Townsend v Setchell

Background

1. On 25 September 2017, the respondent lodged an application with the Consumer and Commercial Division of the Tribunal seeking an order that the appellant pay him $5,437.31 being the total amount he had paid for electricity since the "start" of his tenancy as the residential premises of his tenancy was not separately metered from that of the tenant in the garage.
2. We understand that the appellant also made an application with the Consumer and Commercial Division, seeking compensation in respect of damage caused to the premises by the respondent's daughter and her friend.
3. The residential premises the subject of the proceedings below and this appeal, is unit No 3. At the hearing the appellant advised that unit 3 was one of three units in the converted old Queenslander home that she inherited and owns. All three units were located on the upper level and were separately metered (main meter). A studio was located on the lower level. The studio was used by the appellant and it was separately metered (main meter).
4. The tenants in each of the upper level units had a right of access to the laundry that was located on the ground level.
5. Attached to the main meter of each unit and the studio was a sub-meter which measured the amount of electricity used by the tenant of that unit in the laundry. The retail supplier of electricity issued charges (bills) to the tenant of each unit based on the quantity of electricity used as recorded on the main meter of each unit and the studio. The recorded use on the main meter included the quantity of electricity used by the tenant in the laundry.
6. In the back garden of the property, behind the house, there was a garage also owned by the appellant. The appellant rented the garage to the owner of a car detailing business.
7. The respondent commenced his tenancy in October 2015. Origin Energy supplied electricity to unit 3 during the respondent's tenancy. The respondent paid all charges (bills) issued by Origin Energy in regard to the electricity supplied to unit 3 as recorded on the main meter.
8. The respondent made these payments with his own funds (including payments he received from Centrelink) and vouchers he received from the local Community Centre under an assistance program of the NSW Government Planning and Environment Department.
9. In January 2016, a further sub-meter was connected to the main electricity meter of unit 3. The sub-meter supplied electricity to the shed in the back garden.
10. The respondent became aware of the installation of the second sub-meter to the main meter of unit 3, in July 2017. As we have noted above, the respondent commenced proceedings against the appellant in September 2017 and we understand the tenancy agreement between the parties ceased at around that time.

Appellant's Notice of Appeal

1. In her Notice of Appeal the appellant said that the Tribunal "has made an error in judgement and awarded in favour of the" respondent (the applicant below).
2. The appellant raised a number of grounds of appeal, including: 1. the Tribunal made a gross error in calculation and the actual amount the respondent had paid was $1,461.65; 2. the respondent (applicant below) had provided copies of a shared bill with ZIG ABOLIT and there was no evidence as to who this person was and what was paid by that person; 3. the Tribunal failed to see or understand that the respondent's claim was vexatious and a fabrication. In this regard, the appellant asserted that the respondent's claim was brought after he had run out of his vouchers and was forced to use his Centrelink payments and that he had tricked the leasing agent to have the Larkin Lighting electrician attend.
3. In regard to what orders the Appeal Panel should make, the appellant said the respondent's application should be dismissed and she should be awarded damages of $1,850 above the cost of temporary repairs, as this was also damage caused by the respondent. The appellant has not lodged an appeal in respect of the decision of the Tribunal in respect of the claim she made against the respondent (i.e. appellant's cross application below). Hence this is not an issue that we have jurisdiction to consider any further.
4. The appellant said she did not seek leave to appeal. However, she did address each of the matters prescribed in cl 12 of Sch 4 of the NCAT Act.
5. Finally, as we have noted, the appellant sought an extension of time within which to lodge her appeal. She explained that she did not receive notice of the decision of the Tribunal until 17 January 2018 had been dealing with the Tribunal's Tamworth office since 19 January 2018 in order to determine relief and quantum.

