Ugur v Bridge Housing Limited

Background

1. The proceedings giving rise to the decisions from which Mr Ugur appeals were commenced by the Respondent, Bridge Housing Limited, in which it sought orders for access to Mr Ugur's home under the Residential Tenancies Act 2010 (NSW) (RT Act), s 60 for the purpose of undertaking maintenance and repairs.
2. Bridge Housing failed to appear at the hearing listed on 22 May 2024. Its failure to appear led to the proceedings being dismissed pursuant to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 55(1)(c). There is a suggestion in Mr Ugur's submissions that he also sought reasons for the decision on 22 May 2024 to dismiss the proceedings for non-appearance by Bridge Housing; however, in that regard, the reason is patently clear.
3. On 27 May 2024, the Tribunal reinstated the Bridge Housing's application. The power to reinstate proceedings that have been dismissed where an applicant has failed to appear arises from the NCAT Act, s 55(2).
4. The decision of 27 May 2024 to reinstate the proceedings was interlocutory; consequently, Mr Ugur requires leave to appeal pursuant to the NCAT Act, s 80(2)(a).
5. However, given our conclusion regarding the appeal's utility, it is unnecessary to consider whether leave should be granted. Further, as we note below, the decision of 27 May 2024 has been subsumed by the final decision.
6. The final decision, which is also the subject of the appeal, was made on 20 June 2024, where the Tribunal refused Mr Ugur's request for an adjournment (the request having been based on his foreshadowed challenge to the interlocutory decision), and made orders authorising Bridge Housing or its contractor to enter the Mr Ugur's home on 28 June 2024, or at an earlier agreed date, for the purpose of "maintenance, repairs or health and safety, mould inspection, and mould treatment works". The Tribunal made a consequential order on 20 June 2024 that Mr Ugur was not to obstruct Bridge Housing or its contractor in carrying out the orders. The Tribunal gave written reasons for its decision.

Scope and Nature of Appeals

1. An appellant may appeal from a final decision of the Tribunal as of right on a question of law or with leave of the Appeal Panel on other grounds: NCAT Act, s 80(2)(b). Since this is an appeal from a decision of the Consumer and Commercial Division, further limitations apply in considering any grant of leave where the appeal is based on grounds that do not raise a question of law: NCAT Act, Sch 4, cl 12. The principles pertaining to leave to appeal from decisions of the Consumer and Commercial Division of the Tribunal are well established: Collins v Urban [2014] NSWCATAP 17 at [65]-[84]).
2. It would appear that having formulated his appeal grounds of appeal mostly in terms that would seek to engage questions of law, Mr Ugur did not seek leave to appeal the final decision. Again, with regard to our finding regarding the utility of the appeal, it is not necessary for disposing of the appeal to distinguish between grounds that raise questions of law and grounds that raise other matters. The principles distinguishing the difference between questions of law and other errors of a type that require leave to appeal are set out in INA Operations Pty Ltd ATF INA Operations Trust #6 t/as Ingenia Holidays v Shojai [2024] NSWCATAP 162 at [43]-[44].
3. An internal appeal is not merely an opportunity for an unsuccessful party to reargue their case at first instance. An error on a question of law; or an error of a type that justifies leave to appeal, must be established: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

