Zhu v Cistulli

Zhu v Cistulli - [2021] NSWCATAP 322 - NSWCATAP 2021 case summary — Zoe

Background and the Decision under review

On 12 November 1999, the Appellant's mother, Ms Yang entered into a Residential Tenancy Agreement (the Agreement) with the Landlords. Relevantly, the Agreement related to residential premises at Concord (the Premises). The Agreement provided for the tenant, Ms Yang, to pay monthly rent initially starting at $380 per week and gradually increasing over subsequent years covered by the Agreement.
It is important to note at this juncture the Appellant was not a party to the Agreement.
It is not in dispute that in March 2020, Ms Yang died. During the appeal hearing, the managing agent for the Landlords, Mr Andriaccio, said the Landlords did not become aware of the death of Ms Yang until the rent became significantly overdue in about December 2020. From the date of the death of Ms Yang, the Appellant, his brother and his girlfriend continued to reside in the premises as occupants up until he vacated on or about 30 June 2021, following the orders made in the Tribunal on 16 June 2021.
The rent ledger included in the papers and filed by the Appellant, discloses that from the time of Ms Yang's death until June 2021, the Appellant continued to pay rent sporadically. He engaged in various communications with the Landlords' managing agent about repairs to the premises. This is important as it confirms the Appellant believed he had a right to request repairs, at a minimum, as an occupant of the Premises.
On 24 May 2021, the Landlords through their agent, lodged an application in the Consumer and Commercial Division of the Tribunal for termination of the Agreement under s.87 Residential Tenancies Act 2010 (the Act). An order was also sought for the Appellant (and the Tenant) to pay rental arrears of $4,980. At the time of the hearing, the rent arrears totalled $5,790. The proceeding was listed for a conciliation/hearing on 16 June 2021. The sound recording reveals the Appellant agreed with the Landlords' position that he had remained living in the premises and was to pay rent of $270 per week.
The Appellant said to the Member that, despite agreeing to pay rent, he had lost his job and his mother's death had left him with "a lot of troubles". He told the Member he was unable to pay rent for the first month and said: "We had an agreement I can pay, just catch up with the money". The sound recording reveals the Appellant making several references to an oral agreement existing with the Landlords' agent regarding when, how and how much he could afford to pay in rent.
Importantly, the Appellant at no stage said to the Member that he was not a tenant and had no obligation to pay rent. Nor did he say that he was not a party to the Agreement. The Appellant now urges the Appeal Panel to determine that the Tribunal below made an error of law on this point.
The sound recording does not reveal the Appellant at any stage saying to the Member that he was unsure about what the hearing was about, or, that the Tribunal could not finally determine the Landlords' claim. On the contrary, at the conclusion of the hearing when the Member asked the Appellant if he understood the nature of the orders he said: "yes I understand". He did not say to the Member that he was not aware, nor did he dispute, that a final order could be, or, was being made.
Given that the Appellant vacated the Premises on 30 June 2021, the only part of the decision in which he seeks the Appeal Panel to review is the money order made in terms that the Appellant is to pay to the Landlords $5,790 immediately and a daily occupation fee of $32.85 per day until he vacated the Premises.
The written reasons cited in the Tribunal's order are: "Rent to 16 January 2020 - $5,790.00". No request for further written reasons was made by either party.

[6]

Scope and nature of internal appeals

An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the Appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, including the often quoted decision in Collins v Urban [2014] NSWCATAP 17 ("Collins"). They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court of Appeal said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
Where the appeal is from a decision made in the Consumer and Commercial Division (other than in respect of interlocutory decisions), there is a further qualification to the possible grant of leave in that we may only go on to consider a grant of leave in the broader sense if we are first satisfied that the elements of cl 12(1) of Sch 4 of the NCAT Act are made out, in 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).
We agree with the Appeal Panel in Collins where it said, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: ... [T]here 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."
We may decide to conduct a new hearing if we are satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning": Yuen v Thom [2016] NSWCATAP 243 at [17].
The Notice of Appeal and the Appellant's written submissions raised three questions: 1. The Tribunal below erred in finding the Appellant as a respondent to the Landlords' application. 2. The Tribunal denied the Appellant procedural fairness in finalising the matter at the hearing on 16 June 2021. 3. The Appellant should be granted leave to rely on evidence that he did not include at the hearing below.
As the Appellant is unrepresented, a broad interpretation of the grounds of appeal should be allowed unless it unreasonably prejudices the respondent(s): Prendergast v Western Murray Irrigation Ltd [2004] NSWCATAP 69. However, there is a proper limit to this process, in that it is not the role of the Appeal Panel to draft grounds of appeal for the Appellant not raised, and then resolve them (ZNX v ZNY [2020] NSWCATAP 41, citing SZTOG v Minister for Immigration and Border Protection [2018] FCA 112), unless the issues go to the jurisdiction of the Tribunal or are otherwise necessarily considered to resolve the appeal.
The requirement to assist an unrepresented litigant is not unfettered. In Bauskis v Liew [2013] NSWCA 297 at [67]- [70] the Court of Appeal said in setting out principles apposite to the Tribunal and matters where neither party is legally represented, as follows (citations omitted): First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties... Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just... Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant... Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant...
It is sufficient, in our view, to note that a thorough review of the Notice of Appeal and the material filed by the Appellant with it take the allegation of error by the Tribunal no further than the grounds as drafted above in paragraph [24].
Whilst we may decide to conduct a new hearing, the parties did not ask us to do so here and we were not satisfied that the grounds for appeal warranted it.

