Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bechara v Kazzi (No 3) [2021] NSWCATAP 402 Hearing dates: 1 December 2021 Date of orders: 1 December 2021 Decision date: 14 December 2021 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Charles, Senior Member Decision: 1. To the extent required, leave to appeal is refused. 2. The appeal is dismissed. 3. The question whether the appellant is to pay the respondent's costs of the appeal is reserved. 4. The respondent is to provide to the Tribunal and the appellant his written submissions in support of his application that the appellant should pay his costs of the appeal by 15 January 2022. 5. The appellant is to provide any submissions in reply by 29 January 2022. Catchwords: LANDLORD and TENANT-refusal of application to extend time to issue warrant for possession-termination of residential tenancy agreement pursuant to s 92 (1) (a) of the Residential Tenancies Act 2010 (NSW)-landlord seriously threatened or abused. APPEALS-no error of law or fact established-leave to appeal refused Legislation Cited: Civil and Administrative Tribunal Act (NSW) (2013) Residential Tenancies Act 2010 (NSW) Cases Cited: None Category: Principal judgment Parties: Steve Bechara (Appellant) Youssef Elias Kazzi & Odette Kazzi (Respondents) Representation: Solicitors: Brydens Lawyers (Appellant) Future Legal (Respondents) File Number(s): 2021/00269207 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 25 August 2021 Before: T Simon, Principal Member File Number(s): RT 21/30067 REASONS FOR DECISION Overview 1. The appellant (the Tenant) appeals from orders made by the Tribunal which dismissed his application to extend the time to issue a warrant for possession of residential premises owned by the Respondents (the Landlords) once occupied by him under an oral residential tenancy agreement and which also ordered that the agreement was terminated immediately and that the appellant give possession of the premises to the Landlords. 2. These orders followed the Tribunal's conclusion that the Tenant tried to punch one of the Landlords, Mr Kazzi, in October 2020. 3. At the conclusion of the hearing of the appeal we ordered that leave to appeal was refused, to the extent that such leave was required, and the appeal was dismissed. These are our reasons for decision. 4. The solicitor for the respondents foreshadowed an application that the appellant pay the respondents' costs of the appeal on the basis that the necessary special circumstances justifying such an order existed. In those circumstances, we also made directions for the provision of written submissions concerning this question of costs to be supplied at dates that would be subsequent to our reasons for decision. The limited appeal right 1. Under s 80 of the NCAT Act, a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 (1) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on the basis that: …..the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) 1. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], namely. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1 issues of principle; 2 questions of public importance or matters of administration or policy which might have general application; or 3 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; 4 a factual error that was unreasonably arrived at and clearly mistaken; or 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, The Tribunal's decision 1. As was logical, the Tribunal first dealt with the Landlords' application for termination of the residential tenancy agreement and possession of the residential premises. The residential premises consisted of a granny flat at the rear of the Landlords' home in Sydney which the Tenant had occupied since April 2017. 2. The Landlords had excluded the Tenant from the premises on or about 10 November 2020. This led to proceedings commenced in the Tribunal by the Tenant to recover possession of the premises. Following the Tenant's success in those proceedings, including after an unsuccessful appeal by the Landlords in those proceedings, the Landlords, on 12 July 2021, commenced proceedings against the Tenant for termination of the residential tenancy agreement. 3. The Tribunal, on 25 August 2021, rejected one of the grounds for termination relied upon by the Landlords, namely that the residential premises were not lawfully usable as a residence because of the absence of approval for residential occupancy of the granny flat. On appeal, there was no contention by the Landlords that the Tribunal had erred in rejecting this ground of appeal and, hence, no issue about this arose for consideration on the appeal. 