Deputy Commissioner of Taxation v Chamberlain (1990) 26 FCR 221 at 230
Harvey v Phillips 95 CLR 235 at 243/4
The King v War Pensions Entitlement Appeal Tribunal
Source
Original judgment source is linked above.
Catchwords
Stollznow v Calvert [1980] 2 NSWLR 749 at 753FDeputy Commissioner of Taxation v Chamberlain (1990) 26 FCR 221 at 230Harvey v Phillips 95 CLR 235 at 243/4The King v War Pensions Entitlement Appeal Tribunalex parte Bott 50 CLR 228 at 249Re Minister for Immigration and Multicultural Affairsex parte MIAH 206 CLR 57 at [213]Kesarmal S/0 Letchman DAS v N.K.V. Valliappa Chettiar S/0Nagappa Chettiar [1954] 1 WLR 380 at 381
Judgment (4 paragraphs)
[1]
REASONS FOR DECISION
On 27 January 2015 James Shelton and Lynne Shelton (the landlords) lodged a notice of appeal against orders made by the Tribunal on 14 August 2014. On that day the following order was made by consent and without any admission or finding of liability:
The landlord, James Shelton and Lynne Shelton care of Ray White Real Estate, Cnr Cable Avenue and Brisbane Street Tamworth NSW 2340, is to pay the tenant, Johnathon Dean Phoo care of NEWTAAS 161 Rusden Street Armidale NSW 2350, the sum of $10,000.00 on or before 20 - Sept - 2014.
In the notice of order dated 14 August 2014, the reasons for the above order were stated as follows:
Agreed full and final settlement of all matters in dispute between the parties $10,000.00.
NOTATION:
As part of this full and final settlement, the landlord agrees that no further action will be taken to recover $4,007.60 owing for rent.
The tenant had leased premises in Tamworth from the landlords and was occupying them in March 2014. On 27 March 2014 the Tribunal made a number of orders by consent in an application file number RT14/14189, being an application made by the landlords for orders against the tenant.
Those orders included orders that:
1. the residential agreement was terminated on 10 April 2014 with possession to be given to the landlords on the date of termination;
2. the order for possession was suspended until 10 April 2014;
3. the tenant was to pay the landlords a daily occupation fee at the rate of $42.86 per day from the day after the date of termination, namely 11 April 2014, until the date vacant possession was given to the landlords;
4. the tenant was to pay to the landlords the sum of $2,357.30 by making a payment of $800 on 4 April 2014 with the balance to be paid on or before 9 April 2014.
On 6 May 2014 the tenant was evicted from the premises by the sheriff.
On 21 May 2014 the tenant lodged in the Tribunal, a tenancy application seeking orders under paragraphs 187 (1) (c), (d) and (j) of the Residential Tenancies Act 2010. Those paragraphs empower the Tribunal to make orders for the payment of an amount of money; as to compensation; and directing a landlord to give to a former tenant access to residential premises for the purpose of recovering goods of the former tenant.
In that application, the tenant gave his reasons for requesting the orders in the following terms:
I was evicted from [the premises] on the 6th May by the sheriff. I was told to pack a bag and I could re-enter the property at a later date to collect my belongings. I received a text message at 12.13pm on the 7th May stating I could enter the property at 10.00am on the 8th only for one hour. I called Lorraine asking could it be another time as I couldn't get a truck and had no one to assist me in moving heavy items. I was then contacted by Malcolm Campbell on the 12th May saying I could meet him at the property on the 13th May at 4.3pm for an hour by text message, I then asked would it be OK to do it on the 15th with no reply on the 15th May. I was told by text message everything went to the tip which was not true as I drove past the property and they still had my belongings on the veranda. Everything was in the house including very personal documents.
The notice of appeal lodged with the Tribunal by the landlords showed their representative as Malcolm Campbell, Ray White Tamworth. The notice of appeal was signed by Mr Campbell as the landlords' representative.
The grounds of appeal are stated in the notice of appeal as follows:
The applicant has suffered a substantial miscarriage of justice in that the decision was not fair and equitable. The applicant seeks to extend the time for the bringing of this appeal to the date of filing.
