Murugesu v Papoulias

Judgment (10 paragraphs)

[1]

Background to appeal

This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal dated 2 June 2023 involving a residential tenancy agreement.
The parties entered into a residential tenancy agreement concerning premises in commencing on 4 November 2021 for a fixed term of six months. The agreement terminated when the tenant vacated the premises in August 2022.
In February 2022 the premises were affected by significant storms and it is not in dispute that the roof leaked during the event. In May 2022 the tenant first advised the landlords she would be vacating the property. On 29 June 2022 the tenant gave notice and the landlords agreed to terminate the tenancy agreement by consent and the tenant vacated the premises on 5 July 2022.
The tenant commenced proceedings in the Tribunal on 20 July 2022. The tenant sought an order for compensation of $10,000 for damage to her personal belongings caused by mould said to have been caused by the landlords' breach of the residential tenancy agreement (RT 22/32767, the first application).
The Tribunal dismissed the tenants' first application because the tenant failed to appear at the hearing.
The tenant filed a Reinstatement application. The Reinstatement application was dismissed on 13 January 2023, short written reasons were provided.
On 17 February 2023 the tenant filed a second application again seeking compensation for loss and damage to her personal belongings, by reasons of water ingress into the premises (RT 23/07897 the second application).

[2]

Applicable legal principles governing appeals

Section 80 of the CAT Act provides as follows: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances."
Clause 12 of Schedule 4 to CAT Act states: "An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."
A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as examples of error of law: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]-[79] and [84(2)] as follows: "74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. … 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. 84 The general principles derived from these cases can be summarised as follows: … (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."
Even if the appellant establishes that she may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the CAT Act, the Appeal Panel has discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Appeal Panel's consideration of whether to exercise that discretion.
In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."

