Raslan v Pan

HEARING BEFORE TRIBUNAL

1. The Second Appellant, Ms Tsolakis, appeared at the hearing for the appellants. Ms Wiltshire, the agent for the respondent landlords, appeared for them. Neither had legal representation. Both gave oral evidence at the hearing.
2. The hearing also consisted of the Tribunal asking Ms Tsolakis and Ms Wiltshire some questions during their testimony. During the course of this process each of the parties engaged in a discussion concerning the content of the evidence.
3. The appellants' case was that they had not received the notice because it had been sent to an incorrect email address. The respondent accepted the email address was incorrect. However Ms Wiltshire gave evidence that it had also been personally served by her by placing the notice in the appellants' letterbox. Ms Tsolakis said the appellants had not received the notice placed in their letterbox.
4. Ms Tsolakis also contended that the rent increase was excessive and gave evidence in support of that contention.
5. The Tribunal accepted Ms Wiltshire's evidence that she had effected service by personally delivering the Notice of Rent Increase to the appellants' letterbox on 30 October 2013. In the Tribunal's reasons, the Tribunal found that the tenants were deemed to have received the Notice on this date by s 228(1)(a) of the Residential Tenancies Act 2010 (NSW).
6. During the course of the hearing no application was made to extend time.
7. The Tribunal made orders dismissing the tenants' application for a reduction in the proposed rent increase because the application was filed more than 30 days after the service of the notice. In doing so, the Tribunal said "The application made by the tenant was made in excess of those 30 days and therefore the Tribunal cannot entertain it."

GROUNDS OF APPEAL

1. The appellants raised the following grounds of appeal which they maintained at the hearing:

• It is the belief of the tenants that the agent has mislead (sic) to the Tribunal in her admission of delivery of notice of rent increase to the residence. It is the belief of the tenants that the agent has not performed her duties and taken reasonable care to inform the tenants of the increase in rent and
• The agent has made no effort to inform the tenants or check that the notice was received notwithstanding her allegations that the rent increase had remained unpaid. Peter Tsolakis was never once contacted by the agent of her course of her acting as agent for the premises as a tenant on the lease it is my belief that the agent has a duty of care under section 223 P1 & 3.
• The tenants had no knowledge of the rent increase and belief after objecting to it to the agent it would no longer be an issue thus did not lodge a claim for excessive rent until this will matter was heard
• There has been an error and extra time is sought to entertain this appeal

1. The ground that "extra time is sought to entertain this appeal" does not relate, as we understand it, to the filing of the Notice of Appeal. This was filed within time. Rather, it relates to the late filing of the application to the Tribunal.
2. In their Notice of Appeal, the appellants stated, in their explanation of why they said the Tribunal's decision was not fair and equitable, that "the Tribunal would not consider an extension of time past the 30 day time period allowed". The appellants also claimed: "It was not possible for the tenants none of whom had notice of the increase in rent to bring the matter to the Tribunal within 30 days as none had any notice of the increase 30 days after it was allegedly and determined to have been all served." This is what the Appeal Panel understands them to be referring to in the ground of appeal seeking extra time.
3. The appellants filed another document entitled "Evidence & Submission" with a subheading "Grounds of Appeal - in summary of the Notice of Appeal". One of the paragraphs in this document was as follows: It is the belief of the appellant that the agent has no evidence to prove that delivery was made of the alleged notice of rent increase. When given the opportunity, in her evidence for the hearing, the agent did not provide any diary entries, notes or correspondence to the landlord advising of any service of notice to increase the rent. The appellants were not given the opportunity to question the agent to this end.
4. In another of the paragraphs in this document, the Appellants claimed: At the hearing the respondent produced a pile of emails, which were not included in her evidence, as was required to be handed to the appellant prior to the hearing. The appellants do not have these emails in their possession and were not given enough time to look through them and reply to this new evidence.

