Civil and Administrative Tribunal New South Wales Medium Neutral Citation: M&R Etri and Amani Farming Pty Ltd v M&R Desai [2022] NSWCATAP 211 Hearing dates: 21 June 2022 Date of orders: 29 June 2022 Decision date: 29 June 2022 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President C Fougere, Principal Member Decision: (1) The time for lodgement of the appeal is extended. (2) The Appeal is dismissed. (3) The Respondents application for an order for costs of the appeal is dismissed. Catchwords: APPEAL – extending time for lodgement – agreement made between the parties subsequent to the orders at first instance having the effect of setting aside the orders at first instance- appeal moot. Legislation Cited: Agricultural Tenancies Act 1990 (NSW) Civil & Administrative Tribunal Act 2013 (NSW) Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Mohammed Etri (First Appellant) Rajaa Etri (Second Appellant) Amani Farming Pty Ltd (Third Appellant) Minonkumar Anilkumar Desai (First Respondent) Reshmaben Desair (Second Respondent) Representation: Counsel: M McGirr (Respondents) Solicitors: Appellants (self-represented) R Legal (Respondents) File Number(s): 2022/00115336 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: Not applicable Date of Decision: 23 March 2022 Before: P Zammit (General Member) File Number(s): COM 22/07237 REASONS FOR DECISION Introduction 1. The Appellants are tenants under an agreement regulated by the Agricultural Tenancies Act 1990 (NSW) (the AT Act) and the Respondents are the landlords under that agreement. The application before the Tribunal (which had been brought by the Respondents) sought to invoke the Tribunal's jurisdiction under the AT Act. 2. On 23 March 2022 the Tribunal made orders to the following effect: 1. Order 1: the tenancy terminated on 17 January 2022 and the tenants (i.e. the Appellants) are to provide possession of the property by 30 March 2022. 2. Order 2: the Appellants are to pay the Respondents the sum of $17,933.25 for outstanding rent arrears and possession charges. 3. Order 3: if either party seeks to make an application for costs, they are to provide to the Tribunal and the other party submissions and documents in relation to costs by 30 March. 1. On 21 April 2022, the Appellants lodged a Notice of Appeal. 2. We will refer to the decision under appeal as the Decision. Summary of the Decision 1. The following summarises the essential findings made by the Tribunal at first instance: 1. The parties had entered into a fixed term tenancy lease, dated 21 December 2018 for a period of three years ending on 21 December 2021 [17]. 2. The Appellants relied upon evidence of a second lease entered into at the same time as the first lease for a further term of two years from the expiration of the first lease [11]. Due to the "absence of signatures on the document" the Tribunal was not satisfied that the second lease was a written agreement entered into between the parties [15]. 3. The Tribunal stated that it was satisfied that the Respondents (as Applicants at first instance) had provided the Appellants with one month written notice of the termination of the lease agreement [19] and that the tenancy terminated on 17 January 2022 [20]. 4. At [25] the Tribunal found that the Respondents were entitled to rent arrears of $6,587.83. 5. The Tribunal considered submissions concerning the appropriate date for possession and having regard to the evidence which is summarised in the Decision made an order for possession to be given on or before 30 March 2022. 6. At [31] the Tribunal noted that the Respondents foreshadowed making an application for costs. Notice of Appeal 1. In the Notice of Appeal, the Appellants submit that after the Decision was published they reached an agreement with the Respondents by which rental arrears were paid, further rent was paid for the period to 30 June 2022 and a sum of money was paid for the Respondents' legal costs. In return the Respondents agreed that the Appellants could remain in possession until 30 June 2022. After that agreement was reached between the parties the Tribunal published its decision on costs. The Tribunal dismissed the Respondents' application for an order for costs. The Appellants submit that, in the circumstances, the agreement they entered into was unfair. 2. The second contention, put forward by the Appellants in support of the appeal, is to the effect that the Tribunal's decision that there was no second lease for a further term of two years was made in error. The Appellants submit that the Respondents have a copy of a lease that contained the signatures of all the parties. 3. The Respondents have filed a Reply to Appeal, in which they acknowledge that the parties entered into an agreement after the Decision was published on 23 March 2022 and that, as a consequence of that agreement, the Respondents have taken no steps to enforce the order for possession as recorded in the Decision. The Reply disputes the assertion that there was a second lease and states that there is no evidence in support of that contention other than the document which the Decision referred to. The Reply contends that the appeal was lodged out of time. The Appeal Hearing 1. The First Appellant represented himself at the hearing of the appeal and stated that he had authority to speak for the other two Appellants. He was assisted during the hearing by the presence of an Arabic interpreter. The Notice of Appeal included statements concerning the agreement between the parties entered into after the publication of the Decision. There was no objection to that evidence. The Respondents sought to rely upon an affidavit of Ricky Raad, solicitor, dated 27 April 2022, concerning the background and the terms of the alleged agreement. 2. Both the Appellants' evidence and Mr Raad's evidence constitute new evidence that was not reasonably available at the first instance hearing. Generally new evidence is not allowed in an appeal and the parties are restricted to the evidence considered in the proceedings under appeal. Because that new evidence concerns events that occurred subsequent to the publication of the Decision and because neither side objected to the evidence of the other we allowed such evidence to be considered as it appears to us to be relevant in resolving the appeal. 