The notice of appeal gave the following reasons why the appeal panel should grant leave to appeal:
1. The tenant had a tenant advocate representing him in the Tribunal in which he produced sections of the Act and previous cases which he presented to the member at which time it became extremely evident that the member hearing the case was not familiar with the sections of the Act and I believe became intimidated by the tenant advocate …. to the extent that I do not believe that a fair hearing of all facts was given.
2. The evidence that was submitted by the tenant advocate on behalf of Mr Phoo had critical points left out which I was unable to present on the day.
The following explanation was given in the notice of appeal as to why the notice was not lodged within the time limit:
We were only made aware on 10 December 2014 that there was an avenue to ask for the case to be set aside or even an appeal process. After the Tribunal hearing on 14 August we sought legal advice from two separate law firms from which we were told on both occasions that the next step was to go to the Supreme Court, clearly not an option. We first applied to have this matter set aside but have since discovered this is the right avenue.
Mr Campbell completed the statutory declaration which is part of the notice of appeal by stating that the particulars set out in the notice of appeal form were true and correct.
Part of exhibit C on the hearing before the appeal panel, comprised written submissions on behalf of the tenant. In paragraph 20 of those submissions it is recorded:
"The Appellant noted in the call-over hearing that he 'felt bullied'. It is unclear who he felt bullied by, as the Respondent has not been served with the original application."
Exhibit B before the appeal panel comprised a statutory declaration made by Mr Campbell on 3 March 2015. In paragraph 3 of that declaration Mr Campbell stated:
I truly believe that the outcome was not a fair and equitable result and that I was bullied by both the Member and the Tenant Advocate into making a decision to settle this matter on behalf of the Sheltons. Within the attached transcript of the Tribunal hearing on 14th August 2014, refer to page 12 and 19 of Annexure B.
Mr Campbell appeared for the landlords on the hearing of the appeal. The landlords were also present. During the hearing, the appeal panel asked Mr Campbell, was it the landlords' case that he signed the agreement under duress. Mr Campbell confirmed that that was the case which was made by the landlords.
In another part of the notice of appeal there has been written on behalf of the landlords:
I have attached a timeline of significant events throughout the tenancy and termination period. I have also attached Annexure A where highlighted you will see a text message that was left out by the tenant advocate and makes up critical evidence of the case.
Attached to the notice of appeal was a one and a half page timeline of numerous events relating to the tenancy, a third of a page comprising a timeline of matters between 18 February and 6 May 2014 relating to the tenancy and a series of text messages between the tenant and Mr Campbell between the dates 12 and 15 May 2014. Highlighted in this document is the following text message dated Tuesday 13 May 2014, which was described in the notice of appeal as making up critical evidence:
Tuesday 13 May 2014
Hi John, Unfortunately does not suit. Please bare (sic) in mind that this is the 3rd time that you have cancelled, now and the property needs to be emptied and cleaned immediately. We also need to sort out the rent situation as there has been no effort to rectify that. Thanks, Mal.
The hearing of the tenant's application commenced before the Tribunal on 14 August 2014. Mr Campbell appeared on behalf of the landlords and Mr Safi-Westendorf appeared for the tenant. A copy of the transcript of what was said on the hearing of that application was attached to the statutory declaration made by Mr Campbell on 3 March 2015.
During the hearing the Tribunal member stated that she understood that the tenant made a claim of $5,540.03 for economic loss which was the value of the furniture and appliances disposed of, and there was a claim of $15,000 for non-economic loss (transcript page 11). This non-economic claim was in respect of inconvenience claimed to have been suffered by the tenant.
The Tribunal member asked Mr Campbell what was the landlords' defence to this. He answered to the effect that there was a dispute as to quantum but "as far as the liability we believe that we have done everything as per we were meant to ….. We even went, as far as the notices that were required, Lorraine spoke to a lady . from here to the CTTT and was advised that the tenant had failed to remove items on two separate occasions". He was interrupted in his reply by the member who stated that the Tribunal does not and is not permitted to give anyone advice. Mr Campbell responded that that was the advice that (Lorraine) had received and he went on: "We just rang to check that we were doing the right thing and we just said that this is the circumstances we are now in, what's the correct procedure?" (transcript pages 11 and 12).
