Koravi v Morris [2021] NSWCATAP 20

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Koravi v Morris [2021] NSWCATAP 20 Hearing dates: 28 January 2021 Date of orders: 3 February 2021 Decision date: 03 February 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member R C Titterton OAM, Senior Member Decision: Appeal dismissed Catchwords: APPEALS – right of appeal – scope of right – consent orders – no appearance by appellant – appeal dismissed – appeal frivolous, otherwise misconceived and lacking in substance Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – ss 51(1)(b) and (c) Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Babak Koravi (Appellant) Rebecca Morris (Respondent) Representation: Appellant (No Appearance) J Pratt (Managing Agent) (Respondent) File Number(s): AP 20/44192 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Nil Date of Decision: 30 September 2020 Before: J Searson, General Member File Number(s): RT 20/30303

REASONS FOR DECISION 1. This is an appeal without any apparent merit from consent orders made on 30 September 2020 in relation to proceedings brought by a landlord (the respondent) against a tenant (the appellant) for non-payment of rent. 2. The orders made on 30 September 2020 were: 1. By consent, the Residential Tenancy Agreement is terminated in accordance with: • s 87 of the Residential Tenancies Act 201 O as tenant has breached the agreement. • failure to pay rent in accordance with agreement. 2. By consent, the Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. By consent, the order for possession is suspended until 23-0ct-2020 4. By consent, the tenant shall pay the landlord a daily occupation fee at the rate of $108.57 per day from the day after the date of termination, namely 01-0ct-2020 until the date vacant possession is given to the landlord. 5. By consent, the tenant, BABAK KORAVI … is to pay the landlord, REBECCA MORRIS … the sum of $5,000.00 by instalments of not less than $1,000.00 per month, first payment 20-Nov-2020. Failure to pay any instalment in this order by the due date will result in the whole of the balance being payable immediately. Reasons: • Agreed rent arrears from 18/06/2020 to 30/9/2020 $5,000.00 Note: 1. The parties agree that the landlord's agent will provide the tenant with a positive rental reference. 2. The above is in full and final settlement without admission or finding of liability. 1. The appellant filed a Notice of Appeal on 20 October 2020 appealing from those consent orders. 2. The Notice of Appeal was silent on which orders were challenged on appeal, the grounds of appeal, orders the appellant said the Appeal Panel should make, whether leave to appeal was being sought and, if so, why leave to appeal should be granted. 3. Attached to the Notice of Appeal was a two-page undated document in which the appellant asserted that he voluntarily consented to vacate the premises on the conditions referred to in the "Note" to the orders. 4. He said that he had received the positive reference letter referred to in that Note, but alleged (without any evidence) that: "all prospective landlords of flats (he had been) looking to move into were provided with a negative refence …" 1. He asserted that it was therefore unreasonable to expect him to find alternative accommodation. 2. He requested that the Tribunal's consent orders be set aside, the matter be referred by the Appeal Panel to the Department of Fair Trading and said that, as he said was evident in the recording of the telephone hearing from which the Tribunal's orders were made (no such sound recording was filed in support of his appeal), his consent to the orders was void if the conditions were not met by the respondent. 3. On 6 November 2020 the appellant informed the Appeal Panel that his application for a stay of execution on the orders was withdrawn, and that his appeal solely related to the money orders. 4. At the hearing of this appeal on 28 January 2021 the respondent appeared but the appellant did not. 5. In light of the appellant's non-appearance on the hearing of his appeal we dismissed the appeal pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW). 6. We were also minded to dismiss the appeal pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act because, in our view, the appeal was frivolous, misconceived and lacking in substance. 7. The matters adverted to by the appellant in the letter to which we have referred above (which, we take it, set out the appellant's submissions and grounds of appeal) do not, in our view, provide a legal basis to set aside the consent orders. 8. The orders are not expressed to be conditional, no point is taken that they are inaccurate, there is no evidence that they are inaccurate, there is no evidence supporting the factual assertions made by the appellant. Rather, on the appellant's own admission, the respondent provided the reference referred to in the orders and therefore has complied with her obligations under the orders. 9. As the appellant was not on notice of the possibility his appeal might be dismissed on this latter basis, we decline to dismiss his appeal on that basis notwithstanding we cannot see how his appeal could possibly have succeeded. 10. However, if there be any reinstatement application, the merits of the appellant's appeal (or, more accurately, the lack of any apparent merit) will no doubt be examined.