Steward v McKay

NCAT Appeal Panel|2018-11-21

Summary

This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) dated 11 July 2018 (the Decision).
The appellant, Ms Steward, was the former tenant of residential premises in Chatswood NSW. The second and third respondents were her co-tenants. The third respondent was their landlord.
By application RT 18/14630 filed 27 March 2018, the appellant sought an order regarding the payment of a rental bond pursuant to s 175 of the Residential Tenancies Act 2013 (NSW) (the RT Act). The reasons stated for that order were as follows: I was evicted and locks were changed without consultation or agreement by me from [XXXX] Chatswood by the other two co-tenants and the Managing Agent. I have been purposefully left out of communications between the other co-tenants and the Managing Agent in the distribution of Bond Money. I paid the $7200 bond at the beginning of the lease, and decisions have been made how to allocate the Bond at the conclusion of the lease by the other co-tenants and the Managing Agent unlawfully without my knowledge or consent. The Managing Agent and the co-tenants have unlawfully requested that the Bond be used to pay the Landlord, the break in lease fees/4 weeks rent without my consent. It was not my decision to break the lease and I am being penalised financially by the other co-tenants' decision not to continue with the lease after I was evicted by both the Managing Agent and the co-tenants. I am seeking to be reimbursed bond of $7200.00.
A hearing was held on 11 July 2018. During the course of the hearing, the Tribunal gave oral reasons for the following orders which were made at the conclusion of the hearing: 1. The first and second respondents Christy McKay and Jaime Anderson are to pay the applicant the sum of $2970.17 being the refund of part of a rental bond in respect of a property at [XXXX] Chatswood. Such payment is to be made on or before 18 July 2018 2. The applicant is to pay part of the legal cost incurred by the first and second respondents. Such costs are assessed by the Tribunal in the sum of $1500. The assessed costs are payable on or before 18 July and may be offset by the respondents against the monies payable to the applicant under order 1 herein. 3. Reasons for decision: Detailed oral reasons were provided to the parties through discussions at the hearing

