As set out in the tenant's statement the tenant contends at the time of making the 25 March 2022 orders the Appeal Panel made an oral order that he was to be provided with at least one key tag to access the building, the mailroom and the lifts. During the oral testimony of the landlord and Mr Minaway the tenant sought to ask questions directed to establishing such an oral order which I rejected.
[2]
Consideration and determination
On 25 March 2022, the Appeal Panel exercised its power to use a resolution process under s 37 of the NCAT Act. In making the 25 March 2022 orders the Appeal Panel gave effect to the agreement of the tenant and the landlord (the settlement agreement), and did not impose any condition about the activation of the key pad to the building by the landlord pursuant to s 58 of the NCAT Act. Varied order 1 to 3 complied with s 83(1) of the RT Act. Order 2 of the 25 March 2022 orders effected the dismissal of the RT 21/519769 proceedings, the RT 21/06840 proceedings, the RT 21/12130 proceedings and the RT 21/12441 proceedings. The tenant has made no application to the Appeal Panel to vary the 25 March 2022 orders on the ground that they do not fully give effect to the settlement agreement.
In contending that at the time of making the 25 March 2022 orders the Appeal Panel made an oral order, the tenant was seeking to make a collateral attack on the 25 March 2022 orders. For this reason I rejected questions asked by the tenant of the landlord and Mr Minaway as to whether the settlement agreement included a condition about the provision of a key tag and making of an oral order on the ground that this was an abuse of process.
It follows that in considering the tenant's application under cl 8 of Sch 4 of the NCAT Act the relevant orders which he must establish were not complied with by the landlord within the period specified by the Tribunal are the 1 March 2022 orders as varied by the 25 March 2022 orders.
However, I accept that it is necessary for the purpose of implementing and giving effect to the 25 March 2022 orders to construe varied order 3 as requiring the landlord to activate a key tag to permit access the building, the mailroom and the lifts by the tenant. In the absence of any time specification the landlord was required to do this within a reasonable time.
[3]
Whether the landlord failed to comply with varied order 3
Having regard to the principles in Flanagan at [33], I am satisfied that the landlord failed to comply with varied order 3 for the following reasons:
1. having regard to the 26 March 2022 at 4.13pm text a reasonable time for the landlord to activate a key tag to permit access the building, the mailroom and the lifts was by the morning of Monday 28 March 2022;
2. the most reliable as to the time the key pad was re-activated is the 28 March 2022 at 1.32pm texts. I accept that as indicated in the 28 March 2022 at 1.32pm texts the key pad was activated at that time.
I reject the contention of the tenant that he did not have access to the building subsequent to 1.32pm on 28 March 2022. As set out in [40] above, videos 1 to 4 do not establish the inability of the tenant to obtain access to the building. There was no other evidence supporting this contention. I accept the evidence of the landlord that videos 1 to 4 do not relate to the first key pad provided to the tenant by the landlord, and that he regularly and continuously accessed the premises after the reactivation of the key pad on 28 March 2022.
[4]
Whether, if the landlord failed to comply with varied order 3, any other appropriate order should made
Having regard to the principles in Mehr at [37]-[40], there is no impediment to making another appropriate order for varied order 3 by reason of the operation of cl 8(5)(b) of Sch 4 of the NCAT Act.
Having regard to the principles in Vasudevan at [26]-[31] and Minifie at [37]-[41], I have decided to refuse to make another appropriate order pursuant to cl 8(4)(b) of Sch 4 of the NCAT Act. The breach of the order was for a period of just over 90 minutes and there is no evidence that the tenant sought to enter the building during that period. There is no ground to further suspend the order for vacant possession under s 114 of the RT Act.
[5]
Whether the landlord failed to comply with varied order 6
Having regard to the principles in Flanagan at [33], I am satisfied that the landlord failed to comply with varied order 6 for the following reasons:
1. I reject the tenant's submission that the ANZ receipt is not authentic. There is nothing on its face, and particularly the font of its text and blue colour text, which suggests it is no authentic. The tenant adduced no evidence establishing that the ANZ receipt is not authentic;
2. I accept the evidence of the landlord that the payment of $1,000.00 was made at 8.10am on 26 March 2022;
3. there is no evidence that the payment of $1,000.00 was not received into the bank account of the tenant on 26 March 2022.
[6]
Whether, if the landlord failed to comply with varied order 6, any other appropriate order should made
In view of my finding in [67] above, this issue does not arise for determination.
[7]
Order
I make the following order:
1. the proceedings are dismissed.
