Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Djakovic v Brown [2020] NSWCATAP 279 Hearing dates: 1 December 2020 Date of orders: 21 December 2020 Decision date: 21 December 2020 Jurisdiction: Appeal Panel Before: K Ransome, Senior Member M Gracie, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: APPEAL — no question of law - leave to appeal from decision of Consumer and Commercial Division of NCAT - leave to appeal refused RESIDENTIAL TENANCY - termination of residential tenancy agreement - non-payment of rent - loss of employment or income - whether a result of the impact of the COVID-19 pandemic - s 228B Residential Tenancies Act 2010 (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulations 2019 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Serious v Barlow; Barlow v Serious [2020] NSWCATAD 3 Texts Cited: None cited Category: Principal judgment Parties: Boris Djakovic (Appellant) Jeffrey David Brown (Respondent) Representation: Appellant (Self Represented) V Kelly (Agent) (Respondent) File Number(s): AP 20/41565 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 September 2020 Before: S Sutherland, General Member File Number(s): RT 20/22332 REASONS FOR DECISION Background 1. The respondent to this appeal, Mr Brown, is a landlord. He filed an application in the Tribunal on 21 May 2020 (Application) seeking orders under s 87 of the Residential Tenancies Act 2010 (NSW) (RTA) terminating a residential tenancy agreement with the appellant and his wife as tenants, Mr and Mrs Djakovic. 2. The following facts that we set out by way of background do not appear to be in dispute. 3. The respondent relied upon a failure by the appellant to pay rent as the ground for terminating the residential tenancy agreement. By the time of the hearing of the Application by the Tribunal on 16 July 2020, a sum of $7,051.39 for rent was in arrears for the period 24 April 2020 to 16 July 2020. 4. The appellant challenged the termination on the basis that they were COVID-19 pandemic impacted within the meaning of Part 13 of the RTA, and in particular s 228B. Section 228B of the RTA is set out in [2] of the Tribunal's reasons. 5. Between the date of the hearing and the publication of the Tribunal's reasons on 25 September 2020, some rent was paid in an amount of $109 per week but no further rent was paid for the period 7 August 2020 to 7 September 2020. Thereafter, the appellant made weekly payments of $125 so that by the date of the Tribunal's decision, there was an amount outstanding for rent of $13,660.39 based on 109 days in arrears with an effective "rent paid to date" of 5 May 2020. 6. The Tribunal made a finding that the appellant was not COVID-19 pandemic impacted. The Tribunal found that in accordance with s 89(5) of the RTA, the appellant had frequently failed to pay rent owing for the residential premises. The Tribunal terminated the residential tenancy agreement with immediate effect and suspended the order for possession until 9 October 2020. 7. The Tribunal ordered payment of rental arrears of $7,051.39 by 25 November 2020 and the payment of a daily occupation fee from 26 September 2020 at the rate of $84.29 per day until vacant possession was given. 8. Vacant possession was provided on 19 October 2020. 9. The only issue before the Tribunal and raised on this appeal was whether the appellant established that he was COVID-19 pandemic impacted having regard to the matters set out s 228B of the RTA. The Tribunal's Decision 1. Mr Djakovic challenged the validity of the termination notice because he contended that cl 41C of the Residential Tenancies Regulations 2019 (NSW) (Regulations) applied and required the respondent to provide the appellant with 60 days notice prior to termination. Clause 41C of the Regulations is set out at [2] of the Tribunal's reasons. 2. The Tribunal considered the following evidence relied upon by the appellant to establish that they came within s228B of the RTA and therefore: 1. Mr Djakovic is as a project manager in the construction industry; 2. His employment was terminated on 3 March 2020; 3. An extract of an employee separation form from his "most recent employer" dated 12 March 2020 which included a document headed "Termination Calculation" was relied upon to prove his termination. That document showed a commencement date of his employment on 26 September 2019 and a termination date of 3 March 2020, with a gross termination payment of $5,239.41. 4. He obtained a medical certificate from a General Practitioner (GP) dated 16 March 2020 which said: Mr Boris Djakovic is medically advised to work from home. Hie [sic] is taking medications that suppress his immunity. 1. The Tribunal found that neither the medical certificate nor the employee separation form stated that Mr Djakovic ceased his employment due to COVID-19: [4] and [7] 2. The Tribunal also held at [7] that none of the evidence relied upon by the appellant established a reduction in work hours or income as a result of the impact of the COVID-19 pandemic and that as a result "the weekly household income for the household has been reduced by at least 25% compared the weekly household income for the household before the occurrence of any of the matters": s228B(1)(b) Appellant's Notice of Appeal and Submissions 1. The appellant filed a Notice of Appeal on 30 September 2020. The Notice of Appeal included various documents as an "Attachment". These seem to have been the documents that were in evidence before the Tribunal and referred to in its reasons. 2. The appellant filed a submission and further documents on 26 October 2020. We discuss the nature of those documents later in these reasons. For present purposes, we interpolate here that none of those documents were before the Tribunal and if allowed on the appeal, we have to be satisfied that the documents comprising new evidence would be relevant to our determination by way of a new hearing (s 80(3)) or that the evidence was "significant new evidence" that has arisen and was not reasonably available at the time the proceedings under appeal were being dealt with so that we should grant leave to appeal: cl 12(1) of Schedule 4 of the CAT Act. 3. The main basis of the appellant's appeal and his submissions was that the Tribunal erred in not finding that Mr Djakovic lost his employment and lost income as a result of the impact of the COVID-19 pandemic. Reply to Appeal and respondent's submissions 1. The respondent filed a Reply to Appeal (Reply) on 14 October 2020. He was represented at the hearing of the appeal (and at the hearing before the Tribunal) by his real estate agent, Ms Vicky Kelly. 