Staver v Bridge Housing Ltd

Introduction

1. The appellant, Ms Staver, appeals against two decisions made in the Consumer and Commercial Division of the Tribunal. The first decision, made on 22 April 2015 in proceedings SH15/06699, included an order terminating her residential tenancy agreement with the respondent, Bridge Housing Ltd (Bridge Housing), an order for possession to be given to the landlord and an order for the payment of unpaid rent in the sum of $6,850.60 ("the first decision"). The second decision, made on 27 May 2015 in proceedings SH 15/34973, was the dismissal of Ms Staver's application to set aside the first decision on the ground of procedural irregularity under s 53(4) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) ("the second decision").
2. For the reasons that follow, the Appeal Panel has decided: 1. to refuse to grant an extension of time in which to appeal the first decision and otherwise also to dismiss the appeal in respect of that decision; and 2. to dismiss the appeal in respect of the second decision.

Background

1. Ms Staver was at all material times a tenant of premises at XXX South Coogee under a residential tenancy agreement with Bridge Housing Ltd, a social housing provider.
2. On 9 February 2015, Bridge Housing lodged an application in the Consumer and Commercial Division of the Tribunal seeking an order terminating Ms Staver's tenancy under s 87 of the Residential Tenancies Act 2010 (NSW) (the RTA) for failure to pay rent. In its application, Bridge Housing indicated that it sought the order terminating the tenancy even if Ms Staver paid all rent owing or fully complied with a repayment plan because she was alleged to have frequently failed to pay the rent.
3. From the reasons given in relation to the second decision, it appears that on 18 March 2015, Ms Staver and Bridge Housing agreed on a payment plan by which she undertook to pay the outstanding rent arrears in the amount of $6,410.55 by the payment of $253.00 on or before 1 April 2015 and by instalments of $50.00 fortnightly thereafter on and from 15 April 2015. The Tribunal gave effect to the agreement for a repayment plan by way of consent orders made on 18 March 2015 with the further order that default in the payment of any instalment would result in the full amount of arrears of rent becoming immediately due and payable.
4. On 22 April 2015, as a consequence of Ms Staver's failure to comply with the repayment plan, Bridge Housing applied for orders terminating the tenancy agreement, for possession and for the payment of unpaid rent. On that day in proceeding SH 15/06699, the Tribunal made the following orders: 1. The Residential Tenancy Agreement is terminated in accordance with: S 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. Failure to pay rent in accordance with agreement. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 20-May-2015 4. The tenant shall pay the landlord a daily occupation fee at the rate of $23.71 per day from the day after the date of termination, namely 23-April-2015 until the date vacant possession is given to the landlord. 5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 6. The tenant … is to pay the landlord … the sum of $6,850.60 for rent owed under the residential tenancy agreement for the period from 25-June-2014 to 22-April-2015. The payment for rent owed is due on or before 20-May-2015.
5. On 25 May 2015, a warrant for possession was issued.
6. On 27 May 2015, Ms Staver applied, under s 53(4) of the Act in proceedings SH 15/34973, to set aside the first decision. That application was dismissed on that day. The Tribunal's reasons for the second decision included (at [10]-[12]): [10] The application does not advance any evidence by which the Tribunal may be satisfied that there has been procedural irregularity in the conduct of the proceeding within the meaning of s. 53(3) of the Act, such that there should be the exercise of the discretion vested in it by s. 53(4) of the Act to order that the orders made in [the first decision] should be set aside. [11] Indeed, there is no error discernible in any of the processes of the Tribunal that led to the decisions reached and the orders made, and nothing is advanced by which the execution of the warrant for possession ought be stayed. [12] It follows that the application must be dismissed.