Ms Cox, who is the property manager of Ray White Tamworth then stated: "which is exactly what we were advised and there were …." The member then asked Ms Cox who did she speak to and Ms Cox said she rang the CTTT and could not remember her name (transcript page 12).
The member stated that she was going to bring the Deputy Registrar to the hearing room "as this is a very serious allegation". The Deputy Registrar then came to the hearing room and the member said: "Ms Cox has made a very serious allegation of negligent advice being given by a member of the Registry team, unidentified, I would like you to hear it" (transcript page 12).
Ms Cox then made the following statement:
"I rang the number down here, the number in the office I spoke to. I can't remember her name. I spoke to a female officer working here. I explained what had been happening with our property and that we had had the tenant removed. I said we had given him two times so far to remove the items and both times he had said that he couldn't do it. What do we do now, where do we go? She said that as he had been given two opportunities to remove the goods, that's all he needs to be given and we could tell him and just send a text message to him that the goods are able to be removed as he was given two opportunities and after that we are able to have the goods removed" (transcript page 12).
The member then asked the Deputy Registrar to tell everyone present what was the Tribunal's policy about Tribunal staff giving advice. The Deputy Registrar then made a detailed and lengthy statement which opened with the words: "The role of the Registry is not to give advice" (transcript page 13).
The hearing continued and during the cross examination of the tenant by Mr Campbell, Mr Campbell in effect made a statement to the tenant which did not ask him a question and the member then asked Mr Campbell was that a statement or a question. The following interchange then took place between Mr Campbell and the member:
Mr Campbell: That's, the question was, if he paid, does he agree that if he paid the rent and abided by the lease we wouldn't be in this situation.
Member: Do you think that justifies contravention of the law by the real estate agent?
Mr Campbell: Well that's, I might be looking at it a different way, but that's, I don't know where we contravened the law and I …..
Member: Have you got a copy of section 127, the landlord or the landlords' agent must give the former tenant notice that the goods will be disposed of after 14 days. Was that done?
Mr Campbell: No.
Member: No. Or 90 days in the case of personal documents. I think photographs are included in that definition aren't they?
Mr Safi-Westendorf: Yes they are.
Member: After the day on which the notice is given unless they are first claimed.
Mr Safi-Westendorf: Member, I also refer you to section 132, 134, the respondents could have sought direction from the Tribunal in regards to this matter. And I will outline that more in the submission at this time ….
Member: I've been a Tribunal member for over 12 years and I have never seen such a serious contravention of the Act by a licensed real estate agent.
Mr Campbell: All I can respond to that is simply that, we believe we do everything that we can and within the law and we do the right thing to try and do it all at the right time, hence the phone call to CTTT which is the direct number here and that was the advice that we were given. So I understand what the, what has been said but …. (transcript page 17).
On page 16 of the transcript the Tribunal member asked Mr Campbell did he agree that in disposing of the tenant's goods there was no disposal notice given under section 127. Mr Campbell responded that "We actually contacted Johnathon by phone to inform him". The member asked him where was the evidence of that and was it in one of the statutory declarations that he had placed before the Tribunal. He answered in the negative.
The appeal panel notes that in none of the three timelines referred to above which are attached to the notice of appeal, is there an entry which states in effect that the tenant was given notice that his goods would be disposed of after 14 days unless they were first claimed.
The appeal panel is of the view that Mr Campbell would have realised from the discussion that he had with the member which is recorded at page 17 of the transcript, that the member was reading section 127 of the Residential Tenancies Act and that that section required a landlord to give a former tenant notice that the tenant's goods would be disposed of after 14 days. The appeal panel finds that at the time of that discussion with the member, Mr Campbell knew that no such notice had been given to the tenant.
At page 17 of the transcript Mr Safi-Westendorf referred to a submission that he had made that the real estate agents withheld some personal items at their office, "rent for ransom is not allowable, Conveyancing Act 177A. That was done in an effort to try and get the tenant to pay some arrears owing. I have never seen anything like this either … but at the end of the day, it comes down to the law." The transcript continues and records the following;
Member: Unrepresented landlords occasionally contravene the Act in relation to disposal of goods.
Mr Safi-Westendorf: But not from a licensed agent.
….
