Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fredriksen v Wongalee Nominees ATF Corney Super Fund [2022] NSWCATAP 23 Hearing dates: 24 January 2022 Date of orders: 31 January 2022 Decision date: 31 January 2022 Jurisdiction: Appeal Panel Before: R C Titterton OAM, Senior Member G Burton SC, Senior Member Decision: 1. Leave to appeal refused. 2. Appeal otherwise dismissed. Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – effect of orders in earlier proceedings Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – ss 45(1), 80(2)(b)) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Thomas Fredriksen (Appellant) Wongalee Nominees ATF Corney Super Fund (Respondent) Representation: Appellant: self-represented Respondent: G Markovic, principal of managing agent File Number(s): 2021/00335711 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 November 2021 Before: G Ellis SC, Senior Member File Number(s): RT 21/48301 REASONS FOR DECISION Summary 1. The appellant Mr Fredriksen appeals from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) of 25 November 2021 in matter RT 21/48301 (25 November Decision). 2. The appellant had sought the return of his rental bond following his vacation of the residential premises rented by him from the respondent landlord. 3. The Tribunal dismissed Mr Frederiksen's application. 4. In this appeal Mr Frederiksen says that the 25 November Decision was not fair and equitable and against the weight of the evidence. He asks the Appeal Panel to order a new hearing to "review all evidence presented as my case has been unjustly ruled upon". He says that his evidence "will clearly demonstrate that the quoted claims in relation to rental arrears etc are false and incorrect". 5. We do not accept that the 25 November Decision was not fair and equitable or against the weight of the evidence. For the following reasons, we have decided to refuse leave to appeal and to otherwise dismiss the appeal. Background 1. It is appropriate to set out the history of the matter. 2. On 3 December 2019 Mr Frederiksen and the landlord entered into a residential tenancy agreement (tenancy agreement) for a property in Sydney's CBD. The term of the tenancy agreement was six months, starting on 13 December 2019 and ending on 12 June 2020, after which the tenancy agreement continued as a periodic agreement. The rent was $2,607.14 per month payable in advance. A rental bond of $2,400 was provided by Mr Fredriksen to the landlord and lodged with Rental Bond Services in the usual way. 3. On 1 February 2021, the landlord gave Mr Fredriksen a written notice by email of a rent increase to $960 per fortnight commencing on 10 April 2021. 4. Mr Fredriksen subsequently fell behind in his rental payments (due to the effects of the COVID pandemic) with the consequence that the landlord filed application RT 21/18536. 5. In that matter, on 25 May 2021 the Tribunal ordered Mr Fredriksen to pay rental arrears of $1,371.43 immediately, and to pay rent at the rate of $960.00 per fortnight (May Decision) Those orders were made in the absence of Mr Fredriksen. However, the reasons for that decision stated that the Tribunal was satisfied that notice of the hearing had been served on Mr Fredriksen and noted that the Tribunal had made two attempts to contact him by telephone. In any event, we note that in the materials provided to us by Mr Fredriksen in support of his appeal, an email of 21 May 2021 from Mr Fredriksen to the Tribunal Registry stated: I am writing to state that I will not be participating in the conciliation hearing scheduled for Tuesday 25th May 2021 at 10:15am. I will in fact be filing a counter claim against Sydney Cove Property for misleading and deceptive conduct should this case not be dismissed in full. 1. Mr Fredriksen did not appeal the May Decision. 2. Following the issue by the landlord of a notice of termination on 3 June 2021, Mr Frederiksen gave the landlord vacant possession of the premises on 17 June 2021. 3. On 25 June 2021, Mr Fredriksen filed application RT 21/27592 seeking the return of his rental bond. 4. After a hearing on 25 August 2021, attended by both parties, the Tribunal ordered Mr Fredriksen to pay the landlord $1,732.11 from the bond, with the balance of the bond being paid to Mr Fredriksen (August Decision). The $1,732.11 was comprised of $1,577.11 for rental arrears, $75.00 for cleaning and $80 for the replacement of light globes. Detailed factual findings were made and written reasons given. 5. Mr Fredriksen did not appeal the August Decision. 6. Rather, the following day, 26 August 2021, Mr Frederiksen filed a new application in the Tribunal, being application RT 21/36466. This application (again) sought the return of the bond. That application was heard and decided on 16 September 2021 in the absence of the landlord, and an order was made for the whole of the rental bond to be paid to Mr Frederiksen. 7. On 22 October 2021, the landlord made an application to set aside that decision, and on 10 November 2021 the order of 26 September 2021 was set aside (10 November Decision). 