Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Katuruza v Sifri [2022] NSWCATAP 290 Hearing dates: 31 August 2022 Date of orders: 7 September 2022 Decision date: 07 September 2022 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member A Boxall, Senior Member Decision: (1) Extend the time within which to file the Notice of Appeal to 7 July 2022. (2) Appeal allowed. (3) Set aside the orders of the Tribunal on 2 June 2022 and 20 June 2022 in proceedings RT 22/11493. (4) Remit the whole of the proceedings RT 22/11493 back to the Tribunal for re-hearing and determination. Catchwords: APPEALS – RESIDENTIAL TENANCY – Orders made in the absence of the Appellant – whether denial of procedural fairness and the hearing rule Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 Residential Tenancies Regulation 2019 (NSW) Cases Cited: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy's Car Sales [2015] NSWCATAP 65 Prendergast v Westen Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: Precious Katuruza (Appellant) Rafie Sifri (Respondent) Representation: Appellant (Self Represented) Respondent (Self Represented) File Number(s): 2022/00198335 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 20 June 2022 Before: L Wilson, Principal Member File Number(s): RT 22/11493 reasons for decision Introduction 1. The Appellant (the tenant) has rented premises at 7 Tempe Street, Bardia NSW (7 Tempe Street) for almost seven years (the tenancy) from the Respondent (the landlord). 2. Following termination of the tenancy, the landlord applied for compensation in respect of alleged damage to the premises. On 2 June 2022, the Tribunal, in the absence of an appearance by the tenant, awarded the landlord $15,000 compensation. 3. The tenant says she never received notice of the hearing on 2 June 2022. The notice was sent to her old address at 7 Tempe Street, which is why she did not receive the notice. She claims to have an arguable and bone fide defence to each of the claims for compensation and that she has been denied procedural fairness. 4. For the reasons which follow, we have decided to allow the appeal, set aside the orders of the Tribunal and remit the matter for a fresh hearing. Background 1. We set out a brief chronology of the relevant events. A more detailed chronology is set out in our reasons below for upholding the appeal. 2. According to the landlord, the tenant moved into 7 Tempe Street on 11 July 2015. The property at that stage was brand new and freshly built. The landlord told us it was in a totally undamaged state as one would expect for a freshly built home. 3. According to the landlord, the tenant moved out of 7 Tempe Street on 10 February 2022. This was following a Notice of Termination issued at least 90 days beforehand. The premises and keys were handed back to the landlord by the tenant pursuant to such Notice of Termination. There was an outgoing inspection report at around the time of the termination of the tenancy. 4. On 16 March 2022, the landlord filed in the Tribunal in proceedings RT 22/11493 an application for compensation on the basis that the tenant had left the property damaged. 5. The matter came on for hearing on 2 June 2022. The tenant did not appear, including after attempts to contact her on her mobile phone. In the absence of any appearance by the tenant, the Tribunal ordered that the tenant pay the landlord $15,000 immediately and that the rental bond services be directed to pay the landlord the whole bond plus interest. 6. When the tenant found out about the orders and the hearing, she applied to have the orders of 2 June 2022 set aside. This was considered by the Tribunal on 20 June 2022. The Tribunal on 20 June 2022 decided to dismiss the application to set aside the orders of 2 June 2022. The reasons for dismissing the application for setting aside the orders of 2 June 2022 were as follows: The Notice of hearing was sent to Ms Katuruza at her Bardia address for the 6 April 2022 hearing and she appeared. The 14 April Notice of Hearing was sent to the same address. There is no explanation as to why she didn't receive the 14 April 2022 notice. Further, by Order 3 on 6 April she should have filed her evidence but she did not file any evidence. 1. The Notice of Appeal that is before us was filed on 7 July 2022, seeking to set aside previous orders of the Tribunal and seeking to have a hearing on the merits. Extension of time within which to appeal 1. Pursuant to regulation 39 of the Residential Tenancies Regulation 2019 (NSW) the period for filing a Notice of Appeal is 14 days after notice of the Decision. Assuming this was 20 June 2022, the Notice of Appeal is three days out of time. The tenant at all times has been unrepresented. 2. The landlord did not oppose an extension of time within which to file the Notice of Appeal being granted. 3. Given the short space of time, the absence of any evidence of specific prejudice and the view we have of the merits of the appeal, we have decided to extend the time for filing of the Notice of Appeal to 7 July 2022. Material lodged on appeal 1. Each of the parties lodged submissions and evidence with us. We have decided to receive all of this material in order to assess whether or not the tenant has been denied procedural fairness in respect of the hearing conducted in her absence. We will make reference to this evidence in our reasons below. The Notice of Appeal 1. Each of the parties appeared before us self-represented and without the assistance of lawyers. In essence, the tenant submits that she was denied procedural fairness in having the hearing conducted in her absence and that she has an arguable and bona fide defence to the claim by the landlord for compensation which should be dealt with at a hearing on the merits. 