4. However, the Tribunal found that the residential tenancy agreement should be terminated pursuant to s 92 (1) (a) of the Residential Tenancies Act 2010 (NSW)(RTA). That section, relevantly, provides: 92 Tribunal may terminate residential tenancy agreement for threat, abuse, intimidation or harassment (1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has— (a) seriously or persistently threatened or abused the landlord, the landlord's agent or any employee or contractor of the landlord or landlord's agent, or caused or permitted any such threats, abuse or conduct, or … (2) The termination order may specify that the order for possession takes effect immediately. (3) A landlord may make an application under this section without giving the tenant a termination notice. … 1. In doing so, the Tribunal relied upon written material and oral evidence from each of the Landlords about an incident at the Landlords' home on 30 October 2020. The Tribunal also made reference to a Provisional Apprehended Personal Violence Order (APVO) against the Tenant made on 30 October 2020 in connection with this incident. 2. Both parties had legal representation before the Tribunal. No application was made by the Tenant for a stay of the Tribunal proceedings pending resolution of a criminal charge against the Tenant in respect of this incident. Whilst not significant on the appeal, the appellant did inform the Appeal Panel, but without presenting any charge sheet or record of orders made, that he had been charged with common assault in connection with the incident on 30 October 2020 and the charge had been dismissed on 3 November 2021. Whilst the Tribunal was made aware of the APV0, we note that the written submissions of the appellant's solicitor to the Tribunal only refer to "any charge matter" (at [16]). 3. Before the Tribunal the Tenant did not present any evidence in answer to the material adduced by the Landlords. Furthermore, whilst each of the Landlords gave oral evidence, neither was cross-examined about the relevant behaviour of the Tenant towards Mr Kazzi that was said to have occurred in the incident on 30 October 2020. 4. As to the material presented to the Tribunal by the respondents; 1. The Tribunal said that Mr Kazzi had provided two written statements and Ms Kazzi had provided one written statement. These statements were both unsigned and Mr Kazzi's statement was undated. Both were examined-in-chief about their statements and cross-examined at the hearing. The Tribunal said that it became apparent that Mr Kazzi required an Arabic interpreter and one was organised. It said that at times Mr Kazzi appeared confused about his statements when questioned about them. It said that Mr Kazzi's solicitor made submissions to the Tribunal that Mr Kazzi had made his statements to him in Arabic and he had written them down for him in English. The Tenant's legal representative submitted that the statement should be struck out on that basis that the Tribunal could not have confidence that the statements were credible. The Tribunal refused that application and found that the issues raised would go to a matter of weight and invited the Tenant's solicitor to cross-examine based on the contents of the statements: at [12]. 2. The Tribunal referred to s 38 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), including that the Tribunal was not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit: at [13]. 3. The Tribunal accepted that Mr Kazzi did explain his statement to his solicitor in Arabic and that his solicitor then drafted the statement in English: at [14]. 4. The Tribunal set out the relevant parts of the statements concerning the incident on 30 October 2020. This included reference in the statements of both Mr and Ms Kazzi that the Tenant had tried to punch Mr Kazzi: at [15] and [16]. 5. The Tribunal then referred to the cross-examination of Mr Kazzi. The Tribunal said that Mr Kazzi was never directly cross-examined about the Tenant throwing a punch at him, as set out in his statement. The Tribunal said that at times Mr Kazzi's evidence was inconsistent and confusing but that in view of his evidence taken as a whole those inconsistencies were not fatal to Mr Kazzi's credibility: at [17]-[18]. 6. The Tribunal said that Ms Kazzi was not challenged directly in cross-examination in relation to the punch that she detailed in her statement and that Ms Kazzi "gave evidence that was clear and consistent at the hearing": at [18]. 7. The Tribunal referred to submissions from the Tenant's solicitor that the Tribunal should not take into consideration the APVO and submitted that under s 79 of the RTA the Tribunal could only make a termination order on the making of a final apprehended violence order and that the APVO was being vigorously contested. The Tribunal noted that the termination order was sought under s 92 (1) and not s 79: at [19]-[20]. 8. The Tribunal referred to the grounds for the application for the APVO set out in the APVO and that it had been made to protect Mr Kazzi. In relation to these matters concerning the APVO, the Tribunal said that it did not have to determine whether a final apprehended violence order would be granted by the Criminal Court, noted that the grounds for the making of the application was not a statement itself and concluded, however, that the grounds for the making of the application were consistent with the statements that were given by Mr and Ms Kazzi: at [21]-[22]. 