8. In its reasons for the 10 November Decision the Tribunal dealt with various issues. Relevantly the Tribunal stated: … The relevant law - revisiting an earlier decision 20. The Latin phrase res judicata is a term used to indicate that a matter has already been decided by another court and between the same parties. It arises from the decision of a court or Tribunal. Estoppel is a rule which prohibits a person from contradicting what was determined in earlier proceedings. It arises from the conduct of the parties. Both terms reflect the principle that there should be finality to litigation with the result that matters should not be re-litigated. In layman's language: "you can't have two bites of a cherry". 21. The term issue estoppel is used to indicate that a party is prevented from revisiting an issue that has been decided in earlier proceedings. Another form of estoppel is Anshun estoppel, so called because of the authoritative decision on that point is that of the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, which provides a barrier to raising in subsequent proceedings a matter that could and should have been raised in earlier proceedings. 22. Thus, by way of summary, a decision in prior proceedings in a court or tribunal not only operates to finalise the issues between the parties raised in those prior proceedings but also acts as a barrier to revisiting those issues in subsequent proceedings, other than by way of an appeal. … 30. There can be no doubt that the question of what should be the fate of the rental bond was considered at a hearing on 26 August 2021 which was attended by both parties. It also seems clear that the subsequent application (RT 21/36466), lodged on 26 August 2021, which became the subject of orders made on 16 September 2021, should have been dismissed as it sought to revisit a matter which had been previously considered and determined. The reason that appears to be clear is that the law, referred to above, is clear on that point. 31. If the tenant was unhappy with the decision made on 26 August 2021 in the earlier application (RT 21/27592) then the appropriate course of action was for an appeal to be lodged and not for a fresh application (RT 21/36466) to be made. It remains open to the tenant to pursue such an appeal although it will be necessary for there to be an application for an extension of time. 1. The order of 26 September 2021 having been set aside, the result was that the application lodged on 26 August 2021 needed to be determined, which it subsequently was on 25 November 2021 (being subsequently re-registered as RT 21/48301). 2. On that day, the Tribunal dismissed the application (25 November Decision), relevantly stating: 4. Both parties were provided with an opportunity to make submissions as to what should be the outcome of that application. It is sufficient to state that [Mr Fredriksen] has not persuaded the Tribunal either that there should be hearing of that application or that it should not be dismissed. The reasons why that should be the outcome were set out in the reasons published on 10 November 2021 in relation to the application to set aside the second order. 5. A just, quick and cheap resolution of the real issues requires that the application lodged on 26 August 2021 should dismissed as it sought to revisit what has previously been determined in relation to the rental bond. Simply stated, if [Mr Fredriksen] was unhappy with the first order then the appropriate course of action was an appeal and not a fresh application which resulted in the second order. Indeed, had the Tribunal realised that the 26 August 2021 application sought to revisit an earlier order then either that application would not have been accepted by the Registry or the application would have been dismissed when it was first considered by a member of the Tribunal. 6. As a result, the final order which should be made in relation to the application lodged by the tenant on 26 August 2021 is that it be dismissed. It is noted that the effect of that decision is to render the first order the operative decision in relation to the rental bond. Since the Rental Bond Board appears to have not yet made any payment in respect of the rental bond, it is now clear that an amount of $1,732.11 should be paid to [the landlord]. 