Omary v Eid

The set aside application and the Tribunal's decision

1. The appellants provided a statutory declaration by Mohammad Omary in support of the set aside application. The reasons given for why the decision of 9 February 2023 should be set aside were that:

• Mr Omary was falsely charged with a serious offence and was found not guilty after a trial. He only finished court on 2 February 2023.
• Mr Omary was too stressed and missed the hearing. He also stated he was going through a separation, had a full time job and three young children.
• The landlord did not provide the ingoing condition report on time.
• The outgoing condition report was completed three months after the appellants moved out.
• The appellants were never issued with a rent increase.
• The amount claimed by the landlord is "deceivable" and the agent emailed the tenants a different amount (than that awarded) to be paid by them.

1. In dismissing the appellant's application to set aside the decision of 10 March 2023, the Tribunal stated: Although the orders were made in the absence of the applicant, and the Tribunal is satisfied that the party's absence resulted in their case not being adequately put to the Tribunal, in the exercise of the discretion the Tribunal is not satisfied that there was a real likelihood that it would be unjust to let the decision stand because: There was no evidence that the applicants are not indebted to the respondent for $1,794.29.
2. Scope and nature of internal appeals
3. Section 80(2) of the NCAT Act provides that an internal appeal can be made: 1. in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and 2. 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.
4. In this case, the set aside decision under cl 9 of the NCAT Regulation is an "ancillary decision" as defined in s 4 of the NCAT Act: Hammond at [25]-[40] and Li v Zhang [2016] NSWCATAP 268 at [5].
5. A decision made in the exercise of a discretion, which includes a decision to set aside an earlier decision, can only be overturned in limited circumstances on a question of law: House v The King (1936) 55 CLR 499 at 505-506. The principles set out in that case are that a decision made in the exercise of a discretion can only be overturned if the decision was founded on a wrong principle, took into account irrelevant considerations, failed to take into account relevant considerations, took an erroneous view of the facts or was unreasonable or plainly unjust.
6. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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).
7. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where there is 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.
8. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). The Appeal Panel applies the same principles to the exercise of the discretion that are applied by the courts. In relation to this, in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597, the Court said at [28]: Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
9. The onus is on the appellants to satisfy us on the balance of probabilities that they may have suffered a substantial miscarriage of justice: Pholi v Wearne [2014] NSWCATAP 78 at [31].

Grounds of appeal

1. The appellants set out the following as their grounds of appeal in the Notice of Appeal filed on 20 April 2023. They submitted that the decision was unfair because: 1. We have provided a strong reason for missing the hearing; 2. Agent claimed incorrect amount for damages/end of tenancy; the agent lied to the Tribunal and claimed landlord's portion of contribution to repairs for general wear and tear; 3. Rent increased without notice; 4. Condition report completed at a later date after all furniture was in place; 5. A Tribunal officer lost an important hard copy email that supported our set aside application.
2. In Cominos v Di Rico [2016] NSWCATAP 5, at [13], the Appeal Panel noted that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle in s 36 of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. Ground (5) of the appellant's grounds may concern a denial of procedural fairness and thus would involve an error on a question of law. That ground, however, was not pressed at the appeal hearing.
3. While in this matter the appellants indicated on the Notice of Appeal they are not seeking leave to appeal from the decision of the Tribunal, it is apparent from the remaining grounds of appeal that they contend that the decision made to dismiss the set aside application was not fair and equitable. They therefore require leave to appeal.