Notice of Appeal and Reply

1. On 29 May 2015, Ms Staver lodged a notice of appeal. In her notice of appeal, she identified the NCAT file numbers in respect of the decisions she wanted to appeal as being both SH 15/06699 and SH 15/34973 (see item 1). She also stated that the date of the decision the subject of the appeal was 29 May 2015 (item 2). In the notice of appeal, Ms Staver also indicated that she did not seek an extension of time in which to lodge the appeal (see item 13).
2. In fact, neither of the decisions made in the two proceedings specified in the notice of appeal was made on 29 May 2015. The second decision, in proceeding SH 15/34973, was made on 27 May 2015 and the first decision, in proceeding SH 15/06699, on 22 April 2015. As Bridge Housing pointed out in its reply to appeal, Ms Staver required an extension of time in which to lodge an appeal against the first decision, as the notice of appeal had been lodged outside the 14-day period provided under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) for the lodgement of appeals in residential matters such as the present. During the hearing of the appeal, when these matters were pointed out to Ms Staver, she indicated that she did seek an extension of time in which to lodge the appeal in respect of the first decision, if that was required.
3. The orders challenged on appeal were identified by Ms Staver (at item 11A in the notice of appeal) as follows: - Termination Order - Possession Order, which based on a wrong payment slip rent from Bridge Housing. - Enforcement Order
4. These orders were those made on 22 April 2015 and were the first decision. Ms Staver did not identify the order dismissing her set aside application, the second decision, as an order challenged in the appeal.
5. The grounds of appeal listed by Ms Staver in her notice of appeal (item 11B) were: 1. Bridge Housing provided a wrong balance of outstanding balance for payment. 2. Also I provided my payments every 2 weeks with Deposit Check Books payments with Bank Stamps and amount and days. But during Court nobody check or look at it. 3. The error was made by Orders Just only because Bridge Housing provided a wrong statements.
6. From this it can be seen that there was no ground that related to the Tribunal's dismissal of the set aside application, the second decision.
7. Although Ms Staver did not tick either the 'yes' or 'no' in response to the question "Are you asking for leave?" in item 12B of the notice of appeal which relates to appeals for which leave is required, she did provide information as to why she asserted that the decision was not fair and equitable and that the decision was against the weight of the evidence and as to the evidence she wanted now to rely upon (in items 12B(i), (ii) and (iii) of the notice of appeal). Accordingly, the Appeal Panel is prepared to proceed on the basis that, to the extent necessary, Ms Staver was also seeking leave to appeal, having regard to cl 12 of Sch 4 of the Act.
8. In its reply to appeal, Bridge Housing supported the orders originally made. It did, however, note that in order 6 made on 22 April 2015 there appeared to be a typographical error in that the material submitted to the Tribunal at the hearing indicated that the period for which rent was unpaid was in fact 11 July 2014 to 22 April 2015 and not 26 June 2014 to 22 Apr 2015. Notwithstanding this error, it was said that the rent outstanding was accurately stated as $6,850.60 in the order. Accordingly, it was submitted that order 6 made on 22 April 2015 should have read: 6. The tenant … is to pay the landlord … the sum of $6,850.60 for rent owed under the residential tenancy agreement for the period from 11-July-2014 to 22-April-2015.
9. In opposing Ms Staver's appeal and application for leave to appeal, Bridge Housing in its reply stated in substance that: 1. Ms Staver was afforded sufficient opportunity to present her case; 2. There were no procedural unfairness in the proceedings below; 3. The decisions were made on the basis of evidence before the Tribunal below; 4. The decisions are fair and equitable; and 5. There is no new evidence and when Bridge Housing's evidence was put to Ms Staver in the proceedings below, she did not challenge it.
10. Further, in relation to whether Ms Staver required an extension of time, Bridge Housing (in item 11 of its reply to appeal) ticked the box which indicated that it "[did] not accept that the appeal was lodged within time but [did] not object to the Tribunal extending time for the making of the appeal". It appeared, however, that this was an error because Bridge Housing then completed the section of the form in which it was required to state its grounds for objecting to an extension of time. At the hearing, Ms Dobson, who appeared by leave as agent for Bridge Housing, confirmed that this was an error and Bridge Housing had intended to tick the box objecting to an extension of time
11. Since Ms Staver's appeal in respect of the first decision was out of time and she had been put on notice of Bridge Housing's position that her appeal was not within time and of its grounds for objecting to an extension of time and given that she orally sought an extension if that it was required the Appeal Panel thought it appropriate to proceed on the basis that it should consider first whether to grant an extension of time in which to appeal in respect of the first decision.