9. The Tribunal then concluded: 23 The tenant's legal representative made submissions that the evidence before the Tribunal was not sufficient for the Tribunal to find that the tenant has seriously threatened or abused the landlord. However, the Tribunal is satisfied that the evidence is sufficient. The part of the evidence in relation to the throwing of the punch on 30 October 2020 was unchallenged in the cross-examination of both Mr and Ms Kazzi. On that basis the Tribunal is satisfied that Mr Bechara did try to punch Mr Kazzi on 30 October 2020 and that does constitute a serious threat to the landlord. Accordingly, the Tribunal is satisfied to make an order for termination pursuant to s 92 (1) (a) of the RTA. 24 Given that the tenant has not resided at the premises since they were locked out by the landlord on or about 10 November 2020, the Tribunal is satisfied to make the order for possession immediate. 1. The Tribunal then concluded that in view of its decision to terminate the Tenant immediately it declined to exercise its discretion to extend the time for issuing the warrant for possession: at [25]. Grounds of appeal and submissions 1. In his Notice of Appeal, signed by his solicitor, the Tenant's grounds of appeal are stated as follows: 1. The Tribunal incorrectly found that the tenant threw a punch on 30 October 2020. The evidence did not support this finding. 2. The Tribunal incorrectly determined that the Residential Tenancy Agreement is terminated on the basis of section 92 (1) (a) of the [RTA]. 3. The Tribunal incorrectly considered a provisional APVO order against the tenant. This APVO has not been determined and is currently being contested. 4. The Tribunal Member did not properly consider the submissions of the tenants' representative. 1. These grounds do not describe any error as an error of law or identify the specific basis upon which the Tribunal was said to have erred. 2. As to the basis for the application for leave to appeal, the Notice of Appeal indicated that each of the three grounds in cl 12 of Schedule 4 was relied upon. 3. As to these, it was said that the decision was not fair and equitable because the Tribunal ordered termination without sufficient evidence and that it was submitted by the Tenant's representative that the incident on 30 October 2020 was being contested and was subject to an ongoing criminal investigation. It was said that the Tribunal incorrectly found that the punch thrown was "uncontested". 4. As to the ground that the decision was against the weight of evidence, reference was made to the Tenant's representative "submissions", that the submissions included that the incident on 30 October 2020 was being contested and subject to ongoing criminal investigation, that the Tribunal should not have given any weight to the APVO and that the Tribunal incorrectly determined that the alleged punch thrown was "unchallenged" and did not adequately consider the submissions. 5. As to the ground that significant new evidence was now available that was not reasonably available at the time of the hearing, reference was made to notes said to have been made on 2 November 2020 by the Tenant in relation to the criminal law matter relating to the alleged punch. It was said that the Tenant was unaware this evidence could be provided in the Tribunal proceedings and that the Tenant thought such evidence was confidential to the criminal law proceedings. 6. In written submissions on appeal from the Tenant's solicitor, dated 12 November 2021, it was submitted, amongst other things, that: 1. The finding by the Tribunal Member that the punch thrown was uncontested was incorrect: at [7]. 2. The Tribunal did not give adequate reasons for the decision: at [7]. 3. The Landlords did not provide any evidence which suggested that the Tenant had engaged in the conduct referred to in s 92 (1) (a) of the RTA and that "There was no evidence the punch was thrown on 30 September 2021. There was no evidence to support this finding." The reference to "30 September 2021" is, plainly, mistaken and should be 30 October 2020. 1. In view of this material from the Tenant in the Notice of Appeal and in these written submissions, we regard the Tenant as advancing on appeal three errors of law, namely: 1. There was no probative evidence for the Tribunal's finding that a punch was thrown by the Tenant at Mr Kazzi during the incident on 30 October 2021 (Ground 1). 2. The Tribunal proceeded on a wrong basis as to the Tenant's case, namely that the fact that the punch was thrown was uncontested, or failed to address the right question, namely that the Landlords' application for termination needed to be considered on the basis that the Tenant contested that a punch had been thrown and was contesting that issue in the related criminal proceedings, as had been submitted by the appellant to the Tribunal (Ground 2). 