Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kaur v Sharma [2022] NSWCATAP 336 Hearing dates: 19 September 2022 Date of orders: 27 October 2022 Decision date: 27 October 2022 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member R C Titterton OAM, Senior Member Decision: (1) In relation to any question of law, the appeal is dismissed. (2) In relation to any other ground of appeal, leave to appeal is refused. (3) The stay of the order for possession made in proceedings RT 22/15982 on 1 July 2022 granted by the Appeal Panel on 11 July 2022 is lifted. Catchwords: LEASES AND TENANCIES – jurisdiction of Tribunal and Appeal Panel where matter before Supreme Court of NSW PRACTICE AND PROCEDURE – failure of Tribunal to adjourn proceedings APPEAL – Decision of the Tribunal - whether question of law – whether some other error including being against the weight of the evidence Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443. Collins v Urban [2014] NSWCATAP 17 Gussoni v Burnheim [2018] NSWCATAP 75 Liang v University of Technology, Sydney [2018] NSWCATAP 285 Mifsud v Campbell (1991) 21 NSWLR 725 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 Texts Cited: Nil Category: Principal judgment Parties: Kiranjit Kaur (First Appellant) Rave Kaur Mehroke (Second Appellant) Umesh Sharma (First Respondent) Krishna Sharma (Second Respondent) Representation: G Singh (Appellants) (Agent) Solicitors: Neil Lawyers (Respondent) File Number(s): 2022/00198395 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 1 July 2022 Before: P Gardener, General Member File Number(s): RT 22/15982, RT 22/21195 and RT 22/24873 REASONS FOR DECISION Summary 1. The appellants (tenants) appeal from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) of 1 July 2022 in matters RT 22/15982, RT 22/21195 and RT 22/24873 (the Decision). 2. Matter RT 22/15982 was filed on 11 April 2022. This was the respondents' (landlords') application for termination of a residential tenancy agreement dated 21 December 2021 between the parties (RTA). The application was based on rental arrears. 3. Matter RT 22/21195 was filed on 13 May 2022. This was a further application of the landlords for termination of the RTA based on rental arrears. 4. Matter RT 22/24873 was filed on 3 June 2022. This was the tenants' application. They sought an order under s 11 of the Residential Tenancies Act 2010 (NSW) (RT Act) that the RTA was not a residential agreement under the RT Act and that an oral agreement between the parties was such an agreement. They also sought an order under s 45 of the RT Act that the rent be reduced on the grounds that the premises were unusable or uninhabitable. Summary of Tribunal's conclusions 1. The Tribunal made the orders set out in Attachment A. 2. In summary: 1. in matter RT 22/15982, the Tribunal terminated the RTA and ordered the tenants to give vacant possession of the premises to the landlords; 2. given its findings in matter RT 22/15982, the Tribunal found it was not necessary to determine matter RT 22/21195 and dismissed the application; 3. the Tribunal dismissed matter RT 22/24873. Disposition of appeal 1. For the following reasons we have decided that in all three matters: 1. in relation to any question of law, the appeal is dismissed; 2. in relation to any other ground of appeal, leave to appeal is refused. Preliminary Matters 1. There are two preliminary matters which we need to consider. Application for a stay 1. The first is that at the commencement of the hearing Mr Singh, who appeared on behalf of the tenants, confirmed the position put in the appeal submissions, that is, that the Appeal Panel has no jurisdiction to hear and determine the appeal. In response to this, we suggested to Mr Singh that he may wish to withdraw the appeal, on the basis that it is not usually the case that appellants in the Appeal Panel argue that the Appeal Panel has no jurisdiction to hear their appeal. Mr Singh then sought a "stay" of the appeal proceedings, pending the determination of a summons which had been filed in the Supreme Court of NSW. We refused that application and indicated that we would give our reasons for that decision in these reasons. 2. Mr Singh then asked us to stay the appeal pending an appeal to the Supreme Court in respect of our decision not to stay the appeal. We also refused that application, and again indicated that we would give our reasons for that decision in these reasons. 3. We refused to stay the appeal proceedings for the following reasons. 4. First, s 17(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides for Division Schedules, which may relevantly make provision for the composition and functions of the Division concerned. Section 17(2)(f) states that the Division Schedule may include special requirements in relation to the powers of and the practice and procedure to be followed by the Tribunal in relation to proceedings in the Division. Schedule 4 is the Division Schedule which applies to proceedings in the Consumer and Commercial Division. 5. Clause 5 of Pt 5 of Sch 4 concerns the jurisdiction of the Court and of the Consumer and Commercial Division respectively in circumstances such as the present where proceedings are commenced in both jurisdictions. Clause 5 of Part 5 of Sch 4 does not apply in appeal proceedings, even if those appeal proceedings concern a decision made in the Consumer and Commercial Division. The Appeal Panel has jurisdiction in respect of internally appealable decisions: NCAT Act, s 80(1). There is no dispute that the decisions which are the subject of the appeal are such decisions: NCAT Act, s 29(1)(a) and s 32. (We will consider cl 5 further below when we consider whether the Tribunal erred in finding that it had jurisdiction to deal with the matters that are the subject of the appeal). 6. Second, there was no utility in staying the appeal. Nor is there any utility in staying the appeal pending an application to the Supreme Court in relation to our decision to refuse to stay the appeal. In our view, we clearly have jurisdiction to hear and determine these internal appeals: NCAT Act, s 80(1). 7. Third, it would be inconsistent with our obligation in respect of the guiding principle set out in s 36(1) of the NCAT Act to stay the appeal. In this regard, we have an obligation to determine the real issues in dispute in the appeal in a manner that is just, quick and cheap. 8. Fourth, this is the tenants' appeal. The tenants were under no obligation to press the appeal and could have withdrawn it if they maintained the view that the Appeal Panel had no jurisdiction to hear and determine the appeal. It was also open to the tenants to seek a stay of the Appeal Panel proceedings from Supreme Court. Application to file fresh evidence on appeal 1. The second preliminary issue as an application that leave be granted for the tenants to rely on a statement of the appellant Rave Kaur Mehroke dated 17 September 2022 filed in Supreme Court proceedings 2022/00133947. 2. Attached to the statement of 17 September is a five page letter from Ms Mehroke to the landlords' solicitor Mr Babu also dated 17 September 2022, and an 85 page report of Mycotec Pty Ltd (Mycotec Report) dated 15 September 2022 prepared by its Director and Principal Mycologist Dr Heike Neumeister-Kemp. 3. Mr Babu for the landlords had no objection to the Appeal Panel receiving the Mycotec Report, but he did object to the Appeal Panel receiving what amounted to additional evidence from Ms Mehroke. 4. Mr Singh said that the principal reason we should receive this evidence, in particular the Mycotec Report, which related to the presence of mould in the subject premises, was because the tenants had not had an ample opportunity to file evidence in the Tribunal proceedings. We will deal with that matter later in these reasons, but as the issue was never raised before the Tribunal (at least based on the evidence before us) we see no error in the Tribunal proceeding as it did on 28 June 2022. 