Toberty v Lacey

The Appeal

1. An appeal from a decision in the Consumer and Commercial Division of the Tribunal may be made as of right on any question of law, or with leave of the Appeal Panel on any other grounds: s 80(2)(b) NCAT Act.
2. The appeal is an internal appeal from a decision in the Consumer and Commercial Division made in "residential proceedings", being proceedings arising under the RT Act. Unless the Tribunal grants an extension under s 41 of the NCAT Act, the appeal must be lodged within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision, whichever is the later: rule 25(4)(b) Civil and Administrative Tribunal Rules 2014 (the Rules).
3. As discussed below, the appeal was lodged after the time specified in r 25(4)(b), and the Appeal Panel is required to consider whether leave should be granted under s 41 of the NCAT Act to extend the time.
4. The landlord's Grounds of Appeal are as follows: The Member Holles was bullying; discriminatory; bullying; lacking knowledge of the case; selective in his application of the law; ignored evidence showing Lacey lying; ignored evidence that would over turn his orders; inconsistent; corrupt; incompetent; has possibly tampered with evidence - the recording of the hearing has parts missing - I told him during the hearing that I would be requesting a recording and that I would use it to complain and appeal. He twice adjourned the hearing, once after 5 minutes after the start when he argued with me and insulted me when I politely asked him to speak up so that the ex tenant and myself could hear him. He closed the hearing without hearing all of the claims. That cannot possibly be a proper hearing. His 'reasons' for orders covered Lacey claims already dismissed by M Fenwick and NEVER raised at the hearing. Tenants asked for $2104, he disallows one of their claims for money but still orders me to pay $2400 - that is not a typo from me. Two of the money claims by ex tenants were decided by M Holles AFTER the hearing without ever asking for tenants to justify or asking me to respond and counter. He looks at professional report and quotes of tenants' damages totalling $25,000, yet still orders bond return. Has fabricated 'reasons' to justify ex tenants' fraud, namely their claim for 'return' of 4 weeks pay of rent in advance that was NEVER deposited into my account: they said they moved out on Nov 18, 2015, which M Holles accepted despite the Lacey contradiction that they took photos of the property on Dec 1, 2015 AND presented an invoice where the business says they were in the property on 1 Dec, 2015, AND the statement from the Laceys saying THEY placed keys into my letter box on Dec 2, 2015. Yet M Holes HAS read all of that and still believes that 9 days later on 27 Nov they -AFTER the tenants said they moved out and AFTER they had been paying fortnightly for 8 years - put 4 weeks rent into my account. He NEVER required them to provide proof - AND he refused to see a presented Nov 2015 bank statement from me showing that such an amount was NEVER deposited. His reasons to explain these anomalies from the ex tenants - "presumably automatic payment" - was NEVER offered as an excuse by the ex tenants. He invented it to join the fraud. He bases his dismissal of BOTH of my evidence folders on a 10-6-2016 email from M Harris which rejected Lacey request for extension. Holles wilfully misconstrues by saying that applied to me. He also said that M Harris had dismissed my evidence folder for being late. That email does not say any such thing. The email DOES say both parties failed due dates. The Lacey received my EF 11 days before the hearing and M Harris believed that was enough time for them to absorb it - so he rejected their extension request. That is NOT a dismissal of my claims EF. The Laceys NEVER gave me their claims EF 16/10280 so I wrote a response to their application only, yet he accepts their non-presented EF via their application, and dismissed my presented response EF. That is completely inconsistent, AND wrong. My attached outlines more evidence for all of my claims against M Holles. These attachments are thorough as far as my limited skill in such matters allows. These attachments are honest. They will be sent to NCAT proper and the separate Appeals section at the Haymarket address.
5. The tenant's Reply to Appeal supported the original orders made, opposed the application to extend time for the appeal, and stated that he would make an application for his reasonable travel and accommodation costs.
6. At a directions hearing on 1 November 2016 leave was given to both parties to be legally represented, directions were made for exchange of documents, and the appeal was listed for hearing on 9 January 2017. The landlord was directed to provide to the Tribunal and the tenants by 30 November 2016 all the evidence provided to the Tribunal below, written submissions in support of the appeal and the sound recording of the hearing if what happened at the hearing was being relied upon. The tenant was directed to provide to the Tribunal and the tenants by 23 December 2016 all the evidence provided to the Tribunal at first instance, written submissions in support of the appeal and the sound recording of the hearing if what happened at the hearing was being relied upon.
7. On 15 November 2016 a stay was granted in respect of Order 2 of the orders made on 26 August 2016. The stay was continued on 1 December 2016, it being noted that the tenants conceded that there was an error in the amount awarded in Order 2 ($2,400.00) when the Tribunal Member had found that $1,700.00 rent was refundable. The landlord was directed to pay to the Tribunal the sum of $1,700.00 to be held by the Registrar until determination of the appeal or until further order. That amount was received on 6 December 2016.
8. The time for the parties to provide documents in the appeal was extended on 1 December 2016, to 5 December 2016 for the landlord and 30 December 2016 for the tenant. The Tribunal received the landlord's documents on 6 December 2016, and the tenants' documents on 3 January 2017.

The Appeal Hearing

1. At the commencement of the hearing of the appeal the landlord confirmed that he is appealing against both orders made in the decision in RT 16/10280, but not the orders made in proceedings RT 16/00484.
2. At the hearing the landlord was represented by Mr Nicholas Hardy. Mr Lacey appeared in person, with authority to act on his wife's behalf.

Application to adjourn the hearing

1. Mr Hardy applied for an adjournment of the appeal hearing, on the grounds that he had been engaged only late on the afternoon of Thursday 5 January 2017, and that time was needed to assist the landlord to organise the material he had provided. Mr Hardy indicated that the landlord was prepared to pay the costs thrown away by the tenant, and stated that if an adjournment was not granted he may need to withdraw. The tenant opposed the adjournment, on the grounds that the matter has been on going for some 12 months; there had been ample time to prepare; there had been 4-5 weeks since the callover; and he has lost a day's pay and would have accommodation costs in coming to the hearing.
2. The Appeal Panel refused the application for an adjournment, indicating that reasons would be provided later.
3. The following are the reasons why the Appeal Panel refused the application to adjourn the hearing. First, the Tribunal was not satisfied that there was an appropriate explanation for the late engagement of Mr Hardy. The landlord and the tenant were granted leave for legal representation on 1 November 2016, some 10 weeks before the date listed for the hearing of the appeal. The landlord previously had legal assistance, in fact identifying his then legal representative in the Notice of Appeal lodged on 26 September 2016. The Appeal Panel was not satisfied that it was appropriate for the landlord to wait until a matter of days before the hearing to instruct another legal representative, or why, given the nature of the issues raised on the appeal, that was insufficient time for that legal representative to prepare.
4. Secondly, the landlord had provided his documents in support of the appeal to the Tribunal and to the tenants on 6 December 2016. The tenants, and the Appeal Panel, had read those documents in preparation for the hearing. Mr Hardy's submissions did not indicate that any new issues or grounds of appeal would need to be ventilated; rather that his assistance to the Tribunal would be in organising the material provided in the presentation of the landlord's case. The Appeal Panel accepted that a legal representative may be able to assist the landlord in the presentation of his case on the appeal; however, s 38(5) of the NCAT Act requires the Appeal Panel to take steps to ensure that the parties understand the nature of the proceedings and have a reasonable opportunity to be heard, and if requested to do so to explain any aspect of the procedure of the Tribunal relating to the proceedings. The Appeal Panel was satisfied, given the nature of the issues raised in the appeal, that the parties would have an appropriate opportunity to be heard on the appeal with appropriate assistance and explanation from the Appeal Panel as required by s 38(5).
5. Thirdly, adjournment of the appeal hearing would further delay resolution of the matters in dispute in the proceedings. The dispute between the landlord and the tenants in the two matters that came before the Tribunal on 17 June 2016 has now been before the Tribunal since January 2016, when the landlord made his application. Further delay in resolution of those matters would impact not only on the parties, but on the proper management by the Tribunal of the resources available to it in terms of the allocation of hearing time. The Appeal Panel was not satisfied that adjourning the hearing would be consistent with the guiding principle in s 36(1) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings, or with the direction in s 36(4) of the NCAT Act that practice and procedure be implemented so as to facilitate the resolution of the issues in such a way that the cost to the parties and to the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings.
6. After the Appeal Panel advised the parties of the decision to refuse the application for an adjournment of the hearing, there was a short adjournment to provide an opportunity for Mr Hardy to read the tenants' submissions in reply to the appeal. There was a further short adjournment to enable the parties to discuss whether some agreement might be reached between them; no agreement was reached. Mr Hardy withdrew. The hearing of the appeal continued.

