Rahman v Zraiter

Background

1. In this residential tenancy matter the appellant, who rented residential premises in Sydney from the respondent, appeals from a decision by the Tribunal made on 17 August 2022, following a hearing that day, in which orders were made for the termination of a residential tenancy agreement between the parties and for the payment by the appellant of the sum of $7,340 for unpaid rent relating to the period from 17 February 2022 to the date of the Tribunal decision.
2. The parties had entered into a fixed term residential tenancy agreement on 20 January 2022, which expired on 20 July 2022. Before that expiry date, in April 2022, the respondent commenced the proceedings the subject of this appeal based upon the non-payment of rent. Much of the history of those proceedings is set out in the Tribunal's written reasons for decision issued on 17 August 2022. It is unnecessary for us to dwell upon much of this history other than to note that the appellant did not appear at hearings on 9 May 2022 and at the hearing on 17 August 2022. The proceedings determined on 17 August 2022 were themselves the result of a successful set-aside application for the non-appearance on 9 May 2022. An application to set aside the decision on 17 August 2022 was unsuccessful with the supporting medical certificate not being accepted as adequate, in circumstances further described below.
3. Under the Tribunal's orders made on 17 August 2022, which, as we have said were made in the absence of the appellant, the order for possession was suspended until 24 August 2022. The amount of $7,340 was ordered to be paid immediately.
4. Whilst the fixed term of the residential tenancy agreement expired on 21 July 2022, pursuant to s18 of the Residential Tenancy Act 1989 (NSW) (RTA), the tenancy continued as a periodic tenancy. It is clear enough from the written reasons for decision that the Tribunal's order for termination of the residential tenancy agreement was founded upon the appellant's breach for non-payment of rent for a lengthy period (hence, made under s 87 of the RTA: see also s 88 (1)) and not upon the circumstances which require the Tribunal to terminate a fixed term tenancy or a periodic tenancy based upon giving the required notice of such a termination: see ss 84 and 85 of the RTA.
5. The appellant lodged this appeal on 24 August 2022 and at the same time applied for a stay of the Tribunal's orders. The stay application was dealt with, first, on an ex-parte basis on 26 August 2022, at which time the Appeal Panel (constituted by Principal Member Suthers) declined to grant a stay and listed a further hearing of the stay application on 14 September 2022. On 30 August 2022, Principal Member Suthers ordered that the order for possession was suspended until 5 PM on 14 September 2022 or finalisation of the appeal, whichever was earlier in time, conditional upon the appellant paying the sum of $7340 to the Appeal Registry to be held pending further order of the Appeal Panel. In compliance with that condition, the appellant paid that sum on 31 August 2022. On 14 September 2022, the stay application (and a call-over of the appeal) was adjourned to 21 September 2022 in circumstances where the appellant failed to appear without explanation. There was a further adjournment of these matters to 23 September 2022.
6. On 23 September 2022, Principal Member Suthers dismissed the stay application (and also made orders in respect of the conduct of the hearing of the appeal). An order was also made for the amount of $7340 paid to the Appeal Registry to be released to the respondent. At the hearing of the appeal we were told by Mr Harozakis, the respondent's real estate agent, who had been given leave to appear for the respondent by an order made on 23 September 2022, that these monies had been received by the respondent. We were also told by Mr Harozakis that the appellant remained in possession of the premises and owed outstanding money to the respondent in respect of that occupancy, despite the dismissal of the stay application. (Under Order 4 of the orders made by the Tribunal on 17 August 2022, the appellant was required to pay a daily occupation fee at a specified rate from 18 August 2022 until the date vacant possession was given to the respondent).
7. Shortly before the appellant lodged this appeal, he applied for an order setting aside the Tribunal's decision the subject of this appeal on the basis of his absence at the hearing on 17 August 2022. This was an application pursuant to Regulation 9 of the Civil and Administrative Tribunal Regulation 2022, which, relevantly, provides: 9 Additional power to set aside or vary decision determining proceedings - the Act, s 90(2)(a) (1) In addition to a power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if - ……. (b) the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
8. This application was dismissed by a different Member of the Tribunal on 23 August 2022. Whilst the Tribunal found that the decision was made in the absence of the appellant and that such absence had resulted in the appellant's case not being adequately put to the Tribunal, the Tribunal was not prepared to exercise its discretion in favour of the appellant because: 1. The Tribunal does not accept that the tenant's medical certificate stating "unfit to engage in regular study/employment" is sufficient to explain the absence at the hearing and in any event, if so why the Tribunal was not contacted to request an adjournment before the hearing. 2. The reasons for decision state that the tenant's case was considered and the Tribunal made a finding of fact on the evidence that there was never an agreement between the parties that the tenant could pay no rent until certain repairs were done. 3. The arrears are substantial with no justification for non-payment, and the Tribunal was not satisfied there is a real likelihood that it would be unjust to let the decision stand.

