Supreme Court New South Wales Medium Neutral Citation: Zioukin v Lang [2022] NSWSC 823 Hearing dates: 21 June 2022 Date of orders: 21 June 2022 Decision date: 21 June 2022 Jurisdiction: Common Law Before: Basten AJ Decision: (1) Dismiss the plaintiff's informal application for vacation of the hearing date. (2) Dismiss the amended summons seeking leave to appeal from the decision of the Appeal Panel of NCAT delivered on 10 January 2022. (3) Order that the plaintiff pay the defendant's costs in this Court. Catchwords: APPEALS – leave to appeal – appeal from Appeal Panel of NCAT – appeal on question of law – grounds – ground to be more than merely arguable – whether reasons adequate – whether plaintiff denied procedural fairness CIVIL PROCEDURE – application by plaintiff to vacate hearing – late medical certificate – chronic illness – pro forma certificate – nature and history of proceedings – cost and inconvenience to respondent - whether proceedings futile LEASES AND TENANCIES – residential tenancy agreement – holding over period – notice of termination without reasons – whether retaliatory notice – tenant evicted whether relief available in NCAT Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 83 Residential Tenancies Act 2010 (NSW), ss 85, 115 Category: Principal judgment Parties: Andre Zioukin (Plaintiff) Sue Lang (Defendant) Representation: Counsel: Mr T Cleary (Defendant) Solicitors: JHK Legal (Defendant) File Number(s): 2022/00037122 Decision under appeal Court or tribunal: NSW Civil & Administrative Tribunal Jurisdiction: Appeal Panel Date of Decision: 10 January 2022 Before: Principal Member Suthers Senior Member Ransome File Number(s): 2021/00318963 Judgment 1. BASTEN AJ: This judgment deals first with a late and informal application by the plaintiff to vacate the hearing of this application for leave to appeal. The plaintiff did not attend remotely or in person. The defendant did attend and is represented by a solicitor and counsel. I will address this application in due course, however, I propose to reject the application and, having heard counsel for the defendant, I propose to dismiss the amended summons seeking leave to appeal. The circumstances are as follows. 2. The plaintiff, Andre Zioukin, has appealed to this Court from a decision of the Appeal Panel of the Civil and Administrative Tribunal (NCAT) delivered on 10 January 2022. 3. The proceedings in NCAT related to a 12-month residential tenancy agreement, originally for a period of 12 months, entered into between the plaintiff and the defendant, Sue Lang, in 2015. On 31 August 2020, the defendant served a termination notice on the plaintiff, under s 85 of the Residential Tenancies Act 2010 (NSW), in order to obtain possession of the residential premises rented by him. The notice required vacation of the premises by 30 November 2020. The plaintiff did not vacate. The defendant then filed an application under s 85 of the Residential Tenancies Act seeking an order for possession. After an ex parte determination of that application and an appeal to the Appeal Panel, on 2 June 2021 the matter was remitted to the Tribunal in its Consumer and Commercial Division for redetermination of the defendant's application. It is not necessary to set out in full the history of the matter in NCAT. Relevantly, an order terminating the tenancy agreement was made on 25 October 2021, granting an order for possession which was suspended until 22 November 2021. 4. The plaintiff appealed to the Appeal Panel on 22 grounds. These were described by the Appeal Panel as "discursive" and were summarised in 11 paragraphs of its decision. Each paragraph was addressed by the Appeal Panel. 5. The first ground alleged procedural unfairness on the part of the Tribunal. The Appeal Panel found no clear basis for such a broad allegation, which appears to have been founded on the failure of the landlord to comply with certain directions. There was no transcript of the proceedings before the Tribunal in evidence before the Appeal Panel, with the result that the Appeal Panel could not be satisfied that the hearing was procedurally unfair. 6. Ground 2 appears to have addressed the primary substantive challenge to the issues raised in the Tribunal. The plaintiff's case was that the giving of the termination notice was "retaliatory", within the terms of s 115(2) of the Residential Tenancies Act. Thus, the Tribunal was empowered to refuse to make a termination order if satisfied that, in giving the notice, the landlord was "wholly or partly motivated" by one of three matters, namely, "(a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant." 7. The plaintiff's case was that his landlord wanted to sell the property and had sought access for herself or her agent to show prospective purchasers the property, without proper notice. The plaintiff's refusal to provide access was said to be the motivation for the service of the termination order. In refusing access, the plaintiff's case was that he was relying upon a right under the residential tenancy agreement. His conduct therefore fell within the terms of s 115(2)(b); the defendant's response was a "retaliatory notice". 8. The Tribunal member had accepted the defendant's evidence that her motivation was a change in circumstances, resulting from the death of her husband and that she needed to sell the premises. 9. Ground 2 of the appeal to the Appeal Panel asserted that, in rejecting the plaintiff's case, the Tribunal had failed to give adequate reasons. The Appeal Panel agreed that the reasons provided were "terse" but, as they depended upon an assessment of credit, that was not necessarily a demonstration of inadequate reasons. The Appeal Panel did not have the oral evidence or the cross-examination of the landlord. It rejected ground 2. 10. Ground 3 relied upon the contention that the Tribunal should have been satisfied that the notice was retaliatory, as an objective matter identifiable from the landlord's action. The plaintiff submitted that the Tribunal had failed to consider that issue because it had limited its consideration to the period in and around late August 2020 when there had been unsuccessful attempts to inspect the premises. The Appeal Panel was not satisfied that the Tribunal did otherwise than focus on the real issues in the proceedings. 