Written Submissions and Other Material Relied Upon

1. Both parties filed written submissions and supporting material in relation to the appeal.
2. The Appeal Panel takes Ms Staver's written submissions to include the handwritten annotations on some of material that she filed in support of her appeal. In order to understand Ms Staver's position it is necessary to set out in some detail the material she filed. This included: 1. A number of medical certificates in relation to conditions suffered by both her and her daughter. 2. A rent statement on Bridge Housing's letterhead for the period from 2 November 2011 to 25 January 2013 that identified the "Weekly Rebated Rent" as $201.17, which Ms Staver annotated with the word "Attention" to indicate, as we understood it, that this amount of rent was not correctly calculated. 3. A letter dated 27 November 2013 from Bridge Housing to Ms Staver informing her that from 1 October 2013, Bridge Housing had become responsible for all common area maintenance and repairs. 4. Three deposit stubs from her Bridge Housing deposit book stamped by the Commonwealth Bank to record the date and amount deposited as follows: 1. Stub dated 1 February 2011 for a deposit of $301.62 - stamped by the bank on 1 February 2011; 2. Stub dated 10 October 2012 for a deposit of $330.00 - stamped by the bank on 19 October 2012; 3. Stub dated 15 May 2014 for a deposit of $355.25 - stamped by the bank on 16 May 2014. 1. A colour photograph of what appeared to be a part of an unidentified ceiling and a condition report for the premises in South Coogee dated 30 May 2011. 2. A handwritten page as follows: Bridge Housing has responsibility to standard rent, but it was no connection to washing machine by Plumber. I called, wrote - no response. So I went to laundry at Avoca St Randwick and paid $72.00 per week. $144.00 - per month $144.00 x 12 = $1,728 per year Total: $6,912 - from mid 2011 to mid 2015 It is responsibility of Bridge Housing to return this finance, because they never connected and provided a Plumber service. This finance came out from my payments and low income. Must be return urgently. 1. A photocopy of one undated laundry docket for "1 Wash, Dry & Fold/ 1 item $72.00" from a laundry in Avoca Street was included on the page. 2. An undated document on Bridge Housing's letterhead headed "Summary of Income for Rent Assessment Purposes" in respect of Ms Staver showing "Rent Contribution - Weekly: $166.19". 3. A letter from Bridge Housing to Ms Staver dated 29 June 2015 notifying her of a change in her rent from $166.01 to $166.19 effective from 6 July 2015. 4. A photocopy of a page of Bridge Housing brochure entitled "How We Calculate Your Rent" with a table explaining that total rent was calculated by taking 25% of household assessable income and 100% of Commonwealth Rent Assistance. This table was bracketed by hand and annotated in Ms Staver's handwriting with the word "Attention". 5. A letter from Bridge Housing to Ms Staver dated 9 February 2015 concerning rescheduling a property inspection of the premises with handwritten annotations by Ms Staver. 6. Two copies of a repair confirmation notice from Bridge Housing to Ms Staver dated 6 March 2015 and a copy of a repair confirmation notice dated 19 May 2015. Those notices informed Ms Staver that if the contractor had not contacted her by 11 March and 19 May, respectively, she should telephone "[Bridge Housing's] Asset Team" on a specified telephone number. 7. A blank, generic Commonwealth Bank combined deposit slip and deposit receipt form. 8. One page of a two-page printout dated 1 July 2015 from the Internet of a Centrelink Online Account for a specified Customer Reference Number headed "Your Payments" which records approximately fortnightly payments described as "Family Assistance Office" and "Employment or Youth and Student Assistance Service" for 14 May 2015 to 9 July 2015. 9. A seven-page Rent Statement from Bridge Housing for the premises dated 9 February 2015 covering transactions during the period from 3 February 2013 to 9 February 2015. On page 1, Ms Staver has bracketed the rent of $201.17 charged between 4 February 2013 and 29 April 2013 and annotated it with the handwritten word "wrong". On page 7, it is recorded that Ms Staver was "$5,863.07 in arrears Equal to 242 day/s in arrears as at 0/02/2015 Rent paid up to: 12/06/2014" beneath which is written in handwriting "14.1.12".
3. Bridge Housing provided written submissions in reply and a bundle of material. The written submissions were largely directed to answering the issues that Ms Staver appeared to raise and were to the following effect: 1. As to the calculation of rent, Bridge Housing was unclear as to the relevance of this material provided by Ms Staver but in any event confirmed that rent was calculated at 25% of income plus Commonwealth Rent Assistance and copies of all rent reviews were provided; 2. Ms Staver had a history of being a frequent late payer of rent and correspondence addressing that matter was provided; 3. As to repairs conducted at the property, Bridge Housing was unclear as to the relevance of this material provided by Ms Staver but in any event provided a copy of a table of repairs requested and completed at the premises during the tenancy; 4. As to the laundry claim, Bridge Housing disputed the claim for the cost of laundering and provided photographs showing laundry taps installed in a bathroom. Bridge Housing also stated that on a review of its records it could find no request for repairs to the laundry taps or any request for compensation. It was also noted that only one receipt for $72 was provided and it only related to one occasion on which laundry was apparently paid for; 5. As to Ms Staver's deposit book stubs, Bridge Housing has audited its rent statements and provided a spreadsheet that demonstrated that all payments, including those referred to in the three stubs provided by Ms Staver, had been credited against her rent account. There was no new evidence supplied by Ms Staver of any missing payments in relation to her rent account.
4. The bundle of material supplied by Bridge Housing included both evidence that had been provided to the Tribunal at first instance and other material supporting the submissions in reply. In particular, the bundle included: 1. Bridge Housing's Rent Statement in respect of Ms Staver and the premises dated 22 April 2015, which was apparently before the Tribunal at first instance; 2. An updated Rent Statement dated 18 June 2015; and 3. A bundle of approximately 90 copies of stubs from Ms Staver's deposit book, most of which appeared to have been filled out by Ms Staver and stamped by the bank, but there were some duplicate copies, some blank stubs and some completed but unstamped stubs. The stubs bore handwritten and stamped dates between 1 February 2011 and 18 May 2015.
5. It can be noted here that as the Tribunal at first instance heard the termination application and made the termination and related orders on 22 April 2015, it is accordingly most unlikely that the stubs dated after 22 April 2015 were before the Tribunal at that time. It should be noted, however, that the three stubs provided by Ms Staver in support of her appeal (referred to above) were also included in Bridge Housing's bundle of approximately 90 stubs and were accounted for in the spreadsheet provided by Bridge housing.

Issues to be Addressed by the Appeal Panel

1. As indicated above, the Appeal Panel will consider first whether an extension of time in which to lodge the appeal against the first decision should be granted. It will be necessary to determine whether leave to appeal is required and should be granted and whether any appeal (as of right or by leave) in respect of the first decision should be upheld, only if an extension of time is granted.
2. The Panel will then consider the appeal in respect of the second decision.

