Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tymoc v Zylinski [2021] NSWCATAP 58 Hearing dates: 16 December 2020 Date of orders: 12 March 2021 Decision date: 12 March 2021 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member Dr J Lucy, Senior Member Decision: (1) Application for an extension of time to appeal is refused. (2) Appeal is dismissed. (3) Appellant's costs application is refused. Catchwords: APPEAL – Civil and Administrative Tribunal – Appeal by landlord against order that he pay tenant $1,825.29 in overpaid rent - Appeal lodged out of time – Where delay short but prospects of success minimal – Extension of time refused Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 41, 60, 62, 80, Sch 4 cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), r 25 Residential Tenancies Act 2010 (NSW), s 47 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Nanschild v Pratt [2011] NSWCA 85 Texts Cited: None cited Category: Principal judgment Parties: Gregory Tymoc (Appellant) Przemyslaw Zylinski (Respondent) Representation: S Lindsell (agent for Appellant) P Zylinski (Respondent in person) File Number(s): 2020/00371102 (AP 20/43741) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 30 September 2020 Before: S Bliim, General Member File Number(s): RT 20/25639 REASONS FOR DECISION Overview 1. The appellant (the landlord) appealed from a decision of the Tribunal ordering him to repay the respondent (the tenant) an amount representing overpaid rent. The landlord accepted that he was required to pay some of this amount, but contended that the amount was too high, in that it wrongly included payments for water usage. 2. The landlord's appeal was filed six days out of time, meaning that he needed an extension of time to bring the appeal. 3. We have decided to refuse his application for an extension of time. The landlord does not have a reasonably arguable case and we are not satisfied that strict compliance with the rules would work an injustice upon the landlord. Background 1. The tenant entered into a residential tenancy agreement with the landlord in 2016. The tenancy started on 25 May 2016 and ended on 9 October 2019. 2. On 8 March 2020, the tenant requested the landlord's real estate agent to repay him $1,270 in overpaid rent. The real estate agent transferred $484.71 into the tenant's bank account. 3. The tenant's entitlement to the amount of $785.29 remained in dispute. 4. On 14 June 2020, the tenant applied to the Tribunal for an order under s 47 of the Residential Tenancies Act 2010 (NSW) that the landlord repay $785.29 in overpaid rent. 5. On 13 August 2020, the parties were directed to file evidence on which they sought to rely by specified dates. The landlord was required to file his evidence by 20 August 2020. In an undated letter, the tenant wrote to the Tribunal, providing the evidence on which he relied and pointing out that the landlord had failed to file any evidence in accordance with the Tribunal's directions. 6. On 30 September 2020, the Tribunal, sitting in the Consumer and Commercial Division, ordered the landlord to pay the tenant $1,825.29. The Notice of Order records that oral reasons were given, but does not provide any indication of what those reasons were. 7. On 20 October 2020, the landlord lodged a Notice of Appeal and a stay application. 8. The landlord sought an order that the landlord pay $615.04 to the tenant (instead of $1,825.29). The landlord contended that the Tribunal member wrongly took into account water usage payments. 9. The landlord's agent also sought a refund of the application fee on the appeal, being $435. 10. On 30 October 2020, the Appeal Panel, constituted by Deputy President Westgarth, stayed the Tribunal's orders made on 30 September 2020 until further order. The Appeal Panel also gave the landlord leave to be represented by Mr S Lindsell (the landlord's real estate agent). 11. The Appeal Panel directed each party to file and serve evidence on which it was intended to rely, submissions, the sound recording of the hearing at first instance (if the party relied upon it) and a typed copy of the relevant parts of the sound recording. The sound recording was made available to the Appeal Panel but neither party provided the Panel with a typed copy of the relevant parts of the sound recording. 12. The Appeal Panel has, in its discretion, listened to selected parts of the recordings which were made of the hearing. These are in two parts, the first being before an adjournment and the second after the adjournment. 