[7]

Reasons for decision

Neither party requested written reasons for the decision below. Our ability to examine the accuracy and adequacy of those reasons is, therefore, significantly curtailed. Ultimately, as will be seen, that curtailment does not prevent us from properly evaluating the Appellant's challenges.
While the Appellant has not formally raised the absence of reasons, or inadequate reasons for the decision as a ground of appeal, because of some of the Appellant's complaints, we consider it appropriate to engage with those issues.
In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, Meagher JA said at 444: It does not automatically follow that because reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there is an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered. … Lastly, it is noted that an appealable error arising from inadequate reasons does not necessarily mean that a new trial is required. An appeal court is entitled to consider the matter and, if appropriate reasons are given, may itself decide the matter. Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: NSW Insurance Ministerial Corporation (formerly GIO of New South Wales) v Mesiti (Court of Appeal, 1 December 1994, unreported).
The requirement of Members to provide reasons for decision in the Consumer and Commercial Division of the Tribunal was discussed in Collins. The following passages of the Appeal Panel's reasons are apposite: [57] A number of propositions can be derived from the authorities concerning the nature and extent of the duty to give of reasons as follows: 1. notwithstanding that there have been many cases (some of which are collected in De Iacovo v Lacanale (1957) VR 553, at pp 558-559) in which it has been held that it is the duty of a judge, magistrate or other relevant decision maker to state reasons, that does not mean that a decision maker must give his or her reasons in every case. There is no "inflexible rule of universal application" that reasons should be given for judicial decisions. Whilst it is no doubt right to describe the requirement to give reasons as "an incident of the judicial process", it is subject to the qualification that it is a normal but not a universal incident - Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667 per Gibbs CJ; 2. the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56] per French CJ and Kiefel J; 3. the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46]per Basten JA; 4. not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] per Basten JA.
In Lam v Dirani [2019] NSWCATAP 244 ("Lam"), the Appeal Panel considered the decision of the Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 ("Orr") and observed at [37] that the President and Ward JA had "expressed some doubt", albeit obiter, as to whether the Tribunal is "duty bound" to provide reasons unless requested to do so in accordance with s 62 of the NCAT Act.
In reliance upon Orr, the Appeal Panel suggested, at [39] that: 1. appellate review does not involve examining reasons with a "fine-tooth comb and looking for any error", but requires consideration of whether the text of the reasons "conveys what needs to be conveyed"; 2. reasons need not be formulaic in format or expression, and must be considered "holistically"; 3. the standard is not "perfection", but whether the "minimum acceptable standard in the circumstances has been met"; 4. the quantity and quality of reasons depends on the circumstances, such as the nature of the case and of the power being exercised; and 5. in particular, the quantity of reasons required of Tribunal members must be considered in the light of the "substantial workload and time pressures of the Tribunal".
We have listened to the sound recording tendered as part of the Appellant's material. The Member did not specifically say 'these are my findings' or words to that effect during, or at the conclusion of the hearing. However, the sound recording reveals, for the reasons set out below, that oral reasons were given by the Member as the hearing progressed. We are not aware of any authority which establishes that the reasons for decision of the Tribunal which emerge during the course of a hearing cannot be adequate.
In our view, given the nature of the Consumer and Commercial Division's tenancy jurisdiction, and in view of the observations of the Court of Appeal in Orr, we are satisfied by the contents of the sound recording of the proceedings, that, if the Tribunal was obliged to provide reasons, it did so, and its reasons were "adequate".

