Adelaide River Resources NT v Song [2014] NSWCATAP 114

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Adelaide River Resources NT v Song [2014] NSWCATAP 114 Hearing dates: 10 December 2014 Decision date: 23 December 2014 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President R Titterton, Principal Member Decision: In respect of proceedings RT 14/20558 and RT 14/31867 1. Leave to appeal from the decision of the Tribunal on 15 July 2014 not granted. 2. Appeal dismissed 3. The appellant's application to reinstate proceedings RT 14/25227 is upheld and the Appeal Panel orders that such proceedings be reinstated pursuant to s55(2) of the Civil and Administrative Tribunal Act 2013. AP 14/46542 1. Leave to appeal from the decision of the Tribunal on 15 August 2014 not granted. 2. Appeal dismissed Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL (NSW) - appeal lodged out of time - principles applicable to out of time appeals Legislation Cited: Civil and Administrative Tribunal Act 2014 (NSW) Civil and Administrative Tribunal Regulation 2013 Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act 2010 (NSW) Cases Cited: Di Salvo v Leung [2014] NSWCATAP 44 Kline v NSW Housing [2014] NSWCATAP 41 Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Category: Principal judgment Parties: Adelaide River Resources (NT) Pty Ltd (appellant) Jiangju Song (Respondent) File Number(s): AP 14/46523; AP 14/46542 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Before: Member P Smith (18 June 2014); Member B Howe (15 July 2014); Member F Hollis (15 August 2014) File Number(s): RT 14/20558RT 14/31867

reasons for decision

Introduction 1. These appeals were heard on 10 December 2014. After a brief adjournment at the conclusion of the hearing the Appeal Panel announced to the parties the orders it proposed to make and accordingly made the orders set out on the cover page. The Appeal Panel informed the parties that its reasons would be published later. These are those reasons.

Background 1. These reasons concern appeals brought by a tenant (Adelaide River Resources (NT) Pty Ltd) arising out of decisions of the Consumer and Commercial Division of the Tribunal with respect to a residential tenancy agreement in which the respondent to the appeal is the landlord. 2. At the hearing the tenant was represented by its director Mr Nicholas Byrne. The landlord was represented by her agent Ms Mary Hill. 3. There are two appeals. The first appeal (AP 14/46523) involves an appeal from two different decisions, respectively made on 18 June 2014 and 15 July 2014. The second appeal (AP 14/46542) involves an appeal from a decision made on 15 August 2014. 4. In respect of the first appeal, the tenant appeals from a decision of the Tribunal made on 15 July 2014 refusing the tenant's application to set aside (pursuant to Regulation 9 of the Civil and Administrative Tribunal Regulation 2013 (the Regulations)) a decision of the Tribunal made on 18 June 2014 in which the tenant was ordered to pay arrears of rent and water usage charges to the landlord. On the same day (18 June 2014) the Tribunal dismissed the tenant's separate application in proceedings RT 14/20558 by reason of the tenant not appearing at the Tribunal hearing. We will refer to these two appeals as the first appeal. 5. The appeal which we refer to as the second appeal arises out of a decision made on 15 August 2014 by which the residential tenancy agreement between the tenant and landlord was terminated. 6. The first appeal was commenced by a Notice of Appeal filed in the Tribunal on 14 August 2014 and for reasons which will be made clear later in these reasons that appeal was filed out of time. Accordingly, leave to appeal is required. 7. The second appeal was commenced by a Notice of Appeal filed in the Tribunal on 5 September 2014 and also appears to have been filed out of time. We will explain the chronology later in these reasons and deal with the question of whether leave to appeal is required.

