Walker v Paloma International Pty Ltd

NCAT Appeal Panel|2014-11-04

Introduction 1Mr Walker is the co-owner of residential premises in Pyrmont with Ms Bartlett. He has appealed against a consent order made by the Consumer and Commercial Division of the Tribunal on 11 August 2014. The order was that he and Ms Bartlett be paid $925 from the bond that their tenant had lodged with the Rental Bond Board and that the tenant be paid the balance, which amounted to about $1800. 2Mr Walker is seeking an order that, instead of $925, he should be paid at least $2,800, which is the full amount of the bond. He makes that claim because he says that the tenant damaged the premises. 3The tenant, Paloma International Pty Ltd, first applied to the Consumer and Commercial Division for a refund of the bond on 15 July 2014. On 24 July 2014 the Tribunal dismissed that application because no one representing Paloma attended the hearing. Ms Rimes who was an employee of the real estate agency which managed the premises, had appeared on behalf of Mr Walker and Ms Bartlett. 4Four days later on 28 July 2014, Paloma applied a second time for the bond to be refunded. Mr Walker found out about the hearing on 6 August 2014, five days before it was scheduled to take place. He, his co-owner Ms Bartlett and the managing agent, Ms Rimes, each applied for the hearing on 11 August 20014 to be adjourned because they said they could not attend on that date. Ms Bartlett's adjournment application, which was the first application the Tribunal received, was refused on the same day. No formal decision was made in relation to the other applications. 5Ms Rimes then arranged for another person, Ms Beck, to attend the hearing on behalf of Mr Walker and Ms Bartlett. The Tribunal refused Ms Beck's application for an adjournment but she participated in a conciliation conference and ultimately agreed to settle the matter. The Tribunal made consent orders in accordance with that agreement. 6Mr Walker is aggrieved by the Tribunal's consent order for four reasons. Firstly he says that Ms Rimes was not authorised to act on his behalf. Secondly he says that neither he nor Ms Rimes received the Notice of Hearing and they only found out that the hearing was on 5 days in advance. Thirdly, neither he nor Ms Rimes was available to attend at such short notice and their applications to have the hearing adjourned were refused or not considered. Finally, the person Ms Rimes sent to the hearing, Ms Beck, did not understand the background to the tenancy dispute.

Authority 7According to Mr Walker, his managing agent, Ms Rimes, stopped working for him on 19 April 2014. He says the only reason he used her for the hearing was because no one from the Tribunal would tell him who else he could use to recover the bond. He added that the person who attended the hearing, Ms Beck, had no knowledge of what had taken place during the three years of the lease. 8When applying for an adjournment by email on 10 August 2014, Mr Walker wrote that no-one could appear on behalf of the owners at the hearing because, Ms Rimes, was unavailable. He stated that his only alternative was to send a third party who "has no previous knowledge of all the damage made by the tenants". Ms Rimes wrote to the Tribunal on 11 June 2014, the day of the hearing, stating that she authorised Ms Beck to act on her behalf. 9Despite Mr Walker's assertions, we are satisfied that Ms Rimes was his agent and that he and Ms Bartlett authorised her to act on his behalf in the proceedings. Mr Walker also knew that because the adjournment applications had not been granted, Ms Rimes would arrange for someone else to attend the hearing on his behalf. We come to that conclusion because Ms Rimes attended the Tribunal on Mr Walker's behalf in relation to the first application and when requesting an adjournment Mr Walker did not say that Ms Rimes was not his agent. Instead, he said that she was unavailable and that he did not want a person who did not understand the history of the matter to attend.

