Shandil v Tahany Pty Ltd

Consideration

1. The relevant principles for the granting of an extension of time to appeal under s 41 of the NCAT Act are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [21] and [22]: "[21] Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. [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) 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) 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]."
2. The New South Wales Court of Appeal has referred to Jackson at [22] and stated that the relevant principles to be applied are not controversial: EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167 at [17]-[19] (Bell P with Macfarlan JA at [78] and Brereton JA at [79] agreeing).
3. In Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 the New South Wales Court of Appeal dismissed the application of the respondent for an extension of time to cross-appeal against the judgment and orders of the District Court. The Court of Appeal (Basten JA with Hodgson JA at [1] and Ipp JA at [17] agreeing), after referring (at [55]) to the four general factors (which are set out in Jackson at [22(2)]), referred (at [56]) to the observations of Kirby J in Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 (Jackamarra) at [66(7)]: "But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of a party's legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant."
4. It is convenient to separately consider each of the four factors identified in Jackson at [22(3)].

The length of the delay

1. We accept the statement of Mr Shandil in section 2 of the notice of appeal that he received the 7 February 2024 decision on 9 February 2024. As the last day for lodging the appeal within time was 26 February 2024, Mr Shandil lodged the appeal out of time by seven days.

The reason for the delay

1. We accept the explanation of Mr Shandil that he was travelling and thought 28 days was the period within which an appeal was to be lodged. In the circumstances we are satisfied that his delay was not intentional and the result of a genuine mistake.

Mr Shandil's prospects of success

1. We are satisfied that issues 2 and 3 are fairly arguable.

The extent of any prejudice suffered by Tahany

1. We note that no evidence has been adduced by Tahany that it will suffer any prejudice if an extension of time is granted.

Conclusion

1. In these circumstances together with Tahany not opposing an extension of time being granted, we have decided to extend the time for Mr Shandil to appeal to 4 March 2024.

Issue 2: whether the Tribunal failed to afford procedural fairness to Mr Shandil

Introduction

1. In view of the lack of any order under s 45(1)(b)(ii) of the NCAT Act granting leave to Mr Shandil to be represented by an Australian legal practitioner in the Tahany proceedings, we infer that Ms Shandil is not a practising lawyer.
2. When we asked Mr Katsikas as to the reason Tahany did not attend the hearing on 20 June 2023 in the Shandil proceedings, he stated that the BresicWhitney staff member responsible for the tenancy agreement had walked away from the business without notice and it was only on receipt of the 20 June 2023 decision that he became aware of Tahany's failure to appear.