Appellant's contentions in respect of the first appeal 1. The background to the first appeal is set out below. 2. The tenant received a notice from the Tribunal dated 22 May 2014 advising the tenant that the landlord's application (in which the tenant was the respondent) had been transferred to the Tribunal's Hurstville Registry and that a notice of hearing would be sent shortly. However, it appears from the landlord's contentions and the Tribunal's file that the notice of the 22 May 2014 was sent in error and was corrected by the issue of a second notice advising that the 22 May 2014 notice was sent in error. The tenant contends that the correcting notice was not received. 3. The Tribunal then sent a notice of listing advising the parties of the hearing on 18 June 2014 and that the venue would be the Tribunal's City Registry in Castlereagh Street Sydney. The tenant contends that it did not receive that notice of hearing and based upon a telephone enquiry following receipt of the incorrect notice, attended the Hurstville Registry on 18 June 2014. 4. In the result, the Tribunal made the orders referred to above in the absence of the tenant and, in addition, the Tribunal dismissed the tenant's separate application by reason of the non-appearance of the tenant. 5. The tenant then made an application to set aside the orders referred to above concerning the payment of rent arrears and water usage. That "set aside" application was refused. The basis for the refusal contained in the Member's decision published on 15 July 2014 was that: "The tenant went to the Hurstville Registry by mistake and has not provided any evidence to demonstrate a change in venue. The tenant has not shown, in an unsworn application, what other orders the Tribunal could have made". 1. The tenant now appeals from the decision of 15 July 2014 on the basis that it has suffered a substantial miscarriage of justice in that the decision was not fair and equitable and was made against the weight of evidence. 2. The Notice of Appeal does not state what case the tenant would have put had it been present at the Tribunal hearing on 18 June 2014. Similarly, the tenant does not assert that the application to set aside the decision of 18 June 2014 included an explanation of the case which the tenant might have put had the tenant been present on 18 June 2014. 3. However, at the appeal hearing the tenant informed the Appeal Panel that the tenant had complaints against the landlord arising out of alleged breaches by the landlord of obligations to repair and maintain the rented premises and that one consequence of the landlord's failure to maintain was the fact that the swimming pool leaked. That in turn resulted in the tenant being charged excessive water charges. The tenant wanted to raise those matters by way of defending the application which was heard on 18 June 2014. At the appeal hearing Mr Byrne acknowledged that the tenant had deliberately not paid rent and water charges on time because of the issues which it wanted to agitate against the landlord. 4. At the appeal hearing the parties were asked to indicate the current state of the amounts which each said was due and owing between them. The tenant's contention was that the rent had now been paid to 18 December 2014, but that water usage had not been paid because of the tenant's contentions that the amount charged was improper by reason of the matters referred to above. The landlord's representative contended that the rent currently outstanding amounted to $2,000 and that there was arrears of water usage charges in the sum of $1,802.74. 5. The second aspect of this first appeal concerned the order made by the Tribunal dismissing the tenant's application. That application concerned the tenant's claims that the landlord had failed in its duty to repair and maintain the rented premises.

Landlord's contentions in respect of the first appeal 1. The landlord opposed the first appeal and stated that the tenant owed the amounts the subject of the orders made on 18 June 2014.