The Hearing

1. The Appeal Panel had before it the landlord's documents including submissions lodged on 6 December 2016 (ex A), and the tenants' documents and submissions lodged on 3 January 2017 (ex 1).
2. The parties tendered additional documents during the hearing, discussed below. Both parties made oral submissions on the five issues identified below, and otherwise relied on their more detailed written submissions. Both parties gave sworn oral evidence on two matters: the date on which the tenants vacated the property, and the payment of rent to the landlord.
3. The Appeal Panel has listened to the sound recording of the hearing on 17 June 2016 provided by the landlord, which has approximately 35 minutes of the hearing of the landlord's claim (matter RT 16/00484), and approximately 55 minutes of the hearing of the tenant's claim (matter RT 16/10280). The tenants' documents include a transcript of both those parts, prepared by the landlord. Having listened to the sound recording, the Appeal Panel accepts that the landlord's transcript of the two segments of hearing recorded is substantially accurate.
4. The landlord has provided a further transcript of his recollection of the earlier parts of the hearing (referred to in these reasons as the "supplementary transcript"). The tenant was not able at the Appeal Panel hearing to confirm whether he regarded the supplementary transcript as accurate. The Appeal Panel has made limited reference to the supplementary transcript, as discussed below.
5. The Appeal Panel notes that on 5 January 2017, four days before the Appeal Panel hearing, the landlord emailed the Tribunal to state that he would be bringing playing equipment and a DVD of the exit inspection to the Appeal Panel hearing. There was no request made during the hearing for that to be viewed, and no reason for the Appeal Panel to have viewed the DVD.
6. The Appeal Panel further notes that after the hearing of the appeal concluded the landlord sent additional submissions to the Tribunal. No leave had been granted for the making of any further submission or the provision of any additional documents, and the Appeal Panel has not had regard to any of the material sent to the Tribunal after the conclusion of the Appeal Panel hearing in the determination of the appeal.

The Issues

1. There are five issues to determine on the appeal: 1. Whether the time for lodging the appeal should be extended; 2. Whether there was an error on a question of law; 3. Whether leave should be granted for an appeal on other grounds; 4. What orders should be made in determining the appeal; and 5. Whether there should be any order as to costs.

Whether the time for lodging the appeal should be extended

1. The Tribunal Member provided his reasons for decision in RT 16/10280 in a reserved decision dated 26 August 2016. In the Notice of Appeal the landlord stated that the date he received notice of the decision was 26 August 2016.
2. The Notice of Appeal was lodged with the Tribunal on 26 September 2016. The landlord ticked the box in Section 7: Extension of Time "yes", indicating that he required an extension of time, stating as follows: I have not had requests for information to allow me to complete this appeal process sent to me. There is still my transcript and comments of the incomplete recording to complete. So I include this request for time extension as a safeguard against wilful or accidental administrative attempts to see me run out of time. From the attached it can be seen that I have not wasted my time in assembling evidence, argument and explanation for my appeal. I have been almost non-stop since I read M Holles decisions in email form on 26-8-2016. I have applied for a fee waiver.
3. At the Appeal Panel hearing the landlord tendered copies of email correspondence between 31 August 2016 to 5 October 2016 (ex B) to support his oral submission that in fact his appeal was lodged within the prescribed time. Those documents confirm the landlord's statement that he was seeking a fee waiver. An email dated 8 September 2016 includes an extract from Section 7 of the Tribunal's Notice of Appeal form, with the statement as to the grounds on which an extension was sought worded differently to that in the Notice of Appeal received on 26 September 2016. It appears from some of that correspondence that the landlord may have sent to the Tribunal a completed Notice of Appeal earlier than 26 September 2016: an email of 21 September 2016 includes notification from the Tribunal that the application had been rejected under r 22(2) of the Rules "for non-payment of the applicable fee".
4. However, it is not apparent from such correspondence that the landlord in fact sent a Notice of Appeal to the Tribunal at any time before 9 September 2016, the date prescribed under rule 25(4)(b). Accordingly, leave to extend the time for lodging the appeal is required.
5. The landlord submitted that leave should be granted, as the delay was a result of the time it took him to go through the orders and to prepare for the appeal. The tenant opposed the granting of leave, submitting that he had waited until after the appeal time period of 14 days, then a further period in case the appeal period was 28 days, before he applied for a certified money order for the payment of $2,400.00. He has paid a further $176.00 to get a writ issued by the Local Court Sheriff.
6. The principles to be considered in determining whether to grant an extension of time in which to lodge a Notice of Appeal are outlined in the Appeal Panel decision in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22: 22 The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1)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 - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) 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 - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] 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 - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a)The length of the delay; (b)The reason for the delay; (c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d)The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate 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 and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
7. The delay in lodging the appeal was in the order of up to 18 days after the period prescribed by r 25(4)(b) of the Rules. The email correspondence, in particular the extract from Section 7 included in the email of 8 September 2016, indicates that the landlord was aware both of his right to appeal, and of the 14 day period in which an appeal was to be lodged. The landlord's explanation for the delay was that it took him 10 days to go through the Tribunal Member's orders and prepare the appeal. While the delay was relatively short, and explained by the landlord, the tenant has incurred the cost of seeking to enforce the order made in his favour on 26 August 2016. However, while the tenant has obtained a decision in his favour and could ordinarily be expected to retain the benefit of that decision once the appeal period has expired, it is now conceded that there is an error in the making of that order. Given the orders made on 1 December 2016, the landlord has an arguable case on at least part of his appeal. Having regard to all the circumstances, the Appeal Panel extends the time for the lodging of the appeal to 26 September 2016.

