Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Link Wentworth Housing Ltd v Little [2022] NSWCATAP 261 Hearing dates: 2 August 2022 Date of orders: 8 August 2022 Decision date: 08 August 2022 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member P H Molony, Senior Member Decision: 1. The request for an extension of time is refused. 2. Otherwise, the appeal is dismissed. Catchwords: APPEAL – Notice of Appeal lodged out of time – no error of law – no basis for grant of leave to appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: Link Wentworth Housing Ltd (Appellant) Tessa Little (Respondent) Representation: Mr S Maxwell (Appellant) Respondent (No appearance) File Number(s): 2022/00176529 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2022] NSWCATCD Date of Decision: 29 April 2022 Before: D Moujali, Senior Member File Number(s): SH 22/09162 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 29 April 2022. 2. The application to the Tribunal was brought by the appellant, against the respondent. Simply stated, the appellant seeks a finding that the Tribunal erred in the manner it calculated the respondent's rent and rent arrears. 3. The issues in the appeal are (1) whether to grant an extension of time for the lodgement of the Notice of Appeal, (2) whether there was an error of law, (3) whether the decision was not fair and equitable, (4) whether the decision was against the weight of the evidence, (5) whether there was significant new evidence now available that was not reasonably available at the time of the hearing, and (6) if any of issues (3), (4) or (5) are determined in favour of the appellant, should leave to appeal be granted. 4. For the reasons set out below, we have decided to refuse the request for an extension of time and, otherwise, to dismiss the appeal. Background 1. The appellant is a social housing provider and the respondent is a tenant, living in an apartment in Penrith. In the application that was considered at first instance, the appellant sought (1) an order for the payment of rent arrears of $4,168.48, (2) an order for the termination of the residential tenancy agreement between the appellant and the respondent, and (3) an order for the payment of $1,447.04 for the repair of damage resulting from a flooding incident. 2. The application to the Tribunal was lodged on 2 March 2022. The matter was listed for final hearing on 22 April 2022 and the Tribunal's reasons for decision were published on 29 April 2022. The Tribunal relevantly found that the respondent should pay $1,123.76 to the appellant for arrears of rent for the period 7 June 2021 to 22 April 2022. The other two claims were dismissed. 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), 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 establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. 2. In Collins at [84], the Appeal Panel stated 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 the NCAT Act, s 41 provides that the Tribunal may grant an extension of time. The relevant considerations as to the exercise of the discretion were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] and they are as follows: 2. (1) Is there proof that strict compliance with the rules will work an injustice on the applicant? 3. (2) In the context of a pending appeal, the expiration of the period for appeal gives a vested right to retain the decision in question with the consequences that the time for appealing should not be extended unless the proposed appeal has prospects of success. 4. (3) It will usually be necessary to consider: 5. (a) the length of the delay, 6. (b) the reason(s) for the delay, 7. (c) the applicant's prospects of success, ie whether there is a fairly arguable case, 8. (d) the extent of any prejudice suffered by the opponent(s). 9. (4) If the explanation for the delay is less than satisfactory and/or if the opponent as a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable. 10. Submissions and evidence 11. In deciding the appeal, we have had regard to the following: * the Notice of Appeal dated 6 June 2022, * the documents received from the appellant on 19 July 2022, * the Reply to Appeal dated 27 June 2022, received 26 July 2022, and * the documents which accompanied that Reply to Appeal. 1. Notice of Appeal 2. The Notice of Appeal was lodged on 6 June 2022, which is outside of the 14-day period specified in cl 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules): since it was on 29 April 2022 that the first instance orders were made and reasons published, any appeal should have been lodged by 13 May 2022. As a result, the Notice of Appeal was lodged more than three weeks late. Grounds of Appeal 1. In the Notice of Appeal, the grounds were expressed as follows: 2. The decision does not fall in line with the current NSW Community Housing Rent Policy or take into account the Wentworth Housing Fraud Policy given the tenant failed to provide evidence of the birth of her child and the change if income until her child was 13 months old. Matters requiring leave 1. The decision was said to be not fair and equitable because it did not meet the NSW Community Housing Rent Policy. It was also said to be against the weight of the evidence in that more weight should have been given to the "Rent Calculator". Thirdly, the appellant sought to rely on four documents not produced to the Tribunal and, as to why that evidence was not available at the hearing, it was said that the "Tenancy Manager did not realise that this in depth detail was required into how community rent was calculated for the member. A rent calculation was provided by our rent review team however this was disregarded as having any authenticity." 2. In relation to why an extension of time should granted, it was said that the: "Tenancy manager needed to seek further policy clarification from our specialized Rent Review team, this is an in depth matter that could alter how we move forward in working with this [specific] tenant and setting their weekly rent, creating confusion." 