Singh v Ellis

NCAT Appeal Panel|2024-10-15

Pty Ltd v Cusumano [2024] NSWCATAP 204 Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 Texts Cited: None Cited Category: Principal judgment Parties: Gurpal Singh (Appellant) Matthew Anthony Ellis (Respondent) Representation: Mr D Singh, (Agent) (Appellant) Respondent (Self Represented) File Number(s): 2024/00274811 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 11 July 2024 Before: J Levingston, Member File Number(s): 2024/00044464

Outcome of appeal

We have decided that the appeal is granted in limited respects and to the extent necessary (if at all) leave to appeal is granted. This is to correct one matter which appears to have been an oversight on the part of the primary member, with the outcome being that the landlord is entitled to the bond principal amount that was offset by the parties against the final rental amounts, but not any interest on the bond during its lodgment. The appeal in respect of the landlord's claims is otherwise dismissed.
Both parties were self-represented (the landlord by her son, as had been the case at primary hearing), there was no application for leave for legal representation and no submissions in respect of costs. The case in any event did not present special circumstances to justify a costs order as required under s 60 of the Civil and Administrative Tribunal Act 2014 (NSW) (the NCAT Act).

Background, issues, procedure

The appellant was the landlord of an apartment in a strata scheme in Maroubra, an eastern suburb in Sydney NSW. The respondent was a former tenant with an original written residential tenancy agreement dated 17 July 2019 for a fixed term of 78 weeks ending 13 January 2021 and thereafter a periodic tenancy, an original rent of $665pw and a bond lodged for $2,660. As at December 2023 the rent had increased to $850pw.
In the primary proceedings filed 30 January 2024 the landlord claimed the entire rental bond and other compensation. The primary member at final hearing on 11 July 2024 ordered the return of the entire bond to the tenant and dismissed the landlord's application, having found that the landlord had failed to establish on the required balance of probabilities that he was entitled to any part of the bond for relevant alleged breaches by the tenant or to any other relief. The primary member gave detailed written reasons.
The appeal was filed on 25 July 2024, in time.
The appellant landlord complained that the primary member severely intervened throughout the primary proceedings and belittled the landlord's case and the landlord from the outset. The landlord said that he had no fair opportunity to present his case, certain matters found by the primary member were wrong and the primary member was biassed against him.
The respondent said that the primary member gave every opportunity but the landlord was without the ability to present his case.
As said above, the landlord was represented on the appeal by her son Mr David Singh, who also represented his mother at the primary hearing. The respondent represented himself at both hearings.
On the appeal the respondent said that he had received each of the landlord's sets of documents but there was a number of provisional bundles, so it was difficult to know what to meet and for the latest documents, which were provided very late under the ordered timetable and the day prior to the appeal hearing, he had no time to prepare a response. We decided to allow the late material provisionally but subject to revisiting that position if any document was material and there was specific prejudice to the respondent from not having had the opportunity properly to deal with it.
An application filed 3 October 2024 by the landlord had been refused by a Principal Member on the papers. It had sought to have the present hearing adjourned in order that the primary member give evidence on and be required to disclose any association via a common military background between a family member of the primary member and the respondent. The application was refused on the basis of judicial immunity: Singh v Charles [2022] NSWSC 743 at [25]-[32]; Singh v Singh [2024] NSWSC 280 at [42]; O'Shane v Harbour Radio PL [2013] NSWCA 315 at [183], [263]-[264].
We dismissed a further application by the landlord filed 11 October 2024 seeking that some of the alleged questions of law in the proceedings be referred to the Supreme Court under s 54 of the NCAT Act. We gave reasons: no consent of the President of the Tribunal as required had been sought in time; if such consent was refused the matter would have wasted the present hearing time; grounds 1 to 3 sought to be referred were covered by the authority in the earlier refused application and by other established judicial authority; grounds 4 to 11, which sought the Supreme Court's determination concerning the interaction between the owners corporation's duties to maintain and repair common property, under s 106 of the Strata Schemes Management Act 2015 (NSW) (SSMA), and the landlord's obligations under the RTA to keep the tenanted premises in repair, was inappropriate to refer without the decision of the specialist tribunal for strata disputes. In the event an additional ground justifying the refusal to refer emerged, namely, the absence of need to determine matters in grounds 4 to 11.
In his submissions on the appeal the landlord's representative said in effect that the nature of the primary member's alleged interventions was inappropriate and he had never been subjected to this type of treatment in other proceedings, including (he put by contrast) our conduct of the present appeal hearing. The primary member had interrupted the flow of his presentation of his case and was impolite. The primary member allegedly overstepped the Code of Conduct in what then appeared to be intervention to see his primary application defeated with that either being a premeditated design or a design that emerged in the course of the hearing. He enumerated further specific grounds of alleged error in the primary decision. We consider each in turn below.
The respondent said that his communication had been with the landlord's son. The failure of the locks, with his children trapped in the apartment, showed that the landlord did not attend to repairs. He disputed the landlord's complaints as having a basis and sought to uphold the primary decision.
At the primary hearing only the landlord's documents were tendered after an exchange that appeared (from the way the parties described it to us) to be to the effect that the primary member did not need to hear from the respondent. The primary member refused the landlord's application to tender documents from the respondent's proposed evidence. The landlord submitted that the primary member engineered the absence of the respondent's documents from the evidence because the primary member did not want them in evidence. The landlord also submitted that the primary member excessively restricted questioning of the respondent, in effect limiting it to answers to questions from the Tribunal.
The landlord's appeal bundle included what was said to be the respondent's evidence, which we have assumed to be the respondent's documents not admitted into evidence at the primary hearing. It primarily comprised a witness statement from the respondent.

