Soueid v St George Community Housing Limited

Scope and nature of internal appeals

1. Section 80(2) of the NCAT Act provides that an internal appeal from a decision of the kind in this appeal can be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law.
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, 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).
3. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where there is 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.
4. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). The Appeal Panel applies the same principles to the exercise of the discretion that are applied by the courts. In relation to this, in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597, the Court said at [28]: Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
5. The onus is on the appellants to satisfy us on the balance of probabilities that they may have suffered a substantial miscarriage of justice: Pholi v Wearne [2014] NSWCATAP 78 at [31].

Grounds of appeal

1. The appellant sets out the following as his grounds of appeal: 1. that he did not know he had to provide evidence at the hearing on 20 April 2023 as he did not understand the process because English is his second language; he now has evidence to provide to prove his case; 2. that, even though he consented to the orders, he did not understand the consent process as English is his second language.
2. In Cominos v Di Rico [2016] NSWCATAP 5, at [13], the Appeal Panel noted that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle in s 36 of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.
3. The grounds advanced by Mr Soueid would appear to be that he now has new evidence that was not reasonably available at the time of the hearing and that the orders made were not fair and equitable. Mr Soueid therefore requires leave to appeal on these bases. In addition, as we understand his second ground of appeal, he submits that that the Tribunal ought to have appreciated that his unfamiliarity with the English language meant that he did not understand the nature of the agreement he was making. This in effect goes to the existence of an agreement founding the consent orders and is a question of law (see Roney v NSW Land and Housing Corporation [2015] NSWCATAP 269 at [41]; Yuen v Thom [2016] NSWCATAP 243 at [8]-[9]; McDonald v McDonald [2016] NSWCATAP 252 at [19]).

New evidence ground

1. The new evidence sought to be relied upon in the appeal relates to the Mr Soueid's former wife's income. At the 20 April 2023 hearing the parties advised the Tribunal Member that Mr Soueid's former wife had not provided details of her income and therefore Mr Soueid was paying market rent. Mr Soueid then advised that his former wife had not lived at the premises for about two years. The landlord's representative asked that the matter be adjourned so that a statutory declaration could be obtained from Mrs Soueid and a forwarding address provided to prove she had moved out. As we understand it, the representative then indicated the evidence was necessary to calculate current and future rent for Mr Soueid and his disabled son who lives with him. It was not suggested that any such calculation would be retrospective.
2. In the appeal Mr Soueid has provided a statutory declaration signed by his wife and dated 4 May 2023 in which she states she vacated the Naremburn premises more than two years ago. We note that this is consistent with the evidence given by Mr Soueid at the Tribunal hearing. He has provided other evidence such as utility bills in his wife's name for other premises. There is a text message from Mrs Soueid to someone named "Uli" on 27 April 2021 which refers to a "Statutory Declaration Form". No further details are provided.
3. At the appeal hearing Mr Soueid said that he did not owe any money because, as we understand it, he should not have been paying market rent. Mrs Soueid, who represented Mr Soueid before us, said that she had provided a statutory declaration to the landlord in 2021 about the fact she had moved out. It appears that the landlord has no record of this statutory declaration and no copy of any such document has been provided to the Tribunal or the Appeal Panel. The facts that were before the Tribunal were that Mr Soueid was paying market rent and had failed to pay rent. That finding was not challenged in the Tribunal below.
4. The information now sought to be relied upon by Mr Soueid goes to the question of the amount of rent arrears owing as at the date of termination. As noted above, the arrears were calculated at $1,801.07 at the time the termination application was lodged with the Tribunal. The Tribunal's notation on the consent orders states that the adjourned rent arrears issue is in respect of the period 20 March 2023 to 20 April 2023. The amount owed for that period would depend on the whether Mr Soueid continued to be liable for market rent or rent at a lower rate.
5. Mr Soueid states that he did not know he had to provide evidence at the hearing on 20 April 2023 as he did not understand the process because English is his second language.
6. The transcript demonstrates that Mr Soueid was able to actively participate in the hearing despite English not being his first language. At no point did he say that he did not understand or that he required an interpreter. In any event, no order was made by the Tribunal on 20 April 2023 for the payment of any arrears. That part of the application was adjourned to another day to permit Mr Soueid to provide evidence that his former wife no longer resided at the premises in order to correctly calculate rent owing for the period 20 March 2023 to 20 April 2023. When the matter came back before the Tribunal on 17 May 2023, the application was dismissed as the landlord failed to appear at the hearing. As no order has ever been made by the Tribunal about the amount of rent owing for the relevant period, the information now sought to be relied upon is irrelevant to the current appeal.