Mr Safi- Westendorf: … but at the end of the day it comes down to the law …. So many sections of the legislation have not been complied with by a licensed real estate agent and the standard, this falls well short of the standard of a licensed real estate agent.
Member: Mr Campbell, do you want to have any confidential conciliation talks with Mr Safi-Westendorf at all?
Mr Campbell: I am happy to do so.
Later on page 18 of the transcript the following is recorded:
Mr Campbell: …. Can I just mention briefly here in relation to that, we have had numerous phone calls with Mr Phoo the only thing that he really requested was the laptops, which we kept …
Member: It's no excuse. There's an Act which says this is what you must do in relation to uncollected goods.
Mr Campbell: Yep.
Member: And you didn't do it and that's why we're here.
Mr Campbell: I accept that .. however, but as far as the claim for withholding a laptop until rents been paid, no, the laptop was at the office.
Member: Well that's kind of, OK, I'll accept that from you. It would be terrible if it was said, but I accept that from you.
Mr Campbell: And the paperwork was requested to be held.
Mr Safi-Westendorf: Member, can we seek a financial concilitation.
The transcript continued at page 19 as follows:
Member: Yes. I'll just say this, in due course I will be giving a decision on this, a reserved decision and that decision will be published on the legal research websites. And I may even refer the matter to the Commissioner for Fair Trading for possible prosecution. OK.
Mr Safi-Westendorf: Thank you member.
Member: Yes, yes, Mr Safi-Westendorf, what do you want to ask me?
Mr Safi-Westendorf: .. I'm not sure what the respondent has in regards to instructions for their settlement, if we settle. But will settlement affect the prospects of further actions taken by …
Member: When I said that I would refer the matter, I was thinking of referring it, if the matter settles I will not refer it.
Mr Safi-Westendorf: Yes, OK. That's all we've really got.
Member: Thank you.
The parties held a conciliation meeting and a conciliation report to Tribunal was written out and signed by the tenant and Mr Campbell. The report recorded:
"For their own business, personal and private reasons agree in order to bring to an end these proceedings and to finalise the matters in dispute between them:"
The following was then written under those words:
"$10,000 in compensation to be paid by 20 September in one payment being full & final settlement.
The landlord agrees that no further action will be taken to recoup $4,007.60 of amount owing."
[2]
Extension of time to file notice of appeal
The order which is sought to be appealed was made by consent on 14 August 2014. Mr Campbell was acting in the Tribunal on that day for the landlords and he gave the necessary consent.
Rule 25 (4) (b) of the Civil and Administrative Tribunal Rules 2014, relevantly provides that unless the Tribunal grants an extension under section 41 of the Civil and Administrative Tribunal Act 2013 (the Act), an internal appeal must be lodged against a decision made in residential proceedings, within 14 days from the day on which the appellant was notified of the decision. The appeal has proceeded on the basis that the landlords were notified of the decision on 14 August 2014 or shortly thereafter. The notice of appeal was not filed until 27 January 2015. In his statutory declaration referred to above, and which was exhibit B on the hearing of the appeal, Mr Campbell stated that he asked two separate law firms their advice to see if there was any way to appeal the decision. He gave the name of each solicitor and the name of each firm. The first solicitor he spoke to was in Sydney and he spoke to him on 14 August 2014. The second solicitor was in Tamworth and he spoke to him on 26 August 2014. Both solicitors informed him that the only way that you could appeal a Tribunal matter was to take it to the High Court.
In that statutory declaration Mr Campbell went on to say that he continued to search and explore avenues to try and find a way to have the matter reheard. He eventually found out that there was a way to appeal a Tribunal matter only to find out that he had exceeded the time limit to submit the required form from the NCAT website. He also stated that he was unaware there was any avenue to appeal a decision or outcome resulting from a Tribunal hearing as this was personally only his second time at a Tribunal and all of the other times that his office has appeared, there was never a reason to appeal a decision. The solicitor acting for the lessee did not seek to cross examine Mr Campbell.
The appeal panel accepts this evidence in the statutory declaration.
The notice of appeal gave the following explanation as to why the landlords required an extension of time:
"We were only made aware on 10 December 2014 that there was an avenue to ask for the case to be set aside or even an appeal process. … We first applied to have this matter set aside but have since discovered this is the right avenue."
