Ward v Nand

NCAT Appeal Panel|2021-01-21

Introduction

These reasons relate to an application to reinstate an appeal. The appeal was originally lodged on 15 October 2020. The appeal proceedings have had a chequered history, having been dismissed and not reinstated in circumstances set out below.
The substantive appeal relates to a decision made under the Residential Tenancies Act 2010 (NSW) (RT Act) to terminate a residential tenancy for non-payment of rent. This decision was made on 8 October 2020 (Original Decision). At that time, the Tribunal determined that the arrears of rent was $21,735.71.
In those proceedings the applicant for reinstatement, Mr Ward, was the respondent/tenant. He had a residential tenancy agreement with the applicants, Janice Nand and Jean NSB Nand, the landlords.
The termination order was made following the filing of an application dated 25 June 2020. That application to the Tribunal noted that the termination date was 9 July 2020, a date apparently contained in a notice of termination.
In lodging his appeal, Mr Ward did not seek to stay the termination order. Rather, he vacated the premises.
Mr Ward seeks an order that his appeal be reinstated and that the appeal be listed for final hearing for a determination on the merits. Mr Ward says that he was an impacted tenant within the meaning of the RT Act and that the landlords were not entitled to issue the notice of termination when they did because of this fact. Mr Ward says the order should be set aside and that he claims damages. On the aspect of why the order should be set aside in circumstances where he is now vacated the premises, Mr Ward says that the order is a matter that reflects upon his future prospects in relation to renting residential premises. On the aspect of damages, Mr Ward says that the issuing of the notice of termination constituted a breach of the residential tenancy agreement for which he is entitled to compensation, being the cost of relocating and having to pay more rent at an alternative place.

Preliminary procedural issue

The present application before the Tribunal only names Janice Nand as a respondent to the application before the Appeal Panel. This is despite the fact that Jean NSB Nand was also a party in the proceedings at first instance.
By reason of r 29(b) of the Civil and Administrative Tribunal Rules 2014 (NSW), Jean NSB Nand is also a party to an internal appeal.
While this matter was not raised with the present parties to this application, Jean NSB Nand should be formally added as a party. In this regard I note that Mr Wolf, the agent for the landlords, who appeared in the application for reinstatement indicated he was acting with authority on behalf of the landlords. Accordingly I will make an order that Jean NSB Nand be added as a respondent to this application and the appeal.

Notice of Appeal and history of appeal proceedings

As I indicated above, the appeal proceedings have a long history. It can be summarised as follows: 1. The original notice of appeal, AP 20/43753 was lodged on 15 October 2020. The appeal was dismissed on 30 October 2020 pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) because Mr Ward failed to appear at the callover. 2. An application to reinstate the appeal was made by Mr Ward on 4 November 2020, being application AP 20/47081 (first reinstatement application). Such an application is permissible under s 55(2) of the NCAT Act. This application was listed for hearing on 27 November 2020 and dismissed because Mr Ward failed to appear. 3. A second application to reinstate the appeal was lodged on 9 December 2020 (second reinstatement application. This application was proceedings number AP 20/51786. A fee waiver request was made and rejected by the Registrar. Because the fee for the reinstatement application was not paid, this application was dismissed by the Deputy Registrar on 6 January 2021 pursuant to r 22(1) of the Rules. 4. Mr Ward wrote to the Tribunal on about 6 January 2020 requesting that his fee waiver application be reconsidered. The Registrar granted such a fee waiver on 7 January 2021. This became application AP 21/01190. It is the application to which my reasons relate. I will refer to this application as the third reinstatement application.
The third reinstatement application was not made using the applicable form. In effect, what appears to have happened is that the Registrar has accepted an email requesting a review of the fee waiver request although it is unclear whether the Registrar treated this email as a further reinstatement application, the second reinstatement application having been dismissed. After that, the Appeal Panel made directions on 8 January 2021 for the filing and service of evidence and submissions. It is unclear whether the Appeal Panel (then differently constituted) had drawn to its attention the fact that the second reinstatement application had been dismissed under r 22(1).
In any event, I will treat the email request for a fee waiver as an application for reinstatement which incorporates by reference the reinstatement applications previously made. In doing so, I have regard to the provisions of s 38(4) which requires the Tribunal "to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (emphasis added)".
The third reinstatement application was heard on 21 January 2021. Due to the COVID-19 pandemic, the hearing was conducted by telephone. In these types of hearings, the Tribunal calls the parties who cannot dial in. This is what occurred when the above matters were listed before the Appeal Panel.
At the hearing of the present application, Mr Ward, who informed me he was a solicitor, represented himself. Mr Wolf, the agent for the landlords, appeared on their behalf.
As noted above, prior to the hearing on 21 January 2021, directions had been made for the filing and service of evidence and submissions. Because both parties had failed to comply with the Tribunal's directions made 8 January 2021 requiring them to file and serve evidence and submissions, the parties were permitted to provide oral evidence (on oath or affirmation) and make oral submissions concerning their respective positions. This avoided the need for a further adjournment.
During the hearing, both parties indicated they may wish to file supplementary submissions. However, after discussions, each of the parties was content to rely on their oral submissions, the documents already filed and the oral evidence provided during the hearing.