Extension of Time in which to Lodge an Appeal against the First Decision

1. The first decision was made on 22 April 2015 and it was not in dispute that Ms Staver was present at the hearing before the Tribunal when the orders were made. Accordingly, she first became aware of the orders on 22 April 2015.
2. The notice of appeal was lodged on 29 May 2015, which is outside the 14-day period provided under r 25(4)(b) of the Rules for the lodgement of appeals in residential matters, of which this was one.
3. As has already been noted, Ms Staver made an application for an extension of time at the hearing and made oral submissions in support of that application, as did Ms Dobson.

Extension of Time - Principles

1. Section 41 of the Act provides: (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
2. The Appeal Panel held in Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70 at [73] that the discretion to extend time is given for the sole purpose of enabling the Tribunal to do justice between the parties and, in determining this question, it is appropriate to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time. If an appellant has no real prospects of success on appeal, there is unlikely to be any prejudice to the appellant if an extension of time is refused.
3. In order to justify the Appeal Panel extending the time, there must be some material upon which the Appeal Panel can exercise its discretion: Habib at [73] and the cases cited in that paragraph.
4. A summary of the considerations which are relevant to determining whether to extend time is found in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] as follows: … (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), …

Length of the delay

1. In the present case, an appeal against the first decision was required under r 25(4)(b) of the Rules (having regard to in addition to r 6) to be lodged on or before 6 May 2015. The appeal was actually lodged on 29 May 2015 - a delay of 23 days. Whilst this period is substantial, having regard to the 14-day period prescribed by the Rules in respect of tenancy matters, it is not so long as to weigh, by itself, anything more than slightly against granting an extension.

Reasons for the delay

1. Ms Staver gave as her reason for the delay her inability to consult her family lawyer, who had been unavailable during the relevant period. It also appeared implicit in her submissions that she was unaware of the process, and the timeframe, for appealing against a decision of the Tribunal at the time when the first decision was made. This consideration can be seen as providing some support for the grant of an extension of time.

The extent of any prejudiced suffered by the respondent

1. Bridge Housing will suffer prejudice in the form of loss of rent or occupation fees, to the extent that Ms Staver has not paid or does not pay them. While Ms Staver is in occupation of the premises, this also causes Bridge Housing to be unable to provide housing to other potential tenants who need accommodation and who are prepared to pay rent. If rent or the occupation fees are not paid, the inability to let the premises can be considered an additional form of prejudice. This prejudice weighs against granting an extension.
2. In this case, the prejudice to Bridge Housing is mitigated, to a limited extent, by Ms Staver's fulfilment of the condition of the stay granted on 2 July 2015 to pay to Bridge Housing the sum of $372.38 fortnightly from 9 July 2015. The Panel was informed by the parties at the hearing that Ms Staver has made those fortnightly payments.

The appellant's prospects of success

1. The Panel now turns to consider Ms Staver's prospects of success. As noted above, if there are no real prospects of success, it will be unlikely that injustice would result from refusing to extend time. Whilst the other considerations in this matter might lend some support to an extension being granted, if Ms Staver's prospects of success are minimal, it would not be appropriate to extend time. Accordingly, the Appeal Panel will address this consideration in more detail than might otherwise be the case in order to ensure that there is unlikely to be any injustice, if an extension is refused.

Grounds of Appeal - Prospects of Success

1. As the Appeal Panel understands it, Ms Staver's grounds of appeal in respect of the first decision (which are set out in the notice of appeal and have been quoted above) raise essentially two contentions, which we have formulated as follows: 1. Bridge Housing provided incorrect information to the Tribunal concerning the amount of unpaid rent and, as a result, the Tribunal proceeded on a misapprehension of the facts in finding that Ms Staver owed the arrears of rent as found by the Tribunal (grounds 1 and 3); and 2. The Tribunal erred by refusing to accept as evidence, and failing to have regard to, Ms Staver's stamped deposit book stubs recording her fortnightly rent payments, which would have established that she did not owe the arrears of rent as found by the Tribunal (ground 2 as elaborated upon in oral submissions).
2. The Appeal Panel will consider Ms Staver's prospects of success on each of these two contentions in order.

