunal was the email of Ms Emsis. In our view, the Tribunal correctly dismissed the application for an adjournment based on the assertions of Ms Emsis contained in her email.
The Appeal Panel noted in Harmony Stone Gallery Pty Ltd v Ajuria [2017] NSWCATAP 80 at [38] that in Bobolas v Waverley Council [2016] NSWCA 139 McColl JA, with whom Simpson JA and Sackville AJA agreed, citing NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 (at [6]) per Lindgren J, said at [221]: "A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the 'critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing'".
If there is no medical certificate at all, the evidence before the Tribunal must be other persuasive and probative evidence establishing what it is that prevents the party from participating in a hearing. The hearing in question was a telephone hearing which Ms Emsis could have attended from her home. The fact she was apparently having some unidentified tests is not an adequate reason for non-attendance. Her uncorroborated say-so about these matters is not persuasive or probative evidence.
We reject the submission that the Tribunal had proceeded on the basis that Ms Emsis was not a director of the appellant. On the contrary, the reasons of the Senior Member appear to us to explicitly recognise that Ms Emsis was a director of the appellant.
Secondly, the notice of appeal in relation to this ground should have been filed within 28 days, that is by 2 August 2020, when it was filed on 23 November 2020 and so an extension of time is required.
The principles governing extensions of time are well-established and were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and confirmed in Di Salvo v Leung [2014] NSWCATAP 44. In summary, 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 may be summarised as follows: 1. the length of the delay; 2. the reason for the delay; 3. the extent of any prejudice suffered by the respondent; and 4. the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case.
The appellant addressed those issues in part in its written submissions, noting that the appellant was "self-represented" at the time, that its sole director had no legal expertise or training and there was little prejudice to the respondent.
The notice of appeal was filed on 23 November 2020. Therefore an appeal against the refusal to grant the first adjournment application should have been filed by 29 July 2020. Accordingly, the notice of appeal on this issue was almost three months late. This factor does not favour the grant of an extension of time.
Nor is there any persuasive explanation of the reasons for the delay. In fact, there was no explanation for the delay at all. This factor does not favour the grant of an extension of time.
In relation to prejudice, the respondent submits that: 1. It had incurred significant legal costs of preparing for and attending the hearing on 6 July 2020, and it would be prejudicial for it to incur further legal costs; 2. the appellant's conduct in the proceedings at first instance caused delay and increased legal costs to it; 3. as a direct result of the appellant's breach of the retail lease it experienced cash flow problems, as a result of which it has unpaid debts which it is relying on receiving payment of the damages due to it to pay.
Thirdly, the respondent submits that granting the appellant an extension of time will violate the respondent's "vested right to retain the judgment": Gallo v Dawson [1990] HCA 30.
Gallo is a pertinent authority to consider. McHugh J, sitting alone, made a number of relevant observations at par [2] of his judgment. His Honour said that: 1. the discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: Hughes v. National Trustees Executors and Agency Co of Australasia Ltd [1978] VicRp 27; (1978) VR 257 at 262. This means that 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 applicant; 2. in order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: Avery v No. 2 Public Service Appeal Board (1973) 2 NZLR 86 at 92; Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at 194 -195; 3. when the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VicRp 113; (1967) VR 871, at p 872; Hughes at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522 at p 524, 4. it is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200 at p 201; 5. it follows that, before an applicant can succeed there must be material upon which the Court (here the Tribunal) can be satisfied that to refuse the application would constitute an injustice.
The rules of court must prima facie be obeyed, and in order to justify a court extending the time during which some step in procedure is to be taken, there must be some material upon which the court can exercise its discretion: Ratnam v Cumarasamy (1965) 1 WLR 8 at 12; (1964) 3 All ER 933.
In Gallo and Jackson the Court and Tribunal respectively were concerned with the prospects of success of an appeal, not the prospects of the appellant succeeding if the matter were remitted to the Tribunal for rehearing.
The first ground of appeal in Jackson was that the appellant was not able to attend the hearing of the matter because of Aboriginal cultural customs and obligations and consequently she had not been given the opportunity to respond to the case against her and thus she was not afforded procedural fairness (referred to in the decision as grounds 1, 2 and 3).
The Appeal Panel stated: 32. All that grounds 1, 2 and 3 seek to argue is that the appellant did not attend the hearing because of Aboriginal cultural obligations and thus was not able to respond to the case put against her. These circumstances, even if accepted on the basis of material before the Appeal Panel, do not establish that the Tribunal failed to afford her procedural fairness. Nothing in the grounds of appeal or other material put forward by the appellant suggests that the Tribunal failed to ensure that she had a reasonable opportunity to be heard or otherwise have her submissions considered and so failed to comply with s 38(5)(c) of the Act. She did not suggest that she had not been given notice of the hearing on 30 January 2014 or of what the issues were. 34. In short, failure to attend, for whatever reason, a hearing of which the appellant had notice does not without more establish non-compliance with s 38(5)(c) by the Tribunal or a failure to afford procedural fairness.
In this appeal, as in Jackson, the appellant is submitting that there was a lack of procedural fairness in the refusal of the Tribunal to grant an adjournment. In this respect, we note that the appellant submits that there was a denial of procedural fairness by the Tribunal in failing in failing to take such measures that were reasonably practical to ensure that the appellant had a reasonable opportunity to be heard contrary to s 38(5) of the NCAT Act. Section 38(5) provides: (5) The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
We note that, as the Appeal Panel observed in Jackson, the failure to attend, for whatever reason, a hearing of which the appellant had notice does not without more establish non-compliance with s 38(5)(c) by the Tribunal or a failure to afford procedural fairness. Here, the appellant did have a reasonable opportunity to be heard. The appellant did have a reasonable opportunity to have its submissions, had it filed any, considered.
As to paragraphs (a) and (b) of s 38(5), it is trite to observe that these paragraphs have no application since the appellant did not attend the Tribunal hearing on 6 July 2020.
For these reasons, we decline to extend the time for filing the Notice of Appeal in so far as it relates to the First Adjournment Application.