1. It is the 25 November Decision which is the subject of this appeal. Grounds of Appeal 1. No grounds of appeal were set out in the Notice of Appeal. However, in his Application for Stay of Original Decision Pending Appeal, Mr Fredriksen states that the 25 November Decision was not fair and equitable and was against the weight of the evidence. Reply to Appeal 1. In its Reply to Appeal filed 7 December 2021, the landlord stated: Final orders have been made by Senior Member Ellis on 25 November 2021. Bond has been disbursed in accordance to the final orders. This matter should be closed and no appeals granted as no questions of law have been appealed. Nature of an appeal 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other ground (s 80(2)(b)). A question of law 1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. These include (but are not limited to): * whether there has been a failure by the Tribunal to provide proper reasons; * whether the Tribunal identified the wrong issue or asked the wrong question; * whether a wrong principle of law had been applied; * whether there was a failure to afford procedural fairness; * whether the Tribunal failed to take into account relevant (that is, mandatory) considerations; * whether the Tribunal took into account an irrelevant consideration; and * whether there was no evidence to support a finding of fact. Leave to appeal 1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 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. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84(2)] 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. Even if an appellant establishes that the appellant may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. Mr Fredriksen's submissions 1. Mr Fredriksen's submissions, both written and oral, were in substance directed at the merits of the May Decision and the August Decision. This can be seen in his written submissions filed 2 December 2021 which commenced by stating: My frustration in this matter is immeasurable. Months of tribunal hearings, appeals, frozen deposit claims etc all stem from misleading and deceptive behaviour on the part of Sydney Cove Property. Original orders in File No: RT 21/18536 sought are false and were based on an incorrect payment entry by the property manager over a year ago during the COVID rent relief period. An order was made against me in my absence as I was unable to attend, evidence was not reviewed or discussed. A new hearing is required to review all evidence presented as my case has been unjustly ruled upon. My evidence will clearly demonstrate that the quoted claims in relation to rental arrears etc are false and incorrect. Note - the original decision was not fair and equitable and the decision was against the weight of evidence. I have now paid $438 to have my case heard properly as no other tribunal member has reviewed my case after the original orders were made despite multiple attempts. Email correspondence details my position and the tenant ledger will illustrate my rental payments were paid in full, every month and on time. I have leased residential property for over 20 years in Australia, New Zealand and the US and have never had such an incompetent managing agency. I have stellar rental history and can provide written testimonials confirming this. The facts are that I was made redundant in April 2020, lost my income and relied solely on a 4-weekly JobSeeker payment of $2,600 for all my living expenses. I never stopped paying rent and agreed to pay $1,600 per month which was the maximum amount I could afford during my unemployment. The amount offered was also derived from local market research on rental properties, of which there were over 30 vacancies in my building alone. Note - studio apartments were leasing at sub $400pw. At the time, l even applied and was approved for a superior, fully furnished, proper 1 bedroom apartment within the building at $400pw (email correspondence provided). Subsequently, I did not proceed with this when my $1,600 per month offer was accepted. You will even note that once I started new employment and received income, I agreed to increase the rental payments and pay $400pw or $1,738.10 per month and did so now for many months. (bolding and underlining as in original) 1. As noted above, Mr Fredriksen submitted that "not one member reviewed or discussed" his evidence. He developed this theme in his oral submissions, saying that "not one member" was willing to review his evidence; that this happened in "multiple hearings"; that "not one set of eyeballs" had reviewed his materials, and that there had been a "complete failure of the system". He submitted that it was false to suggest (as was submitted by the landlord's agent) that his evidence had been reviewed. Respondent's Submissions 1. The respondent's submissions can be started simply. Mr Markovic submitted that: * Mr Fredriksen had not raised any question of law; * Mr Fredriksen's evidence was clearly considered by the Tribunal at the contested hearing on 25 August 2021. Consideration 1. As noted above, s 80 of the NCAT Act states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). 2. In Prendergast the Appeal Panel stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised. 3. We have undertaken that exercise, but we cannot identify any alleged error of law in the Notice of Appeal, or in the oral submissions made to us at the appeal hearing. Accordingly, Mr Fredriksen requires the leave of the Appeal Panel to bring the appeal. 4. As we have noted, Mr Fredriksen says that the 25 November Decision was not fair and equitable and was against the weight of the evidence. But what he was in substance submitting was that both the May Decision and the August Decision were not fair and equitable and against the weight of the evidence. 