The Appeal Hearing

1. At the hearing of the appeal, the Tribunal had before it the following material: 1. A copy of the reinstatement orders dated 27 May 2024 2. A copy of the orders, with reasons of the Tribunal at first instance, dated 20 June 2024; 3. The notice of appeal filed by Mr Ugur on 18 July 2024; 4. Materials relied on by Bridge Housing filed on 16 August 2024; 5. A reply to the notice of appeal by Bridge Housing dated 28 August 2024; 6. Submissions by Mr Ugur and other materials were filed on 21 August 2024 and 19 September 2024, and further submissions and materials were sent by email on 1 October 2024 and filed on 3 October 2024.
2. While we have read and considered these materials, they are largely irrelevant to the determination of this appeal in circumstances where the orders have been entirely carried out.
3. At the outset of the appeal hearing, Mr Ugur sought an adjournment on the basis that he wished to join another matter concerning an inspection which appears to have taken place before Bridge Housing commenced the proceedings. Mr Ugur also stated, in support of his application for an adjournment, that he had not received any response or feedback from Bridge Housing to his submissions.
4. In Touma v Colantuono [2021] NSWCATAP 152 at [56]-[58], the Appeal Panel summarised the relevant principles pertaining to adjournment applications as follows: "56. When refusing the adjournment application, the Tribunal cited the Appeal Panel in Hanson v Metricon Homes Pty Ltd [2019] NSWCATAP 133 from [25] to [28] (Hanson). While the Supreme Court allowed an appeal from the Appeal Panel's decision in Hanson (see Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401), the Court's judgment turned on the facts of the particular case rather than on the legal principles articulated in the Appeal Panel's decision, which are uncontroversial. 57. The Appeal Panel in Hanson cited another Appeal Panel decision, Armee v Brealey [2017] NSWCATAP 141 (Armee), on the issue of the circumstances in which a refusal to grant an adjournment may give rise to a denial of procedural fairness. In that matter, the Appeal Panel stated at [121] '121 The Tribunal has the power to adjourn proceedings under s 51 of the Act. The power to adjourn is to be exercised according to the principles set out by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, French CJ, Kiefel, Bell, Gageler and Keane JJ at 321 [51] (see O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [21]). Procedural fairness may be denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequately presenting the person's case: see Grozdanov v N&T Buildings Pty Ltd [2015] NSWCATAP 107 at [51]; Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 at [21]-[22]. …' 58. The Appeal Panel in Armee cited another Appeal Panel decision which considered the issue of adjournment applications: O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77. In that matter, the Appeal Panel stated at [20] to [23]: '20 In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, a unanimous High Court said: "In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.' 21 That approach is applicable in this Tribunal. Section 36(1) of the Civil and Administrative Tribunal Act 2013 ('the Act') is in relevantly identical terms to s 56(1) of the Civil Procedure Act 2005, the provision considered in the Expense Reduction decision. 22 It follows that a number of principles apply to applications for an adjournment: (1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2) an application for an adjournment should be seen as the exceptional rather than the ordinary course; (3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment 23 Further, there is the effect on the opposing party to consider. In Sayhoun v Owners Corporation Strata Plan 75123 [2014] NSWCATAP 112, an Appeal panel of this Tribunal said at [17], in terms we would adopt: 'We are satisfied that the respondent would be prejudiced if an extension of time were granted. That prejudice may be addressed by an award of costs, although we note the remarks of the plurality in Aon Risk Services Aust Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [100] that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants; and their approval (also at [100]) of Bowen LJ's statement in Cropper v Smith [1884] 26 Ch D 700 that: Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.'"
5. We declined to grant Mr Ugur his adjournment on either basis. Firstly, regarding the subject matter of the decisions under appeal, issues concerning the inspection did not arise; as such, any amendment would have been incompetent. Secondly, it is a matter entirely within the respondent's control to provide submissions in response to an appellant's submissions, and the completeness or otherwise of Bridge Housing's submissions, in this case, was not a matter that could be said to be an unfairness on Mr Ugur. Mr Ugur was given a reasonable opportunity at the appeal hearing to consider the submissions and documents of the respondent; and to make submissions in reply.

The Decision at First Instance

1. In its decision of 20 June 2024, the Tribunal at first instance, addressed the reinstatement of the application in the context of the reinstatement decision being part of the procedural history of the matter.
2. The Tribunal found that Bridge Housing's application was listed before the Tribunal for directions on 23 April 2024, and orders were made for the filing and service of evidence. The matter was then listed for a final hearing on 22 May 2024. Bridge Housing failed to appear at that hearing, and the matter was dismissed. However, on 27 May 2024, the Tribunal acceded to the request of Bridge Housing that the application be reinstated and the proceedings were set down for a final hearing on 20 June 2024.
3. The Tribunal found that Mr Ugur had requested written reasons for the Tribunal's decision to reinstate the proceedings on 4 June 2024. However, by letter sent to the parties that same day, the Tribunal had advised that it declined to provide written reasons concerning the reinstatement decision. Mr Ugur had submitted that he did not receive the second letter advising him that the Tribunal had refused to provide reasons for the reinstatement. Nonetheless, the Tribunal concluded that Mr Ugur had been sent that correspondence because Australia Post had not returned the correspondence to the Tribunal's Registry. We note in passing that the orders dated 27 May 2024 do provide a reason for the reinstatement; that is, Bridge Housing had provided a reasonable explanation for its failure to appear at the hearing.
4. The Tribunal, having regard to the guiding principle of the Tribunal to facilitate the just, quick and cheap resolution of disputes, dismissed Mr Ugur's adjournment application as it was made on the premise that Mr Ugur was waiting for reasons concerning the reinstatement decision which were not going to be provided.
5. As to the substance of the application by Bridge Housing for access orders, the Tribunal made the following findings: 1. Mr Ugur is a tenant of Bridge Housing pursuant to a residential tenancy agreement. 2. On 7 November 2023, Mr Ugur complained to Bridge Housing that his home needed repairs and maintenance, including the removal of mould. The Tribunal noted that Mr Ugur had submitted that he had, in fact, raised the issue of mould repair before 7 November 2023 but that Bridge Housing disputed this. At the appeal hearing, Mr Ugur referred to an inspection report of 9 September 2022 in which he raised the issue of mould to Bridge Housing to no avail. 3. On 17 November 2023, the Respondent issued an inspection notice nominating 24 November 2023 as the inspection date. The Appellant sought to reschedule that inspection date but was told it was not possible; consequently, no inspection took place on 24 November 2024. 4. Between late November 2023 and about April 2024, when it applied to the Tribunal for orders to access Mr Ugur's home, Bridge Housing made various attempts to access and inspect the scope of work to be done. The Tribunal found that an inspection did occur on 5 March 2024, at which a dispute arose between Mr Ugur and the contractor because M Ugur objected to the contractor taking photos of the Appellant's belongings. At the hearing of the appeal, Mr Ugur submitted that the Tribunal, at first instance, had mischaracterised the events of 5 March 2024, though ultimately nothing turns on the events of that day. 5. On 13 June 2024, a week prior to the hearing, Mr Ugur granted access to Bridge Housing and its contractor to his home and agreed to allow further access to his home on 28 June 2024 to carry out works.
6. Despite Mr Ugur's provision of access and agreement to have the works carried out, the Tribunal considered it was appropriate to make orders giving Bridge Housing access under the RT Act, s 60. The Tribunal had regard to the interests of each of the parties to the dispute; the history of delay in having the repairs undertaken; and the obligations of Bridge Housing as a landlord to ensure the health and safety of the residential premises it supplied to Mr Ugur under the residential tenancy agreement. Consequently, the Tribunal at first made orders authorising the Respondent to enter and carry out repairs and maintenance to the Appellant's home.