Consent orders

1. Mr Soueid states that, while he consented to the termination order, he did not understand the process as English is his second language. In order for the appellant to succeed in his appeal, he must persuade the Appeal Panel there was no true agreement underlying the consent orders.
2. Rule 37 of the NCAT Rules requires the Tribunal, in deciding whether to give effect to a settlement, to take into account the interests of a "vulnerable person" as that term is defined, namely a person who is totally or partially incapable of representing themself in proceedings before the Tribunal because of a disability. Mr Soueid does not submit that he is such a person and there is no evidence to suggest that he suffers from a disability. He states that he did not fully understand the process as English is his second language.
3. The principles applicable to setting aside a consent order were outlined by the Appeal Panel in McDonald v McDonald [2016] NSWCATAP 252: 59. A review of the authorities dealing with when a consent order can be set aside can be found in the recent Appeal Panel cases of Prenc v Stojcevski [2016] NSWCATAP 244 at [43]-[45], [53]-[57] and Yuen v Thom [2016] NSWCATAP 243 at [36]-[54]. From those cases, the following principles can be discerned (omitting authorities): (1) At common law, a consent order may be set aside on the same basis as the underlying agreement may be set aside; (2) Whether the agreement constituting the compromise can be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence and the like; (3) In order to set aside a consent order on one of the above bases, it must be possible to point to some contumelious conduct on behalf of the respondent for instance: (a) with respect to duress, it must be shown that illegitimate pressure was placed on the appellant such that there was no reasonable alternative but for her to submit; (b) with respect to undue influence, not only must there be a source of power to deprive the other person of free and voluntary consent, but it must be shown that the agreement was the result of the actual influence; (4) With respect to mistake: (i) the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract; (ii) a common mistake arises when the mistaken belief is held by both parties; (iii) a unilateral mistake is where one party is mistaken but where there are no other vitiating circumstances, such as misleading or deceptive conduct, fraud or misrepresentation, a unilateral mistake will not generally constitute a basis for setting aside an agreement unless the mistake is a serious mistake in relation to a fundamental term of the agreement and the other party knew of, or contributed to, the mistake. (5) With respect to other doctrines which may be applicable, such as unconscionable dealing, it must be shown that one party to the transaction was at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances that affect their ability to conserve their own interests, and the other party takes unconscientious advantage of the opportunity. It must be emphasised that the disadvantage must be "special" to disavow any suggestion that the principle applies whenever there is some inequality of bargaining power between the parties. What must be present is some disabling condition or circumstance which seriously affects the ability of the innocent party to make a judgment in their own interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party. (6) There may be other factors which arise such as non est factum which defence would arise in very limited circumstances to persons who, through circumstances such as blindness or illiteracy, are unable to have any understanding of the meaning of the document evidencing the agreement and who signed it in the belief it was radically different to what was in fact signed.
4. We have had the benefit of reading a transcript and listening to the sound recording of the hearing. There is no evidence of pressure, threats, mistake or undue influence which led to Mr Soueid's agreement as reflected in the consent orders.
5. As noted above, Mr Soueid states that he did not understand the process when he made the agreement. We understand him to be stating that he did not understand what he was doing as English is not his first language.
6. At the Tribunal hearing Mr Soueid volunteered that he had not in fact resided at the premises for about two years. At the appeal hearing, he stated he had not lived there for about nine months, but his clear and unequivocal evidence at the Tribunal hearing was that he had not lived there for two years. The premises had in fact been vacant for some two years as Mrs Soueid also no longer lived there.
7. There was discussion at the hearing between the Member and Mr Soueid about the fact that the house was empty and that St George Community Housing Limited has a long waiting list of persons seeking a tenancy. When asked if he needed time to vacate the premises, Mr Soueid clearly stated that the house was empty and that he did not need time to move his belongings out. He replied "Yeah, of course I understand that" when questioned if he understood that the tenancy would be terminated with immediate possession given to the landlord so that the house could be let to someone else. He also replied "Yes. Yes" when asked if he was consenting to a termination order being made. At the end of the hearing, after making the orders, the Member asked Mr Soueid: "you understand the effect of these orders and you entered into them voluntarily?". He replied: "Yeah, yeah.".
8. We accept that a person whose first language is not English and who is unfamiliar with legal processes may be at a special disadvantage in dealing with the other party and the Tribunal. However, the above excerpts from the Tribunal transcript, in conjunction with the clear evidence that Mr Soueid fully engaged in the proceedings and was able to put his point of view in English do not suggest he was at any special disadvantage. As noted above, at no time did he state he did not understand nor did he request the assistance of an interpreter. In this context we note that on the Notice of Appeal, Mr Soueid ticked the "no" box when asked if he required an interpreter.
9. In our view Mr Soueid was not at a special disadvantage at the time he entered into the agreement and the terms of the consent orders were fully explained by the Member. Nor is there any evidence of disability. On the evidence before us, he has not established any circumstance which would warrant the setting aside of the consent orders. It follows that there was no error of law in the Tribunal's decision.
10. There is also no basis upon which Mr Soueid might be given leave to appeal to seek to set aside the consent orders. It cannot be said that the making of the consent orders was not fair and equitable. The Tribunal was satisfied that the Tribunal had power to make the consent order terminating the tenancy and that the parties were in agreement about those orders. Where those matters are established, as here, it is not unfair or inequitable to make consent orders to reflect the agreement reached. Accordingly leave to appeal must be refused.

