Williams v Wentworth

NCAT Appeal Panel|2021-12-10

Introduction

This appeal arises out of a decision published on 9 September 2021 in which the Tribunal made orders requiring the Appellant (the tenant) to pay to the Respondent to this appeal (the landlord) the sum of $8,878.57. That amount was described as made up of rent arrears to 5 July 2021 totalling $3,928.57 and an occupation fee from 6 July 2021 to 12 August 2021 totalling $4,950. The decision under appeal (the Decision) records that the Appellant owed an occupation fee of $78.57 per day from 6 July 2021 to the date vacant possession was given on 12 August 2021. In an earlier decision published 3 June 2021 the Tribunal had made orders for termination of the residential tenancy agreement between the parties, requiring possession to be given on or before 9 June 2021 and for the tenant to pay to the landlord a daily occupation fee of $78.57 from the day after the date of termination (4 June 2021) until vacant possession is given.
On 7 October 2021 the tenant filed a Notice of Appeal. The Notice of Appeal was filed out of time. Clause 25 of the Civil & Administrative Tribunal Rules 2014 (NSW) (the Rules) requires a Notice of Appeal in respect of a residential tenancy dispute to be filed within 14 days from the day on which the Appellant was notified of the Decision or given reasons for the Decision. In this case, that meant that the Notice of Appeal should have been filed on approximately 23 September 2021. Accordingly, it was filed approximately 14 days out of time.

The landlord has filed a Reply the effect of which may be summarised as follows: 1. The appeal is opposed and to the extent leave is required, it should be refused. The tenant left the premises, but did not remove her possessions or hand over the key. The sheriff conducted an eviction on 9 August 2021. 2. The landlord's evidence was sent to the tenant both by email to the email address given in her Notice of Appeal and by post. 3. The accusations that power was cut off and of harassment are denied.

The Appellant's Submission

The Appellant's submissions (including the oral submissions received during the hearing of the appeal) may be summarised as follows: 1. The landlord's application, submissions and the Tribunal's orders all refer to "Mickey Williams", whereas the correct name of the Appellant is Michaella Williams. During the hearing the tenant confirmed that she is both Michaella Williams and Mickey Williams. They are one and the same person, but the description "Mickey" is only used on her Facebook communications. She acknowledged that the terms of the tenancy agreement reached between the parties is contained in a Facebook message initially from the landlord and then in response from the tenant (accepting the landlord's terms) by which is described as "Mickey". 2. The documents upon which the Tribunal relied to support the orders made in favour of the landlord were not provided to her. 3. The premises became uninhabitable on 10 May 2021 when the electricity was cut off. During the hearing of the appeal, the tenant acknowledged that she had not paid rent from mid-April 2021. 4. At the hearing, the tenant also acknowledged that she had physically moved out of the premises around 10 May 2021.

Respondent's submissions

The submissions of the landlord may be summarised as follows: 1. The landlord submits that the tenant goes by the names of both Michaella Williams and Mickey Williams. The landlord produced copies of communications from the tenant by which the tenant used both descriptions. It appears that the Facebook communications use the description "Mickey Williams". However, the emails are signed off by use of the name Michaella Williams. 2. In respect of the assertion that the landlord did not provide evidence to the tenant, the landlord submitted that all evidence was sent to the tenant by registered post to her residential address and that his wife sent an email to the tenant on 23 June 2021 informing the tenant of uncollected mail at the premises. 3. The landlord disclosed in his submissions that the premises did not have a separate electricity meter but rather had a meter shared with the balance of the building of which the rented premises formed part. The landlord's submissions disclosed that the amount paid by the tenant for electricity totalled $650. The landlord acknowledged that a claim for electricity in circumstances, as here, where the tenanted premises did not have a separate electricity meter was a charge which the landlord was not entitled to make. In our view the landlord's concession was appropriate having regard to ss 38 and 40 of the Residential Tenancies Act 2010 (NSW). The landlord consented to a reduction in the amount ordered to be paid in the sum of $650.

Consideration

Appeals from decisions made in the Consumer & Commercial Division of the Tribunal may be brought as of right on a question of law or with leave on the grounds set out in clause 12 of schedule 4 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Clause 12 provides:

12 LIMITATIONS ON INTERNAL APPEALS AGAINST DIVISION DECISIONS (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). Note: Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if-- (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order.

