Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Haines v Tohadze [2021] NSWCATAP 40 Hearing dates: 12 February 2021 Date of orders: 22 February 2021 Decision date: 22 February 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member S Goodman SC, Senior Member Decision: Appeal dismissed Catchwords: APPEALS – procedural fairness – hearing rule – no procedural unfairness established – possibility of a different outcome had there been a properly conducted hearing not established Legislation Cited: None cited Cases Cited: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61; (2019) 99 NSWLR 419 House v R [1936] HCA 40; (1936) 55 CLR 499 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Texts Cited: None cited Category: Principal judgment Parties: Simon Haines (Appellant) Jasmin Tohadze (Respondent) Representation: Appellant (Self Represented) V Tohadze (on behalf of the Respondent) File Number(s): AP 20/48260 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 12 November 2020 Before: C Campbell, General Member File Number(s): RT 20/14726 REASONS FOR DECISION 1. This is an appeal by a tenant from orders made by the Tribunal in favour of the landlord. In essence the tenant says that the Tribunal's decision was infected by procedural fairness. 2. In our opinion the appeal must fail. We are not persuaded there was any procedural unfairness. Further, assuming for the purpose of argument that there had been procedural fairness, the tenant has failed to demonstrate that there was a possibility that there would have been a different result in the Tribunal at first instance had a properly conducted hearing taken place. Background 1. A comprehensive summary of the relevant events which led to this appeal are set out in the following paragraphs from the Tribunal's reasons for decision. The Tribunal said: "1. This is an application for orders for termination and possession pursuant to s.87 and 89(5) of the Residential Tenancies Act 2020 (sic). 2. The matter was first listed before the Tribunal on the 27.05.20, when the following Consent orders were made: 1. The tenant is to pay the landlord the sum of $10,000 for rent arrears owed from the 19.03.20 27.05.20. The arrears are to be paid by the following instalments: a. $3,000 on or before 28.05.20; and thereafter b. $250 per week with the first payment the 05.06.20 2. The tenant is to pay rent of $1,275 per week, next payment due on 05.06.20 and to continue to pay rent in accordance with the residential tenancy agreement. 3. If the orders in respect to rent are not complied with at any time prior to the 20.10.20 the landlord can re-list the application to determine whether the tenancy agreement should be terminated. The Tribunal noted the following: a. The landlord agreed to reduce the rent to $1,000 per week from 19.03.20 to 30.09.20; and b. The tenant agreed to pay rental bond of $4,000 on or before 01.08.20 3. On the 23.09.20 the landlord requested the matter be re-listed as the tenant had defaulted under the payment plan. The matter came before the Tribunal (on) 08.10.20. The tenant sought an adjournment as he told the Tribunal he wished to put documentary evidence before the Tribunal in relation to the application. 4. The matter was listed again on the 04.11.20. The tenant only served his evidence on the landlord just prior to the hearing and the landlord did not have time to consider the material. The landlord objected to the tenant being allowed to rely on the evidence and any adjournment. The presiding member adjourned the proceedings. 5. The Registrar listed the matter for hearing on the 29.01.21. 6. The rent arrears were in excess of $20,000 and the tenant had not paid the bond. 7. The landlord made an application for an urgent hearing on the grounds of financial hardship. The Principal Member considered the landlord's request and the matter was listed as a matter of urgency today. 8. On the 11.11.20 the tenant requested an adjournment on the grounds he had a job interview today. The Registrar informed the tenant the adjournment request would be considered by the Tribunal at the hearing today. The tenant was also informed that if he is unavailable he could authorise another person to represent him at the Tribunal today; or in the alternative provide his evidence by way written submissions. 9. The tenant declined either of those options. 10. The Tribunal telephoned the parties at 9.15 am. The tenant confirmed his time was short as he had an interview that would take some three hours or thereabouts. The tenant's call dropped of the Tribunal's line. The Tribunal called the tenant back, and he was informed that the matter may well proceed today in his absence. 11. He said he would consent to an order to vacate the premises on the 04.02.21. He said he has two children. One of whom is enrolled in a school which he must attend, pursuant to a Family Court Order. No copy of the Order from the Family Court has been provided by the tenant. He confirmed he had received the Registry email suggesting that he could provide written submissions or authorise another person to represent him today. He said he had no means of paying the rent. 12. The Tribunal indicated that the matter may proceed today in his absence. 