The appellant, Mr Tendek, was a lodger in a private hotel at Neutral Bay operated by the respondent from 23 December 2015 until 8 December 2017.
The dispute between the parties arose out of the circumstances in which Mr Tendek ceased to reside at the respondent's private hotel.
By his initial application Mr Tendek sought repayment of the sum of $476.00, paid as security and key deposit or bond, and a further sum of $500.00, which Mr Tendek alleged had been promised to him by the respondent in return for Mr Tendek's vacating his room.
By the decision under appeal the Tribunal Member found that Mr Tendek was entitled to a refund of the security deposit/bond and made orders for the payment of those moneys. No issue concerning those moneys arises in the appeal.
The Tribunal Member determined that Mr Tendek was not entitled to payment of the sum of $500 and dismissed that part of Mr Tendek's claim. Mr Tendek appeals against the decision of the Tribunal Member to dismiss his application for the payment of the $500.
Mr Tendek appeared at the hearing of the appeal in person. The respondent was not represented at the hearing of the appeal.
On 5 April 2018 directions were made requiring the appellant to:
lodge with the Tribunal and provide to the respondent by 30 April 2018:
(a) All the evidence provided to the Tribunal on which it is intended to rely;
(b) Any fresh evidence on which it is intended to seek to rely;
(c) The appellant's written submissions in support of the appeal; and
(d) The sound recording of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts.
Mr Tendek had filed a bundle of documents which we understand were documents in evidence before the Tribunal. Mr Tendek had not filed written submissions in support of the appeal. Nor had Mr Tendek provided a copy of the sound recording. He claimed he had been unable to obtain a copy of the tape recording in the available time since the hearing below.
At the commencement of the appeal hearing Mr Tendek applied for adjournment of the hearing of the appeal to enable him to obtain a copy of the tape recording of the hearing below. For reasons given orally at the hearing, the Appeal Panel refused Mr Tendek's application for an adjournment.
It is not necessary to repeat the reasons why the application for adjournment was refused. It suffices to note that that application was refused and the appeal proceeded without access to a tape recording of the hearing or any transcript of the evidence or submissions at the hearing below.
The Tribunal Member recorded the circumstances in which Mr Tendek claimed to be entitled to the $500 as follows:
8. On 24 October 2017 the respondent gave written notice to [Mr Tendek] that they intended to refurbish his room and would require him to vacate by 30 November 2017.
9. The applicant was unable to find alternative accommodation and the respondent agreed, by letter dated 28 November 2017, to extend the time in which the applicant could remain in the premises, until 28 December 2017.
It was common ground between the parties that the respondent had offered to pay Mr Tendek the sum of $500. Mr Tendek asserted that the offer to make that payment was not conditional upon Mr Tendek vacating the premises by a certain date. The respondent's position was that the offer of $500 had been an incentive to induce the applicant to vacate his room by 6 December 2017 so that tradesmen could commence work prior to the Christmas period.
The documentary evidence before the Tribunal below, which was included in Mr Tendek's bundle, included a letter dated 29 November 2017 signed by Mr Rowley, the manager of the private hotel, in the following terms:
Since we last spoke I have had advice that we can't renovate whilst you still occupy the room, risk of injury!
So our previous offer to extend to 28/12/17 is revoked.
Please be advised that you are required to vacate on or before 6/12/17 a week later than the first order, as an incentive, we will pay you $500 if you meet this deadline.
Should you fail to do so, an order will be taken out and the Police will be called to escort you off the premises.
Please advise in writing, today, your intentions.
Mr Tendek's position, as outlined to the Appeal Panel and apparently to the Tribunal below, was that he had not received that letter, and that he had been offered the $500 in an oral conversation with Mr Rowley.
Before the Appeal Panel Mr Tendek explained that he had understood that the offer had initially been made contingent upon his vacating by 6 December, but that he had had a conversation with Mr Rowley, in which he had informed Mr Rowley that he was unable to find alternative accommodation until 8 December, and Mr Rowley had not said to him that he would not be paid the $500 if he vacated on 8 December 2017.
