Zeaiter v Rahman

NCAT Appeal Panel|2024-09-25

Background

This is an appeal against a decision of the Tribunal on 15 January 2024 in proceedings taken by the Respondent against the Appellant in the Tribunal's Consumer and Commercial Division.
The proceedings concerned a residential tenancy agreement made on 20 January 2022 between the Appellant, as landlord, and the Respondent, as tenant, concerning certain residential premises in southern Sydney (the Premises).
The decision was that the Appellant pay compensation of $3,000 to the Respondent for breaches of the Residential Tenancies Act 2010 (NSW), being breaches referable to the condition of the Premises.
The hearing on 15 January 2024 took place in the absence of the Appellant who asserts that he was not aware of the hearing. There has been a long history of disputation between the parties involving multiple applications to the Tribunal.
The Tribunal set out some of that history as follows: "8. The tenant explained that the matters had been ongoing throughout the tenancy, and he had not terminated the tenancy because he did not accept dishonesty. In other proceedings between the parties, the Tribunal made a money order in matter RT 22/23268 for the tenant to pay the rent owing in the sum of $7,340.00 up to 17 August 2022. The tenant appealed that decision but says that he ultimately paid that amount as part of the appeal process. The Tribunal made a further money order in matter RT 23/08389 for the tenant to pay the rent owing in the sum of $9,321.43 from 18 August 2022 to 30 March 2023. The tenant stated that he has appealed that decision and has not paid the amount. Based upon these decisions it was held by the Tribunal that there was no agreement for the rent to abate due to repairs. The rent was found to be payable, and orders made accordingly. It appears that the Tribunal considered in those matters that any claim by the tenant for repairs had to be sought as a separate claim. Also, based upon the evidence presented in this matter by the tenant, the Tribunal agrees with the previous decisions and is not satisfied that the premises were unusable and/or uninhabitable otherwise than as a result of a breach of an agreement to an extent where the rent would abate. The Tribunal is satisfied that the issues claimed by the tenant were items that potentially needed repairs and should be addressed appropriately by a separate claim (this claim) as such. 9. The Tribunal accepts that it is evident that the tenant has raised the condition of the property and the required repairs at every stage. The issues were first raised in a Tribunal claim in matter RT 22/32270 lodged on 18 July 2022 - the tenant sought an order for the same repairs and a 20% rent reduction. The Tribunal file records at conciliation that the landlord agreed to carry out some repairs once the rent was paid in full. That matter was ultimately dismissed because the tenant subsequently failed to appear for the final formal hearing. 10. The tenant again lodged the same application for repairs on 26 March 2023 - RT 23/14386. This time the tenant sought the sum of $16,000.00 for reimbursement for urgent repairs carried out by him. The tenant stated in his application that he was staying with his friend and stated that it was costing him $50.00 per day in mileage/depreciation for travel expenses. The tenant again failed to attend the hearing and the matter was dismissed. 11. The tenant again lodged the same application on 30 July 2023 - RT 23/34834. This time the tenant sought the sum of $20,000.00 for compensation. No repairs were sought because the tenant was no longer at the property. Again, the tenant stated in his application that he was staying with his friend and stated that it was costing him $50.00 per day in mileage/depreciation for travel expenses. The tenant again failed to attend the hearing and the matter was dismissed. 12. The tenant lodged a set aside application which was granted, and this application RT 23/40277 shall now consider what was originally lodged as application RT 23/34834."

