TJM Holdings Pty Ltd v Woori International Pty Ltd

Time to appeal

1. The challenged orders were made on 13 October 2023. The 28-day requirement of r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) means that a Notice of Appeal should have been lodged by 10 November 2023. As the Notice of Appeal was lodged on 9 November 2023, it was lodged within time.

Documents

1. The Notice of Appeal was lodged on 9 November 2023 and a Reply to Appeal was received on 27 November 2023.
2. Documents lodged by the parties in respect of this appeal were those received from the appellant, on 16 November 29023, 27 January 2024, 28 January 2024, and 8 March 2024, and from the respondent, on 29 January 2024, 1 February 2024, and 14 February 2024. The respondent also sought to rely on an additional 25 pages of documents that were handed up and marked for identification (MFI 1) but the Tribunal refused leave to rely on those documents as they were pages that were available to the respondent prior to the decision which is the subject of this appeal.
3. It is noted that the documents submitted by both parties included evidence which post-dates the 13 October 2023 decision. Those documents have not been considered since they do not appear to contain evidence that was not reasonably available to the parties prior to that decision.

Grounds of Appeal

1. In the Notice of Appeal, the grounds of appeal were said to be: "Failed to accord the appellant procedural fairness & natural justice".
2. Leave to appeal was also sought. The reason given as to why leave should be granted was stated as: "Because the decision is manifestly unjust and ought not be left to stand".
3. The decision was said to be not fair and equitable "because the decision is infected with actual or perceived bias throughout the entire decision and not made according to law (Gallo v Dawson [1990] HCA 30)".
4. There was also a claim that the decision was against the weight of the evidence and the evidence to which it was suggested the Tribunal should have given more weight was: "The actual prejudice suffered by T.J.M. if leave not granted to set aside the decision - see Gallo supra".
5. There was no claim in the Notice of Appeal that significant new evidence is now available that was not reasonably available at the time of the hearing, that section of the Notice of Appeal being completed "N/A" to suggest that basis was not applicable.

Hearing

1. Having identified the relevant documents, and having clarified the basis of the appeal, the Tribunal proceeded to hear oral submissions in the usual sequence of appellant then respondent, followed by the appellant in reply, so that each party was able to speak in support of their case and to respond to the case of the other party. As the submissions in reply raised matters not raised by the respondent, it was necessary to provide an opportunity for further submissions.
2. It is convenient to here note that we will use the words substantive decision to refer to the orders made by Senior Member Bluth on 28 June 2023 and the words challenged decision to refer to the orders made by Senior Member Sarginson on 13 October 2023.

Appellant's submissions

1. The bulk of the 60-page revised submissions for the appellant, received on 27 January 2024, makes claims relating to the substantive decision rather than the challenged decision. However, the position in respect of the challenged decision was made clear in oral submissions during the hearing of the appeal.
2. The primary contention was that the appellant would suffer prejudice if the substantive decision was not set aside, and that such prejudice was not considered when the challenged decision was made.
3. It was also contended there was a failure to consider whether the appellant would suffer an injustice if the substantive decision was not set aside, that the decision did not set out the relevant legal principles, and did not consider and apply what was said in Gallo v Dawson [1990] HCA 30 (Gallo).
4. The cause of the delay was said to be that the appellant was waiting on advice from counsel as to whether to appeal the substantive decision or apply to have that substantive decision set aside. Circumstances relating to not attending the 17 April 2023 hearing, which led to the substantive decision, were also outlined.
5. Reference was made to the substantive decision and the evidence upon which it was based. It is convenient to here note that this is not an appeal from the substantive decision. That decision is relevant only on the question of whether the appellant had an arguable defence to the claim which led to that substantive decision since that is a factor relevant to the exercise of discretion, both as to whether to extend time, and whether to set aside the substantive decision.

Respondent's submissions

1. The response to the appellant's written submissions, received on 14 February 2024, noted that much of the appellant's submissions presented as a challenge to the substantive decision. Those written submissions for the respondent may be summarised as contending there was no error, either as to the law or as to the facts, in the challenged decision.
2. Due to references in the appellant's oral submissions to aspects of the claim and defence relating to the proceedings which gave rise to the substantive decision, it is not surprising that the oral submissions for the respondent replied to a number of those matters. It was also said the respondent's lawyer was not aware the appellant's representative was travelling overseas, to Thailand.