Appellant's application to adjourn the hearing of the appeal

1. The appeal was listed for hearing on 8 November 2022 under the orders and directions made on 23 September 2022. The appellant had appeared in person on 23 September 2022.
2. Under those orders and directions leave was given to the appellant to be represented by an officer of the South Sydney Tenants Advice & Advocacy Service.
3. Also, under those orders and directions the appellant was required by 21 October 2022 to lodge with the Appeal Registry and give to the respondent his material in support of his appeal, including his written submissions and any evidence given to the Tribunal at first instance on which it was intended to rely.
4. No such material was provided to the Appeal Registry nor, according to Mr Harozakis, to the respondent. There was no communication to the Tribunal from the appellant about the failure to comply with the direction concerning the provision of his material in support of his appeal.
5. By letters sent to their email addresses on 1 November 2022, the Appeal Registry notified the parties of the audiovisual link details for the hearing of the appeal to occur by that method.
6. On 7 November 2022 at 3:56 PM, the appellant sent an email to the Tribunal, copied to Mr Horozakis, which stated that he was unwell and unable to participate in the hearing on 8 November 2022. Amongst other things, the email also stated that a medical certificate to that effect would be emailed to the Tribunal. It was also said that an officer of the South Sydney Tenants Advice & Advocacy Service was not ready to represent him at the hearing on 8 November 2022. In a separate email sent to Mr Horozakis, shortly after this email, the appellant asked for the respondent's consent to the adjournment.
7. Later on 7 November 2022, the Tribunal sent by emails to the parties' email addresses a letter acknowledging the receipt of an application for an adjournment of the hearing on 8 November 2022. Amongst other things, the letter stated that any supporting documents and comments about the request for an adjournment should be provided in writing to the Tribunal by 9 AM on 8 November 2022, that the request for an adjournment would be considered by the Tribunal after that time and the parties would be advised of the outcome. The letter also stated that "[t]he next listing date remains in place unless you are advised otherwise."
8. The appellant attached a medical certificate to an email to the Appeal Registry sent at 8:04 PM on 7 November 2022, copied to Mr Horozakis, and requested that the Tribunal contact the provider of the medical certificate directly for any clarification of the wording of the certificate. The medical certificate was from a Dr Mohamed Keritam from Isra Medical Services (address given), stated that the doctor had examined the appellant on 7 November 2022 and gave an unspecific opinion in the following terms only: Who in my opinion is suffering from a medical condition and will be unfit to continue usual occupation or study From 7/11/2022 to 8/11/2022 inclusive
9. In an email from Mr Horozakis to the Appeals Registry sent at 10:41 PM on 7 November 2022, copied to the appellant, the respondent expressed its opposition to the request for an adjournment of the hearing on 8 November 2022.
10. There was no appearance at the hearing on 8 November 2022 by or on behalf of the appellant. During the period from about 10.15 a.m. to 10:25 AM, we made three unsuccessful attempts to contact the appellant on his mobile number given in the Notice of Appeal.
11. In these circumstances, we did not think an adjournment of the hearing would be in accordance with the principles concerning the grant of an adjournment set out in Touma v Colantuono [2021] NSWCATAP 152 at [56]-[59], or in accordance with the guiding principle in s 36 (1) of the Civil and Administrative Tribunal Act 2014 (NSW), or otherwise in the interests of justice.
12. In particular, we had in mind the following matters: 1. There was no explanation for the appellant's assertion in his email sent on 7 November 2022 that an officer from the South Sydney Tenants Advice and Advocacy Service was not ready to represent him, nor did he supply any supporting evidence for this assertion. 2. The medical certificate was inadequate to establish that he was unable to appear at the hearing. It did not state this, nor did it provide any details of the condition the appellant was said to be suffering from and explain why such a condition prevented him from appearing at the hearing by audiovisual link or telephone: see, for example, Araghi v St George Community Housing [2021] NSWCATAP 154 at [3]. These were deficiencies that the appellant ought to have been aware of in view of the reasons for decision in his unsuccessful attempt to set aside the decision of 17 August 2022, as referred to above. 3. Whilst the prejudice experienced by the respondent from further delay in the disposition of the appeal could have been substantially lessened by proceeding to obtain possession of the premises after the dismissal of the stay application, nevertheless, the fact remains that the appellant remained in possession and his entitlement to do so should be determined expeditiously. 4. An adjournment would be disruptive to the efficient operation of the Tribunal in its resolution of appeals generally, not just with the resolution of this appeal.

