Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burrows v City West Housing Pty Ltd [2022] NSWCATAP 106 Hearing dates: 14 March 2022 Date of orders: 08 April 2022 Decision date: 08 April 2022 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member J Kearney, Senior Member Decision: (1) The application of the appellant to extend time for the filing of the Notice of Appeal is refused. (2) The appeal is otherwise dismissed. Catchwords: CIVIL PROCEDURE – Time to appeal – Extension of time for application – Refused – Whether reasonable prospects of success Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – ss 41, 80, Sch 4 cll 8 and 12 Civil and Administrative Tribunal Rules 2014 – rr 23, 25 Residential Tenancies Act 2010 (NSW) – ss 61, 65, 187 Cases Cited: Collins v Urban [2014] NSWCATAP 17 House v the King (1936) 55 CLR 499; [1936] HCA 40 Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22 Pholi v Wearne [2014] NSWCATAP 78 Category: Principal judgment Parties: Suzanne Burrows (Appellant) City West Housing Pty Ltd (Respondent) Representation: Appellant (self represented) J Barnes (Respondent) File Number(s): 2021/00365967 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 02 December 2021 Before: E Sarofim, General Member File Number(s): SH 21/43666; SH 21/43376 reasons for decision Introduction 1. This appeal involves a dispute between a landlord and tenant under the Residential Tenancies Act 2010 (NSW) ("RTA"). The appellant is the tenant and the respondent is the landlord. To avoid confusion, in these reasons for decision, we will refer to the parties as the "tenant" and the "landlord". Proceedings in the Tribunal 1. The Tribunal had, in effect, a single application from the tenant - the reasons record there were in fact two applications but that was because the original claim had been re-instated following an administrative error. 2. The application raised three issues for determination. The tenant first sought an order pursuant to s 61(2) of the RTA seeking compensation ($949) for damage to goods (her bed) occasioned when the landlord's tradesperson was accessing the premises to replace carpets. The Tribunal dismissed this claim because it was made outside the applicable time period. 3. The second issue was a claim by the tenant pursuant to s 187(1)(d) of the RTA for compensation of $300 for loss of goods which occurred when the landlord's agents removed the tenant's goods from a car space allocated to her. The Tribunal dismissed this claim because the tenant failed to prove the car space was not common property and the tenant had adequate notice of the intended removal. 4. The third issue was pursuant to s 65(1) of the RTA for an order the landlord carry out repairs to an access gate to the subject premises. This issue was resolved by agreement and consent orders were made requiring the landlord to repair the gate to restore access. 5. The Tribunal heard the matters together on 26 November 2021. The tenant represented herself and the landlord was represented by its agent with leave. The Tribunal's decision and reasons were published on 2 December 2021. 6. In the Tribunal, there was no dispute and the Tribunal found, that it had jurisdiction to hear and determine the tenant's applications. The appeals 1. This appeal was commenced outside the time period for commencing an appeal – we will return to this issue below. 2. On 25 January 2022, the Appeal Panel granted leave for the respondent to be represented by Ms Barnes and made directions for the filing of documents and evidence in the appeal. Those directions were amended by further order of the Appeal Panel on 23 February 2022. The tenant represented herself in the appeal. 3. The documents we had available for these appeals were: 1. copy of the original application; 2. reasons for decision of the Tribunal dated 2 December 2021; 3. the Notice of Appeal filed 24 December 2021; 4. the Reply to Appeal filed 31 January 2022; 5. a bundle of documents including the tenant's appeal submissions provided in an email dated 10 March 2022; 6. a bundle of documents including the respondent's appeal submissions filed 11 March 2022; and 7. the appellant also wished to rely on a bundle of documents which she had unsuccessfully tried to file on the day of the appeal panel hearing. This bundle had been provided to the respondent previously. We granted leave to the tenant to file that bundle after the hearing so she could rely on those documents in her appeal. The landlord did not object. We received a bundle of documents from the tenant filed on 15 March 2022 which included a sound recording of the hearing on 26 November 2021. Consideration – extension of time 1. The time for filing the appeal was 14 days from the date the tenant was notified of the decision: Civil and Administrative Tribunal Rules 2014 (the NCAT Rules), r 25(4)(b). The tenant's Notice of Appeal states this date to be 2 December 2022. Thus, any appeal should have been instituted by 17 December 2021. It was in fact filed on 24 December 2021, making it 7 days late. 2. The Appeal Panel may extend time: Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), s 41 which says: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. In Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel provided some guidance as to the principles to be considered in the granting of an extension of time. The Appeal Panel stated at [22]: "[22] The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision – Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success – Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable – Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]." 