Submissions in reply

1. On 8 March 2024 the Tribunal received 509 pages which included an 11-page reply to the respondent's submissions (at pages numbered 420 to 430), the focus of which was the substantive decision, not the challenged decision.
2. Oral submissions in reply also concentrated on the respondent's claim and the appellant's defence rather than the challenged decision.

Relevant law

1. In the NCAT Act, s 41 provides the Tribunal with the power to extend time: (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 relevant considerations as to the exercise of that discretion were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22]: (1) Is there proof that strict compliance with the rules will work an injustice on the applicant? (2) In the context of a pending appeal, the expiration period for the appeal gives a vested right to retain the decision in question with the consequence that the time for appealing should not be extended unless the proposed appeal has prospects of success. (3) It will usually be necessary to consider: (a) the length of the delay, (b) the reason(s) for the delay, (c) the applicant's prospects of success, i.e. whether there is a fairly arguable case, and (d) the extent of any prejudice suffered by the opponents. (4) If the explanation for the delay is less than satisfactory and/or if the opponent has a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable.
3. In Gallo at [2] Mc Hugh J said (citations omitted): The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties …. This means that 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 applicant. In order to determine whether the rules will work an injustice, it is necessary 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 …
4. When an exercise of discretion is challenged, the usual point of reference is the joint judgement of Dixon, Evatt, and McTiernan JJ in House v The King [1936] HCA 40; 55 CLR 499 (House), at 504-505: [i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed ... It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
5. As a result, in any challenge to a first instance decision that involves an exercise of discretion, the appellant must establish that the decision at first instance was the result of either (1) acting on a wrong principle, (2) being guided by extraneous or irrelevant matters, (3) making a mistake as to the facts, (4) failing to consider a relevant matter, or (5) a result that is so unreasonable or plainly unjust as to warrant an inference that the discretion has not been properly exercised.

Substantive decision

1. The respondent sought the repayment of money said to be key-money, contrary to s 14 of the Retail Leases Act 1994 (NSW). Although the application was filed on 1 July 2022, it was not heard until 17 April 2023. Prior to that hearing, an application by the appellant to transfer the proceedings to the Supreme Court was refused, and the appellant's application for security for costs was dismissed.
2. In 44 pages of reasons that were published on 28 June 2023, after outlining various preliminary matters including those referred to in the previous paragraph and a complex procedural history, the circumstances whereby Ms Metledge failed to attend the hearing were considered, after which the reasons for proceeding with the hearing were given. The evidence upon which both parties relied was then summarised, followed by reference to relevant case law. Reasons were then provided for the outcome which may be summarised as (1) rejecting the claim that $40,000 was paid in cash, (2) accepting that $104,263.66 was paid as key-money, and (3) deducting arears of rent. As a result, the respondent was awarded $49,298.05, made payable within 14 days.
3. It must be noted that the substantive decision reveals ample consideration of the appellant's evidence, as well as the defences raised by the appellant. The rejection of the respondent's claim to have paid $40,000 in cash reveals that the substantive decision did not merely adopt whatever the respondent contended.

Challenged decision

1. After summarising the history of the proceedings, what occurred on the day of the 17 April 2023 hearing was set out. The correct statutory provisions were identified, namely cl 9(2) of the Civil and Administrative Tribunal Regulation 2013 (NSW) and s 41 of the NCAT Act. Leading cases on the issues of whether to extend time, whether to set aside a decision, and whether to grant an adjournment were cited: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65, Bryan v Gorgievski [2015] NSWCATAP 186, Jackson, Araghi v St George Community Housing [2021] NSWCATAP 154, AHB v NSW Trustee and Guardian [2014] NSWCA 40, and Bobolas v Waverley Council [2016] NSWCA 139. The relevant criteria were identified and considered by reference to the particular circumstances of the case. Reasons for both the decisions, namely, whether to extend time and whether to set aside the orders made on 28 June 2023, were clearly indicated. The five single-spaced pages containing the challenged decision set out the reasons for the decision in considerable detail.

