Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Constantidis v Sigalas [2021] NSWCATAP 189 Hearing dates: 1 February 2021 Date of orders: 25 June 2021 Decision date: 25 June 2021 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy-President P H Molony, Senior Member Decision: (1) The Appeal Panel dispenses with a further hearing of this matter under s 50(2) of the Civil and Administrative Tribunal Act 2013. (2) Leave to appeal refused. (3) Appeal Dismissed. (4) No order as to costs. Catchwords: LEASES AND TENANCIES – default and termination – legislation protecting tenants – covid-19 pandemic protections – whether a tenant was an impacted tenant APPEALS – procedural fairness – leave to appeal -refusal to admit evidence on appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 NSW Residential Tenancies Act 2010 NSW Residential Tenancies Regulations 2019 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 Ward v Nand [2021] NSWCATAP 78 Texts Cited: Lexis Nexis Australia, Cross on Evidence, at para 5005 Category: Principal judgment Parties: George Constantinidis (First Appellant) Michael Gorr – (Second Appellant) Demitra Sigalas (Respondent ) Representation: Appellants (Self Represented) McGrath Property Management (Agent) (Respondent) File Number(s): 2020/00371139 (AP 20/46151) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 19 October 2020 Before: P French ,General Member File Number(s): RT 20/37433 reasons for decision Background. 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) against a decision made in the Consumer and Commercial Division (CCD) of the Tribunal on 19 October 2020. 2. The original application to the Tribunal was brought by the respondent to this appeal Demitra Sigalas (the landlord) against George Constantinidis and Michael Gorr (the tenants), the appellants in this appeal. The dispute arose under the Residential Tenancies Act 2010 (NSW) (the RT Act) and concerned an application for termination and arrears of rental of a property, rented by the tenants from the landlord, under a 26 week written tenancy agreement which commenced on 10 October 2019. The fixed term tenancy agreement expired on 8 April 2020 and the tenancy thereafter continued on a periodic basis. 3. On 3 July 2020, the landlord's agent served a 90 day notice of termination for no grounds on the tenants. It required the tenants to give up vacant possession on the 5 October 2020. On 27 August 2020, the landlord's agent served another notice of termination on the tenants requiring them to vacate on 11 September 2020 for non-payment of rent. That notice contained a notice to Covid impacted tenants. 4. An application to the Tribunal was filed on 3 September 2020 seeking, among other things, termination, possession and rent arrears. On the same day, the Registrar made directions for the filing of documents and evidence by the parties. The application was listed for hearing on 19 October 2020. 5. In the course of the hearing the Tribunal: 1. heard and rejected submissions from Mr Constantinidis that the tenancy was Covid impacted; 2. refused an application for an adjournment to enable the tenants to produce further proof that the tenancy was Covid impacted; 3. admitted into evidence a bundle of documents relied on by the landlord, over the tenants objections that the bundle was being filed outside the time set by the Registrar's directions and that the tenants had not been given a reasonable time to consider or respond to them; and 4. found that the tenants been served with a notice of termination based on rent arrears, which were proved, and had previously frequently failed to pay the rent owing; and 5. rejected the tenants oral application for a reduction in rental due to a failure by the landlord to repair. 1. The Tribunal terminated the tenancy agreement and made an order for immediate possession. It ordered the tenants to pay arrears of $7,842.86 immediately. The Tribunal provided short written reasons for its decision. 2. On 3 November 2020 Mr Constantinidis filed a notice of appeal within time against that decision on the basis that the decision contained errors of law. He also sought a stay of the Tribunal's orders. 3. On the same day, the Appeal Panel suspended the order for possession until 5pm on 18 November 2020, conditional upon Mr Constantinidis paying the landlord $800 by 11 November 2020. The appeal panel also made a series of directions and listed the matter for call over and hearing of the stay application on 18 November 2020 at 12 PM. 4. When the appeal returned for directions on 18 November 2020, the Appeal Panel joined Mr Gorr as a co-appellant and made directions for the filing and serving of submissions with supporting material and directed that an appeal hearing be listed on 1 February 2021. The application for a stay was refused. 5. A further application for a stay was made by the tenants on 8 December 2020. It was refused by the Appeal Panel on 9 December 2020. 6. On 4 January 2021, the landlord says the tenants vacated the premises and the landlord's took possession. The tenants say they were locked out on 9 January 2021. There is no doubt that the tenants are no longer in possession of the premises and the tenancy has been terminated. 