Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Moghni v Homes North Community Housing Pty Ltd [2022] NSWCATAP 124 Hearing dates: 19 April 2022 Date of orders: 27 April 2022 Decision date: 27 April 2022 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member G Ellis SC, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed. Catchwords: APPEAL – No error of law – No substantial miscarriage of justice may have been suffered – Leave to appeal refused Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), r 25 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Yasmien Geda Moghni (Appellant) Homes North Community Housing Pty Ltd (Respondent) Representation: Appellant (self-represented) J McNamara (Respondent) File Number(s): 2022/00030343 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 18 January 2022 Before: W Priestley, General Member File Number(s): SH 21/19842 reasons for decision Outline 1. This is an internal appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 18 January 2022. 2. The application to the Tribunal was brought by respondent (the landlord), against the appellant (the tenant). The tenant has lodged an appeal against the Tribunal's decision and the issue in the appeal is whether the amount owing by the tenant was calculated correctly. 3. For the reasons set out below, we have decided to refuse leave to appeal and to dismiss the appeal. Tribunal proceedings and decision 1. The application to the Tribunal, which related to arrears of rent in relation to residential premises in Tamworth, was lodged on 6 May 2021. That application was determined by the Tribunal on 18 January 2022 when orders were made. 2. The Tribunal relevantly found that the appellant owed the sum of $3,350.87 for rent for the period from 19 June 2021 to 18 January 2022 which amount was to be paid by fortnightly instalments of $62.74. As a result, the appellant was ordered to pay $291.62 per fortnight until the arrears were cleared and then to pay rent in accordance with the residential tenancy agreement between the appellant and the landlord. In the event of non-compliance any time before 18 January 2023, the respondent was granted leave to re-list the application to determine whether the tenancy should be terminated. 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)(b) of the 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 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: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) 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: "… 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. In Collins v Urban, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. 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) of the NCAT Act. 2. In Collins v Urban, the Appeal Panel stated 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. 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." Submissions and evidence 1. In deciding the appeal, we have had regard to the following: 1. the Notice of Appeal lodged on 2 February 2022; 2. the Reply to Appeal dated 14 February 2022; 3. the appellant's documents, received on 13 February 2022 and 24 March 2022; 4. the respondent's documents, received on 14 February 2022 and 7 April 2022 which included the documents relied on at first instance. Notice of Appeal 1. The Notice of Appeal was lodged on 1 February 2022, which was within of the 14-day time period specified in r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014. Grounds of Appeal 1. The grounds of appeal specified in the Notice of Appeal were as set out below: "Order 1 – the total amount of the debt owing has been calculated at an incorrect rate evidence supplied by the [appellant] to show this was not taken into consideration when order was made. It is not economically viable to forfeit 45% of income to rent and arrears as ordered! How is it possible an amount in full if instalments are missed. Order 2 – Rent has been ordered to be paid at $219.62 p/f. Amount is incorrect application has been made to amend (SH 22-02329) 22/2. Order 3 – If tenant does not pay incorrectly calculate(d) Debt/Arrear/Rent they are liable for termination / this is not fair and equitable." 1. The appellant also sought leave to appeal on the ground that the decision was not fair and equitable, was against the weight of the evidence, and that there was significant new evidence that was not reasonably available at the time of the hearing. Appellant's submissions 1. The points made by the appellant may be summarised as follows: 1. the respondent failed to comply with a direction made on 14 September 2021 for the respondent to provide the Tribunal with supporting documents prior to the hearing on 18 January 2022; 2. the appellant was unaware that certain policies applied and she did not receive copies of them prior to that hearing; 3. the respondent failed to notify Centrelink of relevant matters, such as when the rent increased, which was not her fault; 4. the respondent has falsified documents after she had signed them; 5. there was an error in the calculation of the arrears of rent; 6. in fact, the appellant's rent was not only up-to-date but was in credit; 7. the effect of the orders was to require her to pay 45% of her income in rent and arrears of rent. 1. The appellant also sought to rely on two documents that were emailed to the Tribunal at 8.55am, just over an hour prior to the commencement of the hearing: the Electronic Verification of Rent Procedural Guide for Businesses issued by Services Australia in September 2018 and the Electronic Verification of Rent Procedural Guide for Businesses issued by the Department of Human Services in September 2015. It is noted that a copy of those documents was not provided to the respondent. Respondent's submissions 1. The respondent's case was as follows: 1. the relevant documents were provided on 28 September 2021 to the appellant by email and in hard copy form, and to the Tribunal; 2. the respondent was unable to respond to the allegation that documents were altered as the alleged documents had not been identified; 3. matters of rent assistance were between the appellant and Centrelink and Centrelink does not permit the respondent to attend to that matter; 4. the current rent was $109.81 per week, the current arrears were $3,660.66 and that the appellant had agreed to pay $164.88; 5. when the respondent became aware of a matter affecting the appellant's rent, a change backdated to the relevant date was made and a credit given; 6. the respondent had communicated with the appellant through phone calls, letters, emails, and home visits and was only seeking to have the appellant address arrears of rent. Consideration 1. There are three reasons why we do not consider the appellant should be permitted to rely on the documents emailed on the morning of the hearing of the appeal. First, it would be procedurally unfair to include a consideration of those documents when a copy was not provided to the respondent. Secondly, those documents were submitted well after the date set for the provision of documents by the appellant, initially 10 March 2022 and later extended to 24 March 2022. Thirdly, those documents to not constitute significant new evidence in that they are not documents that can be said to be now available and not reasonably available at the time of the hearing. 2. The appellant's case, as set out in the grounds of appeal in her Notice of Appeal, is that there was a calculation error made by the Tribunal as to the amount of the arrears of rent as at the date of the hearing on 18 January 2022. That does not amount to an error of law. 3. Accordingly, it is necessary to consider whether the appellant may have suffered a substantial miscarriage of justice because: 1. the decision was fair and equitable; 2. the decision was against the weight of the evidence; 3. significant new evidence has arisen that was not reasonably available at the time of the hearing; 4. if any of those three questions is answered in favour of the appellant, whether the discretion should be exercised to grant leave to appeal. 1. The Notice of Appeal, the documents provided by the appellant, and her submissions during the hearing did not satisfy us that the decision was not fair and equitable. 2. The Notice of Appeal repeated the claim that the calculation was incorrect, claimed that the appellant was not advised of certain matters, and that rent assistance was calculated based on rent paid by the appellant. This ground was not advanced during the hearing of the appeal in a manner that persuaded us that the decision was against the weight of the evidence. On the contrary, the respondent's evidence at first instance contained the data it downloaded from Centrelink, its Rent Charging (Social Housing) Policy, and a statutory declaration of a staff member as to how the rent of the appellant had been calculated. The evidence of the appellant in its totality did not preponderate so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. 3. While the appellant contended that we should consider the documents provided by email on the morning of the hearing of the appeal, as indicated above, we are not satisfied they are documents not reasonably available to her prior to the 18 January 2022 hearing, noting that she had more than eight months, from when the application was lodged on 6 May 2021, to prepare for that hearing. 4. As a result of these findings, we do not consider that the appellant may have suffered a substantial miscarriage of justice. It follows that the appellant has not made out a case for leave to appeal to be granted. Orders 1. For the reasons indicated above, we make the following orders: 1. leave to appeal is refused; 2. 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. 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