[8]

Relevant provisions of the Residential Tenancies Act 2010

The following provisions of the Residential Tenancies Act 2010 ("the RTA") are relevant in this appeal.
Section 6 provides as follows: 6 ACT APPLIES TO EXISTING AND FUTURE RESIDENTIAL TENANCY AGREEMENTS This Act applies to residential tenancy agreements in respect of residential premises whether made before or after the commencement of this section.
Section 13 provides: 13 AGREEMENTS THAT ARE RESIDENTIAL TENANCY AGREEMENTS (1) A "residential tenancy agreement" is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence. (2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing. (3) An agreement may be a residential tenancy agreement for the purposes of this Act even though - (a) it does not grant a right of exclusive occupation, or (b) it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities. Note: See section 8 for agreements that are not covered by this Act. Section 7 sets out premises not covered by this Act
When determining an application under the RTA, s 187 provides for orders the Tribunal can make: 187 ORDERS THAT MAY BE MADE BY TRIBUNAL (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders-- (a) an order that restrains any action in breach of a residential tenancy agreement, (b) an order that requires an action in performance of a residential tenancy agreement, (c) an order for the payment of an amount of money, (d) an order as to compensation, (e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement, (f) an order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined, (g) an order that requires rent paid to the Tribunal to be paid towards the cost of remedying a breach of the residential tenancy agreement or towards the amount of any compensation, (h) an order directing a landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations, (i) a termination order or an order for the possession of premises, (j) an order directing a landlord or landlord's agent to give a former tenant or person authorised by a former tenant access to residential premises for the purpose of recovering goods of the former tenant or fixtures that the former tenant is entitled to remove. [Our emphasis]

[9]

Findings as to payment of rent and an occupation fee

We accept the Appellant could not have been a party to the Agreement. However, that is of no consequence given the following findings.
It is very clear in s 62 of the NCAT Act that a person may request reasons for a decision to be provided, s 62 provides: 62 TRIBUNAL TO GIVE NOTICE OF DECISION AND PROVIDE WRITTEN REASONS ON REQUEST (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. … (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.
In his oral submissions in the appeal, the Appellant confirmed he did not request written reasons for decision and therefore, they are not before the Appeal Panel.
However, having listened to the sound recording of the proceedings, it was open to the Member in our view to find, and he did so find, that a residential tenancy agreement was in existence between the Appellant and the Landlords. Whilst not specifically referring to s 13 of the RTA, we are satisfied of the matters set out below.
The Appellant agreed during the hearing that he and his family were in occupation of the Premises and that they wished to remain so. He agreed that he had an oral agreement with the Landlords' agent about the payment of rent of $270 per week. The evidence reveals he had been paying part rent in furtherance of his occupation of the Premises and the oral agreement. In the Appellant's papers filed in this appeal, he evidences communication passing between himself and the Landlords' agent concerning repairs to the Premises, which supports the Member's finding that he was in a contractual relationship with the Landlords concerning his occupation of the Premises.
In our view, what is implicit in the comments made by the Member during the hearing, is that the Appellant accepted an oral agreement had been reached between himself and the Landlords for occupation of the Premises. It is further apparent from the sound recording that the Member found the Appellant had partly performed the oral agreement. The appellant said to the Member: "We had an agreement. … I just have to catch up with the money." The Appellant gave evidence that he failed to meet the terms of that agreement, that is, he failed to pay rent on time. The Member made findings to this effect during the hearing. In any event, there is no appeal against the adequacy of the Tribunal's reasons for its decision (Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33).
In making these findings, it was also open to the Member to make an order for the Appellant to pay rent under s 187 of the RTA and to make an order for termination.
We find the Appellant has failed to demonstrate any error of law made by the Member in making an order for the Appellant to pay to the Landlords outstanding rent and the ongoing occupation fee. The first ground of appeal fails.
We now turn to the remaining grounds of appeal.

[10]

Ground 2 - Denial of procedural fairness

The Appellant contends the notice he received on or about 24 May 2021 notifying him of the conciliation/hearing listed for 16 June 2021 did not specify the Tribunal could finalise the matter. He says he thought there would another hearing. We reject his contention.
We note the Tribunal's pro-forma notice of hearing includes the following text: the matter may be "finalised" on the day of the conciliation/hearing ("the Notice"). A copy of the Notice encapsulating these words is included in the evidence before us.
In his written submissions, the Appellant says he attended the hearing by telephone and he did not submit any documentation or make any written submissions at that hearing. We note his failure to do so is in contravention of the directions in the Notice requiring him to provide and serve all material to be relied on within 14 days from 24 May 2021. Contrary to this, the Appellant made oral submissions at the hearing.
The Notice, together with the evidence given by the Appellant at the hearing on 16 June 2021, leads us to the conclusion that the Appellant has not demonstrated that he was denied procedural fairness. To contend such a ground is disingenuous particularly having had the benefit of listening to the sound recording. The Appellant engaged with the Member. He gave evidence of an agreement to pay rent. He proffered several reasons why he had not paid rent and that he wished to remain in the Premises. He did not say that he was unaware the Tribunal could finalise the matter before or after the decision was announced. He also did not raise with the Member that he was not a party to the Agreement, or, that the Tribunal had no jurisdiction to make an order which binds him.
The Appellant also contends the Member did not state what the hearing was about. We reject his contention. The sound recording reveals the Member clearly announcing the hearing and its purpose. The Landlords' agent said an order was being sought for termination, a money order, payment of the bond and termination if required. We have no doubt that the Appellant was aware of what the hearing was about.
At no stage during the hearing did the Appellant raise this point in any respect with the Member. The Appellant actively engaged with the Member in arguing that he wished to remain in occupation and pay rent in accordance with an oral agreement. He set out reasons why he could not pay the rental arrears of $5,970 which, included him being out of work and his mother leaving "trouble" for him financially. At the conclusion of the hearing, the Appellant told the Member he understood the orders made which included the making of a money order. This ground of appeal also fails.