Ground 2

The second ground of appeal appears to be that the Tribunal did not consider the appellant's document bundle. The failure to consider evidence or to overlook evidence or a failure to consider the applicant's case may amount to a constructive failure to exercise jurisdiction and is an error on a question of law. The 117 pages the tenant relied upon at the first instance hearing have been provided to this Appeal Panel and contain an index: 1. NCAT orders and notices; 2. statement of claim; 3. correspondence from Century 21 (the real estate agent); 4. damaged goods with mould pictures; 5. professional statements, receipts and quotes.
We have had regard to the documents and in particular the statutory declaration of the tenant dated 29 August 2022 which states that she experienced flooding in February 2022, and that she negotiated a $600 rent credit with the landlord in exchange for which she cleaned mould from the premises. She states that the mould returned in June 2022 and that this time she was unable to negotiate a mutually satisfactory agreement with the landlord. Fearing adverse health outcomes for herself and her young daughter she decided to "move as soon as possible". The tenant gave notice and vacated the property in about July 2022.
The tenant states the Tribunal failed to consider her evidence. This submission however does not address why the second application was filed in February 2023 or 12 months after the flood event of February 2022. The second application was therefore commenced significantly out of time. Regulation 39 of the Residential Tenancy Regulations 2019 requires a claim for compensation for the purposes of section 190(1) of the Act to be brought within 3 months after the applicant becomes aware of the breach or by May 2022 at the latest. The tenant's application, subject of this appeal was commenced more than eight months outside the prescribed period.
It was therefore incumbent on the Tribunal to consider whether the time within which to bring the claim should be extended under section 41 of the NCAT Act, before considering the merit of the application and before turning to the tenant's extensive documentation. Unless and until time was extended there was no utility in considering the tenant's evidence and there is no error established by pointing to the fact that the documents were not considered.
The tenant, who at all times represented herself, placed particular attention on a medical certificate tendered before us. The tenant submitted that the medical certificate of 10 January 2023 demonstrates that she was unfit to attend the Tribunal hearing of the same date. If we understand her correctly, she states that this certificate should be taken into account by this Appeal Panel.
We have considered the tenant's submissions, however the existence of a medical certificate dated 10 January 2023 was not relevant for the disposition of this appeal. While we have taken into account that there may have been a reason why tenant did not attend the initial hearing of 10 January 2023, the reinstatement application is not the decision under appeal. A forensic decision was made by the tenant to appeal the 2 June 2023 decision not to extend time. We have to consider whether the Member's decision not to extend time for the second application RT 23/07879 miscarried.
It was further clarified by the tenant that the medical certificate of 10 January 2023 was not tendered before the Tribunal at first instance and that the certificate has been tendered for the first time before this Appeal Panel. We consider that the medical certificate constitutes new evidence and that there was no reasonable explanation why the medical certificate was not tendered at the hearing of 2 June 2023. For these reasons we reject the tender of the medical certificate (see s80 of the CAT Act). In any event the medical certificate, stating that the tenant was unfit to attend Tribunal proceedings on 10 January 2023, was not relevant to the consideration of whether or not time should be extended to 17 February 2023 for the filing of the second application.
There are three issues to be considered by the Appeal Panel: 1. Did the Tribunal err in finding that the explanation for delay of 9 months was inadequate? 2. What are the prospects of success of the application? 3. Was there any prejudice to the respondent if time to file the application had been extended?
First, the reason provided to the Member and to the Appeal Panel was that the tenant received advice from a tenancy advice service, but it is not clear when this advice was received. She submitted that she attended the Western Sydney Tenants' Service and was advised that the prospects of success in an appeal against the refusal to reinstate the application were limited. We agree. An appeal from a decision to refuse a reinstatement application may have been commenced by 27 January 2023 and the appeal was not filed until 15 June 2023.
The appeal against the decision of 2 June 2023 was filed in time and the tenant, on advice, elected to pursue this appeal only. It is not clear precisely what submission was brought before the Member at first instance, as stated above, we have not been provided with a transcript. We consider that the explanation, namely the late advice from the Western Sydney Tenants' Service, is not an adequate explanation for a nine months delay. It was open to the tenant at any time to avail herself of the tenants' advisory service and the Member was correct to find that the significant delay could not be overcome. The applicant became aware of the mould issues in February 2022, but did not commence the first application until June 2022. The second application was not commenced until February 2023 more than nine months after the tenant first became aware of the mould issues. Each application was brought out of time and delay was a relevant consideration which the Member, in the exercise of her discretion, correctly, concluded could not be overcome.
The prospects of success were limited and we conclude that the Member did not err when she dismissed the application. The tenant filed no documents that would establish a clear breach by the landlord. Whilst it was not in dispute that the premises leaked during a storm event in February 2022, there was no subsequent evidence that any failure by the landlord to repair or maintain the property caused ongoing mould problems. A builder attended the premises on 11 June 2022 and notified the landlords that no roof leaks were found and that there was no water damage on the walls. We consider the Member correctly concluded that a leak following a storm event was not enough to establish a breach and the prospects of success were limited.
The question of prejudice to the respondent was addressed in the Tribunal's oral reasons. The respondent identified that this was the third time the agent was required to appear and each time the landlord incurred expense. The tenant had provided no additional evidence and the landlord considered the matter settled. The winning party is entitled to consider a matter finalised and the Tribunal considered that an extension of time, given the limited prospects of success, was not in keeping with the guiding principles of the Tribunal, the just, quick and cheap disposition of matters before it, (see s36 of the NCAT Act).
The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, including that the discretion to extend time can only be exercised in favour of the applicant upon proof that strict compliance with the rules will work an injustice upon the appellant.
We have considered the factors that, generally, should be considered concerning the application for an extension of time, as outlined in Jackson, including the tenant's explanation for delay.
However, we do not consider that refusal of an extension of time worked an injustice on the tenant. We conclude, for the reasons we have outlined above, we do not consider that the appellant has an arguable case on appeal.
We do not consider that the tenant has established that the decision of the Tribunal was more than arguably wrong because of these grounds, nor has the tenant established the existence of any of the other discretionary matters concerning the grant of leave to appeal. Accordingly, we refuse leave to appeal in respect of these grounds. Had we granted such leave, however, we would have rejected these grounds of appeal for the same reasons.

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Judgment (10 paragraphs)

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Legislation Cited (2)

Cases Cited (9)