Rizk v Stowers

Introduction

1. The respondents in this appeal Sui Stowers, Vaeluaga Pasi, Peter Pasi and Vennah Faatonu (the Tenant) filed an application in the Commercial and Consumer Division (CCD) of the Tribunal for the return of a Rental Bond No L024327-5 of $2,600 relating to a property at a Sydney suburb (the Tribunal proceeding).
2. The appellants, Victoria Rizk & Manal Rizk (the Landlord), opposed that application for the release of the bond or any part of it.
3. Both parties were self-represented in the Tribunal proceeding and in this appeal; Ms Rizk appeared for the appellants (Ms Rizk is the majority owner of the property) and Ms Stowers (one of the tenants), appeared for the respondents.
4. On 14 November 2019 the application came on for hearing before a Member of the Tribunal.
5. The Member informed the Landlord that she had not filed any documents in support of her claim before the hearing, or filed any cross application, contrary to directions made on 24 September 2019. Order 7 of those directions, required the filing of any documents on which a party may seek to rely at the hearing, failing which that party would not be able to rely upon those documents, without leave first being granted.
6. The Landlord applied for an adjournment of the hearing to enable the documents to be filed and served on the Tenant. The Tenant objected to the Landlord's application. The Tribunal refused the Landlord's application for an adjournment.
7. The Tribunal then rejected the Landlord's application to file and rely upon those documents at the hearing. We note that the Member considered the applications made by the Landlord in the reverse order. The Tribunal should have first heard the application for leave to rely upon the documents, which was open to the Landlord to make under the orders of 24 September 2019, before the adjournment application which would only have been necessary if the application for leave was refused.
8. Upon refusing both applications by the Landlord, the Tribunal made an order directing the Rental Bond Services to pay the Landlord the sum of $800 from the Rental Bond, and the balance of $1800 to be paid to the Tenant. That sum was based on the Tenant's concession that there was some damage to an oven ($600) and some need for painting of a wall ($200) but otherwise, the Tribunal found that "in the absence of any other compelling evidence of the Tenant's breach of their end-of-tenancy obligations" there was no basis to refuse the return of the balance of the bond to the Tenant under s166 of the Residential Tenancies Act 2010 (NSW).

The course of the proceedings before the Member

1. In his Reasons for Decision the Member referred to what had transpired at the hearing in the following terms; The Landlord explained that she had mistakenly understood that her managing agent (who appeared at the last hearing) had filed and served all documents upon which she relied. Since the last hearing, she is now managing her own property. The Landlord confirmed she had received the whole file from the previous managing agent. This included the documents upon which she now relied and wished to file today."
2. The Member concluded that any difficulties which had arisen in the handover of the matter from the Landlord's agent to the Landlord did not constitute a sufficient excuse for a failure to comply with the Tribunal orders for the preparation of the matter for hearing. The Member refused to grant the adjournment application.
3. Having refused the adjournment, the Tribunal Member also then refused to grant leave to the Landlord to rely upon documentation not filed in accordance with previous directions made on 24 September 2019.
4. The Tribunal observed at paragraph 5 of the reasons: A claim of this nature [i.e. breaches of the tenant's obligations under s51 (3) of the Residential Tenancies Act] can only be successful at the civil standard of proof if sufficient evidence is provided. This evidence almost always includes documentary and/or photographic evidence of the condition of the premises at the start and end of the tenancy, the residential tenancy agreement and Quotations and/or Invoices relating to the work to be completed to remedy the breaches.
5. Having refused the two applications made by the Landlord, the Member then made final orders disposing of the matter by directing the release of the bond to the Tenant, less an amount of $800 based on concessions made by the Tenant in respect of certain repair costs.

Appeal Grounds

1. The Notice of Appeal raised the following grounds of appeal: 1. The Landlord was not provided with "an adequate handover of the file" when the managing agent "exited the proceedings at a late stage". The agent did not notify the Landlord of that decision and did not properly inform the Landlord of the directions to provide evidence including missing documentation; 2. The Tenant in effect misled the Tribunal by informing the Member that she had never received any reports and quotations for cleaning and repairs. 3. The Tribunal "should have adjourned the proceeding in the interest of justice and fair outcome" and "mistook the facts and did not take into account some material considerations".
2. A Reply to Appeal was filed on 5 December 2019. A further Reply to Appeal was filed on 24 January 2019. For practical purposes this may be regarded as an amended Reply and no objection was taken to the Tenant relying upon that document on the appeal. The further Reply simply raised an additional legal ground in opposition to the appeal: that the appeal "does not meet the requirements" of clause 12 of Schedule 4 of the NSW Civil and Administrative Tribunal Act 2013 (the CAT Act).

