Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Marino v Di Blasio [2021] NSWCATAP 334 Hearing dates: 5 October 2021 Date of orders: 29 October 2021 Decision date: 29 October 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member A Boxall, Senior Member Decision: The application for an extension of time for the filing of the Notice of Appeal is refused. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — rent – bond - no question of principle. Legislation Cited: Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4) Cases Cited: Bobolas v Waverley Council [2016] NSWCA 139 Category: Principal judgment Parties: Lisa Marino (Appellant) Ciro Di Blasio (Respondent) Representation: Appellant in person V Dang (Managing Agent for the Respondent) File Number(s): 2021/00188528 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 10 June 2021 Before: D Ash, General Member File Number(s): RT 20/48526 REASONS FOR DECISION 1. This is an appeal by a tenant from a decision of the Tribunal ordering her landlord to pay her the sum of $285.72, being the balance owed to the tenant after taking into account the bond held by the landlord. 2. With no disrespect to the parties, we shall refer to the appellant as the Tenant and the respondent as the Landlord for ease of reference. Background 1. The parties entered into a residential tenancy agreement commencing 1 July 2018 for a period of nearly two years for premises located at Sylvania Waters, NSW. The Tenant paid a total bond of $4,000 and the rent for the premises was $1,000 per week. 2. At the hearing before the Tribunal the Tenant asserted that she had paid $6,600 by way of bond but provided no evidence of the alleged extra payment of $2,600. 3. In late 2019 the Tenant's sister and brother-in-law commenced residing at the premises. 4. In early 2020 the Tenant began falling behind in her rent. 5. On 18 March 2020 the Landlord's agent emailed the Tenant to say that the Landlord would be applying to the Tribunal for a termination order and an order for outstanding rent. 6. On or about 23 March 2020 the tenant told the Landlord's agent that she would be moving out of the premises. 7. On 27 March 2020 the Landlord entered into a residential tenancy agreement with the Tenant's sister and brother-in-law. 8. At some unidentified date around this time the Tenant ceased living at the premises. 9. The Landlord alleged that rent was owed by the Tenant for the period 1 – 26 March 2020 (totalling $3,714.28) and the Landlord took the Tenant's bond monies. 10. On 19 November 2020 the Tenant commenced proceedings in the Tribunal seeking an order that the Landlord pay her the bond in the sum of $6,600. 11. On 10 June 2021 the Tribunal heard and determined the proceedings. 12. The Tribunal noted that the Tenant had asserted that she had paid $6,600 (rather than $4,000) by way of a bond, but that she had provided no evidence to support that allegation. 13. The Tribunal noted the documentary evidence tendered by the Landlord including contemporaneous emails noting the Tenant's advice that she was going to move out of the premises and setting out the arrears of rent at different points of time in March 2020. 14. The Tribunal recorded that the Tenant made three submissions. The first two do not require repetition as they are not relevant to this appeal. 15. The Tenant's third submission to the Tribunal was that she said that her tenancy had not ended as she had never moved out. The Tribunal correctly said that this could not sit with her claim for the bond and, at least impliedly, dismissed this submission. 16. The Tribunal calculated the rent owed ($3,714.28), deducted that from the bond taken by the Landlord ($4,000), and ordered the Landlord to refund the balance owing to the Tenant ($285.72). The Appeal 1. The Tenant filed her Notice of Appeal on 1 July 2021, being outside the 14 days allowable for the filing of an appeal in a residential matter – Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4). Accordingly, the Tenant requires an extension of time for her appeal. 2. The Tenant's Grounds of Appeal were expressed as follows: "(The Tribunal) has not taken the situation into account that the landlord has now received two bonds one from and the other from my brother in law that he is not entitled to mine as my brother-in-law took over the lease and the default of payment has occurred." 1. This was clarified on the appeal so that, as we understood it, the Tenant was asserting that the Tribunal had erred in not finding that the bond she had paid was in the sum of $6,600 (rather than $4,000) and that there had been no rent outstanding owed by her to the Landlord. 2. The Appeal Panel made orders for the preparation of this appeal which included orders that the Tenant lodge with the Tribunal and serve upon the Landlord all of the evidence given to the Tribunal below on which she intended to rely, any evidence not provided to the Tribunal below upon which the Tenant intended to seek leave to rely, the Tenant's written submissions in support of the appeal and a sound recording or transcript of the hearing at first instance if what happened at the hearing was to be relied upon. 3. The Tenant did not comply with any of those directions. 4. On the day of the hearing of the appeal the Appeal Panel was required to contact the Tenant as she had, she said, forgotten that the appeal was listed for hearing that day. 5. When she was advised of the difficulties facing her appeal given she had not lodged any evidence (previously relied upon or upon which she might seek leave to rely) the Tenant applied for an adjournment of the appeal. 6. The Tenant said there were two reasons for the adjournment. The first was that she had forgotten about the hearing date of the appeal and the second was that she had been ill and had been in hospital and had therefore been unable to comply with the Appeal Panel's directions. 7. No medical evidence was tendered to support the claim of illness and to support the claim that her illness prevented her from complying with the Appeal Panel's directions. 8. We refused the application for an adjournment as we were not satisfied that any illness prevented the Tenant's compliance with the Appeal Panel's directions – see Bobolas v Waverley Council [2016] NSWCA 139 at [220]-[222] – and we were not satisfied that any adjournment would improve the Tenant's appeal's prospects of success. 9. During oral submissions the Tenant accepted that she had moved out of the premises, accepted that a new lease (between the Landlord and her brother-in-law) had been entered into and which commenced on 27 March 2020, and accepted that she had not proved to the Tribunal that the Landlord had received rent for the premises from her brother-in-law for the period 1 – 26 March 2020 (this being the basis of her claim that no rent was owed for that period). 10. As the Tribunal noted, the Tenant had not provided any evidence that she had paid a bond of $6,600 rather than $4,000. The documents suggest the Tenant was wrongly asserting that an amount she paid in advance for rent in 2018 was to be counted as a payment towards a bond. However, we need not decide whether that is the root cause of her allegation, or whether it arises otherwise. 11. The fact is that the Tribunal found that the Tenant had produced no evidence that she had paid $6,600 for her bond, and no error has been demonstrated in that finding. 12. In relation to the rent, the basis for her claim that no rent was owed was that her brother-in-law was living in the premises at the time and had paid rent to the Landlord for the relevant period, an allegation she admitted on the appeal she had not proved before the Tribunal. 13. Therefore, in our view there was no merit to this appeal. We cannot see any questions of law arising from the Tribunal's decision, nor can we discern any grounds for granting leave to appeal on any other ground. 14. Further, no explanation was provided for the late filing of the Notice of Appeal, and we would refuse the application for an extension of time for lack of any explanation and on the basis the appeal had no prospects of success. 15. Were we wrong in not extending time to appeal, we would have dismissed the appeal, or refused leave to appeal, or both, as no ground of appeal was identified or established. 16. As our refusal of an extension of time has the effect of terminating the appeal proceedings, no other order need be made. Orders 1. We make the following order: 1. The application for an extension of time for the filing of the Notice of Appeal is refused. ********** 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: 29 October 2021