5. In those circumstances, we decline to accept these materials, which we note were filed electronically at 3:02AM the day before the appeal hearing. Decision 1. To understand the grounds of appeal it is appropriate to summarise the reasons for the Decision. 2. As noted, there were three matters before the Tribunal. RT 22/15982 1. The first matter was RT 22/15982. As noted, this was the landlords' application for termination of the residential tenancy agreement between the parties (RTA). The application for termination was based on rental arrears. 2. This application was granted, the Tribunal finding that the tenants were $7,200 in arrears. The Tribunal found that the tenants had failed to pay rent for an extended period, had refused the landlords access to the premises and had otherwise frustrated the landlords' efforts to perform repairs and undertake requested maintenance. 3. In making its findings, the Tribunal did not accept the submissions of the tenants that the terms of the residential tenancy agreement were not as found in the written RTA dated 21 December 2021 but were to be found otherwise in an oral agreement between the parties. RT 22/22195 1. The second matter was RT 22/21195. This was a further application by the landlords for termination of the RTA based on rental arrears. 2. The Tribunal stated at [66] of the Decision that this application did not require determination of any issue which had not already been determined as part of the landlords' application RT 22/15982. The application was therefore dismissed. RT 22/24873 1. The third matter was RT 22/24873. This was the tenants' application. They sought an order under s 11 of the RT Act that the RTA was not a residential agreement under the RT Act and that that an oral agreement between the parties was. They also sought an order under s 45 of the RT Act that the rent be reduced on the grounds that the premises were unusable or uninhabitable. 2. The Decision records at [77] that during an earlier hearing on 8 June 2022 Mr Singh advised that the tenants sought orders under s 11 of the RT Act to achieve two outcomes; firstly, to nullify or render void the RTA and secondly to have a declaration that there is an oral residential tenancy which incorporates different terms and potentially different parties. 3. In relation to the first outcome sought by the tenants, the Tribunal found it had no power to make such an order under s 11 of the RT Act. In relation to the second outcome, the Tribunal declined to make a declaration in the nature sought for the reason set out in [40] to [42] of the Decision. There the Tribunal stated: 40. During the hearing on 28-Jun-2022, the Tribunal heard sworn evidence from the landlord's agent that the tenants refused access on the day. This is consistent with the documentary evidence received by the Tribunal from the landlord's agent on 28-Jun-2022. The Tribunal accepts the sworn evidence of the landlord's agent that the tenants have repeatedly refused the landlord access for works and maintenance, including works and maintenance requested by the tenants. WHAT ARE THE TERMS OF THE RESIDENTIAL TENANCY AGREEMENT BETWEEN THE PARTIES? 41. The parties agree that there is a residential tenancy agreement but are in dispute as to its terms. The particulars of the dispute on this point are set out at paragraphs 1 - 3 of the reasons accompanying the Previous Orders. 42. The Tribunal finds that there is a written agreement between the landlords and the tenants which was entered into on 21-Dec-2021, which requires the tenants to pay rent of $525 per week and a bond of $2100 (RTA). 1. In summary, as the Tribunal stated at [79], despite the tenants being given the opportunity to outline the terms of the oral residential tenancy agreement, "there is simply nothing" before the Tribunal which could readily establish its terms. Other matters the subject of the Decision 1. There are three other matters discussed in the Decision which it is necessary to refer to for the purposes of understanding the grounds of appeal. Request for an adjournment 1. The hearing in respect of the three applications, was resumed on 28 June 2022, having been adjourned part-heard on 8 June 2022. 2. The Decision records that on 24 June 2022, Mr Singh requested that the hearing on 28 June 2022 be vacated or adjourned. There were two reasons for this request. 3. The first was that Mr Singh was appearing in unrelated proceedings in the Supreme Court of NSW on the same day. The Tribunal noted that following the orders of 15 June 2022, Mr Singh was not a party to the applications, and no reason was given as to why the tenants could not represent themselves, noting that one of the tenants was available at the hearing, at least before becoming uncontactable by telephone. 4. The second was that the three applications had been originally scheduled for a further hearing on 27 July 2022. Here the Tribunal noted that the Registry had advised the parties that the scheduling on 27 July 2022 was an error. 5. The Tribunal refused the application for an adjournment stating that: 21. These hearings have already been significantly delayed. Further delays create additional prejudice to the landlord and, given the tenants history of rental arrears, are likely to exacerbate the financial hardship experienced by the landlord. 22. The tenants and Mr Gurjit Singh have been provided with an opportunity to put forward their case, including at the previous hearing on 08-Jun-2022 and through the volume of documentary evidence and submissions they have already lodged. 23. At no time during the hearing on 08-Jun-2022 did the tenants persuade the Tribunal that the ledger produced by the landlords is missing payments or is otherwise incorrect. The tenants did not raise any argument that the notices of termination relied on by the landlords was invalid or that it failed to meet any legal requirement. 24. The tenants have not complied with Previous Order 7 which was a direction to file and serve documents in relation to the Tenants Application. 25. Given the procedural history and opportunities provided to all parties to present their case to date, the Tribunal considers that the granting of a further adjournment is inconsistent with [the] guiding principle as set out under s 36 of the [Civil and Administrative Tribunal Act 2013 (NSW)] Act. Application for the issue of a summons 1. The Decision also records that on 7 June 2022 Mr Singh lodged an application for a summons to be issued to the Proper Officer of Penrith City Council. 2. The Tribunal dismissed the application. In summary, it found that the documents sought from Penrith City Council did not have any obvious, direct relationship with the issues the tenants raised in their documentary evidence, and that it was not clear how Council records would inform the Tribunal in relation to issues such as the landlord's failure to mow the lawn, or of the maintenance tasks requested by the tenants. The Tribunal was not satisfied that the tenants had identified a legitimate forensic purpose for the summons. Hearing and Appearances 1. The final, and important, matter included in the Tribunal's reasons was the Tribunal's decision to continue the hearing in the absence of the tenants and Mr Singh. 2. We will set out the Tribunal's reasons for doing so in full. We note that the hearing on 28 June 2022 was conducted by telephone due to the Tribunal's COVID-19 protocols in place at the time. The notice of hearing issued in respect of the hearing on 28 June 2022 clearly stated that the hearing would be conducted by telephone and included the following notation: IMPORTANT: ALL PARTIES MUST READ THE INFORMATION BELOW 1. The Tribunal will contact the parties on the telephone number listed on the application for hearing. The parties must notify the Tribunal of any changes to the telephone number within 7 days from 20 June 2022. The number must be a direct line or mobile not a switchboard and each party must be available on the notified telephone number. The Tribunal will call from a private number. 