The Tribunal Proceeded on the Basis of a Factual Misapprehension

1. The first contention, based on grounds 1 and 3, is that the Tribunal proceeded on a misapprehension of fact in relation to her arrears of rent.
2. If it is established that the court or tribunal proceeded on a misapprehension as to the facts, the orders made in such proceedings can be set aside: Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77 at [3]. Further, the Appeal Panel would allow such an error to be corrected on appeal, if it were established, given the requirement that the Tribunal act according to the substantial merits of the case without regard to technicalities or legal forms: s 38(4) of the Act.
3. Although such a ground might not raise an error of law, if it were established that the Tribunal did indeed proceed on a misapprehension as to the facts through no fault of the appellant, this would be likely to mean that the decision was not fair and equitable or was against the weight of the evidence so as to enable the Appeal Panel to grant leave to appeal, in the light of cl 12 of Sch 4 of the Act. It is likely that leave would be granted so that any injustice consequent upon the misapprehension could be corrected.
4. The difficulty for Ms Staver is that she bears a heavy burden to show that the Tribunal has actually proceeded on a misapprehension as to the facts: Power at [3]. Ms Staver only pointed to three deposit stubs as recording payments of rent which, as we understood her submissions, she says were not included in the Rent Statement of 22 April 2015 relied upon by Bridge Housing before the Tribunal at first instance. These were: 1. Stub dated 1 February 2011 for a deposit of $301.62 - stamped by the bank on 1 February 2011; 2. Stub dated 10 October 2012 for a deposit of $330.00 - stamped by the bank on 19 October 2012; 3. Stub dated 15 May 2014 for a deposit of $355.25 - stamped by the bank on 16 May 2014.
5. The Rent Statement dated 22 April 2015, which was in evidence before the Tribunal at first instance, only included a detailed listing of transactions from 3 February 2013. A deposit of $355.25 on 16 May 2014 was recorded on page 5 of that statement. Thus, it does not appear that there was any failure to record or take into account the deposit that was made using the stub dated 15 May 2014 but stamped by the bank on 16 May 2014.
6. As to the other stubs relied upon by Ms Staver, Bridge Housing provided a spreadsheet with all transactions from 1 February 2011 listed on it. That spreadsheet was divided into two parts, apparently reflecting different recording systems used before and after 31 January 2013. The spreadsheet included the deposits made by Ms Staver recorded on all three stubs submitted by her as well as the other stubs included in the approximately 90 deposit stubs provided by Bridge Housing.
7. That spreadsheet provides substantial support for the conclusion that, apart from a discrepancy of 3 cents, there was no error in the 22 April 2015 Rent Statement upon which Bridge Housing relied before the Tribunal at first instance. It appears likely that the 3 cents' discrepancy was a rounding or transcription error which produced an opening balance at the beginning of February 2013 of $1029.27, instead of being the same as the closing balance as at 31 January 2013 of $1,029.24, as recorded for the earlier period in the spreadsheet.
8. Ms Staver provided no other documentary evidence or material to establish that there were other deposits made by her which were not included in the spreadsheet. This was so, notwithstanding that in her notice of appeal she said that "I have my documents from the Comm Bank with payments at every 2 weeks for all my period living at the property" and that she showed to the Tribunal "Bank Deposit Books for payments with stamp, days and amounts but during the court, nobody check this documents".
9. When pressed in oral submissions on this issue, Ms Staver mentioned making direct or BPAY deposits into Bridge Housing's account not using the deposit book but provided no details as to when, how or in what sums those deposits were made. Nor did she provide any documentary evidence of such payments.
10. Ms Staver did not mention any deposits made otherwise than using the deposit slips in her notice of appeal or in her other submissions and material in support. As a consequence, Bridge Housing was not put on notice of the allegation that such direct or BPAY deposits had been made and was not in a position to answer such an allegation. Nor from her material or submissions did it appear that Ms Staver made such an assertion or provided any documentary evidence in support of such deposits having been made at the hearing at first instance.
11. In light of all these circumstances, it is most unlikely that an appeal would be upheld on the basis that the Tribunal proceeded on a misapprehension of the facts in relation to the arrears of rent Ms Staver owed. Accordingly, the Appeal Panel is of the view that, even if leave to appeal were granted, Ms Staver has no real prospects of success in an appeal on ground 1 or 3.