3. The Tribunal did not give adequate reasons for its decision (Ground 3). 1. The written submissions on behalf the appellant did not explain why it was said that there was no evidence that a punch was thrown or that the reasons for decision were inadequate. Mr Khan, who appeared for the appellant at the appeal hearing, did not make any oral submissions in support of these two grounds of appeal. No written or oral submissions were made by the appellant as to what submissions it was said that the Tribunal did not properly consider. 2. In his oral submissions, Mr Khan also contended that the Tribunal erred in law by not proceeding on the basis that the appellant was entitled to a presumption of innocence in respect of the punch allegation (Ground 4) and had erred in law by taking account of the APVO (Ground 5). 3. The only matter concerning leave to appeal that Mr Khan referred to in his oral submissions was the contention that the notes made by the appellant referred to in the Notice of Appeal and annexed to the appellant's written submissions were significant new evidence that was not reasonably available to be presented at the hearing before the Tribunal (Ground 6). 4. In written submissions on appeal by the Landlords' solicitor, it was submitted, amongst other things, that: 1. The Tribunal gave cogent and considered reasons in respect of the finding that a punch was thrown and there was clear and uncontested evidence to support the finding that the appellant seriously threatened and abused the landlord. 2. The appellant's submission that there was "no evidence" is entirely misconceived. 3. The alleged notes should not be permitted to be relied upon on the appeal for a variety of reasons, including that they were available to the appellant to produce at the hearing before the Tribunal and the appellant failed to do so. 4. There was no error by the Tribunal with regard to its reference to the AVPO. 5. The Tribunal properly considered the appellant's submissions. 1. As to Ground 1, it is notable that the appellant's written submissions to the Tribunal from his solicitor did not submit that there was no evidence, or no probative evidence, to support the critical finding that a punch was thrown. Rather, the submission was: 18. The Respondent submits that there should be limited weight placed on the unsigned statements of the Applicant. As such, there is no evidence before the Tribunal which corroborates the Applicant's account. 1. This submission that the respondents' statements should be given "limited weight" accorded with the Tribunal's rejection of the appellant's application at the Tribunal hearing that these statements from Mr and Ms Kazzi should be "struck out", not on the basis that they were unsigned, but on the basis that the Tribunal could have no confidence that the statements were credible because Mr Kazzi had made the statements to his solicitor in Arabic and the solicitor had written them down for him in English (at [12]). 2. Bearing in mind the statutory provisions in s 38 of the NCAT Act, to which the Tribunal referred, it was open to the Tribunal to regard the documents presented to the Tribunal as statements of each of the Landlords as relevant material to be considered in the necessary fact-finding, the probative value of which, if any, was to be determined in light of the totality of the material that came to be presented to the Tribunal, including the statement from the Landlords' solicitor as to how Mr Kazzi's statement came to be prepared and the evidence given by each of the Landlords in chief and in cross-examination. This is how the Tribunal approached the critical fact- finding question. The totality of that material, at least, had probative value. Accordingly, we do not agree with Ground 1. 3. As to Ground 2, the short answer is that the Tribunal did not proceed on the basis that the issue as to whether a punch was thrown was "uncontested". It proceeded on the basis that this was a fact in issue in respect of which it needed to make a finding of fact based upon the material presented to it. It expressly referred to the fact that the APVO proceedings were being vigorously contested. It did proceed on the basis that no contrary evidence was presented by the appellant and that the Landlords version of events as to a punch being thrown was not challenged in cross-examination. There was no suggestion that the Tribunal was mistaken about these aspects. In these circumstances, the fact that the appellant was contesting the issue in related criminal proceedings was of no probative value. Accordingly, we do not agree with Ground 2. 4. As to Ground 3, no inadequacy of reasons was identified by the appellant and, accordingly, we disagree with this ground of appeal. 