7. The appeal was listed before us on 1 February 2021. After hearing from both parties, we made the following orders: The appeal is adjourned part heard with the following directions: 1. The Appellant is to file and serve within 7 days 2 bundles: (1) Bundle A: the documents the Appellant says were emailed to the Tribunal on 19 October 2020 with the covering email. (2) Bundle B: the documents lodged by the Appellant with the Tribunal in support of the Appeal and which the Appellant says were attached to the Notice of Appeal. 2. With the bundles, the Appellant is to file and serve submissions in support of his appeal. 3. The Respondent is to file and serve within 14 days submissions and evidence in response to the Appellant's bundles and submissions. 4. The parties are to include a submission as to whether the appeal can be determined on the papers taking into account the submissions received at the hearing today. 1. We have since considered the material filed by the tenants in response to those orders and the submissions of the parties. It is important to note that the landlord's agents do not agree that they were previously given either complete bundle by the tenants. Should the appeal be determined without a further hearing? 1. Section 50 (2) to (4) of the CAT Act provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. 1. In this case the landlord has indicated his agreement to the application being determined on the papers. The tenants have not addressed the issue in their submissions, despite being directed to do so. Having reviewed all the materials we are satisfied that this appeal can be finally determined in the absence of the parties, by considering the materials lodged by them and the submissions made at the hearing on 1 February 2020. We therefore dispense with a further hearing. Scope and nature of internal appeals. 1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) the Civil and Administrative Tribunal Act 2013 (the NCAT Act). 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division (CCD) are limited to those set out in cl 12(1) of Schedule 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; 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, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 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. Even if an appellant from a decision of the CCD has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] 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 stated at [13]: 13. 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, 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. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 1. In the present case, having read all the submissions and materials relied on by the tenant's it is clear that leave will be required under cl 12(1) of Schedule 4 for them to proceed with a number of issues they wish to argue. Concerning the Bundles of information provided by the Tenants. Bundle A 1. At the hearing on 1 February 2020 the tenants insisted that Bundle A had been emailed to the Tribunal hours before the hearing on 19 October 2020 and maintained that that the Tribunal had not had regard to it during that hearing. 2. Our order allowing the tenants to file and serve that material was conditioned on the tenants providing a copy of the covering email, so that we could verify that it, and the attached materials, had in fact been sent to the Tribunal. Bundle A contains no such email. In submissions the landlord's agents say that they had not previously seen bundle A, "in it its entirety". 3. There is no evidence that establishes that bundle A was among the materials to be considered by the Tribunal when making its decision. Despite being given the opportunity to do so, the tenants have not provided us with evidence that the bundle was before the Tribunal on 19 October 2020 by producing the covering email. 4. In those circumstances we do not accept that Bundle A was among the material before the Tribunal when it made its decision. We decline to admit Bundle A as evidence before the Appeal Panel on that basis. Bundle B 1. Bundle B contains documents – including a second notice of appeal specifying hardship grounds – which the tenant's said were filed with their appeal documents on 3 November 2020, but which were not initially with the appeal papers held by the Appeal Panel. The contents of Bundle B are: 1. Bundle B submissions. 2. Notice of appeal filed with the Tribunal on 3 November 2020 with submissions. 3. Notice of appeal on hardship grounds dated 2 November 2020 with submissions and the following attachments: 1. medical certificate from Dr Brian Cung dated 23 October 2020 setting out Mr Constantinidis' "medical problems". 2. Limited patient history for Mr Constantinidis from Dr Brian Cung, undated. 3. Pathology results for Mr Constantinidis dated 22 September 2020. 4. Prescription for Mr Constantinidis from Dr Cung dated 23 October 2020. 5. Centrelink medical certificate completed by Dr Cung for Mr Constantinidis and dated 4 September 2020. 