Whether there was an error on a question of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel identified at paragraph [13] the following as questions 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 had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
2. The landlord's Grounds of Appeal are stated at paragraph [10] above. That statement does not articulate in express terms any question of law. However, as noted in Prendergast at [12], in circumstances where the appellant is not legally represented the Tribunal should approach the issue by looking at the grounds of appeal generally, and the Appeal Panel must determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise for the respondent.
3. As discussed with the parties during the hearing, the Appeal Panel considers that on a fair reading the Grounds of Appeal raise two possible questions of law: denial of procedural fairness, and no evidence to support particular findings of fact.
4. In oral submissions, the landlord submitted that he had been denied procedural fairness. In particular, the landlord says that the tenants did not provide an evidence folder in support of their claim, and further it was not until part of the way through the hearing of the tenant's claim that his evidence folder was dismissed by the Tribunal Member. The essence of the submissions is to the effect that he had been waiting to receive the tenants' evidence folder, and when it was 3 days before the hearing he had to lodge his evidence folder. In those circumstances, it is said, he should have been told at the beginning of the hearing, and not an hour or so through, that his evidence folder was dismissed. The landlord argues that he should have been allowed to rely on his evidence folder, and that the rules and procedure of the Tribunal for the timely exchange of documents had been applied to him but not to the tenants. During the hearing the tenants' advocate referred to particular sections of the RT Act that it was said the landlord had breached, but which were not specified in the tenants' documents. The Tribunal Member did not refer to landlord's submissions in the reasons for decision. The landlord submitted that there was no evidence for the finding that there had been an overpayment of $1,700.00 for rent.
5. The tenant submitted that his evidence folder in RT 16/00484 had been submitted in time. The landlord's submissions had taken 95% of the hearing time and the tenant's advocate had had to summarise the legislation on which the tenant was relying for return of the bond. The landlord's material was provided out of time, and the Tribunal Member bent over backwards in affording procedural fairness, including asking if he could look at the landlord's material to put the documents in context. In the tenant's submission, the tenant was unreasonably disadvantaged by the fact that all of the landlord's documents were filed and served out of time.
6. The parties' written submissions on the appeal provide further detail of their positions. The landlord's written submissions (ex A) received on 6 December 2016 run to several hundred pages, and are Section 1: photographs; Section 2: introductory summary of the reasons; Section 3: Members Fenwick and Harris orders; Section 4: annotated transcript of 16/00484 and 16/10280; Section 6: tenants' claims and response; Section 7: response to the Tribunal Member's reasons and orders; Section 8: evidence, being emails, additions to lease, entry condition report, bank statement, letters; and Section 9: edit of official record. The tenant's written submissions (ex 1) received on 3 January 2017 include a statement and submissions; a chronology and submissions on s 70 of the NCAT Act; copies of the Notice of Appeal and Reply to Appeal; and a transcript. The following discussion includes the relevant parts of each party's written submissions.

1. Whether there was a denial of procedural fairness
2. Section 38(5) of the NCAT Act, and the general law rules of procedural fairness, require that the Tribunal ensure that each party to proceedings in the Tribunal has "a reasonable opportunity to be heard or otherwise have (his) submissions considered in the proceedings". There are two aspects of the general law obligation of procedural fairness: first, that before a decision is made adversely affecting a person's rights or interests, the person is entitled to know the information on which the decision may be based and the right to be heard in reply; and secondly, that a decision-maker must be free of any reasonable suspicion or apprehension of bias or prejudgment.
3. The Appeal Panel has discerned from the landlord's written and oral submissions that there are five matters asserted by the landlord to constitute a denial of procedural fairness: 1. The Tribunal Member's refusal to admit his evidence folder into evidence; 2. The failure of the Tribunal Member to tell him that his evidence folder was rejected until one hour into the hearing; 3. The Tribunal Member's unequal treatment of the parties at the hearing; 4. The Member's conduct of the hearing, including his refusal to require the tenant's advocate to take an oath or affirmation, and his refusal to disqualify himself; and 5. Conflict of interest.
4. In order to address each of these matters, some detail is required of the pre-hearing procedural directions, the conduct of the hearing at first instance, and the reasons given by the Tribunal Member.

Pre-hearing Directions

1. Matter RT 16/00484 was the landlord's claim against the tenant; and RT 16/10280 was the tenant's claim against the landlord. While that was not the only matter in dispute, a common element in both applications was the landlord's claim that the tenants had caused damage to the property in breach of their obligations under the residential tenancy agreement. The landlord's claim was first listed for directions on 12 February 2016, and on that occasion the presiding Member directed that the landlord provide the tenant and the Tribunal a copy of all documents on which he intended to rely at the hearing by 11 March 2016; and for the tenant to provide all his documents by 25 March 2016. On 18 March 2016, at the request of the landlord, the time for compliance was extended to 21 March 2016 for the landlord and 4 April 2016 for the tenant. A further request by the landlord for an extension of time was received on 22 March 2016.
2. On 24 March 2016, at the first listing of the tenant's claim, the landlord did not appear. The Member made orders dismissing certain parts of the tenant's claim. The Member dismissed the application for an order under s 187(1)(b) of the RT Act to require provision of a rental ledger as there was then no residential tenancy agreement in place; the application under s 187(1)(d) for compensation in the amount of $15,000.00 for mental anguish and physical stress sustained as a result of actions of the landlord, as not being within the jurisdiction of the Tribunal; and the application under s 187(1)(h) for the landlord to comply with the requirements of the RT Act, on the basis that it was related to the claim for compensation and was not within the jurisdiction of the Tribunal. The matter was adjourned for hearing on 13 April 2016 of the remaining claims for refund of overpaid rent, and the claim under s 134(1)(c) for return of goods and s 175 for return of the rental bond, to be considered as a counter claim to the landlord's claim. No additional directions were made as to exchange of documents.
3. On 13 April 2016 both matters were adjourned, by consent. Directions were made in both matters for the landlord to provide the documents on which he proposed to rely by 27 April 2016, and for the tenant to provide his documents by 4 May 2016. The presiding Member noted that the landlord "has been given a second and final opportunity to provide written evidence", and that the extension was due to the circumstances leading to the adjournment that potentially had an impact on the landlord's ability to prepare written evidence in support of his case. The Member noted that the tenant had already provided written evidence in accordance with the previous directions, and allowed him the opportunity to respond to the evidence provided by the landlord by 4 May 2016. The directions included a direction that an adjournment would only be granted on the next occasion in exceptional circumstances.
4. On 9 May 2016, at the request of the landlord and with the consent of the tenant, an extension of time to comply with the procedural directions was granted. The landlord was to provide his documents by 16 May 2016 and the tenant by 30 May 2016.
5. The tenant requested an extension of time for provision of his documents. That request was refused on 9 June 2016 by a member in chambers, who noted that neither party had complied with the amended order for provision by the landlord of his documents by 16 May 2016 and by the tenant by 30 May 2016; that hearing time and resources had been allocated to the special fixture listing of the matters on 17 June 2016; that the matter was beyond the scope of the intent of s 36 of the NCAT Act as to time and cost; that any further extension of time would require that the hearing be vacated; and that both parties had had ample opportunity to file and serve their evidence.

The provision of documents

1. The landlord accepts in his written submissions that he provided his documents late, and that he provided his evidence folder to the Tribunal by taking it to the home of another Tribunal Member on Sunday 12 June 2016, having provided a copy to the tenant on 6 June 2016. His reasons for the delay in providing his documents were the tenant's delay in finalising the exit inspection; the amount of damage done to the property; the difficulty in contacting many different trades to provide a quote; his need to write extensive evidence; the need to have the damage repaired for his new tenants; the decision to allow the two cases to run concurrently; and after the tenants disclaimed any liability, the need to identify how the damage was connected to the breaches by the tenants.