5. Mr Fredriksen's essential complaint was that no Tribunal member had actually reviewed his evidence. We find that submission difficult to understand and we reject it. As to the May Decision, there was no evidence before us to establish what the Tribunal did or did not take into account in reaching its decision. As to the August Decision, we are satisfied that the Tribunal took into account the evidence before it, including the evidence provided by Mr Fredriksen. In respect of the 25 November Decision, as the Tribunal noted at [4], both parties were provided with an opportunity to make submissions as to what should be the outcome of that application and it was sufficient to state that Mr Fredriksen had not persuaded the Tribunal either that there should be a hearing of that application or that it should not be dismissed. 6. We put to Mr Fredriksen that he had not appealed any of the Tribunal's earlier decisions. He variously said that he did not understand the process or thought that he was, in effect, appealing. 7. We find no basis in those submissions for success in this appeal. It is well-known that, generally speaking, parties are not legally represented before the Tribunal or Appeal Panel and have the carriage of their own matters: NCAT Act, s 45(1). There are many resources on the Tribunal website to assist parties to understand and to choose the correct process. 8. What needs to be borne in mind is that Mr Fredriksen is appealing the 25 November Decision. In that decision, the presiding Member logically and persuasively set out the reasons that application should be dismissed. We have set out those reasons above. 9. We do not consider that the 25 November Decision is infected by any error of law. 10. To the extent that the appeal raises errors other than errors of law, applying the principles in Collins v Urban , we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result. 11. Indeed, we see no error at all in the Tribunal's reasoning. Mr Frederiksen could have brought an appeal in respect of the earlier decision to the Appeal Panel, or sought leave to do so. He did not do so. Instead, he filed a new application covering the same subject matter the earlier application. As set out at [31] of the 10 November decision, it remained open for Mr Frederiksen to appeal the May decision and the August decision and to seek to convince the Tribunal to extend time for doing so. 12. For these reasons we do not think it is appropriate to grant leave to appeal. 13. Accordingly, the appeal is otherwise dismissed. Other 1. While not necessary to do so and therefore not intended to be binding on any subsequent consideration, we thought it appropriate in response to the submissions made as set out above to examine the materials placed before us on which Mr Fredriksen relied to support his contention that the May and August Decisions were not fair and equitable or against the weight of the evidence. 2. The starting point is that the tenancy agreement provided that rent for the premises was $2,607.14 per month payable in advance, equivalent to $600 [1] per week or $85.71 per day. It appears that, once Mr Fredriksen's and his wife's income was reduced due to the COVID pandemic, he approached the respondent through its agent to pay a reduced rent, offering $1,600 per month for the payments due until the fixed term expired, and otherwise offering to vacate the premises (see his email of 18 April 2020). On 21 April 2020, the landlord's agent responded saying: "The owner has agreed to a reduction in the rent – I tried to phone you yesterday can you please give me a call". 3. There were further emails until 24 April 2020 in the landlord's evidence. On that day at 1.31pm the managing agent said "Did you mean to pay $1,600 for May and $1,600 for June making it $400 per week? I need a weekly figure and if you intend to stay after lease expires". At 1.53pm Mr Fredriksen responded "Correct, I paid $1,400 for Apr-May (it's all I had at the time) so will top that up $200 and pay an additional $1,600 for May-June to take me to the expiry, June 12. I will make a payment of $1,800 on May 15th to see me to the end of the lease term. Without new employment secured, I can only offer a month-to-month arrangement at the same rate of $1,600". At 1.59pm the managing agent responded "You will need to give two weeks' notice before lease expires – let me speak with your landlord now in regards to paying $400 per week for the next two months." After an intervening email about rollover if the concession continued after fixed term expiry, at 2.31pm the managing agent emailed "As per phone discussions the landlords have agreed to $800 per fortnight until your lease expiry you are welcome to stay on if your financial situation changes let me know". Mr Fredriksen responded at 3.41pm "Ok great, thank you … I have paid the $200 top up and $1,600 will be paid either on the 10th or the 15th". 