Rahman v Zeaiter

Rahman v Zeaiter - [2024] NSWCATAP 217 - NSWCATAP 2024 case summary — Zoe

[6]

Materials

In deciding the appeal, we have had regard to the following: 1. Notice of Appeal received on 13 August 2024; 2. Reply to Appeal received on 29 August 2024; 3. Submissions of the landlords filed on 2 October 2024; 4. Submissions in reply by Mr Rahman received on 10 October 2024.
Despite orders made at a case management hearing on 23 August 2024 at which Mr Rahman attended, Mr Rahman did not provide any evidence, a transcript or sound recording from the hearing on 20 June 2023 (which he contends on this appeal is relevant), nor written submissions in chief. Instead, as he explained to us, even though he attended that case management hearing, he decided he would just hand up documents at the hearing before us if he considered they were relevant. He also said that he did not obtain the sound recording or transcript from 20 June 2023 because he "doesn't believe in them" for the reason that he is of the view that the Tribunal members tamper with transcripts to fit the decisions they have made.
Consequently, we do not have before us the application that was made and determined on 20 June 2023, nor the application to set aside the orders from the Original Decision, nor evidence before the decision maker on 20 June 2023 or 22 January 2024 (if any).
Mr Rahman sought leave to rely on three additional documents at the hearing before us: 1. The Original Decision of 20 June 2023; 2. Email correspondence from the Tribunal to Mr Rahman at 3.39pm on 20 June 2023 with a copy of a notification of hearing sheet; 3. A copy of a decision in RT 23/40277 dated 15 January 2024 in which the Tribunal ordered the landlords to pay Mr Rahman compensation of $3000 (a decision which has been appealed and is listed for hearing in November 2024).
There was no objection by the landlords to Mr Rahman relying on this evidence despite the fact that it was provided late. We granted leave to Mr Rahman to rely on this evidence although we do not consider the decision in RT 23/40277 has any bearing on the appeal presently before us.

[7]

The scope and nature of internal appeals

To succeed in an appeal, Mr Rahman must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).
In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]-[40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act. An appellant is required to identify a pure question of law which then becomes the subject matter of the appeal (Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan 7 Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12, [14]; Orr v Cobar Management Pty Ltd [202] NSWCCA 220).
The circumstances in which the Appeal Panel may grant leave to appeal from a decision made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act.
The principles governing an application for leave to appeal under the NCAT Act are well-established and repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17 (Collins v Urban). The Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 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).
In Collins v Urban, the Appeal Panel stated, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered 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."
Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. Issues of principles; 2. Questions of public importance or matters of administration or policy which might have general application; 3. 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; 4. A factual error that was unreasonable arrived at and clearly mistaken; or 5. 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.

[8]

An appeal commenced out of time

Under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW), an appeal from a decision concerning residential proceedings must be brought within 14 days from the decision. However, we may extend time for filing the Notice of Appeal under s 41 of the NCAT Act.
The discretionary power to grant an extension of time under s 41 of the NCAT Act is unfettered but it must be exercised judicially having regard, among other things, to s 36 of the NCAT Act and, in particular, the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings".
In Kelly v Szatow [2020] NSWSC 407 at [28]-[32] ("Kelly"), the Court summarised the principles that apply to an extension of time to appeal. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the plaintiff's case and consideration of whether the defendants would be prejudiced by a granting of the application: see Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [3]-[5]; Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55].
As set out in Jackson v Land and Housing Corporation (NSW) [2014] NSWCATAP 22 at [22] ("Jackson"), the relevant considerations in deciding whether to grant an extension of time include: "(1) 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 appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a 'vested right' to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]-[59].

[9]