1. We note the delay is short – only 7 days. The landlord did not argue it was prejudiced and in fact said in its Reply to Appeal that it did not object to the Appeal Panel extending time for lodging the appeal. The tenant's explanation for the delay was, in effect, ignorance of the 14 day time limit, believing it was 28 days. Of course, ignorance is not an explanation for the delay but we note the tenant did act promptly to file the appeal after she became aware of the 14 day time limit. The other significant matter to consider is the tenant's prospects of success in the appeal. Prospects of success 1. The grounds of appeal can be summarised as follows. The tenant submits that the Tribunal: 1. applied an incorrect test when refusing an application to extend time in relation to the application under s 61(2) of the RTA; 2. made incorrect factual findings that the car space was common property and that the tenant had reasonable notice of the planned removal of goods; 3. ordered that side gate access be given to residents but the landlord has failed to comply with that order. 1. Ground 1 raises a question of law. Pursuant to s 80 of the NCAT Act appeals to the Appeal Panel lie as of right in respect of questions of law. On any other ground, leave of the Appeal Panel is required: s 80(2)(b). 2. The tenant acknowledges she requires leave to pursue ground 2. 3. Ground 3 does not allege an error by the Tribunal and is misconceived. When a party alleges non-compliance with a Tribunal order, the appropriate method of redress is to bring renewal proceedings. The renewal provisions in respect of the Consumer and Commercial Division of the Tribunal are contained in cl 8 of Sch 4 of the NCAT Act as follows: 8 Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. … 1. We conclude that ground 3 does not disclose an appellable error and we will not consider it further. 2. We will now consider each of the other two grounds. Ground 1 – s 61(2) of the RTA - correct time limit for granting an extension of time 1. The tenant submits the Tribunal was in error when it said at [5]: "5. The time limits for bringing actions to enforce breaches under the Residential Tenancies Act 2010 are set out in Section 190 and clause 39(6) of the Residential Tenancies Regulations 2019. It is 3 months." 1. We accept the tenant's submission that her claim in the Tribunal did not allege a breach of the RTA but rather sought compensation under s 61(2) for damage caused by the landlord's agent. 2. There is no time limit specified in the RTA (or in the regulations made under it) for such a claim. In this instance, the relevant time limit is set by r 23(3)(b) of the NCAT Rules which provides: 23 General applications … (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made— (a) in the case where enabling legislation specifies the period within which the application is to be made—within the period specified, or (b) in any other case—within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application. … 1. Thus, the relevant time time limit is 28 days for a claim under s 61(2) and we accept that the Tribunal fell into error when it applied a 3 months time limit for the subject application. 2. However, that is not the end of the matter because the tenant still needs to demonstrate that the outcome would have been different if the error had not been made. In other words, the tenant must still demonstrate that it is fairly arguable the exercise of the Tribunal's discretion would have resulted in an extension of time being granted pursuant to s 41 of the NCAT Act, if the correct time limit had been applied. 3. In House v the King (1936) 55 CLR 499 at 404-405]; [1936] HCA 40 the High Court said: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon wrong principle, if he allows extraneous and irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials to do so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the fact it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 1. The Tribunal reasons disclose that it (correctly in our view) considered the four main factors – length of delay, reasons for the delay, merits of the claim and prejudice to the opposing party. 2. Of particular concern to the Tribunal was that the length of delay. On any measure it was significant – 16 months if the 3 month time limit is applied. 3. In our view, the Tribunal reasons do not disclose any error in the exercise of discretion in the sense described in House v the King. Once the correct test is applied the delay is even longer (18 months) so the application of the incorrect test does not, of itself, suggest the exercise of discretion miscarried. 