Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Araghi v St George Community Housing [2021] NSWCATAP 154 Hearing dates: 14 May 2021 Date of orders: 28 May 2021 Decision date: 28 May 2021 Jurisdiction: Appeal Panel Before: Cowdroy AO QC ADCJ, Principal Member S Goodman SC, Senior Member Decision: (1) The Appeal Panel orders that the orders made in proceedings SH 20/51743 on 21 December 2020 be set aside. Catchwords: APPEALS — procedure — stay pending appeal — leave to appeal — discharge of orders LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — quiet enjoyment — social housing tenancy agreement Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: AHB v NSW Trustee and Guardian [2014] NSWCA 40 Texts Cited: Nil Category: Principal judgment Parties: Mohsen Ghaderi Araghi (Appellant) St George Community Housing (Respondent) Representation: Solicitors: Appellant (self-represented) Respondent (self-represented) File Number(s): 2021/00056062 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not reported Date of Decision: 30 December 2020 Before: J Ringrose, General Member File Number(s): SH 20/51743 REASONS FOR DECISION Introduction 1. By Application for Stay of Original Decision Pending Appeal, the appellant sought a stay of orders that were made in proceedings SH 20/51743 on 21 December 2020. On that day the Tribunal made orders in relation to a residential tenancy. The appellant is the tenant and the respondent is the landlord. The applicant also filed a Notice of Appeal. Such notice was not filed until 25 January 2021. Since the decision of the Tribunal was received on 30 December 2020, the appeal is out of time and would require a grant of leave to bring the appeal. Tribunal orders 1. The orders made on 21 December 2020 by the Tribunal are as follows: 1. The tenant must comply with the terms of residential tenancy agreement by not to cause or permit a nuisance, or interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the Tenant. 2. If these orders are not complied with by the tenant then: at any time before 21-Jun-2021 the landlord may request the re-listing of this application to determine whether the tenancy should be terminated. 1. The Notice of Appeal stated the decision was not fair and equitable because the appellant was "sick and could not talk and defend myself properly". A medical certificate is attached dated 21 December 2020. Such certificate merely states that the appellant "is unable to attend the tribunal hearing today due to a medical condition". Such certificate, without specifying the nature of the illness and how the illness affects the ability of the appellant to appear, is clearly inadequate: see AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [4]–[5]. 2. The appellant also claims that he was not provided sufficient time to provide instructions to defend the application. He stated he received notice on 16 December 2020 requesting a response by 18 December 2020. The appellant states that he is "no good in English and have no lawyer and do not know law", and that he was required to go to the public library where he could only use a computer two hours a day. The appellant also alleges that the landlord had no evidence to prove the complaints made against him; and that there is no address given of the complainants. 3. In the absence of the appellant, the Tribunal made the orders set out above having considered the material put before it. 4. The application for a stay was made by the appellant but only in respect of Order 2, as set out above. The appellant also appeals against such order. Observations 1. It should be observed at the outset that Order 1 did not require the appellant to do any more than was required of him under his tenancy. Order 2 had no substantive effect unless an application was brought by the landlord to take action to terminate the tenancy. That is, there was no action taken to terminate the tenancy of the appellant. Accordingly, the operation of the stay would serve no purpose since there is no action proposed to be taken without a further application being made by the respondent landlord. 2. This matter came on for hearing on 14 May 2021. The appellant appeared by telephone with the assistance of an interpreter. For the most part, the appellant wished to challenge the orders made against him on the basis that there were no complaints against him which were valid and which could have justified the orders. 3. Because the appeal is an internal appeal under section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) and founded upon the basis that the decision was not fair and equitable, the appellant requires the leave of the Appeal Panel to bring the appeal: section 80(2)(b). Leave is also required to bring the appeal out of time. As this was a matter involving a residential tenancy, the appeal was required to be bought within 14 days of notification of the decision. Irrespective, it became apparent to the Appeal Panel that even if leave were granted in respect of both applications, there remained a factual dispute as to whether or not the complaints were justified. 4. The representative of the landlord informed the Appeal Panel that there had been further conduct by the appellant which was unacceptable and that, as a result, the landlord would be filing an application as foreshadowed in Order 2. The appellant denied any such conduct. 5. In circumstances in which there was no order requiring the appellant to vacate and there was no order that the occupancy be terminated, the Appeal Panel considered that the most expeditious way of proceeding would be to adjourn this application pending the determination of any application being made by the landlord under Order 2. Following a hearing on that matter, this matter should then be revived. For this reason the Appeal Panel made the following orders on 14 May 2021: 1. The Appeal is adjourned to a date to be confirmed by the Registrar following the determination of an application to be made as provided by the orders in SH 20/51743 made on 21 December 2020. Such application to be made within 7 days. Subsequent events 1. The landlord has not complied with the direction to file any application within seven days. In these circumstances the Appeal Panel considers that the orders appealed from should be set aside. The landlord was provided with an opportunity to proceed with its claims against the appellant, but it has not done so despite its clear acknowledgement that it would file its application within seven days of the hearing before the Appeal Panel. The appellant has asked for Order 2 made on that day to be stayed and his appeal relates to that order. 2. The orders made on 21 December 2020 should not be permitted to remain if they are to serve no utility. Those orders should now be vacated. Orders 1. The Appeal Panel orders that the orders made in proceedings SH 20/51743 on 21 December 2020 be set aside. ********** 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: 28 May 2021