Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kennedy v Boustani-Nasr [2022] NSWCATAP 108 Hearing dates: 23 March 2022 Date of orders: 11 April 2022 Decision date: 11 April 2022 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member Dr J Lucy, Senior Member Decision: The appeal is dismissed. Catchwords: APPEAL – No error of law – No basis for grant of leave Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act 2010 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: Catherine Kennedy (Appellant) Rima Boustani-Nasr (First Respondent) Milad Nasr (Second Respondent) Representation: Appellant (No Appearance) Respondents (Self Represented) File Number(s): 2021/00360489 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 14 December 2021 Before: S Dutra, General Member File Number(s): RT 21/47937 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 14 December 2021. 2. The application to the Tribunal was brought by respondent (the Tenant), against the applicants (the Landlords). 3. This appeal challenges an order for the payment of arrears of rent. 4. For the reasons set out below, we have decided to dismiss the appeal. Background 1. It is sufficient to record that the proceedings related to premises in Drummoyne that were the subject of a residential tenancy, governed by the provisions of the Residential Tenancies Act 2010. Tribunal proceedings and decision 1. The application to the Tribunal was lodged on 23 November 2021. The matter was first listed before the Tribunal on 14 December 2021 and the Tribunal's reasons for decision were published on that day. 2. The Tribunal relevantly found that there were arrears of rent for the period 1 August 2021 to 14 December 2021, which amounted to $16.971.45. However, as there is a $15,000 limit which applies to the Tribunal in relation to such claims, and the Landlords were willing to confine their claim to that amount, an order for $15,000 was made. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) NCAT Act. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. 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 Schedule 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 Schedule 4 may have been suffered where: … there 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 Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. 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: (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. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice". 1. By reason of the Tenant not having legal representation, and since she did not attend the hearing of the appeal, consideration has been given to the documents she lodged with a view to ascertaining if there was an arguable basis for the appeal which could have been raised if the appellant was represented by a lawyer or if she was in attendance at the hearing of the appeal. 2. In other words, the Tribunal did not let the fact that the Tenant did not attend the hearing determine the outcome of her appeal as that appeared to be the procedurally fair course in circumstances where it appears, from her email sent on the morning of the hearing (quoted below), that she chose not to exercise her right to be heard. Submissions and evidence 1. In deciding the appeal, we have had regard to the following: * The Notice of Appeal lodged on 17 December 2021. * The Reply to Appeal lodged on 25 January 2022. * The documents lodged by the Tenant on 10, 19, 20 and 28 January 2022. * The documents lodged by the Landlord on 18 January 2022 and 23 February 2022. Notice of Appeal 1. The Notice of Appeal was lodged on 17 December 2021, which is within of the 14 day time period specified in cl 25(3) of the Civil and Administrative Tribunal Rules 2014 (the Rules). Grounds of Appeal 1. The grounds of appeal specified in the Notice of Appeal were as follows: the Tenant and Respondent in matter RT 21/47937, did not receive the Applicant's submission until after the commencement of the hearing on 14.12.21, and did not have my Respondent's Submission considered at the Hearing on 14.12.21. Due to the seriousness of the matter and it relating to my safety and shelter, I lodge Appeal in the hope that the details of the Respondent Submission in matter RT 21/47937 may be considered and it be recognised that a reason for rental arrears accumulating, is due to relentless abuse by the Applicants, Rima Boustani-Nasr and Milad Nasr, over four months prior to them becoming owners of the rental property and landlords from 10-12.11.21, as they attempted to take vacant possession by the time their purchase settled, and continue to do so. Every effort was made by me to obtain employment through Forced-COVID-lockdown to pay rent and also arrears incurred through Forced-COVID-lockdown, while I also endured hindrance of same efforts through abuse by Rima Boustani-Nasr and Milad Nasr, as they destroyed my peace and ability to earn income regardless of my diligent efforts and abilities, as Rima Boustani-Nasr and Milad Nasr strived to achieve my vacation prior to expiry of my lease agreement on 26.2.2022, by any means possible. Without NCAT Hearing Member taking my Submission into account, ordered to pay on 21.12.2021 is not achievable, even though I work as much as possible to regain financial stability as soon as possible to pay my way, while my new landlords continue to abuse me and my time in their ongoing attempts to destroy my ability to earn an income and pay my way – which includes my ability to catch up on rental arrears which accumulated through their abuse from 17.7.21 to date. Without the security of shelter and me not being harassed and abused by my landlords to ensure I cannot work, I cannot accumulate funds and retain employment, which ensures not being able to comply with this Order will have a serious and devastating impact. 