Background

To understand the grounds of appeal agitated by the appellant, it is necessary to provide more detail about the conduct of the hearing, including the directions made prior to the hearing.
As noted, the application was filed on 27 March 2018. The application related to a residential tenancy agreement entered into by the parties on or about 5 December 2017 (the RTA). This is the date the RTA was signed by the appellant, the other parties having each signed the RTA on 25 November 2017. Subsequent to the RTA being signed, a bond of $7,200 was provided to the landlord or his agent, which was subsequently lodged with New South Wales Fair Trading, Renting Services.
It is common ground that the bond amount was in fact paid by the appellant, but subject to an agreement as to the rent to be paid for the premises by the appellant on the one hand and the first and second respondents on the other hand.
It is also common ground that the bond was paid to the landlord's agent on 29 March 2018; that is, two days after the appellant filed her application to the Tribunal. The appellant told us that she had agreed to the payment being made as she did not want the landlord disadvantaged. Here we note it was further common ground that the tenancy the subject of the RTA came to an end within the first six months of the twelve month RTA. Accordingly, the landlord was entitled to a break lease fee, pursuant to the terms of the RTA, of the equivalent of 6 weeks of rent. As the rent was $1,800 per week, the landlord was therefore entitled to a break lease fee of $10,800.00.
On 23 April 2018, the matter was first listed for hearing and conciliation. The hearing did not proceed on that day, having been adjourned on the application of the appellant. On that day, she had another matter before the Fair Work Commission.
The matter was next listed for hearing and conciliation on 26 April 2018. On this occasion, the application was amended by changing the name of the only respondent named on the application, being the landlord's agent, to that of the landlord. Her co-tenants (the present first and second respondents) were joined as respondents. The matter was otherwise adjourned.
The matter was next listed for conciliation and hearing on 17 May 2018. The matter was referred to conciliation but did not resolve. The Tribunal, constituted by Member Bliim made orders for the management of the matter which relevantly included the following: 5. The applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant intends to rely at the hearing by 31-May-2018. 6. The respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the respondent intends to rely at the hearing by 14-Jun-2018. The landlord shall include all documents on which the landlord intends to rely in support of his claim as referred to in Order 3 above. 7. The applicant and the tenant respondents shall provide to the landlord and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant and the said respondents intend to rely in answer to the landlord's claim at the hearing by 28-Jun-2018. . . . 11. All evidence from a party's witness(es) in support of that party(ies) must be in the form of a statement, statutory declaration, affidavit or expert report as appropriate. 12. Leave is granted to all parties to be represented.
It is necessary to refer to the discussion about representation for the appellant, as this is one of the grounds of appeal. We have been provided by the appellant with a transcript, or at least a partial transcript of the proceedings before the Member. She relies in particular on passages where the Member said: Look, the other, the issue, just getting back to the issue for the moment, of legal representation, it seems to me, if there is an ABA between yourself and the, Ms McKay, that's a good reason why you should, certainly Miss McKay should be represented and I think in your case simile represented and any of the other parties if they wish to be represented, I would, I would think that that would be appropriate. I normally don't bind a member who is hearing a matter on something like this, but I think in this case it's probably not a bad idea. I would be of a mind to make an Order that any party seeking, wishing to be legally represented can do so, and have leave to do so for the hearing. And if anyone wants to try and argue as to why I shouldn't make that direction, it's body better that it be done now. Given what I have heard today, it's probably a good idea . . .
At this point Mr Patrech indicated that he did not hold a current practising certificate. We understand that Mr Patrech, who appeared before us as a McKenzie Friend for the appellant (see McKenzie v McKenzie [1971] P 33; [1970] 3 WLR 472; [1970] 3 All ER 1034), is the fiancé of the appellant. He has stated in various submissions and other correspondence that he is a "Lawyer (Non-practising), Mediator and Bully-Blocking Expert)".
The Member continued: If Ms Steward wants someone to represent her and gives authority for someone to represent her, that can happen. They can either be you or some other legal practitioner, if there is someone who is inclined to do so. But I just think it's probably, normally I leave this issue to the member who is going to hear the matter. I don't like to bind someone in future as to what situation, but from what I've heard today in relation to the issues, and the AVO issue in particular, I think it probably is appropriate if we just deal with that now and I can give directions then for the landlord's claim to be included joined up with this, so that when it comes to the hearing, everyone can be represented.
As noted, the direction ultimately made by the Member was that all parties could be represented.
The matter was subsequently listed for hearing on 11 July 2018. On this occasion, the Tribunal was constituted by Member Ringrose. We had been provided with a partial transcript of the proceedings by the appellant, and what appears to be a full and complete transcript of the proceedings by the first respondent. We will deal with what happened at that hearing as we consider each ground of appeal.

Nature of the appeal

Section 80 of the NCAT Act provides that an appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Relevantly, an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred at [13] to the following as constituting errors of law: 1. whether there has been a failure to provide proper reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law has been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (mandatory) consideration; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; 8. whether the decision was so unreasonable that no reasonable decision-maker would have made it.
Any other ground of appeal requires leave. Ordinarily it is appropriate to grant leave to appeal only in matters that involve an issue of principle, a question of public importance, an injustice which is reasonably clear or if the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result: see Collins v Urban [2014] NSWCATAP 17 at [84].
We shall consider each of the identified grounds of appeal in turn. As the Appeal Panel noted in Prendergast at [11], it is necessary that a question of law be stated with precision, as an appellant's right to appeal arises from the question of law. However, in circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally: Prendergast at [12]. Therefore, it is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise.

