Zheng v Kim

Background

1. The parties entered into a six-month residential tenancy agreement in September 2017 for premises at Penshurst, NSW. The landlord engaged a real estate agent to find a tenant and have the parties enter into a lease, but the agent was not retained thereafter.
2. The lease was for a granny flat at the rear of the landlord's block of land. At the front of the block, near the street, is a house in which the landlord and various of her family members then lived.
3. There is a concrete driveway on the south-westerly side of the block, running from the street to the rear of the block where the granny flat is situated. This driveway is a little more than one car's width between the side of the house and the fence between the landlord's block and the adjoining neighbour's land.
4. After the lease was entered into, the agent was no longer engaged and all communication concerning the tenancy, including emails and text messages, was between the tenant and the landlord's former husband, Mr Cheng Ding.
5. Mr Ding's involvement was even greater. Tax invoices issued by the electricity provider for the granny flat were addressed to Mr Ding. Negotiations for the refund of the bond (referred to in [2(4)] above) were with Mr Ding and it was Mr Ding who provided a partial refund of the bond to the tenant out of his bank account (and not out of the landlord's bank account).
6. The tenant vacated the premises on 1 December 2018.
7. The Tribunal found that on the day the tenant moved her belongings out of the granny flat there were two cars parked in the driveway. One of those cars was moved at the tenant's request, but the other remained. The effect of the remaining parked car was to substantially impede the moving of larger furniture items and whitegoods (fridge and washing machine) from the granny flat to the street where they could be loaded into another vehicle. We shall refer to this hereafter as the "restricted access" issue.
8. On 27 December 2018, the tenant commenced her application (from which this appeal arises) in the Tribunal for various orders relating to alleged excessive rent, return of the bond (which had not been lodged with the Rental Bond Board) and other matters. She later added a claim for compensation for the restricted access alleging the restricted access was in breach of the term of the lease requiring the landlord to provide reasonable access to the granny flat.
9. Meanwhile, Mr Ding (despite him not being the named landlord on the lease) commenced an application in the Tribunal against the tenant for alleged unpaid rent and electricity charges for the granny flat.
10. On 4 February 2019, the tenant emailed Mr Ding outlining in detail particulars of her claim for compensation for the restricted access.
11. On 15 February 2019, the application commenced by Mr Ding was dismissed by the Tribunal because the Tribunal found he was not the owner of the property, was not the landlord and had no authority to manage the property or represent his wife, the landlord. Although the Tribunal's reasons include the words "manage" and "represent", in context they mean that Mr Ding was not authorised to bring those proceedings on behalf of his wife in his own name, rather than lacking authority to act as her representative had the landlord been named as the applicant.
12. On the same day a conciliation took place at which Mr Ding and the tenant were present. It is not entirely clear, but it appears the landlord was not present at the conciliation. Mr Ding appeared on behalf of the landlord and it appears to have been accepted that he had the authority to do so. Offers were made which included a component for inconvenience caused by the restricted access. The parties were unable to reach agreement as to their various disputes.
13. Subsequently, the Tribunal made orders for the parties to exchange their evidence, including any documents relied upon, in preparation for a hearing of their disputes.
14. The tenant served her evidence and documents upon Mr Ding by post at the landlord's address.
15. At the hearing before the Tribunal the landlord appeared on her own behalf. She said that Mr Ding was, by that time, her ex-husband.
16. The landlord told the Tribunal that she did not have any of the tenant's evidence or documents because Mr Ding had refused to provide them to her although he had received them and had told her what was in them. The landlord said that Mr Ding had not provided the documents to her because he did not want to get into trouble with the Tribunal.
17. The landlord asked the Tribunal for an adjournment on the basis that the tenant's evidence and documents had not been given to her personally.
18. The Tribunal refused the adjournment. The Tribunal said it was satisfied that the landlord had authorised Mr Ding to act as her agent in relation to all matters pertaining to and arising out of the tenancy. By necessary inference, that included acting as her agent for the purpose of receiving correspondence and other documents in relation to the proceedings commenced by the tenant and acting as the landlord's representative at the conciliation.
19. Having refused the application for an adjournment the Tribunal proceeded to hear the matter.
20. Relevantly for this appeal, the Tribunal made the following factual findings.
21. The Tribunal found that the tenant had arranged to move her belongings out of the granny flat on 1 December 2018. The tenant had arranged for a trailer to transport her belongings elsewhere. On that day the landlord was overseas, and her son was due to fly out of Australia that day.
22. On that day there were two cars parked in the driveway. The tenant's partner spoke to the landlord's son who was in the house and who agreed to move both vehicles. However, whilst one vehicle was moved, the other was not. There is no dispute that the car which remained in the driveway belonged to the landlord.
23. The car remaining in the driveway restricted the access available to bring belongings from the rear of the land to the front. Photographs of the offending vehicle and the restriction it caused were before the Tribunal. The belongings which required moving included large furniture items and whitegoods such as a fridge and washing machine. This restricted access caused the move to take twice as long as it should have.
24. The Tribunal found that the tenant was put to great inconvenience by reason of the restricted access. The Tribunal found that this was a breach of the landlord's obligation to provide reasonable access to the leased premises and awarded the tenant $400 compensation for that breach.

