Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ramdani v Donald [2021] NSWCATAP 21 Hearing dates: 1 February 2021 Date of orders: 1 February 2021 Decision date: 05 February 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member Dr J Lucy, Senior Member Decision: Appeal dismissed Catchwords: APPEALS – right of appeal – scope of right – consent orders – no appearance by appellant – appeal dismissed – want of prosecution of appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – ss 36(3), 51(1)(d) Civil and Administrative Tribunal Rules 2014 (NSW), reg 25(4)(b) Cases Cited: Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27 Texts Cited: Nil Category: Principal judgment Parties: Wadiee Jabrane Ramdani (Appellant) Angus Fraser Donald (Respondent) Representation: Appellant (No Appearance) Respondent (Self-Represented) File Number(s): AP 20/50666 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Nil Date of Decision: 23 October 2020 Before: C Campbell, General Member File Number(s): RT 20/33037 REASONS FOR DECISION 1. This is an appeal without any apparent merit from consent orders made on 23 October 2020 in relation to proceedings brought by a landlord (the respondent) against a tenant (the appellant) for, amongst other things, non-payment of rent. 2. On the hearing of the appeal we were satisfied that the appellant had failed to prosecute his appeal per s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), and we dismissed the appeal on that basis with reasons to be given later. These are those reasons. 3. The orders made on 23 October 2020 were: 1. By consent, and in full and final settlement of all claims arising out of the tenancy, including the Appeal application AP 20/37434, the tenant Wadiee Ramdani, 587 Bourke Street SURRY HILLS NSW 2010, is to pay the landlord, Angus Donald, 11 Campbell Street BANGALOW NSW 2479, the sum of $9,200.00 by instalments of not less than $1,500.00 per month, first payment 23-November-2020. Failure to pay any instalment in this order by the due date will result in the whole of the balance which is then outstanding will become immediately due and payable. 2. By consent the tenant agrees to withdraw the Appeal AP 20/37434. 3. By consent this settlement represents full and final settlement of the related application filed by the tenant RT 20/38418. 1. The appellant filed a Notice of Appeal on 3 December 2020 appealing from those consent orders. The appeal was out of time, it not being filed within 14 days as required by reg 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW). 2. In the Notice of Appeal the sole ground of appeal relied upon said: "The Tribunal Member erred in finding the amount owing from the tenant to the landlord." 1. As is clear, this ground was misconceived since the order as to the amount owed by the appellant to the landlord had been agreed. That is why the Order of 23 October 2020 was expressed to be "by consent". 2. The appellant also sought leave to appeal on the basis that the decision of the Tribunal was not fair and equitable. The particulars of this allegation seemed to be that the consent orders were not, in fact, by consent, but had been imposed upon the appellant in the absence of his consent. 3. This assertion, if made out, may have attracted the principles in Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27 which concerns the principles applicable to setting aside consent orders. However, we note that the appellant did not file any evidence to support his contention that the orders were not, in fact, made by consent. 4. The appellant filed materials purportedly in support of his appeal on 14 December 2020. None of those materials were relevant to the issues that might arise on appellant's application for leave to appeal. 5. On 18 December 2020 the Appeal Panel made directions for the proper prosecution of the appeal. Those orders included the following order directed to the appellant: "1. The Appellant is to lodge with the Appeal Panel and give to the Respondent by 15/01/2021: (a) All the evidence given to the Tribunal below on which it is intended to rely; (b) Any evidence not provided to the Tribunal in making the decision under appeal, on which it is intended to seek leave to rely; (c) The Appellant's written submissions in support of the appeal; and (d) The sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts." 1. The appellant did not lodge any of the material referred to in that order. 2. The appellant had and has a legal obligation to participate in the processes of the Tribunal and to comply with any directions and orders of the Tribunal – s 36(3) of the Civil and Administrative Tribunal Act 2013 (NSW). 3. On the day of the appeal the respondent appeared in person, a French interpreter appeared as arranged, but there was no appearance by the appellant. 4. The Appeal Panel telephoned the mobile telephone number the appellant provided in his Notice of Appeal, but there was no answer after about 30 seconds, and the call went through to the appellant's voice mail. 5. We were satisfied that the appellant has failed to prosecute his appeal per s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), and we dismissed the appeal. The appellant failed to file any of the material referred to in the order we have quoted at [10] above and failed to appear at the hearing of the appeal. In our opinion those failures amount to a failure to prosecute the appeal. For those reasons we dismissed the appeal. 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 February 2021