1. Order made in proceedings numbered RT/42338 between Michael Gorr as tenant and another person as landlord in which the Tribunal found on 30 October 2020 that Michael Gorr was Covid impacted and dismissed an application for possession because there had not been a formal rent negotiation process. 2. Gas bill addressed to Mr Constantinidis dated 12 October 2020 for an outstanding amount of $240.77. 3. Electricity bill addressed to Mr Constantinidis dated 16 October 2020 for an outstanding amount of $586.02. 4. Electricity reminder dated 20 October 2020 the $548.01. 5. Tribunal order made on 19 October 2020 which is the subject of this appeal. 6. Undated and unsigned stay application to the Tribunal with attached submissions seeking a stay. 7. Email from Mr Constantinidis to the landlord's agent dated 29 November 2020 regarding proposed Supreme Court proceedings to have him declared Covid impacted, with attached correspondence, initiating application and other Court documents. 8. A declaration dated 2 December 2020 made by Mr Constantinidis with respect to him ceasing employment on 22 March 2020. 9. Photocopy Mr Constantinidis' license 10. A Centrelink receipt dated 16 July 2020. This contains no details of what the receipt is for. 11. A McGrath Property Management tenants assistance form advising that Mr Constantinidis was unemployed, dated 16 July 2020. 12. Centrelink payment history from 20 November 2022 to 18 December 2020. 13. Transaction history for NAB personal account from 1 February 2020 to 31 March 2020 and from 1 April 2020 to 30 November 2020. 14. Document entitled "financial position of housemate Michael Gorr … 4th December 2020." 15. Statutory declaration of Michael Gorr made 17 November 2020 relating to his financial affairs. 16. NAB transaction history for Mr Constantinidis showing credits from 3 February 2020 to 6 November 2020. 17. Medical certificate from Dr Eric D'Souza regarding Mr Constantinidis dated 29 October 2020. 18. Print outs of Mr Constantinidis' origin account for electricity and gas showing amounts owing up till January 2021 but showing no date of printout. 19. Stay application signed by Mr Constantinidis on 8 December 2020. 20. NCAT complaint form signed by Mr Constantinidis and dated 7 December 2020. 1. In the Bundle B submissions, the tenants explained that: Appeal No 1 and appeal No 2 were hand delivered to the NCAT appeals registry and the application for a stay on current orders was lodge the same day. The Registry staff took the documents and collated one appeal document. 1. The landlord's submission state that they had not previously received Bundle B, but then proceed to make submissions to in reply to them. The second appeal was not among the documents before the Appeal Panel. 2. With respect to the remainder of Bundle B we note that three of those documents also formed part of Bundle A: the medical certificate at 3(e), and 13 and 14. The same fate befalls them as part of Bundle B, as it did as part of Bundle A. They will not be admitted as evidence before the appeal. 3. A significant proportion of the materials or records in Bundle B relate to events that occurred prior to the hearing on 19 October 2020 and were in existence or plainly obtainable prior to that date: these are those numbered 3(e), 5, 6, 12, 13, 14, 16 (until the date of hearing), 18, 19 (until the date of hearing). As such we do not propose to admit them as evidence on the appeal, because they were available and should have been put before the original Tribunal. The appeal is not an opportunity for the tenants to remedy the deficits in their original case and rerun it. 4. The documents numbered 3(a) to (d), 7, 20, 21 in Bundle B all relate to Mr Constantinidis' financial circumstances and his health that occurred after the Tribunal hearing on 19 October 2020 and are therefore not relevant to the decision made by the Tribunal on that day. We decline to admit them as evidence on appeal. 5. The information relating to the order made in the residential tenancy proceedings in which Mr Gorr was involved (4) and Mr Constantinidis' attempt to have himself declared Covid impacted by the Supreme Court (10) both occurred after the hearing and are of no relevance to the issues in this appeal. 6. The finding of the Tribunal, in proceedings between Mr Gorr and another landlord, cannot, as a matter of law, create a res judicata or estoppel by record binding on the different parties in the present proceeding: see the discussion below. That order, it should be noted, was made after the Tribunal determined this matter. Similarly, Mr Constantinidis' application to the Supreme Court – for which there is no apparent outcome – is not relevant to our determination of this appeal. Consequently, we also decline to admit documents (4) and (10) in the appeal. Issue on Appeal. 1. In summary the tenants identified the following issues on appeal. 1. By finding that the tenancy was not Covid affected the Tribunal "failed to grant the tenants the right to a formal rent negotiation process through the Department of Fair Trading", provided for in cl 41(2)(b) of the (NSW) (the RT Regulation). This may have reduced the rental and therefore the rental arrears. 