2. You must remain available after the time listed above in the event the Tribunal is delayed in calling you. If the Tribunal is unable to contact a party by telephone the Tribunal may proceed to make orders including final orders in the absence of that party 1. The Tribunal stated: 9. At commencement of the hearing, the Tribunal: (a) called a Punjabi interpreter, arranged at request of the tenants. (b) called the landlord's agent, who joined the hearing. (c) attempted to call Ms Kiranjit Kaur, though this call was not answered (the Tribunal left a voicemail). (d) called Ms Mehroke, who joined the hearing. (e) called Mr Gurjit Singh before disconnecting the call due to background noise. (f) called Ms Kiranjit Kaur, whose phone was then answered by Mr Gurjit Singh, who hung up on the Tribunal. (g) on realising that Ms Mehroke was no longer in the call, attempted to call Ms Mehroke on a second occasion, though this call was also not answered. 10. In relation to the call referred to at 9(d), Ms Mehroke either hung up or the call was disconnected due to technical difficulties at or around the time of the first call to Mr Gurjit Singh. While Ms Mehroke provided some brief input on preliminary matters, she did not participate in the substantive hearing. 11. In relation to the call referred to at 9(e), Mr Gurjit Singh answered the call and there was significant background noise. The Tribunal understands that this occurred because Mr Gurjit Singh joined the Tribunal into a phone hearing for proceedings he was appearing in (or waiting to appear in) before the NSW Supreme Court on an unrelated matter. The Tribunal inquired whether Mr Gurjit Singh could be contacted in another way to minimise the noise. Mr Gurjit Singh advised that he only had one telephone and was not able to make alternative arrangements to participate in the hearing. 12. It appears that while Mr Gurjit Singh represented that he was only contactable by one phone number, he was able to access Ms Kiranjit Kaur's phone because he answered the call referred to at 9(f). During that call, Mr Gurjit Singh advised that the Tribunal was not to interrupt the other proceedings and that the earlier call had upset the Registrar. Mr Gurjit Singh disconnected this call. 13. As such, while there was (briefly) an appearance by the tenants and by Mr Gurjit Singh they did not attend for a long enough time to participate in the substantive hearing. The remainder of the hearing proceeded in their absence, during which the Tribunal heard sworn evidence provided by the landlord's agent. 14. Having regard to the Tribunal's guiding principle as set out in s 36 of the Civil and Administrative Tribunal Act 2013 (CAT Act) and given the likelihood that the landlord will experience additional financial hardship if the hearing were not to proceed on 28-Jun-2022, the Tribunal determined that it was in the interests of justice for the hearing to continue in the absence of the tenants. History of the Tribunal proceedings 1. It is also necessary to set out some of the background leading to the hearing on 28 June 2022. 2. The three applications were filed on the respective dates indicated above, namely 11 April, 13 May and 3 June 2022. 3. In matter RT 22/15982, the matter was listed for conciliation and hearing on 3 May 2022. On that occasion the matter did not resolve, and the matter was adjourned for a contested final hearing, the Tribunal relevantly ordering the tenants to file documents on which they proposed to rely by 24 May 2022. 4. In matter RT 22/21195, the matter was listed for conciliation and hearing on 3 June 2022. The matter did not resolve and it was listed for a contested final hearing on 8 June 2022. 5. Matter RT 22/24873 was filed on 3 June 2022. The Registry listed this matter for hearing by telephone on 8 June 2021 with the other two matters. 6. The final hearing of the three applications was listed on 8 June 2022 by telephone. At the conclusion of that hearing, as stated at [2] of the Decision: 2. These applications were part heard on 08-Jun-2022, after which the Tribunal made interlocutory orders (Previous Orders). The Previous Orders and the accompanying reasons set out: (a) The procedural history of each application; (b) Orders sought in each application; (c) Evidence filed by the parties to 08-Jun-2022; and (d) Decisions on some preliminary matters, including the parties named in each application and the Tribunal's jurisdiction to hear the dispute. 1. The actual orders were made by the Tribunal on 15 June 2022. These are set out in Attachment A. Lengthy written reasons accompanied the orders. 2. Of particular relevance and a matter relied on by Mr Singh, was that order (7) directed the tenants to file by 15 June 2022 (that is, the same day as the orders), the documents on which they wished to rely in their application RT 22/24873. 3. As it transpired, the tenants filed no documents in their matter. 4. The part-heard proceedings were then listed for hearing by telephone on 28 June 2022, with the Decision being published on 1 July 2022. 5. For completeness, we note that on 4 July 2022 Mr Singh requested that the three matters be relisted. Relevantly, the application sought an extension of the time in which the tenants were to give vacant possession to 15 July 2022. That request was granted and on 8 July 2022 order (8) of the orders of 1 July 2022 varied accordingly. So too was order (12) varied by consent, with the date for access to the premises of 11 July 2022 being varied to 13 July 2022. 6. Finally, in his application Mr Singh also sought orders that the Tribunal disqualify itself on the grounds of bias or apprehension of bias. A hearing about that issue was held on 15 July 2022. On that day, the Tribunal dismissed the application for lack of substance and abuse of process, noting that: (a) [Mr Singh] has not been able to identify with any particularity the conduct or circumstances which he alleges gives rise to bias or apprehended bias; (b) there is nothing for the presently Tribunal to disqualify itself from (that is, the relist application is without substance); and (c) final orders (subject to an appeal) in the applications have already been made. Notice of Appeal 1. The Notice of Appeal and its various attachments total 103 pages. The Grounds of Appeal commence at p 15 and consist of 25 numbered paragraphs. We summarise the grounds of appeal (which we have "grouped" into categories) as follows. 2. First, the tenants were denied natural justice or procedural fairness in that: 1. a hearing was listed for 8 June 2022 "without any prior directions to prepare it for hearing": ground (1); 2. the hearing of 28 June 2022 was conducted in an adversarial manner: ground (2); 3. the hearing of 28 June 2022 was not adjourned or vacated, thus causing "serious prejudice" to the tenants: ground (3); 4. the hearing of 28 June 2022 occurred in circumstances where the tenants had duplicate proceedings in the Supreme Court of NSW: ground (6); 5. the hearing of 28 June 2022 continued in the absence of the tenants: ground (8); 6. as the Tribunal had filed a submitting appearance in the Supreme Court proceedings which had been listed on 28 June 2022, the Tribunal was under an obligation not to list matters before it on 28 June 2022: ground (9); 7. "Member Gardener['s] statement of reasons for defence of equitable setoff is in form of Argument made for landlord without giving any opportunity to contradict or reply to that argument. I stand no chance when member act legal representative of landlord and does not provide fair opportunity to file evidence and then criticise appellants to not file evidence": ground (14); (typographical errors as in original) 1. Second, the Tribunal erred in law: 1. in