The hearing of 17 June 2016

1. The Tribunal Member commenced with the hearing of the landlord's claim. At paragraph 17 of his reasons the Tribunal Member states that that claim "being lodged first was heard first".
2. The section of the sound recording relating to the hearing of the landlord's claim, which commences at a point well into the hearing, includes discussion by the Tribunal Member of his refusal to permit the landlord to rely on his evidence folder, referring to the directions made on 13 April 2016, and 10 June 2016, and concluding "there is nothing to stop the landlord making verbal submissions today but I don't intend to permit any reliance upon material not provided in accordance with directions especially given the orders dated 10th of June by Member Harris".
3. The landlord withdrew his application. The following reasons for decision are recorded: This is a matter where the applicant in this matter and respondent in the cross claim [RT16/10280], sought an award of damages which were not specified to an exact monetary amount, but were asserted to be about $40,000.00. The applicant did not comply with any of the orders or extensions to file documents , and on the 10th of June 2016 , Member Harris determined that no further extensions in addition to the three extensions already given on the 13 April 16 , the 16 May 16 and the 30 May 16 . The respondent through his tenancy advocate sought to have the matter dismissed because, it made it effectively impossible to meet the applicants case, in the absence of any served and filed documents. Apparently the applicant left a bundle of documents at a NCAT member's home in Orange on the evening of the 13th of June 2016. This cannot be taken as complying with the orders made for service of documents, and in any event was well out of time The Tribunal is not prepared to rely on those documents. When the applicant became aware [he states for the "first time "] that he was faced with a limit of $15000.00 in his claim for damages, and after being informed of the consequences of the cross claim proceeding to a hearing, including the matter of res judicata or issue estoppel , he nonetheless decided to withdraw this matter and commence proceedings in another forum. It is noted that the material supplied by the applicant, was referred to in his submissions, notwithstanding the fact that he was informed that the documents provided could not be considered. It is also noted that the applicant claimed he had a hearing difficulty which prevented him hearing the bench, this matter was resolved, by all parties raising the volume of their voices. The applicant also asked that the member disqualify himself, the matter was considered, in the light of the decision in Johnson v Johnson (2000) 201 CLR 488. The member decided to proceed with the matter. The basis of the application was that he member was speaking in a raised voice, which was being done, in the event at the request of the applicant himself
4. The sound recording confirms that the matter of admission of the landlord's evidence folder was raised again during the subsequent hearing of the tenant's claim, and the Tribunal Member confirmed that the documents could not be considered.
5. In his reasons for decision on the tenant's claim the Tribunal Member noted the following: 11 The landlord did not comply with the directions or any of the extensions granted. 12 On the evening of Sunday the 12 June 2016, the landlord took his documents to the private residence of an Orange based NCAT Member, he provided documents to the tenant's wife after dark the next night. (The Monday of the Queen's Birthday weekend). 13 The landlord's documents were lodged out of time, and did not comply with the requirement to lodge at the NCAT Registry. A private residence of a member is not a Registry. 14 The tenant lodged documents in the landlords matter (RT 16/00484) on the 17 March 2016, without the benefit of any documents from the landlord. 15 The first time the tenants received any documents in compliance with the Tribunal's directions to the landlord was three clear days before the hearing proceeded. 16 The landlord, apparently served a folder of documents on the tenant, at the same time as the documents in his own application, claiming that it was not a complete document, because he had not received the tenant's folder. This misconstrues the order of service in any bond claim, where it is trite law to observe that it is for the landlord to lodge documents first ,given that the money is legally the tenant's until order (in this case) of the Tribunal.
6. The Tribunal Member provided the following reasons for his ruling on the landlord's evidence: 29. As the landlord was informed, on the 13 April 2016, in orders made by Member Fenwick, that if documents were not provided in accordance with the directions made on that day, in those orders (and I note that the landlord was sent copies of the orders made) then they may not be considered. It was further noted, that documents provided late needed leave to be considered. 30. I consider that the failure to provide the documents in compliance with the orders made, the extensions granted and the ultimate provision of the documents in inappropriate circumstances to a Member's private residence, three clear working days before the hearing, make it difficult for the tenant to provide a proper response. The tenant had, as mentioned earlier provided submissions, in RT 16/00484, without the benefit of any documents from the landlord. Given the numerous delays in the matter being heard, I was not prepared to adjourn the matter. Member Fenwick on the 13 April 2016 directed that the matter proceed on the next occasion, save for exceptional circumstances. I do not consider a failure to comply with Tribunal directions, as occurred here, to be exceptional circumstances. By his conduct the landlord lost the opportunity to have his material considered by the Tribunal at hearing.
7. The first issue for the Appeal Panel is whether, in refusing leave to the landlord to rely on the documents in his evidence folder, the Tribunal Member erred in the exercise of the discretion conferred by s 41 of the NCAT Act to extend time for the filing and serving of evidence. The discretion must be exercised in accordance with the obligations imposed upon the Tribunal pursuant to any relevant legislation and having regard to the facts of the particular case. The starting point is the consideration of the obligations imposed on both the Tribunal and the parties under the NCAT Act. As summarised by the Appeal Panel in Mesiha v Murrell [2017] NSWCATAP 1, those obligations are as follows: 36. Section 36(1) of the NCAT Act requires the Tribunal to give effect to the guiding principle which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". The Tribunal is required to exercise the powers given to it in order to give effect to this principle: S36(2). The parties are under a duty to cooperate with the Tribunal to give effect to this principle "and, for that purpose, to participate in the processes of the Tribunal and comply with directions and orders of the Tribunal": S36(3). In doing so the "practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the costs to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings": s36(5). 37. Section 38 of the NCAT Act provides that: (1)while the Tribunal is not bound by the rules of evidence, it is to observe the rules of natural justice: s38(2); (2)the Tribunal is to act with as little formality as the circumstances of the case admit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s38(4); (3)the Tribunal is to take such measures as are reasonably practicable to ensure that the parties to the proceedings: (a)understand the nature of the proceedings: s38(5)(a); (b)have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s38(5)(c). 38. These requirements make clear that in giving effect to the guiding principle the Tribunal is to have regard to the interests of both parties as well as issues of proportionality which include issues of cost and the impact upon the Tribunal in meeting its obligations in respect of other applications which it is required to determine.
8. The Appeal Panel in Mesiha distilled the principles relevant to the exercise of the discretion to extend time: 45. From these cases can be derived the following principles to be applied in determining an application for extension of time in the Tribunal: (1) the just resolution of proceedings remains the paramount consideration; (2) what is a just resolution needs to be understood in the context of the purposes and objectives of the power granted to the Tribunal to resolve disputes and involves a weighing of all relevant matters; (3) speed and efficiency, in the sense of minimum delay and expense are seen as essential to the just resolution of proceedings; (4) a party should be afforded a reasonable opportunity to present its case; (5) there are limits to what is necessary in providing a reasonable opportunity to be heard, which may involve the consideration of delay and cost both to the other party and to the Tribunal; (6) the nature of the case and its importance to the party seeking an extension of time needs to be considered; (7) reasons for failure to comply will generally need to be provided and must be weighed against the effect any delay will have both on the other party and upon the Tribunal; (8) an award of costs may not always be adequate to deal with issues of prejudice, which include wasted time and strain imposed upon litigants; (9) there is no absolute entitlement to an extension of time, even if the consequence of the refusal effectively prevent a party from presenting relevant evidence in support of its case.
9. The test is not whether the Appeal Panel would have made the same decision, but whether it can be said that some error has been made in exercising the discretion, for example if the decision-maker has acted upon a wrong principle, or allowed extraneous or irrelevant matters to guide or affect the decision, or mistaken the facts, or has failed to take into account some material consideration: House v The King [1936] HCA 40; (1936) 55 CLR 499.
10. The landlord's application was lodged first, and he was directed to provide documents in support of his claim for compensation and for the rental bond in relation to asserted breaches by the tenants of the residential tenancy agreement by 11 March 2016, with the tenant to provide his by 25 March 2016. After 24 March 2016, the tenant's claim for return of the rental bond, refund of overpaid rent, and delivery of goods, was considered as a counter claim to the landlord's claim. At the time of the hearing on 17 June 2016, the latest date for the landlord to provide his documents to the Tribunal and to the tenant was 16 May 2016, and for the tenant, 30 May 2016. There had been a series of extensions already granted, as recorded by the Tribunal Member in his ruling and reasons.
11. The directions made on 12 February 2016 and 13 April 2016 specified the form in which the documents were to be provided, namely in a folder with numbered pages and in identical form; that they were to be provided to the other party and to the Tribunal in person or by post; and stated that a failure by a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on the documents at the hearing unless leave is granted to do so. Those directions did not make a ruling as to whether documents provided late would be admitted, and merely advised of the potential consequence if documents were provided not in accordance with the directions. The landlord's documents were not provided in accordance with those directions either as to timing or manner of delivery.
12. The Tribunal Member's reasons indicate that his decision to refuse leave was made taking into account the terms of the procedural directions and the extensions of time already granted, and taking into account the overriding principles governing the exercise of the Tribunal's powers stated in s 36 of the NCAT Act; and was made in response to the tenant's advocate's submission that the tenant was unreasonably disadvantaged by not having received those documents. The Appeal Panel accepts that a consequence of the ruling was that the refusal to admit the evidence effectively prevented the landlord from presenting the evidence on which he wished to rely in support of his case, both in his claim and in response to the tenants' claim. However, as noted in Melisha, there is no absolute entitlement to an extension of time, even assuming that that evidence might have been relevant and probative.
13. The Appeal Panel is satisfied that the Tribunal Member correctly identified the matters relevant to the exercise of the discretion, and took into account the relevant facts. His decision to reject the landlord's evidence folder could not be said to be unreasonable or plainly unjust. The landlord had been given three months to prepare evidence in support of his claim and provide it to the tenants, and that he failed to do. In the circumstances no error in the exercise of the discretion has been established.
14. The second aspect of the landlord's concern with the Tribunal Member's ruling relates to the timing of that determination. The landlord asserts that the ruling was made an hour into the hearing, and that he should have been told earlier. The sound recording commences at the point of the Tribunal Member's ruling that the landlord could not rely on the material provided out of time. The supplementary transcript provided by the landlord based on his recollection of the preceding part of the hearing indicates that the hearing commenced with the landlord being given an opportunity to outline his case, and then the tenant's advocate in commencing her opening of the tenant's case submitted that the landlord's evidence folder should be dismissed. The landlord was given an opportunity to reply to that submission before the ruling to exclude the evidence was made.