Respondent's Reply to Appeal

1. In his Reply to Appeal the respondent said he supported the orders made by the Tribunal and that he did not agree with the information supplied by the appellant.
2. Attached to the respondent's Reply was a copy of a statutory declaration of the appellant dated 4 April 2018 and a copy of a letter from the Murwillumbah Community Services confirming that the respondent had received assistance from the Service in the form of electricity vouchers in accordance with the NSW Government Planning and Environment Department.
3. Material before the Tribunal
4. In addition to the Notice of Appeal and Reply to Appeal the parties filed and served the following material: 1. written submissions of the appellant filed on 14 May 2018. Attached to the submissions was a letter from Mayberry Meldrum & Anderson Accountants & Taxation Consultants, dated 6 April 2018. The letter contained an analysis of an Origin Australia Electricity Account Number 200 030 726 471 for the period 6 February 2016 to 18 August 2017 and copies of a number of legislative provisions; 2. statutory declaration of the appellant, dated 4 April 2014; 3. written submissions of the respondent dated 15 May 2018. Attached to the submissions were copies of: 1. an invoice and report of Larkin Electrical, dated 7 July 2017 and addressed to the appellant; 2. the front page of an Origin Energy bill, addressed to the respondent for the period 6 February 2106 to 11 May 2016. The details of amount of electricity used and charged are redacted; 1. written submissions in reply by the appellant, filed on 18 June 2018; and 2. a copy of the respondent's tenancy application in the Consumer and Commercial Division, filed on 25 September 2017.
5. Despite a direction made by Principal Member, A Britton, on 12 April 2018, that the appellant did not lodge with the Tribunal and the respondent with any evidence that had been provided to the Tribunal below. Nor did she, as directed by the Principal Member, lodge with the Tribunal and provide to the respondent a copy of the material that had been before the Tribunal below.
6. Instead, she lodged with the Tribunal and provided to the respondent fresh evidence being the abovementioned letter from Mayberry Meldrum & Anderson Accountants & Taxation Consultants, for which she needed to obtain leave in order to rely on it.

Extension of time

1. Section 41 of the NCAT Act gives the Tribunal a wide discretion to "extend the period of time for doing anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation". That section also allows for an application to be made under that section even though the relevant period of time has expired.
2. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, at [18], the Appeal Panel noted that while the discretion to extend time in s 41 was unfettered, it must be exercised judicially and also exercised having regard to the statutory command in s 36 of the NCAT Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings". The Appeal Panel went on to note, at [19], that the grant of an extension of time under s 41 is not automatic and is given for the "sole purpose" of enabling the Tribunal to do justice between the parties."
3. At [21], the Appeal Panel noted that time limits are established in legislation for the purpose of promoting the orderly and efficient conduct of proceedings so as to provided certainty for parties, "especially the party in whose favour orders have been made, and achieving finality in litigation".
4. At [22], the Appeal Panel set out the factors that need to be considered in an application for an extension of time to appeal. These are: 1. the length of the delay; 2. the reason for the delay; 3. the appellant's prospects for success, - i.e. whether the appellant has a fairly arguable case; and 4. the extent of any prejudice suffered by the respondent to the appeal.

Length of delay and reason for delay

1. The respondent's application was heard before the Tribunal below, on 20 December 2017. The appellant was present at that hearing and there is no dispute that at the conclusion of the hearing the Tribunal gave an oral decision and oral reasons for decision. Written notification of that decision was sent to the parties on that day.
2. The appellant lodged her appeal, on 5 March 2018. This was almost 11 weeks after the hearing before the Tribunal below and when the Tribunal made its decision and gave oral reasons for decision.
3. In her statutory declaration, the appellant said she did not receive a copy of the mailed orders of the Tribunal until 17 January 2018 when she contacted the Tribunal's Tamworth Registry. She said that she made 12 phone calls and 5 emails to the Tamworth Registry and the Sydney Registry about the Tribunal Member's inaccurate calculations of the amounts on the power bills that were submitted as evidence before the Tribunal below. She said her calls and emails were ignored and she "was forced to lodge an Appeal and seek leave to Appeal".
4. As the appellant was present at the hearing on 20 December 2017 when the Tribunal gave its decision and oral reasons for decision, it is difficult to understand why the appellant waited until 17 January to contact the Tamworth Registry. In any event, even if it is accepted that notification of the decision was 17 January 2018, the appellant's appeal was still lodged four weeks late. In our view, this is a significant delay when the appellant was present at the hearing when the orders were made and the oral reasons for decision were given.

Does the appellant have an arguable case?

