Watson v Chen

Background

1. The tenants rented a property from the respondent. The property was located in Mascot, NSW and the residential tenancy agreement was made in NSW.
2. The tenants stopped paying rent.
3. On 1 April 2021, the Tribunal ordered the tenants to pay to the landlord a sum for rent arrears, and a daily occupation fee until they vacated the property.
4. The tenants did not vacate the property. Accordingly, the landlord relisted the matter before the Tribunal seeking an order in his favour for the occupation fee for the period 2 April 2021 until the date the tenants did vacate, being 14 May 2021.
5. In a decision dated 12 October 2021 the Tribunal made an order in favour of the landlord for an occupation fee in the sum of $3,840.
6. At the hearing before the Tribunal the tenants made a number of submissions. The Tribunal said that the tenants submitted that: "a) the applicant lived in another state and this matter could not be brought to the Tribunal; b) they had paid no rent since the last set of orders as they had been 'destroyed' by Covid-19; c) they would appeal this decision (not even knowing what the decision would be) and the decision made on 1 April 2021.
7. There was no appeal brought by the tenants against the orders made on 1 April 2021.
8. On 27 October 2021 the tenants wrote to the Tribunal's Registrar as follows: "The Respondents/Appellants intend filing an Appeal in the matter. The Principal (sic) argument supported by procedural matter arguments the Respondents/Appellants seek to advance at the Appeal is a Constitutional matter. The Respondents/Appellants have canvassed Lawyers and Counsel willing to accept the Brief in the matter but have not as at the date herein formalised appointments. The Respondents/Appellants respectfully seek an extension of time of 14 days from 27 October 2021 in which to formalise their Appeal, file and serve same. The extension of time applied for herein will not cause prejudice to the Landlords as the Respondents/Appellants have vacated the subject premises. the Bond in the tenancy has been surrendered to the Landlords. the subject property has been placed on market and has we are informed been sold.
9. The tenants filed a Notice of Appeal with the Tribunal on 16 November 2021, a little over two weeks after the time allowed to do so.
10. In their Notice of Appeal, the tenants said that all of the orders made on 12 October 2021 should be set aside. They said their grounds of appeal were: "1. The Applicant Jintai Chen is not the Proprietor of the subject property. 2. In any event, the Applicant Jintai Chen is not a resident of NSW. The Appellants say an Applicant who is not a resident of NSW lacks jurisdiction to proceed upon grounds it is unconstitutional for a non-judicial tribunal to exercise federal jurisdiction. The Applicants say an Applicant residing outside Australia must seek to engage federal jurisdiction when making application to NCAT."
11. In section 6(iv) of their Notice of Appeal the tenants said that significant new evidence was now available that was not reasonably available to them at the time of the Tribunal hearing. They said that that evidence "would follow". No such evidence was served or lodged prior to the hearing of this appeal.
12. The appellants also said that lawyers were being engaged on their behalf and funded to proceed further with the appeal. No lawyers sought leave to appear on behalf of the tenants for this appeal.
13. On 8 December 2021 the Appeal Panel made the following directions: "3 The Respondent is to lodge with the Tribunal and give to the Appellant a copy of the Reply to Appeal by 15 December 2021. 4 The Appellant is to lodge with the Tribunal and give to the Respondent by 05 January 2022: (a) All the evidence given to the Tribunal below on which it is intended to rely; (b) Any evidence not provided to the Tribunal in making the decision under appeal, on which it is intended to seek leave to rely; (c) The Appellant's written submissions in support of the appeal; and (d) The sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts. 5 The Respondent is to lodge with the Tribunal and give to the Appellant by 27 January 2022: (a) All the evidence provided to the Tribunal below on which it is intended to rely; (b) If appropriate in response to (b} above, any evidence not provided to the Tribunal in making the decision under appeal, on which it is intended to seek leave to rely; (d) The sound recording or transcript of the hearing at first instance, if that has not already been provided and the Respondent is relying on what happened at the hearing and a typed copy of the relevant parts. 6 The Appellant is to lodge with the Tribunal and give to the Respondent any written submissions in reply by 03 February 2022."
14. Despite compliance with those directions being mandatory, not voluntary, no party complied with any part of them.
15. The tenants said they did not comply because they did not receive any Reply to Appeal from the respondent, and therefore thought that the respondent was not contesting the appeal.
16. We do not accept that explanation as justifying non-compliance with the directions made for four reasons.
17. First, as we have said, compliance with the Appeal Panel's directions was mandatory - see s 36(3) of the Civil and Administrative Tribunal Act 2013 (NSW).
18. Second, this is made clear in the NCAT's Guideline 1 - Internal Appeals (which appellants are advised, in writing at the top of the first page of the Notice of Appeal, to read before completing the Notice of Appeal). Cl 60 of the Guideline says: "60. The parties are required to comply with any directions made for the filing and service of submissions and other material to be relied upon in order to prepare the matter for hearing."
19. Third, the directions are written in plain English and nowhere do they say that compliance with any of the directions applicable to one party is conditional upon compliance with directions by the other party.
20. Fourth, it is the tenants who seek to overturn the orders of the Tribunal, and thus they bear the onus of proving that the Tribunal's decision was affected by some material error. The mere fact the respondent did not file a Reply does not mean that an appeal automatically succeeds. Appellants are still required to convince an Appeal Panel that the appeal should succeed and the decision of the Tribunal at first instance interfered with.