The decision

The Tribunal noted that the tenant required an extension of time to bring the application and determined: "13. Based upon the history of all matters lodged, the conduct of those proceedings and the landlord's non-attendance today to oppose any extension of time and/or explain any prejudice that might occur, the Tribunal accepts the tenant's reasons for the delay of the applications, and as necessary grants any required extensions of time for today's application to proceed. The Tribunal is satisfied that the justice of the case and the total time that related proceedings have been lodged and not properly heard just requires the tenant's case to be finally heard and determined today."
The Tribunal then addressed the tenant's claim: "14. Although not set out succinctly, the tenant's claims in respect of the condition of the premises and the failure to repair relate to Sections 50, 52 and 62 of the Residential Tenancies Act 2010. The tenant seeks compensation based upon alleged breach by the landlord of all, or any, of those provisions. The Tribunal has the power to make a monetary order in the form of related compensation per Section 187 of the Act. The Tribunal has jurisdiction to hear and determine the compensation claim. The tenancy agreement had already ended when this application was lodged and thereby there can be no claim by the tenant for a rent reduction per section 44(3) of the Act in respect of the circumstances that occurred. 15. The Tribunal considered the tenant's uncontested evidence being what he had to say at the hearing, his two-page written outline of submissions, his photographs and a statutory declaration from his friend. The tenant's photographs and what he stated at the hearing clearly showed the items complained of at the premises needed repairs - the old carpet that smelt and needed replacement, the paint lifting in the bathtub, the ripped flyscreens, the broken shower head, the broken sink/vanity cupboard door, the broken toilet seat and the poor-quality water. The Tribunal accepted that the issues raised had been ongoing throughout the tenancy and the landlord did not carry out the repairs as required. Based upon the tenant's uncontested evidence at the hearing today, the Tribunal finds that the landlord has breached Sections 50, 52 and 62 of the Act and the tenant is entitled to compensation. 16. The applicant stated that his calculated loss for compensation, being the total sum of $15,000.00, was based upon his payments of rent for the whole period of the tenancy and the $50.00 per day he paid to his friend Bobby Syed to live with him because he could not live in the premises. The friend Mr Syed confirmed in his statutory declaration the payment from early January 2022. Mr Syed also confirmed that he had seen the condition of the rental property and supported the tenant's complaints about the state of repairs. 17. Despite being asked by the Tribunal several times for any other potential calculation for consideration as to the measure of compensation, the tenant did not provide any further alternative. 18. The tenant did not have any receipts to corroborate the payments to Mr Syed. The tenant also never provided any adequate explanation to the Tribunal as to why in his previous written applications and this written application he never claimed compensation for payments to his friend Bobby Syed to live with him, but rather stated that it was costing him $50.00 per day in mileage/depreciation for travel expenses? Never-the-less the Tribunal did not consider that either of these were an adequate or appropriate way to assess compensation because the issue was the breach by the landlord failing to repair to the property where the property was usable and/or inhabitable. The Tribunal in previous decisions ordered the whole rent payable. The Tribunal is not satisfied that the issues in the tenant's evidence are sufficient to establish that the premises were not usable and/or not inhabitable. The Tribunal does not accept on the evidence presented that the tenant could not live in the premises. In any event, the tenant has failed to give any adequate explanation to the Tribunal as to why if he says he could not live there, and the landlord was not carrying out the repairs he did not seek to mitigate any loss by terminating the tenancy. In fact, when the Tribunal made orders amongst other things terminating the tenancy, the tenant continually took action to set aside such decisions and the tenancy and related matters continued to 4 April 2023 when the tenant finally vacated in accordance with Tribunal order. 19. The Tribunal considers that it should assess reasonable compensation in an alternate manner. In these circumstances, there is no definitive formula for assessing damages/compensation. The Tribunal must estimate damages/compensation as best as it can."
The Tribunal referred to decisions concerning the assessment of damages for breach of contract including The Commonwealth of Australia v Amman Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 and Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 328; 396 ALR 545.
The Tribunal concluded: "22. The Tribunal has assessed what the tenant has presented. Some of the issues with the items such as the carpet, the flyscreens, the bathtub, the water quality and the shower head would be more disruptive to the tenant's use and enjoyment of the property. However, the bathroom and water supply items could also have been potentially addressed by the tenant himself as urgent repair items per clause 20 of the tenancy agreement (Section 64 of the Act), and those matters resolved much sooner if the landlord was not repairing such items as required. It appears that the toilet seat and the broken sink/vanity cupboard door just required most likely some minor maintenance work to re-attach them correctly and appeared somewhat more minor issues. 23. Overall, the Tribunal in assessing as best it can compensation for the landlord's breaches of the Act determines that the sum of $3,000.00 payable to the tenant is reasonable and fair compensation for all issues in the proceedings. The Tribunal makes a money order accordingly. Given that the landlord has not attended today, the Tribunal makes an order that the amount of compensation is due and payable immediately."

Timing of the appeal

The original application sought, as is noted above, remedies under the Residential Tenancies Act 2010 (NSW).
As the proceedings in the Consumer and Commercial Division were "residential proceedings" as that term is defined in rule 3(1) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules), rule 25(4)(b) of the NCAT Rules required the appeal to be lodged within the period of 14 days from the day on which the Appellant was notified of the decision under appeal.
It was not. The decision under appeal was made on 15 January 2024 and forwarded by email on that date to Appellant's managing agents, Raine & Horne Bardwell Park/Kingsgrove, to an email address within that organisation apparently allocated to one of the managing agents' staff. For reasons canvassed below, the notification of the decision to the agent was effectively notification to the Appellant. Accordingly, the Notice of Appeal was required by sub-rule 25(4)(b) to be filed no later than 29 January 2024. It was, however, in fact filed on 4 July 2024, as the Tribunal Registry's receipt stamp on the Notice of Appeal indicates.
It is thus open to the Appeal Panel to dismiss the appeal on the basis that it was not made within the time allowed under the NCAT Rules.