Having observed that Mr Tendek bore the onus of proving that the respondent had agreed to pay him $500 and that such payment was not conditional as to the date on which Mr Tendek vacated the premises, the Tribunal determined the matter adversely to Mr Tendek as follows:
20. The applicant claims that the respondent promised to pay him $500. The respondent states that this was conditional upon the applicant vacating the premises on 6 December 2017. The respondent's representative put forward in evidence that this payment was promised as an incentive to induce the applicant to vacate his room by 6 December 2017 so that tradesmen could commence work prior to the Christmas period. A letter was produced to this effect.
21. I am not satisfied that the applicant's version of events is more likely than not to be correct. I accept the respondent's evidence that the payment of $500 was conditional upon the applicant's departure by 6 December 2017. This is supported by the respondent's documentary evidence in the nature of the letter dated 29 November 2017.
22. Therefore I find the applicant has not discharged his onus of proof in regard to this part of his claim and accordingly, it is dismissed.
Pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) Mr Tendek has a right of appeal on a question of law and may appeal by leave of the Appeal Panel on other grounds. As this is an appeal from the Consumer and Commercial Division of the Tribunal, clause 12 of Schedule 4 to the NCAT Act provides that the Appeal Panel may grant leave to appeal only:
if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
(a) The decision of the Tribunal under appeal was not fair and equitable, or
(b) The decision of the Tribunal under appeal was against the weight of evidence, or
(c) Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being deal with).
In his Notice of Appeal Mr Tendek identified the questions of law on which he appealed in the following terms:
Crucial event is phone conversation 4,5/12. The Tribunal Member has made no comment about this. This is key evidence. She is obligated to examine this and decide on this. Without this her final judgment is flawed and has not substance.
In this conversation where it is one person's word against another person, if it is proven by evidence that one person has lied consistently then that person's word should be disregarded as point of law.
The Tribunal Member has accepted faulty evidence - from the Manager's ledger.
The Tribunal Member has accepted questionable evidence notice 29/11 - he could have written that notice any time after - it would be consistent with their conduct.
Although bias or breach of procedural fairness is not identified in the notice of appeal as a question of law arising on the appeal, Mr Tendek also asserted in his Notice of Appeal that:
"no weight given to any of my evidence or testimony, all weight given to evidence and testimony of manager - bias".
In Cominos v Di Rico [2016] NSWCATAP 5 at 13, an Appeal Panel stated:
"It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
Adopting this approach, we understand the Notice of Appeal to be raising two potential questions of law:
1. That the reasons of the Tribunal Member for rejecting Mr Tendek's evidence were inadequate or insufficient; and
2. That Mr Tendek was denied natural justice by reason of actual bias on the part of the Tribunal Member
A failure to provide proper reasons and a failure to afford procedural fairness each give rise to questions of law for the purposes of s 80 of the NCAT Act (see Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69).
We state immediately that we see in the reasons of the Tribunal no justification for the allegation of bias. It is clear from the reasons of the Tribunal that the Tribunal Member heard evidence from Mr Tendek and from Mr Rowley and preferred the evidence of Mr Rowley. Preferring the evidence of one witness over another does not establish bias.
In articulating his assertion that the Tribunal Member had shown bias Mr Tendek stated that paragraph 20 of the Decision (quoted above) discloses:
"concern for the respondent's desire to commence work renovating the room prior to the Christmas period and no concern for [Mr Tendek's] difficulties including his risk of being made homeless".
It is clear in our view that the Member referred to the respondent's motivation, to have Mr Tendek vacate by 6 December in order to enable renovation of the room prior to Christmas, as being a logical commercial motivation for the offer of the $500 and being consistent with that offer being conditional upon Mr Tendek vacating the room in a timely fashion, that is by 6 December 2017, to enable the renovations to occur. That reference does not establish any bias on the part of the Tribunal.
Mr Tendek did not point to any other justification for the allegation of bias.