15. Section 38(1) of the NCAT Act provides that the Tribunal may determine its own procedure in relation to any matter for which that Act or the procedural rules do not otherwise make provision. There is nothing unusual, let alone unreasonable or unfair, in the procedure adopted by the Tribunal Member of allowing the parties to open their case before turning in more detail to the evidence, and then making a ruling on the admission of particular evidence after having heard the parties. There was no unreasonable or unfair exercise of the procedural flexibility inherent in s 38(1), nor any inconsistency with the provisions of s 36 and s38 of the NCAT Act as identified above, in the procedure adopted by the Tribunal Member.
16. The landlord's contentions as to the inequitable treatment of the parties were outlined in his written submissions, including his annotations on the transcript in Section 4 of his written submissions. In summary, the landlord submitted that the Tribunal Member had rejected his evidence yet allowed the tenant to rely on his documents, even though neither party had complied with the procedural directions as to dates; had determined the matter allowing the tenant to rely on the material provided with his application rather than in a served evidence folder; and had directed all questions for proof and explanation to the landlord and not required the tenants to justify any of their statements. The landlord submitted that the Member had neglected the application of the previous procedural directions to both parties, and had erred in applying them only to the landlord. That was a grievous error which introduced an element of prejudice to proceedings that eventually led to the dismissing of the landlord's evidence folders rendering him defenceless in the hearing. Submissions by the landlord were allowed but were wrongly denied the supporting weight of evidence. The tenants' application was allowed without the benefit of evidence, despite that the tenants failed to follow directions to lodge by a certain date and failed to lodge at all. He had had to answer questions for his case against the tenants, however they had not had to answer questions for the tenants' case against him.
17. The tenant's submission was that he did not have further information or documents to add to the documents provided with his application in RT 16/10280.
18. The hearing of the tenant's claim followed the withdrawal of the landlord's application. The sound recording confirms that the Tribunal Member relied on the documents provided by the tenant in a folder in the appropriate form. There is no basis for an assertion that the Member erred in doing so. There had been no procedural direction made that the tenant provide any further documents to the Tribunal or to the landlord, before the landlord was to provide his. The directions made on 12 February 2016 and 13 April 2016 were for the landlord to provide his documents, and then the tenant, and while the dates were subsequently extended, the order in which documents were to be provided did not change. The directions made on 13 April 2016 by another Member included the note that "the tenant has already provided written evidence in accordance with previous directions, and allows him the opportunity to respond to the evidence provided by the landlord in accordance with these directions, by 4 May 2016". At the hearing on 17 June 2016 the Tribunal Member commented that the landlord was not unaware of what the tenant's case was, as he had responded to it in the material he had delivered to the residence of another member.
19. In circumstances where the tenant had provided all the documentation on which he sought to rely, and where no direction was made for him to provide any further documentation until after the landlord had provided his, and where the Tribunal Member was satisfied that it had been provided in a proper form and that the landlord had had an opportunity to consider it, there can be no denial of procedural fairness in the Member allowing the tenant to rely on that evidence.
20. As noted above at paragraph [10] the landlord's Grounds of Appeal include a contention that the Tribunal Member was "bullying; discriminatory; bullying; lacking knowledge of the case; selective in his application of the law; ignored evidence showing Lacey lying; ignored evidence that would over turn his orders; inconsistent; corrupt; incompetent; has possibly tampered with evidence - the recording of the hearing has parts missing - I told him during the hearing that I would be requesting a recording and that I would use it to complain and appeal."
21. The landlord further contends that the Member "twice adjourned the hearing, once after 5 minutes after the start when he argued with me and insulted me when I politely asked him to speak up so that the ex tenant and myself could hear him."
22. As to the general assertion that the Member was "bullying", having listened to the sound recording and considered the Member's reasons for decision, the Appeal Panel is satisfied that the Tribunal Member appropriately attempted to direct the landlord's submissions to addressing the relevant issues. Much of the hearing time was occupied with the landlord's continuing disagreement with the Member's ruling that he could not rely on his evidence folder. After that ruling was made, the Tribunal Member continued to hear the landlord's claim, starting with the provisions of the residential tenancy agreement, and then hearing the landlord on the exit inspection, the damage claimed including quotes for restoration of the garden, and the limit on the Tribunal's jurisdiction to award compensation in a tenancy claim. The Tribunal Member attempted on several occasions to keep the landlord's submissions focussed on the relevant issues. There is nothing about the content, or the tone, of the exchanges between the landlord and the Member that would support a conclusion that the Member was "bullying" in his conduct of the hearing, or that he was preventing the landlord from articulating his case; rather, the Member was establishing the jurisdictional basis for the landlord's claim, and providing him with an opportunity to present it.
23. There was an application made by the landlord for the Member to disqualify himself, according to the landlord's supplementary transcript. This application was made during the landlord's reply to the tenants' application to have the landlord's evidence folder dismissed. The landlord's supplementary transcript records the following exchange between the landlord and the Member: Landlord: Sir, are you still angry with me because I could not hear you at the start. You have been constantly interrupting me and swerving me from my train of thought as I try to explain my case. In fact you give me the impression that you do not know much about these matters. Member: Mr Toberty. Believe me when I tell you that I have a thorough understanding of residential tenancy matters. And I have read your file. Now I ask you to be respectful in this hearing. Landlord: Sir, I would like these cases judged by someone else please. I was late, but not late to the extent that you say that caused harm to the tenants. M Fenwick allowed me extra time and for very good reasons because I sent my draft of my EF to NCAT to show that I was not wasting time and that I was respecting the process. There are numerous letters, stat decs, photos, reports, quotes and invoices to support my claims and to explain why I needed extra time, Sir. While M Harris found that my serving of my EF to the ex-tenants was OK, in fact he said that the Laceys had time enough to understand my delivered EF to them.
24. There was a second request, made during the hearing of the tenant's case, for the matter to be put into the hands of another member. That request was refused.
25. In his submissions responding to the Member's reasons for decision, the landlord states: I asked him to dismiss himself because I detected in his attitude, his inconsistencies, his applying of all questions from both cases to me, and none or little to Mr Lacey, his interruptions and dismissing of my context descriptions just as they began, as a form of bias. I believed he was displeased with me due to my simple request and I believed that such displeasure would lead to bias against me. I believe that the remainder of the hearing was a demonstration by MH that I was correct in my beliefs. I wanted him out of decisions affecting my family because I saw that he did not treat me equally with my opponent. He was applying a manner not provided to my opponent, Example: I had to answer his questions for my case against Lacey - fair enough if that is the way it is done - but Lacey never had to answer any questions for Lacey's case against me. The MH directed all his questions for the Lacey case against me! Where is the equity there?
26. The Tribunal Member's reasons for refusing to disqualify himself are recorded above at paragraph [54].
27. The Appeal Panel has considered whether there is any basis for an argument that the Member should have disqualified himself on the ground that his conduct of the hearing was such that a claim for actual or apprehended bias could be made out. A finding of actual bias, in the sense that the decision-maker's mind is closed to persuasion, is not made lightly, and a claim for actual bias must be distinctly made and clearly proved: South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16. There will be reasonable apprehension of bias if a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].
28. Having considered the sound recording and transcript, and the Tribunal Member's reasons, if an allegation of actual bias is made by the landlord, we are not satisfied that it has been established. We are not satisfied that a reasonable fair minded observer might reasonably apprehend that the Member would not bring an impartial and open mind to the issues he had to determine. The landlord's disagreement with the Tribunal Member's ruling on the admission of his evidence folder would not warrant a finding of either actual or apprehended bias. Neither could the focus of the Member's consideration during the hearing on the landlord rather than the tenant. In the hearing of the landlord's claim, as in any civil proceedings, the landlord bore the legal onus of presenting sufficient evidence to satisfy the Tribunal, on the balance of probabilities, that the orders sought in the application must be made. In the tenant's claim, the landlord had to make out a case as to why any part of the rental bond should be provided to him rather than refunded to the tenant. This is because the rental bond is always the tenant's money subject to any claims for compensation established on the evidence by the landlord. As the landlord is in reality the party claiming compensation it is of no moment that the landlord is formally the respondent to the tenant's claim. There was no error in the Tribunal Member's refusal to disqualify himself.
29. In his introductory summary submissions on the appeal (Section 2) the landlord submits that both parties were not treated equally in the way they were allowed to present their submissions and in the way they were questioned and called upon to justify statements, and that the tenants were accorded "very tender treatment" by the Member. Having listened to the sound recording and having regard to the Member's reasons, in the context of the matters which needed to be established for the landlord to succeed in his claim and to resist the tenants' claim for return of the rental bond, the Tribunal is not satisfied that the Tribunal Member erred in how he questioned the parties and elicited the relevant evidence.
30. There was no error in the Tribunal Member's refusal of the landlord's request that he require the tenant's advocate to take either an oath or affirmation. As explained by the Member, the advocate's role was to advocate and to make submissions, and not to provide evidence.
31. At the conclusion of his written submissions responding to the Tribunal Member's reasons for decision the landlord raises an allegation of conflict of interest based on a possible connection between the tenants and the Member, being the possibility that a relative of the Tribunal Member attended the same school as that attended by the tenants' daughter. There is no substantiation provided for the assertion that in some way the Tribunal Member and the tenants know each other. The Appeal Panel finds that this aspect of the landlord's claim of denial of procedural fairness is not established.
32. The landlord's Grounds of Appeal include a statement that the Tribunal Member "has possibly tampered with evidence - the recording of the hearing has parts missing - I told him during the hearing that I would be requesting a recording and that I would use it to complain and appeal". That is a serious allegation. Clear and convincing proof is required. The Appeal Panel finds that such an allegation is not substantiated in the landlord's written submissions to the Appeal Panel, including the detailed discussion in section 9 of those submissions. The hearing was conducted at Orange Courthouse and recorded on a laptop computer. It is clear that not all the hearing was recorded; however, there is no evidence to substantiate an allegation that the missing sections of the hearing are attributable to any deliberate action by the Tribunal Member.
33. The Appeal Panel concludes that there was no denial of procedural fairness.