Primary decision

The primary member gave detailed written reasons. He noted that the standard tenancy agreement contained the obligations that mirrored the statutory obligations on landlord and tenant in respect of cleanliness, notifying the landlord of damage and the landlord's obligations with respect to repairs. He noted that there was evidence that the landlord was advised of repairs required, failed to carry out those repairs but the tenant did not claim orders in respect of those repairs under RTA s 63 and cl 19.3 of the tenancy agreement or as a ground for terminating the tenancy. Rather, the tenant relied upon another basis to terminate the tenancy, being a minimum period to terminate a periodic tenancy without specifying breaches by the landlord, under s 97. He noted that the landlord's son managed the premises, replacing the former managing agent, from about 30 July 2019.
Although it was returned by the tenant later than the specified period in RTA s 29(3), the primary member rejected the landlord's contention that such invalidated the tenant's comments on the incoming condition report as evidence of the condition of the premises at the date of the tenant's inspection. We note that the primary member's conclusion is consistent with s 29(5). While noting that there was nothing in dispute in the incoming condition report, the primary member added, at PR (primary reasons) 14, "However, Mr Singh's approach on this matter is an early demonstration of Mr Singh's misconceptions of the operation of the RTA, and the landlord's obligations".
The primary member pointed at PR 15 to a further misconception when the landlord's son by email on 1 August 2019 informed the respondent that, although the son would be managing the premises for his mother, he had no authority to receive notices for the landlord. No alternative email address was given which was held to be in contravention of RTA s 27 and the last-given written notice that complied with s 27 gave the son's contact details.
The primary member described the tenant's notification of unserviceable door locks to the building manager on 26 September 2023 which had to be removed so that the respondent could open and shut the door. The primary member continued: "[18] … The tenant informed Mr Singh (as the landlord's representative) but Mr Singh did nothing to remedy the locks. Thereafter followed the most extra-ordinary emails from Mr Singh to the tenant and third parties such as the building manager, executive committee, and Owners Corporation, which are argumentative, broad in assertions, but none arranging for immediate repair of the lock."
The primary decision then detailed a series of communications and events: by email of 19 December 2023 the respondent told Mr Singh that the locksmith who attended on 1 November 2023 had refused to complete work as the landlord had refused to pay for earlier work; Mr Singh's email of 28 December 2023 refused the respondent authority to instruct a locksmith (we add even though RTA s 64 gives the tenant the right to be reimbursed for urgent repairs, of which security must be one); rather than seek orders the respondent gave on 19 December 2023 notice of vacating the premises on 11 January 2024 (we add which exceeded the requisite notice under s 97 for a no-grounds termination notice of a periodic tenancy by a tenant); "[21] In a continuing argumentative manner which appears to be a common thread through Mr Singh's emails, by email of 28 December 2023 Mr Singh demanded to know from the tenant by what consent or authority the tenant was serving the termination notice on him"; at PR 22 "remarkably" Mr Singh did not tell the landlord that he had received the termination notice because he maintained that he had no authority to receive it; "[22] It is extra-ordinary that Mr Singh would leave his mother exposed to economic loss in this manner, exposing her to the risk of losing future rent if the premises remained unrepaired (no working lock) and could not be re-let (no working lock) until the lock was repaired. The best evidence is that the lock remains unrepaired to date".
At PR 23-24, 45-50 and 55 the primary member found that the respondent's notice of termination was properly sent to the last address given by formal written notice under RTA s 27 and was otherwise valid. That formal written notice was from the former managing agent advising the respondent to send notices by email to Mr Singh. Subsequent emails from Mr Singh to the respondent said that, while he was looking after management of the premises, he was not authorised to receive notices, but never advised an alternative address from that in the former managing agent's email. The primary member added at PR 49, "The Tribunal does not make a finding that Mr Singh and the landlord engaged in sharp practice in this respect, but their conduct is so borderline as it has the effect of frustrating the tenant in serving notices as it leaves the matter in considerable confusion".
The tenant posted the keys to the landlord's address in Lismore on 11 January 2024 and ceased paying rent from that date. The landlord and Mr Singh disputed receipt; the respondent said the keys had not been returned as undelivered. It was clear that by then the respondent knew the landlord's address even though it had never formally been notified. The primary member found at PR 52-54 and 56-59 that there was no evidence sufficient to raise doubt that the keys were posted to the landlord and applied s 76 of the Interpretation Act 1987 (NSW) to find that service of the keys was effected on the seventh working day after the letter was posted, but if that finding was wrong then the notice to Mr Singh was reasonably likely to come to the attention of the landlord and the defect in service ought to be relieved under RTA s 113.
By email of 23 February 2024 from Mr Singh, the landlord served a termination notice requiring vacant possession on 13 March 2024, presumably under RTA s 87 for alleged breach given the alleged breaches detailed below. Mr Singh said he was unable to make any reasonable inquiry about whether or not the respondent had actually vacated, on which the primary member observed: "[30] … This failure by Mr Singh to make inquiry is also extraordinary having regard to Mr Singh's propensity to write emails to the Building Manager, Owners Corporation and executive committee, as the Tribunal is confident that any of the persons associated with those bodies could have told him whether or not the tenant had vacated". The primary member found that the notice had no utility since the tenant's earlier notice was valid.
The primary member pointed to the landlord's contention about many tenant breaches: historic non-payment of rent; current non-payment from the date of an alleged invalid termination notice (RTA s 111); no waiver of any defect in the tenant's notice under s 113; liability for a break fee (not pressed at final hearing); liability for damaging the front door lock.
The primary member then found that each claim by the landlord failed. There was no evidence that the tenant caused the lock failure. The landlord's informal spreadsheet rent ledger was unsigned and there was no evidence how it was prepared. It was so lacking in credibility that the tenant's alternative calculation was to be preferred and the lack of credibility "cast[s] all the landlord's claims under a dark shadow of doubt". The validity of the tenant's termination notice meant there was no basis for rent or occupation fee beyond the date of vacation.

