Ottoman Investments Pty Ltd v Consumer, Trader and Tenancy Tribunal [2011] NSWSC 1161 | Case summary

Disposition 35In Mills v Consumer, Trader & Tenancy Tribunal [2003] NSWSC 782, Master Malpass had cause to comment upon matters which are to some extent redolent of matters that arise for consideration before me. The learned Master said this at [19] - [26]: "[19] Largely, the Tribunal is in a position to determine its own procedure (see inter alia s 28 of the Act). Whilst it is appreciated that it is required to act as informally as the circumstances permit and that substantially it deals with litigants in person, this case (like many others that have been brought to this Court in recent times), throws up the problems that can arise when adjournment applications are dealt with by way of telephone or facsimile transmission. There have now been a number of appeals before this Court which have arisen from a refusal of an adjournment application and/or the plaintiff not attending before the Tribunal. [20] There seems to be a fashionable trend to allege denial of procedural fairness consequent upon a refusal of an adjournment application or a non-attendance. The trend is founded on misconception. Generally speaking, if there be an avenue of appeal, it could be expected to be by way of challenge to the exercise of the discretion. [21] In this case, the refusal of the adjournment application did not occasion denial of procedural fairness. There was an awareness that the application may be dealt with in the absence of an attendance. There was an awareness that the application for adjournment would be dealt with by the Tribunal Member at the hearing. The plaintiff should have been aware that the application may not be granted. A reasonable opportunity was had to present a case. Advantage was not taken of that opportunity. A decision was made not to attend and to proceed on the basis that the application would be granted. [22] I put to one side the question of whether or not there was genuine reason for not attending. It is not a question that needs to be determined. However, I will make certain observations. It was not a reason advanced in the facsimile and it was not a matter which would appear to have to be kept "private". One of the reasons advanced suggests that they were not ready to proceed (witnesses on holidays). [23] Assuming that there was a requirement for an attendance at their home on 13 January 2003, nothing has been said to suggest that it was not possible for one of the parties to be at their home for some time during the day and for at least the other to attend before the Tribunal at 2.00 pm. [24] The facsimile reflects a disturbing trend manifested by some litigants in person. It is now not an unusual practice for such facsimiles to be received by a court or tribunal shortly before the time of hearing. Inevitably they give rise to the suspicion that it is sought to force an adjournment on the court and the other parties. If it is granted it can be expected to cause prejudice to others and is disruptive to the conduct of the court's business. [25] In this case, the facsimile transmission has the characteristics of arrogance. It presents itself as a "Notice of non attendance" and calls upon the Tribunal to respond by telephone. At the very least it manifests a lack of respect for the Tribunal. Indeed, it might be said to be bordering on contempt. [26] I now turn to the not granting of the rehearing. The plaintiff was given a reasonable opportunity to put her case on the rehearing. In my view, there is no basis whatsoever for contending (if indeed, such an allegation is made) that there was any denial of procedural fairness in relation to it." [Emphasis added] 36In the particular circumstances of this case I am satisfied that Mr Elali, and hence the tenant, received notice or otherwise became aware of the Tribunal hearing scheduled for 17 August 2011, and that this occurred well before that date and in all probability sometime very shortly after the delivery of the Tribunal's notice to the subject premises. It follows from that conclusion that I reject Mr Elali's evidence about this. It therefore becomes important that I give my reasons for coming to that view. There are several. 37First, there is no evidence to suggest that the Tribunal's correspondence did not reach the Springfield Avenue premises in the normal course of the post. The tenant did not argue that there was any reason why it would not have. The Tribunal material indicates that their correspondence was not returned. In those circumstances I find that it is probable to a point approaching certainty that Mr Elali would have been handed such correspondence by members of his family who lived there and that he would have read it. His own evidence was that he visited the premises at least once a week and sometimes more than that. There is no evidence to suggest that he had had difficulty in the past receiving correspondence addressed to the tenant or to him personally at that address. 38Secondly, the tenant failed to call any members of Mr Elali's family or other occupants of the premises to give evidence about what mail may have been received or not received at the premises. The trigger for an anticipation that such evidence might have been expected was the affidavit evidence from Ms Atkinson about her various conversations and dealings with these people. I consider that an inference clearly arises that nothing that any of the occupants of the premises could have said about the issue would have assisted the tenant. This extends both to the question of what correspondence may have arrived at the premises from the Tribunal as well as the occupants' various conversations and dealings with Ms Atkinson to which she deposes. 39Thirdly, Ms Atkinson gave clear and uncontradicted evidence that she spoke on several occasions with some of the occupants of the premises about the upcoming Tribunal hearing and that they assured her both that they would speak to Mr Elali, and later that they had spoken to him, about it. Paragraphs 16 to 20 of Ms Atkinson's affidavit make it clear that she informed named members of the household that the Tribunal hearing was scheduled for 17 August 2011 and that they told her that they would tell Mr Elali. These people had a personal interest in remaining in the premises and I find it completely unlikely that they would not have relayed any concerns that they may have had about that if Ms Atkinson was constantly raising the matter and seeking some definitive response. Ms Atkinson's version was not put in issue during her cross-examination. Nor was the content of her letter dated 22 August 2011 that she sent to the Tribunal in response to the tenant's rehearing application. Her oral evidence was consistent with what she said in both her affidavit and her letter and I found her to be a most believable witness. It follows that I disbelieve Mr Elali's evidence that he was not informed by members of his family residing at the premises that the Tribunal hearing was approaching. 