Determining the appeal

1. At the hearing of the appeal, the parties informed the Tribunal that the orders made on 20 June 2024 had been carried out and the works were completed.
2. The fact that the Tribunal's orders of 20 June 2024 have been carried out effectively means that the appeal against either the interlocutory or final decisions is of no utility.
3. Even if the appeal succeeds, there is nothing to remit back to the Tribunal for redetermination: the landlord's application for an access order was successful, and the order carried out. There is no utility in the Tribunal redetermining whether or not to make an access order in those circumstances. The same issue applies to the order to reinstate the proceedings. The reinstatement order has been subsumed by the orders of 20 June 2024, which have been carried out.
4. The Tribunal does not determine matters where the decision will have no consequence for the parties or could, at most, be considered advisory.
5. In NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15 ("Cianfrano"), where the Tribunal was asked to determine an appeal by the government agency despite the underlying request having been withdrawn, the Appeal Panel observed at [13]-[14]: "13 … it would not be appropriate in the circumstances of this case to answer a question which is "merely moot, theoretical, abstract, hypothetical and advisory": Victims Compensation Fund Corporation v District Court of New South Wales and Anor [2002] NSWCA 355 at [27] per Heydon JA (with whom Sheller JA and Einstein J agreed). In Miller v Commissioner of Police NSW [2004] NSWCA 356 the Court of Appeal said that it "would not deliver what would, in effect, be an advisory opinion on an issue which had become moot." The Court went on to say that, "Courts do not entertain appeals on questions which would 'produce no foreseeable consequences for the parties'". These principles were recently endorsed by the Supreme Court of Western Australia in Rams Mortgage Corporation Ltd v Skipworth [2008] WASCA 148. 14 In Harrington v Rich [2008] FCAFC 61 at [36], the Federal Court declined to express a view in relation to a moot appeal because the proceedings had been resolved and no substantive issue remained to be determined. In this case, there is another reason for declining to exercise any discretion we may have to determine a moot appeal. In our view, there is a real question as to whether the Department's appeal is against an "appealable decision". Section 113(1) of the ADT Act allows a party to appeal to the Appeal Panel against an appealable decision of the Tribunal."
6. In People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253 ("People with Disability"), Beazley JA (as her Excellency then was), with whom Allsop P and Handley AJA agreed, considered the circumstances in which the New South Wales Court of Appeal might determine proceedings where the factual circumstances have materially changed. In that case, the Court of Appeal was considering whether its jurisdiction was engaged in circumstances where the institutional accommodation the subject of the dispute had been closed down after the first instance decision but before the hearing of the appeal. In addressing that issue, Beazley JA stated, at [11]-[14] that: "When questioned as to why the appeal should not be dismissed, the appellant contended that there was utility in the appeal because there were other proceedings on foot in the Tribunal which raised the same question, which it contended was in issue on this appeal, namely, whether ongoing conduct constituted a reviewable decision for the purposes of the Administrative Decisions Tribunal Act 1997. The appellant submitted that that issue had been wrongly decided by the Appeal Panel and unless corrected the Tribunal, would effectively determine the result, at least at Tribunal level, of the other proceedings. The Court does not have an advisory jurisdiction. At the time this appeal was filed, there was a real dispute between the parties, namely, whether the Appeal Panel had erred in holding that there was no reviewable decision of the Minister in respect of the two centres subject of the application. As the centres have been closed, there is now no relevant controversy between the parties in respect of which a decision of this Court would have any effect. In short, in respect of these two centres, the appeal is moot and of no utility. As a general rule, the Court, in such circumstances, would not entertain the appeal. However, the rule is a general one only and the Court retains a discretion to hear and determine an appeal which has been regularly commenced but where a change of circumstances means that any decision will be moot so far as the particular controversy between the parties is concerned. One of the factors which would cause the Court to exercise its discretion and determine the matter is where the decision subject of the appeal is likely to affect other cases: see Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334; Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438; Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; Hope Downs Management Services v Hamersley Iron Pty Ltd [1999] FCA 1652; Bonan v Hadgkiss [2007] FCAFC 113."
7. In Joiner v Commissioner of Police (NSW) [2023] NSWCATAP 254 at [28], the Appeal Panel of this Tribunal, after considering the above passage from People with Disability, referred, also, to Cianfrano and noted that: "Consistently with [People with Disability], generally an Appeal Panel should not entertain an appeal if it concerns questions which have no foreseeable consequences for the parties: New South Wales Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15 and Secretary of Communities and Justice v Feaney [2021] NSWCATAP 139 at [26]. There it was said that an Appeal Panel should not entertain appeals on legal questions that have no practical consequences for the parties [26]."

