Saoud v Affordable Community Housing Ltd t/as Evolve Housing

Background

1. Mr Saoud is the owner of a home unit in Yagoona. His real estate agent, Ms Ajaka, attended a hearing on 20 March 2015 with Ms Trinidad-Soria representing the tenant, Affordable Community Housing Ltd trading as Evolve Housing. Ms Wraight from Evolve Housing was also in attendance as was the sub-tenant, Mr Mourghabel.
2. Mr Saoud says that his agent, Ms Ajaka, telephoned the Tribunal on 21 March 2015, the day after the consent orders were made, asking if the orders could be overturned. Mr Saoud says that Registry staff advised Ms Ajaka to file an application to set aside those orders. Mr Saoud did so on 25 March 2015.
3. The provision relating to an application to set aside an order is in Regulation 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW): (1) In addition to any 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 in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if 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.
4. On 2 April 2015 the Tribunal made the following notations and directions: 1. The applicant seeks to set aside consent orders made on 20 March 2015. The applicant was present at the time of the hearing when the orders were made with the consent of the applicant. 2. The applicant alleges he was intimidated and was under duress. 3. In the circumstances, a set-aside application under Regulation 9 of the Civil and Administrative Tribunal Regulation 2013 is not appropriate as the applicant was not absent from the hearing and there is no evidence that the Respondent consents to this application. 4. If the application is based on Regulation 9 it should be dismissed. The application does not set out the legal basis for the request that the orders made on 20 March 2015 be set aside, nor does the application identify whether the application is based on the Civil and Administrative Tribunal Act 2013 (NSW), the Residential Tenancies Act 2010 (NSW) or some other basis. 5. In the circumstances the Applicant should be required to explain the legal basis for the application. 6. The following orders are made: (i) within 14 days the Applicant will file with the Tribunal and serve on the respondent a statement setting out the legal basis of this application together with an affidavit or statutory declaration describing the facts which support the application; (ii) within 14 days after the receipt of the documents described in (i) above, the Respondent will file and serve its submissions and evidence.
5. On 13 May 2015 the Consumer and Commercial Division handed down a decision formally dismissing the set-aside application. The Tribunal also made the following comment: The appropriate course for the applicant is to lodge an appeal against the decision made on 20 March 2015 upon the basis that consent to the agreement was obtained by duress and intimidation and that the Tribunal should therefore not have made the consent orders. It would be inappropriate to give to the landlord a false hope that the appeal may succeed. The difficulty for the landlord is that there is no evidence of what conduct occurred which constituted bullying or intimidation. In addition, the usual practice of the Tribunal when considering whether to make consent orders is to take steps to read out the appropriate orders and have each of the parties representatives confirm that they consent to the orders. Presumably this was done on this occasion.
6. Despite those observations, Mr Saoud appealed from the decision to dismiss the application to set aside the 20 March 2015 consent orders, rather than appealing against the decision to make those orders.
7. On 15 June 2015, after explaining to Mr Saoud that an appeal against the order refusing to set aside the consent orders would be highly unlikely to succeed on the basis of the information in his Notice of Appeal, I made the following directions: 1. Leave granted for the appellant to file and serve an amended Notice of Appeal appealing against the 20 March 2015 consent orders by 6 July 2015. Note: Amended appeal to include evidence of duress said to be imposed on Ms Sarah Ajaka, real estate agent present on 20 March 2015 and transcript of Tribunal hearing following the settlement negotiations. The merits of that issue is relevant to the question of whether the appeal against the 20 March 2015 consent orders should be accepted out of time. 2. Respondent to file and serve Amended Notice of Reply and any evidence or submissions in relation to whether appeal against 20 March 2015 decision should be accepted out of time by 27 July 2015. Note: Respondent should include any evidence in response to the evidence filed by the appellant in relation to duress. 3. Matter listed for hearing on 10 August 2015 at 9.15 before Hennessy DP for 45 minutes for determination of the out of time issue.
8. Mr Saoud did not file an amended Notice of Appeal or any further evidence. Despite that fact, because Mr Saoud was self-represented and Evolve Housing agreed, we have treated his appeal as being an appeal against the 20 March 2015 decision. The preliminary issue for determination is whether the appeal should be accepted out of time.