In Collins v Urban [2014] NSWCATAP 17 at 57, an Appeal Panel stated in relation to the duty to give reasons:
57. A number of propositions can be derived from the authorities concerning the nature and extent of the duty to give of reasons as follows:
(1) notwithstanding that there have been many cases (some of which are collected in De Iacovo v Lacanale (1957) VR 553, at pp 558-559) in which it has been held that it is the duty of a judge, magistrate or other relevant decision maker to state reasons, that does not mean that a decision maker must give his or her reasons in every case. There is no "inflexible rule of universal application" that reasons should be given for judicial decisions. Whilst it is no doubt right to describe the requirement to give reasons as "an incident of the judicial process", it is subject to the qualification that it is a normal but not a universal incident - Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667 per Gibbs CJ;
(2) the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56] per French CJ and Kiefel J;
(3) the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46] per Basten JA;
(4) not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty ltd v Wilkinson [2013] NSWCA 33 at [48] per Basten JA.
Mr Tendek is correct in submitting that the Tribunal Member did not specifically recite the detailed content of his evidence, in particular in relation to the alleged conversation on 4 or 5 December 2017 in which Mr Tendek claims to have canvassed with Mr Rowley the fact that he could not move out before 8 December.
However the Tribunal Member has referred to Mr Tendek's evidence in general terms and has indicated that she preferred the evidence of Mr Rowley. It is apparent that, in considering the competing versions of events, the Member has given weight to the objective evidence of the letter of 29 November 2017.
In our view paragraphs 20-22 of the Member's decision sufficiently explain her reasoning.
Accordingly we find that there is no error on a question of law in the Tribunal Member's decision.
Mr Tendek also sought leave to appeal on the basis that the decision was not fair and equitable and that the decision was against the weight of evidence.
In circumstances where neither a transcript or a tape recording of the evidence before the Tribunal Member was available to the Appeal Panel, Mr Tendek encountered difficulties in pursuing those submissions.
In respect of the application for leave on the basis that the decision was not fair and equitable, Mr Tendek submitted that:
"Despite the fact that I presented numerous examples with evidence of where the manager (representing owner) is lying, the Tribunal Member has taken his word as the authority in the matter and his evidence is the basis for her decision. She has ignored my evidence completely, not referring to it even once. The fact is the manager has lied all the way along at the hearing, he was just making it up on the spot. And I thought this was obvious."
In support of the proposition that Mr Rowley had been "lying all the way along" and "just making it up on the spot", Mr Tendek asserted that Mr Rowley had claimed that Mr Tendek owed the respondent $600 at the end of his tenancy which Mr Tendek submitted was "absolutely outrageous with no basis in fact".
We note that Mr Rowley did assert, in a document titled "History, Room 37, Mr Tendek", which was before the Tribunal, that he had informed Mr Tendek after he vacated the room that he owed $604.28 in "unpaid tariff", and that the Member found that Mr Tendek did not in fact owe any arrears. However, the fact that the Member did not accept that part of Mr Rowley's evidence does not establish that Mr Rowley was a persistent liar who was not to be believed on any issue.
In respect of his application for leave to appeal on the ground that the decision was against the weight of evidence, Mr Tendek pointed to further elements of the evidence which he submitted established that Mr Rowley's evidence was not to be believed.
First, Mr Tendek submitted that the fact that the respondent could not produce any written response from Mr Tendek to the letter of 29 November 2017 proved that Mr Tendek had not received the letter because the letter asked him to respond in writing and Mr Tendek submitted he would have done so.
In this respect we note that the mere fact that Mr Tendek asserts that he would have responded to the letter if he had received it does not establish the proposition that the letter was not received.
Secondly, Mr Tendek submitted that the letter of 29 November states that the work in his room could not be done while he still occupied the room. Mr Tendek submitted that work had been done in other rooms while the occupants remained in occupancy.
There was no objective evidence before the Appeal Panel and Mr Tendek did not suggest there was evidence before the Tribunal, beyond Mr Tendek's own assertion to that effect, to establish that other occupants had been permitted to stay in their rooms while renovations occurred. Even if that had been established, that would not demonstrate either that similar circumstances applied in Mr Tendek's case, or that Mr Rowley was dishonest when he asserted that the work could not be carried out in Mr Tendek's room while he continued to occupy it.