2. On questions of law, the tenant has a right of appeal without requiring our leave: see s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 3. An allegation of denial of procedural fairness raises a question of law: see Prendergast v Westen Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]. 4. We have received from the tenant her evidence as to the reasons she did not attend the Tribunal hearing on the 2 June 2022. The address given to the Tribunal for the tenant by the landlord was 7 Tempe Street. The tenant of course moved out on or about 10 February 2022, well before the date the landlord's application was filed with the Tribunal on 16 March 2022. The landlord was aware of this and would have known that the tenant was no longer at this address. In fact, the tenant had moved to 4 Tempe Street, Bardia. 5. Nevertheless, the tenant in her evidence said she used to regularly go and collect mail from her previous address, 7 Tempe Street, and that is why she managed to obtain the mail from the Tribunal notifying her of a conciliation hearing in a virtual hearing room of the Tribunal on 6 April 2022 in respect of the landlord's application. The notice of conciliation hearing that she refers to does indicate the tenant's address wrongly as 7 Tempe Street. 6. This notice was dated 16 March 2022. The notice included directions 1 - 3 as follows: 1. The applicant is to give to the respondent and send to the Tribunal any documents on which they intend to rely within 14 days from 16 March 2022. 2. If the respondent is the tenant and say they are COVID-19 impacted and have been unable to pay the rent, the respondent MUST give to the applicant and the Tribunal a completed financial statement (COVID-19) and a statement setting out what, if any, rent is unpaid, within 14 days from 16 March 2022. 3. Documents MUST be given to the Tribunal in hard copy (paper form). The documents must be secured in a bundle, without plastic sleeves, with consecutive page numbers on each page from beginning to end. 1. The tenant tells us she did not notice that the address on this notice for conciliation hearing was addressed to her at her previous address. She said if she had noticed it, she would have updated these details with the Tribunal. 2. The tenant also tells us that she travelled overseas to the United Kingdom on 4 April 2022 and returned on 27 April 2022. She did attend the first hearing remotely on 6 April 2022 whilst she was in the United Kingdom. She has produced evidence confirming that she was away in the United Kingdom on these days. We accept the tenant's evidence to us on these matters. The landlord did not challenge this evidence. 3. The hearing on 6 April 2022 did not resolve the matter. The Tribunal then provided notice of contested hearing by telephone dated 14 April 2022 for a hearing on 2 June 2022. This notice was sent to the tenant, again to her old address of 7 Tempe Street. This was when the tenant was overseas. 4. We were informed by the landlord that the property was put to auction for sale and contracts were exchanged on 23 April 2022. 5. The tenant in her evidence says she had moved to 4 Tempe Street and never received the notice of the hearing of 2 June 2022 and was not aware that the Tribunal hearing date had been arranged. 6. She informs us that, as demonstrated by her attendance remotely at the 6 April 2022 hearing, 'there was no way' she would have missed the Tribunal hearing if she had received notice of it. 7. We accept this evidence of the tenant. It strikes us as entirely possible that even if the tenant had made some attempt to go and collect mail from 7 Tempe Street at the time in question that the notice was not able to be retrieved. This may be because the letter addressed to her may have been discarded. 8. In conclusion, we are satisfied that there is a bona fide reason why the tenant did not attend the hearing of 2 June and that essentially, this was because she had not received notice of that hearing as the notice had been sent to her old address. 9. On the day of the hearing of 2 June 2022, the tenant informs us that she was working in the forensic hospital of Long Bay and next to Long Bay prison at which, for security reasons, she was not able to have her telephone with her. 10. When she finished her shift in the late afternoon, she noticed a message from the Tribunal advising her that a hearing involving a claim against her was being heard. We accept this evidence. 11. Accordingly, by the time she received this message, it was too late for her to do anything about it. 12. With respect to the remarks of the Tribunal on 20 June 2022 in dismissing her application to set aside the orders, we note the Tribunal was incorrect in describing the notice of hearing as being sent to the tenant's 'Bardia address'. We note the Tribunal made reference to 'order 3 on 6 April' that the tenant 'should have filed her evidence, but she did not file any evidence'. 13. No such order has been placed before us. It may be that this is a reference to direction 3 in the notice of 16 March 2022 which we have set out above. We note that the direction for filing of documents in the notice so far as the tenant is concerned is only relevant if the tenant claimed to be Covid affected. 