Consideration

1. The NCAT Act relevantly includes the following provisions: 1. section 36 which deals with the guiding principle to be applied to practice and procedure: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or … (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. … 1. section 38 which deals with the procedure of the Tribunal generally: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. … (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and … (6) The Tribunal - (a) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and …
2. In Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 280 FCR 479; [2020] FCAFC 138 (Flightdeck Geelong) the Full Federal Court (Markovic, Derrington and Anastassiou JJ) considered the scope of the Court's obligation to assist an unrepresented litigant. The Court at [51]-[60] relevantly made the following observations as to the Court's duty to the litigant-in-person and relief for denial of procedural fairness: "The Court's duty to the litigant-in-person [51] The submissions advanced on appeal revealed the existing lack of clarity as to the obligations of a court to a litigant-in-person. Though the principles might be succinctly stated at a high level of generality, their application in a particular case is somewhat more problematic. … [52] As acknowledged by the High Court in Neil v Nott (1994) 68 ALJR 509 at 510; 121 ALR 148 at 150, "[a] frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy". …. [53] However, whilst disadvantages exist and the Court is obliged to act to ameliorate them by giving assistance to the unrepresented litigant, its role is constrained by its concurrent duty to remain an impartial adjudicator: … Indeed, the Court must strike a fine balance between providing assistance to a litigant-in-person, and ensuring a fair trial for all parties: … [54] The assistance provided to a litigant-in-person must therefore be limited to that which is necessary to diminish the disadvantage which he or she will ordinarily suffer, and the Court should be wary to avoid placing a litigant-in-person in a position of advantage or privilege over a represented opponent. … [55] In practical terms, the Court may find it appropriate to provide the following kinds of assistance to a litigant-in-person: (a) Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: … (b) Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: … (c) Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: … [56] The duty of the Court does not extend to providing judicial advice, counselling a litigant on how to exercise their rights, or conducting the case on their behalf: … Nor does the duty of the Court require it to view a litigant-in-person's case with a favourable eye. … [57] It seems to be well accepted that the extent of the Court's obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends upon "the litigant, the nature of the case, and the litigant's intelligence and understanding of the case": … Relief for denial of procedural fairness [58] A denial of procedural fairness must work a practical injustice on the appellant in order for the Court to exercise its discretion to grant relief: …. An appellant alleging a denial of procedural fairness need only demonstrate that they were deprived of the possibility of a successful outcome; to negate that possibility it is necessary to find that a properly conducted trial could not possibly have produced a different result: …. To put it another way, as framed by the Full Court in King v Delta Metallics Pty Ltd [2013] FCAFC 93 at [59], "[i]f the denial of procedural fairness would have made no difference to the outcome of the proceeding, relief will not be granted": …. [59] Depending on the circumstances of the case, the onus may be on the appellant to demonstrate what they would have done, or what evidence they would have led, so as to establish they were in fact denied procedural fairness. As explained by Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [59]-[60]: "There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard. **493 Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given." (Footnotes omitted.) (Emphasis added.) [60] In reaching this conclusion, their Honours cited the Full Court decision of WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511, where at [58] their Honours had observed that where a party has been denied an opportunity to be heard on an important issue, that will amount to a denial of procedural fairness unless it can be shown that the appellant could not, even if given the opportunity to do so, affect the outcome. …." (citations omitted except as included)
3. We note that s 38(5) of the NCAT Act reflects the general law duties of procedural fairness and the principles in Flightdeck Geelong at [51]-[57] apply to proceedings in the Tribunal: see for example Jeray v Blue Mountains City Council [2024] NSWCATAP 66 (Jeray) at [13]-[15]. We note that the principles in Flightdeck Geelong at [58]-[60] apply to proceedings in the Tribunal: see for example Jeray at [18].
4. In Stokes v Toyne [2023] NSWCA 59 the New South Wales Court of Appeal by majority allowed an appeal from the dismissal of the notice of motion in the District Court that the proceedings commenced by Ms Toyne be permanently stayed on the basis that she was estopped from commencing or maintaining the proceedings on the basis of the principles of Anshun estoppel, or that the proceedings were otherwise an abuse of process. The background to the appeal was that in May 2015, Ms Toyne contracted to sell two lots of land to Mr Stokes. When he failed to complete due to ongoing difficulties in obtaining finance, Ms Toyne terminated the contracts and forfeited the deposits (which totalled $110,000). Mr Stokes commenced proceedings in the Equity Division of the Supreme Court for return of the deposits. Ms Toyne resisted the return of the deposits on the basis that she had suffered losses relating to demolition of fences and sheds (which led to asbestos contamination), felling of trees undertaken by Mr Stokes on the property and holding costs. She did not file a cross-claim for damages. Subsequently, Ms Toyne commenced proceedings in the District Court and claimed damages relating to those matters.
