Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Leviny v Madden [2021] NSWCATAP 35 Hearing dates: 11 February 2021 Date of orders: 17 February 2021 Decision date: 17 February 2021 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President G Curtin SC, Senior Member Decision: Appeal dismissed. Catchwords: APPEAL – no errors of law – no other errors – no point of principle Legislation Cited: Agricultural Tenancies Act 1990 (NSW), s 20 Cases Cited: Nil Texts Cited: Halsbury's Laws of Australia, online edition, at [15-5]-[15-10] Category: Principal judgment Parties: Fiona Leviny (Appellant) Allen Hopkins Madden (Respondent) Representation: Appellant (Self Represented) R Madden (on behalf of the Respondent) File Number(s): AP 20/46646 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Nil Date of Decision: 29 September 2020 Before: P Harris, General Member File Number(s): COM 20/17546 REASONS FOR DECISION 1. This is an appeal from a decision by the Tribunal in which the Tribunal ordered the appellant to pay the respondent the sum of $8,113.66 for water usage and council rates arising from an agricultural tenancy for a property at Alumy Creek, NSW. 2. For the reasons that follow we are of the opinion that the appeal should be dismissed. Background Relevant to the Appeal 1. By a written agreement dated 17 November 2016 Rodney Madden agreed to lease the Alumy Creek property to the appellant on terms which included that the appellant would be liable for all water charges and for 50% of council rates. 2. The property was not owned by Rodney Madden, but rather it was owned by his father, Allen Madden (this latter fact not being in dispute before the Tribunal). In relation to this aspect of the matter the Tribunal found: "I am satisfied that although the lease agreement was executed by Mr R Madden, and that he purported to grant the lease, there was sufficient disclosure in the document that the lessor was Mr A. Madden and that R. Madden was his agent in that he represented his father." 1. The tenancy was for three years expiring on 13 November 2019, and the appellant vacated the property on or about 14 January 2020. 2. One issue between the parties was the date when their dispute over the water and council rates first arose between them. That date is important because s 20(2) of the governing legislation, the Agricultural Tenancies Act 1990 (NSW), provides a time limit within which disputes may be brought before the Tribunal. Section 20 says: 20 Applications to Tribunal relating to disputes (1) An owner or tenant may apply to the Tribunal for determination of any of the following: (a) a dispute relating to a right or obligation conferred by this Act, (b) a dispute arising from, or relating to, an agreement creating a tenancy or any other dispute (not being a dispute referred to in paragraph (a)) arising from, or relating to, a tenancy, (c) any other matter that may be determined by the Tribunal under this Act. (2) An application to the Tribunal must be made not later than 3 months after the relevant dispute or other matter arises or the end of the tenancy, whichever is the later. 1. The dispute was brought before the Tribunal by the respondent who lodged his application on 20 April 2020, about three months and one week after the end of the tenancy. 2. However, the Tribunal found that the dispute over water and council rates first arose between the parties on 17 and 18 March 2020 (which was later than the date of the end of the tenancy), being less than three months before the commencement of the proceedings. The Tribunal said: "8. The tenant raised in defence the limitation period in sect 20(2) of the Act. That section provides that an application to the Tribunal must be made not later than 3 months after the relevant dispute or other matter arises or the end of the tenancy, whichever is the later. The tenancy ended on or about 14 Jan 2020. The only evidence as to when a dispute arose is in the owner's son's correspondence to the tenant of 17 and 18 Mar 2020. I find that correspondence to (be) evidence when the dispute arose, meaning that the application was not commenced out of time." (Emphasis ours) 1. At the hearing of the matter before the Tribunal the respondent was granted permission to be represented by his son, Rodney Madden. In relation to that matter the Tribunal said: "3. … Each of the parties appeared. The owner was represented by his son, and the tenant self-represented. Directions had been made on 31 Jul 2020 for the filing and service of evidence to be relied upon by each party. Each party lodged documents. The owner also lodged an authority for his son, Mr R Madden, to appear as his representative." (Emphasis ours) 1. The Tribunal recorded that each party lodged documents to be relied upon at the hearing. 2. The Tribunal found in favour of the respondent in relation to the water and council rates based upon the documentary evidence which included the lease, water and council rate notices, some correspondence and a tax invoice issued by the local council. 3. In relation to the water charges the Tribunal said: "15. … The owners claim is for the water invoices rendered while the tenant was in occupation. The lease agreement and the water invoices are sufficient evidence to establish the tenant's liability. 16. The tenant does raise an issue of leaking water pipes. The tenant bears the onus of proving that this issue removed or reduced her liability to pay water usage. The evidence tendered by the tenant does not so prove to the civil standard of proof. 17. The owner claims $5,865.14 including final water usage. The owners account reflects that final water has been paid in the sum of $526.92 leaving a net of $5,338.22. I find for the owner in that amount." 1. In relation to council rates the Tribunal said: "18. It is again not disputed by the tenant that the agreement provided for her to pay 50% of the rates at approximately $850.00 each. I accept that this means per annum. No dispute is raised as to the validity of the Council rate notices. 19. The tenant submits that no rate invoices were served during the term of the tenancy. This is however not enough to remove her liability as the Act does not set a time limit on this liability. I therefore find for the owner in the claimed amount of $2,775.44." 1. The respondent had also made a claim for CPI increases to the rent payable pursuant to the terms of the lease. The Tribunal found against the respondent on this issue. The Tribunal said: "20. No rent ledger is tendered. The only evidence as to rent is the bank account statement of the owner. There is no evidence of any demand for payment prior to the end of the tenancy. 21. In addition to there being no ledger, there is no receipt book or any other record of rent receipts tendered by the owner other than the 2 page account statement. There is no sworn or statement evidence as to these records. 