Shaw v Hartman

Background

1. The tenant and the landlords entered into a fixed-term residential tenancy agreement for 12 months for premises at Manly, NSW, commencing on 28 February 2018.
2. Toward the end of that 12-month term disputes arose between the parties.
3. The landlords sought to terminate the lease by serving a termination notice on the tenant. The tenant commenced proceedings in the Tribunal numbered RT 19/10005 (the "Tenant's Application") seeking a declaration that the respondents' termination notice was of no effect pursuant to s 115 of the Residential Tenancies Act 2010 (NSW) ("RTA") as the notice was retaliatory and also seeking an excessive rent order pursuant to s 44 of the RTA on the basis that there had been a reduction or withdrawal by the landlords of goods, services or facilities provided with the residential premises.
4. Those proceedings were heard and determined by the Tribunal on 1 May 2019.
5. On this appeal the tenant said that in those proceedings she was represented by a tenant's advocate although the Tribunal's written reasons record that the tenant represented herself. As will become clear, nothing turns on this discrepancy although, had we been required to decide, we would have preferred that which is recorded in the Tribunal's reasons.
6. The Tribunal delivered oral reasons at the conclusion of the hearing and written reasons were subsequently provided.
7. The Tribunal determined that: 1. The notice of termination was valid. 2. The notice of termination was not retaliatory. 3. The residential tenancy agreement was terminated in accordance with s 84 of the RTA. 4. The residential tenancy agreement was terminated immediately and possession was to be given to the landlords on the date of termination. 5. The order for possession was suspended until 29 May 2019. 6. The tenant was to pay the landlords a daily occupation fee until vacant possession was given. 7. Rent was reduced for the period of 15 January 2019 until 1 May 2019, and the daily occupation fee was reduced by 20%, on account of the loss of amenity in the bathroom of the premises.
8. The tenant appealed (the tenant's "First Appeal"). That appeal was numbered AP 19/22584.
9. On that appeal the Appeal Panel made orders by consent on 23 May 2019. Those orders were: 1. Orders 3, 4 and 5 made 1 May 2019 in application RT 19/10005 are set aside. 2. The appeal is otherwise dismissed.
10. The Appeal Panel noted that the landlords were then able to lodge an application to terminate the tenancy having regard to orders 1 and 2 made by the Tribunal on 1 May 2019 which remained, with the apparent consent of the parties, undisturbed.
11. The landlords then proceeded to lodge such an application (the "Landlords' Application"), being proceedings RT 19/24645 in the Tribunal, seeking orders for the termination of the tenancy.
12. In those proceedings the Tribunal made orders by consent on 12 June 2019. Those orders were: 1. The residential tenancy agreement is terminated immediately and possession is to be given to the landlords on the date of termination. 2. The order for possession is suspended until 11 September 2019. 3. The tenant will pay the landlords a daily occupation fee from 13 June 2019 until the date vacant possession is given to the landlords.
13. In the meantime the landlords had also appealed the ("Landlords' Appeal") from the orders made by the Tribunal in the Tenant's Application. That appeal was numbered AP 19/25378.
14. Consent orders were made in that appeal by the Appeal Panel on 13 June 2019. Those orders were: 1. Order 7 in RT 19/1005 is set aside. 2. In substitution for Order 7 the following order is made: The landlords ... are to pay the tenant ... $920 by 27 June 2019. 1. The appeal is dismissed because it is withdrawn.
15. The tenant lodged her Notice of Appeal for this appeal (AP 19/41060, the tenant's "Second Appeal") on or about 11 September 2019. In this appeal the tenant seeks to appeal from all of the orders made in the Tenant's Application other than Order 6.
16. This appeal has not been brought within time. In residential tenancy matters the time to lodge an appeal from a decision of the Tribunal, unless the Tribunal grants an extension of time pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"), is within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later) - Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4).
17. The tenant was notified of the decision in the Tenant's Application, and given oral reasons for that decision, on 1 May 2019, as that was the date the decision was made and when oral reasons were given.
18. The tenant's Second Appeal (being the appeal with which we are concerned) was commenced a little over four months after the decision and reasons were given in the Tenant's Application.
19. The tenant says in her Notice of Appeal that she received the decision in the Tenant's Application on 1 August 2019 but this cannot be correct because the Tribunal's records record the fact that the decision and oral reasons were given on 1 May 2019, and consent orders were made by the Appeal Panel in relation to both her First Appeal and the Landlords' Appeal on 12 and 13 June 2019 respectively (by which time, at the latest, she had to have known of the decision and reasons from which those appeals arose).
20. It follows that this appeal, the tenant's Second Appeal, fails if the tenant does not seek and obtain an extension of time to lodge this appeal.
21. The principles applying to applications for extensions of time were collected in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and have been routinely applied in the Tribunal. Those principles include: 1. time limits should generally be strictly enforced because they promote the orderly and efficient conduct of proceedings, provide certainty to the parties and achieve finality in proceedings; 2. exceptions may be made when the interests of justice so require; 3. that generally, in order to obtain an extension of time, there should be material (evidence) which persuades an Appeal Panel that refusal of the application would work an injustice; and 4. the length of the delay, reasons for the delay, the appellant's prospects of success and the extent of any prejudice which would be suffered by a respondent if an extension was granted will all be considered.
22. The tenant has not provided any material in support of her application for an extension of time.
23. The tenant had been directed by the Appeal Panel on 19 September 2019 to lodge with the Tribunal and serve upon the landlords any fresh evidence upon which she relied on this appeal by 10 October 2019, and noted that the question whether an extension of time for the lodgement of her Notice of Appeal would be determined at the hearing of the appeal.