Time for Appeal

1. A further consideration in determining Mr Ugur's appeal is whether leave should be granted to extend the time for filing of his notice of appeal.
2. Under the Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(b) the time within which to lodge an appeal from a decision made in residential proceedings is 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later). However, that time period may be extended by the Tribunal under the NCAT Act, s 41. The applicable principles for such an extension are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 ("Jackson") at [22].
3. According to the Notice of Appeal, Mr Ugur was given the reasons on 27 June 2024. The basis on which Mr Ugur asserted that he was given reasons on that date, and not 20 June 2024 when the final decision was made, is unclear to us having regard to the documents and submissions filed by the parties in the appeal.
4. Accepting that Mr Ugur received the reasons on 27 June 2024, he had until 11 July 2024 to file his notice of appeal, being 14 days from the date of receiving the reasons. He filed his appeal on 18 July 2024, and therefore, the appeal was filed out of time. Accordingly, the appeal may only proceed where the Appeal Panel allows an extension of time for the filing of the appeal.
5. The principles for an extension of time set out in Jackson at [22] are as follows: "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]."
6. In this matter, the length of the delay is not extensive and there is no prejudice to Bridge Housing were an extension of time granted. However, Mr Ugur provided no clear reason for the delay and there is no prospect of success in the appeal, since, as discussed previously, the access order made on 20 June 2024 have been complied with, and there is no utility in granting the appeal. Accordingly, there is no basis for granting an extension of time to file the appeal.

Conclusion

1. When this issue of utility was raised with the parties at the hearing of the appeal, Mr Ugur submitted there was utility in determining his appeal because there was no need for the orders to have been made in the first place. He submitted that he had made an agreement with the landlord for access; and there was no need for the Tribunal to make the access order. Further, his written submissions point to the education of Tribunal Members concerning appropriate conduct.
2. We do not accept the proposition concerning the education of Tribunal members, nor do we consider that either of those objectives is met by the determination of an appeal, which can have no utility to the parties. To have the matter remitted back to the Tribunal for a hearing on theoretical issues would be an unjustifiable burden on the administration of justice. Tribunal hearing time is a scarce public resource, with many other litigants seeking to have their proceedings heard and determined. The Tribunal reconsidering proceedings that have become merely theoretical due to the access order made on 20 June 2024 having been performed is not consistent with principles of public policy, nor the just, quick and cheap resolution of the real issues in proceedings: NCAT Act, s 36(1).
3. While we acknowledge that Mr Ugur feels strongly about the dispute, and, in particular, that no access order should have been made after he had agreed to provide access, this is not a basis to allow the appeal.
4. Accordingly, in this case, we are unable to identify any practical consequences arising from the determination of Mr Ugur's appeal.
5. We conclude that: 1. The appeal is out of time, and an extension of time to file the appeal is unwarranted; 2. In any event, leave to appeal should not be granted with regard to the interlocutory decision to reinstate the proceedings, and the appeal from the decision of 20 June 2024 to make an access order should not be entertained.

Orders

1. We make the following orders: 1. An extension of time to file the appeal is refused. 2. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 16 October 2024