Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Murphie v Chen [2020] NSWCATAP 212 Hearing dates: 9 October 2020 Date of orders: 9 October 2020 Decision date: 19 October 2020 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member J Lonsdale, Senior Member Decision: Appeal dismissed Catchwords: PROCEDURE – civil – judgments and orders amending, varying and setting aside – setting aside – no error demonstrated Legislation Cited: Residential Tenancies Act 2010 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Matthew Murphie (Appellant) Wei Wei Chen (Respondent) Representation: Appellant (Self Represented) M Liu (Managing Agent) (Respondent) File Number(s): AP 20/36041 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 17 August 2020 Before: A J Halstead, General Member File Number(s): RT 20/31969 REASONS FOR DECISION 1. At the conclusion of the parties' submissions on this appeal we announced our decision that the appeal would be dismissed and that we would deliver our reasons subsequently. These are those reasons. 2. The appellant is the tenant of residential premises owned by the respondent. 3. The respondent commenced proceedings in the Tribunal on 2 June 2020 alleging the appellant had failed to pay rent for some 49 days. The respondent sought an order for the termination of the residential tenancy agreement, an order for possession and orders for the payment of rental arrears. 4. The hearing of the respondent's application took place on 23 July 2020. On that occasion the respondent appeared but there was no appearance by the appellant. 5. In its decision the Tribunal said it was satisfied that the appellant had frequently failed to pay rent and ordered that the residential tenancy agreement be terminated immediately with possession to be given to the respondent on the date of termination. The order for possession was suspended until 26 July 2020. 6. The tenant was ordered to pay the landlord the sum of $7,119 immediately (being the arrears of rent) together with a daily occupation fee of $71.43 per day commencing from the day after the date of termination. 7. The following day, on 24 July 2020, the appellant filed an application to set aside or vary the Tribunal's decision. 8. In his materials supporting his application to set aside the Tribunal's decision of 23 July 2020 the appellant said that he was under the impression his hearing date was on the following day, that he suffered from some medical conditions which made it difficult for him to read and process basic dates, numbers, locations and to retain that information. 9. That is a very different explanation to the one he advanced in his oral submissions on the appeal, but as the explanation for his non-appearance is not relevant to the grounds of appeal we need say no more about it. 10. In his application the appellant said that he wanted a revision of the amount owed and the opportunity to have two weeks to move out of the property. He did not dispute the amount of the rental arrears but, in substance, said that the premises were dirty and unclean in a number of respects (to summarise the many allegations made) and that therefore he was entitled to a reduction in the rent he owed. 11. The Tribunal heard the appellant's application to set aside the original Tribunal decision on 17 August 2020. 12. The Tribunal dismissed the appellant's application. 13. The Tribunal said that although the orders were made in the absence of the appellant, and although the Tribunal was satisfied that the appellant's absence resulted in his case not being adequately put to the Tribunal, nevertheless the Tribunal decided that in the exercise of its discretion the Tribunal was not satisfied that there was a real likelihood that it would be unjust to let the decision stand. 14. The Tribunal said that there were significant rent arrears that were undisputed. The Tribunal said that the appellant had provided no evidence of attending to the rent arrears since the Tribunal's orders of 23 July 2020. The Tribunal said that the appellant had had sufficient time to find alternative accommodation. 15. The Tribunal said that the other matters raised by the appellant in his application would not, on balance, have resulted in any different orders on 23 July 2020. 16. The Tribunal then lifted a stay order which had been made on 30 July 2020. 17. The appellant now appeals from the Tribunal's set aside decision of 17 August 2020. 18. In his Notice of Appeal, the appellant identified his grounds of appeal as follows: 1. The reason given by the Tribunal for the dismissal was "significant rent in arrears undisputed". The entire process was based on the appellant disputing rent, therefore how was this a valid reason? 2. The appellant's response and evidence sent to the Tribunal on 12 August 2020 wasn't reviewed before this decision was made. 3. The respondent provided no evidence of its claims or arguments. 4. The appellant had informed the Tribunal on 27 July 2020 that he had been tested for COVID and therefore he had not had sufficient time to find another property because he was unable to attend open homes whilst in isolation. 1. The appellant's first ground of appeal may give rise to a question of law in terms of a constructive failure to exercise jurisdiction if the Tribunal asked itself the wrong question. 2. However, in our opinion the Tribunal did not fall into error. What the Tribunal was referring to was the claim by the respondent for arrears of rent. The Tribunal was correct in observing that the quantum of and liability for those arrears of rent was undisputed. 3. The appellant's real claim was that those arrears of rent should be reduced because of the condition of the premises. However, such is not a defence to a claim for arrears of rent and the appellant never brought an application in the Tribunal seeking, for example, a reduction in rent pursuant to the provisions of the Residential Tenancies Act 2010 (NSW). That is not to say that any such application would have succeeded if it had been commenced, only that the appellant never brought such a claim. In such circumstances the Tribunal did not err in finding that the arrears of rent were undisputed. 4. The appellant next said that his "response and evidence" sent to the Tribunal in support of his application to set aside the original Tribunal decision was not considered. 5. There is no evidence or anything else to indicate, or by which an inference could be drawn, that the appellant's material was not considered. Indeed, the Tribunal expressly referred to the "other matters raised by the tenant in the reinstatement application" which, in our opinion, is a clear reference to the appellant's material (being his "response and evidence"). 6. Accordingly, we are not satisfied that the Tribunal erred in failing to consider the appellant's response and evidence. It was considered but rightly rejected as founding any defence to the claim for arrears of rent. 7. The appellant next submits that the respondent had not provided any evidence for its claims. This is clearly incorrect as the respondent proved the quantum of the arrears of rent and those arrears were not disputed by the appellant (nor were they disputed on this appeal). 8. The final ground of appeal is of no further utility as the appellant subsequently obtained a further stay of proceedings and no complaint is now made that he has had insufficient time to find alternative accommodation. 9. For those reasons all of the appellant's grounds of appeal fail. Orders 1. 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: 19 October 2020