1. The onus is on the appellant to demonstrate that she has a reasonably arguable case if time is extended to lodge her appeal. That is, the onus is on the appellant to show that she has a reasonably arguable case that the Tribunal erred in law in its conduct of the proceedings, in its decision, or its reasons for decision. Alternatively, the appellant must show that it has an arguable case that she might have suffered a substantial miscarriage of justice on the grounds prescribed in cl 12 of Sch 4 of the NCAT Act.
2. In this regard, the appellant relied on her submissions, the report of Mayberry Meldrum Anderson and her statutory declaration. The appellant's submissions are not evidence and her statutory declaration was prepared primarily for her re-instatement application after her appeal was dismissed for non-appearance at the first call-over date. The Tribunal accepted her explanation as to why she had not appeared.
3. As we have noted, the appellant contended that the Tribunal had incorrectly calculated the amount the respondent had in fact paid for his electricity use. She also contended that the respondent had tampered with the electricity meters and that his claim was vexations.
4. In regard to the calculation of what the respondent had paid, the appellant relied on the Mayberry Meldrum Anderson report. The report is a summary and analysis of Origin Energy invoices for Electricity Account Number 200 030 726 471 for the period 6 February 2016 to 18 August 2017. As the report was prepared after the hearing before the Tribunal below, the appellant required leave from the Appeal Panel in order to rely on this report on appeal.
5. We note that the Electricity Account Number referred to in the Mayberry Meldrum Anderson report is the same account number as that contained in the Origin Energy bill attached to the respondent's material. However, the report did not have attached to it copies of the invoices to which it referred. Nor was the appellant able to explain why a report of this nature had not been prepared for the hearing below. In the absence of the bills to which the report related being before us and the appellant's failure to explain why a report of this nature could not have been prepared for the hearing before the Tribunal below, we refused to grant the appellant leave to rely on this report for the purpose of her appeal. However, we do note that the report calculated the total amount charged to be $4,735.51. Whether this is correct we cannot say.
6. In regard to the vouchers the respondent received to assist him in paying his electricity bills, both parties agreed that the Tribunal had taken this into account and reduced the value of these from the amount the appellant was to pay. In regard to those amounts paid by the respondent from his CentreLink payments, these are nevertheless payments made by the appellant and for which he may need to account. However, this is a matter between the respondent and CentreLink.
7. We note the Mayberry Meldrum Anderson report makes reference to Origin Energy having credited the Electricity Account with an amount of $1,347.52. Again, without having a copy of the relevant bills we are unable to make any findings in this regard.
8. In regard to the issue of tampering, the appellant has not put on evidence to support her contentions. She may have done so before the Tribunal below, but has failed to file and serve that material in these proceedings. The respondent on the other hand, has filed and served with his Reply to Appeal a copy of the Larkin Lighting and Electrical report, which supports the contentions of the respondent that unit 3, the garage and the studio were not separately metered.
9. While we do not know what evidence, other than the Larkin Lighting and Electricity report, was before the Tribunal below, nor the basis on which the Tribunal made its decision, we do note s 38(1)(a) of the RT Act provides that a tenant must pay all charges for the supply of electricity to the tenant at the residential premises if the premises are separately metered. Section 38(2) provides that this requirement is a term of every residential tenancy agreement, which cannot be contracted out of: see RT Act, s 21.
10. Section 40(1)(b) of the RT Act provides that the landlord must pay the installation costs and charges for initial connection to the residential premises of an electricity supply service. Section 40(1)(c) of the RT Act provides that the landlord must pay for the supply of electricity to the tenant at the residential premises that are not separately metered. Again, these requirements are a term of every residential tenancy agreement and cannot be contracted out of: see RT Act, ss 21 and 40(2).
11. Section 47 of the RT Act makes provision for a tenant to make a written request to the landlord for the repayment of an amount the tenant has paid that the tenant was not required to pay under the Act or the residential tenancy agreement. If the landlord fails to repay the requested amount, the tenant can apply to the Tribunal seeking an order that the landlord repays the amount requested under that section of the RT Act: see s 47(4) and (5).
12. Whether the Tribunal's decision was based on these sections is unknown, as we do not have a copy of the sound recording of the Tribunal's oral reasons for decision. Nor did the appellant request written reasons for decision, which she was entitled to do: NCAT Act, s 62.
13. Hence, in the absence of the appellant filing and serving a copy of the sound recording of the hearing and the evidence that was before the Tribunal, we are unable to identify any error in the decision of the Tribunal below and on this basis, there can be no real prospect of the appellant succeeding in her appeal or application for leave to appeal.

Prejudice

1. In our view, there is considerable prejudice to the respondent if time were extended. He was successful in his claim and the appellant has failed to demonstrate that the report of Larkin Lighting and Electrical was incorrect. We agree with the respondent, as the appellant had ample opportunity to place evidence of this kind before Tribunal below.

Conclusion re extension of time

1. For the reasons set out above, we find that it is not appropriate to make an order under s 41 of the NCAT Act extending time within which the appellant should lodge her appeal. She lodged her appeal two weeks late and has provided no material as to the evidence that was before the Tribunal, what findings the Tribunal made or how the Tribunal made its calculation.

Conclusion and Orders

1. As we have refused the appellant's application for an extension of time within which to lodge her Notice of Appeal, this also disposes of her appeal and application for leave to appeal.
2. Hence, we order: 1. The appellant's application for time to be extended within which she is to lodge her Notice of Appeal is refused.

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: 02 November 2018