14. We are informed that the tenant did explain her absence to the Tribunal and that she wished to have the opportunity to put her case to the Tribunal. She informs us that she indicated to the Tribunal that the compensation orders made should not have been made and that she should be given the opportunity to contest and put forward her defences to the orders. 15. In such circumstances we have difficulty understanding how the Tribunal concluded that the tenant's case had been adequately put to the Tribunal on 2 June 2022. 16. The tenant has been advised by the Tribunal that no sound recording of the hearing is available. In these circumstances and where there are errors in the recorded short reasons of the Tribunal, we consider that the grounds for the appeal in all of the circumstances warrant a new hearing by us on the application to set aside the orders of 2 June 2022: see s 80(3) of the NCAT Act. 17. Clause 9 of the Civil and Administrative Tribunal Regulation 2013 relevantly provides: 9 Additional power to set aside or vary decision determining proceedings (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances-- (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. 1. In Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy's Car Sales [2015] NSWCATAP 65, the Appeal Panel stated at [76] that the central question in exercising the discretion to set aside a decision is whether there is a real likelihood that it would be unjust to stand the decision sought to be set aside. 2. The Appeal Panel stated that [79]: Injustice will only be likely to result if the party seeking to set aside the decision has an arguable defence or an arguable case that a different decision could have been reached. If not, setting aside the decision would be futile. See, in a different but related context, Kyriakou v Long [2013] NSWSC 1890 at [33] and [55]. 1. We turn now to consider whether or not the tenant has an arguable defence or an arguable case that a different decision could have been reached. 2. The landlord raised seven grounds in support of his claim for compensation. We deal with those in turn. 3. First, there was a claim for the costs for repair to the garage door. In respect of the garage door, the tenant's contention was put as follows: It is our submission that the garage door had a fault prior to the time the Appellant took occupation of the house. The Appellant took the initiative of informing the Respondent the issues that she had with the garage door from the beginning of the tenancy however the issues raised by the Appellant where not resolved. Appellant engaged the Respondent's agent on various occasions to come and attend to the garage door but no one came to her aid. In light of the aforementioned the costs of the repair of the garage door repairs should be covered by the Respondent on the basis that he neglected, failed or refused to attend to the faults the garage had prior to the time the Appellant took occupation. 1. It is our view that this raises an arguable defence that has not been resolved by the Tribunal due to the absence of the tenant at the hearing. 2. The second claim of the landlord for compensation was to repair damage to the kitchen bench top. The submission of the tenant in this regard is as follows: It is our submission that the stains on the kitchen benchtop did not result out of the Appellant's negligence but rather the stains were caused by fair wear and tear after living in the house for several years. It is not disputed that Appellant took occupation of the house for a period of seven (7) years and as a result the furniture in the house is bound to suffer from wear and tear. It is highly irrational to expect the kitchen benchtop to be in the state it was when the Appellant took occupation of the house after being used for such a long period. 1. Photographs of the bench top were provided to us. In light of the fact that the tenant occupied the kitchen for nearly seven years, in our view it is reasonably arguably that the damages shown on the photographs could be described as fair wear and tear. We are of the view that a reasonably arguable and bone fide defence has been raised in respect of this item 2. The third matter raised, which is by far the largest item, is for patching and repainting the house. This was a claim for $15,000. The Tribunal only awarded $15,000 in total as this was the limit of the jurisdiction of the Tribunal. The defence put forward by the tenant is as follows: When the Respondent's Agent conducted the exist inspection she did not reach the conclusion that the whole house required patching and repainting. However, she brought it the Appellant's attention that she was supposed to repaint bedrooms 2 and 3 before she evacuated the premises. The washing away of the paint in the rest of the house resulted from wear and tear and as such the decision that the Appellant should repaint the whole of the house is ill founded. 1. We have viewed photographs of the alleged damage to the premises said to require patching and painting. Some of the alleged damage strikes us as arguably coming within fair wear and tear, particularly in light of the premises being tenanted for nearly seven years. The landlord conceded that the claim for $15,000 was in respect of a quotation received for painting the whole of the house. The landlord conceded that some of the damage in the photographs could be described as fair wear and tear but contended that others went beyond that. 2. In our view an arguable and bone fide defence has been raised by the tenant. 