4. Whatever (if any) concluded arrangement had been made from the foregoing exchange was extended until the mid-August 2020 payment. The ledger appears, as best we can discern without a complete hearing of the matter on the evidence to reflect the managing agent's understanding (also set out in an email of 4 January 2021) of the arrangement being fortnightly-based, whereas Mr Fredriksen's understanding from the emails appeared to be that the arrangement was monthly-based. 5. Mr Fredriksen's income position subsequently improved and he paid $1,738.10 per month from the mid-September 2020 payment until vacation, which was the equivalent of $400 per week or $800 per fortnight. 6. Mr Fredriksen said, in an email of 4 January 2021 when the landlord had foreshadowed proceedings concerning alleged arrears, that he had paid $1,600 per month as per the concession rate for five months from mid-April to mid-August 2020 and then $1,738.10 from that point on until he vacated. He said the mistake was that the managing agent's rental ledger calculated the concessional offer as $400 per week or $1,738.10 per month from mid-April to mid-August 2020, leaving ledger arrears of $138.10 per month for five months or $690.50. He also challenged the validity of a rental increase notice from $800 per fortnight to $960 per fortnight effective 10 April 2021. 7. In the May Decision, as noted above, the Tribunal ordered Mr Fredriksen to pay rental arrears of $1,371.43 for rent owed under the terms of the tenancy agreement for the period from 5 May 2021 to 25 May 2021. 8. However, as we have noted above, Mr Fredriksen chose not to attend the hearing the subject of the May Decision. We do not know whether or not he provided any evidence to the Tribunal on that occasion. In those circumstances, we have no basis for a different conclusion about the arrears to that found in the May Decision. 9. In written submissions provided for the hearing in relation to the 25 November Decision, Mr Fredriksen submitted: Note - date range is incorrect and reflects an error in the rental amount agreed. I am vehemently disputing the $1,738.10 per month vs the agreed $1,600 per month. Discrepancy is $138.10 per month for approx. 5 months (April 2020-August 2020) or a total of $690.50. This amount is disputed in full based on offer and acceptance of $1,600 per month not $1,738.10 per month. I am seeking acknowledgment of offer and acceptance for $1,600 per month-rental arrears claim dismissed. The amount offered was derived from Job Seeker payments and more notably from local market evidence on rental properties, of which there were over 30 vacancies in my building alone at the time. Note -studio apartments were leasing at sub $400pw. At the time, I even applied and was approved for a superior, fully furnished, proper 1 bedroom apartment within the building at $400pw (email correspondence provided). Multiple opportunities were offered for the owner to provide me notice to vacate and for the premises to be marketed for lease. Note - $1,738.10 was offered for the months of 15/09/20-17/06/21 as my financial situation had changed at that point. 1. It appears that Mr Fredriksen also provided those submissions for consideration at the time of the August Decision. If that is the case, we can see that it is arguable by Mr Fredriksen that the calculation of rental arrears may have been attended by error as to the terms of the concessional arrangement if the supporting documents provided to us were also provided for the August Decision. 2. It is also arguable that there was no finalised concession agreement and that there were arrears at the time of the May Decision and the August Decision even if the calculation error of $690.50 was accepted, those arrears arising from a finding that there was a valid rent increase notice operative from 10 April 2021. 3. However, as we have noted above, and as the Tribunal informed Mr Fredriksen in the 10 November Decision: * there can be no doubt that the question of what should be the fate of the rental bond was considered at a hearing on 26 August 2021 which was attended by both parties; * Mr Fredriksen's subsequent application (RT 21/36466), lodged on 26 August 2021, which became the subject of orders made on 16 September 2021, had to be dismissed as it sought to revisit a matter which had been previously considered and determined; * if Mr Fredriksen was unhappy with the August Decision, then the appropriate course of action to file an appeal, not for a fresh application to be made; * it remained open to Mr Fredriksen to pursue an appeal (although it would be necessary for him to have made an application for an extension of time). Orders 1. The Appeal Panel orders: 1. Leave to appeal refused. 2. Appeal otherwise dismissed. ********** Endnote 1. The figure of $600 appeared in the landlord's submissions. However, it appears that the actual weekly rent was $601.65. Nothing turns on this discrepancy. 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: 31 January 2022