Shariful v Freitas

The nature of the appeal

1. It is pertinent to outline the nature of the appeal we are dealing with, to point out the hurdles that the appellant must overcome in order to succeed and to point out that this is not an occasion for parties to attempt to have their claims and arguments heard and determined afresh. As to this, on the appeal both parties sought to rely upon new material none of which they contended was not reasonably available at the time of the Tribunal hearing.
2. The nature of the right of appeal is described in s 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Under that section, a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, as this is, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: …..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)
3. Furthermore, ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1 issues of principle; 2 questions of public importance or matters of administration or policy which might have general application; or 3 an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4 a factual error that was unreasonably arrived at and clearly mistaken; or 5 the Tribunal having gone about the fact- finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, See Collins v Urban [2014] NSWCATAP 17 at [84 (2)]

Grounds of appeal

1. In his Notice of Appeal, dated 4 May 2023, lodged on 5 May 2023, the appellant raised two grounds of appeal in support of his application for leave to appeal on the ground that the decision was not fair and equitable. These can be fairly summarised as follows: 1. The Tribunal, incorrectly, took account of losses relating to disruption to the wife's business because she was unable to store and use business stock and home office materials at the appellant's property (Ground 1). 2. There was no quantifiable evidence provided of actual emotional distress (Ground 2).
2. In the Notice of Appeal, the appellant also sought leave to appeal on the ground that there was significant new evidence now available that was not reasonably available at the time of the hearing. The evidence relied upon was an email from Ms Freitas sent to the appellant on 4 May 2023 which the appellant contended showed that Ms Freitas was in not suffering from emotional distress (Ground 3).
3. When parties to an appeal do not have legal representation, the Appeal Panel should consider whether there is a ground of appeal or a basis for leave to appeal arising from the material put forward by the appellant which has not, however, been raised by the appellant. In Cominos v Di Rico [2016] NSWCATAP 5, at [13], the Appeal Panel said: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice".
4. In taking this approach, we have considered the principles concerning an appeal set out in House v The King [1936] HCA 40; (1936) 55 CLR 499, at 504-505 because the appeal concerns a challenge to an evaluative conclusion as to the quantum of damages in respect of which the law tolerates a range of outcomes; see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713; Singer v Berghouse (1994) 181 CLR 201 at [28].
5. In this regard, as was the case in the recent decision of the New South Wales Court of Appeal in Scenic Tours Pty Ltd v Moore [2023] NSWCA 74, delivered on 23 April 2023, we have considered the question whether the award of $5,000 was manifestly excessive (Ground 4).
6. We have also had regard to the other matters referred to in House v The King, namely that: 1. It is not sufficient that the appellate body considers that, if they had been in the position of the primary judge, they would have taken a different course. 2. It must appear that some error has been made. If the Tribunal acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some material consideration, then the Tribunal's determination should be reviewed and the appellate body may exercise its own discretion in substitution for the Tribunal's if it has the materials for doing so. It may not appear how the Tribunal has reached the result embodied in its order, but, if upon the facts it is unreasonable or plainly unjust, the appellate body may infer that in some way there has been a failure properly to exercise the power which the law reposes in the Tribunal at first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the power is reviewed on the ground that a substantial wrong has in fact occurred.
7. At the commencement of the hearing of the appeal, we confirmed with the appellant that these were the four grounds of appeal that he wished to pursue. Nevertheless, during the course of his submissions, he referred to three further matters to which some reference was made in the written material he had provided on the appeal since lodging the Notice of Appeal (this was confirmed to be the material provided with an email sent on 17 May 2023 at 11:25 am and a bundle of documents (31 pages), lodged on 9 June 2023, and described on the first page of that bundle as "Appeal Pack-Neon Shariful-Bundle 2).
8. These three additional matters, which we treat as additional grounds of appeal, can be fairly summarised as follows: 1. New evidence presented on appeal by the respondents concerning expenses from a psychologist was, or may be, fabricated (Ground 5). 2. There was no residential tenancy agreement made between the parties (Ground 6). 3. The Tribunal was incorrect to reject the landlord's argument that the respondents' claim should be rejected because of the harassment he received from Ms Freitas after he cancelled the tenancy arrangement (Ground 7).

Extension of time in which to appeal

1. Because this is an appeal from a decision made in residential proceedings, under r 25 (4) (c) of the Civil and Administrative Rules 2014 (NSW) (the NCAT Rules) the time period to file the appeal was 14 days from the date the appellant was notified of the decision or given reasons for the decision (whichever is the later), namely, as is uncontroversial in this case, 19 April 2023.
2. Taking account of the reckoning of time provision in r 6 (2) of the NCAT Rules, this 14- day period expired at midnight on 3 May 2023 - the appeal was lodged on 5 May 2023.
3. The appellant asks for the requisite extension of time. Under s 41 of the NCAT Act, the time period to lodge an appeal may be extended.
4. The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation 2014 NSWCATAP 22 at 22. In that case the Appeal Panel said that the time limit should generally be strictly enforced but that was not to say that exceptions should not be made where the interests of justice so require (at 21). The Appeal Panel added (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) 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.
5. We consider that the necessary extension of time in which to appeal should be granted in view of the short delay, the explanation provided, that the point raised by Ground 4, in particular, is fairly arguable (as appears below), and that many of the other grounds of appeal are related to this point.