Grounds of Appeal

The grounds of appeal are stated as follows: [1] a third-party was not present at hearing - the representative for Ms Steward who had been given leave to represent Ms Steward at the prior hearing on 17 May 2018 and such leave was presented in such a way so that Ms Steward believed to be a binding order. [2] Ms Steward's evidence was ignored because it was determined to be non--compliant with orders from 17 May 2018. This is disputed and Ms Steward's representative was unable to explain this. [3] Calculations used were inconsistent and did not take into account 4 weeks rent in advance paid by Ms Steward. [4] Ms Steward was unable to play the crucial evidence she had which proved she was evicted.
We will refer to these grounds respectively grounds (1), (2), (3) and (4). We shall deal with each in turn.
We note that the relief sought by the appellant, and confirmed during the course of the hearing, was that the first and second respondents pay her $7,200 (being the bond), together with a further amount of $1,738, which we understand to be one calendar month's rent, paid by her in March 2018. The appellant abandoned claims for interest and the cost of application fees at the appeal hearing.
As we explained at the hearing in relation to the claim for costs, $1,500 could not be claimed simply because the appellant had been ordered to pay the respondents $1,500 in the Tribunal proceedings.
Before dealing with the substantive grounds of appeal, it is appropriate to make three observations.
First, we suggested to the appellant on several occasions during the hearing that we thought that she was disputing the way in which the Member went about the amount, if any, which ought to be paid to her by those co-tenants. We invited her to set out the basis on which she asserted that she was entitled to payment of $7,200. However, the only submission that was made by the appellant was that, as she had paid the bond, she was entitled to its return.
The second point is that there was evidence before the Tribunal (namely the statements of Ms McKay and Ms Anderson), that:

the appellant could afford to pay the bond, but could only afford to pay $400 per week rent;
as the rent was $1,800 per week, Ms McKay offered, and the appellant accepted, that Ms McKay and Ms Anderson would pay $1,400 per week, and the appellant would pay $400 per week, and "then the difference makes up [their] portion of the bond over the year";
other expenses such as utilities and water would be shared one third each as between the three co-tenants.

However, the appellant never filed any evidence of her own which suggested that the arrangement come to by the tenants was anything other than that stated by McKay.
The third point is that the appellant was partially successful in her claim. She asked that the co-tenants pay her the total amount of $7,200. The co-tenants disputed that the appellant was entitled to any amount. However, the Tribunal ordered the co-tenants to pay her $2970.17.

Ground (1)