5. As to Ground 4, the presumption of innocence was applicable to the criminal proceedings but was not relevant to the proceedings before the Tribunal and, accordingly, we disagree with Ground 4. 6. As to Ground 5, we see no error by the Tribunal in its reference to the grounds of the APVO as being consistent with the Landlords evidence before the Tribunal. There was no dispute that this statement was factually correct. It seems to us that the Tribunal made it apparent that it was not treating these grounds as part of the proof that the punch was thrown but rather that the Landlords had been consistent in what they were saying, which favoured, rather than detracted from, acceptance of their evidence. In any event, the Tribunal's remark about consistency is immaterial in the context of the evidence given by the Landlords and the absence of any contradicting evidence from the appellant. Accordingly, we disagree with Ground 5. 7. As to Ground 6, the unsigned and undated hand written notes consist of statements, apparently, by the appellant concerning the incident on 30 October 2020 which, if they were prepared by him on 2 November 2020, as was stated in a written statement by the appellant, dated 10 November 2021, presented on appeal, could have been utilised by the appellant for the purpose of preparing a written statement to be presented to the Tribunal or in seeking to give oral evidence at the hearing. In these circumstances, we do not regard the notes as evidence that was not reasonably available to the appellant at the time of the hearing before the Tribunal on 25 August 2021. 8. In the Notice of Appeal it is said that the appellant was unaware that the notes could have been presented as evidence in the Tribunal proceedings because he thought they were confidential to the criminal law proceedings. This contention was not supported by any evidence from the appellant in the written statement he presented on appeal. It remains nothing more than an assertion, to which we give no weight. 9. In any event, the appellant needed to consider, carefully, what was to be the material which he would put before the Tribunal. There is no suggestion that the notes were other than readily available to him. If he thought they were significant, but was unsure of their status, he could have sought advice about this. Furthermore, he was assisted by legal representation before the Tribunal. In those circumstances, such misconception as the Tenant had about the use of the notes in the Tribunal does not affect our conclusion that they were reasonably available for the Tribunal hearing. 10. In addition, we do not accept that the notes are "significant" new evidence in the circumstances of this case. The notes themselves are of no probative value in the absence of evidence from the appellant explaining that the notes are his, when they were prepared and for what purpose. Given that the Tenant chose not to give any evidence before the Tribunal the notes on their own could not be seen as being "significant" new evidence, within the meaning of cl 12 (1) of Schedule 4. 11. At the hearing of the appeal, Mr Khan did not present any oral submissions in support of any other basis for the grant of leave to appeal. 12. We have already dealt with the contention that the Tribunal was mistaken in regarding the issue as to whether a punch was thrown was uncontested and was subject to an ongoing criminal investigation. According to the Notice of Appeal, this was an aspect of the contention that the decision was not fair and equitable. We reject that contention. 13. As to the application for leave to appeal, it was said that the decision was against the weight of the evidence or that there was insufficient evidence for the central conclusion. However, we see no merit in these contentions given the material from the Landlords that we have already referred to and the absence of any contrary evidence from the Tenant and any challenge that evidence in cross-examination. 14. Furthermore, with respect to the application for leave to appeal, the matters raised by the appellant in support of that application did not raise any meritorious point of principle, or plain error of fact or unorthodox approach to fact finding of a kind that might warrant the grant of leave to appeal. Orders 1. For the above reasons we make the following orders: 1. To the extent required, leave to appeal is refused. 2. The appeal is dismissed. 3. The question whether the appellant is to pay the respondent's costs of the appeal is reserved. 4. The respondent is to provide to the Tribunal and the appellant his written submissions in support of his application that the appellant should pay his costs of the appeal by 15 January 2022. 5. The appellant is to provide any submissions in reply by 29 January 2022. ********** 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: 14 December 2021