Grounds 3, 6 and 7 of the appeal

1. We can deal with Grounds 3, 6 and 7 of the appeal in brief terms.
2. As to Ground 3, whilst the email relied upon was new evidence, which was, clearly, not available at the time of the hearing (it was sent on 4 May 2023), it is not capable of being of any probative weight concerning the Tribunal's assessment as to Ms Freitas's relevant state of mind at the time of the relevant events in 2022.
3. The email was sent a number of months after the relevant events, and after the Tribunal's decision of 19 April 2023, and it said nothing about her state of mind at the relevant time in 2022. It simply stated: Hi Neon, how are you? Based on the Tribunal's decision, I'll give you until the end of the week to pay what you owe me. The money should be paid immediately, and I haven't received yet. I already have the contact of a debt collector, wch (sic) will be engaged if you don't pay me by 06/05. Here is [relevant bank account details given] Once you do the payment, I would like to see the receipt. Thank You
4. As to Ground 6, the appellant's submissions did not address the basis upon which the Tribunal had arrived at its conclusion that a residential tenancy agreement had been entered into, prior to and regardless of any issues concerning the subsequent signing of a formal lease agreement, signed by Ms Freitas and the appellant's agent. We can see no error in the Tribunal's reasoning concerning the making of the residential tenancy agreement.
5. As to Ground 7, the Tribunal was correct in stating that, as a matter of law, the harassment allegation by the appellant could not disentitle the respondents from recovering the damages the subject of the award made by the Tribunal (at [45]).
6. We refuse leave to appeal in respect of these grounds.

Grounds 1, 2 and 4

1. We have referred above to the question whether the award of $5,000 was manifestly excessive.
2. A related point was the subject of Ground 1. On one reading of the Notice of Appeal, the complaint by the appellant was that Tribunal had awarded losses incurred by Ms Freitas's business, but clearly it had not done so. At the hearing of the appeal, the appellant clarified that his point raised by Ground 1 was that the Tribunal took into account, as it did, distress to Ms Freitas resulting from disruption to her business because stock and home office materials remained packed at the old premises. This was one of a number of sources for the distress that the Tribunal found had been suffered.
3. The appellant submitted that distress resulting from business disruption should not have been taken into account because the rental was for residential premises. He also submitted that distress from such a source should have been disregarded because, as he stated in the Notice of Appeal, "…before agreeing to rent the house to [the respondents] I asked her if the house would be used for storing business material, and she responded with a firm no."
4. As to this last matter concerning a conversation about storing business material, the appellant did not show that this was the evidence he presented to the Tribunal. Accordingly, we are not prepared to take any account of it because it is, clearly, evidence that was reasonably available at the time of the hearing.
5. We do not agree with Ground 1 of the appeal. We consider that it was reasonably open to the Tribunal to have regard to distress caused by this factor. Correctly, there was no dispute that distress was a type of damage that was a recoverable head of damage in this case and was not regarded as too remote. That is because it may fairly and reasonably be considered as arising naturally from the breach of contract in issue, or may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach: see the rule in Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145. To be liable, the appellant need not contemplate the degree or extent of the distress, nor the precise events giving rise to it, but only that this kind of reaction was reasonably in contemplation. Furthermore, the working from home feature of society since the Covid 19 pandemic provides support for the Tribunal's conclusion.
6. Another related point made by the appellant was that there was no documentary proof presented concerning the emotional and psychological impact of the cancellation of the tenancy (Ground 2).
7. As to this, the appellant emphasised the absence of any invoices presented to the Tribunal showing the consultations with a psychologist, which Ms Freitas said had occurred.
8. However, whilst the Tribunal did note that Ms Freitas gave oral evidence that loss of the tenancy had a serious emotional and psychological impact upon her, including causing reactive depression, for which she had undergone a course of therapy with a psychologist (at [29] of the reasons), the evidence which the Tribunal relied upon and found compelling was not this evidence. Rather, it was evidence concerning inconvenience, disruption, distress and disappointment (at [28] and [44] of the reasons). Furthermore, no element of the award covered the cost of consultations with a psychologist.
9. The appellant, incorrectly, submitted that oral evidence in general could be of no weight. Plainly, it was open to the Tribunal to receive and accept the oral evidence from Ms Freitas on this subject, which evidence, as summarised by the Tribunal, was understandable in the circumstances which had occurred. All the more so, where her evidence on this subject was not challenged in cross-examination, as was confirmed by the appellant at the hearing of the appeal.
10. At the hearing of the appeal, the appellant also submitted that the award was excessive, having regard to the following matters: 1. He told his agent to cancel the tenancy some five days before they actually notified the tenants-he told them to do this on 24 August 2022 but the agents did not notify the tenants until 29 August 2022, in circumstances where the tenancy was due to commence on 1 September 2022. 2. The respondents had been able to move in to new rental premises on 1 October 2022. 3. The award took no account of his own financial circumstances, his capacity to pay, the financial burden placed upon him by such an award of damages and new evidence about the financial success of respondents' business (the appellant referred to material presented by the respondents in answer to the Notice of Appeal which identified annual business revenue of some $674,000), so as to arrive at a fair and just resolution.
11. We regard the facts and matters referred to in (1) and (3) as irrelevant to the assessment of damages in issue.
12. As to the events in (1), it was up to the appellant to ensure that more timely notice of cancellation was given, regardless of any delay by his agent, for whom he must accept responsibility.
13. As to the matters in (3), even if such new evidence were available to be considered, the damages in issue are not assessed on the basis of some comparison between the financial circumstances of the appellant and the respondents, or upon the basis of an assessment of the appellant's capacity to pay or hardship in making such payment.
14. There is no yardstick by which to measure the size of the award to be made for the items of loss and damage in issue. As appears from Scenic (at [186], [196]), the assessment is very fact-rich and to be undertaken by an evaluative process applying a sense of fairness and justice. The Tribunal gave careful consideration to those facts and to the highly unexpected, unusual and difficult situation that the respondents were confronted with. The award is a substantial one for these items of damage, but we are not persuaded it is manifestly excessive.
15. We do not consider that the appellant has established that the decision was more than arguably wrong because of these related grounds, nor has the appellant established the existence of any of the other discretionary matters concerning the grant of leave to appeal. Accordingly, we refuse leave to appeal in respect of these grounds. Had we granted such leave, however, we would have rejected these grounds of appeal for the same reasons.