2. Findings on the evidence
3. In Prendergast the Appeal Panel included as a question of law "whether there was no evidence to support a finding of fact". The cases relied on to support that proposition establish that there will be an error of law if there is no evidence at all to support a particular finding of fact (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321). While making an arguably incorrect finding of fact for which there is some basis in the evidence may not be an error of law, there will be an error if the reasoning process lacks an evident and intelligent justification: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
4. The findings made by the Tribunal Member on the substantive issues raised in the tenant's claim can be summarised as follows: 1. The tenants vacated the premises on 18 November 2015 after receiving a notice of termination from the landlord ([2]); 2. There was a (presumably automatic) payment of rent to the landlord on 27 November 2015 after the premises were vacated ([5]); 3. The exit condition report, done without the benefit of any entry condition report, was conducted on 22 December 2015 ([6]); 4. The tenant took issue with the landlord's claim for all the bond from the time he became aware of the landlord's claim ([6]); 5. The landlord commenced proceedings on 5 January 2016 against the tenant claiming $20,000.00 compensation and the return of the bond; the application did not indicate how the claim was made up, nor did it attach any invoices, quotes or receipts to justify the amount claimed ([8]); 6. The tenant's claim for reimbursement of $264.00 being the cost of tree lopping in the driveway to allow access for the tenant's removal truck was misconstrued and was not allowed ([22]); 7. Section 70 of the NCAT Act does not capture a party to proceedings as opposed to a member or staff member of NCAT, and the Tribunal Member was unable to make the finding sought by the tenant as to the landlord's non-compliance ([24], [25]); 8. The landlord admitted that he did not have a rent record; s 37 of the RT Act requires a landlord to keep a rent record; the tenant in his application requested a rent record; and it was not provided ([28]); 9. The requirements of s 29(4) of the RT Act for the conduct of an exit condition report were not met ([31]); 10. The requirements of s 165 of the RT Act in relation to a claim on a bond by a landlord were not met ([32]); and 11. In the absence of a record of rent the tenant carries no onus to prove that rent was paid; and the Tribunal Member directed that the landlord refund the sum of $1,700.00 being the 4 weeks rent paid on 27 November 2015 ([33]).
5. There was no appeal by the tenant in relation to the dismissal by the Tribunal Member of his claim for reimbursement of the cost of tree lopping, or in respect of the failure of the Tribunal Member to deal with that part of the tenant's claim relating to the return of items. Nor did the tenant appeal from the earlier orders of another Member dismissing those parts of the tenant's claim relating to the rent ledger and for compensation of $15,000.00. Accordingly, the Appeal Panel is required to consider only whether there was no evidence to support the findings made in relation to the two matters the subject of the Tribunal Member's orders, namely for refund of overpaid rent, and for return of the whole of the rental bond.
6. As noted above in paragraph [13], it is now conceded that the Tribunal Member's order that the landlord pay the tenant $2,400.00 is not supported by his finding that the tenants had overpaid the rent in the amount of $1,700.00. The issue for the Appeal Panel is whether there was evidence to support the finding that $1,700.00 was the amount of rent overpaid: and that depends on two factors, both the amount or amounts actually paid by the tenant to the landlord, and when the tenants' liability to pay rent under the residential tenancy agreement ended.
7. The landlord's position is that the evidence did not support the finding of payment of rent on 27 November 2015, or the finding that the tenants had vacated the premises on 18 November 2015.
8. The landlord's oral evidence at the Appeal Panel hearing was that the tenants vacated the premises on 2 December 2015, and his written submissions to the Appeal Panel provide his substantiation of that position. The tenant's original application stated 2 December 2015 as the vacate date, and his written submissions on the appeal supported the date for vacant possession being 2 December 2015. In those submissions the tenant stated that he moved out of "Brillig" on 18 November 2015 and informed the landlord of that on 23 November 2015; sent an email on 24 November asking with whom the keys should be left; and dropped the sets of keys into the landlord's home letterbox on 2 December 2015.
9. The landlord's written submissions include an extract from his bank statements showing deposits into his account of $850.00 on 17 November 2015 and a further $850.00 on 1 December 2015. The tenant provided at the Appeal Panel hearing a copy of his wife's bank statement showing a transfer of $850.00 for "Brillig rent" on 27 November 2015 to "Tom Toberty".
10. It is not apparent from the sound recording of the hearing or from the reasons for decision the basis on which the Tribunal Member found that the tenants had vacated the premises on 18 November 2015, or for the Tribunal Member's finding that four weeks' rent had been paid on 27 November 2015. Having regard to the tenants' concession as to the date for vacant possession, which would affect the amount of rent payable, and the discrepancy as to the actual payments of rent at the end of the residential tenancy, the Appeal Panel is satisfied that the Tribunal Member erred in finding that there was an overpayment of rent of $1,700.00. That finding was not supported by the evidence, and an error on a question of law has been established. The issue of what orders should be made on the appeal as a consequence is considered below.
11. In relation to the tenant's claim for return of the whole of the rental bond, as noted above, a rental bond is the tenant's money unless the landlord can establish a claim for part or all of that money. Section 165 of the RT Act sets out procedural requirements for a landlord claiming payment of the bond without the tenant's consent, including under s 165(1) a requirement that within 7 days of a claim being made the landlord give the tenant a copy of a completed condition report about the premises at the end of the tenancy and copies of estimates, quotes, invoices or receipts for work for which the bond is claimed. Section 166 of the RT Act states that the matters for which the landlord is entitled to claim include the reasonable cost of repairs to or restoration of the premises as a result of damage (other than fair wear and tear), any rent or charges owing, the reasonable cost of cleaning of premises not left reasonably clean by the tenant, or the reasonable cost of replacing locks etc altered by the tenant without the landlord's consent.
12. The landlord disputes in his written submissions to the Appeal Panel that he did not comply with the requirements of s 165 of the RT Act, stating that he was responding to the tenant's claim for refund of the bond and not initiating a claim, and that there had been no completed exit condition report because the tenant had refused to return after 22 December 2015 to complete it.
13. The transcript of the hearing of the tenant's claim indicates that the tenant's advocate based her submission that the tenant was entitled to return of the rental bond on two grounds: the breach by the landlord of ss 29, 37, and 165 of the RT Act, and that there was no evidence of damage caused by the tenants. The landlord gave evidence as to the exit inspection of 22 December 2015, stating that it had not been completed because the tenant had had to leave and only half the property had been inspected, that he gave the tenant more than enough opportunity until it got to the stage where his new tenants would have started looking for another property, and that he had recorded it on a DVD.
14. The Appeal Panel is satisfied that it was open to the Tribunal Member to find, based on the landlord's evidence, that there was not a completed copy of a condition report for the premises at the end of the tenancy as required by s 29(4) of the RT Act. The landlord's written submissions to the Appeal Panel include an extract from an email sent on 24 December 2015 to Rental Bond Services, before he lodged his application to the Tribunal, requesting a freeze on the bond. The Appeal Panel finds that there was no error of law in the finding by the Tribunal Member that the landlord had not complied with s 165(1) of the RT Act.

