Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nanitsos v Nanitsos [2022] NSWCATAP 37 Hearing dates: 1 December 2021 Date of orders: 11 February 2022 Decision date: 11 February 2022 Jurisdiction: Appeal Panel Before: P. Durack SC, Senior Member D. Charles, Senior Member Decision: (1) The appellant's application to adjourn the hearing of the appeal on 1 December 2021 is refused. (2) The application for an extension of time in which to lodge the appeal is dismissed. (3)The appeal is dismissed. Catchwords: LEASES and TENANCIES-residential tenancy-termination order - nature of agreement between former husband and wife for occupancy of part of wife's unit. APPEALS—adjournment of hearing refused - extension of time to lodge appeal refused– no merit to appeal – by the appeal the appellant sought documents with a view to establishing that the occupancy agreement was null and void because of misrepresentation. Legislation Cited: Civil and Administrative Tribunal Act (NSW) (2013) Civil and Administrative Rules 2014 (NSW) Category: Principal judgment Parties: Dimitrios Nanitsos (Appellant) Florance Nanitsos (Respondent) Representation: Both parties were self-represented File Number(s): 2021/00235997 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: 15 July 2021 Before: S Thode, Senior Member File Number(s): RT 21/22750 REASONS FOR DECISION Overview 1. This is an appeal from a decision of the Tribunal made on 15 July 2021 in which orders were made that a residential tenancy agreement between the parties was terminated immediately, possession was to be given to the landlord (respondent to the appeal) and the order for possession was suspended until 18th August 2021. 2. On 30 September 2021 possession of the residential premises was obtained by the landlord when a warrant of execution was executed. Accordingly, pursuant to clause 12 (2) (b) of Schedule 4 of the Civil and Administrative Tribunal Act (NSW) (2013) (NCAT Act) the appellant (former tenant) may only pursue an appeal on a question of law. 3. The appellant needs and applies for a relatively short extension of time in which to lodge his appeal. However, because, in our opinion, the appeal lacks any merit we have decided to refuse to extend the time for bringing the appeal and that the appeal should be dismissed. 4. At the hearing of the appeal we refused an application by the appellant to adjourn the hearing of the appeal. An earlier application by him to adjourn the hearing of the appeal was refused on 28 October 2021. 5. Our reasons for refusing the adjournment application are set out below, along with our reasons for our decision to refuse the application for an extension of time and that the appeal should be dismissed. Background 1. In 2012 the appellant and the respondent were divorced after a long marriage. 2. In 2014, following the loss of his considerable wealth, the appellant moved into a two-bedroom unit in Miranda of which the respondent was the registered proprietor and where she lived. His occupancy of one of the bedrooms and a lock-up garage was the subject of an oral agreement with the respondent under which the appellant paid the respondent a total of $150 per week. Such payment was made regularly until 28 November 2019. 3. Following the service of a 90 day notice of termination of a periodic tenancy agreement pursuant to s 85 of the Residential Tenancies Act 2010 (NSW) (RTA), in April 2021, the respondent commenced proceedings in the Tribunal seeking a termination order and possession. The Tribunal's decision 1. The Tribunal concluded that a residential tenancy agreement within the meaning of the RTA existed between the parties and that it was an agreement for an indefinite period and was, therefore, a periodic residential tenancy agreement. Amongst other matters relied upon in respect of this conclusion, the Tribunal said that it was not in dispute between the parties that an oral agreement for occupancy had been made and that the appellant referred to the payments he made as "rent" in his evidence. 2. The Tribunal referred to evidence from the appellant, including that he said he had promised his second daughter that if her mother had not lied about the amount of her inheritance then he would pay the full outstanding rent and move out as soon as it was practical to do so. 3. The Tribunal said that, as best as she could understand it, the appellant claimed that he was entitled to half of the respondent's late mother's estate and that he considered he was entitled to an equitable interest in the residential premises the subject of the dispute. As to this, the Tribunal said that there was no evidence that the appellant had any interest in the property and that his subjective belief that he had such an interest did not alter the legal relationship between the parties as being one governed by a residential tenancy agreement. Grounds of appeal and appellant's submissions 1. The only error by the Tribunal itself that the appellant pointed to in the grounds of appeal in his Notice of Appeal lodged on 18 August 2021, or otherwise, was a contention that the error made by the Tribunal was that the Tribunal said that the decision was based on the fact that he did not lodge a claim to obtain a share of the respondent's inheritance but did not ask for the reason he had not done so. 2. The grounds of appeal in the Notice of Appeal also state that he and his daughters were lied to by the respondent about the amount of the inheritance the respondent had received from her mother's estate. The grounds proceed to explain why this was said to be significant. They refer to the trauma experienced when they lost some $32 million of assets and were left without a roof over their heads and that when the respondent claimed that all she got from her inheritance was enough to purchase a unit and he was invited to stay with her he was not going to risk a roof over their heads because he wanted to go into business. It was said that if he had not been invited to