Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Patel v Mallepally [2021] NSWCATAP 307 Hearing dates: 30 September 2021 Date of orders: 06 October 2021 Decision date: 06 October 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks, Principal Member A Lo Surdo SC, Senior Member Decision: (1) leave to appeal out of time is denied (2) the appeal is dismissed Catchwords: APPEAL – appeal filed out of time – appellant claimed that he was unable to provide all of his evidence and that the Tribunal failed to consider all aspects of his Application – held that there was no basis for the appellant's contentions – leave to appeal out of time denied – appeal dismissed Legislation Cited: Residential Tenancies Act 2010 (NSW) Cases Cited: NIL Category: Principal judgment Parties: Dipenbhal Sureshchandra Patel (appellant) Rakshita Mallepally (respondent) Rishita Madanu (respondent) Vamshidhar Reddy Konda, (respondent) Sai Charan Reddy Busupalli (respondent) Siddarth Yekula (respondent) Pavan Kumar Yadav Belli (respondent) Sandip Reddy Nomula (respondent) Representation: Appellant in person Pavan Kumar Yadav Belli (respondent) Sandip Reddy Nomula (respondent) File Number(s): 2021/00111920 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 22 March, 2021 Before: J Lennard, General Member File Number(s): RT 20/48969 reasons for decision Background 1. The appellant, Dipenbhai Sureshchandra Patel, leased residential premises to seven named tenants who are the respondents in these proceedings. On 20 November 2020 the appellant lodged an Application in this Tribunal under the Residential Tenancies Act 2010 (NSW) for termination and possession of the rented premises for non-payment of rent. In the Application the appellant claimed payment of $3,000 being four weeks arrears of rent as at 2 November 2020, $663 for unpaid water gas and internet bills, $1,050 for "late payment charges" and $1,100 for electricity charges. 2. There is a reference in the Application to complaints by some of the tenants that the appellant was continuing to carry out maintenance and renovation work during the tenancy and that this was a reason for non-payment of the rent. The Application specified the date of the termination notice as 2 November 2020 and the date of termination of the lease as 19 November 2020. There is also reference in the Application to allegations that the tenants had damaged the premises. 3. Pursuant to directions made by the Tribunal, the parties to the proceedings were required to provide documents to substantiate their respective cases. 4. The proceedings came on for hearing before a Member of the Tribunal on 22 March 2021. At the conclusion of the hearing, the Member ordered that the respondents "by consent" pay to the appellant the sum of $239.97 for "painting repairs". Prima facie, it would appear that this was the only basis upon which the appellant had established any claim against the respondents. The appeal 1. On 20 April 2021, the appellant filed a Notice of Appeal seeking leave to appeal out of time. The grounds of appeal were that the appellant was not able to submit all of his evidence for the hearing electronically because of technical limitations on the size of documents that were allowed to be submitted, and that only part of his evidence relative to the "damages repair claim" was available to the Member. In addition, the appellant said insufficient time was allocated to deal with all of the evidence which he had submitted. He asserted that there was an "error in judgement" because the Member had not considered all the facts and materials presented in support of his case, notwithstanding that the respondents did not provide any evidentiary material. 2. A Reply to Appeal was filed only by Sandeep Nomula. Mr Nomula denied that he was a tenant and stated that no order should have been made against him. Although he has been named as a respondent to the order made by the Member, it is impossible to understand on the material available to us how he has come to be named as a respondent to the order in circumstances where he is clearly not shown as a tenant on the residential tenancy agreement.. 3. The appeal came on for hearing before us on 30 September 2021. On this occasion the appellant appeared in person as did the respondents Pavan Kumar Yadav Belli and Sandip Reddy Nomula. 4. The appeal is clearly out of time. The explanation given in the Notice of Appeal is that "The feedback from NCAT complaint was received on 20/04/2021 only." During the course of the appeal hearing the appellant explained that he had made a complaint to the Registrar about the manner in which the Member had conducted the proceedings and he had only received a reply to that complaint on 20 April 2021. He had filed the Notice of Appeal that day. In view of the conclusion which we have reached as to the underlying merits of the appeal, it is not necessary that we consider this matter in any detail. 5. Notwithstanding that the appellant was directed to provide a recording and transcript of the proceedings before the Member, no recording was provided. However, an attempt at a transcript which is obviously inaccurate in many respects has been made available. This document allows the following observations to be made concerning the hearing: 1. only one of the named tenants Vamshidhar Konda appeared. Mr Konda informed the member that one of the named tenants Rakshitha Mallepally had since died. In view of the conclusion which we have reached concerning the disposal of these appeal proceedings, it is not necessary that the proceedings be formally amended by substituting either the NSW Public Trustee or the legal personal representative of this person as a named respondent; 2. the appellant had not provided any schedule of rent received and the arrears of rent to enable the Member to understand how much rent was due and owing and in respect of what periods. Whilst the appellant provided bank statements, these were not conclusive concerning the receipt of payment of rent, particularly as Mr Konda informed the Member that most payments were made in cash. The appellant also provided copies of SMS communications with some of the tenants concerning allegations of outstanding rent and protestations of payment of rent, but these were not sufficient to establish whether and to what extent any rent was due and payable, and if so, how much. At one stage the Member pointed out that the appellant had told her that rent had only been paid to 2 October 2020, yet there was evidence from the appellant's documents that at least a further payment of $900 had been made subsequently. The Member is recorded as having said "if all you've got is some smss, that show the time you were asking for rent to be paid, and a copy of an account that shows me that some rent was paid. And you haven't given me a schedule to say how much is claimed, then you haven't made that (sic) your case. And I've got against that, the tenants' consistent evidence that all these bills, and any rent was paid in cash from time to time. So I would accept that you are possibly owed some monies, but I can't calculate it out of thin air, you have to tell me how to do it. And I can't be satisfied on the balance of probabilities that any of that claim is owed;" 3. with respect to a claimed payment of a water bill, the appellant had produced an account which commenced on 28 July 2020, although the tenants did not take possession until 15 August, 2020. The Member declined to rely on this account especially