Should the Appeal Panel extend the time for lodgement of the appeal?

Section 41 of the NCAT Act allows the Tribunal "of its own motion or on application by any person, [to] extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation".
The Appellant says that he was not informed of the decision by the managing agents, and first became aware of it on 25 June 2024 from submissions filed by the Respondent in other proceedings between them in the Supreme Court. On that basis, he seeks an extension of time for filing the appeal.
The Appeal Panel decided to order that the time for lodging the Notice of Appeal be extended to 4 July 2024, for three reasons: 1. The application to extend time for lodging the appeal effectively raises the same issue as the substantive appeal, namely the extent of the managing agents' role as the Appellant's representative; 2. The Appellant acted promptly by filing the Notice of Appeal well within a period of 14 days after the date on which, he says, he first became aware of the decision under appeal; and 3. The Respondent has not lodged a Reply to Appeal and has otherwise expressed no opposition.

Scope and nature of internal appeals

An internal appeal to the Appeal Panel does not provide a losing party in the Tribunal at first instance with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] - [40] provided further guidance in relation to what is a question of law and the categories of questions of law. At [26] - [28] the Appeal Panel stated: "26 … great care must be taken in drafting a notice of appeal to ensure that it is apparent, on its face, that the ground of appeal raises a question of law. If not, leave to appeal is necessary. 27 Where, however, there is a question of law in substance, a court (and, it follows, an Appeal Panel) has discretion (to be exercised judicially and in the interests of justice) to direct its formal notification in an amended notice of appeal: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [60]. In appropriate circumstances, the Appeal Panel may elect to waive the requirement to formally lodge an amended notice of appeal, given its mandate to act "with as little formality as the circumstances of the case permit … without regard to technicalities or legal forms": NCAT Act, s 38(4); Wollondilly at [19]. Where the party is not legally represented, a more generous approach is warranted: Kudrynski at [50]-[51]. This is an aspect of ensuring procedural fairness. 28 When dealing with self‑represented parties, the Appeal Panel has in many instances considered for itself whether a question of law is raised, applying John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [12]: Eastman v Nepean Blue Mountains Local Health District [2024] NSWCATAP 94 at [11], FSO v Secretary, Department of Education [2024] NSWCATAP 154 at [34], El‑Mohamad v Lin [2024] NSWCATAP 139 at [31], Johnson v Nachar [2024] NSWCATAP 135 at [14], Batshon v Suttons Motors Homebush Pty Limited [2024] NSWCATAP 114 at [19], Craig v Shallita [2024] NSWCATAP 112 at [16]."
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

Grounds of Appeal and submissions

The Grounds of Appeal set out in the Notice of Appeal include that the hearing at first instance took place in the absence of the Appellant and that he had not been notified of the hearing. For the first instance hearing to proceed in the absence of a party who was not notified of the hearing, may constitute a denial of procedural fairness and thus this ground raises a question of law.
The other matters raised in the Notice of Appeal challenged findings of fact and do not raise any question of law. Accordingly, the Appellant would require the leave of the Appeal Panel to rely on those grounds.
The Appellant sought leave to appeal both on the grounds that the decision was not fair and equitable, and on the basis that it was against the weight of evidence. In his submissions, the Appellant further identified the basis for his appeal as: 1. How could the Appellant carry out repairs if the Respondent did not cooperate; and 2. If the Respondent was ordered to vacate the Premises, he should not be compensated for repairs.
The Appellant attached to his submissions to the Appeal Panel a letter from his managing agents dated 25 July 2024. That letter is critical of the Respondent's conduct as a tenant. The Appellant acknowledged that he could have obtained a letter to the same effect before the hearing in January 2024 if he had sought to do so.
The Appellant filed submissions which set out a chronology of the litigation between himself and the Respondent from January 2022 when the Respondent first took possession of the property.
The Appellant did not put before the Appeal Panel any of the evidence that was before the Tribunal on 15 January 2024 nor a transcript of the hearing.
The Respondent filed nothing other than two emails addressed to the Registry dated 31 July 2024 and 4 September 2024. The Respondent was informed by the Registry that any documents he sought to rely upon should be filed in hard copy. Although the Respondent claimed to have forwarded documents by mail the Appeal Registry has no record of having received them

Leave to Appeal

The Appeal Panel was unable to determine whether the decision was against the weight of evidence or not fair and equitable because it did not have before it all the evidence which was before the Tribunal: Aboss v Hafeez [2022] NSWCATAP 345 at [30]-[31].
The Appeal Panel is not satisfied that the letter of 25 July 2024 from the managing agents is evidence that was not reasonably available at the time of the hearing. It will not take it into account in considering the appeal.
It follows that the Appellant has not established any of the bases upon which he might be granted leave to appeal. Leave to appeal will be refused.