that the Tribunal had no jurisdiction to "entertain an application for possession": ground (4); 2. in that the Tribunal had no jurisdiction when it joined the Second Appellant as a party to the proceedings: ground (5); 3. in that the Tribunal had no jurisdiction when on 8 June the landlords discontinued their claim for relief of an alleged breach of cl 3.1 of the RTA: ground (7); 4. as the landlord's s 88 application was dismissed on 28 June 2022, the Tribunal lacked jurisdiction to make any findings of rental arrears: ground (18); 5. by applying s 89(1) of the RT Act in conjunction with s 87 of that Act: ground (20); 6. by failing to apply the tenants' rent abatement "defence" to the landlords' s 88 application: ground (21); 7. in stating at [46] that "The documentary evidence provided by the landlord's agent includes hearing notes (a copy of which appear on the file), the RTA, a tenant rent ledger and a notice of termination dated 26-Apr-2022 (NOT). The evidence includes another notice of termination however it is not necessary to consider both notices": ground (22); 1. Third, the Decision was against the weight of the evidence in that: 1. "At no time during the hearing on 08-Jun-2022 did the tenants persuade the Tribunal that the ledger produced by the landlords is missing payments or is otherwise incorrect. The tenants did not raise any argument that the notices of termination relied on by the landlords was invalid or that it failed to meet any legal requirement": ground (10). 2. "The documentary evidence provided by the landlord's agent includes hearing notes (a copy of which appear on the file), the RTA, a tenant rent ledger and a notice of termination dated 26-Apr-2022 (NOT). The evidence includes another notice of termination however it is not necessary to consider both notices": ground (11); 3. in that the Tribunal "turned a blind eye toward the evidence filed by the appellant which includes a USB with 300+ photos of the property. There is not a single word about those evidence in the reasons. They were simply not considered": ground (16); 1. Fourth, the Tribunal made various other errors, namely: 1. there was no finding that the tenants were in any breach on issue of payment of rent on time prior to the issue of termination notice issued under s 87: ground (12); 2. the Tribunal unlawfully interfered in the written agreement between the parties: ground (13); 3. the Tribunal "was wrong" to decide that Council's evidence would not be helpful to decide the issue of illegal construction: ground (15); 4. the Tribunal "was wrong" to conclude that the issue of the summons is relevant to maintenance tasks such as lawn mowing": ground (17); 5. the "Section 87 termination notice was given on 21 March 2022 alleging breach of clause 3.1 of the residential tenancy agreement prior to 21 March 2022. The finding by the tribunal on the basis of evidence of the respondent is conclusive that there is no breach of an agreement prior to 21 March 2022 by the tenant in relation to the payment of rent": ground (19); 6. "[a]s a result of false evidence on oath by Sarvjot Singh Member was misled to believe that 96 days of rent is outstanding and based on evidence of Sarvjot Singh there is no breach contended prior to the first termination notice that is 21 March 2022": ground (23). Other Grounds of Appeal 1. A series of submissions were filed by Mr Singh on behalf of the tenants in the period 10 August to 29 August 2022, respectively being filed on 10, 12, 15, (two submissions), 24, 26 (two submissions) and 29 (two submissions) August 2022. 2. "Submission – 1" was filed on 10 August 2022. Relevantly it states: Ground 1 1 … [the] tribunal below had no jurisdiction to hear, determine or exercise any power pending Supreme Court Proceedings. Same Applies to Appeal Panel. 2. … a denial of natural justice ground. Oral Submissions will develop further this ground. I don't have words to express my disgust the way Patrick Gardner conducted the hearings. 1. A further submission was filed on 12 August 2022. Relevantly it states: Ground 1 1. the Tribunal accepted allegations of the landlords as evidence; 2. the Registry misplaced a USB containing over 200 photographs, and the landlords' agent mislead the Tribunal; 3. the landlord failed to take reasonable care of the premises; 1. "Submission – 3" was filed on 15 August 2022. Relevantly it states: Grounds 2 and 3 … 2. Ground 2 is the submissions on point of law which refers to attached relevant Hansard. 3. Ground 3 is related to dealing with adjournment applications. This adjournment application was provided to Members by the Registry in 54th minute by the Registrar. "Mr. Gurjit Singh is seeking to adjourn all three matters. He filed this on the 24th By the looks of it, but the registry didn't provide it to me until just now during the hearing. I'm going to refuse the Adjournment application. The reasons for this will be provided in writing. 4. By this time various issues have already been decided. Transcript is being prepared. 1. Attached to this submission is a copy of a speech to the NSW Legislative Assembly by the then Attorney-General, Mr Greg Smith, on 20 March 2014, and a copy of Mr Singh's application for an adjournment of the hearing of 28 June 2022. 2. "Submission – 4" was filed on 15 August 2022. Relevantly it states: Grounds 4 and 5 1. On 13 July 2022 Senior Member Thode made orders "Gurjit Singh is removed as an appellant; oral reasons given at call over. Mr Gurjit Singh is not a party to the residential tenancy agreement and is not a party to the hearing at first instance." 2. This is a lie nothing else and the evidence of this was in front of Member Thode on 13 July 2022. 3. Also LOOK at Page 68 of First Appeal book, Narinder Sharma and Sarvjot Singh was also Parties in the tribunal below. 4. Attached is the Summons and submissions filed in the Supreme Court. 4. Appeal Panel has no Jurisdiction at all. 1. Attached to the submissions is a copy of a summons filed in the Supreme Court of NSW on 24 June 2022 by Mr Singh. The subject matter is the hearing of 8 June 2022 and a subsequent decision of 15 June 2022. Also attached are submissions prepared by Mr Singh in support of the orders sought in the summons. 2. "Submission – 5" was filed on 15 August 2022. Relevantly it states: Ground 5 1. Refer to 4th Submission - Issues Pending in Supreme Court. No Jurisdiction for Administrative Review. Ground 6 Ground 6 2. Refer to Attached Statement of Claim Page 76 of First Appeal Book filed with Notice of Appeal. RIGHT TO FAIR TRIAL - NO ADMINISTRATIVE JURISDICTION - CONTEMPT OF COURT - PERVERTING THE COURSE OF JUSTICE. Supplement with oral Submissions. Ground 7 3. Refer to Submission - 4. To be supplemented by oral submissions. Pending Jurisdiction of Supreme Court Ground 8 4. Its oppressive to conduct a hearing without any telephone number and meeting ID provided to parties. Gurjit Singh and Kiranjit Kaur were in the hearing in the Supreme Court. Gurjit Singh represented Kiranjit Kaur and Reva Kaur Mehroke on 8 June 2022 and the matter was adjourned part heard. Member Gardner's only intention was to humiliate Kiranjit Kaur and Reva Kaur. Matter was complicated and the end result is in front of everyone. Ground 9 5. There was clearly an intention of the tribunal that in future hearing Gurjit Singh will represent Kiranjit Kaur and Reva Kaur Mehroke. Gurjit Singh is not a psychic or astrologer who can predict the future. It was impossible for me to predict on 8 June 2022 that Registrar Karen Jones is going to list the matter on 28 June 2022 during the direction hearing of 14 June 2022. (Refer to Submissions 3 for listing notice) Ground 10 The matter is under the Jurisdiction of the Supreme Court of NSW. NCAT and Appeal Panel simply have no jurisdiction to near and determine any rights between the parties. Reply to Appeal 1. A Reply to Appeal was filed on 22 July 2022. The landlords support the orders made by the Tribunal and reply to the Notice of Appeal as follows: 1. We do not believe the tribunal made any error of law while giving their orders and the appeal should not procced on that basis. 