22. Section 13 of the Act provides that it is a term of the tenancy that the owner and a tenant each have the duty to keep proper accounts in connection with the tenancy. In Loretta Caelli v Robert Cant [2014] NSWCATCD 193 (2 October 2014), the Tribunal held that a claim for unpaid rent failed as there was no accounts ledger as required by sect 13 of the Act, no previous demand for unpaid rent and the owner's reliance on bank statements was unsatisfactory. 23. On the authority of that case, reliance on a bank statement alone is unsatisfactory and this part of the claim fails and is dismissed." Grounds of Appeal 1. The appellant appealed on four grounds. In substance those amounted to the following assertions: 1. There was no lease between the appellant and the respondent. 2. There was no proof of representation (sic) by Rodney Madden. 3. The dispute was out of time. 4. The standard of proof was applied inconsistently between issues. Ground 1 1. The appellant did not point to any error, whether of law or otherwise, in relation to this ground. 2. Nor could we see any error ourselves. The Tribunal at first instance was aware of the point raised by the appellant but found there was sufficient evidence to make a finding that Rodney Madden was acting as the agent of his father, the respondent. As such, Rodney Madden was lawfully entitled to enter into contracts on behalf of his principal, his father – see generally Halsbury's Laws of Australia, online edition, at [15-5]-[15-10]. 3. There being no error by the Tribunal, we dismiss Ground 1. Ground 2 1. The core submission advanced by the appellant was that she had not been provided with a copy of any letter of authority by the respondent authorising his son, to represent him at the Tribunal. 2. The appellant included in her submissions a number of assertions as to what was said at the hearing before the Tribunal but did not supply a copy of the sound recording or a transcript of the hearing before the Tribunal (as directed by the Appeal Panel on 25 November 2020 if what happened at the hearing was being relied upon). 3. The appellant submitted that she had applied for a copy of the sound recording, but said she was advised there were difficulties (what the difficulties were was not explained) and that she "gave up" efforts to obtain the sound recording. She also submitted that she was at a disadvantage because of various serious medical conditions. 4. Whilst we can sympathise with the appellant's predicament, unfortunately the fact remains that we cannot act on uncorroborated assertions of what was said at the hearing in light of the fact that the Tribunal said there was a written letter of authority (see [9] above) and in the absence of agreement of the respondent that the assertion made is correct. 5. In light of the fact there was an express, written authority authorising Rodney Madden to represent his father at the hearing, we can see no error in the Tribunal's discretionary decision to grant leave to Rodney Madden to represent the respondent. 6. The fact that a copy of this authority was not given to the appellant is neither here nor there. Further, there is no assertion that granting leave to Allen Madden to have his son represent him at the hearing imposed any unfairness on the appellant in terms of leading evidence or otherwise conducting the hearing. 7. We dismiss Ground 2. Ground 3 1. The appellant submitted the proceedings in the Tribunal were out of time because "(a)ttached documents show the dispute has dated back to October 2019" and thus more than three months had expired after the later to occur of the end of the tenancy or the arising of the relevant dispute [s 20(3) is set out at [6] above]. 2. There were no "attached documents" showing that the dispute had occurred earlier than as found by the Tribunal. There was no evidence that any such documents were provided to the Tribunal at the hearing, and the Tribunal held that the "only evidence" (see [8] above) on this issue established that the dispute first arose on 17 or 18 March 2020. There is no material to contradict that finding by the Tribunal or suggesting that that finding was made in error. 3. In light of those matters Ground 3 should be dismissed. Ground 4 1. The appellant submitted that the standard of proof applied by the Tribunal (being the civil standard) was applied inconsistently between the CPI rent increase issue on the one hand, and the water and council rates issues on the other. 2. In essence, the appellant said that just as the respondent failed on the CPI rent increase issue (for lack of proof) so should the respondent have failed on the water and council rate issues (again, for lack of proof). 3. We do not agree with the factual basis underpinning the appellant's submissions. 4. We have before us the material the respondent tendered, and it includes a number of contemporaneous business records of the local council which supported the claims for water and council rates. 5. In contradistinction, no such documents were tendered in relation to CPI rent increases, the only documentation being a self-serving letter written by Mr R Madden. 6. Thus, it is not that the Tribunal applied the standard of proof inconsistently, but rather the Tribunal applied that standard consistently to all issues, the different outcomes being explained by the inconsistent (or differing) evidence tendered on the issues. 7. Put simply, the respondent tendered sufficient evidence on the water and council rate issues which satisfied the Tribunal to the civil standard of proof but did not tender sufficient evidence on the CPI rent increase issue to satisfy the Tribunal to the civil standard of proof. 8. Accordingly, we dismiss Ground 4. The Appellant's Oral Submissions 1. In oral submissions the appellant complained of not being given copies of relevant documents by the respondent and asked us to make orders that that be done. 2. We are unable to make such orders on this appeal, they not having been sought by the appellant before the Tribunal, she not having commenced any application seeking the making of such orders or seeking orders in support of such rights as she had to inspect accounts pursuant to s 13 of the Agricultural Tenancies Act. 3. The rules of procedural fairness, amongst other rules, require parties to make an application to the Tribunal if they wish the Tribunal to make an order in their favour. That rule exists so that opposing parties know in advance of any hearing what is going to be sought against them and to allow them time to prepare to meet that case. Conclusion 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. 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