Consideration

Where an appeal is dismissed pursuant to s 55(1)(c) of the NCAT Act because the appellant has failed to appear, s 55(2) gives power to the Tribunal to reinstate the proceedings "if the Tribunal considers that there is a reasonable explanation for that failure".
Applications to reinstate dismissed proceedings for failure to appear are also regulated by r 36. This rule requires an application to be made "within 7 days after the Tribunal dismissed the proceedings that are sought to be reinstated" unless the Tribunal grants an extension of time under s 41 of the NCAT Act. There appears no prohibition on a party making multiple applications under s 55(2) save for the constraints arising by reason of the time requirement.
In respect of the first reinstatement application, Mr Ward provided evidence that on the day his appeal was originally listed for callover, namely 30 October 2020, his telephone did not ring. However he received a voicemail to the effect that the Tribunal had tried to call him twice. He says he immediately "called the Tribunal to try and get connected but was too late". He is unable to explain why his telephone did not ring or why he did not get the call but says he had "full reception" on that day.
In relation to the second reinstatement application, Mr Ward reiterated in the written application why he did not appear at the original appeal callover. However, the second reinstatement application does not record why he did not appear at hearing of the first reinstatement application which was also dismissed for non-appearance.
In respect of the third reinstatement application, Mr Ward's evidence is that he was not telephoned on the day the first reinstatement application was listed for hearing but no detailed evidence was provided about what happened on this day. In this regard, he did not provide the sound recording or transcript of the various proceedings before the Appeal Panel. Otherwise, his position concerning what originally happened on the day of the appeal callover on 30 October 2020 remained unchanged.
The respondents' representative, Mr Wolf, did not challenge the evidence of Mr Ward to the effect that on multiple occasions his phone did not ring. Further, Mr Wolf made no submissions and provided no evidence to the effect that the respondents would be prejudiced if the appeal was reinstated.
Other facts relevant to this application include the following.
The first reinstatement application was made in time.
The second reinstatement application was made on 9 December 2020, more than 7 days after the first reinstatement application was dismissed. The delay is unexplained. However, as this application was dismissed for failure to pay the fee and no directions were ever made for the filing and service of evidence, this lack of explanation is not fatal in the present case.
It appears the Registrar determined to review the fee waiver decision in respect of the second reinstatement application. In these circumstances, even though the third reinstatement application was not "lodged" until 6 January 2020 (when the email request for review was made), 9 December 2020 should be considered the relevant reference date for the purpose of determining the third reinstatement application and issue of delay.
Having regard to the evidence, I am satisfied that there was a reasonable excuse for the failure to appear in relation to what occurred on 30 October 2020, the day the appeal was originally listed for callover.
However, I must also consider whether to extend time, noting that the third reinstatement application made is to reinstate the appeal proceedings and not to reinstate the proceedings relating to the first and second reinstatement applications. The principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18] and following are relevant to the exercise of a discretion to extend time under s 41 of the NCAT Act.
Further, even if time is extended, the Appeal Panel has a general discretion to exercise under s 55(2) as to whether the appeal should be reinstated. Relevant considerations include the circumstances now existing which might warrant the reinstatement of the appeal, its utility and the prospects of success: see eg Wallace v Price [2017] NSWCATAP 151 at [31]; Fabrizio v NSW Land and Housing Corporation [2016] NSWCATAP 21at [17].
During the hearing of the application for reinstatement, I drew to the attention of the parties various issues relevant to the appeal, its utility and the prospects of success. These included: 1. That the evidence so far provided, particularly in relation to the date the notice of termination was issued and whether Mr Ward was an impacted tenant within the meaning of the RT Act, suggested that the notice may have been issued despite the prohibition contained in reg 41C of the Residential Tenancies Regulation 2019 (NSW) (RT Reg). In this regard, Mr Ward asserted that at the time the notice of termination was served and the application to the Tribunal was lodged there had been no "formal rent negotiation process" as defined by the RT Act, a precondition to the issue of such a notice and/ or applying to the Tribunal. 2. That the Tribunal determined the termination application on 8 October 2019. The Appeal Panel has been provided with some evidence to suggest that in July 2020 the "formal rent negotiation process" had taken place and failed, but this was after the application was lodged on 25 June 2020. The issue here is whether consequences of any prohibition on issuing the notice of termination might be avoided because of what had happened in the interim. 