2. That the Tribunal denied the tenants procedural fairness by accepting and relying on materials provided to the Tribunal by the landlord out of time – this refers to the landlord filing and serving materials in support of its application on 13 October 2020 – which was well outside the time the landlord was directed to do so and which the Mr Constantinidis claims prejudiced the tenants by giving them insufficient time to prepare a reply. 3. That the Tribunal accepted unsworn evidence and unverified or unsigned documents as evidence, resulting in the landlord's agent being able to give misleading evidence. 4. That the landlord's agent had wrongly refused to refer the question of whether the landlord was Covid afflicted to the Department of Fair Trading and had wrongly required Mr Constantinidis to provide evidence of Covid affected status to them. 5. The tenants health and financial position constituted circumstances of hardship which should have led the Tribunal to refuse to make a termination order and an order for possession. 1. We note that the tenants also seek leave to appeal with respect to issues (1) and (5). 2. The landlord responded by arguing the up to date rental ledger was the principal evidence relied in at the hearing. A copy was provided to the tenants before the hearing. The landlord submitted that the tenants' materials considered by the Tribunal were either irrelevant or did not contain sufficient materials to demonstrate the Mr Constantinidis was an impacted tenant. Issues of law. Finding that the tenant was not Covid impacted. 1. When the termination notice for non-payment of rent was issued to the tenants on 27 August 2020, clause 43C of the Residential Tenancies Regulations 2019 (NSW) provided: 41C Prohibition on landlords terminating agreements or recovering possession during moratorium period. (1) For the purposes of section 229(1) of the Act, a landlord is prohibited from doing any of the following during the moratorium period— (a) giving an impacted tenant a termination notice under section 87 of the Act on the ground specified in section 88 of the Act, (b) applying to the Tribunal for an order under section 83(2) of the Act relating to a termination notice given under section 87 of the Act on the ground specified in section 88 of the Act to an impacted tenant, (c) otherwise applying to the Tribunal for a termination order in relation to a residential tenancy agreement on the ground specified in section 88 of the Act if the tenant under the agreement is an impacted tenant. Note— Section 88 of the Act relates to a termination notice given by a landlord on the ground of a breach of the residential tenancy agreement arising solely from a failure to pay rent, water usage charges or utility charges payable by the tenant. (2) However, a landlord may give a termination notice or apply for an order that the landlord is otherwise prohibited from giving or applying for under subclause (1) if— (a) the termination notice is given, or the application is made, at least 60 days after the commencement of this Part, and (b) the landlord has participated, in good faith, in a formal rent negotiation process with the impacted tenant, and (c) it is fair and reasonable in the circumstances of the case for the landlord to give the termination notice or apply for the order. (3) For the purposes of section 111(2) of the Act, a termination notice that is not given in accordance with this clause is taken not to have been given in accordance with Part 5 of the Act. (4) In dealing with an application by a landlord or an impacted tenant relating to a termination notice or a termination order, the Tribunal may, for the purposes of satisfying itself of the matters specified in subclause (2)(b) and (c), have regard to the following— (a) any advice provided by NSW Fair Trading relating to the participation of the landlord or impacted tenant in the formal rent negotiation process, including whether the landlord or impacted tenant refused, or refused to make, a reasonable offer about rent, (b) whether the impacted tenant has continued to make any payments towards the rent, (c) the nature of any financial hardship experienced by the landlord or impacted tenant, including the general financial position of each party, (d) the availability and affordability of reasonable alternative accommodation for the impacted tenant, (e) any special vulnerability of the impacted tenant, (f) the public health objectives of— (i) ensuring citizens remain in their homes, and (ii) preventing all avoidable movement of persons. (5) Subclause (4) does not limit the matters that the Tribunal may have regard to. 1. Section 228A of the RT Act defined an impacted tenant in the following terms: Impacted tenant means a tenant who is a member of a household impacted by the COVID-19 pandemic. 