Refusal to grant the Second Adjournment Application

The appellant submits that the Tribunal's discretion miscarried by refusing the adjournment in circumstances where the medical certificate "verified" that Ms Emsis suffered from ongoing head-aches and right arm pain and recommended that the hearing on 6 July 2020 be adjourned for three weeks to permit the Ms Emsis to prepare and appear at the hearing.
As we have already noted, a medical certificate must address the "critical question" whether, and if so why, the medical condition would prevent the appellant from participating effectively in a court hearing.
It is to be noted that the medical certificate does not state that Ms Emsis could not appear at the hearing, (and as noted above the hearing was being conducted by telephone), or in what way her headaches or right arm pain would interfere with her ability and capacity to do so. In particular, the medical certificate states that the Tribunal "case" (that is, the hearing) should be delayed for three weeks so that "she" (that is Ms Emsis) can prepare her response, thus recognising that Ms Emsis, and implicitly the appellant, was not ready to proceed.
This ground of appeal should be rejected for the following reasons.
First, the only additional material before the Tribunal was the medical certificate. In our view, the Tribunal correctly dismissed the application for an adjournment based on the assertions of Ms Emsis contained in her email.
Secondly, the notice of appeal in relation to this ground should have been filed within 28 days, that is by 3 August 2020 and so an extension of time is required.
For the same reasons set out in relation to this issue in relation to the First Adjournment Application, we decline to extend the time for filing the Notice of Appeal in so far as it relates to the Second Adjournment Application.