In the following paragraphs we will deal with the substantive issues raised in the appeal and thereafter deal with the question of whether time should be extended given the fact that the Notice of Appeal was lodged out of time.
In respect of the submission that the order is invalid because it is an order against Mickey Williams rather than Michaella Williams, we are of the opinion that the tenant's submissions should be rejected. In this case, the tenant acknowledged that she is known by her legal name of Michaella Williams and also on Facebook by the name Mickey Williams. As the terms of the tenancy were negotiated by Facebook (and there was no formal tenancy agreement entered into) it is understandable that the landlord brought the application against Mickey Williams. It is appropriate to amend the order so that it is an order against Michaella Williams (also known as Mickey Williams). It would be unjust to leave the order as is and thereby render its enforceability difficult for the landlord. Accordingly, we will make such an order for amendment of the name of the tenant.
With respect to the contention that the landlord's documents were not served on the tenant the question is whether, if the contention is accepted, the tenant has thereby suffered procedural unfairness. We note that the landlord asserts that documents were provided to the tenant by registered post to her new residential address. In this case, the claim is for rent arrears and an occupation fee for the period from April 2021 (when the tenant acknowledged she made the last payment of rent) to 12 August 2021 (when the landlord executed a warrant for possession and the landlord thereby achieved vacant possession). The tenant's dispute is that the premises became uninhabitable from 10 May 2021 when the power was allegedly cut off. The landlord produced evidence to the effect that in May (when the tenant alleged that the power had been cut off) he had an electrician check the premises who found that the power was connected. The issue was not the subject of determination by the Tribunal.
In our view an assertion that premises are uninhabitable does not excuse the tenant from the obligation to pay rent. The obligation to pay rent in those circumstances might be modified following an application and the making of Tribunal orders to the effect that the rent should be reduced or compensation paid by the landlord to the tenant. That has not happened in this case. That is, no application has been made by the tenant for rent reduction or compensation, or if it has, we were not provided with a copy, and no order for compensation or rent reduction has been made. We do not see that any injustice arises in this case even if documents tendered by the landlord concerning the calculation of rent and the occupation fee and relied upon by the Tribunal to make the orders of 9 September 2021 were not provided to the tenant prior to the hearing. The reality is that these calculations change on a daily basis.
With respect to the tenant's argument that the Tribunal ignored the effect of Covid restrictions and the alleged conduct of the landlord in intimidating and harassing the tenant, the position is that we have not been provided with any evidence in support of those contentions. Insofar as the assertion of intimidation and harassment is concerned, we are of the view that such matters are not relevant to the question of whether rent and an occupation fee are payable. They might have become relevant had the tenant made an application and the Tribunal had found that the landlord's obligation to provide to the tenant quiet enjoyment of the premises had been breached. However, the Tribunal has made no decision concerning such matters.
We refer to the fact that the tenant claims she was not present at the hearing because she thought that the tribunal would ring her rather than she ring the tribunal. There is no evidence that the tribunal's notice of hearing misled the tenant. Nor are we of the opinion that the tenant's absence has resulted in an injustice occurring. To the extent that the tenant contends that she suffered procedural unfairness by reason of the hearing proceeding in her absence that ground is rejected.
Accordingly, we see no basis for upholding any of the tenant's grounds of appeal.
We now turn to the question of whether time for lodgment of the appeal should be extended. Generally, time limits should be strictly adhered to but time can be extended if the reason for the delay suggests that it would be just to extend time. In this case the reason for the delay is unsupported by any evidence concerning the tenant's mental suffering. A further consideration is whether the Decision would result in an injustice were it left to stand and, if so, that would point to the need to extend time. In this case there is no such consideration favourable to the tenant and on that basis, time should not be extended. However, there are two reasons to extend time. The first is that it is necessary to amend the name of the tenant for the reasons earlier discussed. The second is that the landlord has offered to reduce the amount of the sum awarded to be paid in recognition of the claim for payment of electricity. Accordingly, it is necessary to reduce the amount ordered to be paid by the sum of $650.

Orders

The result is that the following orders are made: 1. Time for lodgment of the appeal is extended to 7 October 2021. 2. Except for the purposes of making the following orders the appeal is dismissed. 3. The name of the Respondent in the proceedings below and the Appellant in this appeal is amended to Michaella Williams (also known as Mickey Williams). 4. The order made on 9 September 2021 in RT 21/20236 requiring the Appellant to pay $8,878.57 is set aside and the following order is made: "The tenant, Michaella Williams (also known as Mickey Williams) formerly of Lyly Road, Allambie Heights NSW 2100, Australia is to pay to the landlord, Rob Wentworth of 27 Lyly Road, Allambie Heights NSW 2100, Australia the sum of $8,228.57 immediately".

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: 31 January 2022

Administrative Tribunal Rules 2014(NSW)

Administrative Tribunal Act 2013(NSW)

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Judgment (9 paragraphs)

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