Consideration

1. The Notice of Appeal suggested the challenged decision "Failed to accord the appellant procedural fairness & natural justice". However, within the extensive material and oral submissions no clear details have been provided that support either of those claims.
2. There is nothing to suggest that the appellant was not provided with an opportunity to make submissions in support of the issues that were the subject of the challenged decision, such as might constitute procedural unfairness, and it appears that the appellant's set aside application was determined on the papers, i.e. without a hearing being conducted, as is usually the case. It is difficult to see how it can be said there was a denial of natural justice when the appellant was aware of what were the issues and had an opportunity to present its case in relation to those issues. Hence, the appellant has failed to establish an error of law by reference to the Notice of Appeal. If this ground was intended to be based on the decision in Gallo, that aspect is considered below.
3. Going beyond what was said in the Notice of Appeal, by reference to what was said would constitute an error on a question of law in Prendergast, we would summarise the position as follows. First, as the reasons are extensive, covering the relevant issues, considering the relevant law and applying it to the relevant facts, any suggestion of a failure to provide proper reasons must be rejected. Secondly, it is clear the Tribunal identified the correct questions or issues requiring determination. Thirdly, the correct legal principles were applied. Fourthly, as indicated above, we are unable to discern any procedural unfairness. Fifthly, while it is noted that the appellant contended there was a failure to consider the injustice to the appellant of not extending time, that assertion fails, for the reasons set out below. Sixthly, there is nothing to indicate that any irrelevant considerations influenced the challenged decision. Seventhly, it is clear, from a reading of the reasons published on 13 October 2023, that there was evidence to support the findings of fact included in that decision. Finally, it cannot be said that the decision was unreasonable, and certainly not such that no reasonable decision-maker could have made that decision.
4. Accordingly, the appellant has failed to establish any error on a question of law, and we have been unable to discern any such error.
5. The appellant also claimed the challenged decision was not fair and equitable. Three matters were raised in support of that claim. First, it was alleged that the challenged decision was infected with actual bias. However, neither the written nor the oral submissions contained any basis for that allegation. Having been admitted as a solicitor, Ms Metledge should be aware that such a serious allegation should not be made unless there is a basis for so doing: Clyne v New South Wales Bar Association [1960] HCA 40. The allegation of actual bias should not have been made and must be rejected.
6. Similarly, no details were provided in support of the allegation of perceived bias. Presumably, that allegation was based on the reasons provided in support of the challenged decision referring to the issue of whether the delay caused any prejudice to the respondent, but not referring to the question of prejudice to the appellant. However, the consideration of the question of whether there was any prejudice to the respondent is readily explained by that being an issue which the decision in Jackson suggests should be specifically addressed. The reason that prejudice to the respondent has to be expressly considered is that the respondent has the benefit of a decision which was obtained by filing and serving evidence, attending the hearing and making submissions which created a right to retain the benefit of that decision once the appeal period expired: Jackamarra v Krakouer [1998] HCA 27 at [4]; Nanschild v Pratt [2011] NSWCA 85 at [39].
7. The third reason advanced in support of the claim that the challenged decision was not just and equitable was that it was "not made according to law (Gallo v Dawson [1990] HCA 30)". As is clear from the passage in Gallo quoted above, (1) the objective of the discretion to extend time is to enable a decision to be made to do justice between the parties, (2) the appellant must prove that strict compliance will work an injustice, and (3) matters such as the procedural history, the parties' conduct and the consequences for the parties are relevant considerations.
8. When the appellant applied to set aside the substantive decision, which required an extension of time, it was clear that what was in issue was a decision that required the appellant to pay the respondent $49,298.05. That was stated in the first paragraph of the reasons for the challenged decision and did not need to be restated. The entirety of those reasons went to the question of whether a strict compliance with the rules would work an injustice upon the appellant. In accordance with what was said in Gallo, that was done by reference to the history of the proceedings and the conduct of the parties. Consideration was also given to what was contended to be the appellant's defence, in accordance with what was said in Jackson.
9. In accordance with what was said in Jackson, it is clear, from what is set out in the reasons upon which the challenged orders were made, that the appellants' explanation for their delay, relevant to the extension of time issue, was less than satisfactory. This had the consequence, in accordance with what was said in Jackson, that it was necessary for the appellant to show that its defence to the respondent's claim had substantial merit and not just that it was fairly arguable, which was clearly not done.