1. The tenant provided a significant volume of documents in support of her appeal. 2. At 8.27am on the morning of the hearing of the appeal, the Tenant sent an email, headed: "Negligence/Deliberate negligence/Corrupt establishment", the contents of which are quoted below: Dear Madam/Sir As it may eventuate that I cannot be present at today's NCAT Appeals Hearing scheduled for 10.15am - adjourned so far into the future from 14.12.2021 - I advise that there is no question that NCAT Hearing Member Dutra was negligent - deliberate or otherwise - and knowingly did not take into account my Respondent submission forwarded 7.12.2021 in relation to 21/47937, and that she allowed the applicants and their property managers to 'run a muck' throughout proceedings, rather than adjourn and spare me the trauma of knowing I could not adhere to the demands of her Order made. Therefore, my advice that the Applicants of 21/47937 set about to destroy my peace and comfort and to cause fear enough that I would vacate and then deliberately, relentlessly tried to sabotage my ability to obtain forced-COVID-lockdown-compliant employment from 17.7.2021 - as a means of them securing vacant possession by the time their purchase of my rental settled - that should have seen the offenders reprimanded on 14.12.2021, instead saw them get their way through a deliberately unachievable order made by NCAT Hearing Member Dutra - which stole all of my time with further address as I tried to keep a roof over my head while retaining new employment. It has revealed that prior to making their offer on 20.7.2021 to purchase my rental, Boustani-Nasr and Nasr were forced to agree to honour my rental agreement through to expiry on 26.2.2022, which interfered with their plans to take vacant possession by settlement of their purchase in November 2021. I am clear that abusive/corrupt staff conduct is rampant at NCAT Sydney Registry, among registry and tribunal staff, and I will follow these matters through to reprimand of the offenders. I do not have to prove further, the abusive/corrupt conduct of NCAT Hearing members on 14.12.2021, 19.1.2022, 27.1.2022, 9.2.2022 and now believe that Appeals Hearings are a farce and ensure results of same misconduct are not rectified nor the offenders illuminated. No ethical person rewards offenders who set about actioning relentless abuse and criminally abusive slander (via Boustani-Nasr and Nasa's Termination of Lease Agreement 12.11.2021 and Application to NCAT 23.11.2021 with the support of criminally abusive property managers, Jessica Simpson-Le and Tim Le) as offenders attempt to ensure that a tenant vacates out of fear and/or financial destitution prior to offenders' purchase of the rental settling. Again, my original landlord, Danielle Vlahos, remains culpable for enabling all that her property managers (Simpson-Le and Le) and buyers (Boustani-Nasr and Nasr) actioned without her intervention to protect her tenant's peace and comfort and ability to get on with study and employment during forced-COVID-lockdown from 24.6.2021 to 11.10.2021 and thereafter. Consideration 1. Rather than dismiss the appeal due to the non-attendance of the Tenant, the Tribunal read the contents of the email onto the record. That enabled the Landlords to hear what was said. The Tribunal then provided an opportunity for oral submissions for the Landlord. It was indicated that the Tenant is no longer residing in the premises at Drummoyne which are the subject of these proceedings. 2. The Tribunal then reserved its decision in order to consider the documents lodged by the parties before making a decision in relation to the appeal. 3. Having reviewed the documents, the Tribunal is satisfied as to the following matters: 1. The only issue before the Tribunal on 14 December 2021 was arrears of rent and the Tribunal found there were arrears of rent which exceeded $15,000. 2. The documents provided to the Tribunal do not suggest either that there were no arrears of rent or that the arrears of rent were less than $15,000 as at 14 December 2021. 3. There are no documents now provided which, if available at the hearing on 14 December 2021, would have resulted in a different outcome. 4. The Tribunal included a notation to its orders that the Tenant did not dispute the arrears of rent and that notation was not challenged in this appeal. 5. There were other issues between the parties, such a termination, which did not form part of the application which is the subject of this appeal. 6. No error of law has been shown by the Tenant. 7. The decision was not against the weight of the evidence (ground 1). 8. There was no miscarriage of justice (ground 2). 9. There is no fresh evidence (ground 3). 10. There is no basis for granting leave to appeal on any of those three grounds. 1. The Tenant made a complaint, in her grounds of appeal that the Tribunal had failed to take into account her written submission. We have reviewed that submission and it is not relevant to the question of rental arrears. 2. It is noted that the Tenant alleged what may be summarised as improper conduct in her email. As those matters do not form part of this appeal, we express no view in relation to them other than to note it is a matter for the Tenant to pursue those matters if she so desires. Conclusion 1. For the reasons indicated above, the order that will be made to finalise this appeal is as follows: 1. 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 April 2022