5. In the Court of Appeal, the three justices discussed the principles of Anshun estoppel and the doctrine of abuse of process (Ward P at [2]-[3], [6], [10]; Adamson JA at [69], [75]-[90]; Simpson AJA at [133]-[151]). For the purposes of this decision, we draw attention to the following: 1. the power to grant a permanent stay is to be exercised only in the most exceptional circumstances: Ward P at [10]; 2. all relevant circumstances, whether objective or subjective, may be relevant to a plea of Anshun estoppel or a submission that proceedings constitute an abuse of process: Adamson JA at [69]; 3. the concepts of Anshun estoppel and associated abuse of process are fundamentally distinct: Adamson JA at [75]; Simpson AJA at [134]; 4. the principles of Anshun estoppel preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding: Adamson JA at [79]; 5. the Anshun principle will not generally apply to cross-claims, save for a situation in which the relief claimed in the second proceeding is inconsistent with the judgment in the first: Adamson JA at [88]; 6. the doctrine of abuse of process is inherently broader and more flexible than res judicata, issue estoppel or Anshun estoppel and is capable of applying in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute: Adamson JA at [79]; 7. in considering an abuse of process courts have emphasised the importance of provisions such as s 56 of the Civil Procedure Act 2005 (NSW) (CP Act) and s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which is in similar terms: Adamson JA at [83]; 8. non-compensable inconvenience and stress on individuals are highly relevant in the assessment of proceedings as oppressive: Simpson AJA at [151]; 9. an important distinction between a claim for a stay of proceedings by reason of Anshun estoppel and a claim for a stay by reason of abuse of process lies in timing. The claim for a stay by reason of Anshun estoppel must necessarily be determined by (at the latest) reference to circumstances that pertained at the time of the proceeding in which, it is asserted, a separate and subsequent claim should also have been pursued. A claim for a stay of proceedings by reason of abuse of process is to be determined by reference to circumstances existing, at the earliest, at the time of commencement of the proceeding sought to be stayed: Simpson AJA at [133].
6. The majority (Adamson JA and Simpson AJA, Ward P dissenting) found that the District Court proceedings constituted an abuse of process, and made orders allowing the appeal, setting aside the order of the District Court dismissing the notice of motion and permanently stayed the District Court proceedings. Adamson JA at [115] held that the overlap with the facts and issues raised in the Equity proceedings was such as to make the District Court proceedings an abuse of process. Simpson AJA at [176] held that in the circumstances, the administration of justice justified a permanent stay of the District Court proceedings, as to permit the proceedings to go forward would cause "unjustifiable oppression" and be "manifestly unfair" to Mr Stokes.
7. We are satisfied that the principles of Anshun estoppel and the doctrine of abuse of process apply to the Tribunal: see for example Shivanbodhiselvan v Norwest Gateway Pty Ltd [2022] NSWCATAP 27 at [46]. We note that s 56(1), (2) and (3) of the CP Act is in substantially similar terms to s 36(1), (2) and (3) of the NCAT Act, and s 37M(1) and (3) of the FCA Act is in substantially similar terms to s 36(1) and (2) of the NCAT Act.
8. We are satisfied that the Tribunal member was on notice of the existence of the deposited rental bond from the Tahany application, and that Tahany's claim had first been made in the 9 May 2023 BresicWhitney invoice. Indeed, the 20 June 2023 decision at [11] and [23] noted that the bond had been released by tribunal order.
9. As s 166(1)(a) and (b) of the RT Act relevantly provides that a landlord to is entitled to claim from the rental bond for the residential tenancy agreement the reasonable cost of repairs to the residential premises as a result of damage (other than fair wear and tear) caused by the tenant, and other charges owing and payable under the residential tenancy agreement or the RT Act, we are satisfied that the Tribunal member was obliged pursuant to s 36(6)(a) of the NCAT Act to have raised with the parties at the hearing the fact that the bond had already been released. That inquiry would have led to the disclosure of the Shandil proceedings, the 19 June 2023 orders and the 20 June 2023 decision. This in turn would have required the Tribunal member to inform Ms Shandil of the possible availability of a defence based on the principles of Anshun estoppel and the doctrine of abuse of process arising from the failure of Tahany to have raised its claim in the Shandil proceedings as required by order 2 of the 19 June 2023 orders.
10. We are satisfied that we should draw the inference from the defence of the Tahany proceedings by Mr Shandil that Ms Shandil, if she had been informed of the possible availability of such a defence, would have sought to rely upon it.
11. It follows that the Tribunal failed to afford procedural fairness to Mr Shandil by reason of the Tribunal member failing to ensure that Ms Shandil did not, because of a lack of legal skill, fail to claim rights or put forward arguments that the Tahany proceedings should be stayed as an abuse of process.
12. We are further satisfied that this denial of procedural fairness worked a practical injustice on Mr Shandil because he was thereby deprived of the possibility of a successful outcome in the Tahany proceedings.
13. This means that pursuant to ss 58 and 81(1)(a), (c) and (e) of the NCAT Act the appeal should be allowed, the 7 February 2024 order set aside conditionally and the Tahany proceedings remitted to the Consumer and Commercial Division for consideration of the question of whether they should be permanently stayed by the operation of the principles of Anshun estoppel and the doctrine of abuse of process arising from the failure of Tahany to have raised its claim in the Shandil proceedings as required by order 2 of the 19 June 2023 orders. The parties should be permitted to adduce evidence on this question. The evidence of Mr Shandil may well include whether he would have sought to amend the Shandil application to include a claim for damages for breach of the tenancy agreement by Tahany. The evidence of Tahany may well include the circumstances in which it failed to comply with order 2 of the 19 June 2023 orders and appear at the hearing on 20 June 2023 in the Shandil proceedings.
14. If the outcome of the consideration of the question remitted to the Consumer and Commercial Division is that the Tahany proceedings should be permanently stayed, then all disputes between the parties arising out of the tenancy agreement will have been determined. However, if the outcome is that the Tahany proceedings should not be permanently stayed, then the 7 February 2024 order should be reinstated.