Grounds of appeal

The landlord's original notice of appeal in its formal parts said, in response to questions about leave to appeal, "If applicable, see attached". There followed an annexure of 24 pages that comprised 31 paragraphs said to be grounds of appeal followed by nearly 22 pages of detailed commentary on specified paragraphs of the primary decision and certain topics.
The annexure was replaced by a document of 44 pages filed 13 August 2024. It comprised 37 grounds of appeal followed by 35 pages of detailed commentary on provisions of the NCAT Act (10 paragraphs over slightly more than a page with nearly 34 pages of detailed commentary on specified paragraphs of the primary decision and focused topics). The substance of the text was in some parts similar to the earlier version but in a different order at times. There was no attempt to show what had changed between the versions. We have had regard to the substantially amended version as containing submissions, that require evidentiary support to the extent they are not expressly-stated grounds of appeal.
We note that the material filed for the landlord on the day before hearing contained a document of 41 pages titled "Notice of Appeal amended 8 October 2024 5. Grounds for Appeal B. Grounds of Appeal". Again, there was no attempt to show what had changed from the document filed 13 August 2024. The new, late document appeared to address with substantive similarity the matters in the 13 August 2024 document and added approximately 8.5 pages (in two tranches) of commentary on passages said to reflect transcript of part of the sound recording of the primary hearing, which itself was said not to be a complete sound recording. We have adopted the same approach to this document as to the 13 August 2024 document.
The reply to appeal relied on the landlord's evidence at the primary hearing to say that the primary member was not in error in his decision.
We have assumed that the landlord's notice of appeal was prepared without legal assistance, although the landlord's son, who appeared to have prepared the documents to which he spoke for the landlord, appeared to have an understanding of legal principle to some degree from the presentation and substance of the documents and his oral submissions and also from his own statements about his perception of his treatment by the primary member compared with other appearances in courts or tribunals. The landlord's son did not represent himself to be a legal practitioner.
Given the absence of formal legal representation, we have sought to determine the grounds of appeal in substance in accordance with the approach outlined in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [12], also taking into account oral submissions at final hearing. We have grouped the identified grounds as follows: 1. The primary member erred in law, or erred in fact justifying a grant of leave, by not according procedural fairness - in particular, effectively advocating for the respondent and thereby showing apprehended bias, not allowing the landlord a reasonable opportunity to present her case, and conducting the hearing in such an unorthodox manner that it was not fair and equitable. 2. The primary member erred in law, or erred in fact justifying a grant of leave, by applying wrong legal principles. 3. The primary member erred in law by taking into account irrelevant considerations and not taking into account relevant considerations, including relying on matters that were not supported by evidence. 4. The primary member erred in law by giving inadequate reasons for his decision to explain the bases for conclusions reached. 5. The primary member erred in fact, justifying a grant of leave, by not giving proper weight to the evidence that would have led to a contrary finding and not coming to a fair and equitable decision on the evidence before him.
The foregoing distillation is focused on the centrally-relevant findings for the primary decision. There was detailed reference in the landlord's amended notice to the evidence said to have been before the primary member. Neither party filed a full and complete transcript from the sound recording of the primary hearing, despite directions of the Appeal Panel to do so if it was to be relied upon. The respondent's response did not require such a filing unless the appellant landlord identified what she relied upon in the transcript.

Scope and nature of internal appeals

Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states, in respect of Division decisions: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
Clause 12 of Schedule 4 to the NCAT Act states: An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied 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).
A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
In summary, internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, more recently revisited in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]-[40], the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons where they are required; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
A question of mixed fact and law, such as an alleged error in applying legal principle to the facts, is not a question of law unless the facts are jurisdictional in nature: FTB v Children's Guardian [2024] NSWCATAP 174 at [8]; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].
Taking into account an irrelevant consideration or not taking into account a relevant consideration includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
The "no evidence" ground must identify that there is no, or substantially inadequate, evidence to support a "critical" or an "ultimate" fact in order to constitute a jurisdictional error in the form of a constructive failure to exercise jurisdiction (a form of error of law): AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 at [81]; Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 at [52]-[56].
A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, under s 38(6)(a) of the NCAT Act the Tribunal "is to ensure 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." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
The conclusion that a decision is vitiated for legal unreasonableness can be reached if the Appeal Panel comes to the view that no reasonable tribunal could have reached the primary decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364 [68]). A failure properly to exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: Li (2013) 249 CLR 332 at 367 [76]); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [18], [20], [26], [30]-[32], [43]-[45], [48]-[49], [55]-[56], [85]-[87], [127]-[128], [153]-[155]. There is an analogy with the principle expressed in House v The King (1936) 55 CLR 499 at 505 that an appellate court may infer that there has been a failure properly to exercise a discretion "if upon the facts [the result] is unreasonable or plainly unjust" and legal unreasonableness is a ground of judicial review: Li at 367 [76].
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by para 12(1) of Sch 4 to the NCAT Act. In such cases, as already set out the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] and [79] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 to the NCAT Act may have been suffered where: "[76] …there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. … [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]."
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 to the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b): Pholi v Wearne [2014] NSWCATAP 78 at [32]. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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."
Turning to the specific grounds in cl 12(1)(a) and (b) of Sch 4 to the NCAT Act, in Collins the Appeal Panel said: "[77] As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]."
The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with under the ground in cl 12(1)(c) to the NCAT Act was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37]-[39]: "37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'"
In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."
Neither party, as we understood it, sought to rely upon further evidence.

Consideration and conclusions on appeal

As said above, the focus must be on whether there were errors in the factual or legal findings that led to the primary member's decision. The grounds of appeal identified above are addressed in the context of each challenged finding. Other complaints about the primary decision have been considered but are not expressly discussed if they are not relevant to a challenged finding. Many of the grounds raised a similar complaint but with a different focus (alleged inadequate reasons, alleged irrelevant considerations, and so on).