13. The parties were given an opportunity to calculate the amount owing to the tenant over a short adjournment, in light of the indication from the Tribunal that it proposed to find in favour of the tenant. At 2:46 of the second recording of the hearing, the Tribunal member referred to evidence of payments received from the tenant. The Tribunal member proceeded to indicate that he would accept the evidence filed by the tenant, there being no contradictory evidence filed by the landlord. At 10:50 the member indicated that there was insufficient evidence from the landlord to accept the figure proposed by the landlord as to the amount owing to the tenant. The member also indicated, at about 12:20, that he had accepted the tenant's figures in circumstances where the landlord had not challenged the tenant's figures or cross examined the tenant about the calculation of the amount owing. The scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. 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 Sch 4 of the NCAT 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), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act 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. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 to the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 to the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 to the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. 2. In Collins, the Appeal Panel at [84] stated 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. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. Application for an extension of time to appeal 1. Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that, in the case of an appeal from a decision under the Residential Tenancies Act, an internal appeal must be lodged within 14 days from the day on which the appellant was notified of the decision to be appealed. 2. The Notice of Appeal records that the appellant received the Decision on 30 September 2020. It is not suggested that he sought written reasons under s 62 of the NCAT Act. The Appeal was lodged on 20 October 2020, about six days beyond the time allowed for filing the notice under rule 25(4)(b) of the NCAT Rules. 3. We may, however, extend time for lodging the Notice of Appeal: NCAT Act, s 41. We have assumed, in the landlord's favour, that he is applying for an extension of time to appeal, even though he did not indicate that he was doing so on his Notice of Appeal. 4. The relevant principles which might generally inform the exercise of our discretion in that regard were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: "22. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), -Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable -Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]." 1. The delay in lodging the appeal was relatively short (being six days). The tenant has not suffered any significant prejudice as a result of this delay. The landlord did not provide any reasons for the delay on the Notice of Appeal. The most significant factors in granting leave are whether the landlord has an arguable case, and whether he can demonstrate that strict compliance with the rules would work an injustice upon him. Does the appellant have a fairly arguable case, and can he demonstrate that strict compliance with the rules will work an injustice upon him? 1. In order to determine whether the landlord has a fairly arguable case, we have considered the strength of his appeal grounds. The landlord stated his grounds of appeal as follows: "Tribunal order was made on 30th September 2020, tenant was awarded $1825.29 to be paid on or before 28/10/2020, we object as tenant should have been rewarded $615.04 only. Tenant himself lodged application for refund of $785.29 in his request. … Tenants calculation for rent payment totalled $100,790 and No supporting evidence was provided to the Tribunal member or agent to show this amount. Still tribunal member considered this figure. Agent provided rental ledger to show tenant paid $100,693.46 in total (including water usage payments). Tribunal member did not consider this rental ledger and water usage payment showing in the ledger. Water usage payments that tenant paid were also awarded to tenant by tribunal member, even though there is clear evidence on our ledger, that these payments were water usage payments. The water usage charges totalled $1113.71 and were paid by the tenant and should be reimbursed to owner and were not in question however it wasn't considered by the member when we requested member to consider water charges as well. We request the water usage payments be taken off the awarded amount and we accept the responsibility for the remaining amount of $615.04." 1. The landlord provided calculations to support the figure of $615.04. 2. We consider that the landlord's grounds may be stated as follows: 1. (First ground) The Tribunal accepted the tenant's rent calculation without supporting evidence and rejected the landlord's rent calculation and calculation of water payments, which were supported by the ledger; 2. (Second ground) The Tribunal wrongly awarded repayment of an amount which constituted water usage payments. 