Application for extension of time

1. As these proceedings are "residential proceedings" Mr Saoud is required to lodge an appeal within 14 days from the day on which he was notified of the decision or given reasons for the decision, whichever is the later: Civil and Administrative Tribunal Rules 2014 (NSW), (NCAT Rules), rule 25(4)(b). The Tribunal made the consent orders on 20 March 2015. Mr Saoud was not present at the hearing but his agent, Ms Ajaka, represented him. We find that Mr Saoud was "notified" of the decision on 20 March 2015 because that is the day the consent orders were made and his agent was present at that time. Mr Saoud lodged the appeal on 2 June 2015, more than 8 weeks out of time.
2. The time for lodging an appeal may be extended even though the time has expired: Civil and Administrative Tribunal Act 2013 (NSW), (NCAT Act), s 41. The Appeal Panel set out the principles to be applied when considering an application for an extension of time in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal 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] NSWCA 369; (2007) 71 NSWLR 61at [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] NSWCA 369; (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].

Length of the delay

1. The length of the delay is in excess of eight weeks. Where a short period of 14 days is allowed for the lodging of an appeal, an eight week delay is relatively significant.

Reason for the delay

1. Part of the delay can be explained by the fact that Mr Saoud mistakenly lodged an application to set aside the Tribunal's decision instead of appealing against the decision itself. As the Tribunal said in its reasons for dismissing the set aside application, neither of the grounds for setting aside a decision applies in this case. According to Evolve Housing, Mr Saoud knew from the date the Tribunal made the notations and directions on 2 April 2015 that the set aside application was hopeless. Even assuming Mr Saoud still considered there was a basis for applying for the consent orders to be set aside, there is no explanation for the delay in filing the appeal for 3 weeks from 13 May 2015, the date on which the Tribunal decided not to set aside the decision, and 2 June 2015, the date on which the appeal was filed on.

Prospects of success

1. Mr Saoud is entitled to appeal on a question of law but must obtain the Appeal Panel's leave before appealing on other grounds: NCAT Act, s 80(2)(b). In relation to appeals from the Consumer and Commercial Division, leave to appeal on grounds other than a question of law can only be granted in the limited circumstances set out in Schedule 4, cl 12 to the NCAT Act: (1) 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).
2. It is apparent from Mr Saoud's Notice of Appeal and submissions that the only ground of appeal which he presses is that his agent, Ms Ajaka, was intimidated and subjected to duress when she consented to the orders that the Tribunal made on 20 March 2015. It is for that reason that we have not taken into account the circumstances of a meeting Mr Saoud had with Ms Trinidad-Soria on 30 June 2015 and subsequent communications between them. That evidence relates to the merits of the original application. In circumstances where consent orders were made, the merits of the original application are irrelevant.
3. At common law, the grounds for quashing a consent order are the same as those for quashing the agreement on which it is based: Bernard Cairns, Australian Civil Procedure (8th ed, 2009 Law Book Co) at 418. In Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235, the High Court said, at 243-4, that: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.
4. These are also ground which may lead the Appeal Panel to conclude that it should set aside a consent order. If a party intends to rely on grounds such as duress, undue influence or misrepresentation, it will be necessary to provide evidence of the facts which support that ground.
5. The evidence of duress is found in a statutory declaration of Ms Ajaka attached to the Notice of Appeal. After addressing issues unrelated to duress Ms Ajaka writes: I also felt incredibly intimidated in conciliation and acted out of duress.
6. Ms Madgwick, representing Evolve Housing, described this one line statement as "an afterthought." We make no finding as to whether it was an afterthought and treat it as evidence in these proceedings.
7. Attached to the Notice of Appeal is a single page document which is not signed or dated. We have treated this document as evidence from Ms Ajaka. She writes: I felt that it was very unfair in conciliation, I felt outnumbered and the ridiculous things the tenant was stating could not be backed up as we requested an adjournment and we did not have the sufficient paperwork to prove our case. We now lodge an appeal for a fair hearing for damages and compensation to be paid to the landlord by the tenant.
8. According to Mr Saoud, Ms Ajaka is a young woman who has now resigned.
9. Evolve Housing filed statutory declarations from Ms Trinidad-Soria and Ms Wraight, both of whom attended the first instance hearing. That hearing also involved an associated application against Evolve Housing by a sub-tenant, Mr Mourghabel. Ms Trinidad-Soria's declaration states that Ms Ajaka left the room more than once so that she could contact Mr Saoud about the settlement offers. Ms Tinidad-Soria records that while Ms Ajaka was out of the room she and the subtenant had a conversation to the following effect: Ms Trinidad-Soria:: Fred, you must listen only to the negotiations between me and Pauline (Wraight) and the agent (Ms Ajaka). If we have any questions for you, then we will ask you directly. You should not address the agent, you should only address us, as we are your landlord. And that after our negotiations with the agent then we will proceed to negotiate the issues with you. Sub Tenant: I understand.
10. There is no further evidence as to what occurred during the conciliation which led Ms Ajaka to feel that she had been intimidated.
11. We are not satisfied on the basis of the evidence provided that Ms Ajaka was subjected to duress of any kind during the conciliation. She gave evidence of how she felt (outnumbered, incredibly intimidated and that it was unfair) but gave very little indication as to the reason she felt that way. The only general evidence she gave was that the tenant (presumably a reference to Evolve Housing) had said "ridiculous things" that "could not be backed up." Even if that was the case, it does not amount to duress. Even if the sub-tenant addressed Ms Ajaka directly, there is no evidence of what he said.
12. While there were two representatives from the Evolve Housing, Ms Trinidad-Soria, a senior housing manager and Ms Wraight, an employee, that is hardly a case of being "outnumbered" as Ms Ajaka claims. There is no evidence of any conduct in which either of those people engaged that could amount to duress.
13. While her youth and inexperience may have been a factor in her decision to consent to the orders, those matters do not amount to duress on the part of Evolve Housing or the Tribunal.