The Tribunal Below Refused to Receive Ms Staver's Deposit Records

1. The substance of the second ground of appeal relied on by Ms Staver is that the Tribunal at first instance refused to accept as evidence, and failed to have regard to, her stamped deposit book stubs recording her rent payments. In oral submissions she said that she was told by the Tribunal Member below that she would have to provide bank statements showing the payments coming out of her account if she wanted to have her evidence of payments accepted.
2. Ms Staver did not provide any evidence by way of a sound recording or transcript of what occurred at the hearing. Bridge Housing did not accept that Ms Staver's version of what occurred was correct.
3. If the Tribunal did refuse to accept and consider relevant documents capable of being evidence put forward by a party, this may, depending on the circumstances, amount to a failure to take such measures as are reasonably practicable to ensure that the party in question has a reasonable opportunity to be heard and to have the party's submissions considered. This may amount to a breach of s 38(5)(c) of the Act and a denial of procedural fairness. If such a breach or denial of fairness were made out, this would be an error of law and leave to appeal on this ground would not be required.
4. If, however, what occurred was that a party attended a hearing after receiving notice of the type of, and basis for, the application and produced a disorganised bundle of miscellaneous documents and was unable to explain to the Tribunal how those documents supported the case that the party was attempting to make, the Tribunal might be justified in giving that material little, if any, consideration or weight and might even be justified, depending on the circumstances, in refusing to accept the material as relevant evidence in the proceedings.
5. In the present case, it is not necessary for the Appeal Panel to determine what actually occurred at the hearing below. Even if it is accepted for the purpose of argument (but without deciding) that the Tribunal at first instance failed to comply in some way with s 38(5)(c) or a denial of procedural fairness occurred, it does not necessarily follow that the appeal should be allowed on this ground. In circumstances such as these, the Court of Appeal explained the appropriate approach as follows in Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; 86 NSWLR 527 at [4 2]: That general principle is, however, subject to an important qualification, stated at the practical level, by asking, "Would further information possibly have made any difference [to the decision]?": Stead v State Government Insurance Commission [(1986) 161 CLR 141] at 145; Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 (2003) 77 ALJR 1909 at [28]. An appellate court will not order a new trial where the inevitable result would be that the same order would be made on a retrial. ….
6. Consequently, the Appeal Panel has to consider whether it would have made any difference to the outcome of proceedings SH 15/06699, if the Tribunal below had considered in detail Ms Staver's three deposit book stubs that she submitted in support of her appeal or the bundle of approximately 90 stubs provided by Bridge Housing (which included those three stubs relied upon by Ms Staver). There was no suggestion that there were any other documents that Ms Staver attempted to have considered by the Tribunal below.
7. For the reasons already given above in relation to the grounds 1 and 3 and having reviewed the bundle of 90 stubs, the Rent Statement dated 22 April 2015 and the spreadsheet prepared by Bridge Housing, which included all of the deposits recorded in the stubs, the Appeal Panel is satisfied that even if the Tribunal below had considered all of the deposit stubs, the inevitable result would have been that Ms Staver's rent arrears would have been as found by the Tribunal on 22 April 2015. In other words, there was no documentary material put before the Appeal Panel to suggest that the result would have been different if the Tribunal had looked at and checked what Ms Staver described in ground 2 in her notice of appeal as "Deposit Check Books payments with Bank Stamps and amount and days".
8. On these bases, the Panel concludes that Ms Staver has no real prospects of being successful in her appeal in so far as it is based on ground 2.

Conclusion on Prospects on Grounds 1, 2 and 3

1. Accordingly, there are no real prospects of success on any of the grounds of appeal raised by Ms Staver in her notice of appeal. One consequence of this is that there will be no likelihood of any injustice being suffered by Ms Staver if an extension of time to lodge an appeal based on these grounds is not granted.
2. It should be noted, however, that Ms Staver raised additional issues in the material submitted in support of her appeal. As Bridge Housing has responded to these issues, the Appeal Panel has determined that it should consider those issues before reaching a final conclusion on the question of potential injustice if an extension of time is not granted.

Additional Issues - Prospects of Success

1. These additional issues can be summarised as follows: 1. Bridge Housing overcharged her as a result of miscalculating her rent and accordingly she was not in arrears as found by the Tribunal; 2. Requested repairs were not carried out by Bridge Housing and this justified her not paying rent for a period or periods and the rent for such periods should be deducted from the rent arrears as found by the Tribunal; and 3. Bridge Housing failed to provide a connection for a washing machine in the premises and, as a result, Ms Staver incurred laundry expenses of $6,912 from mid-2011 to mid-2015 and these should be set off against her arrears of rent.
2. It was not suggested that these three additional issues referred to in the preceding paragraph were raised before the Tribunal at first instance, whether in Bridge Housing's termination proceedings, in Ms Staver's application to have the first decision set aside for procedural irregularity or in any other proceedings brought by Ms Staver in relation to her tenancy with Bridge Housing. Nor were they raised as grounds of appeal in the notice of appeal. In fact, they were raised for the first time by Ms Staver in the written submissions and other material she provided in support of her appeal. Nonetheless, Bridge Housing in its reply material attempted to address those issues.
3. Whilst there are exceptions to the principle that a party is bound on appeal by the way in which the case was conducted at first instance, they do not apply where the new ground could possibly have been met by calling evidence at the first instance hearing or if, had the point been raised below, the other party might have conducted its case below differently: Mamo v Surace [2014] NSWCA 58; 86 NSWLR 275 at [76].
4. In respect of these additional issues, the fact that there was evidence that Bridge Housing would have led had the issues been raised at first instance and the type of evidence are demonstrated by the material it filed in reply to Ms Staver's written submissions and material.
5. Applying the principle referred to by the Court of Appeal in Mamo, we would conclude that Ms Staver's appeal, to the extent that it is based upon those three new issues, would have no real prospects of success.
6. Furthermore, even if it was found to be inappropriate to apply the principle in Mamo in the context of proceedings in the Tribunal and if the Appeal Panel decided, for example, to proceed under s 80(3) of the Act to deal with the appeal by way of a new hearing in which Ms Staver's evidence and Bridge Housing's evidence in relation to these issues was received, we are satisfied that any appeal or hearing based on those issues and supporting material would have no real prospects of success for the reasons set out in the following paragraphs.