11. The Appeal Panel dealt briefly with the grounds it had identified as 4-11. None was made out and the Appeal Panel refused leave to appeal and dismissed the appeal. It set aside a stay which had been granted on the order for possession. 12. The initial summons in this Court was filed on 8 February 2022. An amended summons was filed on 23 March 2022. As with the grounds identified in the appeal to the Appeal Panel, the grounds in this Court were discursive, covering some 12 pages. 13. On 1 March 2022, the plaintiff obtained a stay of execution of the writ of possession, which stay was due to expire in April. The stay was not extended and, on 22 April 2022, NCAT authorised the issue of a warrant, which was executed on 10 May 2022 and the plaintiff was removed from the premises. 14. The plaintiff was directed to file written submissions by 3 May 2022. He did not comply with the direction. At a directions hearing on 7 June 2022, the Court ordered that, if he wished to rely upon a transcript or recording of the hearing before the Appeal Panel in support of an allegation of procedural unfairness before that body, that should be filed by Friday, 17 June 2022. No such material was filed. 15. The plaintiff was also directed to file written submissions by Friday, 17 June 2022. That direction was not complied with. The plaintiff was also given leave on 7 June 2022 to file a proposed notice of motion and supporting affidavit seeking to set aside the warrant for possession and to vacate the hearing date of this matter, such material to be filed by 10 June 2022. No such material was filed. 16. The hearing of this matter had been fixed on 1 March 2022. 17. The proposed appeal to this Court is brought pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW). It is limited to a question of law and requires leave of this Court. 18. At about 10.30pm on the night before the matter was listed for hearing in this Court, the plaintiff sent an email to my associate (copied to the respondent) stating that he was not sufficiently well to appear the following morning. He annexed a medical certificate which stated that he was suffering from "an exacerbation of chronic spinal pain" and would be unable to represent himself in Court on Monday 20 June and Tuesday 21 June 2022. The certificate was said to have been completed on 20 June 2022. It was provided by a general practitioner. 19. The series of emails to my associate which has occurred on the eve of each hearing in June contained statements about the conduct of the defendant and her agents which were gratuitous and inappropriate. The Court will not respond to them, nor allow the plaintiff to rely on such material. Copies will, however, be placed on the court file. The documents which were provided last night are exhibit 2 on this hearing. 20. The medical certificate, which is formulaic, was, the Court infers, not the result of the plaintiff attending at the medical practice at 301 George Street, Sydney, at which the medical practitioner had rooms - apparently the plaintiff now lives in Caringbah - but must have been the result of a tele-health consultation. The opinion of the doctor, therefore, depended entirely on the plaintiff's self-reporting of symptoms. Similar material was provided in the emails last night annexed to an affidavit filed by the plaintiff in unrelated District Court proceedings in May 2022. The same medical practitioner gave a similar medical certificate at that time. 21. I place little weight on the certificate. When the matter was heard on 7 June before this Court, the plaintiff appeared by audio-visual link and conducted the proceedings with focus, clarity and without apparent health problems, despite having said the night before that he would be unable to attend. I note that a similar application was made to vacate the directions hearing in this Court on 7 June and a similar application had been made in relation to hearings in the District Court in May 2022. 22. The consistent seeking of adjournment of proceedings for health problems imposes a significant burden on the individual respondent, who has been a party to these proceedings involving her former tenant, in NCAT, and in this Court. If the plaintiff is in fact unable to represent himself from time to time as required by the ordinary conduct of the court process, he may require the appointment of a tutor. In the meantime, it is necessary to consider whether the hearing of this matter should be vacated. 23. As already noted, the grounds of appeal were discursive and constituted, in effect, a set of submissions in support of the application for leave to appeal. They have been addressed in written submissions provided by the defendant on 17 June 2022. 24. I have considered those submissions, the amended summons and the decision of the Appeal Panel sought to be reviewed. I cannot identify a reasonably arguable case in any of the proposed grounds. It is necessary, as counsel for the defendant submitted, that where there is no issue of principle, no obvious matter of public importance, that there must be an apparent miscarriage going beyond the merely arguable. The principles which would warrant a grant of leave to this Court are, therefore, not satisfied in the absence of at least one ground with real prospects of success rather than being merely arguable. 25. The grounds proposed to be relied upon by the plaintiff may be briefly considered. Ground 1 related to personal circumstances said to have disrupted the plaintiff's preparation for the hearing before the Appeal Panel, as a result of an interlocutory order of NCAT permitting access to the premises by the landlord's agent. That order was made on 17 November 2021. It could only support a claim of procedural unfairness if there were some evidence of disruption. It would only form a ground of appeal to this Court if the matter had been raised in those terms before the Appeal Panel. There is no evidence that that was the case. There is no evidence before this Court that there was any affidavit or supporting material alleging, let alone establishing, disruption. 