Thirdly, Mr Tendek relied upon an email which he had received from an employee of North Sydney Council dated 22 December 2017 which stated that she had spoken to Mr Rowley who had advised:
"The owners had agreed to pay you $500 if you moved out on time and would also offer you one week rent free. He had explained that you had in fact not moved out until two weeks after the date they requested and therefore you are not eligible for the $500".
Mr Tendek submitted that that was clearly false as he had not moved out two weeks after the date requested on any view of the evidence and that this established that Mr Rowley had lied to the Council Officer.
That proposition does not follow logically. There are many other reasons why the Council Officer may have reported that Mr Rowley had made that statement. The obvious explanation is that the Council Officer had misheard or misrecorded what she had been told by Mr Rowley.
Finally Mr Tendek relied upon a letter addressed "To whom it may concern" from Ms Gloria Inman, a friend of Mr Tendek, which had been placed before the Tribunal, although Ms Inman had not apparently given oral evidence at the hearing.
Mr Tendek submitted that Ms Inman's version of events at the time Mr Tendek vacated the premises, and in particular the circumstances in which he returned the key to Mr Rowley, was fundamentally inconsistent with the version of events set out by Mr Rowley in his "History, Room 37, Mr Tendek" document.
Ms Inman stated that she had been present when Mr Tendek had approached Mr Rowley at a nearby restaurant where Mr Tendek had returned the door key. Ms Inman described the conversation in terms which do not suggest any hostility or aggravation and that Mr Rowley had undertaken to return the bond money on receipt of Mr Tendek's bank details.
Mr Rowley's version of events as set out in the "History, Room 37, Mr Tendek" document was as follows:
"After threats from manager that Police would be called to remove him, Mr Tendek finally leaves, demanding the $500 incentive and a refund of his $476 bond. The manager advises him that the $500 incentive is null and void and he owed $604 in unpaid tariff."
Mr Tendek submitted that Ms Inman's letter supports his description of events and shows that Mr Rowley "is lying and is a liar".
Upon close analysis it is apparent that the only clear inconsistency between Ms Inman's evidence and Mr Rowley's document was Ms Inman's assertion that Mr Rowley agreed that he would repay Mr Tendek the amount of the bond. This is not sufficient to establish either that Mr Rowley necessarily gave false evidence before the Tribunal or that he was generally dishonest.
None of the foregoing material is sufficient to establish that Mr Rowley's evidence was to be dismissed out of hand.
Nor could it be said that the above material is sufficient to demonstrate that the decision of the Tribunal Member, accepting Mr Rowley's version of events and rejecting Mr Tendek's version, was "against the weight of the evidence" or not just and equitable.
We further note that, although we did not have a transcript of Mr Tendek's evidence to the Tribunal, in submissions before the Appeal Panel Mr Tendek, with commendable candour, acknowledged the following propositions:
1. That the offer of $500, although made orally and not by the letter of 29 November 2017, might have been connected to his departing on or by 6 December 2017;
2. That the offer of $500 was "a vague thing";
3. That it was not clear to Mr Tendek what he had to do to get the $500, his view was he "thought it was a compassionate thing to help me move out";
4. That he tried to obtain alternative accommodation by the 6th (that is, consistently with the respondent's case that Mr Tendek had been told he was required to leave by the 6th) but couldn't move out until 8 December;
5. That Mr Tendek spoke to Mr Rowley and told him he could not leave until 8 December and Mr Rowley had said "I promise it will be OK"; and
6. That Mr Tendek assumed, when Mr Rowley said that it would be OK, that the $500 would still be available if he moved out on 8 December, but Mr Rowley had made no express statement to that effect.
Even if accepted, Mr Tendek's evidence, if it was to the effect set out above, would not have been sufficient to establish that Mr Rowley had agreed on behalf of the respondent that he would receive the money if he moved out on 8 December rather than 6 December.
We are not satisfied that Mr Tendek may have suffered a substantial miscarriage of justice because the decision under appeal was not fair and equitable or was against the weight of evidence.
Accordingly we refuse Mr Tendek's application for leave to appeal.
[2]
Orders
Our orders will be:
1. Application for leave to appeal refused.
2. Appeal dismissed.
[3]
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
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Decision last updated: 04 June 2018