Overcharging of Rent

1. As to the issue of whether Bridge Housing overcharged Ms Staver as a result of miscalculating her rent and accordingly she was not in arrears as found by the Tribunal, the only overcharging identified by Ms Staver was for the period when she was charged $201.17 per week. On the Bridge Housing Rent Statement dated 9 February 2015 provided by her, Ms Staver wrote "wrong" next to the rent charged between 4 February 2013 and 29 April 2013.
2. The material provided by Bridge Housing included a letter dated 29 November 2012 informing Ms Staver that her rent would increase to $201.17 from 10 December 2012. This was apparently based on information in the Centrelink document (dated November 2012) which indicated that Ms Staver received casual earnings of $320 in "one period" and Maintenance Income of $965.81 annually in addition to her Centrelink allowance, Family Tax benefit and Rent Assistance payments.
3. The Bridge Housing material also included a note from Ms Staver dated 15 January 2013 stating that she was "not working any at 'Proudex' Company and I reported to Centrelink at that time. I'm back to New Start Allowance since 10.12.12".
4. By a letter from Bridge Housing dated 2 May 2013, Ms Staver was informed that her rent would be reduced from $201.17 to $160.93 per week from 14 January 2013. This retrospective reduction was given effect to by a rent decrease adjustment credit of $643.84 to Ms Staver's rent account on 3 May 2013. This adjustment was recorded as "Rent Decrease Adj" on Bridge Housing's Rent Statement dated 9 February 2015 (provided by Ms Staver as part of her material) and on the Rent Statement dated 22 April 2015 which was before the Tribunal below at the hearing on 22 April 2105.
5. Accordingly, to the extent that higher rent was incorrectly charged to Ms Staver by Bridge Housing for a period, this was remedied by a credit that was given to rectify the situation in May 2013. Ms Staver has no prospect of success in establishing that she was not in arrears as found by the Tribunal because Bridge Housing had charged her the wrong rent for the period in early 2013 identified by Ms Staver.

Requested Repairs not Carried Out

1. The next issue is whether any requested repairs were not carried out by Bridge Housing and, if so, whether this justified Ms Staver not paying rent for a period. It can be noted that in oral submissions Ms Staver did state that she had not paid rent for perhaps one or two months in late 2014 or 2015 because of repairs that she said were unattended to by Bridge Housing. To this extent, it appears that Ms Staver admitted that she had not paid rent every fortnight as she elsewhere asserted.
2. The potentially relevant material provided by Ms Staver (summarised in items (3), (5), (10) and (11) in [21] above) did not establish that any particular repairs were requested and not carried out. In any event, if a failure to carry out repairs had led to a reduction in services or facilities provided under the tenancy agreement, Ms Staver could have requested a reduction in rent under s 43 of the RTA and made an application for an excessive rent order under s 44(1)(b) if a rent reduction was not agreed. No such a reduction was apparently sought or obtained. In the absence of such a reduction, Ms Staver was required to pay the rent as determined under the tenancy agreement.
3. Further, in so far as there might have been a right to set off any claim for damages for breach of the tenancy agreement by Bridge Housing in this regard (a matter we do not have to decide in this appeal), no such claim was made nor was evidence provided of any damage suffered, even if a breach had been established, which was not the case.
4. In these circumstances, we are satisfied that Ms Staver has no real prospects of success in establishing that the rent arrears found by the Tribunal were not owing because of repairs which had been requested and not carried out.

The Laundry Claim

1. The last additional issue raised is the claim that Bridge Housing failed to provide a connection for a washing machine in the premises and that, as a result, Ms Staver incurred laundry expenses of $6,912.00 from mid-2011 to mid-2015 for which she claimed reimbursement.
2. Ms Staver provided only one undated laundry docket relating to 1 item of "Wash, Dry & Fold", for which she was charged $72.00, as evidence, she claimed, of her weekly laundry expense for a 4 year period. She arrived at the figure of $6,912.00, which she claimed should be reimbursed, by multiplying $72.00 by twice the number of months in the period from mid-2011 to mid-2015.
3. Ms Staver's evidence lacks credibility not only because only one undated docket was provided in support of it but also because her calculation did not reflect the alleged basis for the claim. She asserted that she paid $72.00 weekly for laundry. If this was so, her claim would have totalled approximately $14,976.00 ($72.00 x 208 weeks). As noted above, the figure of $6,912.00 was arrived at by multiplying $72.00 by twice the number of months in the relevant period. If Ms Staver had actually incurred those expenses, it is very unlikely that she would have understated her claim by such a significant amount. The Appeal Panel is satisfied that Ms Staver's material does not provide any proper basis for concluding that her claim in this regard has any substantial prospects of success.
4. Furthermore, Bridge Housing provided some photographic evidence that there were connections available in the premises for a washing machine and thus it is unlikely that Ms Staver would have any real prospects of establishing the underlying basis for this claim.
5. Finally, as noted in respect of the previous issue, if, under the tenancy agreement, Bridge Housing was required to provide laundry facilities and it did not, this would have amounted to a reduction in services or facilities provided under the tenancy agreement and Ms Staver had her remedies under ss 43 and 44(1)(b) of the RTA.
6. For these reasons, we are satisfied that there are no real prospects of Ms Staver succeeding on an appeal on the basis of the laundry claim.