3. The assertion by Mr Ward that he was entitled to claim damages. Mr Ward submitted that the issue of a notice of termination in contravention of Reg 41C constituted a breach of the residential tenancy agreement. It was pointed out to Mr Ward that, on one view, on their proper construction, the RT Act and the RT Reg simply prohibits the taking of action for a breach in the moratorium period and does not otherwise operate as a variation to a residential tenancy agreement. Rather, the legislation simply imposes preconditions to taking action for breach. In this regard, the legislation does not purport to amend the terms of the residential tenancy agreement and, in the absence of an agreement to vary the rent through the formal rent negotiation process or by private agreement, the rent specified in the residential tenancy agreement remains payable. 4. It is also doubtful that damages of the type contended would flow from the alleged breach in any event. This is because it was the order of the Tribunal that terminated the tenancy in the present case, not the issuing of the notice. Mr Ward chose to vacate the premises rather than seek a stay and remain in possession. Any loss arose from Mr Ward taking this course, not the issue of the notice of termination which Mr Ward was entitled to challenge in any proceedings in the Tribunal. 5. That Mr Ward has vacated the premises. Consequently, any relief in the appeal would be futile. A residential tenancy agreement can only terminates as provided in s 81 of the RT Act. There is no dispute Mr Ward has vacated the premises and delivered up possession which has been accepted by the landlords. He gave evidence that he did so after obtaining some legal advice. Consequently, if the termination order made by the Tribunal was invalid and is set aside, Mr Ward's actions could constitute an event of termination: see ss 81(2) and (4)(e) of the RT Act. In this regard, Mr Ward said in an email provided in his various applications for reinstatement: I had vacated to avoid a forced eviction as the order only gave 24 hours notice. I will still be continuing with the appeal. 1. That the COVID-19 legislation applicable to tenants who have residential tenancy agreements does not appear to permit the Tribunal to make orders to vary the rent. Consequently, even if the Tribunal was unable to make a termination order, this did not affect the liability of the tenant to pay the rent. In this regard there was evidence of a formal rent negotiation process undertaken by the Department of Fair Trading which had taken place in which the parties had failed to reach a resolution.
In relation to the claim for damages, I should also note that the Appeal Panel would not be able to make such an award on appeal in any event, there being no original application to the Tribunal at first instance by Mr Ward for such relief.
In respect of the issue of futility, Mr Ward submitted that his position as a prospective tenant seeking accommodation in the future has been adversely affected by the making of a termination order. This was due to the finding of breach and the fact of termination. He also reiterated that the Tribunal had no power to make the termination order and, consequently, he should be entitled to continue with his appeal.
While I am not required to make a final ruling on whether the termination order was properly made, and do not do so, it seems to me that there is strongly arguable case on appeal that the Tribunal at first instance erred in making the termination order and that it was prohibited from doing so. The following facts support this conclusion: 1. The reasons of the Tribunal at first instance indicate that it made a finding Mr Ward was an impacted tenant. 2. Oral evidence was provided by Mr Wolf to the Appeal Panel about the documents before the Tribunal at first instance (those documents not having been provided for the purpose of the present application). This evidence was to the effect that a formal rent negotiation process that took place after the date the notice of termination was issued and the application was lodged with the Tribunal.
In addition, I accept that the fact the termination order was made against Mr Ward may have an impact on his the ability to obtain residential accommodation in the future.
While I have significant doubts that the claim of breach and/or claim for damages have any merit, the absence of such an entitlement does not render a hearing of the appeal futile. Further, it may be necessary for the Appeal Panel to determine when the residential tenancy agreement came to an end for the purpose of determining what final orders should be made, such a determination potentially affecting the residual rights of the parties for outstanding rent and other issue arising under the residential tenancy agreement which are not part of these proceedings.
It follows from what I have said that I am satisfied there is a significant issue to be determined in this appeal and that the orders sought are not futile. The strength of the appeal warrants both an extension of time and an order to reinstate the proceedings. The proceedings have been troubled by a number of failed attempts by the Appeal Panel to communicate with Mr Ward. However, the response by Mr Ward to these failed communications has generally been to take prompt action. While I have some concern about the delay in making the second reinstatement application and the lack of detail about what occurred when the first reinstatement application was dismissed, any delay is minimal and the potential injustice weighs in favour of granting Mr Ward's application
Consequently, the time to make the third reinstatement application should be extended to 7 January 2021, when the fee waiver was granted by the Registrar, and the appeal proceedings AP 20/51786 should be reinstated.
The appeal should not be determined in a vacuum, without all the relevant evidence. Consequently, directions should be made for Mr Ward to file and serve all evidence including a transcript of the hearing at first instance. In doing so, I have identified above some of the issues which have emerged from the application for reinstatement. As necessary, issues and any other issues will need to be dealt with by the parties in their submissions.