stay with the respondent he would have lodged a claim on the respondent's inheritance and if the respondent had told the truth about the amount of that inheritance he would unquestionably have lodged such a claim. It was said that he stopped paying rent when he discovered that the respondent had lied about the amount of the inheritance and also refused to provide certified copies of documents relating to her inheritance. The grounds of appeal then state: …. In my submission on 14/7/21 I stated the issue was one of inheritance and not of rental. I also asked that the matter be referred to the court with the appropriate jurisdiction. The matter can easily be resolved if NCAT issue subpoenas for the relevant documents regarding the will of Helen Pappas and the Deed made between [the respondent] and her brothers….. I therefore ask for a stay of proceedings until these issues are resolved. Please note at this stage I'm not seeking to make a claim on the inheritance of [the respondent] all I seek to prove is that the [respondent] lied about her inheritance to me and our daughters. 1. An application by the appellant for a stay of the orders made on 15 July 2021 was refused on 10 September 2021. 2. Despite directions concerning the conduct of the appeal for the appellant to lodge written material well before the hearing of the appeal, including submissions and the sound recording of the hearing at first instance and a typed transcript of any relevant parts, no such material was provided by the appellant. 3. At the hearing of the appeal the appellant said that his whole argument was that the agreement he reached with the respondent for him to stay in the Miranda unit was null and void because he had been lied to by the respondent in relation to making this agreement and he would never have taken up the offer to stay if he had been told the truth about the amount of her inheritance. He accepted that this claim that the agreement was null and void had not been put to the Tribunal at first instance but it was a claim that he now wished to pursue. He told us that he did not question the logic of the Tribunal's decision. 4. The appellant said at the hearing of the appeal that he had no way to prove the alleged lie unless he could obtain access to 2 documents, concerning the respondent's inheritance (which documents he described) and that there was no point to the appeal unless the Tribunal had the authority to obtain these documents and ordered that they be provided. 5. He also said that he would like the appeal, if possible, to go to the New South Wales Supreme Court. Appeal limited to a question of law 1. Clause 12 (2) (b) of Schedule 4 of the NCAT Act provides: 12 Limitations on internal appeals against Division decisions ….. (2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if— …… (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. As we have already said, it is uncontroversial that a warrant for possession was executed on 30 September 2021 in relation to the Tribunal's termination order. Application to adjourn the hearing of the appeal-reasons for the refusal of the appellant's application 1. In an email sent to the Tribunal on 24 November 2021 the appellant applied for the hearing of the appeal to be adjourned. We heard that application at the hearing of the appeal. 2. This adjournment application followed an earlier unsuccessful application to adjourn the appeal hearing on 1 December 2021. That application was refused on 28 October 2021. Earlier, the hearing of the appeal had been adjourned from 2 November 2021 to 1 December 2021. 3. In refusing the application on 28 October 2021, Principal Member Suthers noted that the appellant said he needed more time to gather evidence in the appeal through Summonses and that it should be adjourned until a face-to-face hearing could occur, likely in February 2022, in which he could cross-examine witnesses. In concluding that the hearing of the appeal should not be further adjourned, the Principal Member said he had regard to a number of matters, including that the appellant had been removed from his former home with the attendant disruption that must have caused, the only apparent prejudice to the respondent would be a further delay in the resolution of the appeal, this was an appeal proceeding where the admission of fresh evidence and cross-examination was by no means the usual, the appellant had already had an application for a summons to the respondent refused by Deputy President Westgarth on 30 September 2021, if a warrant for possession has been executed the appellant may be limited to raising only questions of law and the appeal had been on foot since 18 August 2021 with two sets of directions made for the appellant to lodge and serve his material. The Principal Member also said that the move to audio/visual hearings was a necessary and proportionate alteration to the usual procedure brought about by the Covid-19 pandemic. 4. In his email sent on 24 November 2021 the appellant stated that an adjournment would allow for the matter to be prepared by him and for applications for summonses to be reviewed by a Tribunal member. He then supported this contention with 4 matters that he outlined, including that he was 78 years old and had been displaced from his home in the Miranda unit, that he was living in his motor vehicle and that some relevant documents were missing in the storage unit where he had moved his belongings, which he needed extra time to locate. 