CONSIDERATION

1. There is a right of appeal without leave on a question of law: see s 82(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). Otherwise leave is required.
2. In relation to the grounds which do not identify an error of law, the Appeal Panel may only grant leave if satisfied that the appellants may have suffered a substantial miscarriage of justice because of certain circumstances (NCAT Act, Sch 4, cl 12(1)). These circumstances are 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).
3. Most of the grounds of appeal set out in the Notice of Appeal and the document headed "Evidence & Submission" with the subheading "Grounds of Appeal - in summary of the Notice of Appeal" do not raise an error of law. The exceptions are the claims that: 1. the respondents' agent owed the tenants a duty of care under s 223 of the Residential Tenancies Act 2010 and breached that duty; 2. the appellants were not given an opportunity to question the respondents' agent; 3. the appellants were not given enough time to look at new evidence produced at the hearing and to reply to it; and 4. the Tribunal did not consider granting them an extension of time.
4. The grounds requiring leave to appeal are set out under the relevant headings in the Notice of Appeal.
5. In relation to the ground that the decision was not fair and equitable, the second appellant said that the Tribunal relied solely on the evidence of the respondents' representative, that they were not given an opportunity to review evidence, particularly emails, that they believed the rent would not be increased and they would suffer a hardship.
6. In relation to the ground that the decision was against the weight of evidence, the appellants asserted that the bundle of emails provided by the respondent was incomplete and not made available to the appellants to consider prior to or at the hearing.
7. In relation to the ground that there was significant new evidence that was not reasonably available at the time of the hearing, the appellants said that they wish to issue subpoenas to the respondents to produce various emails, ledgers and other information concerning other townhouses in the same complex, to support their case that their rent increase was excessive.
8. It is convenient to first deal with the grounds alleging errors of law.

Duty to ensure notice received when served.

1. The Appeal Panel does not accept the appellants' submission that s 223 of the Residential Tenancies Act 2010 imposes a duty of care on a landlord or a landlord's agent. That provision is concerned with the service of documents. It deems a document to be served in a number of circumstances including, relevantly, if the document is left in a mailbox addressed to the individual at the individual's residential address. It does not impose a duty upon the person serving the document to ensure that the document is in fact received by the addressee.

Denial of procedural fairness - cross-examination

1. The alleged error of law raised by the next ground is that the Tribunal denied the appellants procedural fairness by failing to ask the second appellant whether she wished to cross examine Ms Wiltshire.
2. The Tribunal is required to ensure that the parties have an opportunity to be heard, and to apply the rules of natural justice or procedural fairness, pursuant to s 38(2) and 38(5)(c) of the NCAT Act. This includes an obligation to explain to a party about cross examination and allow a party to cross-examine witnesses if appropriate: see Gallo v Duflou [2014] NSWCATAP 115 and the cases referred to therein.
3. However, as pointed out by Harrison J in Cheung v Yang [2013] NSWSC 1694 at [58], even a direction there is to be no cross-examination may not amount to a denial of procedural fairness. Rather, what must be considered is whether the party complaining has in fact been denied a relevant opportunity in all the circumstances.
4. The focus of the law in any enquiry about procedural fairness is not on fairness in an abstract sense, but rather on avoiding practical injustice (Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 214 CLR 1, Gleeson CJ at 13-14 [37]).
5. The question is whether the lack of an opportunity to question Ms Wiltshire resulted in practical injustice.
6. The notice of rent increase is dated 30 October 2013. It provides for an increase of rent to $3000 per fortnight payable from 7 January 2014.
7. The notice records that it was delivered by "email and by hand", those delivery methods being indicated by a tick in the box on the face of the notice.
8. At the hearing, Ms Wiltshire gave sworn evidence that the notice had been sent by email and had been hand-delivered to the letterbox. When this evidence concerning had delivery was given, the second appellant asked Ms Wiltshire "When" to which the response was "30 October 2013". The appellants did not ask or seek to ask any further questions of Ms Wiltshire at this time.
9. While the form of the hearing took place in part as a discussion between the parties and the Tribunal Member as various documents were reviewed, it is clear from the above exchange that the appellants were given an opportunity to ask questions of Ms Wiltshire and raise matters about which they disagreed.
10. There was no suggestion made at the time by the appellants that they wished to challenge the credit of Ms Wiltshire or dispute that she delivered the notice. Rather, it was the appellants' assertion that they had not in fact received notice, whether or not the notice had been put in the mailbox.
11. In this regard the appellants provided a series of text messages (document 9 in Exhibit B in the appeal) between Ms Tsolakis and Ms Wiltshire concerning the use of incorrect email addresses. Exhibit B included text messages between the parties on 13 January 2014 which suggest the appellants were unaware of the rent increase until this date: see for example the series of text messages 28 - 32 inclusive. In addition, the appellants relied on a statement made in the chronology of documents, document 10, where they say (in reference to a copy of the notice -document 10) that "this letter was sent after we received the text message mentioned in Document 9".
12. It is clear from the text exchanges that the appellants were aware Ms Wiltshire had photographs of delivering the notice by hand to the mail box, which they did not wish to see: see text message 24 where the second appellant says, "Great you have photos of our letter box that means nothing to us".
13. There is no evidence produced that would lead the Appeal Panel to conclude the notice was not served as stated by Ms Wiltshire in her evidence. There is evidence that the appellants had arrangements for mail delivered by post to be diverted to a PO Box address and that other items delivered by hand to the mailbox would be disposed of as "junk mail" (see document 9, text 28 in Exhibit B). However this arrangement does not invalidate service by hand delivery.
14. This chronology of events is relevant to the issue of whether or not time should be extended to allow the challenge to the notice of rent increase to be brought out of time, an issue dealt with below. However, in relation to the issue of the alleged denial of procedural fairness it is sufficient to record that the challenge to Ms Wiltshire's credit did not occur until after the Tribunal had ruled that service by hand was effective.
15. In circumstances where the appellants in fact asked questions about the service of the notice (albeit limited to the date on which the notice was served) it is clear that they had an opportunity to question Ms Wiltshire concerning the service of the notice and did not seek to challenge her evidence that it was delivered by hand to the mailbox of the residential premises on 30 October 2013. Further, as the appellants knew, there was some photographic evidence of delivery and evidence from the appellants that the notice may have been disposed of by the appellants' cleaner as "junk mail". Therefore the failure to ask questions on this topic is hardly surprising.
16. Accordingly, the assertion that they were denied procedural fairness because the appellants were not given an opportunity to cross-examine Ms Wiltshire concerning the service of the notice by hand and various emails must fail.

