Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Le v Vo [2021] NSWCATAP 257 Hearing dates: 18 August 2021 Date of orders: 30 August 2021 Decision date: 30 August 2021 Jurisdiction: Appeal Panel Before: S Thode, Senior Member A Boxall , Senior Member Decision: (1) Leave to file the appeal out of time refused. (2) Appeal dismissed Catchwords: APPEAL – LEASES AND TENANCIES – retail lease - terms of the lease – failure to disclose grounds of appeal – no issue of principle Legislation Cited: Civil and Administrative Tribunal Act 2013; Retail Leases Act 1994 (NSW) Cases Cited: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ; Collins v Urban [2014] NSWCATAP 17; Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22; Category: Principal judgment Parties: Thi Thu Thuy Le (Appellant) Thi Bach Hue Vo (Respondent) Representation: Appellant in person in the presence of a Vietnamese Interpreter Mr Y Tang of Shanahan Butler Solicitors File Number(s): AP 2021/165973 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 5 May 2021 Before: Senior Member L Wilson File Number(s): COM 20/53528 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 against a decision made in the Consumer and Commercial Division of the Tribunal on 5 May 2021. 2. The application to the Tribunal was brought by the respondent to the appeal, against the appellant seeking orders for rent arrears and vacant possession pursuant to s72 of the Retail Leases Act 1994 (the Act). 3. For the reasons set out below, we have decided to dismiss the appeal. Background 1. The appellant and respondent are the parties to a retail lease. The respondent is the registered proprietor and lessor of the property known as xx Restwell Street, Bankstown, NSW. The appellant as the lessee of the property has operated a laundromat since 2011 and remained in possession of the premises on a month-to-month basis since the term of the lease expired on 22 October 2014. She has now vacated the premises. 2. The appellant failed to pay rent for over a year and the respondent sought possession of the property. On 9 June 2020 the managing agent served the appellant with a notice to terminate the lease and to vacate the property by 22 October 2020. 3. The appellant refused to vacate the property and in December 2020 the respondent lodged an application with the Tribunal seeking orders for vacant possession and the payment of outstanding rent and water rates owed by the appellant. Tribunal proceedings and decision 1. The application to the Tribunal was lodged on 22 December 2021. The appellant lodged with the application a certificate from the NSW Small Business Commissioner issued under s 68 of the Retail Leases Act 1994 (the Act) that a mediation between the parties had not resulted in a resolution. 2. The application was listed for a Directions hearing on 18 February 2021. The parties were encouraged to obtain legal advice and it was noted that that the parties were entitled to legal representation as of right. The appellant indicated she would not file a cross-application. 3. The matter was first listed before the Tribunal on 5 May 2021 for final hearing. The respondent claimed damages for rental arrears and vacant possession pursuant to section 72 of the Act and final orders were made. The Tribunal delivered oral reasons for decision. Only the orders were published: 1. Pursuant to section 72(1)(c)(ii) the Tribunal orders the lessee (Ms Le) to surrender possession of rental premises at Shop 1 xx Restwell Street Bankstown, to the lessor (Ms Vo) on or before 2 June 2021. 2. Pursuant to section 72(1)(a) the Tribunal orders the lessee (Ms Le) to pay the lessor (Ms Vo) $34,394 for rent arrears and $2578.91 for water arrears which is a total of $36,973.27. The landlord waives rent from 23 April 2021 until the lessee vacates the premises on a before 2 June 2021. The lessee must pay the lessor immediately. FOR DETAILED ORAL REASONS GIVEN. 1. An appeal was filed on 7 June 2021, more than 28 days after the time allowed for such an appeal and we address the delay further below in these reasons. The appeal was listed for a call over and stay application on 25 June 2021. The appellant was directed to lodge with the Tribunal all the evidence given to the Tribunal below on which the appellant intended to rely and a sound recording or transcript of the hearing at first instance and if oral reasons were given, and/or what happened at the hearing is being relied upon, a typed copy of the relevant parts. 2. The appellant did not comply with the Directions and we have not received a recording, or a typed copy of the oral reasons. Accordingly, we do not know what oral evidence was given to the Tribunal and, because the Tribunal's reasons in the proceedings were delivered orally, we do not know the Tribunal's reasons for its two decisions. In addition, the appellant did not request a written statement of reasons per s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (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 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 that 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 v Urban), 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 Consumer and Commercial Division 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 cases involving a self-represented litigant who cannot clearly articulate grounds of appeal and distinguish between questions of law and errors of fact in relation to which leave to appeal is required, it is appropriate for the Appeal Panel to consider the material provided on the appeal to identify what the grounds of appeal are (Prendergast at [12]). Submissions and evidence 1. In deciding the appeal, we have had regard to the following: * The Notice of Appeal dated 7 June 2021. The appellant's submissions dated 27 May 2021 include a letter addressed to the NCAT Registry at Liverpool, seeking to file a retail lease application and retail lease application for interim orders and 74 pages of attachments. * The Reply to Appeal dated 1 July 2021, the respondent submissions and the affidavit of Thi Bach Hue Vo dated 5 August 2021. Notice of Appeal 1. The Notice of Appeal was lodged on 7 June 2021, which is not within the 28 day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules). Grounds of Appeal 1. The grounds of appeal specified in the Notice of Appeal are: My request for the payment has not been paid yet, business purchase and CPI $58,444.96; Profit and loss for 6 years and 7 months $153,900 Shop signage removed without leave Total $212,344.96. A number of holes drilled inside 1. In the section entitled "ORDERS THAT NCAT APPEAL PANEL SHOULD MAKE" the appellant states "the lessor must pay me the total amount of $212,344.96". 2. The section entitled 'Are you asking for leave?' is left blank. 