5. The appellant expanded upon his argument for an adjournment in a subsequent email to the Tribunal sent on 28 November 2021 in response to the respondent's objection to the appeal hearing being adjourned. We considered the matters set out in both emails from the appellant sent on 28 October 2021 and 28 November 2021. In the latter email, amongst other things, the appellant contended that the appeal should be adjourned until applications for summonses are issued or until he could produce other documents to establish that the respondent had inherited from her mother considerably more than what she had told him. 6. Because it became clear that the purpose of an adjournment was inextricably connected with the merits of his grounds of appeal, in determining the adjournment application we permitted both the appellant and the respondent to make such oral submissions as they wished in respect of not only the adjournment application, but also the application for an extension of time in which to lodge the appeal and as to the merits of the appeal. 7. At the hearing of the appeal the appellant made it clear that the sole purpose of an adjournment was to enable him to take steps to seek to obtain documents, in particular, the two documents we have already referred to, with a view to establishing that the respondent lied to him about the amount she had inherited from her mother in order to establish that the agreement they reached for him to stay at the unit was null and void. 8. In deciding and announcing at the hearing of the appeal that the appellant's adjournment application was refused (and thereafter giving the parties an opportunity to make further oral submissions on the appeal), we concluded that not only was there no substantial change from the situation relied upon by the appellant in respect of his adjournment application that was refused on 28 October 2021 but also, at the least, the appellant had not shown how the further stated steps he wished to take or the material he hoped to gather might, in any way, assist him in the pursuit of this appeal on the basis of a question of law. 9. After we refused the adjournment the appellant said that he did not withdraw the appeal. Extension of time in which to appeal 1. Because this is an appeal against a decision in "residential proceedings" the time period to file an internal appeal is 14 days from the date the appellant was notified of the decision or given reasons for the decision (whichever is the later); r 25 (4) (b) of the Civil and Administrative Rules 2014 (NSW). In this case the appellant says he was notified of the decision, which also contains the reasons for decision, on 17 July 2021. The Notice of Appeal lodged on 18 August 2021 was, therefore, out of time. The appellant says that he did not appreciate that he needed to appeal in less than 28 days and that he was experiencing a huge amount of stress around this time. 2. The extension of time required by the appellant is not lengthy. However, the prospects of success of the appeal are a relevant consideration: see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. 3. Because, in our opinion, the appeal lacks any merit, as expanded upon below, we have decided to refuse the application for an extension of time. Merits of the appeal 1. In substance, through this appeal, the appellant seeks to obtain documents that he believes will enable him to prove that he can establish that the agreement the subject of the orders made by the Tribunal on 15 July 2021 was null and void because he was induced to enter into such an agreement as a consequence of a fraudulent statement by the respondent about the amount that she inherited from her mother. 2. This was not a claim that he had brought in any proceedings prior to the Tribunal's decision on 15 July 2021, presumably, for the reason that he believed he could not prove such a claim without the documents he wanted. Nor was it a claim that he mentioned to the Tribunal at first instance. 3. This situation gives rise to, at least, the following fundamental flaws with the appeal as follows: 1. The appellant's argument does not fall within the requirement that the appeal be on a question of law. Rather, the appeal seeks to obtain documents to be used to pursue a new cause of action in respect of which there are disputed questions of fact that would require to be determined on the basis of new evidence. 2. An appeal is not a process for obtaining documents to be used in order to pursue a new cause of action, nor is an appeal a process for prosecuting a new cause of action based upon new evidence. 1. Furthermore, a declaration or order that a residential tenancy agreement is null and void because of misrepresentation or misleading and deceptive conduct is not an order that the Tribunal is empowered to make under the powers conferred upon it by the RTA: see s 187 & s 188. We are not aware of any other source of jurisdiction or power of the Tribunal to make such a determination. However, since the matter was not argued by the parties it is undesirable and unnecessary for us to arrive at any conclusion about the jurisdiction or power of the Tribunal in this respect. 2. As to the only error by the Tribunal that the appellant pointed to in the Notice of Appeal (referred to above), we can discern no basis for concluding that the matter referred to raises any real question of law or, if it did, raises a point of any merit. The error referred to is based upon the incorrect premise that the decision of the Tribunal was based on his failure to lodge a claim to obtain a share of the respondent's inheritance. 3. We have said that during the hearing of the appeal the appellant mentioned that the proceeding should be transferred to the NSW Supreme Court, if that was possible. He made no formal application for such a step to be taken and did not identify the basis for taking such a step. The Tribunal has power under s 54 (1) of the NCAT Act to refer a question of law to the Supreme Court for the opinion of the court. However, as we have already indicated, the appeal raises no question of law, let alone any such question that it may be appropriate to refer to the Supreme Court. ORDERS 1. For the above reasons, we order as follows: 1. The appellant's application to adjourn the hearing of the appeal on 1 December 2021 is refused. 2. The application for an extension of time in which to lodge the appeal is dismissed. 3. 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: 11 February 2022