Notice of hearing 10When Paloma made the second application to the Tribunal, it named as Respondent "William Anthony Burnell ", the managing agent recorded on the residential tenancy agreement, at an address in Enmore Road. 11On 31 July 2014 the Registrar posted a Notice of Hearing to the managing agent at the Enmore Road address. Although the Notice of Hearing was posted to the correct address, Ms Rimes was apparently in the process of moving and did not receive it. 12While it is correct that Mr Walker was not personally served with the Notice of Hearing, the Registrar served the Notice of Hearing at the last known address of the managing agent: Civil and Administrative Tribunal Rules 2014 (NSW), Cl 13(2)(b)(ii). The managing agent did not receive that postal notification but she subsequently became aware of the hearing date on 6 August 2014 and informed Mr Walker the same day. 13Allowing for four working days for the Notice of Hearing to be delivered after it was posted on 31 July 2014, the recipient would be presumed to have received it on 6 August 2014: Interpretation Act 1987 (NSW), s 76(1)(b). Mr Walker acknowledges that by 6 August 2014, Ms Rimes had told him that the substantive hearing was scheduled for 11 August 2014. As it turns out, Mr Walker had the same period of notice as he would have had if he had been served with the Notice of Hearing at his address or if his managing agent had received it by post at the Enmore Road address. Either way both would have been on notice of the hearing by 6 August 2014. In those circumstances, we are satisfied that the Tribunal complied with its obligation to notify the parties of the date, time and place of the hearing.

Adjournment applications 14On 7 August 2014 Mr Walker's co-owner, Ms Bartlett, wrote to the Tribunal advising that she and Mr Walker were in Darwin and that Ms Rimes would be in Adelaide on the date of the hearing. She requested an adjournment stating that, "I have not been able to speak with our agent today as she is not in her office but I have emailed her and left a message on her mobile and requested that she sends you details of her flight". 15A Tribunal Member refused to adjourn the proceedings and Ms Bartlett was notified by email on the same day, 7 August 2014. The email noted that the landlords had previously been represented by the managing agent and there was "no evidence establishing why the managing agent cannot attend the hearing." 16Later on the same day at 2.12 pm and 6.14 pm respectively, Ms Rimes and Mr Walker emailed the Tribunal seeking an adjournment. Having received no response to his email, Mr Walker emailed again on 10 August 2014, the day before the hearing. He acknowledged that a Registry officer had told Ms Rimes that the person attending the hearing could request an adjournment.

The hearing 17On the day of the hearing Ms Beck represented Mr Walker and Ms Bartlett and Mr Rajah represented the tenant, Paloma. Ms Beck applied for an adjournment but the Tribunal refused that application. The Tribunal gave no written reasons for that decision. 18After the Tribunal had refused Ms Beck's application for an adjournment, the parties engaged in settlement discussions. Ms Beck signed a "Conciliation Agreement Form" stating that, "in full and final settlement, the Rental Bond Board is to pay 'the landlord' $925 and that any balance of the bond is to be paid to the tenant."

Appeal rights 19Mr Walker has certain rights to appeal against an "internally appealable decision": Civil and Administrative Tribunal Act 2014 (NSW), (NCAT Act), s 80(2) and s 32. The decisions against which Mr Walker has appealed are the decisions to refuse him, his co-owner and his agent an adjournment and the decision to make a consent order. Mr Walker also claims to have been denied procedural fairness because he did not have adequate notice of the hearing and consequently did not have a reasonable opportunity to prepare his case. 20The adjournment decision is an interlocutory decision and can only be appealed if the Appeal Panel gives its permission: NCAT Act, s 80(2)(a). The consent order is a final decision and Mr Walker may appeal against that decision on any "question of law". He needs the Appeal Panel's permission to appeal on any other ground: NCAT Act, s 80(2)(b). In relation to appeals from the Consumer and Commercial Division, leave can only be granted in the limited circumstances set out in Schedule 4, cl 12: (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