10. As to the explanation for the delay, we note that a set-aside application should be lodged within seven days and a notice of appeal should be lodged within 28 days under rules that should be clearly known to legal practitioners. The explanation that the appellant was seeking counsel's advice does not explain why the set aside application was out of time by two months: it was due to be lodged by 5 July 2023; it was lodged on 5 September 2023. Further, the suggestion that an appeal to the Supreme Court was being considered carries no weight when the right of appeal is to an Appeal Panel of the Tribunal. The explanation for the delay was plainly deficient.
11. Turning to the question of the appellant's defence to the respondent's claim, the submissions in support of the set-aside application on that issue were clearly deficient and failed to show that the appellant had a defence to the appellant's claim that had substantial merit.
12. The appellant's submissions in support of the set-aside application, raised the following matters. First, there were allegations that Ms Yoo lied which were contained in repetitive assertions that were not supported by close analysis of the factual material to suggest (for example) that Ms Yoo must have known that a contention was factually unsustainable. These allegations were inappropriate and should not have been made without such close factual reference. Secondly, a document said to be a 12-page defence did not explain how the outcome would have been different if the appellant had appeared at the hearing on 17 April 2023. Thirdly, allegations of denial of procedural fairness and denial of natural justice, as were made in this appeal, were matters relevant to an appeal from the substantive decision and in themselves do not assist in assessing the strength of the appellant's defence to the respondent's claim set out in its documents. Fourthly, reference to the appellant's desire to transfer the proceedings to the Supreme Court did not assist because that issued had been determined by Senior Member Tibbey on 1 December 2022, prior to the 17 April 2023 hearing, and there was no appeal from that decision. Fifthly, any claim the Tribunal lacked jurisdiction was belated as any such contention should have been raised when the application to transfer the proceedings to the Supreme Court was first before Senior Member Charles on 30 August 2022 or before Senior Member Tibbey. Sixthly, the defence that the applicant lessee (the respondent to this appeal) failed to discharge its onus of proof and that onus was wrongly transferred to the appellant did not grapple with the fact that the respondent's case forward the lease and deed in their timeline with communications that showed a basis for the payment being connected to the grant of lease within the meaning of s 14 of the Retail Leases Act. The appellant then failed to meet the evidential onus to counter that characterisation with evidence that supported its interpretation of the documents (a payment effectively to be the exclusive lease applicant) by not demonstrating that there was a competing and better offer. (Even if that demonstration had occurred, the appellant would need to have shown why such a characterisation itself meant that the payment contravened s 14.)
13. Thus, there was a failure, not only to explain the delay but also to establish the appellant had a defence which had substantial merit, or even an arguable defence. In those circumstances, any suggestion that the refusal to extend time was not fair and equitable must be rejected and it is not permissible for the appellant to now raise additional matters reasonably available at the time of the set-aside hearing and suggest they provide a defence.
14. In relation to the application to set aside the substantive decision, the reasons advanced for failing to attend the hearing were not acceptable. First, the 10 February 2023 notice for the 17 April 2023 hearing, which was listed to commence at 9.15am, made it clear that the hearing would be 'in person' and not a virtual hearing. Secondly, submitting a request for leave to attend the Monday 17 April 2023 hearing at 5.39pm on Sunday 16 April 2023, and expecting that request to be dealt with prior to 9.15am the next day is unrealistic. The suggestion that Ms Metledge assumed that request had been granted because there was no response was not, and cannot, be accepted as showing a reasonable basis for the assumption. Thirdly, no explanation was provided as to how Ms Metledge, who was able to travel from the airport to Strathfield when she arrived back from Thailand on the morning of Friday 14 April 2023, was unable to travel from Strathfield to the Sydney hearing rooms of the Tribunal on the morning on Monday 17 April 2023.
15. Further, there can be no doubt that the appellant failed to establish, in its set-aside application, that a different outcome would have been reached if the appellant had attended the hearing. As a result, any suggestion that the dismissal of the set-aside application was not fair and equitable must fail.
16. In addition to claiming that the decision was not fair and equitable, the appellant contended that the decision was against the weight of the evidence. The questions which asked what evidence the appellant gave and what evidence the respondent gave were both answered "N/A". In response to the questions "What evidence should the Tribunal have given more weight to? Why?", the details provided were: "The actual prejudice suffered by T.J.M. if leave not granted to set aside the decision - see Gallo supra". As those words raise the issue which has just been addressed, this aspect of the appeal does not require further consideration.
17. In the Notice of Appeal under the heading "Significant new evidence is now available that was not reasonably available at the time of the hearing", the two sections which provided an opportunity for details to be provided were both answered "N/A". Despite those answers, significant new evidence was included in the documents lodged by the appellant in support of this appeal.
18. That new evidence included (1) a photo said to depict a leg injury suffered by Ms Metledge, (2) a copy of a boarding pass for a flight from Bangkok to Sydney on 13 April 2023, (3) medical reports for Ms Metledge and her son, both dated 30 October 2023, (4) affidavits and (5) other documents.