Appeal Panel's Decision with respect to the first appeal 1. The tenant's appeal from the decision of 15 July 2014 which refused the tenants application to set aside the orders made on 18 June 2014 is an appeal from a decision made by the Tribunal in exercise of a power conferred on the Tribunal by regulation 9 of the Regulations. The provisions of regulation 9(1) are as follows: Additional power to set aside or vary decision determining proceedings (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. 1. In this case the basis for the decision of 15 July 2014 was twofold. Firstly there was no evidence to demonstrate a change in venue and therefore no evidence of the basis for the tenant's mistake in attending the Hurstville Registry. Secondly, there was no evidence provided by the tenant of what other orders the Tribunal could have made. 2. For the purposes of this appeal the Appeal Panel accepts the tenant's explanation that Mr Byrne mistakenly attended the Hurstville Registry on 18 June 2014. That mistake was caused by the communication of 22 May 2014 from the Tribunal and, further, that the correcting communications from the Tribunal were not received by the tenant. 3. However, regulation 9(1)(b) requires the Tribunal to be satisfied that a party's absence resulted in the party's case not being adequately put to the Tribunal. The Member who refused the set aside application was clearly not so satisfied and indicated that finding in the brief reasons given for refusing the set aside application. Mr Byrne was not able to demonstrate to the Appeal Panel that the tenant had a case which was explained in the set aside application but which was not given due weight by the Member who refused the set aside application. The case which the tenant would have put to the Tribunal on 18 June 2014 (which was not included in the set aside application) was that the tenant had complaints against the landlord and had withheld the payment of rent and water charges. Those matters were also agitated in the separate application brought by the tenant. 4. Under the Residential Tenancies Act 2010 (NSW) (the RTA) tenants have obligations to pay rent and other charges agreed to be paid under the Residential Tenancies Agreement. Rent must be paid in accordance with s33 of the RTA and water usage must be paid in accordance with the provisions of s39 of the RTA. If tenants assert that they have claims against their landlord for breach of the landlord's obligations to repair and maintain, such claims do not provide a reason for the tenant to not pay rent and or water usage charges. Rather, the appropriate course, which in this case the tenant also adopted, is to commence a separate application for remedies by reason of the landlord's breach of its obligations. 5. Accordingly, it is not apparent to the Appeal Panel, and was not apparent to the Member who refused the set aside application, what the case of the tenant would have been, and which was not adequately put, at the Tribunal hearing on 18 June 2014. 6. In these circumstances, no basis has been established which would cause the Appeal Panel to consider it appropriate to conclude that the decision refusing the set aside application was made in error or has resulted in a substantial miscarriage of justice. 7. Therefore the appeal with respect to the decision of 15 July 2014 must be dismissed. 8. In addition, the appeal was not filed within the time required by the Civil and Administrative Tribunal Rules 2014 (the Rules). Rule 25 provides for time limits to apply for the filing of appeals. Rule 25(4) provides that an appeal must be lodged in the case of an internal appeal against a decision made in residential proceedings within 14 days from the day in which the appellant was notified of the decision or given reasons for the decision (whichever is the later). These are residential proceedings. The time period may be extended upon application under section 41 of the Act. In this case the decision was made on 15 July 2014 and therefore the deadline for the filing of the appeal is arguably 29 July 2014. The appeal was lodged on 14 August 2014. The tenant states that it first received notice of the decision of 15 July 2014 on 21 July 2014 and, if so, then the deadline for the filing of the appeal would be 4 August 2014. 9. The tenant did not provide an explanation for the delay in filing the appeal. However, the appeal panel has given consideration to whether the time should be extended. The Tribunal has in previous cases outlined the issues which must be considered in considering whether time should be extended under section 41 (see Di Salvo v Leung [2014] NSWCATAP 44). These matters include the length of the delay, the reason for the delay and the extent of any prejudice suffered by the respondent as well as the appellant's prospects of success (that is whether the appellant has a fairly arguable case). In addition the discretion to extend time can only be exercised in favour of an appellant or applicant upon proof that strict compliance with the rules will work an injustice. 10. The Appeal Panel's decision is not to extend time. In the context of residential proceedings the length of the delay is excessive, no adequate reason for the delay has been provided and the appellant's prospects of success are poor. In addition it is not apparent to the Appeal Panel that any injustice will occur by reason of the refusal of the Appeal Panel to give leave to extend the time for the filing of the appeal. 11. Accordingly, leave to appeal will be refused. 12. The second aspect of the first appeal concerns the decision to dismiss the tenant's application on 18 June 2014 by reason of the tenant's absence at the hearing. 13. At the Appeal Hearing, the Appeal Panel drew attention to the provisions of section 55 of the Civil and Administrative Tribunal Act 2014 (the Act) which enables the Tribunal to dismiss an application by reason of the absence of the applicant and also, pursuant to section 55(2), enables the Tribunal to reinstate proceedings which have been dismissed upon a reasonable explanation being given. 14. The tenant's explanation in this case for its absence at the hearing of the tenants application has already been outlined and arises by reason of the tenants mistaken attendance at the Hurstville Registry. The landlord was not able to produce evidence that the tenant in fact had notice of the hearing at the Castlereagh Street Registry. In these circumstances, the Appeal Panel finds that the tenant's absence at the hearing can be reasonably explained and that the tenant's application should be reinstated for the reasons further explained in the following paragraph. 15. Unless the Tribunal extends time under s41 of the Act an application for reinstatement must be made within 7 days after the Tribunal dismissed the proceedings. Here the delay in seeking reinstatement was very long. However there is no evidence that the landlord will be prejudiced by the reinstatement. The merits of the application are not clear but it is the view of the Appeal Panel that an injustice may accrue to the tenant if reinstatement is not permitted. The time is extended under s41 and an order for reinstatement was made.

