Wang v Peach Tree Drive Pty Ltd [2018] NSWCATAP 10

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wang v Peach Tree Drive Pty Ltd [2018] NSWCATAP 10 Hearing dates: 19 December 2017 Date of orders: 05 January 2018 Decision date: 05 January 2018 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President M Harrowell, Principal Member Decision: (1) The application to reinstate the appeal is dismissed. Catchwords: Reinstatement – reasonable explanation – section 55 of the Civil and Administrative Tribunal Act 2013 Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulations 2013 Residential Tenancies Act, 2010 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Louise Wang (Appellant) Peach Tree Drive Pty Ltd (Respondent) Representation: K Voukidis, real estate agent (Respondent) File Number(s): AP 17/50142 Publication restriction: Unrestricted Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 14 August 2017 and 14 November 2017 Before: M Eftimiou, General Member File Number(s): RT 17/29493, RT 17/33148 and AP 17/38238

reasons for decision

Introduction 1. This appeal arises out of a decision made in the Consumer and Commercial Division of the Tribunal on 14 August 2017 in which the Tribunal refused the appellant's application for an order setting aside an earlier order made by the Tribunal on 16 June 2017 ordering the appellant to pay to the respondent the sum of $1,151.43 and directing Rental Bond Services to pay to the respondent the whole of the bond. 2. In addition, this appeal concerns the appellant's application to reinstate the appeal, it having been dismissed on 14 November 2017. 3. This dispute is complicated and in order to understand the context of the application currently before this Appeal Panel, it is necessary to set its history out in some detail. We do this in the following paragraphs. We shall refer to the appellant as the tenant and to the respondent as the landlord. The parties had entered into a residential tenancy agreement and the Tribunal's jurisdiction arises under the provisions of the Residential Tenancies Act, 2010 (RT Act). 4. The procedural history is as follows: 1. On 19 May 2017 the landlord filled an application (designated as RT 17/23287) which sought an order for the bond to be paid to the landlord. The application alleged that the tenant owed rent totalling $1,151.43 and cleaning charges. The application attached a copy of a tenant trust ledger report which contained the entry that the date of vacating the premises was 11 April 2017; 2. Application RT 17/23287 came before the Tribunal on 16 June 2017. The landlord's representative was present but the tenant was not present. The record of the decision discloses that the Tribunal was satisfied that service of notice of the hearing had been duly served on the tenant and that the Tribunal considered justice required the matter to be dealt with in the absence of the tenant. The decision disclosed that the Tribunal found that the tenant had abandoned the tenancy on or about 11 April 2017. The Tribunal ordered the tenant to pay to the landlord $1,151.43 described as rent from 12 March 2017 to 11 April 2017. Additionally the rental bond board was directed to pay the whole of the bond to the landlord with the requirement that any amount received is to be credited against the above order for the payment of money. The record discloses that the bond was $1,040.00; 3. The Tribunal's file discloses the receipt of an email from the tenant addressed to the Tribunal dated 26 June 2017 to which was attached an email from the tenant to XX@finance.nsw.gov.au. The relevance of that email is that it contains statements in the tenant's email that the tenant vacated the premises on 18 March 2017 but did not return the key then. The email appears to state that the tenant may have lost the key as it fell out of her handbag whilst on a bus. The email suggested that the agent should arrange for a new lock and new key; 4. By application dated 28 June 2017, the tenant filed an application to set aside or vary the Tribunal decision made on 16 June 2017: this new application is designated RT 17/29493. Directions were made by the Tribunal for both parties to make submissions concerning the application to set aside the decision of 16 June 2017. The Tribunal then set the application down for hearing on 14 August 2017. In this application, the tenant was the applicant (i.e. applying to set aside the orders of 16 June 2017) and the landlord was the respondent; 5. The hearing of application RT 17/29493 took place on 14 August 2017 and the Tribunal published orders and reasons on the same day. The Tribunal dismissed the application to set aside the previous orders made on 16 June 2017. The Tribunal's reasons may be summarised as follows: 1. The tenant supplied a large number of emails and correspondence concerning issues arising out of the tenancy but, in the opinion of the Tribunal, none of those issues were relevant to the tenant's obligation to pay rent; 2. On 8 August 2017 the tenant sent an email to the Tribunal advising that due to private reasons she would not be attending the hearing on 14 August 2017. The decision records that the Tribunal refused the tenant's request for an adjournment. A further request for an adjournment was also refused. The basis for these refusals was that insufficient reasons were advanced to support the adjournment and that the medical certificate forwarded was insufficient; and 3. The Tribunal found that the tenant had not provided evidence that the rent ledger provided by the landlord was incorrect. The Tribunal was not satisfied that, although the tenant was not present at the hearing, she had not had an adequate opportunity to put her case. Little of the correspondence provided by the tenant addressed the issue of her obligation to pay rent. The Tribunal was not satisfied that the decision made on 16 June 2017 would have been any different if the tenant had been present. The Tribunal was not satisfied that the tenant's absence resulted in the tenant's case not being adequately put to the Tribunal. 