40Fourthly, the content and timing of two text messages sent by Mr Elali to Mr Kollias are instructive. They are annexed to Ms Atkinson's affidavit and neither their authorship nor their authenticity became the subject of any controversy in these proceedings. The first was sent to Mr Kollias at 2.22pm on 12 August 2011 in these terms: "Hi Steve. Trust your operation went well. I have asked Val this morning to provide amount required to fulfil rental commitment till end of December. As you are aware, particularly due to flooding, I can not carry on without major repairs. Hence, we would to establish a termination agreement or a sale agreement before end December. Nathan" 41The second message was sent to Mr Kollias at 9.22am on 18 August 2011 in these terms: "Hi Steve. Val delivered an eviction notice to Springfield Street property. I'll appeal the decision tomorrow and that fails, I'll have no choice but to commence proceedings in the district court. This is not what I want but have little choice. If you want your house back, it is your right but I can not vacate family before December." 42The first message was sent in the shadow of the approaching hearing. Although it does not refer to the hearing, it confirms that Mr Elali had spoken to Ms Atkinson that same day. I find it difficult to accept that Mr Elali, as a matter of pure coincidence, would then have sought spontaneously to contact the landlord and offer to discuss the long outstanding rent for the premises if he had not been prompted to do so by some matter of current and urgent significance. Ms Atkinson said that she received notification from the Tribunal of the hearing date on 9 August 2011 and that she contacted Mr Elali's sister-in-law by phone and informed her of this. Three days later Mr Elali asked Ms Atkinson for the amount required to fulfil the rental commitment until the end of December. In my view this uncharacteristic enthusiasm for complying with the tenant's obligations, in the face of a history of relevant delinquency, is more probably than not explicable only by reason of Mr Elali's need to make arrangements for his family because of the hearing that was then only five days away. 43The second message is even more significant in my view. If Mr Elali had been ambushed, to adopt the language of his counsel when cross-examining Ms Atkinson, because he was given little or no notice of the hearing, I find it to be incredible that that matter would not have received at least some passing reference in the message. This is particularly so given its otherwise clearly dissatisfied tone. Instead, the message conveys the mood of a person disgruntled with the fact that his earlier attempt to reach some agreement had been rebuffed and is consistent with the fact that the Tribunal decision was both anticipated and inevitable. Mr Elali would not in my view have expressly referred to the "decision" without also referring to the fact that it was unfair for him to have received no proper or sufficient notice of the hearing that produced it if that were indeed either his opinion or the fact. 44The decision of the Tribunal was in any event not one that was made in the face of either a credible explanation of why the tenant could not be at the hearing in the first place or what defence it proposed to raise that would have led to a different result in the second place. The Tribunal's statement that the tenant advanced no convincing reason, or indeed any reason at all, for requesting the adjournment, is wholly unexceptionable. Mr Elali did not mention that he had a conference with his legal advisers in relation to other proceedings in his email to the Tribunal. It is surprising that that would not have been the first thing that he mentioned if it were true. Notwithstanding this conference, that required him to travel into the city by train at seven or eight o'clock in the morning, he was still able to send his first email at 9.37am and then a second email "with a few images for the Member's perusal" at 9.50am, by each of which times the conference might reasonably be expected to have been in full swing. The evidence does not permit me to make a positive finding about that but the tenant's response to the notice to produce gives rise in my view at least to an inference that there was no conference at all because nothing was produced. An affidavit from Mr Elali's barrister could have dispelled any doubt about it but none was forthcoming. 45Moreover, if the holy month of Ramadan had caused him a personal devotional inconvenience, of the sort that Mr Elali referred to in later correspondence with the Tribunal, it is also incredible that he did not mention that in his email to the Tribunal as well. I leave to one side what appears to be an unexplained contradiction between the fact that Ramadan made it difficult for Mr Elali to attend the Tribunal hearing but did not apparently intersect adversely with his ability to attend a conference in Sydney with his legal counsel. 46I accept that there is ample authority that procedural fairness is denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of an adequate opportunity to prepare or present a case. However, there was no denial of procedural fairness here. Mr Elali knew all along that the Tribunal hearing was scheduled for 17 August 2011 and failed to attend. He had no good reason for taking that course and he proffered no good reason to the Tribunal in support of his application for an adjournment. He was neither deprived of an adequate opportunity to prepare nor present his case. The tenant's defence to the claim has also never been articulated. There does not appear to be one. The lease contained no relevant abatement clause and the claimed value or cost of repairs or loss or inconvenience caused by water damage has never once been quantified in any evidence that I have seen. I consider that, alike with the sentiments expressed by Hoeben J in Brennan , the tenant's attendance at the Tribunal would not in any event have been likely to make any difference to the outcome.

Ottoman Investments Pty Ltd v Consumer, Trader and Tenancy Tribunal

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