3. The appellant otherwise provided no explanation why the decision under appeal was not fair and equitable, or why the decision of the Tribunal was against the weight of evidence and has provided no grounds of appeal. 4. The section entitled 'do you require an extension of time' was checked 'yes'. 5. The appeal was lodged in the Liverpool Registry on 7 June 2021 and was therefore lodged five days outside the 28 days allowed under the Rules governing the time for lodgement of the appeal, and no explanation has been provided on the notice of appeal. We must consider whether the appeal has merit and whether time should be extended by 5 days to permit the filing of the appeal out of time. Should time to file the Appeal be extended? 1. Rule 25(4)(c) of the Rules provides that, in the case of an appeal from a decision under the Act, an internal appeal must be lodged within 28 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 5 May 2021 as both parties were present for the hearing and for the oral reasons of the Tribunal. It is not suggested that she sought written reasons under s 62 of the NCAT Act. The Appeal was lodged on 7 June 2021, five days beyond the time allowed for filing the notice under the Rules. 3. We may extend time pursuant to s 41 of the NCAT Act if the appellant provides a reasonable explanation for the delay. 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 five days. The respondent has not submitted that she has suffered any significant prejudice as a result of this delay. The appellant did not provide any written reasons for the delay on the Notice of Appeal but addressed us at length at the hearing. She submitted that she delivered the notice of appeal to the registry on Sunday night 30 May 2021 at about 11 pm. She then waited to hear from the Liverpool Registry. When she was not contacted by the Registry she returned several days later and found the notice of appeal on the floor. The appellant picked up the notice and filed it at the Liverpool Registry counter on 7 June 2021, being the date when payment was received. 2. The most significant factors in granting leave are whether the appellant has an arguable case, and whether she can demonstrate that strict compliance with the rules would work an injustice upon her. 3. For the reasons that follow we are not of the view that the appellant has a fairly arguable case, and she cannot demonstrate that strict compliance with the rules will result in an injustice. In order to determine whether the appellant has a fairly arguable case, we have considered that the appellant has failed to articulate any grounds of appeal. Indeed she left those sections on the notice of appeal that set out the reasons for an appeal entirely blank. 4. We consider that the appellant's has failed to articulate grounds of appeal but now seeks to prosecute a claim for damages against the respondent that was not articulated in the hearing below. The appellant claims that the respondent caused losses to her business in the sum of $153,900 over a period of six years because signage was removed and 'holes were drilled' in 2014. No submission has been made how the respondent has caused the loss to the appellant and there is no evidence that supports a claim for damages now sought. We accept the respondent's submission that this was not raised at the hearing below. In any event, we have not been provided with a copy of the transcript, or a recording, or a copy of the oral reasons. 5. We refer to correspondence dated 28 May 2021 addressed to the registry and attached to the notice of appeal. The appellant states she would 'like to apply for retail lease application and retail lease application for interim orders". However, no application was filed. Section 40 of the NCAT Act states that "an application ... to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules". In relation to general applications, rule 23 (1) of the Civil and Administrative Tribunal Rules 2014 states: (1) A general application must be- (a) in or to the effect of the approved form, and (b) duly completed, and (c) lodged at the Registry, and (d) accompanied by the applicable fee (if any) for the application. 1. Even if proceedings for compensation had been commenced against the respondent, the appellant did not articulate a claim for compensation by way of defence, set-off or cross claim at the first hearing. If the appellant does file an application such application will be determined by a Tribunal at first instance and cannot be determined by this Appeal Panel. Conclusion 1. The Notice of Appeal fails to articulate any grounds of appeal raising errors of law. 2. We therefore consider whether the Notice of appeal raises any grounds of appeal for which leave is required. 3. The Notice of appeal fails to address: 1. whether the decision of the Tribunal under appeal was not fair and equitable; or 2. whether the decision of the Tribunal under appeal was against the weight of evidence; or 3. whether significant new evidence has arisen being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. 1. The issues now sought to be litigated by the appellant are claims for damages arising from events dating back to 2014, but a cause of action has not been disclosed, and an application compliant with s40 of the NCAT Act has not been lodged with the Tribunal. 2. During oral submissions the appellant submitted that the rent had been miscalculated, but provided no evidence in support of her contention. In the absence of any submission or evidence to support arguable grounds of appeal we are of the view that the appeal has no merit. 3. We are of the view that the appellant has provided no argument why she has suffered a substantial miscarriage of justice. We are not of the view that leave to appeal out of time should be granted. 4. The Appeal Panel is of the view that the time should not be extended under section 41 of the NCAT Act primarily because the Appeal Panel is not satisfied that the appellant has established that any injustice will accrue to the appellant by reason of requiring strict compliance with the rules. 5. The Appeal Panel considers the appellant has failed to articulate grounds of appeal, and that the critical sections of the Notice of Appeal were left blank. The appeal was brought late and the appellant provided little justification for the delay. There was no disentitling conduct on the part of the respondent to the appeal, and accordingly, having been successful at the hearing, the respondent is entitled enforce the orders made in her favour without further delay. 6. Accordingly, the Appeal Panel refuses to grant leave to file the appeal out of time and the appeal is dismissed. Conclusion 1. Leave to file the appeal out of time refused. 2. Appeal dismissed. ********** 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: 30 August 2021