Appellant's contentions in respect of the second appeal. 1. The tenant's representative contends that he first received notice of the hearing on 15 August 2014 by a Tribunal notice which was received on 13 August 2014. The notice from the Tribunal was dated 7 August 2014. The tenant applied by letter to the Tribunal dated 14 August 2014 for an adjournment until after 6 October 2014 on the basis that the tenant's representative (Mr Byrne) had already booked a flight overseas departing on the evening of 14 August 2014. That adjournment request was dealt with at the hearing on 15 August2014 and was refused. 2. The basis for the Tribunal's refusal of the adjournment application is stated in the Tribunal's reasons as follows: "On 15-Aug-2014 the following orders were made: 1. The application by the respondent to adjourn is refused because: a) the other party is in attendance with evidence and so would be disadvantaged. b) This is a Ninety Day Notice of Termination. The tenancy has been the subject of previous orders in this Tribunal or its predecessor .. " 1. At the appeal hearing the tenant's representative acknowledged that the tenant had two directors, one being Mr Byrne and the other being his wife. Mr Byrne stated that Mrs Byrne could not have attended the hearing on 15 August 2014 because she was not well equipped to deal with the issues that would arise at the hearing. No other explanation for her inability to attend was provided. 2. At the appeal hearing Mr Byrne was asked whether at the time of the hearing on 15 August 2014 the rent was up to date. His response was that the rent was "pretty close to being up to date" and that there were "some deductions for repairs and maintenance". In addition the Appeal Panel enquired of Mr Byrne as to what matters he would have put to the Tribunal had he been present on 15 August 2014. Again he said that he would have presented documents demonstrating the landlord's failure to repair and maintain the premises. 3. The tenant's submission was to the effect that the tenant had been denied an opportunity to be heard by reason of the inability of Mr Byrne to appear at the hearing and that the decision made as a consequence terminating the tenancy was not fair and equitable. 4. The Notice of Appeal referred to the fact that by reason of the tenant's absence at the hearing the tenant was not able to present evidence or supporting documentation. The Notice of Appeal suggests, and Mr Byrne confirmed at the appeal hearing, that this documentation and evidence concerned the tenant's allegations which are the subject of the tenant's application which will be reinstated. 5. In addition, at the appeal hearing the tenant submitted that there were ongoing negotiations between the parties for the sale of the tenanted premises to the tenant and that it would be unfair for the tenant to have to vacate the premises (pursuant to the termination order) only to return following becoming the purchaser of the premises.

Landlord's contentions with respect to the second appeal 1. The landlord's representative submitted that the landlord had issued a 90 day termination notice under section 85 of the RTA and there was no suggestion by the tenant that that notice was not valid. There was no defence which the tenant could have put to the Tribunal had the tenant been present at the hearing on 15 August 2014 and accordingly the appeal should be dismissed.