1. Amongst the tenant's submissions which appear to have been filed in support of the application to set aside the decision of 16 June 2017 is an email dated 4 May 2017 from the tenant and addressed to the landlord's agent in which the tenant states that she will deliver the key soon when feeling well; 2. On 28 August 2017 the tenant lodged a Notice of Appeal with the Tribunal appealing against the decision made on 14 August 2017. In that Notice, the tenant states that she does not owe rent for the period of 12 March 2017 to 11 April 2017 ($1,151.43). The tenant also stated that an officer of the landlord's agent agreed to give her the bond back. The tenant further states that she left the subject premises on 18 March 2017; 3. An Appeal Panel of the Tribunal made directions for the parties to file submissions in relation to the appeal and set down the appeal for hearing on 14 November 2017. The tenant sent an email to the Tribunal which appears to constitute her submissions. The submissions do not explain why the tenant was absent from the hearing on 14 August 2017, and nor do they explain the basis for the submission that no rent is payable after 11 March 2017 in circumstances where the keys were not returned until much later; 4. The hearing of the appeal occurred on 14 November 2017. The tenant was not present but the landlord's agent was present. The appeal was dismissed under s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) by reason of the absence of the tenant. The tenant then filed an application for reinstatement of the appeal. A provision is made for reinstatement under s 55(2) of the NCAT Act. That subsection provides: (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure. 1. The tenant's application to reinstate the appeal is contained in an email dated 23 November 2017. Whilst the email goes for several pages, it is only necessary to mention the relevant parts briefly. Essentially the tenant says that she came to the Tribunal hearing but was not allowed to pass through security. It appears that she was requested to open her bags but declined to do so; 2. The Tribunal listed the application for hearing of the application to reinstate and contingently the appeal for a hearing on 14 December 2017 at 2:15pm. The tenant sought an adjournment and that adjournment request was refused. On the morning of the hearing the landlord's agent requested an adjournment on the basis of ill health. As neither party was present, and both had requested adjournments (albeit the tenant's request had been refused), we decided that it was appropriate to adjourn the application and appeal to 19 December 2017 at 2:30pm (being a date that the tenant said she was available). The following directions were made: 1. The application to reinstate and, if reinstated, the hearing of the appeal is adjourned to 19 December 2017 at 2:30pm. 2. In the event a party cannot attend, they have leave to file and serve further written submissions in support of or opposition to the application and appeal, provided they are filed and served by 12 noon on 18 December 2017. 3. Any submissions may be sent by email limited to 10 pages. 4. The application will not be further adjourned other than in exceptional circumstances. 1. Neither party provided submissions as directed by the directions made on 14 December 2017. However, prior to the 19 December 2017, the Tribunal received an email from the tenant seeking an adjournment on the basis she had injured her foot and cannot attend the hearing. A medical report was not provided; 2. The hearing proceeded on 19 December 2017 in the absence of the tenant. The landlord was represented by its agent, Mr K Voukidis. During the hearing we tried to ring the tenant several times on a mobile number we were provided with but there was no response; and 3. At the hearing, Mr Voukidis submitted that the appeal should not be reinstated. He also said that the appeal lacked merit because the landlord was properly entitled to the orders which were made on 16 June 2017. He said rent was not paid for the period from 18 March to 11 April 2017 when the keys were then returned. He also said that there was no agreement between the tenant and the landlord's agent by which the tenant was relieved of an obligation to pay rent after 12 March 2017. Accordingly, in his view, if the appeal were on foot it should be dismissed. 1. The above history constitutes a description of events which have led to the current application to reinstate the appeal and contingently (i.e. if the appeal is reinstated) to determine the appeal.