2. We were in our rights as the landlord's agents to bring about the applications in front of the tribunal. I was not out of line and we did not provide any evidence that was false or fabricated as has been mentioned in the Notice of Appeal. 3. The purpose of the appeal seems to just prolong the process and not provide vacant possession of the property. 4. We believe the Tribunal afforded natural justice to the appellants and we do not believe there was any instance where the natural justice was not afforded or due process was not followed. 5. Any grounds of appeal that relate to the working of the Tribunal we will not be in a capacity to respond and that will be a matter with the tribunal to respond. Nature of an appeal 1. Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). A question of law 1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right. The Appeal Panel said at [13], in summary, that the following matters were 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; 8. whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise). Leave to appeal 1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 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. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) 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. 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]. Tenants' oral submissions 1. We gave Mr Singh the opportunity to supplement his various lengthy written submissions. 2. There were three matters he raised orally. 3. The first was that he was denied natural justice/procedural fairness by the Tribunal. This submission was developed as follows: 1. the Tribunal not considering the evidence on a USB key which he said was lost by the Tribunal; 2. by making directions on 15 June 2022 requiring the tenants to file their evidence in their matter RT 22/24873 by 15 June 2022; 3. by proceeding in the absence of the parties on 28 June 2022. 1. The second was the Tribunal's failure to consider matter RT 22/21195, in that the Tribunal simply relied on the first notice of termination in circumstances where the landlords had confined the first application to access orders only. 2. The third matter, being an extra ground of appeal, was that the Tribunal "completely failed to understand the complexity of the matter". In our view, any misunderstanding of the issues would be manifested in the Decision. As inadequate reasons constitute a question of law (Prendergast at [12](1)), we will treat this issue as raising an additional question of law. Landlords' oral submissions 1. We gave Mr Manoj Babu, solicitor, the opportunity to supplement his various written submissions. 2. In summary, he submitted that nothing further had been advanced by Mr Singh which warranted the Appeal Panel disturbing the Tribunal's orders. Relevant principles 1. Before considering the grounds of appeal, we make the following observations. 2. First, in Liang v University of Technology, Sydney [2018] NSWCATAP 285, the Appeal Panel stated it was not necessary to make findings on every argument or every submission, particularly where the arguments advanced were numerous and of varying significance and are often unsupported by any evidence at all: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443. 3. Second, this is particularly so where, as is the case here, the submissions are voluminous and lack substance. We are not required to make findings on every argument or every submission advanced and to record those findings and submissions in the Decision. Accordingly, we do not propose to do so. 4. Third, in Gussoni v Burnheim [2018] NSWCATAP 75 at [32] the Appeal Panel referred with approval to the statement of Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, referring to McHugh JA in Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281,who noted that a failure to explain the basis of a crucial finding of fact involved a breach of the principle that justice must not only be done but must be seen to be done. His Honour went on to state that: … it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. Interlocutory decision 1. One of the matters agitated in the appeal was the failure of the Tribunal to adjourn the hearing of 28 June 2022. Such a decision is an interlocutory decision (NCAT Act, s 4) and therefore an appeal in relation to that decision requires leave (NCAT Act, s 80(2)(a)). 2. The Tribunal's reasons for refusing the application for an adjournment are set out above at [20]. 3. In House v The King (1936) 55 CLR 499 the High Court of Australia stated at 504-5 stated: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 1. The decision of the Tribunal to refuse to grant the adjournment was one that was clearly available to it. As noted above, the notice of hearing for the 28 June hearing clearly shows that the hearing would be conducted by telephone. There was therefore no basis for the tenants to have been given a "dial in number", as submitted by Mr Singh. That would only occur if the hearing were being conducted by AVL. Further, Mr Singh has advanced no satisfactory reason why one or other of the tenants could not have appeared at the hearing if he was unavailable to do so by reason of his appearance in what was described as "unrelated" proceedings. We are not satisfied that the Tribunal made any error in its decision for the reasons it stated. 2. Accordingly leave to appeal on this ground of appeal is refused. Questions of Law 1. As we have summarised above, the tenants raise questions of law which broadly speaking fall into three categories: denial of procedural fairness, lack of jurisdiction, inadequate reasons and other errors of law. Denial of procedural fairness 1. This question of law was also agitated in a variety of ways, which are summarised above. 2. We see no substance in any of these grounds. Insofar as the tenants complain about what happened during the hearing on either 8 June or 28 June 2022, they have not provided a transcript of either hearing as they were required to do by the orders made by the Appeal Panel at callover. In such circumstances, we are not satisfied that there was anything in the conduct of the hearings that constitutes a denial of procedural fairness. 3. In our view, the substantive arguments raised by the tenants relate to the Tribunal continuing the hearing of 28 June 2022 in circumstances where Mr Singh was not available, and where Supreme Court proceedings were on foot. Continuing the hearing 1. The Tribunal gave lengthy reasons as to why it decided to continue the hearing. These are set out above. 2. Applying the principles of House v The King set out above, the decision of the Tribunal to continue the hearing was one that was clearly available to it. We are not satisfied that the Tribunal made any error in making that decision for the reasons it stated. Supreme Court proceedings / Lack of jurisdiction 1. The tenants claim that the Tribunal had no jurisdiction to hear and determine the applications before it because of the proceedings in the Supreme Court. 2. The Supreme Court proceedings relate to the hearing on 8 June 2022, which was the first day of hearing of each of the three applications under consideration. Included in the tenants' materials is a copy of the "Summons Commencing An Appeal" (Summons) filed on 24 June 2022. 3. The following orders are sought in the Summons: 1 Appeal allowed and all orders and decisions made be set aside. 2 Declaration that NSW Civil and Administrative Tribunal has no jurisdiction to hear RT 22/21195. 3 Declaration that NSW Civil and Administrative Tribunal has no jurisdiction to hear RT 22/24873. 4 Declaration that NSW Civil and Administrative Tribunal has no jurisdiction to hear RT 22/15982. 