Tadros v Dumond

Background

1. The decision the subject of the appeal was made on 30 April 2015 following directions about the filing and serving of evidence. Mr Tadros was represented by his managing agent and Mr and Mrs Dumond represented themselves. The Tribunal had before it evidence filed by both parties, including photographs, emails and sworn evidence from Mr and Mrs Dumond.
2. According to the written reasons for decision, compensation of $2,500.00 was awarded based on the finding by the Tribunal that Mr and Mrs Dumond "did not receive all of the facilities of the premises for which they were paying rent." Relevantly the Tribunal found that Mr and Mrs Dumond's use of the second bedroom (in a two-bedroom apartment) was severely restricted due to mould, there had been a failure of the hot water system on three occasions and there had been an infestation of cockroaches. The Tribunal assessed Mr and Mrs Dumond's loss as $2,500.00.
3. The Notice of Appeal was filed on 8 September 2015. A directions hearing was held on 2 October 2015. Directions were made for both parties to file and serve submissions in relation to an extension of time: the appellant by 8 October 2015, the respondent by 15 October 2015.
4. The appellant's submissions were not filed in accordance with those submissions. However, they were received by the respondent, albeit on 9 October 2015. The submissions of the appellant relevantly state: At the time the original orders were made on 30th April 2015, Mr Eisa Tadros had a family emergency. Sadly his wife suffered a stroke and was rushed to hospital. This caused Mr Tadros to be under severe amounts of stress. Mr Tadros originally wanted to attend the tribunal as he believes this would have been the best cause of action due to the fact that the repairs and compensation the applicant is seeking was under the previous property manager's management. Given Mr Tadros was worried for the health and safety of his wife he was not in the right frame of mind to give any thoughts on the case matter, upon finding the orders were made for compensation to be paid of $2,500.00 he was more focused on helping his wife and did not take into account the terms of appeal. He was not aware he would have 14 days although his agent informed him of the 14 days. Mr Tadros was too distraught given his wife's health. Once the applicant issued a garnishee order Mr Tadros' response was to file an appeal against the garnishee, he has done so through Manly Local Court. At the court the magistrate advised Mr Tadros he cannot appeal against the garnishee and will have to appeal to the tribunal to overturn the original orders. Immediately after the court hearing Mr Tadros' instructions to his managing agent were to apply to the NCAT for an appeal as he believes that the applicant is falsely awarded compensation. ...Mr Tadros is currently in possession of evidence which was not readily available at the time of the hearing.
5. The respondent provided submissions in response on 12 October 2015. The respondent states that they do not believe that there has been a substantial miscarriage of justice; that both the appellant and his agent had been given notice of the proceedings below and ample time to gather evidence; and that they have been offered no explanation by the appellant as to why they had not produced evidence earlier.

Notice of Appeal

1. The Notice of Appeal states that the grounds of appeal are: The purpose of $2,500.00 was failure to use (1) bedroom in the unit, the owner Eisa Tadros attempted to have these repairs carried out however the tenant failed to give access. They refused access on more than one occasion. During the time of the hearing we were not provided with an affidavit from the tradesperson repairing the shower. We have obtained the affidavit, it states the tenant did not contact nor provide access to the tradesperson. The repair was necessary so the mould can be repaired & the owner could paint the damaged wall.
2. The Notice of Appeal goes on to state that the appellant believes it is unjustified that he be ordered to pay $2,500.00 when he has attempted "more than once" to have the repairs carried out.
3. Section 80(2)(b) of the Act provides that an internal appeal may be made against a decision of the Tribunal as of right on any question of law or with leave of the Appeal Panel on any other grounds. The Notice of Appeal does not raise any discernible question of law and Mr Tadros seeks leave to appeal under cl 12, Sch 4 of the Act, which provides that the Appeal Panel may grant leave to appeal but only if it is satisfied that the appellant may have suffered a "substantial miscarriage of justice" because the decision was not fair and equitable or it was against the weight of evidence or evidence is now available that was not reasonably available at the hearing. He states that the decision of 30 April 2015 is not fair and equitable, was against the weight of the evidence, and that the Tribunal should not have granted compensation to the tenants. He further states that evidence is now available that was not reasonably available at the time of the hearing, namely an affidavit from the repairer advising that the tenant did not allow access to the premises, and a letter from the agent to the owner stating that the tenant was mistreating the property.
4. A Reply to Appeal was filed on 24 September 2015. The Reply states that Mr and Mrs Dumond oppose leave to appeal being granted as there was no substantial miscarriage of justice; Mr Tadros and his agent had notice of the hearing and had ample time to gather evidence; no explanation was given as to why the affidavit was not available at the hearing, and that the evidence was reasonably available at the time.
5. The Reply to Appeal also includes a "timetable" which sets out the steps taken by Mr and Mrs Dumond to enforce the compensation order of the Tribunal and the steps taken by Mr Tadros to prevent them from doing so. Attached to the Reply are copies of various Local Court orders. There were six applications to the Local Court in the period 27 May 2015 to 21 August 2015. Mr and Mrs Dumond paid filing fees to register the order and filed numerous documents with the Local Court to enforce the order, including a garnishee notice. It is also apparent from the documents attached to the Reply, and this was not contested by the appellant, that the debt recovery action required a court appearance on 21 August 2015.