Extension of time

1. In addition, a fundamental problem with Mr Soueid's appeal is that it has been filed out of time. As set out above, the application was required to be made within 14 days of the date of the Tribunal's decision. The appeal was lodged on 26 May 2023, some three weeks out of time.
2. The appellant did not seek an extension of time within which to file the appeal until the issue was raised with him at the appeal hearing. Nevertheless, we have considered whether an extension of time should be granted.
3. The principles relating to consideration of an application to extend time were set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [21]-[22]. In order to extend time we must be satisfied that strict compliance with the rules will work an injustice on the appellants. The relevant factors to consider are: 1. the length of the delay, 2. the reason(s) for the delay, 3. the appellants' prospects of success, i.e. whether there is a fairly arguable case, and 4. the extent of any prejudice suffered by the respondent landlord.
4. In relation to the delay, Mr Soueid states he was not aware of the process for lodging an appeal. He states that he does not speak English and his friend was helping him. His friend lived some distance away. The delay in lodging the appeal, being three weeks, is not insignificant given the 14 day time limit in residential proceedings. As to the reason for delay, it is a relatively simple matter to ascertain how a decision of the Tribunal can be appealed, although we do accept that Mr Soueid may have required some assistance.
5. The landlord opposes an extension of time. The landlord states that there are a number of services who could have assisted Mr Soueid to file his appeal. We note that, as stated by the representative of the landlord who attended the Tribunal hearing, St George Community Housing Limited has a responsibility to other tenants on the waitlist. This is particularly the case where Mr Soueid has not lived in the premises for two years and they have remained empty.
6. Turning now to the appellant's prospects of success in the appeal, we have set out in detail above our reasons for concluding that the appeal cannot succeed. Mr Soueid has been unable to demonstrate any error on the part of the Tribunal in making the consent orders to terminate the tenancy.
7. In all the circumstances, particularly given the length of the delay and the absence of an adequate explanation for that delay, particularly where assistance would have been readily available to Mr Soueid, combined with the fact that the appeal has no prospect of success, we consider that time for the filing of the application should not be extended.

Orders

1. We make the following orders: 1. An extension of time to lodge the appeal is refused. 2. Leave to appeal refused. 3. Appeal dismissed. 4. The stay order made by the Appeal Panel on 7 June 2023 is lifted. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2023