Prejudice

1. Evolve Housing is concerned to preserve the finality of the orders made on 20 March 2015 as a back to back agreement was reached with Evolve Housing's subtenant on the basis of the agreement with Mr Saoud.

Conclusion

1. We decline to extend time for the filing of this appeal. Despite the relatively short unexplained delay of three weeks in filing the appeal, the prospects of success are negligible and the prejudice to Evolve Housing is significant. The Tribunal made it clear to Mr Saoud on 2 April 2015 that there was virtually no prospects of him being successful in relation to an application to set aside the consent orders. The Tribunal observed when it made a decision refusing to set aside those orders that one possible ground for appeal would be on the basis that Ms Ajaka had acted under duress. Despite being put on notice that he needed to provide evidence as to that matter, Mr Saoud provided very few particulars of any conduct to which Ms Ajaka was subjected which could possibly have constituted duress. The evidence was mainly about how Ms Ajaka felt. That is not a sufficient basis to establish duress.

Costs

1. At the hearing Evolve Housing applied for costs. The general rule is that each party pays their own costs but costs may be awarded in 'special circumstances'. Section 60 of the NCAT Act provides: Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis. (5) In this section: "costs" includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
2. Our understanding of Evolve Housing's submission is that costs should be awarded under s 60(3)(e) of the NCAT Act because the appeal lacks substance and under s 60(3)(f) of the NCAT Act because Mr Saoud failed to comply with directions of the Tribunal as required by s 36(3). The basis for the costs application was that Mr Saoud has never particularised his claim that his agent, Ms Ajaka, was subjected to duress. Despite the Appeal Panel directing on 15 June 2015, that Mr Saoud put on evidence of duress and a transcript of the Tribunal hearing, no evidence was filed. According to Evolve Housing, Mr Saoud has made serious allegations of bullying and intimidation which have not been established.
3. Mr Saoud made several submissions which do not respond to either of those grounds. We will confine our consideration of Mr Saoud's submissions to those which respond to the two grounds raised by Evolve Housing.
4. Despite Mr Saoud's claim that the appeal does not lack substance, we have found that he provided no particulars of any conduct to which Ms Ajaka was subjected which could possibly have constituted duress. We have also found that Mr Saoud failed to comply with a direction to file an Amended Notice of Appeal and any transcript of the first instance proceedings or other evidence in support of his appeal.
5. The Tribunal's discretion to award costs should be exercised only where special circumstances exist warranting an award of costs. We do not consider that an award of costs is warranted in this case. Mr Saoud was not legally represented and did not understand that the evidence he provided that Ms Ajaka "felt incredibly intimidated" and "felt it was unfair in conciliation" was inadequate. We also accept that he received information from Registry staff that one option was to file an application to set aside the consent orders. The Registry does not give advice about the prospects that such an application could succeed. While Mr Saoud failed to provide an Amended Notice of Appeal and further evidence as directed, we allowed his appeal to proceed on the basis that it was an appeal against the consent orders rather than an appeal against the decision to refuse to set aside those orders. Mr Saoud's lack of understanding of the legal process and the substantive law does not warrant the payment of costs in this case.

Orders 1. Leave is granted for the respondent to be legally represented. 2. The application for an extension of time in which to appeal is refused. 3. The appeal is dismissed. 4. The respondent's application for costs is refused.

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: 25 September 2015