Procedural fairness

The absence of a complete transcript and the landlord's very late commentary on selected parts of the sound recording did not give adequate opportunity for the respondent to deal with such commentary but did sufficiently identify a basis for the landlord's expressed concerns about the conduct of the primary hearing. Rather than exclude such late material, we have sought to take into account in considering it the effect of the matters about which the landlord complained in that material on the overall decision.
Having considered the commentary relied upon by the landlord, we accept the landlord's contention that the primary member's degree of intervention in the conduct of the landlord's case was excessive and the primary member's manner and tone of expression in some of those interventions could reasonably be perceived to be at best condescending and at worst belittling the merits of the landlord's case - we disagree with the landlord's more extreme descriptions of the member's conduct. We also accept the landlord's submission that there was resonance in some respects with the conduct of the primary member that was the subject of adverse findings in the appeal to the Supreme Court in De Marco v Macey [2022] NSWSC 1348, although not to the extent and severity of those findings..
We do not accept that, even taken at its highest, the material relied upon by the landlord demonstrated actual bias by the primary member against the landlord or was sufficient to support a finding of reasonable apprehension of bias against the landlord.
Rather, the material relied upon by the landlord reflected a directive approach by the primary member in legitimate pursuit of identifying and elucidating the real issues in dispute amongst a morass of material that was not well organised and did not clearly distinguish evidence from commentary on evidence. The approach became excessively directive as it combined with a frustration expressed by the primary member that the forensic purpose was not being achieved.
The end result, in our view, was that the hearing was conducted in an unorthodox manner, involving unnecessarily strong and intensive interventions by the primary member. It was, overall, not conducted in a fair and equitable manner because of the primary member's excessive intervention in the conduct of the landlord's case. It is conduct that should not occur.
This is not intended to detract from a decision-maker's legitimate attempts to identify the real issues in dispute and to test the evidence and submissions in respect of them. It is also not intended to discourage strongly-expressed findings if they are justified by the evidence.
The foregoing conclusion indicates an error of law, or an error of fact justifying grant of leave to appeal, supporting the allowance of the appeal. Section 81(1) of the NCAT Act gives the Appeal Panel a broad range of relief in determining an internal appeal such as the present. The Appeal Panel "may make such orders as it considers appropriate in light of its decision on the appeal", including but not limited to (under para (d)) substituting another decision for the primary decision. Under s 81(2) the Appeal Panel may exercise all the functions of the Tribunal at first instance when making a decision in substitution for the decision under appeal and may exercise such functions on grounds other than those relied on at first instance.
Taking into account the foregoing, in the circumstances of this case we do not consider that it is necessary to remit the matter for re-hearing, before another primary member. In this case the landlord's comprehensive and compendious (and at times highly repetitive) written material was not affected directly by the constraints we have identified and was before us, as was whatever the landlord wished to say about the limited evidence from the respondent in answer to questions from the Tribunal. Material that the landlord may have tendered from the respondent's documents, placed before us in the landlord's bundle, was not identified to us as it should have been if it was material and sought to have been relied upon by the landlord; we have looked at those documents and discern no material that would justify remitter. We have had the benefit of the landlord's comprehensive oral and written submissions on the written material. What we have is sufficient to determine the discrete issues below and would not be likely to improve if further resources were expended for and in a remitted hearing.