Ground 5

1. We refuse leave to appeal in respect of Ground 5.
2. As we have said, the background to this allegation is that Ms Freitas gave oral evidence to the Tribunal about the emotional and psychological impact of the cancellation, including that she had undergone a course of therapy with a psychologist (at [29] of the reasons). No claim was made for the cost of this therapy.
3. An invoice in respect of these services came to be presented by the respondents in their answering material to the Notice of Appeal, in which the appellant had made the point that no invoice evidencing the services provided by a psychologist had been presented to the Tribunal.
4. The invoice in issue was from "Rosemeire Ferreira da Silva", dated 1 November 2022. It gave an address for this person in the USA. It was addressed to Ms Freitas and specified charges for services supplied on 29, 30, 31 August 2022 and 1 and September 2022. Underneath the reference to these charges, it stated: This particular patient has been attending my psychological sessions for approximately a year, seeking assistance for anxiety and experiencing episodes of depression. As I observed, it became evident that additional sessions would be beneficial for her to manage the heightened stress and anxiety levels, particularly in light of the anxiety attacks she has been encountering
5. In his submissions on appeal, the appellant said: Firstly, I contest the authenticity and validity of the psychologist invoice, as it lacks essential details necessary for verification such as phone numbers or email addresses to corroborate the transaction and the involvement of a registered psychologist practitioner. If the Tribunal were to base its decision on fabricated evidence without adequate means for fact-checking, it would signify a profound failure of our judicial system to account for reality…
6. The appellant then went on to submit: 1. The stated address in the invoice lacked a state and postal code and from a Google search appeared to be an address associated with an apartment complex. 2. It is puzzling that Ms Freitas sought counselling from a psychologist based in the United States. 3. A brief search of the name reveals no psychologist by that name and a LinkedIn search reveals no individuals of that name residing in the United States. 4. The additional information on the invoice exhibits the same writing style as Ms Freitas, replete with grammar and punctuation errors.
7. The tenor of the submissions is directed at providing reasons why we should not rely upon the invoice. However, as we have indicated, the invoice was not before the Tribunal, nor do we place any reliance upon it in respect of the respondents' answer to the appeal.
8. To the extent that the appellant seeks to positively establish that the invoice was fabricated, with the consequence that this has an adverse effect on the merits of the respondents' case upheld by the Tribunal, we consider that these criticisms of the invoice and the limited investigation concerning it are wholly inadequate to permit us to arrive at such a serious finding.

Orders

1. For the above reasons, we make the following orders: 1. The appellant is granted an extension of time until 5 May 2023 in which to lodge his appeal. 2. Leave to appeal is refused. 3. The appeal is dismissed. 4. The stay order made on 19 May 2023 (Order 7) is lifted.

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: 21 July 2023