5 Declaration that Civil and Administrative Tribunal Act 2013 is inconsistent with the law of the commonwealth. 6 Mark Harrowell be restrained from any further involvement in the matter 7 Member Patrick Gardener be restrained from having any further involvement in the matter. 8 Principal Registrar of NSW Civil and Administrative Tribunal be restrained from listing the matter on the dates parties have duplicate listing in other Higher Courts. 9 Costs 1. In summary, the reasons for seeking those orders include: 1 Member considered irrelevant material, ignored relevant material, applied wrong legal test and exercised power without resolving dispute about his Jurisdiction. 2 … [the T]ribunal [exercised] Jurisdiction in accordance with Adversarial system as prevalent in other NSW Courts. Exercise of Jurisdiciton [sic] in any way other than Inquestorial [sic] forum of dispute resolution ultra vires. 3. [The Tribunal] exercised power to remove and add parties in circumstances when there is no Jurisdiction vested in him to exercise such powers. 4. [The Tribunal] refused adjournment request of 7 June 2022 and 8 June 2022 because Deputy President Mark Harrowell decided to list all the three applications together for contested hearing in circumstances when there was no evidence filed or any directions made for hearing. 5. … [the Tribunal] refused Procedural fairness by denying reasonable time to defend and present the case. 6. Interim relief granted to those who came to tribunal with unclean hands is contended to be error of law. 7. CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2013 - SECT 59 require consent orders to be made when terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal. It is contended that error of law is made when consent orders are made without agreed settlement in writing. 8. [The Tribunal] made an error of law in rejecting Gurjit Singh's argument as set out at 26(b) that the dispute involves persons who were not a party to the Residential Tenancy Act. Agents are not immune from personal liability towards third party or contracted party. 9. Reasonable person properly informed would apprehend that there was unconscious bias on the part of the [Tribunal]. 10. [Deputy President] Mark Harrowell interfered in the proceedings unlawfully. 11. … In circumstances when applicant (Sarvjot Singh) in RT 22/15982 decided to not pursue relief in relation to breach of condition 3.1 of the agreement. It is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. Statute provide right to tribunal to decide facts involving dispute of limited Jurisdiction but International Covenant on Civil and Political Rights provides right to have the matter decided by independent tribunal and rules of law against splitting cause of actions. 1. At the hearing on 8 June 2022, Mr Singh claimed that as a result of the Supreme Court proceeding commenced on 2 May 2022, the Tribunal had no jurisdiction to hear and determine the applications. 2. In relation to whether the Tribunal had jurisdiction to hear the first application made by the landlord, the Tribunal stated: 30. In relation to the Landlord's First Application, the Tribunal finds that it has jurisdiction to hear this application and that the Tenant's Supreme Court Application is no bar to determination of any issue before the Tribunal in the Landlord's First Application [that is, RT 22/15982 was filed on 11 April 2022]. 31. The Tribunal does not accept Mr Gurjit Singh's argument as set out at 26(a). This is because the Landlord's First Application was filed earlier in time and the operation of Clause 5(3) of Schedule 4 to the Civil and Administrative Tribunal Act 2014 (CAT Act) which reads: "If, at the time when an application was made to the Tribunal for the exercise of a Division function, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue." 1. In relation to whether the Tribunal had jurisdiction to hear and determine the landlord's second application and the tenants' application, the Tribunal found: 33. In relation to the Landlord's Second Application, the Tribunal finds that it has jurisdiction to hear this application though there may be constraints on the Tribunal's capacity to determine some issues which are common to both the Landlord's Second Application and the Tenant's Supreme Court Application. This is a result of Clause 5(7) of Schedule 4 to the CAT Act which draws a distinction between proceedings and issues for determination in the same. 1. In relation whether the Tribunal had jurisdiction to hear and determine the tenants' application, the Tribunal found: 35. In relation to the Tenant's Application, for similar reasons to the Landlord's Second Application, the Tribunal finds that it has jurisdiction to hear this application although the Tribunal will cease to have jurisdiction to determine issues which are common to both the Tenant's Application and the Tenant's Supreme Court Application. 1. As to the dispute involving persons who were not parties to the residential tenancy agreement, the Tribunal did not accept this argument, finding that: 32 ….. Orders under s 87 are orders sought by landlords against tenants. They are not orders which can bind other kinds of person, for example non-tenant occupants or agents. In the present matter, the landlord relies on the written RTA. 1. In our view, the Tribunal patently did not err in determining that it had jurisdiction to hear and determine the landlord's first application, for the reason the Tribunal stated; that is, the landlord's application for termination and possession pre-dated the Supreme Court proceedings said to have been commenced on 2 May 2022. 2. We also conclude that the Tribunal did in not accepting the other argument on jurisdiction Mr Singh put to the Tribunal on 8 June; that is, that the dispute involved persons who were not parties to the residential tenancy agreement. Both the applications lodged by the landlord's agent on behalf of the landlord and the tenants' application involved a dispute between parties to a residential tenancy agreement. 3. We have considered whether the Tribunal erred in deciding that it had jurisdiction to hear and determine the landlord's second application and the tenants' application. As these applications were lodged after 2 May 2022, whether this is so turns in part on whether cl 5(7) of Part 5 of Sch 4 applies. This provision states: (7) Effect of pending court proceedings on Tribunal If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue. 1. Mr Singh argues that the Tribunal had no jurisdiction to hear the applications because of the operation of this provision. However, no copy of that summons was before the Appeal Panel. We therefore do not know precisely what issues were in dispute in the Court proceedings commenced by that summons. Further, it is not clear whether a copy of the summons was in fact before the Tribunal, although clearly some documents in relation to Supreme Court proceedings filed by Mr Singh were. In the absence of a copy of the summons being provided to us, we are not satisfied that the tenants have demonstrated that the Tribunal lacked jurisdiction to hear and determine either the landlords' second application or the tenants' application on the basis of the 2 May 2022 summons. 2. As to the summons of 24 June 2022, that was before us. However, there is no evidence that it was before the Tribunal at the adjourned hearing on 28 June 2022, and no reference is made to it in the Decision. While Mr Singh had sought an adjournment of the hearing of 28 June 2022, that was relevantly because he was appearing in "unrelated proceedings" in the Supreme Court on 28 June 2022. 