24. In her Notice of Appeal, in that section concerning an extension of time and the reasons for seeking that extension, the tenant says that she "was not given the opportunity to appeal". This is incorrect. She both had the opportunity and took that opportunity (her First Appeal).
25. The tenant next says that her tenant's advocate provided the tenant with misinformation, and that that misinformation sabotaged her right of appeal. However, no statement or affidavit supporting that allegation was lodged with the Tribunal and served upon the landlords (which would allow them to investigate that allegation and bring their own evidence on that issue if they thought necessary). To allow the tenant to give oral evidence on this matter on the appeal for the first time, without having provided a statement or affidavit setting out that evidence to the landlords by the time directed, would be unjust to the landlords who would be deprived of the opportunity to meet that case.
26. Further, the misinformation was not clearly identified, nor how and when she first became aware that she was misinformed, nor what relevance the misinformation had to the conduct of the tenant's litigation.
27. The tenant next said that she was not informed of her right to appeal at the time. Again, this is incorrect as the fact of her First Appeal demonstrates.
28. Thus, we are not persuaded by the reasons given by the tenant for seeking an extension of time in her Notice of Appeal justify granting an extension.
29. But the application has further difficulties.
30. In this appeal the tenant seeks to re-argue matters that were decided by the Tribunal in the Tenant's Application and were either not appealed from by her in her First Appeal, or were appealed from but which were subsumed by the consent orders made by the Appeal Panel on her First Appeal and the subsequent Landlords' Application.
31. Most particularly this applies to the tenant's present appeal from the termination order. In her Application the tenant alleged that the termination sought by the landlords was retaliatory. The Tribunal rejected that contention. On the First Appeal that finding (or, rather, the declaration that the termination was not retaliatory) was not challenged.
32. Further still, the tenant consented to the orders made in the Landlords' Application that the tenancy agreement was terminated immediately, and possession was to be given to the landlords on the date of termination. Having consented to the termination of the tenancy agreement there was no life remaining in an allegation that the termination was retaliatory.
33. The tenant also seeks to re-argue the matter of alleged excessive rent. That issue was determined in the Tenant's Application, was the subject of appeal in the Landlord's Appeal, and was settled by the making of consent orders in that appeal by the Appeal Panel on 13 June 2019.
34. In relation to this matter the tenant seeks leave to appeal on a question other than a question of law, on the basis that significant new evidence has arisen, such evidence not being reasonably available to her at the time of the hearing on 1 May 2019 - see Schedule 4, cl 12(1)(c) of the NCAT Act. That evidence relates to each of the matters about which the tenant complained in the Tenant's Application, and upon which she succeeded in relation to the bathroom amenities. Her success was reflected in Order 7 made by the Tribunal which said that the rent was reduced for the period of 15 January 2019 until 1 May 2019, and the daily occupation fee was reduced by 20%, on account of the loss of amenity in the bathroom of the premises.
35. The tenant failed in relation to her complaints regarding reduction or withdrawal by the landlords of goods, services or facilities in relation to the garden, windows and roof/ceiling.
36. In her First Appeal the tenant did not appeal from Order 7, that is, she did not challenge any of the Tribunal's orders and findings concerning the alleged reduction or withdrawal by the landlords of goods, services or facilities.
37. The landlords did appeal from Order 7, in the Landlords' Appeal, and the tenant consented to a reduction of the amount awarded to her, namely from $1,741.42 to $920.
38. To now seek to appeal on these issues and thus have awarded to her a sum greater than $920 would be to subvert that agreement and the orders made by the Tribunal on the Landlord's Appeal, which orders were made with the tenant's consent.
39. The tenant is bound by her agreement to the orders made in the Landlords' Application and the Landlords' Appeal. Not only is there no reason why the tenant should not be held to the orders to which she consented, to entertain this appeal would open the possibility of conflicting decisions (orders) between the consent orders made in the Landlords' Appeal and Landlords' Application, a result to be avoided - Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45.
40. In that case the majority of the High Court said: "It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment."
41. In layman's terms, a person will not be allowed to seek orders which, if the case succeeds, will conflict with orders made in an earlier case. In substance, the tenant seeks orders which would, if she were successful, conflict with the orders made in the Landlords' Appeal and Landlords' Application. We are not persuaded that this possibility should be allowed and so the appeal, if an extension of time were granted, seems to us to have no prospects of success.
42. Although we need not decide this point, we also observe that we are not persuaded that the evidence the tenant now seeks to rely upon was not reasonably available to her as at 1 May 2019, nor that it is significant.
43. In summary, the length of the delay is significant, no reasons for that delay have been provided, the tenant has not provided any material on the question of whether refusal of her application would work an injustice, on the material we do have (which we have recited above) we are persuaded that refusal of the tenant's application for an extension of time would not work an injustice and we are of the opinion that the tenant's prospects of success on the appeal are non-existent.
44. Accordingly, we were not persuaded that the tenant should be granted an extension of time to appeal. It follows that the tenant's Notice of Appeal in this, her Second Appeal, is out of time. Hence, on the day of the appeal we ordered that the appeal be dismissed.

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: 04 December 2019