[8]
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
[9]
Amendments
13 July 2022 - Catchwords amended - CIVIP to CIVIL
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: 13 July 2022
It is an abuse of process to bring a proceeding in order to make a collateral attack upon an unappealed decision of a court, or upon a decision which, having been appealed, has been affirmed: Smits v Loel [2014] FCA 1341 at [67]; Smits v Loel (No 3) [2015] FCA 77 at [23(b)]; McLean v Power [2013] NSWSC 193 at [14]-[15].
Credibility and the reliability of the evidence
In Flanagan v Bernasconi [2022] NSWSC 381 (Flanagan) at [33] Schmidt summarised the applicable principles where the credibility and the reliability of the evidence of parties turns on disputed conversations and actions and what various documents, the authenticity of some of which were in issue, do and do not establish:
"[33] Given the real conflict in their evidence about many matters, it is necessary to "engage with, or grapple or wrestle with the cases presented by each party" on these issues: Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [60]. Such conflicts must be resolved by "reasoning so far as possible on the basis of contemporaneous materials, objectively established facts and the apparent logic of events", as well as upon the assessment of a witness' reliability: Hutchison Construction Services Pty Ltd v Fogg; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135 at [60]."
Photographic and video evidence
In Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 (Goode) at [93]-[96] Beazley P said (Meagher JA at [179] and Leeming JA at [212] agreeing):
"[93] A matter that frequently arises in the use of photographs is that they can be deceptive, particularly in relation to perspective and distance. This was the subject of observation in Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955; [2008] NSWCA 130 where the court (Beazley and Tobias JJA, Spigelman CJ, Giles and Campbell JJA agreeing) said, at [69]-[72], that photographic evidence could not trump the direct evidence of witnesses that compelled acceptance.
[94] I had cause to review the use of photographic evidence again in Yarrabee Coal Company Pty Ltd v Lujans (2009) Aust Torts Reports 82-024; [2009] NSWCA 85 at [20]-[27] and concluded, at [28]:
'[28] … much will depend upon the photograph in question, the circumstances in which it was taken and what the evidence, if any, is in relation to the photograph. Thus, in Angel v Hawkesbury City Council [2008] NSWCA 130 the Court rejected that the photographs should have trumped the eyewitness evidence which, the Court held, was compelling: see at [69]-[70].'
[95] In Townsend v O'Donnell (2016) 78 MVR 283; [2016] NSWCA 288, there were photographs in evidence, taken after a motor accident, which depicted the place where the accident occurred and from which it was sought to estimate how long the respondent had had to take evasive action. Sackville AJA, with whom I and McColl JA agreed, said, at [52]:
'[52] … great care must be taken in interpreting photographic evidence. This is particularly the case where there is no evidence as to the precise position of the camera when the photographs were taken and the photographs themselves are indistinct.' (Footnotes omitted)
See also Warren v Gittoes [2009] NSWCA 24 at [54]-[55].
[96] In Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72, which concerned a motor accident, the appellant contended that the primary judge had failed to give adequate weight to video footage taken from a camera in a vehicle travelling behind the vehicles involved in the accident. Sackville AJA, Ward JA and Garling J agreeing, said, at [42]:
'[42] The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved.' (Footnote omitted)
See also, again in the context of video evidence, Asim v Penrose [2010] NSWCA 366 at [57]; QBE v Orcher [2013] NSWCA 478."
Renewal of proceedings
In Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 (Vasudevan) at [26]-[31] the Appeal Panel described the operation of cl 8 of Sch 4 of the NCAT Act as follows (citations omitted):
"[26] The Appeal Panel has held that cl 8 of Sch 4 is an additional, simple and practical method of enforcing, and promoting timely compliance with, Tribunal orders ...
[27] The renewal procedure is often used where there has been non-compliance with an order requiring work to be done or repairs to be made. In the context of orders requiring work to be done in performance of a contract, cl 8 of Sch 4 can be seen as analogous to the power that a Court with equitable jurisdiction has to make alternative orders, including awarding damages, where there has been non-compliance with an order for specific performance of a contract. ...
[28] By cl 8(2), cl 8 is engaged "[i]f an order has not been complied with within the period specified by the Tribunal". In those circumstances, "the person in whose favour the order was made may renew the proceedings".
[29] "When proceedings have been renewed", the Tribunal has the powers set out in cl 8(4) (a) and (b). The Tribunal may:
(1) "make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined" - par (a), or
(2) refuse to make such an order - par (b).
[30] The present appeal does not concern the Tribunal refusing to make any order, within par (b).