We think it appropriate to consider that this ground does raise a question of law, that is, a denial of procedural fairness, and that leave to appeal is not required.
We think it clear that Member Bliim granted leave for Mr Patrech to represent the appellant at the hearing before the Tribunal. It is not clear to us from the transcript why Member Ringrose refused to allow him to do so. If Member Ringrose was concerned about the possibility of conflict, given that Mr Patrech was the appellant's fiancé and had in fact provided a statement to the Tribunal, he does not say so in terms.
We find that the Member was justified in his criticisms of the proper preparation of the case, the amount of materials he had to deal with, the lack of relevance of those materials provided and the failure of Ms Steward to provide a statement herself. However, we are not persuaded that the Member was acting procedurally fairly in not allowing Mr Patrech to represent the appellant where leave had been granted to do so by Member Bliim. To a limited extent, we find that the appellant was denied procedural fairness.
We say the extent is limited for two reasons. The first is that the Member clearly gave Ms Steward the opportunity to provide her views on his initial thoughts as to the calculation of the amount due to her. The transcript of the hearing records the following: Member Ok, well its 4 times 400, which is 1600 is the Applicant's contribution. And on the proposition I'm putting to you now for consideration or for address, it's 1800 times, sorry 1400 times 4 is the contribution of the Respondents. Then, assuming that you've got your material to establish those two other claims, that is the cleaning and the electricity, then they should be taken into account in equal proportions. Now, I sometimes say to parties in this jurisdiction, particularly the unrepresented ones, that because I've only done 48 years at the bar, I have a tendency to form views initially, about what is appropriate and what should happen. I then assure them that I will not conclude a view unless and until all submissions have been dealt with and heard. That basis of addressing the matter, when I read the evidence and take into account the salient bits that I've put to you about how this came to an end, seems to me to be an appropriate way to address the whole problem, coming back to those figures. I'm going to just speak to the Applicant. Have you heard what I've been saying? Ms Steward Yes I have Member. Member Thank you. Now, do you understand what I was talking about with Mr Murphy? Ms Steward Yes Member. Member You're in a bit of a difficult position because you've got no evidence to refute any of that. Do you want to say anything about why I should or shouldn't adopt that sort of approach? Ms Steward Um, Member Member Given that you've got no evidence to support anything you say. Ms Steward Not with a statement. Um, on the 1st of March I did text Ms Anderson and I did say to her that we needed to talk but next week, because I had a sick Grandmother that I was attending to. Member I'm not interested in that. I'm interested in whether you want to try to sort it out or not. Ms Steward Well I, yes I want to sort it out Member. Member Right, well, I've just suggested a way of sorting it out. Ms Steward But I don't believe that that's fair… that breakdown.. Member But Member if it is of some assistance, that if we adopt your approach to it in the $5,600 is the amount that's owed then what we say is that there was a contribution by the co-tenants of $2,200 towards that bond up to the point where the tenancy ended and then the expenses, the share of the Applicant's cost of those expenses is $552.93 which we say would leave $2,847.07. Member What do you want to say to all that? Ms Steward Member the reason I paid a reduced rent Member What do you want to say about all of that, I don't want to any explanations if its not in your statement, then. Ms Steward Well I don't have a statement, that's the issue. Member I know that's the problem, if its not in your statement then you're not going to be any different to anyone else who comes to this Tribunal if you haven't got a statement on you you're not going to suddenly acquire the right to answer things orally now. Because that is further evidence which I'm not giving you leave to make. I'm inviting you to comment on things but I'm not inviting you to add factual material which is not already in your evidence, do you understand what I'm saying. Ms Steward Yes Member. The respondents mention children in their statements, of which there were three children Member But I'm interested only in the lease breakdown, the tenancy breakdown, the financial arrangements and the only evidence I have of that is in the 2 affi.., 2 statements being put on and they both say the same thing. Ms Steward I don't know how to answer Member, I don't agree with it and unfortunately I haven't put in a statement but there is evidence in my evidence books that does suggest that there are other children living at the premises Member Doesn't matter about what the other children are doing, if you wanted to have people visiting or staying. Ms Steward Absolutely Member And you argued that was your right as a tenant, the financial arrangements for the tenancy, however, the only evidence I've got of them is what's in here. Ms Steward It is only statements Member And I've already argued with Mr. Murphy about the facts that is right if there was $200 a week that was coming in effect out of the bond credit it wouldn't even get to end of the year, but I've already argued with Mr. Murphy on the evidence that's against his interest, that what was said was that'll cover the bond until the end of the year. Whether you agree with it or you don't that's the only evidence I've got about the arrangements for this tenancy. That's the, I don't think you realise the difficult situation that you've put yourself in by saying I haven't got to worry about that, I'll just put these documents in Ms Steward Hmm Member The only thing, the only thing the Tribunal is interested in this case is the arrangements for the tenancy. If I wanted to get involved in other issues between the parties' I would be here for a month and I certainly don't attend in doing that. It's not part of what I have to do in this case anyway. Do you understand how, what the calculations that I was talking about with Mr. Murphy? Ms Steward Yes Sir Member Do you understand how they work? Ms Steward Yes Member