Grounds of Appeal

1. The landlord has two complaints. First, that she was denied the opportunity to claim $550 from unpaid rent from the tenant and second, she was denied the opportunity to challenge the tenant's claim for compensation for restricted access with contradictory evidence.
2. The first complaint arises in the landlord's mind because the application commenced by Mr Ding (see [17] and [19] above]), which included a claim for unpaid rent, was dismissed. However, in the proceedings from which this appeal is brought an allowance was made (in the landlord's favour) for unpaid rent in the sum of $550. Put simply, the landlord has been paid that unpaid rent.
3. The second complaint arises because the landlord says she was unaware of the tenant's claim for compensation arising from restricted access issue when she attended the Tribunal for the hearing of the matter, the refusal of her application for an adjournment caused her unfairness because, had she been given the opportunity to do so, she could have called a witness to dispute the tenant's version of events about that restricted access.
4. The landlord says that Mr Ding attended at the Tribunal because he was the named respondent and not her. This is correct, the original application only names Cheng Ding as respondent.
5. The landlord says that Mr Ding informed the Tribunal on 4 February and 15 February 2019 that he was neither the landlord nor the agent of the landlord, and that the Tribunal changed the name of the respondent (on the tenant's application) from that of Mr Ding to that of the landlord, and dismissed the claim commenced by Mr Ding.
6. We note that these assertions do not explain why it is that Mr Ding commenced an application in his own name against the tenant for unpaid rent and electricity charges, and does not explain why Mr Ding made offers to the tenant on 15 February, and made a partial reimbursement to the tenant in relation to the bond, all in the context of the landlord being aware of the contents of the tenant's evidence and all tenancy-related communications being between the tenant and Mr Ding.
7. On this appeal the landlord tenders a statutory declaration declared on 16 April 2019 by Jinzhi Yu. In that declaration Mr Yu says that it was he, and not the landlord's son, who was spoken to by the tenant's partner on 1 December 2018. Mr Yu says the landlord's son was in the shower when the tenant's partner rang the doorbell, Mr Yu answered that call, and was asked to move his car (but not the landlord's car) so that the tenant could park her car where Mr Yu's car was (in the driveway). Mr Yu says he moved his car, returned to the house, asked the tenant's partner whether what he did was good enough, was told "yes", and returned inside the house. He thought the matter was solved, did not mention it to the landlord's son, went with the landlord's son for lunch elsewhere, returned to the house at 1 pm, and drove the landlord's son to the airport around 4 pm.
8. From a photograph tendered to the Tribunal below it is readily apparent that one car in the driveway would substantially impede the ability to move larger items from the granny flat to the street. In those circumstances the logic of a tenant not asking for both cars to be moved, rather than just one, is not readily apparent.
9. The essence of the appeal is that the appellant contends the decision to refuse her an adjournment was in error, and tenders the statutory declaration of Mr Yu to establish that there was substance to her desire for an adjournment.
10. The decision to grant or refuse an adjournment is a decision relating to practice and procedure - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 per Heydon J at [150].
11. Such decisions are discretionary decisions, and the relevant principles to apply in determining whether to set aside such decisions are set out in the decision of Heydon JA, as his Honour then was, and with whom Sheller JA and Studdert AJA agreed, in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45].
12. In that passage his Honour said: "... Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. Even though this Court might conclude that it would have exercised the discretion differently if the discretion had been conferred on it in the first instance - might have adjourned the matter so as to permit the defendants to consider the late-supplied particulars, or might have held the plaintiff to the old particulars, or might have fixed one more "final" date for outstanding matters to be completed by - any such conclusion would be immaterial. The law committed the exercise of the discretion to Garling DCJ. The law permits interference with his exercise of the discretion in only the limited circumstances just described. ..."
13. The appellant's appeal rests on factors (d) and (e) above.
14. In substance, the landlord says that the Tribunal gave insufficient weight to the fact that she had not been given the tenant's evidence personally prior to the hearing (what we shall refer to as Ground 1). She also says that, in the circumstances, the refusal to grant her the adjournment was so unreasonable or unjust as to suggest that one of the categories of error had occurred even though that error did not appear on the face of the reasoning (which we shall refer to as Ground 2). Both Grounds, as we have expressed them, involve questions of law and so the landlord does not require leave to appeal.
15. We shall consider the grounds in reverse order.

