Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mahmood v Luu [2021] NSWCATAP 390 Hearing dates: 23 November 2021 Date of orders: 02 December 2021 Decision date: 02 December 2021 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member G Curtin SC, Senior Member Decision: (1) Time to appeal is extended up to and including 14 September 2021. (2) The appeal is dismissed. Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – procedural fairness – Tribunal required to consider the case put – appellant required to provide the Appeal Panel with the necessary materials from the hearing before the Tribunal – appellant elected not to provide those materials – inability to consider appeal Legislation Cited: Residential Tenancies Act 2010 (NSW), s 45 Cases Cited: Nil Category: Principal judgment Parties: Mushtaq Mahmood (Appellant) Jane Luu (Respondent) Representation: Appellant Self-represented M Hockey (Managing Agent for the Respondent) File Number(s): 2021/00262758 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 August 2021 Before: F Holles, General Member File Number(s): RT 21/18655 REASONS FOR DECISION 1. This is an appeal by a tenant from a decision of the Tribunal dismissing his claim for compensation against his landlord. Background 1. The parties entered into a residential tenancy agreement for premises in Newington, NSW, some years ago, although the precise date or the year it was entered into is not disclosed in the Tribunal's reasons or the material supplied to us on the appeal. 2. Be that as it may, the appellant commenced proceedings in the Tribunal against the respondent on 28 April 2021. 3. In that Application he sought an order under s 45 of the Residential Tenancies Act 2010 (NSW) for the reduction of the rent payable under the residential tenancy agreement because the rented premises were allegedly unusable, uninhabitable or destroyed. 4. In his Application (lodged with the Tribunal), and under the heading "Reason for the Order/s", the appellant referred to an event which occurred on 28 June 2017, another event which occurred on 21 March 2018 and a third event which occurred in 2019. Those entries were followed by the following: "As agreed by NVRE the compensation to move from the unit due to safety hazard and rent deduction for second bedroom due to not in condition for daily use not yet paid. OCT 2019 to Mar 2020." 1. At the hearing before the Tribunal both parties tendered some documentary evidence. We were informed on the appeal that the appellant and Mr Hockey also gave oral evidence on that occasion. 2. At the conclusion of the hearing the Tribunal dismissed the appellant's application. Its reasons for doing so were as follows: "1. The application is dismissed because: Having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established. 2. Reasons for decision: This is an application seeking a reduction in rent under S.45 of the Residential Tenancies Act 2010 [ NSW]. It was filed on the 28th of April 2021. It related to events which last occurred in February 2020. When the matter was before the Tribunal in a group list on the 25th of May 2021 the presiding member directed that the applicant, if he chose to, was to amend the claim and make an application for an extension of time before the 8th of June 2021. There was a statement of as request for compensation unreferenced to any section of relevant legislation and no mention of any request for an extension of time to make the application. S.190 of the Act and Reg.39 of the Regulations set out the requirement to file an application within three months of the party becoming aware of the breach of the residential Tenancy Agreement. The failure to do so and the period of over twelve months between the event ultimately complained of, and the filing of the application is unacceptably long. I accept that the agents gave a termination notice under s.109 because of information provided to them by the applicant. I note that after an inspection of the property they would have not issued the notice given what they observed on that inspection. I note that the applicant seeks $10,000.00. Regrettably, that amount is unrealistic, even if I was satisfied that otherwise there was an actionable case available to the applicant. I find that the delay in filing an application by the tenant (was) unacceptably long and accordingly dismiss the matter." The Appeal 1. In preparation for this appeal the Appeal Panel made the following relevant directions and notes on 1 October 2021: "2 The Appellant is to lodge with the Tribunal and give to the Respondent by 22 October 2021: (a) All the evidence given to the Tribunal below on which it is intended to rely; (b) Any evidence not provided to the Tribunal in making the decision under appeal, on which it is intended to seek leave to rely; (c) The Appellant's written submissions in support of the appeal; and (d) The sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts. 3 The Respondent is to lodge with the Tribunal and give to the Appellant by 12 November 2021: (a) All the evidence provided to the Tribunal below on which it is intended to rely; (b) If appropriate in response to (b) above, any evidence not provided to the Tribunal in making the decision under appeal, on which it is intended to seek leave to rely; (c) The Respondent's written submissions in opposition to the appeal; and (d) The sound recording or transcript of the hearing at first instance, if that has not already been provided and the Respondent is relying on what happened at the hearing and a typed copy of the relevant parts. … NOTES: (1) If a party does not lodge with the Appeal Panel and give to the other parties documents, sound recordings and submissions as directed above, that party may not be allowed to rely on those documents, sound recordings and submissions at the hearing of the appeal. … (4) If a party wishes to rely on a sound recording of a hearing, the party must identify for the Appeal Panel which parts of the sound recording are relied in their written submissions." 