26. Grounds 2, 3, 10 and 11 asserted that the procedural unfairness of the Appeal Panel was in not providing sufficient time for the plaintiff to make submissions to it. However, it appears that he had an adequate time to produce written submissions and was granted an oral hearing. The evidence does not demonstrate that he was cut short in the course of the hearing or that he did not have a reasonable opportunity to present his case. The evidence therefore does not support any of these four proposed grounds. 27. Ground 4 alleged fraud on the part of the landlord in relation to the year in which she said her husband had died. The ground lacks any evidential support. It is related to a peripheral, if not an irrelevant, fact and could not be relied upon on an appeal. The fact itself was the statement that her husband had "recently passed away" which was said not to encompass his death some two years earlier in 2018. The issue before the Tribunal, however, was a change in circumstances leading to a decision to sell the premises. The fact that there was such a change in circumstances was not in dispute, nor was the decision to sell the premises. There was no evidence that NCAT placed any weight upon the differential between the two expressions of fact, nor as to the timing of the defendant's husband's death. There is no substance in the ground. The allegation of fraud should not have been made. There was no evidence to support it, and a litigant in person should not make such allegations without advice and without disclosing a basis on which they are to be supported. 28. Ground 5 complained of the Appeal Panel's failure to find that the member of NCAT denied the plaintiff procedural fairness with respect to the cross-examination of the defendant. It appears that the basis for such a complaint was a misunderstanding on the part of the plaintiff as to his opportunity to cross-examine the defendant. The Tribunal was dealing with two litigants in person. In those circumstances the Tribunal member must have broad discretionary power to control the Tribunal's practice. No transcript was supplied to the Appeal Panel as to what had happened at the Tribunal hearing, nor has any transcript been provided to this Court. There can be no substance in the complaint that the Appeal Panel, as a matter of law, failed to find that the member of the Tribunal denied procedural fairness. 29. Ground 6 complained of the Appeal Panel's failure to find that the member's reasons for decision were inadequate. The reasons were dealt with in ground 3 of the matters before the Appeal Panel and were addressed in significant detail. The Appeal Panel accepted, as I have noted, that the reasons given were terse. The critical reasons concerned the credibility of the defendant. That is not a matter about which significant detail can usually be given in reasons. No legal error is apparent in the manner in which the Appeal Panel dealt with the question of reasons. If there were any such basis for challenge, it is no more than barely arguable. 30. Grounds 7 and 8 alleged error on the part of the Appeal Panel in dealing with an entirely factual question as to the relevance of the period of time within which the landlord's conduct was to be considered in determining whether or not the notice had been retaliatory within the meaning of s 115(2) of the Residential Tenancies Act. The Appeal Panel noted that the Tribunal member had focussed on the issues before the Tribunal. There was no apparent legal error in taking that view. The two grounds in relation to the factual finding lack merit. 31. Ground 9 asserted that NCAT had acted without evidence and that the Appeal Panel failed to identify this error. The critical issue in the Tribunal turned on the plaintiff's allegation of retaliatory conduct, a matter on which he needed evidence. There can be no error of law in relying on an absence of evidence in a matter with respect to which the tenant bears the onus of proof. Ground 9 is not reasonably arguable. 32. Ground 12 asserted that an error as to a date which was given in the Appeal Panel decision constituted a jurisdictional error. The claim was patently misconceived. The misstated date appeared in the summary of the grounds of the appeal before it given by the Appeal Panel. The Appeal Panel dismissed the relevant ground as raising a factual error. Because it raised merely a factual question there can be no relevance to the fact that there was an error (which, on its face, is likely to be a typographical error in any event) in the statement of the date relevant to the period during which the retaliatory conduct was said to have occurred. 33. The proposed grounds of appeal do not warrant a grant of leave to appeal. 34. As noted above, the stay on the execution of the writ of possession not having been extended, the plaintiff was evicted from the premises on 10 May 2022. The plaintiff has not, in any document or oral submission, explained what relief he would now be able to obtain if the matter were to be returned to the Appeal Panel of NCAT. In those circumstances, the importance to the respondent of not being subjected to the continuation of litigation in this Court, with no apparent value to the plaintiff, militates against the vacation of the hearing. 35. Although the plaintiff attended the hearing by audio visual link on a previous occasion and the issue as to whether there was any merit in the continuation of the present proceedings was raised, no merit has been identified. For this reason, as well as the lack of any substantial ground, in my view, the continuation of the proceedings would be vexatious and an abuse of process. 36. Accordingly, I make the following orders: 1. Dismiss the plaintiff's informal application for vacation of the hearing date. 2. Dismiss the amended summons seeking leave to appeal from the decision of the Appeal Panel of NCAT delivered on 10 January 2022. 3. Order that the plaintiff pay the defendant's costs in this Court. ********** 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