Denial of procedural fairness - no opportunity to review emails

1. A review of the sound recording does not reflect that there was a denial of an opportunity to the appellants to consider and respond to email evidence. The email evidence related to the issue of giving notice of the rent increase.
2. There was an open discussion about the documents which each party identified and produced to the Tribunal. At the conclusion of the hearing both parties said to the Tribunal that they wished to have a decision made without delay.
3. In any event, the Tribunal found that the notice had been sent to the wrong email address and the Tribunal did not decide that service had been effected by email.
4. In this sense, there was no relevant injustice even if the appellants wish to have more time to consider the documents.
5. Further, at the hearing of the appeal, Ms Wiltshire again handed up the emails on which she had relied at the hearing. The second appellant was given an opportunity to look at and comment on them. They were all emails between the parties. There was nothing in those emails to which the second appellant wished to respond, having had a chance to read them.
6. Accordingly, this ground of appeal also fails.

Failure of the Tribunal to extend time

1. In so far as this ground may assert an error of law, the appellants' complaint appears to be that the Tribunal failed to consider the issue of whether or not time should be extended in which to bring the application to challenge the rent increase.
2. The appellants did not make any application to extend time.
3. At all times they maintained the proposition that notice of the rent increase had not been validly given. In relation to the delivery by hand to the mailbox, the appellant's response was that any email sent by post was redirected to a post office box address and any mail in fact hand-delivered to the mailbox may have been treated as "junk mail" and disposed of by the cleaners: see text message 28, part of document 9.
4. As indicated above, the appellants asserted they were unaware of the notice of rent increase until about 13 January 2014. Further, when advised by Ms Wiltshire that she had photographs of the delivery they said "… this means nothing to us. We need notice which we haven't been given": see texts 24- 26, Document 9.
5. There is evidence to suggest that the appellants in fact received advice about the rent increase at an earlier time, namely by email dated 10 December 2013. While this email did not constitute valid service of notice of rent increase, it was sent to the email address "bookings@perfectdrive.com.au", and the second appellant responded to this email on 10 December 2013 at 7.33 am. This email exchange is part of the respondents' documents, Exhibit 1 in the appeal.
6. The error asserted by the appellants is that "there has been an error and extra time is sought to entertain this appeal".
7. The Tribunal concluded that "the application made by the tenant was made in excess of… 30 days and therefore the Tribunal cannot entertain it."
8. The residential tenancies legislation required the application to the Tribunal to be made within 30 days after notice of the increase was given (Residential Tenancies Act 2010, s 44(2); Residential Tenancies Regulation 2010, cl 32(1)). It may be that the Tribunal has power to extend the period for making an application to the Tribunal of its own motion, under s 41(1) of the NCAT Act. However, the Tribunal is not obliged to consider whether or not to grant an extension of time in circumstances where no application to extend time has been made. In these circumstances, the Tribunal did not make an error of law.
9. Accordingly, this ground of appeal must fail.
10. However, it may be open to the appellants to assert there has been a substantial miscarriage of justice because they were unaware that an application to extend time could have been made pursuant to s 41(1) of the NCAT Act. In these circumstances it may be open for the appellants to seek leave to appeal. In this regard the Notice of Appeal records that an extension of time is sought: see eg item 13 in the Notice of Appeal and the grounds of appeal referred to above.
