Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Almedyab v Gregory [2022] NSWCATAP 205 Hearing dates: 7 June 2022 Date of orders: 22 June 2022 Decision date: 22 June 2022 Jurisdiction: Appeal Panel Before: D Robertson, Senior Member P Durack SC, Senior Member Decision: 1. The appellants application for an extension of time in which to lodge his appeal is refused. 2. The appeal is dismissed. Catchwords: LEASES AND TENANCIES – Residential tenancies – arrears of rent – alleged offsetting claim APPEALS – alleged procedural unfairness in failing to hear an alleged offsetting claim – subsequent dismissal of offsetting claim in separate proceedings – no utility in appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Rules 2014 (NSW) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: Khaled Almedyab (First Appellant) Shireen Al Kwaider (Second Appellant) Manuyel Gregory (Respondent) Representation: Appellants (self-represented) M Bakkr (Agent)(Respondent) File Number(s): AP 2022/00095793 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: 10 March 2022 Before: S Bliim, General Member File Number(s): RT 22/06369 REASONS FOR DECISION 1. This is an appeal by the two former tenants (husband and wife) of residential premises in Sydney from one of eight orders made by the Tribunal in proceedings RT 22/06369 on 10 March 2022. 2. The order appealed from was an order that: 8. The tenant, SHEREEN AL KWAIDER and KHALED ALMEDYAB, [address given], is to pay the landlord MANUYEL GREGORY, [address given] the sum of $7,811.43 immediately. 1. The short reasons given by the Tribunal in respect of this order made it clear that this order was for the payment of arrears of rent covering the period from 23 November 2021 to 10 March 2022. 2. Other orders made at the same time were that the residential tenancy agreement between the parties was terminated immediately and possession of the premises was to be given to the landlord on the date of termination, with the order for possession being suspended until 17 March 2022. It was uncontroversial that the tenants had delivered the keys to the premises to the landlord's agent on 14 March 2022 and that they were no longer in possession of the premises. 3. On the appeal, as stated in their Notice of Appeal, the appellants sought an order setting aside the above order, and an order that the landlord pay damages to the appellant in excess of $10,000.00 or in a sum to be assessed at a later date. 4. The proceedings in which these orders were made were commenced by the landlord on 14 February 2022. In the application it was said that the tenants last paid rent on 14 December 2021 and that rent was paid to 22 November 2021. It was said that a notice of termination for non-payment of rent had been issued with a termination date of 11 February 2022. Extension of time required for commencing the appeal 1. The appellants need an extension of time in order to pursue this appeal. 2. Under r 25 (4) (b) of the Civil and Administrative Rules 2014 (NSW) (the NCAT Rules) the time period to file an internal appeal in residential proceedings, as these are, is 14 days from the date the appellant was notified of the decision or given reasons for the decision (whichever is the later). 3. The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. There it was said that the discretion to grant an extension could only be exercised in favour of an applicant upon proof that strict compliance with the rules would work an injustice upon the appellant. The merits of an appeal, including whether the applicant has a fairly arguable case, is a relevant factor. 4. The Notice of Appeal stated that notice of the decision was received on 10 March 2022 (there is no suggestion that the reasons for decision were received at a later time). 5. However, the Notice of Appeal was lodged on 5 April 2022, which was beyond the 14 day requirement referred to above. 6. Although this was not a long delay in commencing the appeal, for the reasons set out below, we have decided that an extension should not be granted because strict compliance with the time limit will not work an injustice to the appellants. In any event, for these same reasons, had we been prepared to grant an extension of time, we would have dismissed the appeal. Grounds of appeal-consideration 1. Under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act. 2. From our examination of the matters referred to by the appellants in their Notice of Appeal and subsequent written submission, it seems to us that the appellants, in substance, raise one ground of appeal, namely that they were denied procedural fairness by the alleged failure by the Tribunal to hear and consider their contention that they had an "offsetting claim" against the landlord. 3. This ground raises a question of law for which no leave to appeal is required. 4. However, as only emerged at the hearing of the appeal from questioning by the Appeal Panel, there is no utility in the appeal because the "offsetting claim", which we came to learn was the subject of separate proceedings in the Tribunal, was heard and dismissed on the merits on 2 May 2022. 5. At the hearing of the appeal the parties were unable to give the Appeal Panel specific details of these separate proceedings, although the appellant confirmed that these proceedings dealt with, or gave them the opportunity to present, the "offsetting claim". 6. As we indicated at the hearing we would do, we have checked the records of the Tribunal. These disclose that in proceedings RT 22/08075 the Tribunal (constituted by different Member than the decision-maker on 10 March 2022), on 2 May 2022, ordered that the male appellant's application be dismissed on the basis that on the material placed before the Tribunal it was not satisfied that the grounds required to make the orders sought had been established. Clearly, the female appellant was a privy to those proceedings. 7. The reasons for decision given that day reveal that the male appellant stated he sought compensation in an amount of $21,000. These other proceedings were first commenced by the male appellant on 3 August 2021. They had a somewhat chequered history, including dismissals on 14 October 2021 and 9 November 2021 under s 55 (1) (d) of the NCAT Act, each made without prejudice to the male appellant bringing a fresh application. The male appellant lodged a fresh application in the same form following each of those dismissals, the second of which was file RT 21/45955. Subsequently, an ex parte decision was made in those proceedings in favour of the male appellant, in the absence of the respondent, on 10 January 2022. That decision was set aside, on the application of the respondent, on 23 February 2022, following which the application was listed for a contested hearing on 2 May 2022 and dismissed. The claim by the male appellant did not include any claim for a rent reduction or refund of rent. 8. There was another fundamental problem for the appellants on the appeal. There was no common ground between the parties as to what transpired, if anything, at the hearing at first instance in this matter, in relation to the appellants' "offsetting claim" and there is nothing in the short reasons for decision about this. 9. At a call over in the appeal on 22 April 2022, directions were made for the conduct of the appeal. These included that the parties were to lodge and serve the sound recording of the hearing at first instance, and a typed copy of the relevant parts. The appellants did not comply with this direction. 10. In these circumstances, in the absence of the sound recording of the hearing and a typed copy of the relevant parts, it is impossible for us to accept the appellants' contention of procedural unfairness at the hearing itself. Specifically, what was said by the appellants to the Tribunal about this subject, if anything, and any exchange between the appellants and the Tribunal (as well as the respondent) is critical to a proper assessment of the appellants' ground of appeal. 11. For the above reasons, the appellants' application for an extension of time in which to lodge the appeal is refused and the appeal is dismissed. Orders 1. The appellants application for an extension of time in which to lodge his 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. 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: 22 June 2022