Ground 2

1. In relation to a submission that a decision maker arrived at a plainly unreasonable decision (as we shall summarily call it), Bathurst CJ and Leeming JA made clear, in Australian Health Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) NSWCA 61 at [10] that: "It is wrong to seek to apply the references to 'unreasonable or plainly unjust' in that passage in isolation. The premise of this aspect of the test in House v The King is that the reasons do not explain the result reached."
2. In this case that premise has not been satisfied. The Tribunal's reasons do explain the result reached. The Tribunal said it was satisfied that having regard to the evidence (of the matters we have set out at [12] - [13] and [17] - [21] above) that the landlord had authorised Mr Ding to act as her agent in relation to all matters pertaining to and arising out of the tenancy.
3. The landlord does not take issue with that finding on this appeal.
4. Accordingly, as the result reached was explained, Ground 2 fails.

Ground 1

1. When it is alleged that a decision maker gave insufficient weight to a relevant matter deference must be given to the decision of the Tribunal below. Further, it is insufficient for an appellant to merely persuade an appellate body that it would have decided the matter differently. In Australian Health, at [13], Bathurst CJ and Leeming JA said: "... On the one hand, appellate intervention in the exercise of a discretion may be available where insufficient weight has been given to something relevant. On the other hand, it is fundamental that deference is to be given by an appellate court to the discretionary decisions of judges at first instance, insofar as it is insufficient for the appellant merely to persuade the appellate court that it would have decided the matter differently. ..."
2. Their Honours also pointed out that, in citing various authorities with approval, that for this ground of challenge to succeed in relation to a discretionary decision on practice and procedure an appellant needed to persuade an appellate body that, not only was insufficient weight given to a relevant matter, but also that, for that reason, the discretion had been exercised wrongfully or, put another way, the decision was clearly wrong (at [17]). Further, there is a "strong presumption" in favour of the correctness of the decision below (at [18]).
3. On this appeal the appellant says that the Tribunal gave insufficient weight to the fact that she had not been given the tenant's evidence personally. That factor was taken into account by the Tribunal, but the landlord says that insufficient weight was given to it.
4. Although we might have decided the issue differently, we are not persuaded that insufficient weight was given to the factor identified, nor, had that been the case, that the Tribunal's decision was clearly wrong, or that the discretion was exercised wrongfully.
5. The Tribunal is a low-cost jurisdiction and has a heavy workload. In the 2017-18 financial year the Tribunal received 65,000 applications and appeals, a little under 54,000 of which were lodged in the Consumer and Commercial Division, the Division in which the present case was conducted and a little under 30,000 of which were tenancy matters. In that year the Tribunal disposed of 66,000 matters - NCAT Annual Report 2017-2018 at pp.5 and 8. The 54,000 odd Consumer and Commercial Division matters were heard by 86 full and part-time Members which results in an average of approximately 2.5 matters being disposed of by each of those Members every working day.
6. In managing that workload the Tribunal is required to apply the guiding principle of facilitating the just, quick and cheap resolution of the real issues in dispute between parties - s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act").
7. The Tribunal is required to implement its practices and procedures in such a way that the cost to the parties and to the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings - s 36(4) of the NCAT Act.
8. The Tribunal is also required to take such measures as are reasonably practicable to ensure the parties have a reasonable opportunity to be heard - s 38(5)(c) of the NCAT Act.
9. In the present case the landlord had, in our view, been given a reasonable opportunity to be heard. That is, she had authorised Mr Ding to act as her agent in relation to all matters pertaining to and arising out of the tenancy (a finding made below and which is not challenged on appeal) and he had received the tenant's evidence.
10. The amount in issue was $400, and the cost to the parties and to the Tribunal of adjourning the hearing to another date was disproportionate to the issue's importance. Neither was the issue a complex one.
11. Put another way, the landlord had authorised Mr Ding to act as her agent, he had received the tenant's material, the amount in issue was very modest and the issue not complex. The landlord had been given a reasonable opportunity to be heard by her appointment of Mr Ding and his receipt of the material. The fact that the landlord had not been given the documents personally was taken into account by the Tribunal but, in light of all of the other relevant factors, we are not persuaded that that factor was given insufficient weight.
12. Nor are we persuaded that the Tribunal's exercise of discretion was clearly wrong in the circumstances of this case. As the Court of Appeal noted in Micallef at [85], sometimes the exercise of discretions such as this may result in the determination of an issue without a hearing on the merits, but that itself is not necessarily unreasonable or unjust.
13. Accordingly, Ground 1 fails.

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: 29 November 2019