Landlord's address for service and service of the termination notice

The former managing agent's email of 30 July 2019 invited the respondent to telephone Mr Singh on the number provided for future correspondence. It was not clear if that was saying that the telephone number alone which was being provided was being specified as the sole means of contact, or as the means to find out by inquiry what were the means of contact.
Mr Singh's email of 1 August 2019 to the respondent stated that he was the tenant's primary contact regarding correcting and addressing issues with the property but was unable to accept service of formal notices, documents or communications regarding the tenancy on behalf of the landlord as he had no such authority.
It is the landlord's obligation under RTA s 27(2) to notify the tenant in writing within 14 days of any change in the contact information initially provided. The writing must be clear so that the tenant has a clear means of communication. At least one meaning of the email of 30 July 2019 laid the onus on the tenant to contact and inquire, which is the opposite of the legislative requirement. If that meaning is adopted then the notification was defective in breach of s 27(2) and effectively provided no updating notification, which would leave the contact details as the former managing agent.
As noted by the primary member at PR 24, there was no evidence that Mr Singh gave any written notice to the respondent advising the address for service of notices, and there was no evidence of any other such notification beyond that provided by the former managing agent as just described. The primary member correctly found (in PR 24) that what Mr Singh claimed to be notice of the landlord's postal address, being letters to Defence Housing Australia, did not constitute such notice. Those letters were self-evidently for a different purpose and there was no indication that they were to be treated as such notification or that Defence Housing Australia as the recipient was authorised to receive such notification on behalf of the tenant.
If the other meaning of the email is adopted then the only contact detail for the landlord was Mr Singh's nominated telephone number. Since on Mr Singh's evidence there was no longer a managing agent, then under s 27(1)(b) with s 27(2) the notification should have contained the residential address as well as the telephone number of the landlord; it at least did not contain the residential address so again was defective in breach of s 27(2).
Mr Singh's email of 1 August 2019 took the matter no further in terms of the required notification.
A notice of termination under RTA s 97, like any other termination notice, must be in writing: s 82(2). The only means of compliance available to the respondent was to send the notice to the former managing agent but that was known not to be a current contact address. As the primary member noted at PR 49, the conduct of the landlord and Mr Singh (as described in the following paragraph of these reasons) in giving Mr Singh's phone number as the contact when the managing agent ceased, made it reasonable for the respondent to believe that a notice emailed to Mr Singh's email address was likely (and more likely than to the former managing agent) to reach the landlord expeditiously: cp, in the context of substituted service, Atkinson v Crowley [2011] NSWCA 194 at [35]-[41].
In our view it is doubtful, for the reasons in the preceding paragraphs, if the foregoing service does constitute a defect in the unusual circumstances where someone, related to the landlord, is evidently doing at least some of what a managing agent does, but denies a formal appointment as replacement managing agent, and communicates by email from his email address with the tenant, but denies authority to receive notices concerning the tenancy. This is more so when there was no updated formal notification of address for the landlord, when there previously was such a written address at the former managing agent. We also note, for example, that Mr Singh used his email address to send the landlord's purported termination notice and on other occasions when it was of utility for the landlord.
Even if the service of the termination notice by email to Mr Singh's email address was a defect in service, there was no evidence of disadvantage to the landlord from any defect in such service except that which arose from Mr Singh's not passing on the notice to his mother. As summarised at PR 22, Mr Singh's reason for not telling the landlord about the notice, either formally or that information in it had been received, was that he was not authorised to receive it. This did not prevent his passing on important information in the document so the landlord could consider and respond and also seek to avoid economic disadvantage. He did not do that by telephone while overseas or on his return. On his evidence the landlord did not have a personal email address, but there was nothing to prevent his telephoning the landlord.
In the circumstances described in the preceding paragraphs, in our view it was appropriate to validate, and the primary member was correct at PR 59 in validating, any defect in service of the respondent's termination notice under RTA s 113. The service by email on Mr Singh did not cause disadvantage to the landlord. The evidence points to any disadvantage stemming from how Mr Singh dealt with the notice when served with it. In any event, there was not established by appropriate evidence what the landlord would have done with earlier information about the tenant's termination notice. On one scenario consistent with the approach taken by the landlord on other aspects of the tenancy, there may have been no different approach to that actually taken, which has been described earlier in these reasons.
The landlord's complaint in respect of findings about service of the respondent's notice of termination fails.