Issue 3: whether Mr Shandil should be granted leave to appeal

Introduction

1. As the grounds that the 7 February 2024 decision was not fair and equitable and against the weight of evidence canvass the same issues, it is convenient to deal with them together.

Whether the 7 February 2024 decision was not fair and equitable and against the weight of evidence

1. in circumstances where Mr Shandil has failed to provide the evidence relied on at first instance as required by order 3(a) of the 13 March 2024 orders, it is impossible to determine whether the impugned finding of the Tribunal as to the damage to the timber floor was not fair and equitable and against the weight of evidence.
2. The other impugned findings as to the condition of the premises were not material to the findings of the Tribunal as to the liability of Mr Shandil for the break fee (which was based on the vacation of the premises before the end of the tenancy agreement and the failure to Mr Shandil to serve a valid termination notice under s 98(2) of the RT Act) and the damage to the kitchen bench.
3. It follows that we are not satisfied that Mr Shandil may have suffered a substantial miscarriage of justice because the 7 February 2024 decision was not fair and equitable and against the weight of evidence within cl 12(1)(a) and (b) of Sch 4 of the NCAT Act. Therefore, we refuse leave to appeal on these grounds.

Whether there is significant new evidence that was not reasonably available at the time of the hearing

1. We are not satisfied that the additional communications referred to in section 6Biv of the notice of appeal were not reasonably available at the time of the hearing on 7 February 2024 as they were in existence at that time. The fact that Mr Shandil choose not to adduce these additional communications as part of his evidence does not satisfy the test in Al-Daouk at [23].
2. It follows that we are not satisfied that Mr Shandil may have suffered a substantial miscarriage of justice because there is significant new evidence which was not reasonably available at the time of the hearing within cl 12(1)(c) of Sch 4 of the NCAT Act. Therefore, we refuse leave to appeal on this ground.

Orders

1. We make the following orders: 1. The time for the appellant to lodge the notice of appeal is extended to 4 March 2024. 2. Leave to appeal is refused. 3. The appeal is otherwise allowed. 4. Order 1 made on 7 February 2024 is set aside on condition that if the Consumer and Commercial Division decides that the proceedings are not to be permanently stayed then this order is to be forthwith reinstated. 5. The proceedings are remitted to the Consumer and Commercial Division for consideration of the question of whether they should be permanently stayed by the operation of the principles of Anshun estoppel and the doctrine of abuse of process arising from the failure of the respondent to have raised its claim in proceedings RT 23/23777 as required by order 2 made on 19 June 2023 in those proceedings on the basis of such further evidence as the parties may adduce.

            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 May 2024