4. The tenant submits she should be granted an extension of time on the basis of the doctrine of promissory estoppel. She submits the evidence discloses she made a claim to the landlord's agent promptly. Another agent of the landlord attended for an inspection a short time later and the damage was pointed out. The landlord's agent said the matter would be "referred to assets for resolution". The tenant says she assumed the landlord "would keep its promise" (refer to the tenant's appeal submissions, page 5, para 18). 5. We have heard the sound recording of the Tribunal hearing on 26 November 2021 and although the tenant did not use the words "promissory estoppel" in her submissions at that time, she did make a submission consistent with that doctrine. 6. Assuming we accept the tenant's version of the facts, we note first the landlord's agent only promised it would be referred to another part of the organisation for resolution. That is not a promise which would reasonably lead the tenant to believe the claim would be accepted and paid. Making the claim does not oblige the landlord to respond or reverse the obligation to commence proceedings within time limits. 7. Next, it appears the tenant was aware the landlord could be tardy dealing with complaints. She says a number of times in the Tribunal hearing and in her submissions to us (for instance, at the tenant's appeal submissions, page 6, para 21) that it was common for the landlord and its agents to fail to undertake maintenance work or respond to tenant queries in a timely manner or at all. With that knowledge, it would not be reasonable to allow a time limit to pass in reliance on a promise of action by the landlord's agent. 8. All this suggests if the tenant placed reliance on the "promise" of the landlord's agent, such reliance was not justified or reasonable in the circumstances. 9. We conclude that while there is no evidence of prejudice, and accept that the claim had merit, on the other hand, the delay is significant, indeed two months longer when applying the correcttime limit, the claim is a modest one and there is no acceptable reason for the delay. It is likely we would reach the same conclusion as the Tribunal and refuse the application to extend time under s 41 of the NCAT Act. 10. In conclusion, it is not apparent to us that the Tribunal's discretion miscarried in refusing an extension of time to bring the claim for compensation for damage to the bed. Even if we assume the opposite and we exercised the discretion afresh, the outcome would be the same. 11. We reject ground 1 as being without merit. Ground 2 – s 187(1)(d) of the RTA - compensation for loss of goods from car space 1. This ground of appeal seeks to re-consider findings of fact, made or not made. To do this, the appellant concedes that the leave of the Appeal Panel is needed because internal appeals, as this is, may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) of the NCAT Act. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 may have been suffered where: "… [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins v Urban, the Appeal Panel stated at [84] that 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; 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 5. 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. The Tribunal's reasons and decision on this issue were as follows: "10. Turning to the removal of personal effects from the car spaces, the Tribunal is not satisfied that the applicant has proven to the requisite degree that the car park area allotted to her is not part of the "common area". She raised the issue that the car spot allocated to her should not be considered common area but there is no evidence before the Tribunal to substantiate this point. The Tribunal cannot make a finding of fact without supporting material. To do so would lead the Tribunal into error. 11. In any event, the Tribunal is not persuaded by the applicant submissions that the earlier notices from the landlord that items would be removed in March 2021 was somehow revoked and fresh notices were necessary simply because the landlord did not remove the items in March 2021. I do not find on the evidence actually before me that the landlord gave a precise date as to when the items would be removed. Rather, notice was given that the landlord would take steps to remove items in common areas after a set number of days. 12. The tenant appears to argue that she was away when the first notice from the landlord was given but I am satisfied she received the notice well before 22 March 2021 and certainly had notice that the landlord intended to remove the items between this point and 12 April 2021 when the items were removed. 13. As the landlord has given the appropriate notice, and there is insufficient evidence to prove that the car spaces are not part of the common areas within which the landlord has remit, this part of the application is dismissed." 1. Essentially the Tribunal made a factual finding that the car space was part of common area and it followed that the landlord could remove goods stored there. 2. The tenant agitates two arguments that the Tribunal was wrong in its factual conclusions. 