Validity of termination notice

The landlord challenged the validity of the termination notice said to be given by the respondent's email of 19 December 2023 by saying that it did not mention notice of termination but, rather, said that the tenant would be vacating the tenancy on 11 January 2024. The landlord pointed to Mr Singh's email of 28 December 2023 in which Mr Singh said to the effect that he did not know the meaning or significance of that information and whether the tenant was going on vacation on 11 January 2024. The tenant did not respond and Mr Singh said that in those circumstances he could not reasonably be expected to understand and convey to the landlord a meaning of termination.
The primary member implicitly rejected this argument by speaking of "Notice of termination" at PR 22 but did not develop reasons. This is an error of law.
As said earlier, s 81(1) of the NCAT Act gives the Appeal Panel a broad range of relief in determining an internal appeal such as the present. The Appeal Panel "may make such orders as it considers appropriate in light of its decision on the appeal", including but not limited to (under para (d)) substituting another decision for the primary decision. Under s 81(2) the Appeal Panel may exercise all the functions of the Tribunal at first instance when making a decision in substitution for the decision under appeal and may exercise such functions on grounds other than those relied on at first instance.
In our view, on this limited aspect where the evidence is present and confined, and given the appeal is otherwise allowed in part, we shall allow the appeal also on this limited aspect and re-hear this aspect rather than remit it.
In so doing we find that the notice was valid as a notice of termination, or validate it as such under RTA s 113. Our reasons are that in context the reference to vacating the premises could not be objectively interpreted otherwise than as a termination of the tenancy, not a temporary absence from the premises. The reference is to vacating the tenancy itself, not the premises. It was clear that the "Defence Clause" (an additional term of the tenancy agreement to accommodate service personnel movement) was not being invoked which in any event would be a termination of tenancy; the notice period was not four weeks as required under that clause and there was no reference to that as the basis.
If this had been the only aspect on which the appeal was to be allowed, we would have decided that the better course would be that the appeal should be dismissed despite any error of law, for lack of utility. In our view the state of the existing evidence, even if it had been the subject of determination by the primary member, would not have resulted in the grant of the relief sought by the landlord. It is unjust and contrary to proper use of the Tribunal's and the parties' resources, including the disruption to other litigants having their cases heard and determined, to allow the parties to re-litigate this narrow remaining issue when the error is in adequacy of expression of reasons to support the implicit conclusion, which we have explicitly reached on a very limited scope of evidence. It seems inconsistent with giving effect to the guiding principle in s 36(1) and (2) of the NCAT Act to do otherwise.

Rental claims

It follows from the preceding result on the tenant's termination notice being valid or validated that the only claim for alleged unpaid rent after vacation on 11 January 2024 would relate to later receipt by the landlord of the keys.
There was no claim for rental for a period between 11 January 2024 (being the date of posting posited by the respondent) and an accepted date of receipt because the landlord did not accept that the keys had been received at all. Rather, the landlord served her own notice of termination and claimed rent allegedly owing to date of termination under that notice.
The respondent gave evidence that he had posted the keys to the landlord at her address which by then he knew, with a return address on the outside of the envelope, and the keys had not been returned undelivered. The landlord gave direct evidence that she had not received the keys. Mr Singh gave evidence that he had not received the keysand they had not been posted to him. Both the landlord's and the respondent's direct evidence was uncorroborated and uncontradicted.
The tenancy agreement did not require personal delivery of the keys and provided for service of notices and other documents at a specified address which, as discussed earlier, was not specified in any notice of change. Documents is not defined to include or exclude keys.
The primary member relied at PR 52-54 on the uncontradicted evidence of posting by the respondent and s 76 of the Interpretation Act 1987 (NSW) as to deemed service by post on the seventh working day after date of posting. In the absence of authority (which was not referred to in the primary reasons or by the parties before us), we doubt that keys are a "record of information" within the defined meaning of "document" in Sch 4 to the Interpretation Act.