1. Section 228B(1) said that a household is impacted by COVID-19 when: (1) For the purposes of this Part, a household is impacted by the COVID-19 pandemic if— (a) any 1 or more rent-paying members of the household have— (i) lost employment or income as a result of the impact of the COVID-19 pandemic, or (ii) had a reduction in work hours or income as a result of the impact of the COVID-19 pandemic, or (iii) had to stop working, or materially reduce the member's work hours, because of— (A) the member's illness with COVID-19, or (B) another member of the household's illness with COVID-19, or (C) the member's carer responsibilities for a family member ill with COVID-19, and (b) as a result of any of the matters stated in paragraph (a), the weekly household income for the household has been reduced by at least 25% compared to the weekly household income for the household before the occurrence of any of the matters. 1. Weekly household income was defined in s 228B(2) to mean: Weekly household income means the total of the weekly income including any Government payments received by each rent paying member of the household (emphasis added)." Section 228A Definitions defines a rent paying member as follows: 1. A member of a household who regularly contributed to rent payable is a rent paying member of the household: see s 228A. 2. In Ward v Nand [2021] NSWCATAP 78 at [34] the Appeal Panel explained that the onus was on the tenants to establish that they were impacted tenants. As is apparent from the terms of s 228B of the RTA, there are a number of matters which are required to be proved by tenants if they wish to establish that they were an "impacted tenant" at any particular point in time. They must prove a reduction in household income of at least 25% (which will require proof of who makes up the household and each of their incomes) and that the reduction in income of any one or more rent-paying members of the household was caused by one or more of the matters set out in s 228B(1)(a). 1. There is no dispute that Mr Constantinidis had advised the landlord's agents that he claimed to be Covid impacted by completing a tenant assistance form, which is undated, but was among the documents provided to the Tribunal by the landlord. In it he stated he had lost his job and was receiving a Covid Support payment. The form said it had two attachments: a termination letter from his employer and Centrelink documents confirming support payments. There were no such attachments. The agents requested further information of that type from Mr Constantinidis in emails 2. There was also evidence before the Tribunal that the agents referred the matter to Fair Trading on 3 September 2020. 3. Mr Constantinidis told us he was of the view that he had no obligation to provide documentary proof to the agents, but that he would do so to Fair Trading. There is no evidence that he provided documentary proof to either the agent or Fair Trading, or that he was involved in further communication with them. 4. As a result, when the matter came before the Tribunal the issue as to whether Mr Constantinidis was Covid impacted was a live one. In its reasons for decision the Tribunal wrote: Mr Constantinidis asserts that the tenancy is a Covid – 19 impacted tenancy. However, the landlord's agent, Ms Mueller, gave evidence that the tenant had failed to provide her agency with supporting documents to establish the fact of that bare assertion. Similarly, in this proceeding the tenants have failed to file objective evidence sufficient to establish the fact of that claim. The tenants bear the onus of proof in establishing that his is a Covid – 19 impacted tenancy attracting the operation of part 13 of the Residential Tenancies Act 2010 and part 6A of the Residential Tenancies Regulation 2010 (sic). That onus has not been discharged in the circumstances of this case. 1. Consequently, the Tribunal found that Mr Constantinidis was not a Covid impacted tenant, made orders for termination and possession, and for arrears of rent which at that time were $9,642.86. Aside from the tenant assistance form and Mr Constantinidis' assertions that he was unemployed and Covid impacted, there was no evidence before the Tribunal that this was the case. While a medical certificate did say that he had lost his job, there was no documentary evidence that verified that he had done so as a result of the impact of the COVID-19 pandemic, or that his household was impacted. In this regard it should be noted that Mr Gorr did not attend the hearing and claim to be Covid impacted. In those circumstances, we can see no error in the Tribunal's conclusion that Mr Constantinidis had not demonstrated that he was Covid impacted. Procedural fairness. 1. The tenants argue that they were denied procedural fairness in two ways. 2. First, by the Tribunal, admitting evidence from the landlord after the time for filing it materials had expired, and in circumstances where the tenants were deprived of an opportunity to respond. In this regard the Tribunal wrote in its reasons for decision that: Mr Constantinidis submits that the Tribunal should refuse to admit into evidence the landlords bundle of documents because it was not filed within the timeframe set out in the Registrar's directions are dated 3 September 2020. However, Mr Constantinidis cannot be taken by surprise by anything contained in those documents. This dispute concerns an application for orders for termination and possession based on rent arrears. It is of very narrow compass. There is no issue the determination has been served on and received by the tenants on that ground. There is no issue as to the state of the tenants current rent account. I therefore admit these documents into evidence (as updated on the date of hearing). In rent arrears terminations applications it is necessary for the Tribunal to receive evidence as to the state of the tenants rent account on the date of the hearing. 