Refusal to grant the Third Adjournment Application

The appellant says that this ground of appeal falls into a different category, in that an extension of time is not required. Extensive submissions were provided explaining that the time in which to file the appeal did not start until the appellant received the Decision on or shortly after 26 October 2020.
That submission was based on an incorrect factual assumption. The Tribunal had published orders on the day of the hearing (see p 93 of the respondent's bundle of materials). Those orders relevantly state: The [appellant's] application for an adjournment made by email tenant to the Registry at 7:59AM today is refused for the oral reasons given by me.
Accordingly, an appeal against that decision should have been filed within 28 days, that is by 3 August 2020 and so an extension of time is required.
However, the appeal was not argued on that basis, and this was not brought to our attention by the appellant. As a matter of procedural fairness to the appellant, we brought this to the attention of the parties and invited post-hearing submissions on this issue.
However, no submissions were received, so we have proceeded on the basis that an extension of time is also required to raise this ground of appeal.
The appellant submits that the Tribunal erred in refusing to grant the Third Adjournment Application because: 1. the refusal to grant the adjournment was unfair and inequitable, and led to the appellant suffering a substantial miscarriage of justice. 2. there was a denial of procedural fairness by the Tribunal in that it failed to take such measures that were reasonably practical to ensure that the Appellant had a reasonable opportunity to be heard contrary to s 38(5) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act); 3. the Senior Member had evidence before him that Ms Emsis had symptoms that might have been COVID-19, and that evidence of the COVID-19 testing was provided before the Senior Member had provided written reasons and that in the circumstances, the Tribunal's discretion miscarried.
This ground of appeal should be rejected for the following reasons.
First, the only additional material before the Tribunal was the email of Ms Emsis. In our view, the Tribunal correctly dismissed the application for an adjournment based on the assertions of Ms Emsis contained in her email sent before the hearing.
Secondly, no weight should be given to what was contained in the email sent to the Tribunal by Ms Emsis after the conclusion of the hearing. Parties are not at liberty to send additional submissions or material to the Tribunal after the conclusion of a hearing without leave: see Murphy v Trustees of Catholic Aged Care Sydney [2019] NSWCATAP 37 at [106] to [110] and the authorities there referred to, in particular Bale v Mills [2011] NSWCA 226 at [57] to [61].
Secondly, the notice of appeal in relation to this ground should have been filed within 28 days, that is by 3 August 2020 and so an extension of time is required.
For the same reasons set out in relation to the First and Second Adjournment Applications, we decline to extend the time for filing the Notice of Appeal in so far as it relates to the Third Adjournment Application.

Other matters relating to First, Second and Third Adjournment Applications

There are four other matters to note.
The first is that, in relation to all three adjournment applications the appellant submits that the appellant was "self-represented", and that the Tribunal ought to have considered more carefully the adjournment applications or requested from the appellant more information to allow the appellant to make an appropriate decision.
In support of this submission, the appellant relies on the decision of Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC138. This was a matter where the sole director of Flightdeck Geelong Pty Ltd (Flightdeck) sought to represent Flighdeck at the hearing. That application was refused by the trial judge. The Full Court dismissed Flightdeck's appeal.
We do not consider that this decision assists the appellant, as in that matter the appellant in fact appeared at the hearing below. Nor did it, as is the case with the appellant, fail to file evidence in accordance with directions. And the decision is principally an authority about the obligations of the Court to assist unrepresented litigants during a hearing.
We also reject the proposition that the Tribunal was bound to request more information from the appellant. This is not consistent with s 36(1) of the NCAT Act, the "guiding principle" being to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
The second, and in our view, a significant factor for refusing to extend the time for filing the notice of appeal in relation to the refusal of each of the First, Second and Third Adjournment Applications is that at no time has the appellant explained why it failed to comply with the directions of the Tribunal to file its evidence. This has never been explained, and remains unexplained. We note that the appellant filed with the Appeal Panel voluminous evidence including an affidavit of Ms Emsis of 5 February 2021 of approximately 200 pages in length (including annexures). However, there is simply no explanation at all as to why this evidence was not provided to the Tribunal in accordance with its directions.
Thirdly, there was a faint reference to Ms Emsis' mental health issues. In her affidavit of 5 February 2021 filed in support of the appellant's appeal, Ms Emsis states: During the time I was self-represented, I found it difficult to comply with the Tribunal at that time because of issues I was having with my mental health. I am attempting to obtain medical records relating to this and shall provide them when they come to hand.
We make the following comments in relation to this evidence. 1. at no stage was there any evidence about Ms Emsis' mental health before the Tribunal. Nor was there any before the Appeal Panel, save for the material set out above; 2. the appellant was legally represented until 9 March 2020. By that time, the proceedings had been foot since August 2019, and various directions hearings held.
In her affidavit, Ms Emsis provided additional details about her health including slipping and hitting her head in early June 2020, attending Dr Singh "over the next three weeks", her ongoing headaches and the weakness in her right arm. In addition she says that she "could hardly cope" with the stress of her ill health and losing her job. She says that on 5 July 2020 she started to experience symptoms similar to COVID-19 and attended a COVID testing centre on 6 July 2020. She was particularly concerned as she had just returned from Melbourne.
It is trite to observe that none of this material was before the Tribunal, save for the reference to "corona virus" contained in the email she sent prior to the hearing on 6 July 2020.