RTA s 223 provides for service of notices or other documents authorised or required to be given under that Act or its regulations to be effected by post at the last-known business or postal address in the absence of a specified address. There was no deemed date of service which would mean that the general law rule about receipt in the ordinary course of post would apply. There is no definition of document in the RTA; s 3 of the Interpretation Act applies the Sch 4 definition. Section 223(2) provides that "Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner".
Section 170 of the Conveyancing Act 1970 (NSW) is substantially similar in its provisions, including absence of definition of "document" and application of the Sch 4 definition, to RTA s 223 and is subject to the provisions of the tenancy agreement.
In the absence of any governing authority being cited to us or to the primary member, it appears to us that a proper construction of "return" of keys to the landlord in RTA s 51(3)(e) includes any method of giving back or deemed giving back permitted or authorised or required under applicable legislation or the general law. The relevant category is the general law rule that items proved (as here, in this case by uncontradicted evidence) to have been posted are presumed to have been delivered in the ordinary course of post. That presumption cannot be rebutted simply by an unsupported denial of receipt as that would negate its central utility. The presumption is one of delivery, not receipt. Delivery is what is required to be established by the respondent to satisfy the meaning of "return".
Although a time for current ordinary course of post was not the subject of evidence, it clearly was a time less than the period of rent claimed by the landlord, which was premised on a denial of receipt and delivery.
In any event and even if the preceding analysis was found to be incorrect, it is potentially arguable that, contrary to the landlord's contention, RTA s 51(3)(e) does not make return of the keys a requirement of vacant possession being established. Rather, the wording of the chapeau to the provision ("On giving vacant possession of the residential premises, the tenant must do the following:") indicates an obligation on the tenant as a result of giving vacant possession. Given our finding in preceding paragraphs, it is not necessary to determine this argument, on which minds may reasonably differ.
The landlord has not established the amount of any relevant loss resulting from any alleged delayed returning of the keys. There is no evidence that the tenant kept possession after 11 January 2024. Indeed, the uncontradicted evidence that the keys were posted on that date is affirmatively to the contrary. If the landlord did not establish by relevant inquiry or inspection that the premises were vacant, that was within the landlord's sphere of responsibility; delayed inquiry and action until several months later also bespeaks a failure to mitigate claimed loss from alleged inability to re-let when (on the landlord's claims) rent was not being paid by the tenant. In such circumstances, relevant loss is the cost of re-keying the premises, not their delayed re-letting.
The landlord's alternative claim in her appeal submissions for an occupation fee until the keys were returned fails for the same reasons as just described.
As the primary member noted at PR 34, the bond is the tenant's until the landlord establishes on the required balance of probabilities that she has an entitlement to all or some of it.
In respect of alleged rent arrears up to 11 January 2024, the primary member found at PR 41 that rent was received from 17 July 2019 to 21 December 2023 with a last receipt of $740 paid on 21 December 2023. This was on the basis that the last payment accorded with the tenant's emailed reconciliation on 19 December 2023 and the member did not accept the informal spreadsheet put forward by the landlord because it was disputed, unsigned, unauthored and not the traditional form of rent ledger. We agree with that finding. The landlord bears the onus of establishing unpaid rent and did not discharge that onus on the document relied upon by the landlord. The landlord did not effectively challenge that conclusion so as to justify the grant of leave to appeal it on the principles set out earlier in these reasons. Accordingly, the claim for alleged arrears totalling $10,215 failed to the extent that it pre-dated 21 December 2023.
However, the primary member overlooked in PR 42 that the calculation of the parties based on the respondent's email of 19 December 2023, which the primary member there set out, showed that rent was fully paid between 21 December 2023 and 11 March 2024 after the $740 was paid on 21 December 2023, on the basis that the balance of rent for that period was in the calculation expressly credited against the $2,660 bond (in PR 41 the amount is stated as $2,669 which is an obvious typographical error). That is, the bond was applied against rent in the respondent's calculation, with the result that it should be paid to the landlord. To honour that calculation, which was the tenant's and accepted, the primary amount of the bond must be paid in full to the landlord with any balance of interest to the tenant. We consider this failure to take into account a relevant consideration is an error of law; alternatively, it is an error of fact justifying a grant of leave to appeal. Again, the evidence is discrete and we shall allow the appeal on this ground and substitute orders based on a finding that the landlord was entitled to the principal amount of the bond.