Orders

The Appeal Panel makes the following orders: 1. Jean NSB Nand is added as a respondent to the application to reinstate and the appeal following reinstatement. 2. The time to lodge the application to reinstate appeal AP 20/43753 is extended to 7 January 2021. 3. Pursuant to s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW) appeal AP 20/43753 is reinstated. 4. In respect of the appeal, the following directions are made: 1. The Appellant is to lodge with the Appeal Panel and give to the Respondents by 19 February 2021: 1. All the evidence given to the Tribunal together with a transcript of the hearing; 2. The Appellant's written submissions in support of the appeal. 1. The Respondents are to lodge with the Appeal Panel and give to the Appellant by 5 March 2021: 1. any evidence upon which they intend to rely (if the Appellant defaults in providing all evidence and a transcript; and 2. the Respondent's written submissions in opposition to the appeal. 1. The Appellant is to lodge with the Appeal Panel and give to the Respondents any written submissions in reply by 12 March 2021. 2. The Appeal is listed for hearing on 16 March 2021 at 2:15pm by telephone for half a day. 3. The issue of whether the Appeal Panel should give leave to appeal on grounds other than a question of law is to be determined at the hearing of the appeal. 4. If the Appellant fails to provide all evidence and transcript as directed, his appeal may be 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: 22 January 2021

At a glance

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Judgment (6 paragraphs)

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