3. Despite the directions made at call over, a transcript of the proceedings of 28 June 2022 was not before the Appeal Panel. If Mr Singh had asked the Tribunal to adjourn or stay the proceeding before it on the basis of the filing of summons on 24 June 2022, and it is not suggested in the Decision that he did, there is no evidence before us to establish this. 4. We are not satisfied that the tenants have established that the Tribunal lacked jurisdiction to hear and determine the applications because of the Supreme Court proceedings. Nor are we satisfied that the tenant has demonstrated that there was any basis for the Tribunal to adjourn or stay the proceedings because of the Supreme Court proceedings. Inadequate reasons 1. The Appeal Panel has recently set out the relevant principles in Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at [58] as follows: The NSW Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (per Bell P) helpfully set out the principles relevant to adequacy of reasons at [66] – [77]. They are summarised as follows: (1) The function of the appeal court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard. (2) The quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court or tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided. (3) As to the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons is appropriate than may be the case when an appellate court is hearing an appeal from another court. (4) Even in the less formal setting of a tribunal there are certain minimum characteristics that a Tribunal's reasons must possess. These are supplied, in relation to the Tribunal, by s 62(3) of the NCAT Act which, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. (5) At least a basic explanation of the fundamental reasons which led the Tribunal to its conclusion is necessary. (6) It is not necessary for a judge to detail each factor which he or she has found to be relevant or irrelevant. Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference as to what is found is appropriately clear. (7) Reasons need not be elaborate. (8) Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. (9) The court should not read passages from the reasons for decision in isolation from others to which they may be related. (10) The reasons must be read fairly and as a whole. (11) The reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error. (12) There should be a degree of tolerance for looseness in the language of the Tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips. 1. Applying these principles, we are not satisfied that the reasons for Decision were inadequate in part or at all. Other claimed errors of law Applying s 89(1) of the RT Act in conjunction with s 87 1. This ground is confused and without substance. We see no error and would not allow the appeal on this ground. Failure to consider "abatement defence" 1. The tenants also submit that the Tribunal erred in failing to consider its "abatement defence". To state the matter more correctly, the tenants are submitting that the Tribunal failed to consider or failed properly to consider their application RT 22/24873. 2. The tenants had sought an order under s 45 of the RT Act. That section provides: 45 Remedies for reduction of rent on frustration of residential tenancy agreement (1) The Tribunal may, on application by the landlord or tenant, make an order determining the amount of rent payable if the rent is abated under section 43(2). (2) The Tribunal may order that— (a) from a specified day, the rent for the residential premises must not exceed a specified amount, and (b) the landlord must repay to the tenant any rent paid by the tenant since the specified day that is in excess of the specified amount. 1. Section 43(2) of the RT Act which provides: 43 Rent reductions … (2) Premises unusable The rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are— (a) otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or (b) cease to be lawfully usable as a residence, or (c) appropriated or acquired by any authority by compulsory process. 1. In dismissing the tenants' claim the Tribunal stated: THE TENANTS SEEK ORDERS UNDER S 45 OF THE RT ACT. SHOULD SUCH AN ORDER BE MADE AND, IF SO, ON WHAT TERMS? 82. For essentially the same reasons as are set out in paragraphs 14 - 27, the Tribunal is: (a) not satisfied that s43(2)(b) [sic – (a)] has any application in the present circumstances (and accordingly that the Tribunal cannot make the orders sought by the tenants under s 45 of the RT Act), as the tenants complaints about the premises would all, if proven, be breaches by the landlord of the RTA; and (b) satisfied that the tenants have frustrated recent efforts of the landlord to access the premises to perform maintenance and repairs (most recently by refusing access as required per Previous Order 11). 83. In addition: (a) under the "Reasons for Orders" section of the Tenant's Application, the tenants seek orders against RCMO Pty Ltd. This is the company that is the landlord's agent. The agent is, plainly, not the owner of the premises and is not being paid rent by the tenants. It is unclear how the orders sought could be made against RCMO Pty Ltd. (b) The tenants have not provided any evidence at all for their calculation of the reduced rent they claim ought to be payable from commencement of the tenancy. 84. In circumstances where the principal is known to the tenants (through the details available on the RTA) the tenants cannot elect to proceed with a claim against the agent in lieu of a claim against the Principal. 85. Accordingly, this limb of the tenant's application must be dismissed. 1. We note that the reference to [14] to [27] appears to be a typographical error. The reference should be to paragraphs [15] to [26]. That said, these paragraphs deal with the adjournment application, and are not relevant to the issue of rent abatement. 2. The Tribunal dismissed the application because it was not satisfied on the tenants' evidence that s 43(2)(a) had any application, as the evidence of the tenants would, if proven, establish uninhabitability arising from breaches of the RTA by the landlord, and not "otherwise". It also appears that, even if the Tribunal had been so satisfied, the Tribunal in its discretion would have refused to grant relief as it was satisfied that the tenants had frustrated recent efforts of the landlord to access the premises to perform maintenance and repairs (including in breach of previous orders). Finally, as the Tribunal notes, the tenants did not provide any evidence "at all" for their calculation of the reduced rent they claim ought to be payable from commencement of the tenancy. 3. We see no error in the Tribunal's decision on this issue or in its reasoning. While the reasons are short, we consider they reach the "bare minimum" of the type referred to by Bell P in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231. Failure to consider another notice of termination 1. Mr Singh's argument appeared to be that the Tribunal erred in failing to consider the landlord's second notice of termination, the notice the subject of RT 22/21195. 2. In our view, having already found one notice of termination valid and having made orders for termination and possession there was no utility or need for the Tribunal to do so again in RT 22/15982. Conclusion 1. We would not allow the appeal in relation to any of the tenants' claimed errors of law. Other errors not being errors of law 1. The matters agitated by the tenants are set out above. The Decision was against the weight of the evidence 1. The tenants rely on three matters. 2. The first matter is that at no time during the hearing on 8 June 2022 did the tenants persuade the Tribunal that the ledger produced by the landlords was missing payments or is otherwise incorrect, and did not raise any argument that the notices of termination relied on by the landlords was invalid or that it failed to meet any legal requirement. 3. This ground of appeal is misconceived. 