Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Elsayed v Tassone [2022] NSWCATAP 69 Hearing dates: 7 March 2022 Date of orders: 16 March 2022 Decision date: 16 March 2022 Jurisdiction: Appeal Panel Before: R C Titterton OAM, Senior Member G Ellis SC, Senior Member Decision: (1) Application to extend the time for filing the notice of appeal to 25 November 2021 is refused. (2) Appeal otherwise dismissed. Catchwords: APPEALS - errors other than errors of law– no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – s 80 Residential Tenancies Act 2010 (NSW) - s 117 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Category: Principal judgment Parties: Alaaedin Elsayed (First Appellant) Sally Zahran (Second Appellant) Paul Tassone (Respondent) Representation: Appellant: self-represented Respondent: A Saad, Project Manager File Number(s): 2021/0036713 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 29 October 2021 Before: C Marzilli, Member File Number(s): RT 21/34180 REASONS FOR DECISION Introduction 1. The appellants (to whom we will refer to as the Tenants) appeal from a decision of the Tribunal of 31 October 2021. The hearing had been conducted on 29 October 2021, the Tribunal hearing three applications, being RT 21/30713, RT 21/34180 and RT 21/43157. 2. In RT 21/30713, the Tenants sought an order that the respondent (to whom we will refer to as the Landlord) pay them $11,700 in relation to electricity and water charges. The Tenants were successful and the Landlord was ordered to repay them $11,332.74 for electricity charges and $1,269 for water usage. 3. RT 21/34180 was the Landlord's claim for termination of the residential tenancy agreement following the issuance of a 90 day no ground notice of termination on 30 July 2020. 4. RT 21/43157 was a further Application of the Landlord seeking termination of the residential tenancy agreement. The Landlord had served another notice of termination on the tenants on 10 August 2021. This notice of termination was based on rental arrears. 5. Each of the Landlords' applications were dismissed, the Tribunal finding that each was a retaliatory eviction in terms of s 117 of the Residential Tenancies Act 2010 (NSW). Notice of Appeal 1. The Tenants' appeal is limited to that part of the Decision in RT 21/30713 relating to the repayment of electricity invoices only. Their grounds of appeal relevantly state: "3 bills were not considered by the judge because the bills didn't show the amount already paid by the tenant. Another three bills were not considered as they were not available at the time of hearing (not paid yet). One bill was missing in the evidence fault submitted by the tenant". 1. We will describe these grounds as Grounds One, Two and Three. Reply to Appeal 1. No Reply to Appeal was filed by the Landlord. However, in his oral submissions, he very clearly indicated that he opposed the appeal being allowed and otherwise impugned the motivations of the Tenants in filing the appeal. Nature of an appeal 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (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 grounds (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. 2. The Appeal Panel also stated at [12] 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 (subject to any considerations of procedural fairness to the respondent that might arise). 3. We have undertaken that exercise, and can identify no question of law in the Notice of Appeal or in the materials filed by the Tenants. 4. Therefore, the Tenants need leave to appeal. 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 they 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]. Consideration Grounds Two and Three 1. Grounds Two and Three can be dealt with together and should be dismissed. It is axiomatic that a Tribunal decides matters on the basis of evidence presented to it. It can hardly be criticised or be found to have committed an error when three bills were not available at the time of the hearing (Ground Two) and one bill was missing from the evidence submitted (Ground Three). 2. Having heard the Tenants' explanation for the unavailability of those documents, we are not satisfied that the documents fall into that category of material that is appropriate to allow into evidence on appeal when they were not relied on at the first instance hearing, that is that the documents were not reasonably available. The test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. 3. Further, in relation to the Ground Two documents, it was still not clear, even at the appeal hearing, whether those invoices had been paid by the Tenants. It appears that, at best, they may have been partly paid under a payment plan the Tenants had entered into with the relevant energy provider. 4. There is no substance in either of Grounds Two or Three. Ground One 1. As to Ground One, in essence the Tenants are seeking payment of an additional $3,641.82 for amounts that they say had been paid to Red Energy and AGL at the time of the hearing and a further $3,379.70 following the entering into of payment plans with those companies. 2. A Tribunal determines matters on the basis of evidence before it. The Tenants were seeking repayment of amounts they had paid. If they did not provide probative evidence that three particular amounts had in fact been paid, that is no error on the Tribunal's part. The Appeal Panel has stated in other cases that "An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again": Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. 3. As to the payment plans, these are respectively dated 9 November 2021 (Red Energy) and 10 November 2021 (AGL). Accordingly, they postdate the Tribunal hearing and relate to amounts paid after 9 and 10 November 2021 and could not have formed part of the Tenants' claim. 4. Ground One therefore should be dismissed. Conclusion 1. The appeal must fail; as the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states, "an appeal is not an opportunity to have a second go at a hearing". Other 1. There is one final matter to note. 2. The notice of appeal was filed out of time. The Decision was made on 31 October 2021 and not received by the Tenants until the following day. The Rules in relation to appeals in residential tenancy matters state that appeals must be made within 14 days. As the notice of appeal was not filed until 25 November 2021, the appeal was actually filed 10 days late. 3. The Landlord opposed an extension of time being granted. 4. In their written submissions, the Tenants say they were not aware when they received the Decision that the period in which an appeal had to be filed was 14 days, believing that the time period was 28 days, and that it took some time to study the Tribunal order and assess possible options for response, to seek advice from a Tenancy Service and to get an account payment history from Red Energy. 5. Generally, in an application for an extension of time to appeal, the Appeal Panel will be required to consider the length of the delay, the reason for the delay, the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent to the appeal. 6. None of these factors favour an extension of time. But in particular because the appeal lacks any merit for the reasons we have explained, the application for an extension of time is refused. Orders 1. As we have refused to extend the time for the filing of the Notice of Appeal, the orders of the Appeal Panel are: 1. Application to extend the time for filing the notice of appeal to 25 November 2021 is refused. 2. Appeal otherwise 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. 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