Conclusion on Prospects on the Additional Issues

1. Accordingly, the Appeal Panel is also satisfied that Ms Staver had no real prospect of success on any appeal based upon the three additional issues raised in her submissions and other material.

Conclusion on Extension of Time and Appeal against the First Decision

1. Whilst the considerations of the length of the delay, the explanation for the delay and prejudice to Bridge Housing if an extension were granted, may tend slightly towards exercising the discretion to grant an extension of time, the Appeal Panel is of the view that Ms Staver's lack of any real prospect of success on any basis in her appeal weighs very strongly against granting the extension.
2. Taking into account all of the factors referred to above, the Appeal Panel is not satisfied that Ms Staver has proved "that strict compliance with the rules will work an injustice upon [her]" as required in order to justify the exercise the discretion in her favour: Gallo v Dawson (1990) 64 ALJR 458 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38] and Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22(1)].
3. Consequently, the Appeal Panel has decided to refuse Ms Staver's application for an extension of time in which to appeal against the first decision. As her appeal in respect of the first decision was lodged out of time, the Appeal Panel also proposes to dismiss the appeal against the first decision.

Appeal in Respect of the Second Decision

1. The notice of appeal in so far as it related to the second decision was lodged within time. One difficulty with this appeal is that, as noted above, Ms Staver did not challenge in her notice of appeal the order dismissing her application to set aside the first decision for procedural irregularity. Another is that none of the grounds of appeal relied upon by Ms Staver relate to the second decision nor was any error on the part of the Tribunal below in relation to that decision identified by Ms Staver in her oral or written submissions. These matters are a sufficient basis for dismissing the appeal in respect of the second decision.
2. Further, however, the Appeal Panel has already considered whether the only procedural irregularity said to affect the first decision, namely the refusal to receive or consider the "Deposit Check Books payments with Bank Stamps and amount and days", made any difference to the outcome. We concluded that the outcome would have been the same if Ms Staver's material had been received and considered. Ms Staver would have been found to have owed arrears of rent in the amount held by the Tribunal below and the Tribunal would have been justified in making the orders that it did.
3. Consequently, the appeal in respect of the second decision should also be dismissed.

Orders

1. As to order 3 made on 22 April 2015, Ms Staver has remained in possession of the premises as a result of the stay granted on 2 July 2015 and Bridge Housing has been denied possession. On the other hand, Ms Staver has occupied the premises for a number of years and was previously allowed a period of 28 days to vacate. Having regard to the length of occupation, it is appropriate to allow Ms Staver a short period of time to deliver vacant possession. Consequently the Appeal Panel proposes to vary the date until which the possession order is suspended to 14 days after the date on which these orders are published.
2. As noted above, there was a transcription or typographical error in order 6 made on 22 April 2015 in relation to the period for which the rental arrears were owed. Whilst Ms Staver did not accept that the amount of rental arrears was correct, she made no submission in opposition to the date being corrected to reflect what was before the Tribunal at first instance. The President has power to direct that the correction be made under s 63(1) of the Act. It is convenient and avoids unnecessary procedural steps if the direction is given as part of the orders made in relation to this appeal.
3. The intention is that the orders made on 22 April 2015 should be varied and amended to read as follows: 1. The Residential Tenancy Agreement is terminated in accordance with: S 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. Failure to pay rent in accordance with agreement. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 15-Sep-2015. 4. The tenant shall pay the landlord a daily occupation fee at the rate of $23.71 per day from the day after the date of termination, namely 23-April-2015 until the date vacant possession is given to the landlord. 5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 6. The tenant … is to pay the landlord … the sum of $6,850.60 for rent owed under the residential tenancy agreement for the period from 11-July-2014 to 22-April-2015. The payment for rent owed is due on or before 20-May-2015.
4. Otherwise, the Appeal Panel proposes to make orders in accordance with its conclusions above.
5. Accordingly, the orders in this matter are as follows:
6. The Appeal Panel ORDERS that: 1. The application for an extension of time in which to appeal in respect of the decision made on 22 April 2015 in proceedings SH 15/06699 (the First Decision) is dismissed. 2. The appeal in respect of the First Decision is dismissed. 3. The appeal in respect of the decision made on 27 May 2015 in proceedings SH 15/34973 is dismissed. 4. Order 3 made on 22 April 2015 is amended by deleting "20-May-2015" and inserting in its place "15-Sep-2015".
7. The President DIRECTS the Registrar under s 63(1) of the Civil and Administrative Tribunal Act 2013 (NSW) to amend order 6 made on 22 April 2015 in proceedings SH 15/06699 by deleting "25-June-2014" and inserting in its place "11-July-2014".

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

Amendments 01 September 2015 - Added missing date for second decision under appeal to coversheet 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: 01 September 2015