13. The applicant's agent Ms Sinic appeared and the applicant also gave sworn evidence. 14. The Tribunal refuses the adjournment request. The Tribunal weighed up the competing interests of the parties. On balance, the Tribunal concluded that the prejudice to the landlord caused by the further delay could not be cured by any other order. Since the consent orders were made on the 27.05.20 the tenant has incurred further arrears in the sum of $10,975. Furthermore, the tenant has not paid the rental bond of $4,000. The landlord is completely exposed for all arrears owed by the tenant, without the safety net of a bond. 15. The tenant was aware of the proceedings today and it was his election to not put any written submissions before the Tribunal or authorise another person to make submissions on his behalf to the Tribunal today. 16. The landlord said she would not consent to an order for the tenant to vacate on the 04.02.21, which is the end of the fixed term. If no rent were paid to that date the arrears would be in excess of $30,000. 17. The matter proceeded to hearing. 18. The landlord relied on a bundle of material which was served on the tenant on the 22.10.20. The landlord also put the current rent ledger before the Tribunal which shows rent is paid to the 08.09.20. 19. The tenant served a statement dated 30.10.20 and annexures on the landlord on the 04.11.20. The tenant did not send a copy of that material to the Tribunal. The landlord's agent forwarded the tenant's documents to the Tribunal today and the Tribunal has read and considered that material. 1. The Tribunal then set out its reasons for finding that there should be an order for termination of the tenancy, an order for possession and orders for the payment of rental arrears. The Grounds of Appeal 1. The tenant alleged a number of matters which are not relevant to an appeal. For example, he complained of issues with the teleconferencing system but does not allege that those issues prevented the proper hearing of his case. 2. We have attempted to distil grounds of appeal from the tenant's documents which are relevant to an appeal. There are four. 3. The tenant's first ground of appeal was that: "There has been an error in procedure and I did not receive an equitable hearing. I was given 5 business hours of notice of a hearing in which 7 days previously (sic) I was notified of a hearing in January 2021. 1. The tenant's second ground of appeal, advanced for the first time in the tenant's oral submissions on the appeal, was that was that he was "under duress" at the time of the hearing, this duress being caused by his then existing medical condition. 2. The tenant's third ground of appeal was that he said he could "pay the rent daily rate at 1275PW". 3. His fourth ground of appeal was that at the hearing he asked for an adjournment, but that request was ignored. Decision Ground 1 1. At the hearing of the appeal the tenant said he was only given 15 minutes notice of the hearing at first instance, rather than the 5 business hours referred to in the Notice of Appeal, but the exact period of notice is not determinative of the outcome of this appeal. 2. Whatever the period of notice given, the real question is whether the notice given was insufficient to allow the tenant to properly present his case, whether in terms of evidence or submissions or some other aspect of a properly conducted hearing. 3. In this case it is evident that the tenant provided all the evidence that he desired to tender to the Tribunal. As the Tribunal recorded at [4] of its reasons, the tenant had served the evidence upon which he intended to rely. 4. In terms of submissions, the Tribunal recorded at [15] that the tenant had elected not to put any written submissions before the Tribunal and not to authorise another person to make submissions on his behalf to the Tribunal. 5. What those submissions might have been, or what possible defence they might have asserted in the face of acknowledged unpaid rent is unknown. 6. When we asked the tenant during his oral submissions on this appeal what he would have done differently (in terms of a defence to the landlord's claim) had the Tribunal given him more notice of the hearing, he answered that he did not know. That answer is consistent with the fact that on this appeal the tenant did not put forward any material, whether by way of evidence or submissions, that he said he had been unable to put to the Tribunal at first instance because of the short notice of the hearing. 7. That answer, together with the fact the tenant had led such evidence as he desired, and his election not to put any written submissions and not to authorise another person to make submissions on his behalf to the Tribunal, is fatal to this appeal. 8. That answer, together with the matters to which we have already referred, establishes that although the notice was short, there was no procedural unfairness visited upon the tenant. 