[31] In the light of the terms in which cl 8(4)(a) is expressed, the Tribunal can make an order within par (a) if the following criteria are satisfied:
(1) the order is "other" than the order originally made;
(2) the order is "appropriate";
(3) the order is one that the Tribunal "may make … under [the NCAT] Act or enabling legislation";
(4) the order is one "as [the Tribunal] could have made when the matter was originally determined"."
In Minifie v Maxwell [2020] NSWCATAP 30 (Minifie) at [37]-[41] the Appeal Panel explained the operation of cl 8 of Sch 4 of the NCAT Act as follows:
"[37] The provisions of Cl 8 Sch 4 of the NCAT Act are "an additional, simple and practical method of enforcing, and promoting timely compliance with, Tribunal orders": Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 at [83]; Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 at [26] ('Vasudevan').
[38] In making orders that are "appropriate" in renewal proceedings, the Tribunal may have regard to the orders originally made; the circumstances of non-compliance with those orders; the fact of the renewal application; and all relevant circumstances whether they occurred before or after the time the matter was originally determined: Vasudevan at [34]-[35]. In Vasudevan, the Appeal Panel stated at [35]:
…A renewal application is, however, designed to deal with a situation where there has been non-compliance with the original order that the Tribunal thought was appropriate when the matter was first determined. The circumstances will inevitably have changed since that time, if for no other reasons than because there has been non-compliance with the order that had been made. What was appropriate originally may well not be appropriate at the time of the hearing of the renewal application. To limit the orders that could be made on renewal to those that would have been appropriate when the matter was originally determined would be likely to prevent the Tribunal from doing justice between the parties, having regard to the non-compliance with the original order and to any other circumstances that had changed materially since the proceedings were originally determined. This would render the right to renew proceedings ineffective in a significant number of cases.
[39] The Tribunal has a wide discretion in renewal proceedings to determine what are appropriate orders, including the power to make orders that could not have been made in the original proceedings because there was no power to make a particular order at that stage, but such a power has been enlivened by subsequent events: Vasudevan at [41]-[43]; Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 at [43]-[45]; [54] ('Bondarek').
[40] In Bondarek, the Appeal Panel held that determination of what are "appropriate" orders in a renewal application does not involve re-hearing the original proceedings. The Appeal Panel stated at [44]-[45]:
This interpretative assistance reinforces the purpose, object and context of the renewal power. It is not simply an aid to enforce the Tribunal's existing orders as clause 4(a) makes clear in its reference to "make any other appropriate order". There is no restriction in the clause to the existing material before the Tribunal or its existing findings on that material.
Rather, it is to consider what to do next given a non-compliance, but not to rehear the substantive merits already determined, and to do that on the basis of material put forward by the parties relevant to the issue of what to do next. As was said in Akratos v Papadopoulos [2016] NSWCATAP 139 at 36:
the purpose of the renewal proceedings was to consider, in light of the fact that the original order was not complied with, what other appropriate orders it could have made when the matter was originally determined and not to reconsider the substantive merits of the respondent's building claim.
[41] By reason of the operation of Cl 8 (1) and (2) of Sch 4 of the NCAT Act, for the Tribunal to have jurisdiction: (i) the party bringing the renewal application must be a "person in whose favour" the order in the original proceedings was made; and (ii) the renewal proceedings must be filed in the Tribunal within 12 months of the "end of the period" in which the order (or orders) in the original proceedings was to be complied with."
The principles in Goode at [93]-[96] are applied in the Tribunal: X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181 at [57]-[65].
In Mehr v Lau [2022] NSWCATAP 15 (Mehr) at [37]-[40] the Appeal Panel explained the operation of cl 8(5) of Sch 4 of the NCAT Act:
"[37] The effect of cl 8(5) is to prevent renewal proceedings where an order not complied with is suspended, is the subject of an appeal (and therefore may be set aside or varied for example) or has been varied by an Appeal Panel (and the renewal proceedings assert that the original, unvaried order, was not complied with).
[38] The words "has been the subject of an appeal" in cl 8(5)(b) do not mean that the order not complied with was merely considered in an appeal. If that were correct, then a party could fail to comply with an order and then prevent the bringing of renewal proceedings (and further orders) by bringing an unsuccessful appeal from that (original) order.
[39] The words "has been the subject of an appeal" mean that if an order is varied or set aside or otherwise changed by an Appeal Panel, then renewal proceedings cannot be brought in relation to non-compliance with the original order for the obvious reason that the original order is no longer operative. However, if an order is considered by an Appeal Panel and is left undisturbed, then it has not relevantly been the subject of an appeal.
[40] Further, if an Appeal Panel varies an order, then that varied order (which is the operative order) is not the "subject of an internal appeal". It follows, that if the varied order is not complied with, renewal proceedings may be commenced (with leave)."