19. There are three reasons that new evidence has not been considered in this appeal.
20. First, documents such as the photo, boarding pass, and medical reports are all documents that pre-date the set-aside application. Those documents could and should have been provided in support of the application to set aside the substantive decision.
21. The other additional evidence is not evidence that was not reasonably available prior to the challenged decision. That evidence cannot be considered as we are required to consider whether there is any error in the challenged decision and not to make that decision again, which is the next reason that the additional evidence cannot be considered.
22. Secondly, an appeal to an Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. That point is made clear by the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) which includes the words: "an appeal is not an opportunity to have a second go at a hearing".
23. Thirdly, this appeal does not involve a challenge to the substantive decision. Hence, this appeal does not provide the appellant with an opportunity to have a 'second go' at the matters raised during the hearing which proceeded in its absence. The only aspect of the substantive decision which is relevant is the nature and strength of the appellant's defence to the claim upon which that decision is based, and that issue must be considered by reference to what was before the Tribunal when the challenged decision was made.
24. Further, even if the appellant established a matter that requires leave to appeal, it would be necessary to consider whether to grant leave to appeal.
25. This appeal does not satisfy any of the five criteria which Collins suggests would provide a sufficient reason for granting leave. There is no issue of principle or question of public importance. There is no clear injustice or factual error and the reasons provided in support of the challenged decision are clearly ample and entirely orthodox.
26. The challenged decision resulted in two orders being made: first, a refusal to extend time for lodging the set aside application; secondly, a dismissal of that set aside application. Each of those components required an exercise of discretion.
27. Although not raised by the appellant, for the sake of completeness we have considered the issue of the exercise of that discretion by reference to the tests set out in House.
28. In relation to the refusal to extend time, having carefully reviewed the reasons given for the challenged decision, we are comfortably satisfied that the learned senior member did not act on a wrong principle, was not guided by extraneous or irrelevant matters, did not make a mistake and did not fail to consider a relevant matter. Nor do we consider the result to be unreasonable or unjust.
29. While a valid refusal to extend time removes the need to consider the set-aside application, it is desirable also to consider the second order, which dismissed the set-aside application.
30. Again, we are unable to say that the exercise of the discretion which resulted in the set-aside application being dismissed involved acting on a wrong principle, being guided by extraneous or irrelevant matters, making a mistake, or failing to consider a relevant matter. The result was not so unreasonable or plainly unjust as to warrant an inference the discretion had not been properly exercised.
31. For the reasons set out above, it is clear leave to appeal should be refused and that the appeal should be dismissed.
32. A reader of these reasons will detect that we have considered whether there is a discernible error of law in the exercise of discretion, with a view to ensuring there is no valid basis for any other outcome for the appeal. Our reason for doing so is set out below.
33. When parties to an appeal do not have legal representation, a question which may arise is whether the Tribunal should consider whether there is either a ground of appeal or a basis for leave to appeal which has not been raised by the appellant.
34. In this case, it could be said that the same question should be considered as Ms Metledge, although legally qualified, and her son appear to be directors of the appellant or an associate of a director, with the result that the appellant does not have independent legal representation. It was Lord Greene MR, in Yuill v Yuill [1945] P 15 at 20, who suggested that those who descend into the arena are liable to have their vision clouded by the dust of conflict.
35. On that basis, we have treated the appellant as if it was self-represented and followed what was said in Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), at [13]: 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".

Costs

1. Since the respondent sought costs, directions will be made for the filing of brief submissions concerning costs. They will be limited to 5 pages and the parties should be aware that, in the absence of an application to set aside this direction, submissions exceeding 5 pages will not be considered.
2. Further, any such submissions should indicate whether it is accepted that the Tribunal should exercise the power provided by s 50(2) of the NCAT Act, which permits the Tribunal to dispense with a hearing as to costs. Dispensing with such a hearing means a consideration of the question of costs by reference to the parties' written submissions.

Orders

1. Accordingly, the final orders of the Tribunal are as follows: 1. Leave to appeal refused. 2. The appeal is dismissed. 3. If the respondent seeks costs of the appeal, the respondent must file and serve written submissions, not exceeding 5 pages, within 14 days of the date of these orders. 4. If the appellant opposes the respondent's costs application, the appellant must file and serve submissions, not exceeding 5 pages, within 14 days thereafter. 5. Any such submissions shall indicate whether the party consents to the Tribunal determining costs on the papers, i.e. without conducting a further hearing.

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: 06 May 2024