Door locks

The primary member correctly noted at PR 19 that the respondent made no claim for compensation or for a repair order under, respectively, RTA ss 63 with 187 and s 65. The 21-day period of notice for no-grounds termination by a periodic tenant under s 97 was given without need to rely on a breach by the landlord. Accordingly, no occasion arises to determine whether the landlord fulfilled her duty to keep the premises in repair and the interrelationship of that duty with the owners corporation's duty to maintain and repair the common property under SSMA s 106.
To establish a right to compensation, the landlord was required to establish that the tenant caused the defective operation of the lock resulting in its removal and the need to replace it. We are satisfied that the landlord did not establish these matters on the evidence. As the primary member said at PR 39, there was no evidence that the lock failed as a result of abuse or misuse by the tenant.

Orders

It follows from the above that these orders should be made: 1. The appeal is allowed in part and to the extent necessary leave to appeal is granted. 2. Set aside the orders of the Tribunal made 11 July 2024 and substitute the following orders: 1. Order that the residential tenancy agreement between the parties dated 17 July 2019 terminated on 11 January 2024 with vacant possession being given of the premises on that date. 2. Rental Bond Services is directed to pay the applicant Gurpal Singh the whole $2,660 of the principal amount of rental bond S509937-5 with any interest to be paid to the respondent Matthew Anthony Ellis. 3. Application otherwise dismissed. 3. The appeal is otherwise 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: 31 January 2025

Civil and Administrative Tribunal Act 2014(NSW)

Conveyancing Act 1970(NSW)

Residential Tenancies Act 2010(NSW)ss 27, 53(1)(e), 97, 113, 223

At a glance

Court

Decision date

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Judgment (14 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (41)