The second reason is that, in fact, the Member even allowed Mr Patrech to make submissions on the issue, before he cut him off. In this respect, the transcript records: Member No, Mr Partech, Ill give you, let me just, I'll give you the calculations again. We start with $7,200, we then on the evidence assume that the $7,200 is going to be eroded away because the evidence I've got here is that it was going to be the benefit was going to fade away after 12 months Mr Patrech Only two third of it erodes away she, at the end of it she keeps her third and they keep their thirds so there's only two thirds that erodes away Member No No you've.. [inaudible] Member If the $7,200 dollars was going to erode or benefit the total was going to go into the extra money over a year then the amount the $7,200 reduces per week to make it last a year is a - Mr Partech I'm not going to argue with you. Mr Patrech 2400 2400 2400 she's paying them their 2400 over a year which is 100 dollars a week, if she keeps her and they keep theirs. Member No Mr Patrech Your eroding her bit at the end Member I am going in accordance with the only statement that I have got in this case and that statements says, and I will read it, you see all of this could have been disputed Mr Patrech but know body bothered to do it. This is the only evidence that I have got is the talk about paying $400 a week for the bond that can offset the less rent and then that's what's attributed to your partner Ms Steward and then the next thing is so as the rent is $1800 a week and a third of 600 per week Jaime and I will pay $1400 a week, you and pay $400 per week and then the difference makes up our portion of the bond over the year. A year is 52 weeks unless you want to get tricky and call it 52.17, if you're going to erode the bond over a year it the benefit of the bond that Miss Steward has reduces by 138.46 per week. Mr Patrech And that leaves her with none, she should have 2400 left at the end of the year and they should have 2400 left. Member No ones got 2400 left at the end of the year Mr Patrech As contribution, should be that way otherwise its double dipping with respect Member Member If you wanted to apply it the other way then I'll reduce it by $200 a week because that's the difference in what they're paying. Mr Patrech Regardless the evidence in our bundles that shows that that was not the case Member Well nobody has bothered to put any statements on Mr Patrech and I'm not going to go hunting through a bundle of documents, I've already been told that Ms Steward has not got a statement in this matter and I'm not going to go trawling through other material and a bundle to try find somebody's case when they should've put their evidence on. Mr Patrech One document [inaudible] Member Mr Patrech Mr Patrech Member you will decide what you do, I understand that.

We ask ourselves whether the full participation of Mr Patrech would have made any difference to the outcome in these circumstances. As:

Ms Steward had not provided any evidence in the form of a statement as directed by Member Blim; and
Member Ringrose took the view that the voluminous evidence that the appellant had filed (which was clearly prepared for another matter), was not relevant to the application before him, we consider that the answer must be that Mr Patrech's participation would not have made any difference to the outcome, especially in circumstances where he did have the opportunity (albeit limited) to participate, as did the appellant herself. We accept of course that litigants appearing in person are often nervous or uncertain of the environment and their situation. But the primary rule is that litigants have the carriage of their own matters and the overwhelming majority of litigants in the residential tenancy jurisdiction appear for themselves.

We do not consider that the appeal should be allowed on this ground. Accordingly, we dismiss this ground of appeal.

Ground (2)