1. The appellant complied with Order 2(a), being the documents he had given the Tribunal, but did not comply with Order 2(c), the sound recording or transcript. 2. The result of that failure by the appellant was that we did not have a sound recording or transcript of the oral evidence given by the witnesses, nor the parties' oral submissions. 3. The respondent did not lodge with the Appeal Panel any evidence given by it to the Tribunal nor a sound recording or transcript. 4. On the appeal, lodged approximately six days out of time (about which we will say something later), the appellant raised one ground of appeal, namely that the Tribunal had not engaged with the case he put. 5. The appellant submitted that the case he put to the Tribunal was that he had an agreement with the respondent, made with her agent, Mr Hockey, that she would pay him $10,000 compensation, that agreement had been breached because the respondent had not paid the $10,000, and he was seeking damages for the breach of that agreement. 6. As the Tribunal's reasons disclose, that was not the case addressed by the Tribunal. 7. However, the appeal fails for two reasons. 8. First, without the sound recording or a transcript we do not know the case that the appellant put to the Tribunal. This was critical for us to know because the appellant sought an order for a rent reduction in his Application (and not damages) which was the case decided by the Tribunal, albeit there was also reference to an agreement for compensation. 9. But it is notorious in the Tribunal, where parties are most often not legally represented, that the case put at a hearing is not the exact same case that may be outlined in an originating Application. 10. The Tribunal made no reference in its decision to any case having been put for damages for breach of contract, which would be highly unusual if that was the case put at the hearing before the Tribunal. Therefore, in the absence of a sound recording or transcript of the hearing before the Tribunal being provided to us, we would not be prepared to accept the appellant's uncorroborated submissions put on this appeal that he put his breach of contract case to the Tribunal for decision and the Tribunal did not decide that case. 11. Second, and perhaps more fundamentally, we were not provided with the critical oral evidence said to have been given to the Tribunal in support of that case, and without which the case for breach of contract would certainly fail. 12. That is, whilst the appellant had provided us with the documents he gave to the Tribunal which showed he had asked for $10,000 compensation, not a single document recorded the respondent agreeing to do so (a proposition with which the appellant agreed). 13. The appellant said that the respondent's agreement was given in a conversation he had with Mr Hockey (which Mr Hockey denies) and about which he gave oral evidence to the Tribunal. 14. But without a sound recording or transcript of the oral evidence given to the Tribunal we are unable to determine whether that assertion is correct, and unable to determine whether it is accurate. 15. Assuming both the appellant and Mr Hockey gave evidence of this conversation before the Tribunal, and their recollections of its contents were different and irreconcilable, those differences would give rise to a critical factual dispute which would have been necessary for the Tribunal to resolve in order to decide the breach of contract case (assuming that case was put). If that is what happened, the Tribunal would ordinarily make findings about the conversation (which underlies our first reason for dismissing the appeal) and which we would have needed to consider on the appeal. We are, of course, prevented from doing so because the appellant did not provide us with a sound recording or transcript as he was directed to do if he wished to rely on what happened before the Tribunal. 16. In summary, to consider the appellant's appeal we needed a sound recording, or transcript, or both, of what was said before the Tribunal. Without one or both of those two things we are simply unable to consider the appeal, whether it had any merit and whether it should be upheld. Accordingly, the appeal must be dismissed. Extension of Time 1. The Notice of Appeal was filed approximately six days out of time. That delay was short, no prejudice was alleged by the respondent and so we would extend time to lodge the Notice of Appeal. Orders 1. We make the following orders: 1. Time to appeal is extended up to and including 14 September 2021. 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: 02 December 2021