1. To the extent that the first ground asserts that the Tribunal made a finding with no evidence to support it, it raises a question of law. To the extent that it asserts that the decision was against the weight of evidence, it does not raise a question of law, and leave to appeal is required under s 80(2)(b) of the NCAT Act. 2. The second ground raises an error of fact, but not an error of law. Leave to appeal on the second ground is required under s 80(2)(b) of the NCAT Act. 3. The landlord indicated, on the Notice of Appeal, that he was not seeking leave to appeal. It appeared, however, that he did not understand that leave was required to appeal if his grounds did not raise a question of law. In the circumstances, we have decided to treat his Notice of Appeal as applying for leave to appeal, in the event that his grounds do not raise a question of law. Ground 1 – lack of evidence to support rent calculation 1. The Appeal Panel could not conclude, in the absence of a typed copy of relevant parts of the transcript, that there was no evidence to support the Tribunal's rent calculation. Oral evidence concerning the amount of rent paid may have been given at the hearing. Nor could the Appeal Panel conclude, without a transcript, that there was any error of fact in this regard. Ground 2 – wrongly ordering repayment of water usage payments 1. The landlord claims that the Tribunal wrongly awarded repayment of an amount which constituted water usage payments. Without a transcript of the hearing we could not be satisfied that the Tribunal calculated the amount owing to the tenant by wrongly taking into account water usage payments. 2. The parts of the recording of the hearing to which we have listened indicate that the landlord did not provide any evidence supporting his contentions about the amount owing. Nor did he make any argument about water usage payments until the very end of the hearing. 3. At about 15:10 of the second sound recording, the landlord's representative raised the issue of water usage payments. The Tribunal member stated that he did not have an issue about water in front of him. In response to a question from the landlord as to whether the Tribunal member would take the water usage payments off the total owing to the tenant, the Tribunal member said those amounts had already been taken off. The Tribunal member also said that there was no appropriate material provided to the Tribunal and both parties, in time, which suggested there was any argument about the inclusion of water usage payments in the calculation of the amount owing. At about 18:00 the Tribunal member referred to the tenant's evidence that payments for water usage had been deducted from the total amount paid to the landlord. 4. In these circumstances, it is unlikely that the landlord would be granted leave to appeal in respect of the water usage ground. The Appeal Panel could not be satisfied that he may have suffered a substantial miscarriage of justice on any of the bases in cl 12 of Sch 4 to the NCAT Act. 5. For these reasons, we do not consider that the landlord has a reasonably arguable case on either ground. Will the rules work an injustice? 1. In Nanschild v Pratt [2011] NSWCA 85 at [38], McColl JA (Campbell JA agreeing) stated that, in "order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time." Here, the landlord failed to comply with the directions before the Tribunal to file and serve evidence. The landlord has been represented throughout by his real estate agent. The consequences for the landlord, if time is not extended, is that he is required to pay to the tenant just over $1200 more than he considers he is required to pay. 2. Having regard to the whole of the circumstances, we do not consider that strict compliance with the rules, requiring an appeal to be filed within 14 days, would work an injustice upon the landlord. Conclusion 1. The landlord did not provide any reasons for the delay in filing the appeal, he does not have a reasonably arguable case, and strict compliance with the rules would not work an injustice upon him. Accordingly, we have refused his application for an extension of time to lodge his appeal. Costs application 1. The landlord applied for the costs of the filing fee for the lodgement of the appeal, being an amount of $435. 2. Costs are governed by s 60 of the NCAT Act. That section provides that each party to proceedings is to pay the party's own costs (s 60(1)), and that the Tribunal may award costs in relation to proceedings before it (only) if it is satisfied that there are special circumstances warranting an award of costs (s 60(2)). 3. The landlord has not identified any special circumstances which would warrant an award of costs and we do not consider that such circumstances exist. For this reason, even payment of the filing fee is properly characterised as "costs," we have decided to refuse the landlord's application for costs. Orders 1. For these reasons, we make the following orders: 1. Application for an extension of time to appeal is refused. 2. Appeal is dismissed. 3. Appellant's costs application is refused. ********** 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: 12 March 2021