3. The first is that the car space should not be seen as "common area" because the landlord's parking policy provides for exclusive use by the tenant; other tenants and non tenants are not permitted to use the allocated car space and there is a penalty for breach of the conditions. The tenant argues these characteristics are inconsistent with a "common area". The landlord submits we should endorse the conclusion of the Tribunal. 4. The evidence before the Tribunal was that the premises are a substantial block of home units in an inner suburb in Sydney. The car space allocated to the tenant is located in the basement of the building. The Tribunal, correctly in our view, decided that it was for the tenant to prove that the car space was not common property. There was no evidence before the Tribunal characterising the car space as part of the premises being rented by the tenant. From the evidence at the Tribunal, we understand it was physically separate from her unit. 5. The only matter raised by the tenant was the landlord's parking "policy". She did so in the Tribunal and before us. The landlord's "policy" provided the tenant with exclusive use for parking. We note the policy also clearly provided that the car parking does not form part of the tenancy agreement. 6. Doing the best we can from the limited information available to the Tribunal (and to us), it seems that what the tenant enjoys when she is allocated a parking space, is a licence to use a part of the common area for a particular purpose, namely parking. That licence has terms. The terms do not exclude the other rights of the landlord enjoys over common areas. 7. Without more evidence or argument, the Tribunal was correct to conclude that the the landlord's other rights over the car space (including the removal of unclaimed goods) remained intact. 8. There is nothing the tenant has said which calls into question the Tribunal's conclusion that the tenant failed to prove that the car space was an area of the premises over which the landlord did not have sufficient control to remove unwanted goods. 9. On this issue, the decision of the Tribunal under appeal was not unfair, inequitable or against the weight of the evidence. There was no new evidence to consider. We cannot discern any error by the Tribunal. 10. Secondly, the tenant says that she did not receive adequate notice of the removal of her property from the car space. She says the landlord was obliged to provide her with further notification of its intention to remove personal items from the parking space. 11. The sequence of events appears to be that the first notice from the landlord dated 11 March 2021 states items would be disposed of on 18 March 2021 - the tenant received this notice on 17 March 2021. The tenant received a second notice by email of 19 March 2021 stating goods goods left in the car space would be removed on Monday 22 March 2021. Goods were not actually removed until 12 April 2021. The tenant says the landlord did not inform tenants of the change of the date of removal which she says is "unconscionable". 12. We are satisfied that the Tribunal did not fall into error in concluding appropriate notice was given by the landlord to the tenant that items would be removed after a set number of days (see the Tribunal decision at [11]-[13]). 13. On the issue of the reasonableness of notice, the decision of the Tribunal under appeal was not unfair, inequitable or against the weight of the evidence. There was no new evidence to consider. We cannot discern any error by the Tribunal. 14. In summary, the tenant has not persuaded us that the decision of the Tribunal under appeal on the s 187(1)(d) issue was not fair and equitable or was against the weight of evidence. 15. Even if we were wrong in that conclusion, we would not exercise our discretion to grant leave to appeal because we are not satisfied that this 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. 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 NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. 16. We reject ground 2 as being without merit. Conclusion 1. Ultimately, we must exercise the discretion under s 41 of the NCAT Act to determine whether time should be extended for the bringing of the appeal. The delay is short, the explanation, while not satisfactory, does say why the delay ocurred. The landlord does not actively oppose an extension of time and no issue of prejudice has been raised. Despite those matters, which are favourable to the granting an extension of time, we are not satisfied that the discretion should be exercised in favour of the tenant because we are not satisfied that strict compliance with the rules will work an injustice upon thetenant. That is because the appeal has no real prospects of success. In other words, even if we extended time, the appeal is unlikely to be successful and so time for bringing the appeal should not be extended in the circumstances. Orders 1. We make the following orders: 1. the application of the appellant to extend time for the filing of the Notice of Appeal is refused; 2. the appeal is 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. 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: 08 April 2022