Appeal in relation to the decision made on 20 October 2020

The appellant's written submissions do not state any grounds or provide any reasons why the Tribunal erred in making the decision of 20 October 2020. There is no submission that the Tribunal made an error of law (in which case there is an appeal as of right) or some other error for which leave to appeal is required: NCAT Act, s 80.
We assume that the appellant is simply submitting that, if an appeal is granted in relation to any of refusal to allow any of the First, Second or Third Adjournment Applications, it follows automatically that an appeal against the decision of 20 October 2020 should be allowed.
As we have decided to refuse to extend the time for the appellant to file its notice of appeal in relation to the First, Second and Third Adjournment Applications, and in the absence of any other submissions, the question of allowing an appeal from the decision made on 20 October 2020 does not arise.

Appeal in relation to the decision made on 27 January 2021

The decision of 27 January 2021 primarily dealt with costs, although it made some arithmetic corrections money order contained in the Decision.
The appellant's written submissions do not state any grounds or provide any reasons why the Tribunal erred in making the decision of 27 January 2021. There is no submission that the Tribunal made an error of law (in which case there is an appeal as of right) or some other error for which leave to appeal is required: NCAT Act, s 80.
It appears that the appellant is simply submitting that, if an appeal is granted in relation to the refusal to grant any of the First, Second or Third Adjournment Applications, and subsequently allowed the appeal in relation to the decision made on 20 October 2020, it follows that an appeal against the decision of 27 January 2021 should be allowed, and the matter remitted to the Tribunal.
As we have decided to refuse to extend the time for the appellant to file its notice of appeal in relation to the First, Second and Third Adjournment Applications, and in relation to the decision of 20 October 2020, in the absence of any other submissions, the question of allowing an appeal from the decision made on 27 January 2021 does not arise.

Summary

For the above reasons: 1. The application for an extension of time in which to file the notice of appeal in so far as it relates to the refusals of the Tribunal on 1 July, 2 July and 6 July to adjourn the proceedings is refused, and the appeal accordingly dismissed. 2. The appeal in relation to the decisions of the Tribunal of 26 October 2020 and 27 January 2021 is dismissed.

Costs

If the respondent seeks an order for costs, it should file submissions identifying the relevant costs rule, the reasons why costs should be awarded and the basis on which costs should be awarded on or before 22 April 2021.Those submissions should be limited to three pages.
The appellant may respond on or before 10 May 2021, limiting its submissions to three pages.
The respondent may provide submissions in reply on or before 17 May 2021.
The Appeal Panel proposes to deal with the questions of costs on the papers. If either party disagrees, it should address that matter in its submissions.

Orders

The Appeal Panel orders: 1. The application of the appellant for an extension of time in which to file the notice of appeal in so far as it relates to the refusals of the Tribunal on 1 July, 2 July and 6 July to adjourn the proceedings is refused, and the appeal is accordingly dismissed. 2. The application to appeal the decisions of the Tribunal of 26 October 2020 and 27 January 2021 is refused, and the appeal is accordingly 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: 12 April 2021

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