1. Beyond asserting that they were deprived of the opportunity to respond to the landlord's bundle, the tenants do not identify in their submissions how the Tribunal's consideration of the landlord's bundle denied them procedural fairness. They do state that the landlord's bundle was provided to them on 13 October 2020, six days before the hearing. In its reasons for decision the Tribunal pointed out that the scope of the dispute was small, being a claim for termination, possession and rent arrears. The Tribunal noted that there was no dispute about the termination notice relied on or the arrears of rental. In those circumstances the tenants assertion that they were denied the opportunity to respond, by the admission the of the landlord's bundle into evidence after it was due, does not withstand the weight of analysis. The member also noted, correctly, that it is the usual practice for details of the rent unpaid to be updated to the date of the hearing, at the hearing. 2. Allowing the landlord to file its bundle of documents late did not result in the tenants being taken by surprise, prejudiced or otherwise disadvantaged. To admit such evidence when it was given to the tenants six days before the hearing, and then updated at the hearing, was not procedurally unfair to the tenants. It is consistent with the Tribunal's guiding principle that it "facilitate the just, quick and cheap resolution of the real issues in the proceedings": see section 36 of the NCAT Act. Given the amount of rent arrears was not in issue, the tenants cannot have been surprised by the material. No prejudice to them is apparent. 3. Secondly, the tenants maintain that the Tribunal denied them procedural fairness by refusing to adjourn the hearing, to enable them to gain and present evidence: 1. in reply to the landlords bundle; and, 2. which would demonstrate that the tenant was Covid affected. 1. We do not accept either of those submissions. The issues relating to the application for possession, termination and arrears were few and were not in in dispute. The tenants had been served with the documents supporting that application six days before the hearing, had time to consider them, and did not dispute them. The tenants were not taken by surprise and there was therefore no need to adjourn the proceedings to enable them to respond to landlord's bundle. 2. The other issues that arose in the course of the hearing were Mr Constantinidis' claim that he was Covid impacted and a claim that there should be a reduction in rent due to the landlord's alleged failure to repair. 3. With respect to the issue of Mr Constantinidis seeking an adjournment the Tribunal wrote: Mr Constantinidis submits that the hearing should be adjourned to allow him further time to submit documentary evidence to the landlords agent and the Tribunal to establish the tenancy's Covid 19 impacted. However, I am not satisfied that it is appropriate to do so. A party to proceedings in the Tribunal has a right to a reasonable opportunity to be heard and to have their submissions considered, but that right is not unlimited. The tenants were provided with the opportunity to submit evidence by directions issued to them by the registrar on 3 September 2020. The material submitted in response to those directions, which was received in the course of hearing, has been considered. The prejudice to the landlord from any further adjournment of the hearing would be too great due to the likely further escalation of the already very serious rent arrears. 1. It is clear that the Tribunal carefully considered Mr Constantinidis' application for adjournment and rejected it, being satisfied that the potential prejudice to the landlord from an adjournment was too great to justify a decision to adjourn. It needs to be remembered that the Tribunal fixed the arrears at that date at $7,842.86. We can see no error in the Tribunal's conclusion. Mr Constantinidis came to the hearing prepared to raise the issue of his Covid afflicted status. He had been in communication with the agents about the claim from July. He had more than enough time to prepare and gather evidence. The prejudice to the landlord should the matter have been adjourned was patent. 2. Finally, in respect to the tenants' complaint, in oral submissions, that the Tribunal failed to consider a claim for a reduction in rent due to the landlord's failure to repair we note that the Tribunal said: Mr Constantinidis submits that the Tribunal should order that the rent be reduced by 50% due to the condition of the premises on the landlord's failure to carry out repairs. This is a rent arrears termination application by landlord. The Tribunal has no power to make the order sought by the tenants in this application. If the tenants want their claim to a reduction in rent dealt with on its merits they must make their own application. 