3. The fourth item was for cleaning fees. The defence of the tenant was as follows: It is our submission that Appellant left the house in a reasonable state of cleanliness and as nearly as possible in the same condition as when Appellant moved in. Appellant took it upon herself to employ a professional cleaning service to conduct a thorough cleaning of the house prior to her evacuation. In addition to this during the exit inspection the Respondent's agent did not bring it to the Appellant's attention that there was any area in the house that needed cleaning. 1. The tenant tendered invoices for cleaning fees for cleaning the house in support for her proposed defence. The tenant also tendered the exit inspection report of the landlord's agent which did not raise an issue as to the cleanliness of the premises. In our view, an arguable and bone fide defence has been raised in respect of cleaning fees. 2. The fifth item claimed by the landlord was for replacing the glass front door which was said to be damaged. The defence of the tenant was as follows: When the Respondent's agent conducted the exist inspection no chip or crack was identified on the glass front door. It baffles us that the Appellant is now begin ordered to replace a door which she did not in any way cause its damage. It the event that Appellant had caused the chip or crack on the glass door during her tenancy the agent would have brought it to her attention since the Appellant was present when the inspection was carried out. 1. The landlord's exit inspection has been tendered before us. We note it does demonstrate that no notation was made of any alleged chip or crack to the glass front door. In our view, an arguable defence has been raised in respect of this claim. 2. The next item claimed by the landlord was for the replacement of blinds. The photographs of the blinds were put before us. They showed vertical blinds with some three blinds missing and it was contended by the landlord that some of the blinds were dirty and damaged. 3. In our view, there is an arguable defence that some of the damage to the blinds should be regarded as wear and tear. The tenant says that the landlord did not repair the blinds prior to the sale of the property. This was not disputed by the landlord. In this regard, we refer to our concluding remark about the effect of the sale of the property on the claim made by the landlord. 4. The next matter raised by the landlord was for the costs for repairing the oven. The defence of the tenant was as follows: Appellant engaged the Respondent's agent on several occasions that cavity on top of the oven was left exposed and unsecured by the repairers but no effort was made to rectify this. Appellant further informed the Respondent's agent that the wooden covering of the oven had fallen on her feet whist she was cooking and that it should be repaired. However, this issue was not addressed even by the time that Appellant moved out of the premises. The Respondent also failed to provide the invoice which shows that the items were repaired. 1. Photographs were tendered of the oven and showed a cavity of the oven left exposed and unsecured. In our view, the tenant has demonstrated she has an arguable defence to this claim. 2. The last claim of the landlord which was accepted by the Tribunal was for lost rent for four weeks of repair time. 3. We note that the landlord gave the tenant a Notice of Termination for at least 90 days before the tenant left. This would have provided a reasonable opportunity for the landlord to effect the repairs in question without loss of rent. When questioned on this matter, the landlord informed us that he did not have sufficient funds to effect repairs and that is why they were not undertaken and why the property was sold without effecting the repairs claimed other than in some very superficial fashion such as painting over the benchtop said to be damaged. 4. In our view, this evidence has two consequences. First, the tenant has an arguable defence that the claim for loss of rent for four weeks for 'repair time' is inconsistent with the chronology referred to above in the sense that the landlord failed reasonably to mitigate his loss by not engaging in the repair work during the notice of termination period. 5. Further, in respect of all the claims which proceed on the basis of mere quotations and not actual work, in light of the sale, may mean the landlord has not suffered loss unless he provides evidence (not yet tendered to the Tribunal) that he has suffered loss on sale of the property. In our view, this also provides an arguable defence to the landlord's claim. 6. In conclusion, we are satisfied that the tenant's absence on 2 June 2022 has resulted in her case not being adequately put to the Tribunal, that she has an arguable defence and that the orders of 2 June 2022 should be set aside. 7. We note that pursuant to s 38(2) of the NCAT Act, the Tribunal is subject to 'the rules of natural justice'. Further, by s 38(5)(c) the Tribunal is required to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 8. We are satisfied that the tenant was not afforded a reasonable opportunity to be heard or otherwise have her submissions considered in the proceedings. 9. In conclusion, we allow the appeal. Orders 1. The Tribunal orders: 1. Extend the time within which to file the Notice of Appeal to 7 July 2022. 2. Appeal allowed. 3. Set aside the orders of the Tribunal on 2 June 2022 and 20 June 2022 in proceedings RT 22/11493. 4. Remit the whole of the proceedings RT 22/11493 back to the Tribunal for re-hearing and determination. ********** 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: 09 September 2022