as Mr Konda said it had been paid in cash; 4. the Member declined to allow monies for an outstanding electricity account of $991.76 because, inter alia, there was some concern that the appellant was using power from the premises to carry out renovation works. The state of the "transcript" does not allow any concluded view to be made about this matter, and therefore cannot support the appeal with respect to it; and 5. with respect to a number of items concerning the claimed cost of repair, the Member discussed these items with the appellant, sought information from him to justify the amounts claimed, asked him to show her where in his evidentiary material there was anything corroborative of his claim, raised concerns that some of the invoices were not supportive of particular claims, and noted that there was no evidence at all with respect to some matters. The Member concluded that the appellant had had an opportunity of supplying evidence supportive of his claims but had failed to do so. 1. There is no indication in the "transcript" that the appellant raised with the Member any difficulties in uploading material to the Tribunal. When asked during the course of the appeal whether he had raised such difficulties with the Member, the appellant said that he had not. 2. We asked the appellant to identify what documents he had been unable to upload when filing material in support of his claim. He said that because of the restrictions imposed, he was forced to forward extensive photographic evidence in a smaller format, making it difficult to examine them in detail. These photographs were provided in the main to demonstrate the nature and extent of damage sustained to the premises by the tenants during the course of their occupation of them. Those photographs have been provided to us for the purpose of the appeal proceedings and they do show apparent damage to various parts of the premises, which we assume in favour of the appellant were the premises the subject of the rental agreement. There are other photographs which were provided to us containing the word "incoming" which the appellant informed us had been made available to him by a real estate agent prior to the premises being let. However, there is no information of any kind which is corroborative of these photographs having been taken of the rented premises by a real estate agent and on what date. In addition, it is difficult to identify from these general photographs whether and to what extent the damage to the parts of the premises said to have existed at the date of vacation of the premises was present as at the date the premises were occupied by the respondents. We are unable to conclude that the appellant has established by means of these photographs that damage was sustained to the premises during the period they were occupied by the tenants. Accordingly, to the extent that the appellant alleged that the Member did not have available to her the documents in sufficient detail by reason of some technical difficulty, we conclude that even if this were the case, they were not sufficiently supportive of the appellant's case to justify disturbing the reasons for decision and the orders made by the Member. 3. For the purpose of the appeal the appellant provided a "rent payment schedule" for the period the tenancy. Even if it could be said that this document was supportive of his allegations of non-payment of rent, it is a document which on his own admission he could have provided for the purpose of the hearing before the Member but did not do so. Consistent with well-known principles applying to the conduct of appeals before this Tribunal, the discretion to allow fresh evidence on appeal is not usually exercised where that evidence was available at the time of the hearing under appeal, and there is no reasonable excuse as to why it was not provided at the hearing. 4. We have referred to the proceedings before the Member with respect to the appellant's unsuccessful attempt to prove the quantum of any arrears of rent at [11] above. The appellant provided copies of a number of bank statements and SMS communications between himself and one or more of the respondents. However, the appellant did not attempt to create any overall schedule which would have allowed the Member to identify what payments of rent were received and on what dates by reference to these bank statements and the SMS communications. The Member would have been required to peruse all of these documents and attempt to comprehend for herself what they revealed either by way of payment of rent or failure to pay rent. This was not an appropriate means by which the appellant could prove his claim for unpaid rent, and does not indicate that the Member's discretion miscarried in refusing to rely on such information as the appellant had made available. We decline to allow the appellant to rely on this schedule. In any event, its contents are not capable of corroboration of his claim for unpaid rent. 5. Our reading of the "transcript", which is the only information available to us indicates that the appellant was afforded by the Member every reasonable opportunity to present his evidence and make submissions on each of the items which he claimed the Member had limited time to deal with in the proceedings. We reject the complaint of the appellant that the Member failed to afford him a fair hearing and denied him an opportunity of canvassing all of the matters which he wished to raise during the course of the hearing. Conclusion and orders 1. We conclude on the basis of the limited information available to us as provided by the incomplete "transcript" that the Member dealt with the claims made by the appellant in the proceedings appropriately and carefully considered them. We also conclude that there is no basis upon which it could be concluded that the Member's discretion in considering the appellant's evidence miscarried. On this basis leave to extend the time for filing the appeal should be denied and the appeal should be dismissed. 2. We have noted above that in her reasons the Member referred to the order made for the payment of $239.97 as having been made by consent. There is no indication in the "transcript" that such consent was forthcoming, particularly as the majority of the tenants who were respondents to the original Application did not appear at the hearing. As no appeal has been brought by any of the respondents with respect to this order, we do not intend to interfere with it save for the comments which we make below. 3. Even though Sandip Reddy Nomula was a party to the original proceedings, he does not appear to be named as a tenant in the copy of the tenancy agreement which has been made available to us. When we questioned Mr Nomula about this during the course of the appeal hearing, he persisted in asserting that he was a tenant. Accordingly, we do not propose to disturb the order for payment of $239.97 as it applies to this respondent. 4. As we have noted above it would appear that the respondent Rakshita Mallepally has died. Although she remains a named party to the proceedings, and her estate is subject to an order for payment to the appellant of $239.97, presumably jointly and severally with the other respondents, we do not propose to disturb this aspect of the order because of the small amount involved. 5. For the reasons noted above we make the following orders 1. leave to appeal out of time is denied 2. the appeal is 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: 06 October 2021