The appeal hearing

Mr Rahman made inconsistent submissions before us about the hearing on 20 June 2023.
First, Mr Rahman said that he did not know about the hearing on 20 June 2023. He said he was denied procedural fairness because it was conducted without him.
In his written submissions in reply Mr Rahman stated: "I was not informed of the Tribunal's decision regarding the claim for $949.50. While awaiting notification of the hearing date, I sent emails to the Tribunal on 3 July 2023 and 21 August 2023 seeking clarification, but I received no response. Consequently, the decision was made without my knowledge, depriving me of the opportunity to defend against the applicant's claims."
He also stated: "On 19 June 2023, I requested the Tribunal to attend the hearing virtually … Additionally, I requested all documents the applicant intended to rely upon, but the applicant failed to provide them … I duly attended the hearing." In his oral submissions, Mr Rahman said that he received the notification of hearing for the first time at 10am on 20 June 2023. However, he also said that prior to 20 June 2023 he attended a directions hearing at which the Tribunal gave him permission to attend the hearing virtually and that he received a notification of the hearing details from the Tribunal with the relevant dial-in details for him to access the hearing.
Mr Rahman said on the day of the hearing on 20 June 2023, he called the Tribunal and he was just waiting to attend. He said the Tribunal then called him and asked why he had not called in by telephone to the virtual hearing room. He said the Tribunal told him to call the number provided and that they would email him the details of that again. At 3.39pm they sent him the hearing dial-in sheet with the telephone instructions. In that email the Tribunal stated: "Please see attached virtual notice of hearing for more information how to participate at the hearing virtually. Please do this now as the Tribunal Member is waiting for you to participate virtually." Mr Rahman did not dial the requested number to attend the hearing.
Attached to the email was a copy of the notification of hearing with the dial in details and the direction that the landlords give to NCAT and any other party any documents they intend to rely upon at the hearing date. This notification was dated 20 June 2023. When we asked him why he did not dial in to the hearing, Mr Rahman said that he never received any evidence from the landlords such as incoming or outgoing inspection report and that they failed to comply with the direction to do so and he did not think the hearing went ahead (despite the email sent at 3.39pm asking him to dial in).
Mr Rahman said that he did not lodge his application to set aside the orders for the reason that he did not know a decision had been made on 20 June 2023 and that is why he was chasing up a hearing date in July and August 2023. There is no evidence, nor did Mr Rahman attempt to explain when or how he found out about the Original Decision.
Mr Rahman contended that he does not understand how the Tribunal said it was satisfied on the evidence that he should pay $949.50 because he never received any evidence from the landlords (despite the direction to do so).
In respect of the 22 January Decision, he said he was never told there was a hearing of that matter and he did not get to attend. Mr Rahman said he did not recall putting any evidence before the Tribunal in support of his application - just the application itself.
As his submissions and the orders he sought in his Notice of Appeal focused on the Original Decision we asked him whether he was also seeking to appeal that decision. He said that, essentially, he was because if his appeal against the 22 January 2024 decision was not accepted then he had to appeal the Original Decision as well.
In respect of the length of time it has taken him to appeal the 22 January Decision (over seven months), Mr Rahman said he was never notified of this decision and only found out about it when one of his other matters was before the Supreme Court on 11 July 2024. We note that in his Notice of Appeal he has indicated that he received notification of the decision on 31 July 2024. He lodged the appeal on 13 August 2024.
Mr Zeaiter submitted that there was a history over the past two years of Mr Rahman failing to attend hearings and failing to follow procedural directions. He set out a chronology of the various proceedings and noted the several occasions that Mr Rahman did not attend and then subsequently made applications to set aside the decisions on the basis that the hearing was conducted in his absence and/or he did not receive notification of the hearing. On the first occasion, the Tribunal set aside the decision but thereafter dismissed the applications. Mr Zeaiter contended this occurred on at least four occasions in 2022 and 2023. Some of those decisions have been further appealed to the Supreme Court. Mr Zeaiter contended there was a pattern of Mr Rahman seeking to set aside orders after they were made and that his claims are frivolous.
In respect of the Original Decision, Mr Zeaiter submitted that when Mr Rahman vacated the property (after the Tribunal terminated the tenancy in March 2023), he left the unit in an unacceptable state. This was the basis upon which Mr Zeaiter made an application for cleaning and repairs on 30 May 2023. He submits that he has never been ordered to make repairs to the property and that Mr Rahman has an "insatiable appetite for legal proceedings to delay and obfuscate justice".

[11]