2. In summary, the respondent relied upon the findings and reasons made by the Tribunal in its decision and provided at Attachments 1-3 of his Reply, the documents upon which he sought to reply on the appeal. These documents appeared to largely replicate the documents attached to the appellant's Notice of Appeal. It did not therefore include any of the new documents filed by the appellant on 26 October 2020. Statutory basis of the appeal 1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). 2. The appellant raised the following grounds of appeal and submitted that the Tribunal: 1. failed to "apply the law correctly"; 2. did not apply the law to the particular circumstances of the case; 3. applied the principles in Serious v Barlow; Barlow v Serious [2020] NSWCATAD 3 (Serious) "which significantly differs in circumstances & matters of fact of this case"; 4. that "the above represents a blatant miscarriage of justice and law ... [and] the misapplication of special powers granted to the Tribunal". No Question of Law 1. We are of the view that no question of law arises on this appeal. 2. The appellant was critical of the Tribunal's focus on the reasoning in Serious where in that case, the tenant did not provide details of their income before the COVOD 19 amendments to the RTA. The reasoning of the Tribunal as explained in [7] did no more than refer to Serious to provide some guidance for the Tribunal for the matters under consideration. On a reading of [7] of the Tribunal's reasons, Serious was not applied by the Tribunal as some binding precedent and nowhere does the Tribunal say that it was compelled to adopt the approach taken in Serious. Rather, the Tribunal did no more than have regard to an approach taken in an earlier decision of the Tribunal by a different Member (which has not been overturned on appeal) and applied its own reasoning to the particular circumstances based on the evidence before it. 3. Irrespective of the reasoning and the decision in Serious, it was open to the Tribunal to consider as it did the lack of evidence by the appellant before the Tribunal to establish any loss of employment or income as a result of the impact of the COVID-19 pandemic. 4. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. None of those matters listed in Prendergast arise for our consideration on this appeal. Leave to appeal is therefore required. 2. The principal finding by the Tribunal was that the appellant did not establish that he had lost employment or income as a result of the impact of the COVID-19 pandemic. That is a determination of an issue of fact and not law. Therefore there is no question of law arising on this appeal as to the proper application or construction of s 228B of the RTA to the facts found by the Tribunal. 3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the CAT Act. In such cases, the Appeal Panel must be satisfied 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). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there 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. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4 of the CAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. The further evidence to which we have referred above was not before the Tribunal and it was raised for the first time on the appeal. In our view, that evidence is not "new" in the sense that it has arisen only after the hearing was conducted before the Tribunal and it could not be said to have been "not reasonably available" at that hearing. There was no explanation offered to us as to why that evidence, if it was thought to assist the appellant's case, was not put before the Tribunal. 2. We have considered that new evidence during the submissions made by the appellant at the hearing of the appeal. As we discuss below where we deal with this in more detail, we do not regard that evidence as "significant" evidence either in the sense that the new evidence does not advance in any way the appellant's prospects of success in establishing a nexus between the COVID-19 pandemic and his loss of employment or income or raise any issues which would question the soundness of the Tribunal's findings. 3. We are not satisfied that the issues in the present appeal raise for our consideration any of the matters listed above from Collins v Urban to warrant us granting leave to appeal. Consideration 1. In our view, the Tribunal approached its task of fact finding in an orthodox and entirely proper way by considering the evidence before it and ascertaining whether there was any causal connection established by that evidence to show that Mr Djakovic's loss of employment or loss of income was the result of the impact of the COVID-19 pandemic. 2. As we discuss below, we agree with the Tribunal's reasons and findings that the appellant has not established an entitlement to come within s 228B of the RTA and that the respondent's termination of the residential tenancy agreement was lawful. 3. It does not appear to have been in dispute before the Tribunal and it has been accepted by us on the appeal, that Mr Djakovic does suffer from a diagnosed medical condition. That condition was recorded in a pathology test result dated 12 November 2019 on referral from a specialist, whom Mr Djakovic said was a rheumatologist. That pathology test result was not before the Tribunal but was relied upon by the appellant on the appeal. 4. This evidence gives more context to the medical certificate relied upon by the appellant but the medical certificate simply says that Mr Djakovic is medically advised to work from home. This was after the termination of his employment and it does not purport to link the loss of employment to his condition or the impact of the COVID-19 pandemic. 