Section 41 of the Act gives power to the Tribunal to extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction and such application may be made even though the relevant period of time has expired.
The considerations that will generally be relevant to an appeal panel's consideration of whether to grant an extension of time in which to lodge a notice of appeal were considered by an appeal panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. It was there stated that those considerations include:
1. the discretion can only be exercised in favour an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant;
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;
3. generally, in an application for an extension of time to appeal the appeal panel will be required to consider:
1. the length of the delay;
2. the reason for the delay;
3. the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
4. the extent of any prejudice suffered by the respondent to the appeal;
5. 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.
If the solicitors who gave advice concerning an appeal were negligent, there is authority for the proposition that that negligence should not be attributed vicariously to blameless clients when questions of delay are relevant (Stollznow v Calvert [1980] 2 NSWLR 749 at 753F). The appeal panel notes however that it has not been provided with a full explanation as to the reason for the delay between 10 December 2014 (see paragraph 10 above) and 27 January 2015, the date when the notice of appeal was filed.
The appeal panel will now consider whether the landlords have a fairly arguable case. This will involve the question of the alleged duress. Thereafter it will be necessary to consider whether a refusal to extend the time for filing a notice of appeal, will work an injustice upon the landlords.
[3]
The alleged duress
As we understand it, the case sought to be made by the landlords is as follows:
1. Mr Campbell entered into and signed the agreement which is recorded in the conciliation report to Tribunal;
2. he did so under duress;
3. the duress was brought about by the words spoken by the Tribunal member and which are set out in paragraphs 24, 29 and 30 above. In particular the words in paragraph 30: "I may even refer the matter to the Commissioner for Fair Trading for possible prosecution" and "I was thinking of referring it, if the matter settles I will not refer it" are particularly relied upon; and
4. in those circumstances the orders made by the Tribunal on 14 August 2014 should be set aside.
At the hearing of the appeal, neither the landlords nor Mr Campbell gave oral evidence.
In his submissions to the appeal panel, Mr Campbell stated in effect that from the time the member said "We don't give advice", she referred to "us" as basically liars; she shut him down and stopped him presenting his case. He said he was forced to enter into the agreement under duress. He had been 20 years a real estate agent. He was in such a state that he could not do anything because he feared prosecution.
A court may set aside an order, made by consent and intended to carry out an agreement between the parties, upon any ground on which the agreement itself might be set aside (Deputy Commissioner of Taxation v Chamberlain (1990) 26 FCR 221 at 230). Duress is one such ground (see Harvey v Phillips 95 CLR 235 at 243/4).
When the Tribunal deals with an application where it has to make a decision, it must act judicially. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice (see The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott 50 CLR 228 at 249).
If a tribunal fails to act judicially it would be failing to act with procedural fairness. Such a failure involves an error of law (see Re Minister for Immigration and Multicultural Affairs; ex parte MIAH 206 CLR 57 at [213]).
The first matter to be noted in relation to the alleged duress is that the statements by the Tribunal member, which are complained of, were directed to Mr Campbell and not to the landlords.
The next matters to be noted are the reasons given in the notice of appeal as to why the appeal panel should grant leave to appeal. The appeal panel concludes from the way the reasons are expressed, that they are Mr Campbell's reasons as to why leave to appeal should be granted. They are set out in paragraph 9 above. It is there stated that Mr Campbell believed that the Tribunal member became intimidated by the tenant advocate who appeared for the tenant. It was also said that it became extremely evident that the member was not familiar with the sections of the Act. There is nothing stated there about duress and there is no mention anywhere in the notice of appeal that Mr Campbell or the landlords were subject to duress.
Paragraph 3 of the statutory declaration made by Mr Campbell on 3 March 2015 is in the following terms:
"I truly believe that the outcome was not a fair and equitable result and that I was bullied by both the Member and the Tenant Advocate into making a decision to settle this matter on behalf of the Shelton's (sic). Within the attached transcript of the Tribunal on 14th August 2014, refer to page 12 and 19 of Annexure B."
Annexure B to that statutory declaration was the 19 page transcript which started with the commencement of the hearing of the application and concluded a few lines after the statement made by the member: "If the matter settles I will not refer it."