Whether the Appellant was denied procedural fairness

The Appeal Panel was not persuaded that the Appellant was denied procedural fairness in relation to the decision.
The Appeal Panel obtained certain documentation from the Tribunal's file which the parties had not included in their material, and disclosed that material to the parties during the appeal hearing.
As clarified with the Respondent, this material obtained by the Appeal Panel from the Tribunal's files indicated that: 1. There had been a hearing on 10 November 2023, and 2. In the course of that hearing, a representative of the Appellant's managing agent informed the Tribunal that the managing agent had not received the Respondent's documents and sought an adjournment to allow consideration of those documents following their provision.
It is apparent from the material from the Tribunal's file that: 1. Notice of the 10 November 2023 hearing had been sent by mail to the postal address of the managing agents; 2. At the 10 November 2023 hearing the Tribunal was requested to (and did) alter the Appellant's contact details, from the managing agents' postal address to the business email address of the representative of the managing agents, Mr N Horozakis; and 3. In accordance with those changes, both the orders made by the Tribunal on 10 November 2023 and the Notice of the Hearing on 15 January 2024 were sent by the Tribunal to that business email address.
The Notice of Hearing was dated 13 November 2023, and in accordance with the Tribunal's normal practice it would have been sent to the nominated email address on that date.
We are satisfied that that there was sufficient notice to the Appellant of the 15 January 2024 hearing.
Although the Appellant suggested in the course of submissions that Mr Horozakis had not been authorised to represent him in relation to the Respondent's claim, it is apparent that: 1. As the Appellant recognised, the managing agents (and in particular Mr Horozakis) had represented him generally in dealings with the Respondent in connection with the Premises; the Notice of Appeal states as follows: "Throughout the last two and half years, my real estate agent has endured many hearings because of the tenant, and has always appeared in the various directions, hearings, and appeals. The decisions have always been favourable to me via the real estate agent. All of my correspondence has been via the real estate agent, but they are adamant that no such notification was given regarding this hearing". 1. The Respondent was accustomed to dealing with Mr Horozakis in relation to the tenancy, and
The Appellant did not file any affidavit or statement from Mr Horozakis suggesting that he had not received notice of the hearing on 15 January 2024. Nor did the Appellant suggest in any document filed in relation to the appeal that he had terminated the appointment of the managing agent before notice of the hearing was sent on 13 November 2023, or before the hearing on 15 January, or at all.
The Appellant had clearly allowed the managing agent generally, and Mr Horozakis in particular, to hold himself out as having authority to act on his behalf in relation to the tenancy. In those circumstances, even if there was no evidence of the actual authority of the managing agent or Mr Horozakis, there could be no dispute that they held ostensible authority to act on the Appellant's behalf in relation to the tenancy: see Wilh. Wilhelmsen Investments Pty Ltd v SSS Holdings Pty Ltd [2019] NSWCA 32 per Beazley ACJ at [74] - [86].
Accordingly, we are satisfied that the Appellant was not denied procedural fairness in that notice of the hearing was given to his managing agent. Notice given to the Appellant's managing agent, to the particular business email address specified for the purpose at the 10 November 2023 hearing, was sufficient notice to ensure that the Appellant was given a fair opportunity to be heard.
In his submissions, the Appellant notes that ".... the agent in question, Mr Nicholas Horozakis, is no longer working in the industry". If that were the case, and we note that the Appellant did not identify when Mr Horozakis ceased to work in the industry, that may well explain why the notice of hearing was not identified and acted on by the managing agent. However, that the managing agent may have failed in their duties to the Appellant by not ensuring an appropriate transition of Mr Horozakis' client correspondence following his resignation cannot affect the conclusion set out above.

Orders

The Appeal Panel orders that: 1. The time for filing the Notice of Appeal is extended to 4 July 2024. 2. Leave to Appeal is refused. 3. 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: 21 November 2024

At a glance

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Decision date

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Judgment (10 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (16)