Disposition of the appeal - not pursuant to s 55 (1) (c) of the NCAT Act

1. Because of the absence of the appellant at the hearing on 8 November 2022, one course that was available to us was to dismiss the proceedings under the power to dismiss proceedings pursuant to s 55 (1) (c) in circumstances where an appellant has failed to appear in the proceedings. This would not be a dismissal of the appeal having determined the merits of the appeal and it would be open to the appellant to seek to reinstate the appeal.
2. We decided not to follow that course because we considered it to be more in keeping with the guiding principle in s 36 (1) of the NCAT Act that we proceed to determine the merits of the appeal given the following circumstances: 1. our assessment of the merits of the appeal as set out below; 2. the interests of the respondent in arriving at a final disposition of the appeal, bearing in mind the matters we have already referred to when dealing with the adjournment application; 3. the appellant had been given the opportunity to present his case on appeal through written submissions; 4. we were concerned that the appellant may be attempting to prolong a final disposition of these proceedings, to his advantage, given his late attempt to adjourn the hearing of the appeal on the basis of a vague assertion concerning the ability see of the tenant's advocacy service to represent him at the hearing and a medical certificate that he ought to have known was, plainly, inadequate to support an adjournment.

Consideration of the merits of the appeal

1. It appears from the Tribunal's reasons that central to upholding the respondent's claim was the Tribunal's rejection of the appellant's defence that an informal agreement had been reached between the parties under which the appellant would pay no rent until certain repairs were carried out by the respondent.
2. Under s 80 of the NCAT Act, a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: …..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).
3. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], namely: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1 issues of principle; 2 questions of public importance or matters of administration or policy which might have general application; or 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 unreasonably arrived at and clearly mistaken; or 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,

Grounds of Appeal

1. With respect to his grounds of appeal, the appellant provided a 2 page attachment to his Notice of Appeal in which various matters were referred to under the heading Grounds of Appeal. As we have already said, he has not provided any written submissions in support of his appeal, despite the direction for him to do so made on 23 September 2022.
2. We have considered the matters set out in this attachment to the Notice of Appeal, having regard to the approach we should take with respect to an unrepresented litigant, as referred to in Cominos v Di Rico [2016] NSWCATAP 5 at [13].
3. We not discern any alleged error of law from the contents of the appellant's attachment to the Notice of Appeal.
4. The first matter that the appellant raised was his absence from the hearing on 17 August 2022. In this regard, the appellant appeared to take issue with the Tribunal's conclusion on 23 August 2022, in the set aside application, that it did not accept that the appellant's medical certificate was sufficient to explain his absence at the hearing.
5. However, this is not an appeal from that decision.
6. In any event, the only matter that the appellant raised concerning this conclusion is that he asserted that he sent two medical certificates from two different doctors about his sickness stating (a) that he has a medical condition and will be unfit for work and (b) is unfit to engage in regular study/employment. In the first place, if this be his contention in relation to this appeal, he supplied no evidence on the appeal that such certificates were sent in advance of the hearing of the Tribunal on 17 August 2022. In this regard, as we have already said, it was a direction for the conduct of the hearing of this appeal that the appellant was to provide by 21 October 2022 all the evidence given to the Tribunal at first instance on which it was intended to rely (Order 4 (a)).
7. Furthermore, the appellant did not contend, let alone seek to establish, that he applied to adjourn the hearing on 17 August 2022 on medical (or any other) grounds. Yet further, in our view, the medical certificates in these terms provided an inadequate basis for the grant of an adjournment, for the reasons we have already given in respect of the adjournment application.
8. The second matter that the appellant raised in the attachment to the Notice of Appeal amounted, in essence, to a statement by him about an alleged agreement made between himself and the respondent's managing agent excusing him from rental payments until the respondent had carried out repairs.
9. However, in raising this matter the appellant did not put forward any basis for challenging the Tribunal's conclusion about this matter on appeal. For example, he made no reference to any material from which an issue might arise as to whether the Tribunal's conclusion was not open to it on the evidence before it, or that in arriving at the finding the Tribunal overlooked material evidence.
10. In these circumstances, we saw no basis upon which the conditions concerning the grant of leave to appeal, referred to above, were satisfied.
11. Furthermore, the appellant did not show that the appeal involved any question of principle or that it was more than arguably wrong or that any of the other discretionary matters that might warrant the grant of leave to appeal had been satisfied.
12. It was for these reasons that we decided that leave to appeal should be refused and that the appeal should be dismissed.

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: 14 November 2022