The second ground of appeal is that Ms Steward's evidence was ignored. We note that her evidence also included witness statements of Mr Patrech. True it is that the material filed by the appellant was voluminous and the Tribunal might be forgiven for not readily identifying other statements within it. But included in the materials were two statements of Mr Patrech of 4 April and 27 May 2018. The Member did not refer to the either of the statements.
As to the statement dated 4 April 2018, this was prepared by in relation to the appellant's workers compensation claim. The only component of the statement relevant is that Ms Steward paid the $7,200 required for the bond, that Ms McKay was "cash poor" at the time, and that Ms Steward was taken aback as Ms McKay earned in excess of $300,000 per year.
In relation to the statement of 27 May 2018, the only potentially relevant paragraphs were as follows: 6 The residential situations particularly concerning as [the appellant] had moved in with Miss McKay, her daughter 20-year-old daughter Jamie, and one year old grandson in rented premises and even though Miss McKay was an executive general manager earning $300,000 per annum, she asked Lisa to pay the $7200 bond, which she has subsequently withheld from Lisa, including by making false statements to statutory bodies and offices which are now the subject of Ike act and as complaints convince by me 21 Miss McKay, particularly through her daughter, maintain the bullying, and Lisa paid a further $1,760 as one months rent in advance, - against my advice-after Miss McKay demanded payment as part of her relentless [sic].
This was an issue we discussed at length during the appeal. The suggestion was that the overlooked evidence would have resulted in a different calculation being carried out by the Member. We reject that submission, namely that had Member Ringrose taken this evidence into account, he would or should have reached the outcome sought by the appellant, that is that the first and second respondent pay her $7,200.
We asked Mr Patrech to identify any particular documents from the evidence before the Tribunal which he submits, on behalf of the appellant the Tribunal ought to have taken into account. The first was his statement of 27 May 2018. We have considered that statement above. We do not consider that this in itself, or in conjunction with the other "overlooked" materials, would have made any difference to the outcome.
The second document was a COPS entry dated 12 March 2016, butthis does not relate in any way to the claim before the Tribunal.
There were also some communications between Mr Patrech and Ms McKay, which are undated. Such communications appear to be an attempt to resolve the difficulties in the relationship between the appellant and Ms McKay. Here we note the two had been work colleagues, but the relationship had broken down and ended up with the taking out of an apprehended violence order. The correspondence between Mr Patrech and Ms McKay ended with Ms McKay asking Mr Patrech not to contact her any further. We do not consider that this in itself, or in conjunction with the other "overlooked" materials, would have made any difference to the outcome.
There is also an email from Ms McKay to the appellant dated 2 March 2018. Some emphasis was placed on this document by Mr Patrech during the hearing. It appears to relate to the communications between Mr Patrech and Ms McKay referred to in the previous paragraph. The email concludes: Also, Jaime and I now have concerns for Safety. I was contacted by Adam by messenger last night. He also viewed me via LinkedIn. I do not know this person however during his attempt to advocate for you he gave me a rundown of his history, including his 5 DVO breaches amongst other things. He has now contacted me today threatening to contact my employer. Further, suggesting I'm pulling you at work?? This issue has no bearing on or relation to work. I was clear about that and I have done nothing to suggest that your job is compromised. I am capable of keeping the issues separate as this has nothing to do with your employment. Adam's background history today has reinforced our genuine safety concerns and reason for talking to you about it. I now have Jamie scared to sleep alone as he knows where we live. I advised him not to contact me or I would involve the police. I would appreciate a reply to my email this afternoon advising what you would like to do. If I do not hear from you, my intention to advise the agent and have the locks changed. I do not want drama or stress. I would like a quick resolution and to move on and no doubt do you.
We do not consider that this communication in itself, or in conjunction with the other "overlooked" materials, would have made any difference to the outcome before the Tribunal.
Further there is a transcript of (apparently a telephone) conversation between a Mr James Heddo and Mr Patrech. Mr Heddo was responding to a call from Mr Patrech. In this conversation Mr Patrech notes that he is doing a PhD, is a "world expert" on workplace bullying and post-traumatic stress disorder, a lawyer, a clinically trained psychologist, a mediator, and has an MBA in human resource management and marketing and has six degrees. There is nothing in this transcript of any relevance to the proceedings before the Tribunal.
Another document relied upon by Mr Patrech in this appeal was a recording of a telephone conversation between a police officer and Mr Patrech. We understand that this recording was made without the knowledge of the policeman. In those circumstances, it was illegally obtained and no further reference will be made to it.
There was also was a document dated 6 March 2018 from the solicitors for the Australian Turf Club (Ms McKay's employer) to Mr Patrech. The letter requested that he immediately cease and desist all communications with any member of the Australian Turf Club's staff, including Ms McKay. Again this communication has no relevance whatsoever to the matter before the Tribunal or the appeal.
The next letter or communication relied upon was an email from Mr Patrech to Mr Gee of FCB Workplace Law, which commences with a heading "without prejudice". As it appears this is an attempt to resolve the application, it is privileged and could not have been considered by the Tribunal.
As to another document relied upon (an invoice for cleaning in the sum of $990), the relevance of this document to the appeal was not readily apparent and it was not explained to us. We are not satisfied that it should be taken into account in this appeal. Finally, there was a "Tendency Evidence Notice" issued by Mr Patrech to FCB Workplace Lawyers in relation to an application by the appellant for an apprehended violence order in respect of Ms McKay. It has no relevance to the matters before the Tribunal or the appeal.

Conclusion

Bearing in mind all these matters, while there may have been some minor infelicities in the way the hearing unfolded, we see no injustice on this basis. If the appellant disputed the terms of the oral agreement as put in the statements of evidence of the respondents before the Member at first instance, then the appellant could have put evidence about that important issue in a statement for the original hearing or at least raised it when asked by the Member, but she failed to do so. This ground does not constitute an error of law. Consequentially, leave is required.
We are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
Leave to appeal should be refused.