9. Further, even assuming there had been some procedural unfairness arising from the short notice of the hearing, the ordinary remedy is an order for a new hearing. But before an order for a new hearing is made an appellant must demonstrate that had there been a properly conducted hearing there was a possibility of a different result to that which had occurred. That is, in this case, was there a real possibility of a different outcome had the tenant been given greater (and sufficient on his case) notice of the hearing? 10. What we have just said was laid down by the High Court in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. At p.145 the High Court said: "Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial. 1. Having decided that there was no procedural unfairness to the tenant, we need not decide this point. But had we been required to do so we would have found that the tenant had not persuaded us that had he been given more notice of the hearing there would have been a real possibility of any different result. Ground 2 1. The tenant's second ground of appeal was that he was "under duress" at the time of the hearing, this duress being caused by his then existing medical condition. This is another allegation of procedural unfairness. 2. This ground was not mentioned in the tenant's Notice of Appeal nor any other document lodged with the Tribunal or served on the landlord prior to the hearing of the appeal. 3. On enquiry by us he said he was under no such duress on the appeal, his earlier medical condition having resolved or mostly resolved. 4. This duress, the tenant acknowledged, was not brought to the Tribunal's attention by him. Nor was the medical condition or duress proved on the appeal. 5. The tenant said that he had lodged and served two medical reports from his general practitioner, but such medical reports were not on the Tribunal file, were not attached to his Notice of Appeal (as he said they were) and were not served on the landlord. 6. Nor had the tenant obtained a copy of the sound recording from the hearing before the Tribunal and from which we might have been able to make some assessment of the correctness of his assertion as to duress. For example, we may have been able to hear whether he had answered the Tribunal's questions in a coherent and logical way, or whether the opposite was the case. 7. At the end of the day the tenant's claim that he was under duress at the time of the hearing before the Tribunal is an assertion made for the first time during the hearing of the appeal and is unsupported by any credible, corroborative evidence. Therefore, we do not accept that the appellant has proved that he was under any duress at the hearing before the Tribunal. 8. Nor, had we been required to decide, has the tenant established that there was a real possibility of a different outcome had the tenant not been under any duress. Ground 3 1. The tenant's third ground of appeal was that he said he could "pay the rent daily rate at 1275PW". 2. This is not an appeal point, although it might potentially be relevant to the length of time the order for possession may be suspended. 3. However, possession was given by the tenant to the landlord on 10 December 2020 and so the ability to pay rent is no longer relevant. Ground 4 1. The tenant's fourth ground of appeal was that at the hearing he asked for an adjournment, but that request was ignored. 2. A reading of the Tribunal's reasons reveal that the request was not "ignored". Rather, the Tribunal considered the request and refused the application. The Tribunal said: "14. The Tribunal refuses the adjournment request. The Tribunal weighed up the competing interests of the parties. On balance, the Tribunal concluded that the prejudice to the landlord caused by the further delay could not be cured by any other order. Since the consent orders were made on the 27.05.20 the tenant has incurred further arrears in the sum of $10,975. Furthermore, the tenant has not paid the rental bond of $4,000. The landlord is completely exposed for all arrears owed by the tenant, without the safety net of a bond." 1. Therefore, the application for an adjournment was considered and refused, it was not ignored. 2. Insofar as the tenant may be complaining that the refusal of the application was in some way erroneous, no error was identified by him nor is any identifiable by us. The Tribunal considered all apparent relevant matters, did not take any irrelevant matter into consideration, did not give undue weight to any particular matter, did not apply a wrong principle of law and did not make a material error of fact. As the Tribunal's reasons explain its decision, there is no room for the "unreasonable result" ground referred to in House v R (1936) 55 CLR 499 – see Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61; (2019) 99 NSWLR 419 per Bathurst CJ and Leeming JA at [9]-[10]. Conclusion 1. As all of the tenant's grounds of appeal have failed, we must dismiss 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: 22 February 2021