Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wei v Ul-Hassan [2021] NSWCATAP 127 Hearing dates: 3 May 2021 Date of orders: 3 May 2021 Decision date: 07 May 2021 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member A Lo Surdo SC, Senior Member Decision: Leave to extend time to file the Notice of Appeal is refused. Catchwords: LANDLORD AND TENANT – Residential Tenancies Act, 2010 (NSW) – application for termination of residential tenancy agreement – claim for unpaid rent – Tribunal not satisfied requisite notice given – application dismissed – extension of time to lodge Notice of Appeal refused Legislation Cited: Residential Tenancies Act, 2010 Civil and Administrative Tribunal Act, 2013 Civil and Administrative Tribunal Rules, 2014 Cases Cited: Gallo v Dawson (1990) HCA 30; 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Kelly v Szatow [2020] NSWSC 407 Tomko v Palasty (No. 2) [2007] NSWCA 369 Category: Principal judgment Parties: Tom Yitian Wei (Appellant) Syed Haseeb Ul-Hassan (Respondent) Representation: J Joveska (Agent) (Appellant) Respondent (Self- Represented) File Number(s): 2021/00056135 (AP 21/09114) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 3 February 2021 Before: S Bliim, General Member File Number(s): RT 20/52945 REASONS FOR DECISION Background 1. The appellant is the registered proprietor of residential premises, Bankstown NSW 2200 ("Premises"). 2. The respondent occupies the Premises pursuant to a residential tenancy agreement, dated 14 May 2020 ("Agreement"). 3. By application lodged with the Tribunal on 18 December 2020, the appellant as landlord sought an order pursuant to section 87 of the Residential Tenancies Act, 2010 ("Act") for an order terminating the Agreement for non-payment of rent ("Application"). 4. On 3 February 2021, the Tribunal ordered that it did not have jurisdiction to determine the Application because no evidence was provided of the most recent termination notice upon which the appellant as landlord relied ("Tribunal Decision"). Grounds of Appeal 1. A Notice of Appeal of the Tribunal Decision was lodged on 10 March 2021. 2. The appellant asserts that he issued a notice of termination on 18 December 2020 ("Notice"). However, he accepted that the Notice was not in evidence before the Tribunal at first instance and that accordingly, the Tribunal was entitled to find, as a matter of law, that the requirements of section 87(4) of the Act were not satisfied. 3. The appellant's sole ground of appeal was that he was not given an adequate opportunity by the Tribunal to place the Notice before it at the hearing. However, the appellant did not, contrary to the directions made on 17 March 2021, adduce the sound recording or transcript of the hearing at first instance relevant to this issue. Appeal commenced out of time 1. The appeal was not commenced within time. 2. The appellant received the Tribunal's reasons for decision on 3 February 2021. The appeal was not lodged until 10 March 2021, that is, some 24 days beyond the 14 days allowed for filing the notice under Rule 25(4)(b) of the Civil and Administrative Tribunal Rules, 2014 ("NCAT Rules"). We may extend time for filing a notice of appeal under section 41 of the Civil and Administrative Tribunal Act, 2013 ("NCAT Act"). 3. Accordingly, the appellant requires an extension of time to file the notice of appeal. In Kelly v Szatow [2020] NSWSC 407, the Court summarised the principles that apply to an extension of time to appeal. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the plaintiff's case and consideration of whether the defendants would be prejudiced by a granting of the application: see Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5]; Tomko v Palasty (No. 2) [2007] NSWCA 369 at [55]. 4. The appellant bears the onus of demonstrating that strict compliance with the timeframe would work an injustice: see Gallo v Dawson (1990) HCA 30; 93 ALR 479 in which, McHugh J said at [2]: [2] …The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1978] VR 257 at 262. This means that 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 applicant. 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935: 'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.' 1. By way of explanation for the delay in commencing the appeal, the appellant contended that he was not aware of the 14 day time limit within which to bring the appeal. Instead, he acted under the erroneous understanding that he had 28 days to appeal. There was no explanation as to why the appeal was still not lodged within 28 days, in those circumstances. 2. As to the likely prospects of the appeal, the sole ground of appeal on which the appellant relies is that he was not afforded an opportunity by the Tribunal at first instance to adduce evidence of the Notice. However, the appellant has adduced no evidence in support of this assertion. In particular, the appellant has not made available the sound recording or a transcript of the proceedings before the Tribunal at first instance which provides any support for the assertion. 3. Further, we are not persuaded that strict compliance with the rules in this case will work an injustice on the appellant. If, as the appellant submitted, the respondent continues to be in default of his obligations under the Agreement, the appellant is at liberty to pursue whatever remedies may otherwise be available to him in the Tribunal in respect of any such default. 4. In these circumstances, leave under section 41(5) of the NCAT Act to extend the time prescribed by Rule 25(4)(b) of the NCAT Rules to commence this appeal is refused. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 07 May 2021