Ground (3)

This ground was that the calculations used were inconsistent and did not take into account the week's rent in advance paid by Ms Steward.
We asked both Mr Patrech and the appellant to explain on a number of occasions how they say the calculation worked through by Member Ringrose was in error. They were unable to articulate in any coherent way why the Member erred. Less still were they able to articulate why the Member should have ordered the first and second respondents to disgorge to the appellant the sum of $7,200 being the bond, in circumstances where:

the tenants collectively broke the RTA in the first six months of the 12 month term; and
the bond had already been paid to the third respondent (the landlord).

This ground requires leave. Leave to appeal should be refused.

Ground (4)

The fourth and final ground is that the appellant was unable to "play the crucial evidence she had which proved she was evicted".
As we understood Mr Patrech's explanation of the sound recording he relied upon, it had been prepared without the knowledge of the participants (being the police). We are not confident that the recording was legally obtained. But even if we were, we are not satisfied that any attempt was made to ask Member Ringrose if it could be relied on. In any event, as we understand the situation, it had not been filed with the Tribunal.
In those circumstances, we do not think that the Member erred in failing to consider that evidence.
This ground also requires leave. Leave to appeal should be refused.

Conclusion re application for leave to appeal

As the respondents correctly submit, the appellant, together with Mr Patrech, was present at the hearing. She was given an adequate opportunity to argue her respective case, and the Tribunal heard from all parties, considered the relevant documentary evidence and tested the evidence before arriving at its decision. We reject the submission that the Decision of the Tribunal was not fair and equitable. In circumstances where the appellant provided no relevant or probative evidence of the matters in issue, we reject any submission that the Decision was against the weight of the evidence.

Other Claim

There is also the claim for relief that the appellant is be paid $1,738 on account of the rent paid in March 2018. We are not satisfied that this was claimed before the Tribunal. We do not think it fair to consider it now.
As the plurality of the High Court of Australia noted in Coulton v Holcombe [1986] HCA 33 at [9]: ". . . in a recent decison of six Justices of this Court - University of Wollongong v. Metwally (No. 2) [1985] HCA 28; (1985) 59 ALJR 481, at p 483; [1985] HCA 28; 60 ALR 68, at p 71 - the Court said: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

Extension of time

In appeals of this nature, which involve residential proceedings as that term is defined in the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), appeals must be filed within 14 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later): Civil and Administrative Tribunal Rules 2014, r 25(4)(b).
The Decision was given on 11 July 2018. The notice of appeal was filed on 16 August 2018. On its face, the notice of appeal appears to have been filed approximately three weeks' late.
The appellant points to the stay of the operation of the orders made on 19 July 2018. On that day Member Ringrose stayed the orders for the payment of money until 31 July 2018 to allow an application under the slip rule should one be made. The appellant submits that the time to calculate when the notice of appeal should be filed commenced at 31 July 2018. If this argument is accepted, this means that the notice of appeal was filed only two days' late.
Either way, the notice of appeal was filed out of time. As we think that there is no merit in any of the grounds of appeal, we think that the appropriate course is to refuse to extend the time to file the notice of appeal, and otherwise dismiss the appeal.
Nevertheless, we note that we have considered the merits of the appellant's various arguments.

Costs

The appellant has been unsuccessful. If the respondents seek costs, they should file and serve submissions as to costs within 14 days of the publication of these reasons. The appellant may respond within a further 14 days. We propose to deal with the costs application on the papers and without a hearing. Any party who thinks a different course should be followed should address that issue in their submissions.

Orders 1. Application to extend the time for filing the notice of appeal refused. 2. Appeal otherwise dismissed. 3. The respondent to file and serve submissions as to costs by 14 December 2018. 4. The appellant to file and serve submissions in response by 7 January 2019.

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: 30 November 2018

Residential Tenancies Act 2013(NSW)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (5)

Cited By (1)