Whether leave should be granted for an appeal on other grounds

1. Schedule 4, cl 12(1) of the NCAT Act provides that an Appeal Panel may grant leave to appeal from a decision in the Consumer and Commercial Division of the Tribunal only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The landlord relies on each of these matters in his Notice of Appeal in seeking a grant of leave.
3. The Appeal Panel has determined for the reasons above that there was an error in the determination of overpaid rent in Order 2, but no error on a question of law in relation to Order 1 relating to payment of the rental bond. Accordingly, the Appeal Panel is required to consider only whether leave should be granted to appeal against Order 1 that the whole of the rental bond be paid to the tenant.
4. The meaning of "substantial miscarriage of justice" was summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [71]: 71 . . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred.
5. The principles relevant to the granting of leave for an appeal from a decision in the Consumer and Commercial Division are stated in Collins v Urban: 76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55].
6. In his Notice of Appeal the landlord responded to the information on the first two grounds in cl 12(1)(a) and (b): See attached. I have asked NCAT if my 100+ pages answering these sections also need to be printed of 6 times and have not received a response.
7. In response to cl 12(1)(c) the landlord stated: The Notice of Orders sent by M Holles on the day of the hearing (17-6-2016) and his "reasons" for Orders sent 26 Aug, 2016 are new evidence for my appeal claims and were clearly not present during the hearing. The incomplete recording of the hearing sent after the hearing will also show Member guilt. These documents contain his deceptions and fabrications and inconsistencies and lies and poor behaviour that I show in my 100+pages.
8. In oral submissions in support of his application for leave to appeal the landlord submitted the Tribunal Member had continually interrupted and questioned him, and did not refer to anything in his evidence folder. The tenant was never asked any questions.
9. The tenant opposed leave being granted, and submitted that there was no miscarriage of justice. The Tribunal Member had been trying to get the landlord to focus on what could be considered, and the hearing was conducted in a civil and logical way.
10. Considering first whether it can be said that the decision of the Tribunal Member was not fair and equitable, as required by cl 12(1)(a), the Appeal Panel accepts that the determination of the tenant's claim for return of the rental bond proceeded in the absence of the evidence provided by the landlord in his evidence folder. For the reasons given above, there was no denial of procedural fairness in the way the hearing was conducted. The landlord was given the opportunity to explain why there was no completed condition report of the exit inspection. The transcript records his acknowledgment that he was aware of s 29(5) of the RT Act, which permits completion of a condition report in the absence of the other party if that party has been given a reasonable opportunity to be present. The supplementary transcript reveals that the landlord was given an opportunity to outline the damages he alleged had been caused by the tenants and why that was not fair wear and tear; and that the tenants had failed to alert him to potential risks for example from broken windows. During that part of the hearing of the landlord's claim that was recorded the landlord gave evidence as to the alleged breaches by the tenants, being damage to the lawns and gardens, referring to two quotes from landscapers for restoration of the lawn at $20,000.00 and $15,000.00. Most of the hearing of the tenant's claim was occupied with the landlord contesting the Tribunal Member's ruling on evidence. The Appeal Panel is satisfied that the landlord had the opportunity to establish his claim to be paid the rental bond, and is not satisfied that it has been shown that the decision was not fair and equitable.
11. As held in Collins v Urban, a decision can be said to be "against the weight of evidence" for the purposes of cl 12(1)(b) where the evidence in totality preponderates so strongly against the conclusion reached that it could be said that the conclusion was not one that could be reached by a reasonable Tribunal Member. The Appeal Panel is satisfied that the conclusions reached by the Tribunal Member as to the landlord's failure to comply with ss 29(4) and 165 of the RT Act were open on the evidence. The transcript confirms that the Tribunal Member adopted the correct approach in law, that it was for the landlord to establish some basis on which he could be paid part or all of the rental bond. The Tribunal Member's conclusion that he had not done so, and that the tenant was entitled to return of the rental bond, was not one reached against the weight of evidence.
12. In Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 the Appeal Panel considered cl 12(1)(c): 23….[T]he test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c). 25Further, to grant leave simply on the basis of whether a party had been unsuccessful in their attempt to obtain evidence would allow any party who has a personal excuse for not providing evidence otherwise reasonably available an opportunity to seek leave to appeal any decision of the Tribunal. Such an outcome would not promote finalisation of the real issues in dispute in a just, quick and cheap manner, as an opposing party would be liable to face a successful appeal and a rehearing merely because of the personal circumstances of the person who failed to procure necessary evidence. 26In our opinion the intent of cl 12 of Sch 4 of the NCAT Act is to impose additional limitations on a party's entitlement to seek leave to appeal under s 80(2) of the NCAT Act from a decision of the Consumer and Commercial Division.
13. The Tribunal Member's Notice of Orders and reasons for decision are not "evidence" for the purposes of cl 12(1)(c). The landlord's complaint is that the evidence on which he sought to rely was rejected, not that it was not available at the time the proceedings at first instance were being dealt with. The landlord has not established that there was any evidence not reasonably available at the time of the first instance proceedings.
14. The Appeal Panel is not satisfied that in all the circumstances any of the grounds in cl 12(1) are met, or that it could be said that the landlord was deprived of a significant possibility or a chance that was fairly open that a different result as to his claim for the rental bond would have been achieved. The Appeal Panel is not satisfied that any substantial miscarriage of justice may have occurred, and leave to appeal cannot be granted.