3. The essence of Mr Raad's affidavit was to the effect that the Appellants were represented until 20 April 2022 by a firm of solicitors and that that firm and Mr Raad were in communication after the publication of the Decision. Mr Raad's affidavit provides evidence to the effect that the parties reached an agreement by which arrears of rent were to be paid, rent to 30 June was also to be paid and a contribution of $15,000 was to be paid for the Respondents' legal costs. All of these amounts were paid between 7 and 12 April 2022. 4. On 14 April 2022, the Tribunal published its decision on the Respondents' application for costs at first instance. The Tribunal dismissed the Respondents' application and provided detailed reasons. Consideration 1. We are of the opinion that the appeal must be dismissed. Our reasons are set out in the following paragraphs. 2. The Respondents submitted that the appeal was lodged two days out of time and that leave to extend time should be refused. In our view, time should be extended. The reason is that the delay was very short and there is no evidence of any prejudice having been suffered by the Respondents by the delay. Although the Appellants do not explicitly say so, we think it reasonable to infer that some delay may have been caused by the arrangements with the Appellants' solicitors coming to an end. 3. As the Respondents' submissions point out, an appeal is available as of right on a question of law and with leave on other grounds. We agree with the Respondents' submissions that no question of law has been raised. Therefore, the question arises whether we should give leave (ie. permission) for the appeal to proceed on the basis of the points raised by the Appellants in the Notice of Appeal. 4. As the Respondents' submissions record, the Appellants submit that the Tribunal was in error in finding that there was no second lease and also in error in determining the amount of rent that was to be paid between 23 March and 30 June 2022. 5. In our view, there is no basis for the Appellants' submission that there was other evidence that may have supported the existence of a second lease. Similarly, we were not provided with any evidence which would suggest that the calculation of rent to 30 June was in error to the detriment of the Appellants. Indeed at the hearing the Respondents submitted that they had made an error and had undercharged the Appellants by approximately $300. 6. Our interpretation of the Notice of Appeal and the Appellants' oral submissions is that the Appellants think it unfair that they reached an agreement to stay in possession to 30 June on the basis that they paid money which included the Respondents' legal fees in circumstances where the Respondents' application for an order for legal fees was dismissed. At the time the Appellants reached the agreement with the Respondents the parties did not know the outcome of the costs application. They elected, with the assistance of their solicitors, to negotiate a further term in which the Appellant's would stay in possession and the Appellants agreed to pay rent and the Respondents' costs. In that agreement the Respondents provided benefits to the Appellants , namely they did not seek to enforce the possession order and specifically agreed to extend the date for possession to 30 June. There is no basis in law for setting aside that agreement simply because the Respondents were unsuccessful in their costs application. 7. As we indicated to the parties during the hearing of the appeal, we are of the opinion that the appeal is moot. That means it has no practical use. This is because the orders made by the Tribunal in the Decision were effectively set aside by the subsequent agreement to change the possession date in return for the payment of the monies negotiated between the parties. The possession order made in the Decision cannot be enforced because the parties subsequently agreed to a different possession date. The order for payment of money in the Decision is not disputed by the Appellants and indeed, has been paid. We acknowledge that the appeal is not moot in relation to the Appellants submission that there was evidence of a second lease. However that submission has been dealt with earlier in this decision and rejected because there is no evidence of a second lease other than the evidence that the tribunal considered and held was insufficient to prove the existence of a second lease. 8. For all the above reasons the appeal must be dismissed. Costs of the Appeal 1. The Respondents seek an order for costs of the appeal in their favour. They submit that special circumstances exist warranting an award for costs. Under s 60 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act), we may award costs if we are satisfied that there are special circumstances warranting an award for costs. In this case the Respondents submit that the appeal was "hopeless", meaning that it has no merit. They also submit that because the appeal lacked merit and was "entirely misconceived" they should have costs on the indemnity basis. This involves an order for compensation for costs at a more generous level than the level that is described as costs on the "ordinary basis". 2. We are of the opinion that there should be no order for costs of the appeal and that the Respondents' application for costs be dismissed. We acknowledge that the appeal lacks merit and may be fairly described as misconceived. However, the Appellants have represented themselves during the course of the appeal and some latitude ought reasonably to be given to self-represented parties who may bring proceedings without fully understanding the merits (or lack thereof) of their application. The general position in the Tribunal, as recorded in s 60, is that each party pay their own costs. Although s 60 provides a discretion for the Tribunal to make an award for costs where there are special circumstances, those circumstances must be such as to warrant an order for costs. Given the position of the Appellants (namely that they are self-represented and there is no evidence that they have had the benefit of legal advice with respect to the appeal) and secondly that the appeal has been conducted quickly and efficiently, we are of the opinion that the special circumstances which may exist are such as not to warrant an award for costs. Orders 1. For the above reasons, we make the following orders: 1. The time for lodgement of the appeal is extended. 2. The Appeal is dismissed. 3. The Respondents' application for an order for costs of 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: 29 June 2022