Adequacy of notice and refusal of adjournment 21The Tribunal is bound by the rules of procedural fairness: NCAT Act, s 38(2). In particular, the Tribunal must "take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": NCAT Act, s 38(5)(c). Inadequate notice of a hearing and the refusal of a reasonable request for an adjournment may amount to a denial of procedural fairness depending on the circumstances: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611 [40]; [2002] HCA 11; Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; 297 ALR 225. 22The guiding principle of the NCAT Act and the procedural rules in their application to proceedings in the Tribunal is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36. In addition, the practice and procedure of the Tribunal should be implemented in such a way "that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings": s 36(4). 23The amount of time that is adequate for a person to prepare for a hearing varies depending on factors such as the nature of the proceedings including its complexity, how the rights of the parties are affected, the amount at stake and any urgency. This case involved a dispute about whether the money the tenant had paid by way of a bond should be returned to the tenant at the end of the tenancy or whether some or all of it should be paid to the landlord for outstanding rent or as compensation for damage. The total amount involved was about $2,800. It was not a complex case. The amount of money in dispute was relatively low and the consequences for the parties strictly financial. We acknowledge that there was no particular urgency. 24While 5 days is a relatively short period of time to prepare for a non-urgent hearing, because Ms Rimes had already prepared for a hearing on the same issues a few weeks earlier and because the issues were not complex nor the amount at stake particularly high, the notice period was adequate. 25The application for an adjournment was refused on the basis that the managing agent had represented the landlords on 24 July 2014 and there was "no evidence establishing why the managing agent cannot attend the hearing." The subsequent email applications were not considered because a decision had already been made to refuse the adjournment and no further evidence had been provided in support of the application. The Appeal Panel does not know whether any oral reasons were given for the refusal of the adjournment application on the day of the hearing. 26Ms Bartlett wrote to the Tribunal advising that she and Mr Walker were in Darwin and that Ms Rimes would be in Adelaide on the date of the hearing. Although she said she had requested Ms Rimes to provide details of her flight to the Tribunal, apparently those details were not provided. Without proof of Ms Rimes unavailability, the Tribunal decided to refuse the application. In all the circumstances, that was a reasonable basis on which to refuse an adjournment. It was also apparent to the Tribunal that although Mr Walker did not want another person who had less knowledge of the circumstances than Ms Rimes, to represent him, that could be arranged. We also consider the refusal of the adjournment at the hearing to be reasonable in circumstances where Ms Beck appeared and was authorised to represent Mr Walker and Ms Bartlett. 27Leave is refused for the appeal against the interlocutory decisions to go ahead.

Consent orders 28The order that the Tribunal made was that: By consent, the Rental Bond Services is directed to pay the landlord, Ian Edward Walker and Genevieve Bartlett, c/- Colman Rimes Reals Estate, 41 Enmore Road, Newtown NSW 2042 the sum of $925 . . .Any balance of the bond to be paid to the tenant, Paloma International Pty Ltd. 29The making of a consent order absolves the Tribunal from the duty to make a decision on the merits of the case: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 510-11; 78 ALR 271 at 276. Nevertheless, a consent order made under s 59 of the NCAT Act, is an "internally appealable decision" as defined in s 32 of the NCAT Act. The Tribunal will have made an error of law in making such an order if it fails to comply with that provision. 30Section 59 of sets out the Tribunal's power to make orders to give effect to any agreed settlement reached by the parties: (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if: (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. (2) The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement. 31While Mr Walker did not submit that the Tribunal had failed to comply with s 59, we are satisfied that the terms of the agreed settlement were in writing, signed on behalf of Mr Walker and Ms Bartlett by Ms Beck (and by the Respondent's agent) and that the Tribunal had the power to make that order. 32A consent order may be set aside if it is affected by matters such as fraud, mistake, duress or undue influence: Harvey v Phillips (1956) 95 CLR 235 at 243-4. There was no suggestion of anything of that kind in this case. But Mr Walker did submit that neither Ms Rimes nor Ms Beck were authorised to act on his behalf. We do not need to decide whether this is a basis on which the consent order should be set aside because we have found that they were authorised to act as his agents. 33The remaining question is whether the Tribunal's consent order should be set aside on any ground other than a question of law. The only possible ground is that Mr Walker may have suffered a substantial miscarriage of justice because the decision of the Tribunal was not "fair and equitable": NCAT Act, Sch 4, Cl 12. 34The decision of the Tribunal was to make the orders to which the parties, or their agents on their behalf, had consented. The Tribunal complied with s 59 when making that order and there is nothing unfair or inequitable about that decision. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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 December 2014

Civil and Administrative Tribunal Act 2014(NSW)

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