The Appeal Panel's decision with respect to the second appeal 1. The opinion of the Appeal Panel is that the tenant was given an opportunity to be heard on 15 August 2014 but elected not to take up that opportunity. If the tenant's assertions are to be accepted the tenant had only two days' notice in which to arrange for representation at the hearing on 15 August 2014. No adequate explanation is given as to why the other director could not have appeared at the hearing and no explanation at all was given as to why another person could not have represented the tenant at the hearing on 15 August 2014. 2. In addition the adjournment application appears to have been premised upon the basis that only Mr Byrne could represent the tenant as the adjournment application was that the hearing be adjourned to a date after Mr Byrne's return from overseas. The tenant did not make an application for a short adjournment to enable someone else instead of Mr Byrne to attend an adjourned hearing before the Tribunal. 3. The tenant undoubtedly had a right to a reasonable opportunity to be heard. Previous decisions of the Appeal Panel of the Tribunal have confirmed that such an opportunity is to be acknowledged by the Tribunal in its proceedings (see Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41 at paragraphs 62 and 63). In this case the tenant had notice of the hearing and, notwithstanding the relatively short period of notice, there is no adequate explanation as to why someone could not have appeared for the tenant at the hearing. In coming to this conclusion the Appeal Panel has had regard to the requirements of procedural fairness and to the characteristics of such requirements as explained by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] where the Chief Justice said that: "fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice". 1. In this case a further consideration is the nature of the proceedings themselves. The landlord had commenced an application for termination of the tenancy following the issue of what is known as a "no grounds" notice of termination. Section 85 of the RTA provides: Termination of periodic agreement (1) A landlord may, at any time, give a termination notice for a periodic agreement. (2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given. (3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more. 1. It is relevant that in the case of a periodic agreement (and the tenant did not argue that this residential tenancy was not a periodic agreement) a landlord may, at any time, give a termination notice that specifies a termination date not earlier than 90 days after the date on which the notice is given. 2. If the landlord issues a notice in conformity with section 85 then the Tribunal "must" (see s85(3)) on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. 3. There was no submission made that the Tribunal had acted otherwise than in accordance with section 85(3). Rather, the tenant's primary point was the lack of notice of the hearing. 4. The tenant stated that it would not be fair for the termination order to remain in place because it was in negotiations with the landlord to purchase the property. The unfairness would arise if the tenant was successful in purchasing the property and, having vacated the property as a consequence of the termination order, would be required to incur both the expense of vacating and the expense of moving back in as the successful purchaser. Mr Byrne did not canvass the possibility in his submissions as to whether there would be unfairness to the landlord arising by permitting the tenant to stay in the property and then if the purchase did not proceed, the landlord may be obliged to commence further proceedings against the tenant to have the property vacated. 5. Essentially, the tenant's main submission is that there has been an error of law by a failure to afford the tenant procedural fairness in that the period of notice was inadequate and that an adjournment should have been granted as requested. 6. However, the Appeal Panel finds that the tenant was given a reasonable opportunity to be heard and that the adjournment application was reasonably refused. Furthermore, the Appeal Panel finds that no injustice has arisen by reason of the decision made on 15 August 2014 because the tenant has not been able to provide any submission which would lead to the possible conclusion that had the tenant been present on 15 August 2014 a different outcome would have been achieved. 7. Finally, the Appeal Panel notes that this appeal was filed on 5 September 2014. The decision of the Tribunal was made on 15 August 2014 and order 7 of the Tribunal's orders made on that day required the landlord to advise the tenant in writing by 6pm on 18 August 2014 of the orders that were made. There is no contention by the tenant that that order had not been complied with even though in the Notice of Appeal the tenant stated that it had first received notice of the decision on 21 August 2014. On the basis that the tenant had notice on 18 August 2014 the deadline for filing an Appeal would have been 1 September 2014. On the basis that the Appeal Panel accepts that the tenant did not have notice of the decision until 21 August 2014 the Notice of Appeal should have been filed on 4 September 2014. It was in fact filed on 5 September 2014. 8. The Appeal Panel is of the view that the time should not be extended under section 41 of the Act primarily because the Appeal Panel is not satisfied that the tenant has established that any injustice will accrue to the tenant by reason of requiring strict compliance with the rules. Accordingly, the Appeal Panel has declined to give leave to appeal. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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

Amendments 16 January 2015 - added members to coversheet 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: 16 January 2015