5. On the appeal, Mr Djakovic relied upon two documents which were not before the Tribunal to establish his contention that he has lost income as a result of the termination of his employment and demonstrate a minimum of 25% reduction in weekly household income such that the household was impacted by the COVID-19 pandemic within the meaning of s 228B of the RTA. 6. The first document was an extract from the MyGov website showing an Australian Tax Office (ATO) income statement for the period 25 September 2019 to 3 March 2020 with gross payments of $72,681.05. Mr Djakovic's name appears at the top of the document above a redacted ABN. The employer is identified as Watpac Construction Pty Ltd. 7. The second document was a Centrelink JobSeeker Payment Statement (Centrelink Statement) dated 21 October 2020 for the period 28 July 2020 to 21 October 2020. It showed the first JobSeeker Payment of $1,074.28 for the period 28 July 2020 to 10 August 2020. That JobSeeker Payment was reduced to $771.33 for the period 6 October 2020 to 19 October 2020. The Centrelink Statement also showed a "regular rate of payment" (which included JobSeeker payments) totalling $861.80 to take effect from 3 November 2020 and of which the JobSeeker component had been further reduced to $510.80. 8. The submission advanced by the appellant on the appeal was that Mr Djakovic averaged a weekly income of $3,495.31 before he lost his employment. The appellant contends that his current income from Centrelink establishes that he has lost income as a result of the impact of the COVID-19 pandemic and the weekly household income has been reduced by at least 25% compared to the weekly household income before his loss of employment. 9. The difficulty we have is that the appellant has not first established that: 1. Mr Djakovic lost his employment as a result of the COVID-19 pandemic; or 2. Mr Djakovic has lost income as a result of the impact of the COVID-19 pandemic. 1. In our view, Mr Djakovic has lost income as a result of being terminated on 3 March 2020 and that termination was not proven to be a result of the impact of the COVID-19 pandemic as required by s 228B of the RTA. Indeed, at the hearing before us, Mr Djakovic conceded as much. As we understand it, his primary contention is that he was unable to gain further employment at his previous rate of remuneration as a result of the impact of the pandemic. 2. Mr Djakovic said that it is difficult to gain re-employment, particularly in light of his condition and the medical advice advising him to work from home. There is no evidence going to that issue before us and that was not the case the appellant conducted before the Tribunal. We cannot on the evidence before us make such a finding. 3. The case advanced by the appellant before the Tribunal was that Mr Djakovic lost his job due to the impact of the COVID-19 pandemic. There was no case advanced to the effect that he cannot obtain employment as a result of the COVID-19 pandemic. We cannot simply infer or accept that contention based only on the medical certificate of 16 March 2020 and the JobSeeker records provided to us on the appeal covering the period from 28 July 2020 – a period which post-dates the termination of his employment and the issuing of the termination notice by the landlord in any event. 4. The appellant was in rental arrears before he obtained the medical certificate. However, he did not attribute that failure to pay full rent to being terminated on 3 March 2020 or the impact of the COVID-19 pandemic. In response to an email from the agent on 15 April 2020 informing the appellant that he was $362.39 behind in rental payments, Mr Djakovic replied by email on the same date saying: "I am running a little behind on rent as things have really not been good. Earlier earlier [sic] this week I learnt that my most recent client is unable to pay me for the work completed (I am a contractor working in the construction industry). I have applied for government benefits ...". 1. This strikes us as a curious email given the matters the subject of this appeal. Mr Djakovic makes no mention of his loss of employment on 3 March 2020. Rather, the email suggests that sometime since 3 March 2020, Mr Djakovic had undertaken other contracting work (possibly even after and in spite of the medical advice from his GP). His email relevantly referred to becoming aware of the payment difficulty "... earlier [sic] this week" and referred to that client as his "most recent client". 2. This recent work which was said to be unpaid could not be related to the employment which ended on 3 March 2020 because the Termination Calculation and ATO Income Statement referred to above shows he was fully paid by the employer up to 3 March 2020. The reference to "most recent client" and "earlier this week" also suggests it is a different working arrangement and after his termination as an employee on 3 March 2020. Disposition of the Appeal 1. The evidence on this appeal, including the new evidence filed by the appellant on 26 October 2020, does not provide us with sufficient reason to grant the appellant leave to appeal from the findings of fact made by the Tribunal. We can discern no substantial miscarriage of justice suffered by the appellant arising from the decision of the Tribunal to grant the appellant leave to appeal. 2. We see no error in the fact-finding process undertaken by the Tribunal or in the findings made by the Tribunal on the evidence before it. None of the additional evidence on which the appellant seeks to rely in this appeal would change any of those matters or would question the soundness of any of those findings of fact made by the Tribunal. 3. We are satisfied that the findings and conclusions reached by the Tribunal were reasonably open for the Tribunal to make and in particular the fundamental finding that Mr Djakovic did not lose his employment or lose income as a result of the impact of the COVID-19 pandemic as the appellant is required to establish under s 228B of the RC Act. 4. We see no error in the Tribunal ordering the termination of the appellant's residential tenancy agreement for frequently failing to pay rent to the respondent in accordance with that agreement. 5. We refuse leave to appeal and dismiss the appeal. Orders 1. We make the following orders: 1. Leave to appeal refused. 2. Appeal 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: 21 December 2020