1. We agree with the Tribunal in this regard. The Tribunal's refusal to consider the tenants claim for a reduction in rent in the course of hearing of a rent arrears termination application was correct. To make such a claim the tenants must avail themselves of the procedures available under the RT Act: see s 43. 2. The tenants were not denied procedural fairness. The decision by the Tribunal, differently constituted, that Mr Gorr was an impacted tenant. 1. We have already indicated that we consider that the order made in proceedings numbered RT/42338 between Michael Gorr as tenant and another landlord to be of no relevance to this appeal. That order was made after the Tribunal's decision in the present case, between different parties and regarding different premises. It does not have a retrospective operation: see generally Lexis Nexis Australia, Cross on Evidence, at paragraph 5005. 2. While that decision is binding on the parties and their privies, it is not binding on differing parties or when the subject of the proceedings is a different tenancy agreement. In Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 358 Fisher J explained: It seems clear to me that issue estoppel can only be raised by or applied against parties who were in "controversy" at the time when the issue was first determined, either in their favour or adversely to them. If a party was not involved in the litigation of that issue, either because it was not an issue between him and another party to the proceedings, or because he was not a party at all to the proceedings at the time of resolution, then he is not affected by, nor can he raise, an estoppel. Likewise his presence initially or subsequently can not affect the right of other parties to raise or rely upon issue estoppel as between themselves. If the contrary were the case, the public interest in not having the same matters relitigated could with ease be bypassed. 1. The tenants argument that the subsequent decision of the Tribunal, in different proceedings relating to a different tenancy agreement, demonstrates an error on the Tribunal's part and must fail. Unsworn evidence. 1. Section 46(1)(b) of the NCAT Act provides: (1) The Tribunal may: (a) … (b) examine any witness on oath or affirmation or require evidence to be verified by a statutory declaration, and … 1. It is to be noted that the section provides that the Tribunal may examine a witness on oath, not that it shall. The Tribunal's practice in this regard varies between divisions and may vary depending on what is actually in dispute, the applicable legislation, and the level of agreement between the parties. 2. The tenants submit that the Tribunal fell into error by taking unsworn evidence and considering unsigned statements. The submission does not state what that evidence was and who gave it, or give details of the document concerned. The tenants have not provided a transcript or recording of the hearing, which might shed some light on what actually occurred, as required by the Appeal Panel's orders made on 20 November 2020. The landlord submits that they are not aware of any requirement for all documents to be verified, and that the question of whether sworn evidence is taken is one for the Tribunal. 3. We are not persuaded that there was any error on the Tribunal's part. Application for leave to appeal. 1. Because the landlord is now in possession of the rented premises there is no benefit or utility to be achieved by determining whether leave should be granted to appeal issue (5) 2. The fact that the landlord now has possession of the rented premises means granting leave on this ground would be pointless. This is so as the central thrust of the hardship argument – in which they seek to rely on fresh evidence relating to hardship issues which could have been obtained before the hearing – is that the Tribunal should have refused to terminate the tenancy and to grant possession to the landlord, in the exercise of its discretion on hardship grounds. As the landlord now has possession, events have passed it by. 3. Further the material that the tenants sought to rely on in support of leave being granted to argue this issue, was plainly obtainable before the hearing, i.e., 1. information relating to Mr Constantinidis' health, financial affairs and receipt of Centrelink Benefits; and 2. whether Mr Gorr was an impacted tenant. It is therefore evidence that was reasonably available at the time of the hearing. Consequently, it cannot found a basis for leave to appeal on the basis of fresh evidence. 1. In all the circumstances leave to appeal is refused. Conclusion. 1. There is no suggestion that this is a matter in which special circumstances exist which might merit a costs order under s 80 of the CAT Act. We will make therefore make no order for costs, 2. The Appeal Panel makes the following orders: 1. The Appeal Panel dispenses with a further hearing of this matter under s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. Leave to appeal refused. 3. Appeal Dismissed. 4. No order as to costs. ********** 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: 25 June 2021