Statutory Basis of the Appeal

1. Section 80 of the CAT Act sets out the statutory basis for an appeal, which in this case relevantly provides: Section 80 (2) of the CAT Act: Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) 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.
2. The Landlord has accepted in the Notice of Appeal that leave is necessary.
3. In the case of leave to appeal from of a decision of the CCD, (as noted in the Tenant's Reply to Appeal), the Appeal Panel's discretion to grant leave is governed and limited by clause 12 (1) of Schedule 4 of the CAT Act, which (relevantly) provides: Clause 12 (1), Schedule 4 of the CAT Act An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied 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).

The Issues on Appeal

1. The issue on Appeal is whether a substantial miscarriage of justice has occurred because the decision of the Tribunal was not fair and equitable within the meaning of clause 12 of Schedule 4 of the CAT Act.
2. This involves consideration of whether the discretion exercised by the Member, firstly to refuse the adjournment and secondly, to refuse leave for the Landlord to rely upon documents not filed prior to the hearing contrary to the directions of 24 September 2019, miscarried. If so, we are required to determine whether that raises a ground of appeal (and for which leave should be granted) to challenge the final decision of the Member to allow the Landlord to retain $800 of the bond in respect of some damage to an oven and a wall (based on a concession by the Tenant and not on evidence adduced by her).

Appellants' Submissions

1. We should state at the outset that we reject any suggestion that the discretion of the Member miscarried in determining that no relevant consideration should be given to the difficulties encountered by the Landlord in taking over management of the matter from the agent.
2. However, for reasons which we shall develop, we find that the Member's discretion to refuse to allow the Landlord to rely on documents which she wished to produce at the hearing, albeit out of time, miscarried to the extent that the Member was not afforded an opportunity to consider all of the relevant facts by reason of misleading information which was given to him during the course of the hearing by the Tenant.
3. Because it is clear that the decision of the Member was influenced by the misleading and incorrect information given to him by Ms Stowers at the hearing, it is appropriate in the interests of facilitating the just, quick and cheap resolution of the real issues in the proceedings (as required by section 36 (1) of the CAT Act) to permit the appellant to adduce new evidence for the purpose of these appeal proceedings, referable to what occurred at the hearing before the Member, and additional material which is corroborative of possession by Ms Stowers of information which the Landlord wished to adduce concerning the state of the premises when they had been vacated.
4. We have been furnished by the Landlord with a summary of the transcript of the proceedings before the Member. We have no reason to doubt the accuracy of that transcript, and indeed its accuracy was not challenged by the Tenant.
5. Between 11:38 minutes and 12:30 minutes into the sound recording, the Member questioned Ms Stowers as to whether she had been "shown any documents, accounts, invoices etc from the agent". Ms Stowers falsely told the Member "no, nothing". There can be no doubt that this statement influenced the Member in determining to refuse to permit the Landlord to rely on any of the documentation which was available to be produced at the hearing.
6. At 11:22 - 11:25 minutes into the sound recording, the Landlord is recorded as having requested the adjournment. At 11:35 to 11:38 minutes into the sound recording, the Member stated during the request for the adjournment, "that if there is documents that tenants have not seen it would usually not be appropriate to proceed". The Landlord, according to her unchallenged version, said that she informed the Member that the documents were provided to Ms Stowers by email and the entire file had been shown to Ms Stowers.

Consideration

1. We conclude that the Member had been deprived of considering all of the information relevant to his decision to refuse the adjournment and to refuse to admit the evidence of the Landlord concerning the state of repair of the premises at the time that they were vacated, and the knowledge of the Tenant about those matters. It is feasible that the advance knowledge by the Tenant of these matters might have enabled the Member to conduct the hearing in a manner which would facilitate a determination of the real issues in the proceedings. Of course, the Member may have arguably balanced these matters against the failure of the Landlord to comply with the orders of the Tribunal concerning the preparation of the proceedings for hearing brought about seemingly by reason of some misunderstanding between the Landlord and the managing agent. Nevertheless, in all the circumstances the Member was deprived of the opportunity of considering all of these matters, by reason of the conduct of the Tenant.
2. Since the Landlord was deprived of the opportunity of introducing and relying upon evidence to support a defence of the Tenant's claim, the appellant may have suffered a substantial miscarriage of justice. We find that the decision of the Tribunal under appeal was not fair and equitable, for the reasons already advanced.
3. This matter still needs to be determined on its merits having regard to such evidentiary material as is appropriate to be taken into account in all the circumstances.
4. We have considered the principles set out in Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [137], mindful that when exercising the power to make an order for remitter, this must be done "with caution". We find no compelling reason for the matter not to be remitted for reconsideration by the Tribunal

Disposition of the Appeal

1. For the reasons set out above, we propose to grant leave to appeal and uphold the appeal.
2. The orders which we are empowered to make are set out in section 81 of the CAT Act; 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.

Orders We make the following orders; 1. We grant leave to appeal 2. The appeal is upheld 3. The orders made on 14 November 2019 are set aside 4. The whole of the proceedings are to be reconsidered by the Tribunal with such further evidence as may be adduced by either party at the discretion of the Tribunal.

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: 09 March 2020