The Adjournment Application

1. The difficulties facing the tenants in relation to their first point (about Mr Chen being a co-owner of the property but sole applicant in the Tribunal) in the absence of the evidence before the Tribunal were obvious and were brought to the tenants' attention during their submissions. Without evidence that Mr Chen was a co-owner (and not sole owner) at the relevant time that point was doomed to fail.
2. At that point the appellants sought an adjournment of the appeal so that they could gather that evidence. The application was not opposed. Despite the application not being opposed we refused the application. We did so for four reasons.
3. First, the point does not appear to have been taken before the Tribunal as its reasons do not refer to any such point and the Tribunal expressly set out the tenants' submissions (quoted at [19] above). A new point will not be allowed on an appeal where the respondent may have led evidence or may have conducted the case differently - Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631; [1997] NSWCA 214 per Mason P, with whom Gleeson CJ and Priestley JA agreed, at 645.
4. The tenants said they had taken the point but did not provide a sound recording or transcript of the hearing below establishing that they had done so. We do not accept their uncorroborated assertion that they had taken the point as we do not feel an actual persuasion of its occurrence - see Nguyen v Cosmopolitan Homes [2008] NSWCA 246 per McDougall J, with whom McColl and Bell JJA agreed, at [44]; In the matter of Hillsea Pty Limited [2019] NSWSC 1152 at [16]-[21].
5. Second, the tenants did not take the point at the original hearing (for arrears of rent) and did not appeal those orders (of 1 April 2021) on that ground. This suggest the point was not taken.
6. Third, the tenants had been given an opportunity to provide either the evidence that was before the Tribunal, or new evidence, by the Tribunal's directions of 8 December 2021. They failed to take that opportunity.
7. Fourth, the Tribunal's resources are limited. It receives about 70,000 applications per year, of which about 54,000 are in the Consumer and Commercial Division (in which this case was heard), and about 800 internal appeals are filed. It has allocated resources for the tenants to have their appeal heard, they did not abide by the directions of 8 December 2021, and the adjournment of the appeal would have effects on other litigants. Lest this seem harsh, if we were to adjourn this appeal simply because the tenants chose not to comply with the directions and now wish to change their mind because it has been brought home to them what are the consequences of that choice, many other appeals would have to be adjourned on the same basis, and the Tribunal's ability to deal with cases quickly as well as justly would be compromised.

The Appeal

1. The tenants had two grounds of appeal. They are set out at [23] above.

Ground 1

1. The appellants submitted that the landlord was not the sole owner of the rented property yet was the sole applicant.
2. No evidence of this asserted fact which had been before the Tribunal was provided to us by the tenants even though they had been given the opportunity to do so.
3. Further, as we have said at [36] above, the point appears not to have been taken before the Tribunal and for the reasons set out at [36] above we would not allow the point to be taken now.

Ground 2

1. Ground 2 asserts that the Tribunal does not have jurisdiction to hear this dispute because the landlord is not a resident of NSW.
2. Before the Tribunal the tenants asserted (without evidence) that the landlord was a resident of another state of Australia. It turns out Mr Chen resides in China.
3. It is true that the Tribunal lacks jurisdiction to decide disputes between residents of different states of Australia for the basal reason that s 75 of the Constitution confers original jurisdiction to hear disputes between "residents of different States" (amongst other matters) upon the High Court - see the judgment of the High Court in Burns. This led to the conclusion that the State of NSW could not confer jurisdiction to hear such disputes upon tribunals of that state.
4. The Constitution does not include any similar conferral of jurisdiction on the High Court in relation to disputes between residents of other countries and residents of NSW.
5. Thus, as was held in Seymour v Wu [2021] NSWCATAP 289 ("Seymour"), the Tribunal may have jurisdiction to hear a residential tenancy dispute between a resident of China and a resident of NSW.
6. In Seymour, a case involving a residential tenancy agreement between a resident of China and a resident of NSW in relation to a property in NSW, the Appeal Panel held at [67]: "Jurisdiction is not excluded by Burns v Corbett [2018] HCA 15; [2018] 265 CLR 304 and Attorney General for New South Wales v Gatsby [2018] NSWCA 254 because the dispute is not between residents of different states and the Tribunal is given jurisdiction to make orders for the payment of money and to terminate tenancies per s 187 of the RTA."
7. In this case the tenants are (and were) residents of NSW. The rented property was in NSW. The residential tenancy agreement was made in NSW. The property was not a property to which the Residential Tenancies Act 2010 (NSW) (the "RTA") did not apply per s 7, nor was the agreement between the parties an excluded agreement per s 8 of that Act.
8. Therefore, the RTA applied to this residential tenancy agreement per s 6 of the RTA, and the Tribunal was authorised by that Act to terminate the tenancy, make orders for the payment of arrears of rent and an occupation fee as provided for in Part 9 of the RTA.
9. The tenants first submitted that Burns meant that the Tribunal did not have jurisdiction. When it was pointed out to them that the law did confer jurisdiction on the Tribunal in this case for the reasons we have outlined above, the tenants submitted that, whilst that may be so, it (being the conferral of jurisdiction on the Tribunal in cases such as the present) did not pass the "pub test".
10. We pointed out that we were obliged to apply the law and not the "pub test".
11. In response, the tenants submitted that it could not be the case that we could not hear a dispute between a resident of NSW and a resident of Melbourne, but we could hear a dispute between a resident of NSW and a resident of what they described as "Communist China".
12. Contrary to the tenants' submissions, and for the reasons we have given, that is in fact the case.

Orders

1. We make the following orders: 1. Time to appeal is extended up to and including 16 November 2021. 2. Appeal dismissed.

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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: 17 February 2022