What orders should be made in determining the appeal

1. Section 81 NCAT Act provides the powers of the Appeal Panel: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.
2. The landlord submits that there has been substantial damage done to the premises and the appropriate order is that the rental bond be returned to him, and the order for refund of overpaid rent should be quashed.
3. The tenant submits that he should retain the rental bond, because there has clearly been no damage done to the premises. The Appeal Panel should adjust the amount for the refund of overpaid rent, and direct that the landlord undertake no further actions against him or his wife in the Tribunal or in a court relating to the premises. The Appeal Panel notes, and so advised the tenant during the hearing, that it has no power to make any order of the kind sought by the tenant to direct that the landlord not bring any further proceedings.
4. The landlord has not established any error on a question of law in the making of Order 1, and the Appeal Panel refuses leave to appeal against that determination on any other ground. That order should stand. The landlord has established an error in the calculation of the overpaid rent. The Appeal Panel has sufficient evidence to enable it to correct that error, pursuant to the power conferred by s 81(1)(b) of the NCAT Act, and it is appropriate that it do so in the interests of finalisation of all the matters in dispute.
5. It was accepted by the tenant, and thus common ground between the parties at the hearing of the appeal, that the date the tenants vacated the premises was 2 December 2015 when the keys were returned. The issue of what rent amounts had actually been paid, and when, remained a live issue at the appeal hearing.
6. The landlord's written submissions asserted that his bank statements were his record of rent received from the tenants, and that those statements showed no payment into his account in November 2015 after the payment of 17 November 2015. However, the landlord ultimately conceded in Section 6 of his written submissions, and in oral evidence at the appeal hearing, that there was a cash payment made into his account of $850.00 on 1 December 2015.
7. In his written submissions to the Appeal Panel the tenant stated that his wife's bank statements show two money transfers for two weeks rent paid in advance of $850.00, on 15 November 2015 and 27 November 2015. He stated that he was willing to provide copies of his bank statements to the Appeal Panel members showing the disputed rent. He was not willing to provide them to the landlord "given his history of posting on social media platforms many documents and photographs provided to him by Mr Lacey in the exchange of documents process". At the hearing the tenant provided to the Appeal Panel members a photocopy of his wife's bank statement, which he requested not be shown to the landlord. That document became part of exhibit 2. In order that the landlord could know the substance of the material which appeared to be credible, relevant and significant to the issue to be determined, as required in accordance with the decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, the Appeal Panel read out the details of the transaction dated 27 November 2015. That transaction described the payment of $850.00 on that date as "Brillig Rent" and the payee as "Tom Toberty". The tenant's oral evidence was that the payment was made by his wife by mistake.
8. It was common ground that $850.00 rent was paid by the tenants each fortnight in advance. The Appeal Panel finds based on the landlord's evidence, that the tenants paid rent of $850.00 on 1 December 2015 to the landlord. It is not necessary to consider why that payment appeared in the tenants' records on 27 November 2015 but did not appear in the landlord's bank records until 1 December 2015. Receipt of payment on the latter date is consistent with the landlord's evidence as to the earlier payments of 3 and 17 November 2015, both of which were also on a Tuesday. The residential tenancy agreement was by then a periodic agreement, terminated by notice by the landlord, and the tenants' obligation to pay rent ended on the date they gave vacant possession, that is, 2 December 2015. The tenants were liable to pay two days' rent at $60.71 per day for 1 and 2 December 2015, that is $121.42. The Appeal Panel is satisfied that the correct calculation of the amount of overpaid rent is $728.58. That money should be refunded to the tenants.

Whether there should be any order as to costs

1. As the appeal was filed after 1 January 2016, by virtue of rule 38A of the Rules, the costs' provisions applicable at first instance are applicable on the appeal. Section 60(1) of the NCAT Act provides that each party to proceedings in the Tribunal is to pay the party's own costs. Subsection 60(2) provides that the Tribunal may award costs only if satisfied that there are special circumstances warranting an award of costs. Special circumstances for the purposes of s 60(2) are those which are out of the ordinary, but they do not have to be extraordinary or exceptional: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25. Section 60(3) of the NCAT Act provides a non-exhaustive list of matters that may be taken into account in determining whether there are special circumstances. Rule 38 of the Rules applies to proceedings in the Consumer and Commercial Division of the Tribunal, and relevantly provides in rule 38(2)(b) that the Tribunal may award costs even in the absence of special circumstances if the amount claimed or in dispute in the proceedings exceed $30,000.00.
2. The tenant stated that his costs of the appeal are $143.00 in lost wages, $387.50 for travel (500km at $0.55 per km), $49.00 parking, and $176.00 for enforcement of the order, a total of $755.50. The tenant submits that there are special circumstances warranting an order for costs, as there was nothing wrong with the Tribunal Member's decision, there had been a typographical error about the overpaid rent which he accepted, and he had tried throughout the proceedings to get his documents in on time and co-operate with the Tribunal.
3. The landlord had not calculated his costs, and submitted that if costs were to be allowed he should have the chance to do so, as he has been to Sydney three times, and has taken 1,500 hours on these matters. The special circumstances warranting a costs order are the need to have the matters determined, the behaviour of the tenants, and his need to get documents together.
4. In Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 the Appeal Panel held that in applying rule 38(2)(b) the determinative factor is the amount claimed or in dispute in the appeal, and not the amount in dispute in the proceedings at first instance. In the context of this appeal, therefore, the Appeal Panel would have to be satisfied that there are special circumstances warranting an award of costs. Both parties have had limited success on the appeal: the landlord has succeeded in part in his appeal against Order 2 made by the Tribunal Member, and the tenant has succeeded in defending Order 1 for return of the rental bond. Having regard to the matters identified in s 60(3), and the submissions of the parties, the Appeal Panel does not consider that it would be appropriate to award either party costs of the appeal. The Appeal Panel will order that there be no order in relation to the costs of the appeal.

Conclusion

1. For the reasons above, the Appeal Panel extends the time for lodging the appeal to 26 September 2016. The Appeal Panel has addressed the matters raised by the landlord in his appeal against the orders made in the tenant's claim in RT 16/10280, and concludes that Order 2 made on 26 August 2015 should be varied so that the landlord pays the tenants $728.58, to be paid from the funds held by the Tribunal, and with the balance refunded to the landlord. In relation to the appeal against Order 1, no error on a question of law has been established and leave to appeal on other grounds is not granted, and the appeal should be dismissed. There should be no order in relation to the costs of the appeal.
2. The Appeal Panel orders: 1. Time in which to lodge the appeal is extended to 26 September 2016; 2. The appeal is allowed in respect of Order 2 made on 26 August 2016; 3. Pursuant to s 81(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), Order 2 made on 26 August 2016 is varied to be: The Registrar is directed to pay from the monies paid to the Tribunal on 6 December 2016 the amount of $728.58 to Stephen Lacey and Jennifer Lacey, and to pay the balance to Thomas Toberty. 1. The appeal is otherwise dismissed; 2. Order 1 made on 26 August 2016 is confirmed; and 3. No order as to the costs of the appeal.

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: 10 February 2017