[11]

Ground 3 - Evidence which was not presented in the hearing at first instance

The Appellant also seeks that leave be granted to rely upon evidence that was not put before the Tribunal below. The Appellant in oral submissions agreed that the additional evidence was available at the 16 June hearing. He said he chose not to rely on this evidence because he thought the hearing was not the final hearing. As indicated above, at no stage did he raise this issue before the Member at the 16 June hearing. He failed to comply with the directions made by the Tribunal in preparation for the hearing in not serving his evidence. He made no application for the matter to be adjourned so he could file his evidence.
We find that the Appellant had sufficient notice of the 16 June 2021 hearing and the potential outcomes that could arise. He decided not to file any evidence nor did he raise any defence at that hearing.
Importantly, the Appellant's evidence with respect to the state of the property is not relevant to the Landlords' claim for rent, except, if it was allowed, it is evidence that supports the finding made by the Member that the Appellant was in occupation of the premises subject to an oral agreement. The evidence relates to the state of the Premises and a potential claim for compensation. This appeal, and the hearing below, does not pertain to a claim for compensation for repairs to the Premises or its habitability. No claim of that kind has apparently been made in any event. Evidence about those matters could not have any bearing upon an appeal against the decision of the Tribunal.
The Appellant did not identify the basis upon which his "new" evidence should be received in the appeal. Clause 12(1) of Schedule 4 to the NCAT Act empowers the Appeal Panel to grant leave to appeal "only" if it is satisfied that the Appellant "may have suffered a substantial miscarriage of justice", inter alia, because "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)" (clause 12(1)(c)). The meaning of "may have suffered a substantial miscarriage of justice" has been identified earlier in our reasons, at paragraph [22]. As recorded earlier in these reasons, the evidence now sought to be relied upon was available at the time the proceedings under appeal were being decided. In those circumstances, clause 12 could not be enlivened. Even if the evidence had not been reasonably available at first instance, for the reasons recorded above at paragraph [58], it would not be "significant" in accordance with clause 12.
In Lauron v Michael [2021] NSWCATAP 129, an appeal against a decision of the Consumer and Commercial Division of the Tribunal, at [21] - [32], the Appeal Panel reviewed a number of authorities concerning the circumstances in which "fresh" evidence may be received in an appeal. The Appeal Panel concluded that the "requirements" for the admission of "fresh" evidence were that the evidence was not reasonably available at the original hearing, and that, had it been, there was "at least a firm chance that the result would have been different". The term "fresh evidence" finds expression in s 80(3) of the NCAT Act, which has application when an appeal proceeds by way of "new hearing". As noted earlier in these reasons, this appeal has not proceeded by way of a new hearing. Section 80(3) of the NCAT Act thus cannot assist the Appellant.
In Ros v Commissioner of Police [2020] NSWCATAP 70 (Ros), an appeal against a decision of the Administrative and Equal Opportunity Division of the Tribunal, at [31] - [35], the Appeal Panel reviewed a number of authorities concerning the circumstances in which "additional" or "further" evidence may be received in an appeal. The Appeal Panel concluded at [33] that, "generally speaking", to be received, further evidence would have to relate to the decision under appeal, and have been evidence which was relevant at the time of that decision. Whether it is "likely the further evidence would have produced a different result at the Tribunal is relevant" in an application to adduce further evidence, as is "potential prejudice" to the other party if the evidence is received. The Appeal Panel observed that if the evidence is received, it would establish that "serious injustice" has resulted, or will result from the Tribunal's exercise of discretion, which may also be relevant.
As this is an appeal from a decision of the Consumer and Commercial Division of the Tribunal, having regard to the terms of clause 12 of Schedule 4 to the NCAT, which clearly are applicable to the Appellant's application, we do not consider that our approach to the Appellant's application can permissibly be informed by the criteria discussed by the Appeal Panel in Ros. Even if it could, for the reasons recorded above, the application would be refused.
For these reasons, and particularly the absence of any nexus between the further evidence and the decision under appeal, we are not satisfied that the Appellant should be granted leave to rely upon the evidence, irrespective of how it is categorised.
We reject the Appellant's application for leave to adduce evidence which was not relied upon at first instance.

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Judgment (16 paragraphs)

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Legislation Cited (2)

Cases Cited (16)