Mr Campbell has not provided to the appeal panel any evidence as to what the tenant's tenant advocate is alleged to have said which would amount to duress. Page 12 of the transcript does not record any statement made by the tenant advocate. The statements of the tenant advocate which are recorded on page 19 of the transcript do not, in the appeal panel's view, amount to duress. All that appears on page 19 is the following:
"Member: Yes. I'll just say this, in due course I will be giving a decision on this, a reserved decision and um that decision will be published on the legal research websites. And um I may even refer the matter to the Commissioner for Fair Trading for possible prosecution. Okay.
Mr Safi-Westendorf: Thank you Member.
Member: Yes, yes Mr Safi-Westendorf, what do you want to ask me?
Mr Safi-Westendorf: Um, if I'm not sure what the respondent has in regards to instructions for their settlement, if we settle. Um but will settlement effect (sic) the prospects of further actions taken by …
Member: When I said that I would refer the matter? I was thinking of referring it, if the matter settles I will not refer it."
Mr Safi-Westendorf: Yes, okay. That's all we've really got.
Member: Thank you.
Duress can occur even if the threat is made by a third party (Kesarmal S/0 Letchman DAS v N.K.V. Valliappa Chettiar S/0 Nagappa Chettiar [1954] 1 WLR 380 at 381).
Although not stated by the landlords or Mr Campbell in the notice of appeal or otherwise, it appears to the appeal panel that the case that the landlords want to propound is that the member threatened Mr Campbell (and the landlords) when she spoke the words complained of, that if the matter were not settled she would think about referring the papers to the Commissioner for Fair Trading for possible prosecution of Mr Campbell.
In Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366, Lord Scarman said this:
"The authorities on which these two cases were based reveal two elements in the wrong of duress: (1) pressure amounting to compulsion of the will of the victim; and (2) the illegitimacy of the pressure exerted. There must be pressure, the practical effect of which is compulsion or the absence of choice. Compulsion is variously described in the authorities as coercion or the vitiation of consent. The classic case of duress is, however, not the lack of will to submit but the victim's intentional submission arising from the realisation that there is no other practical choice open to him."
In so far as it might be argued that Mr Campbell had no other practical choice available to him, the appeal panel rejects that argument. He did have such a choice. He was in a position of conflict of interest between the interests of the landlords, who he was representing, and his own interest. What he was able to do and what he should have done was discontinue acting for the landlords.
It was in the interest of the landlords to defend the claim brought by the tenant. It was in the interest of Mr Campbell to settle the claim so as to avoid the possibility of the papers being referred to the Commissioner for Fair Trading.
In so far as it might be argued that the landlords had no other practical choice available to them, the appeal panel rejects that argument. They did have a practical choice. They could have continued to contest the tenant's claim. If that resulted in the Tribunal member referring Mr Campbell's conduct to the Commissioner for Fair Trading, then so be it. But that was not a matter which concerned the landlords.
The appeal panel therefore concludes that the statements made by the member did not amount to duress and is of the view that the landlords do not have a fairly arguable case.
[4]
Will refusal of an extension of time work an injustice upon the landlords?
During the hearing before the member, Mr Campbell admitted that no notice under section 127 of the Residential Tenancies Act 2010 had been given to the tenant. That section requires that a landlord or landlord's agent must give the former tenant notice that the goods will be disposed of after 14 days or after 90 days in the case of personal documents.
As we understand it, there is no dispute that apart from a computer, the tenant's household furniture, household items, clothes and personal items were disposed of by the landlords through their real estate agent. It therefore appears that the landlords committed the tort of conversion in respect of all of those items and thus would have been liable to compensate the tenant for the value of them.
The landlords may have been given negligent advice as to whether or not they could lodge in the Tribunal a notice of appeal but the fact of the matter is that the notice of appeal was filed almost five months out of time and during that period the tenant had a vested right to retain the judgment unless the current application is granted. The appeal panel is of the view that there is no material before it upon which it can be satisfied that to refuse the application by the landlords would constitute an injustice.
The appeal panel is therefore of the view that the application for an extension of time for the filing of a notice of appeal should be dismissed.
The appeal panel therefore makes the following orders:
1. the application for an extension of time to file a notice of appeal made on 14 August 2014, is dismissed.
2. the appeal is 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: 24 June 2015