4. The second matter relates to the second ground of appeal, a matter already dealt with. 5. The third matter related to the missing USB. We accept that the Decision makes no express references to the USB or the photographs, but we see that there was a description of the photographs included in the materials apparently before the Tribunal (being submissions G2). We also see that in Mr Singh's submissions he purports to reproduce part of the transcript of the proceedings on 8 June 2022 where the Member stated that he did not have a USB key. However, in the absence of a transcript of the proceedings of 28 June 2022, we are not satisfied that this matter was raised before the Tribunal on that occasion. But, accepting for the sake of the argument that a USB key was not before the Tribunal, we do not consider its presence would have made any difference as, if the photographs showed premises in poor condition, then that would tend to support the Tribunal's conclusion that the evidence suggested breach of the RTA, not uninhabitability otherwise than as a result of breach. 6. We have considered all the other errors which are set out above. We see no substance in any of them and would not grant leave to appeal. Other errors 1. We turn now to the 12 grounds set out in Mr Singh's series of submissions referred to above. Many are repetitive of earlier grounds. 2. Ground 1 is another submission that the Tribunal lacked jurisdiction and that the tenants were denied procedural fairness. We have already dealt with that issue. 3. The second Ground 1 is that the Tribunal accepted allegations of the landlords as evidence, the Registry misplaced the USB, and the landlords' agent mislead the Tribunal and the landlord failed to take reasonable care of the premises. That issue has already been dealt with. 4. Ground 2 relied on a speech to the NSW Legislative Assembly by then Attorney-General Mr Greg Smith on 20 March 2014. We are not satisfied that this gives rise to a ground of appeal. 5. Ground 3 related to Mr Singh's adjournment application to the Tribunal. We have dealt with that issue above. 6. Grounds 4 and 5 related to Mr Singh's removal as a party to the appeal, and that the Appeal Panel had no jurisdiction. Here we note firstly that there was no ground of appeal relating to Mr Singh's his removal as a party to the Tribunal proceedings. Even if there were, the Tribunal's decision about this was sound as Mr Singh was not a party to the RTA and had not persuaded the Tribunal (on 8 June) that there was an oral agreement to which he was a party. In relation to removal as a party to the appeal, this was done at the callover. This also appears to be correct, given that Mr Singh was not a party to the RTA and the Tribunal made a finding of fact that he had not established an alternative oral agreement. 7. The second Ground 5 related to jurisdiction – presumably the lack of jurisdiction of the Tribunal. 8. Ground 6 related to the right to a fair trial, contempt of Court and perverting the course of justice. Grounds 7 and 10 relate to jurisdiction. Ground 8 related to the Tribunal hearing being conducted without a "meeting ID" being provided to the parties. We have dealt with these issues above. 9. Ground 9 was that Mr Singh was not "a psychic or astrologer who can predict the future" it was impossible for him to predict on 8 June 2022 that Registrar Karen Jones was going to list the matter on 28 June 2022 during the direction hearing of 14 June 2022. This does not give rise to a separate ground of appeal. To the extent that it amounts to an assertion of a denial of procedural fairness, or that the Tribunal erred in failing to adjourn the hearing on 28 June 2022, we have dealt with that issue above. 10. In our view there is no substance in any of these grounds of appeal, which are repetitive and confused. Conclusion 1. To the extent that the appeal raises errors other than questions of law, we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result. 2. We would not grant leave for any of these alleged errors. Orders 1. The Appeal Panel orders: 1. In relation to any question of law, the appeal is dismissed. 2. In relation to any other ground of appeal, leave to appeal is refused. 3. The stay of the order for possession made in proceedings RT 22/15982 on 1 July 2022 granted by the Appeal Panel on 11 July 2022 is lifted. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ATTACHMENT A 1. These are orders made by the Tribunal in applications RT 22/15982 (Landlord's First Application), RT 22/21195 (Landlord's Second Application) and RT 22/24873 (Tenant's Application). These orders were published on 01-Jul-2022. 2. In these orders and the accompanying reasons, Kiranjit Kaur and Reva Kaur Mehroke will be referred to as the tenants and Umesh Sharma & Krishna Sharma will be referred to as the landlords. 3. Mr Gurjit Singh's request of 24-Jun-2022 for an adjournment is refused. 4. Mr Gurjit Singh's application of 07-Jun-2022 for issue of summons against Penrith City Council is refused. 5. The Residential Tenancy Agreement is terminated in accordance with s 87 of the Residential Tenancies Act 2010 (as tenant has breached the agreement by failing to pay rent in accordance with the agreement. 6. The Tribunal: 1. Finds that the tenants, Kiranjit Kaur and Reva Kaur Mehroke, last paid rent on 30-Mar-2022; 2. Finds that the tenants, Kiranjit Kaur and Reva Kaur Mehroke, have failed to pay rent from 25-Mar-2022 to 28-Jun-2022 and are in arrears of $7200 for that period; and 3. is satisfied in accordance with s 89(5) the tenant has frequently failed to pay rent owing for the residential premises. 7. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 8. The order for possession is suspended until 08-Jul-2022. 9. The tenant shall pay the landlord a daily occupation fee at the rate of $75.00 per day from the day after the date of termination, namely 29-Jun-2022 until the date vacant possession is given to the landlord. 10. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine: 1. The amount of any occupation fee owing; and 2. Noting the finding at 6(b), any claim by the landlord for compensation or payment of the rental arrears. 7. The Rental Bond Services is directed to pay the landlord, Umesh Sharma & Krishna Sharma, C/-RCMO PTY LTDT/A UNITED PROPERTY SALES & MANAGEMENT SHOP 2 130 Main Street BLACKTOWN NSW 2148 Australia, the whole bond plus interest of Rental Bond number T181180-6. NOTE: All rental bond payments are made by electronic transfer to a nominated bank account. If you have not already provided bank account details to NSW Fair Trading please contact 13 32 20 or email bondclaims@finance.nsw.gov.au 8. The Tribunal authorises the landlord/s, Umesh Sharma & Krishna Sharma, the landlord's agent and/or the landlord's authorised contractors to enter the residential premises at 10:00 AM on 11-Jul-2022 for the purpose of: 1. Inspecting the residential premises for maintenance, repairs or health and safety. 2. fitting or inspecting smoke alarms. 3. carrying out the following work or maintenance as required to address any maintenance or repairs requested by the tenants. 9. The tenant is not to obstruct the landlord in carrying out these orders. 10. The tenant may arrange for access to the premises by the landlord/s and/or its authorised contractor to be at another time provided that it is earlier than that specified above. 11. If the landlord cannot gain access to the residential premises on the date agreed or in accordance with the above order, the landlord or their representative may engage a locksmith to gain entry to the premises and if the locksmith alters the locking device the landlord is to provide a copy of the door opening device to the tenant immediately. 12. Both parties are given leave to have this matter re-listed before the Tribunal if there are difficulties in complying with these orders. 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 Amendments 09 November 2022 - Amendments follow a review of the reasons for typographical and other obvious errors. 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 November 2022