Relevant Principles

1. The relevant principles in considering whether or not to extend time were stated by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. There the Appeal Panel considered an application for an extension of time where the hearing was held and orders made on 30 January 2014, and the Notice of Appeal was frilled on 4 March 2014. This too was a matter involving a residential tenancy. The Notice of Appeal was filed approximately 19 days' late.
2. The Appeal Panel refused the application to extend time, and dismissed the appeal. In doing so, the Appeal Panel noted the following relevant principles: 1. Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings": see [18]. 2. The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant: see [22(1)]. 3. The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision, and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success: see [22(2)]. 4. Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: 1. the length of the delay; 2. the reason for the delay; 3. the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and 4. the extent of any prejudice suffered by the respondent (to the appeal), 5. see [22(3)]. 1. It may be necessary to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice, namely, it may be relevant whether the appellant has a case that has more substantial merit than being fairly arguable: see [22(4)].

Consideration

1. The Appeal Panel makes the following relevant findings on the evidence before it: 1. The proceedings were listed for hearing on 30 April 2015 following directions made by the Tribunal about the filing of evidence. 2. Mr Tadros did not appear at the hearing below due to the illness of his wife. 3. Mr Tadros' agent did appear at the hearing, and presented evidence for and made submissions on Mr Tadros' behalf. 4. Mr Tadros' agent informed Mr Tadros after the hearing that he had 14 days in which to appeal. 5. The appeal was filed on 8 September 2014, after the garnishee order had been issued and after the unsuccessful Local Court hearing to challenge the enforcement. 6. Mr and Mrs Dumond took steps to enforce the order made on 30 April 2015 from 27 May 2015 until 21 August 2015 which included paying filing fees, lodging documents with the Local Court and appearing in the Local Court.
2. In light of those findings the Appeal Panel will now consider the relevant principles.
3. Length of delay: As noted, in Jackson the delay was some 19 days, and the Appeal Panel declined to extend time to file the appeal. This appeal was filed on 8 September 2014. This is almost 16 weeks after the time on which the appeal should have been filed. This factor militates against the grant of an extension of time.
4. The reasons for delay: While the illness of the appellant's wife may be a reason for a short delay in the filing of the appeal, on the basis of the generalised and nonspecific evidence filed by the appellant the Tribunal does not accept that this provides an adequate reason for the delay in filing the appeal, particularly in circumstances where his agent informed him that he had 14 days in which to appeal. This factor militates against the grant of an extension of time.
5. Prospects of success: It is clear from the reasons for decision that the Tribunal previously made directions about the filing of evidence, evidence was presented at the hearing by both parties and the Tribunal made findings based on the evidence presented. It was noted in the reasons that the agent conceded there was mould in the second bedroom and accepted that there had been a failure of the hot water system and a cockroach infestation. The agent however submitted that the mould was the responsibility of the body corporate and timely action had been taken to resolve the infestation. Mr Tadros does not challenge these findings. His primary contention is that he made efforts to repair the premises and that his tradesmen were not given access. There is no record of such a submission in the reasons. Mr Tadros now seeks to present new evidence to support this contention but this is evidence that was reasonably available at the hearing and could or should have been presented, in accordance with the Tribunal's previous directions.
6. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel of the Tribunal conducted a review of the relevant cases and set out the principles at [84]. In summary, for leave to appeal to be granted, an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application, an injustice which is reasonably clear, a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal went about its fact finding process in such an unorthodox manner that it produced an unfair result.
7. The Appeal Panel is not persuaded, on the materials before it and having examined the reasons for decision, the Notice of Appeal, and the Reply to Appeal, that Mr Tadros has sufficient grounds to establish any of these matters. His prospects of success are weak and, at best, arguable. This factor militates against the grant of an extension of time. This is particularly so given the length of the delay, the failure of Mr Tadros to provide an adequate explanation for this delay and the substantial prejudice to Mr and Mrs Dumond, as referred to below.
8. Extent of prejudice: There is evidence before the Tribunal that Mr and Mrs Dumond are prejudiced by the delay in bringing the appeal. They were successful in the matter on 30 April 2015 and have taken significant steps to enforce the compensation in their favour through the Local Court. It appears that the Sheriff will not enforce the order for compensation pending the outcome of this appeal. Mr Tadros did not lodge his appeal until after these steps had been taken. Again, this factor militates against the grant of an extension of time.

Conclusion

1. As the Appeal Panel stated in Jackson at [21]: Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced.
2. The Appeal Panel notes that the guiding principle for the Act is to facilitate the just, quick, and cheap resolution of the real issue in the proceedings: see s 36(1) of the Act.
3. The Appeal Panel considers that each factor considered above does support the respondent's submission that the time for filing his appeal should not be extended. Accordingly, the Appeal Panel is not prepared to grant the appellant an extension of time in which to appeal.
4. The application of Mr Tadros to extend the time for the filing of the appeal is refused.
5. The appeal is therefore dismissed.

Orders

1. The Appeal Panel makes the following orders: 1. The application for an extension of time in which to appeal is dismissed. 2. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 18 November 2015 - Coversheet: changed to Principal judgment 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: 18 November 2015