Extension of time to file Notice of Appeal

On balance of the factors referred to in Kelly and Jackson and s 36 of the NCAT Act, we are not satisfied that our discretion should be exercised to allow Mr Rahman an extension of time to appeal for the following reasons.
Mr Rahman did not file his Notice of Appeal until 13 August 2024 - some 7 months after the 22 January Decision. This is a substantial period of time. As noted above, Mr Rahman says he did not find out about the 22 January Decision until a hearing in the Supreme Court on 11 July 2024. He submitted that this was the reason why there was a long delay in filing his Notice of Appeal.
We note that the Tribunal had the correct and usual email address and postal address for correspondence to Mr Rahman and there is no record that the 22 January Decision was returned to the Tribunal or that any email "bounced back" upon sending. Assuming Mr Rahman only found out about the 22 January Decision on 11 July 2024, there is also no evidence before us why it took another month before Mr Rahman lodged his Notice of Appeal, nor did he seek to explain it.
In the 22 January Decision, Mr Rahman's application was effectively dismissed on the basis that the Tribunal had not been satisfied that an extension of time should be granted to make an application to set aside the Original Decision. The application to set aside the orders as filed by Mr Rahman, being a matter concerning residential proceedings, was required to be filed within 14 days of 20 June 2023 but was not filed until December 2023. Mr Rahman provided no explanation to us about that delay other than he did not know the hearing went ahead.
That leads us to the question of the merits of the appeal. As noted above, effectively Mr Rahman's appeal raised the question of whether he was denied procedural fairness in the 22 January Decision. In respect of his application for Leave to Appeal, Mr Rahman's first ground mirrored that in respect of denial of procedural fairness: that he was not aware of the 22 January Decision or the Original Decision. His second ground for seeking leave to appeal was that it was not fair or equitable in light of evidence in some of the other residential proceedings between the parties.
We are not satisfied that Mr Rahman has demonstrated that he was denied procedural fairness or that leave to appeal should be granted on the basis that he was unaware of the Original Decision or the 22 January Decision.
In respect of 22 January Decision, as a discretionary decision, the Tribunal needed to be satisfied with probative evidence that an extension should be granted. The Tribunal had regard to the factors mentioned in Kelly and Jackson: considered the 6 month delay in filing the application; the absence of evidence about that delay; and that the application to set aside had little prospects given Mr Rahman's inconsistent evidence and his failure to satisfy the Tribunal that he was unaware of the hearing on 20 June 2023. That was sufficient for the Tribunal to exercise its discretion to refuse the extension of time request and to dismiss the application to set aside the orders.
As we noted above, there was no evidence before us about whether or not the 22 January Decision was made on the papers but we assume it was, given that is the usual practice in the Consumer and Commercial Division. There is no evidence he made an application to appear before the Tribunal on that application, nor did he make any submissions before us about that issue: all he says is that he was not aware the decision would be or was made on 22 January 2024.
Turning to Mr Rahman's leave to appeal application, as the first reason he is seeking leave appeal mirrors his grounds of appeal, we are similarly not satisfied (on the same basis), that he has demonstrated that leave to appeal should be granted.
As to the second reason he seeks leave to appeal, that the decision was not fair and equitable, Mr Rahman makes a number of contentions based on submissions and evidence in other proceedings including that he never lived in the property as it was unsafe; that at the commencement of the tenancy, the landlords' agent excused him from paying rent until repairs were made to make the property safe; that there as evidence in support of those contentions in other proceedings; that a compensation order had been made against the landlords. Mr Rahman put before us the decision of 15 September 2022 where a compensation order was made. We had no evidence before us of the matters raised by Mr Rahman including matters referred to in the decision of 15 September 2022. However, from what we could ascertain on the face of the decision, it concerned compensation for various matters that occurred during the term of the tenancy. It did not concern repairs to be done after the tenant had moved out which were the subject matter of the Original Decision.
Consequently, we consider that even if we were to allow an extension of time for Mr Rahman to lodge his appeal, the appeal has very little prospects of success as we cannot identify a denial of procedural fairness nor do we see merit in the grounds upon which he seeks leave to appeal.
Given the absence of merits of the appeal and leave to appeal, requiring strict compliance with the timetable for filing the Notice of Appeal in this case does not prejudice Mr Rahman.
For all these reasons we reject his application for an extension of time to lodge his Notice of Appeal.

[12]

Appeal from Original Decision

To the extent Mr Rahman sought in the alternative to appeal from the Original Decision in this appeal, he was required to make an application for an extension of time to do. He did not make such application and, in any event, we would have rejected one if it had been made.
Mr Rahman made a forensic decision to lodge an application to set aside the Original Decision in December 2023 and not to appeal it. The only reason he is doing so now is on the basis that the appeal from the 22 January Decision is unsuccessful.
While not addressed by either party in submissions, we note that it might be considered to be an abuse of the Tribunal's processes for Mr Rahman to now seek to appeal in the alternative, the orders made in the Original Decision. Those orders are the very same subject matter of the 22 January Decision which we have refused to grant an extension of time to appeal against. In the absence of argument about this issue we make no finding in this regard.
In any event, even if we had allowed Mr Rahman an extension of time to appeal the Original Decision, we would not have granted him leave to appeal and we would have dismissed the appeal.
Any basis for appeal (not articulated by Mr Rahman other than perhaps again a denial of procedural fairness) has no merits.
The Tribunal was entitled to proceed with the hearing on 20 June 2023 in the absence of Mr Rahman in circumstances where he had been given permission prior to the hearing to attend via telephone; had been given the instructions on how to do so; and had been contacted during the course of the allocated hearing time and asked to dial the number required for attendance but did not do so.
We do not accept Mr Rahman's evidence that he did not know about the hearing on 20 June 2023; nor do we accept his evidence that he did not know that the hearing had proceeded on that day. We find Mr Rahman's written and oral submissions on this issue both inconsistent and implausible. Further, he has not put before us the transcript or recording of the hearing on that day nor any of the evidence that was before the Tribunal despite being directed to do so.
We see no question of law arising from the Original Decision nor was one raised by Mr Rahman, nor did he address why leave to appeal should be granted.
Consequently, again having regard to the Kelly and Jackson factors, we are not satisfied we should exercise our discretion to allow Mr Rahman an extension of time to lodge an appeal against the Original Decision.

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (16)