11. Having reviewed the evidence the Appeal Panel is of the view that an application to extend time should be refused for the following reasons: 1. no later than 13 January 2014, and probably as early as 10 December 2013, the appellants had been advised that the rent was to be increased; 2. on 13 January 2014, by text exchange set out above, the appellants had been made aware that notice of rent increase had in fact been given by notice delivered to the letterbox of the residential premises, that rent increase to be effective 9 January 2014. 3. the application to challenge the rent increase was not made until 3 March 2014, nearly 2 months after the rent increase was to take effect and more than six weeks after the appellant must have known that a notice of rent increase had previously been served. 4. the delay in bringing the application remains unexplained, other than by the fact that the appellants have sought to maintain up to and including this appeal that the notice of rent increase had not been properly served on 30 October 2013 and they have asserted in their Notice of Appeal that they had a belief after objecting to it that "it would no longer be an issue".
12. Further, leave to appeal should be refused because the Appeal Panel is not satisfied on the evidence presented to it that the rent increase was excessive.
13. The parties made submissions on this issue during the appeal and the Appeal Panel has had an opportunity to review the evidence on this issue. The appellants provided evidence for properties which they said provided information about comparable rents. These documents are in Exhibit B, documents 17 - 21. In reply, the respondents submitted that the best evidence was the rental payable for the various units in the existing complex which were comparable properties and whose rental values supported an amount of $1500 per week ($3000 per fortnight) being the proposed increased rent for the residential premises to which the appellants' application relates.
14. In the opinion of the Appeal Panel the evidence of the rental values which could be obtained for the units within the block in which the residential premises is located provide evidence of comparable properties sufficient to demonstrate that the rental increase in the notice was not excessive. The other units in the block have some different features relating to size and aspect but the differences and the range of rental values are not sufficiently different to lead to the conclusion that the rent increase to $1500 per week ($3000 per fortnight) is excessive. On the other hand, the comparative rental evidence provided by the appellants is of properties in a range of locations and types which do not appear comparable to the residential premises in question and/ or are not sufficient to prove the use of the values for other units in the same building as the residential premises was not appropriate.
15. Accordingly, the Appeal Panel is not satisfied that a substantial miscarriage of justice has occurred and even if time was extended, in our opinion the application to set aside the rent increase on the basis that it was excessive would have failed.
16. Therefore leave to appeal on this ground fails.

Grounds of Appeal requiring leave

1. In relation to the ground that the decision was not fair and equitable, the Tribunal had before it documents provided by both parties and considered that evidence.
2. In relation to the email evidence, as indicated above the Appeal Panel is not satisfied that the appellants were not given an opportunity to consider this material and, in any event, have had an opportunity to do so in this appeal. As can be seen from our analysis above, the email exchange identifies the appellants were aware by January 2014 (at the latest) that the notice had been served on 30 October 2013.
3. Whether or not they had a "belief" that the rent would not be increased, the fact remains that the landlord was entitled to serve such a notice and the failure to challenge the notice in time means that the rent increase is effective. While this may impose an additional financial burden upon the appellants, that fact does not provide a basis to set aside the orders made by the Tribunal and order a rehearing.
4. In relation to the ground that the decision was against the weight of evidence, there is no evidence that the email evidence is in any relevant sense incomplete. Otherwise, the issue of the appellants' opportunity to consider and respond to the email is provided in evidence is dealt with above.
5. In relation to the documents identified as "new evidence" it is clear that the documents identified could have been summonsed to the original hearing and do not constitute evidence not reasonably available at the time the original proceedings were dealt with.
6. Accordingly, the application for leave to appeal should be dismissed.

ORDERS

1. For these reasons, the appeal is dismissed.
2. The Appeal Panel makes the following orders: 1. The application for leave to appeal is dismissed; 2. The appeal is otherwise dismissed; 3. The stay granted on 4 July 2014 by the Appeal Panel of order 2 made in application RT 14/14908 is lifted; 4. The orders made by the Tribunal on 11 June 2014 remain in full force and effect. 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: 12 February 2015