3. Oral submissions for the appellant 4. Mr Maxwell began by referring to the date of 9 November 2021 appearing in the Tribunal member's reasons, at [60], which date he suggested should have read 9 November 2020. It is convenient to here note there are two reasons why that aspect does not affect the outcome of this appeal. First, since it appears to be a typographical error because the following paragraph, ie [61], refers to "11 November 2020". Secondly, even if there was an error in the reasons, at [60], it would be procedurally unfair to allow that matter to influence the outcome of this appeal since it was not raised prior to the hearing of the appeal, notably in the Notice of Appeal or in any supporting written submissions. 5. The position explained by Mr Maxwell, by reference to the first sentence in Appendix 3 of the NSW Community Housing Rent Policy, was that: "Each tenant is responsible for collecting the income details of household members and providing these details to the housing provider so that their rent can be assessed." He said that, when that is done, the housing provider can then determine the rent that is payable which then has a flow on affect as it impacts on the amount of rent assistance provided to a tenant by Centrelink. 6. Mr Maxwell also provided an explanation in relation to the Rent Calculator and indicated that the appellant had decided to write off $3,873.07, said to be in respect of the period before 21 January 2022. He sought to have the Tribunal confirm that the rent payable by the respondent to the appellant was $216.71 from 21 Jan 22, as per the Rent Calculator. 7. Oral submissions for the respondent 8. There was no attendance by or for the respondent at the hearing of the appeal. 9. Consideration 10. As to the ground of appeal, any failure to take into account either the NSW Community Housing Rent Policy or the Wentworth Housing Fraud Policy was clearly because those documents did not form part of the evidence that was before the Tribunal. A consideration of the reasons provided reveals an orthodox approach with a consideration of the available evidence and the relevant law. No error of law has been shown. 11. Likewise, it cannot be said that the decision was not fair and equitable because it did not meet the NSW Community Housing Rent Policy when that policy was not part of the evidence. There is nothing to suggest that the attention of the member hearing the application was drawn to that policy. 12. The "Rent Calculator" was at page 10 of the documents tendered by the appellant at the hearing. It set out the calculation for which the appellant contended but there was no explanation of the basis of that calculation. It is clear the member considered the communications exchanged between the parties when reaching a decision. Reliance on contemporaneous documents is a reasonable approach to decision-making by a court or tribunal and we do not accept that the "Rent Calculator", without further evidence, should be given greater weight than contemporaneous documents exchanged between the parties. 13. The Notice of Appeal referred to four documents not produced to the Tribunal at first instance, namely (1) Policy 3.6 – Rent Income & Reviews, (2) Policy 3.7 – Responding to Rental Fraud, (3) NSW Community Housing Rent Policy, and (4) "Services Australia – How much you can get (CRA)". Copies of the first three of those documents were included in the documents lodged in support of this appeal. However, those documents were clearly available at the time of the first instance hearing. Their absence was not because they are new evidence in that they did not exist at the time of the hearing. It cannot be said that they were not reasonably available at the time of the hearing: the absence of those documents was because the appellant's representative did not realise those documents were required. 14. As none of the three matters for which leave to appeal is required have been established, it is not necessary to consider whether leave to appeal should be granted. 15. In accordance with what was said in Jackson, as the appeal does not have prospects of success, there is no utility in granting an extension of time. 16. There are two remaining matters which warrant attention. First, the position in relation to the documents provided on appeal but not at first instance and the Rent Calculator. While it would be unwieldy for a copy of each relevant policy document to be provided in every application by a social housing provider for arrears of rent, there does appear to be a need for a brief explanatory document, in the form of a witness statement or statutory declaration, which indicates, and ideally quotes, the relevant portion of any applicable policy document and indicates that the original document can be provided, if required. 17. Such a witness statement or statutory declaration should also explain the provenance of the Rent Calculator and how the amounts it contains are obtained and calculated. The fact that Mr Maxwell was able concisely summarises those matters during the hearing of the appeal suggests that such a witness statement or statutory declaration is feasible and would serve to clarify the basis for claims of arrears of rent not only for Tribunal members but also for tenants. 18. Secondly, it was said that the appellant sought an order that the rent payable by the respondent to the appellant, from 21 January 22, was $216.71, as shown in the Rent Calculator. In the framework of this appeal, we can do no more than make the observation, with the benefit of the additional documents submitted by the appellant and the oral submissions made during the hearing of the appeal, that the amount shown in the Rent Calculator does appear to be correct. However, we are unable to make an order to that affect. Further, it must be noted that there is a finding, which binds both parties, that the arrears of rent, as at 22 April 2022, were $1,123.76. It would therefore seem that the appellant can now only claim $1,123.76 plus any arrears of rent at the rate of $216.71 from 23 April 2022. 19. Conclusion 20. For the reasons set out above, the orders that will be made are as follows: 21. (1) The request for an extension of time is refused. 22. (2) Otherwise, 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: 08 August 2022