Consideration of evidence and submissions

1. The appellants have provided a copy of their lease agreement and the ingoing condition report for the rented property. The landlord provided some 265 pages of evidence which was before the Tribunal when it made its original decision. The documents cover the period of the tenancy and events since the tenancy ended.
2. As we understand it, the oral submissions of the appellants at the hearing were intended to address not only the failure to attend the original hearing but the reason given by the Tribunal in dismissing the set aside application that there "was no evidence that the applicants are not indebted to the respondent for $1,794.29".
3. In his statutory declaration Mr Omary stated that his last court appearance in relation to charges against him was on 2 February 2023 and he missed the hearing on 9 February 2023 as he was too stressed. At the appeal hearing Mr Omary acknowledged that the appellants had received the notice of the hearing listed for 9 February 2023 but he said they "did not give attention to it". No adjournment was sought by the appellants at the time and Mr Omary repeated at the appeal hearing that it was a stressful time for him. The landlord states that the appellants were given adequate notice of the hearing but chose not to attend.
4. In relation to the rent arrears, the appellants argued in the set aside application that they were not properly notified of a rent increase in accordance with s 41 of the Residential Tenancies Act 2010 (which primarily contributed to the arrears). At the appeal hearing Mr Omary, on behalf of the appellants, acknowledged that the rent increase notice had been received. The landlord provided a copy of the increase notice and submitted that it conformed to the requirements of the Residential Tenancies Act. The rental ledger provided by the landlord showed that the rent owing at the end of the tenancy was $1,444.29, which was the amount awarded by the Tribunal.
5. The appellants argue that they are not responsible for the cleaning and repairs claimed by the landlord. Much of their argument is based upon the fact that the ingoing condition report was not completed until two weeks after the commencement of the tenancy. They state that by this time their furniture and other belongings were in place and they therefore did not have an appreciation of the state of the premises at the commencement of the tenancy. This was raised particularly about burn marks on the carpet for which the landlords claimed the cost of repair.
6. The landlord states that the ingoing condition report was completed on 19 June 2021 about two weeks after the tenancy commenced. The property manager was on leave at the time and there were issues associated with arrangements in place due to COVID-19. The landlords state that the delay does not alter the accuracy of the condition report. We note that the tenant made no comments on the condition report and the attached photographs show the state of the premises.
7. The appellants stated in the set aside application that the outgoing condition report was completed three months after they moved out. Evidence provided by the landlord is that the appellants vacated the property on 28 December 2022 and an inspection was held the next day. At the appeal hearing Mr Omary said that this was a joint inspection between the landlord and the appellants. The appellants made no comments on the outgoing condition report.
8. The appellants also took issue with the fact that the landlord had emailed them with a different amount as owing than what was awarded at the hearing. The landlord provided copies of quotes received for the work and noted that the original quote did not include certain items. An updated quote which included those items was provided for the Tribunal hearing on 9 February 2023. In the set aside application the appellants referred to the landlord's agent claiming they pay for repairs that were the landlord's responsibility. The quote provided by the landlord includes two sections - one for items claimed as the appellants' responsibility and another for landlord items. The Tribunal awarded only those items claimed as the appellants' responsibility.
9. We accept that the appellants dispute the original decision made by the Tribunal and the dismissal of their set aside application. The only appeal before us is in relation to the set aside dismissal. In the set aside application and accompanying statutory declaration the appellants provided reasons for their absence from the hearing on 9 February 2023. The Tribunal seemed to accept that evidence and acknowledged that their absence resulted in their case not being adequately put to the Tribunal. We also accept the appellants' evidence with regard to their absence from the hearing, although we note that Mr Omary's evidence is that his court case concluded a week before the hearing. We also note he made no application to adjourn the Tribunal hearing.
10. The issue in this appeal, however, is whether the Tribunal erred in the exercise of its discretion in dismissing the set aside application. In particular, in accordance with the principles set out in Hammond, did it err in finding that there was not a real likelihood that it would be unjust to let the decision stand because there was no evidence that the appellants were not indebted to the landlord for the amount claimed.
11. The appellants did not provide any evidence to the Tribunal, other than assertions, that the amounts were not owing. On appeal they have similarly provided no evidence that the rent was not owing or that they were not responsible for cleaning and repairs. At the appeal hearing Mr Omary acknowledged that the rent increase notice was received. The rent increase notice given by the landlords complies with the provisions of the Residential Tenancies Act and thus the rent was correctly increased. That increase was not challenged by the appellants as being excessive. We accept as accurate the rent ledger provided by the landlord. The appellants did not dispute the ledger.
12. The appellants have also not provided any evidence such as photographs to support their claims in relation to repairs. We do not accept that any delay in completing the ingoing condition report meant that the appellants could not include any pre-existing issues such as burn marks on the carpet or a cupboard door removed from its hinges on the report. They could easily have identified such matters even though furniture was placed in the property after they took possession and prior to completion of the ingoing condition report. The appellants' claims with respect to the outgoing condition report are without foundation, particularly as the evidence given at the appeal hearing was that it was a joint report. The appellants also disputed the amounts awarded by the Tribunal. It is clear that the original quote provided by the landlord did not include some items of repair and we are of the view that the amount awarded by the Tribunal in accordance with the revised quote was reasonable. We are also satisfied that no award was made for repairs to items which were the landlord's responsibility.
13. Overall, the appellants have not demonstrated that the amounts claimed by the landlord for rent arrears, cleaning and repairs were not owing. In our view the likelihood that the appellants have an arguable case that a decision different to that made at the original hearing could have been reached is remote. We can see no error in the exercise of the discretion by the Tribunal to dismiss the set aside application.
14. In addition, a fundamental problem with the appellants' appeal is that it has been filed out of time. As set out above, the application was required to be made within 14 days of the date of the dismissal decision by the Tribunal, that is by 24 March 2023. The appeal was lodged on 20 April 2023, almost four weeks out of time.
15. The appellants did not seek an extension of time within which to file the appeal until the issue was raised with them at the appeal hearing. Nevertheless, we have considered whether an extension of time should be granted.
16. The principles relating to consideration of an application to extend time were set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [21]-[22]. In order to extend time we must be satisfied that strict compliance with the rules will work an injustice on the appellants. The relevant factors to consider are: 1. the length of the delay, 2. the reason(s) for the delay, 3. the appellants' prospects of success, i.e. whether there is a fairly arguable case, and 4. the extent of any prejudice suffered by the respondent landlord.
17. In relation to the delay, the appellants state they were not aware of the timeframe within which the appeal was required to be filed. The delay in lodging the appeal, being almost four weeks, is not insignificant given the 14 day time limit in residential proceedings. As to the reason for delay, it is a relatively simple matter to ascertain the appeal period.
18. The landlord strongly opposes an extension of time. The landlord states that the appellants have extended the process for as long as possible to avoid paying the amount owed. The landlord states she would suffer significant prejudice if the matter is to continue and the amount owing not paid. (On this point we note that there is no stay in place in relation to the order of the Tribunal and enforcement action may be taken by the landlord.) The rental property is owned by the landlord who lives in another rented property as the family has outgrown their home.
19. Turning now to the appellants' prospects of success in the appeal, as set out in Hammond and stated above, one of the matters relevant to the exercise of the discretion to set aside a decision of the Tribunal is whether the absent party, in this case the appellants, has an arguable case such that a different decision could have been reached. We have set out in detail above the evidence in relation to this issue and have concluded that the appellants did not have such a case. They have been unable to demonstrate any error on the part of the Tribunal in the exercise of its discretion to dismiss the set aside application.
20. In all the circumstances, particularly given the length of the delay and the absence of an adequate explanation for that delay combined with the fact that the appeal has no prospect of success, we consider that time for the filing of the application should not be extended.

Orders

1. We make the following orders: 1. The name of the appellants is amended to Mohammad Omary and Muzhgan Omary. 2. An extension of time to lodge the appeal is refused. 3. Leave to appeal refused. 4. Appeal dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 30 June 2023