Application for Reinstatement 1. As mentioned above, s 55(2) of the NCAT Act states that the Tribunal may reinstate an application or appeal if a reasonable explanation for the party's absence has been given for the failure to appear. The tenant attempted to appear on 14 November 2017 but did not do so because, according to her submission, the sheriff or security officer refused her entry as a consequence of her refusal to allow inspection of her bags.

Decision 1. In our view, the tenant has not adequately explained her absence at the hearing on 19 December 2017. There was no medical information supporting her assertion that she was unfit to attend. We were satisfied that the application for reinstatement should proceed in the absence of the tenant. The tenant has had adequate notice of the hearing and an adequate period to provide written submissions. 2. In respect of the tenant's failure to attend the appeal hearing on 14 November 2017, we find that the tenant has not provided a reasonable explanation for the failure to attend. The tenant failed to attend because the security officers in the John Maddison building refused her entry. That occurred because she refused to allow her bags to be inspected. In our view, a party cannot reasonably expect to be allowed entry to the building unless he or she complies with the request of the security officers concerning inspection of bags. Alternatively, if a party is unwilling to allow inspection, they should not bring their bags with them. 3. Our conclusion is that the tenant's absence at the appeal hearing occurred by her own conduct which could have been avoided. Her explanation for her absence is not reasonable. 4. We therefore decline to reinstate the appeal. 5. If we were of the opinion that the tenant's explanation for being absent at the appeal hearing was reasonable, we would still not reinstate the appeal. Under s 55(2) of the NCAT Act, we have a discretion as to whether the appeal should be reinstated. A relevant factor in considering whether to exercise the discretion is the merit of the appeal. To put it differently: does the appeal appear to have merit such that an injustice may arise if the appeal is not reinstated? 6. In our view, there is no error in the decision under appeal. No error has been identified. Nor do we see a question of law or the possibility of an appeal panel granting leave under cl 12 of Sch 4 of the NCAT Act. The Tribunal was exercising the power granted by reg 9 of the Civil and Administrative Tribunal Regulations 2013. Clause 9(1) provides: 9 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. Note. The following provisions of the Act are examples of provisions that expressly confer powers to set aside or vary decisions of the Tribunal: (a) section 45 (3) (which enables the Tribunal to revoke leave granted to a person to represent a party), (b) section 53 (4) (which confers a power on the Tribunal to set aside proceedings and decisions involving procedural irregularities resulting from a failure to comply with provisions of the Act or the procedural rules in relation to the commencement or conduct of proceedings), (c) section 63 (which confers a power on the President or a presiding member to correct obvious errors in decisions of the Tribunal), (d) section 64 (3) (which enables the Tribunal to vary or revoke a non-disclosure order made under section 64), (e) section 73 (3) (which enables the Tribunal to vacate or revoke an order with respect to contempt of the Tribunal). 1. Clause 9 gives the Tribunal a discretionary power to set aside a previous decision (in this case the relevant decision is that of 16 June 2017). In our view, the Tribunal's refusal to exercise the discretion has not miscarried. 2. The essential matter in dispute between the parties is whether the landlord is entitled to the order for payment of $1,151.43 for rent from 12 March to 11 April 2017 (which has been mostly paid from the bond which has been collected by the landlord) or whether no rent is payable from 12 March because the tenant did not live at the premises from that date. 3. A tenant is generally obliged to pay rent to the date the tenant provides vacant possession to the landlord. A tenant who leaves premises but does not return the key to the landlord until a later date will usually be obliged to pay rent to the date the keys are returned. Here, the tenant has had several opportunities to explain why she should not pay from 12 March to 11 April 2017 when, according to her own emails, the keys were not returned until at least 11 April 2017 (and perhaps later). We are satisfied that the facts as found by the Tribunal on 16 June 2017 have not been shown by the tenant to be in error. We are of the view that there is no apparent injustice possibly arising by our refusal to reinstate the appeal.

Orders 1. The Appeal Panel makes the following order: 1. The application to reinstate 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: 05 January 2018