Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Le v Silverwater Projects Pty Ltd [2022] NSWCATAP 382 Hearing dates: 7 December 2022 Date of orders: 9 December 2022 Decision date: 09 December 2022 Jurisdiction: Appeal Panel Before: R Titterton OAM, Senior Member G Ellis SC, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. Catchwords: APPEAL – No question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) - s 41, s 80(2), Schedule 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW) - cl 25 Residential Tenancies Act 2010 (NSW) - s 87 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Le Le (Appellant) Silverwater Projects Pty Ltd (Respondent) Representation: Appellant (Self Represented) D Jaglic (Respondent) File Number(s): 2022/00286836 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 9 September 2022 Before: J Alder, General Member File Number(s): RT 22/36947 reasons for decision Outline 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 9 September 2022. Simply stated, the landlord's application was successful, and the tenant appeals that decision. 2. The issues raised are (1) whether there was an error on a question of law, and (2) whether there is a basis for granting leave to appeal. For the reasons set out below, we have decided both those matters against the tenant with the result that leave to appeal should be refused and the appeal dismissed. Background 1. On 11 June 2021 the tenant, plus two others, signed a tenancy agreement with the then owner of a house in Canley Heights for a term of six months with rent of $480 per week payable in advance from 12 June 2021. That property was subsequently sold to the landlord. 2. In an application lodged on 16 June 2022, the landlord sought termination of the tenancy under s 87 of the Residential Tenancies Act 2010 (NSW) (RTA), based on non-payment of rent. Following a hearing on 8 September 2022, orders were made against all three tenants, and reasons were published, the next day. 3. Those orders included a termination order, an order for possession that was suspended until 29 September 2022, and an order that the tenant, Thi Phuc Nguyen and Kinh Tinh, pay $2,754.44 by that day, comprising arrears of rent of $2,551.42 plus a total of $203.02 for water usage. 4. On 21 October 2022, both parties were granted leave to be legally represented and they were advised that the appeal had been listed for hearing on 7 December 2022. On 8 November 2022, the tenant's application for the orders made on 9 September 2022 to be stayed was withdrawn. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: NCAT Act, s 80(2). 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins, at [84], the Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice." Submissions and evidence 1. In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal and accompanying documents. 2. The Reply to Appeal and accompanying documents. 3. The tenant's submissions, received on 3 December 2022. 4. The landlord's submissions, received on 7 November 2022. 1. The tenant maintained that she had not received the landlord's documents, said to have been posted to the Cabramatta address provided by the tenant who did not indicate any other address. However, for the reasons indicated below, even if this appeal were to be considered based only the tenant's documents, the outcome would not be different. Notice of Appeal 1. The decision was made on 8 September 2022 and the tenant received notice of that decision on 9 or 10 September 2022. The Notice of Appeal is dated 19 September 2022 and appears to have been received by the Tribunal on 23 September 2022. As a result, the appeal is within of the 14-day period specified in cl 25 of the Civil and Administrative Tribunal Rules 2014. Grounds of Appeal 1. In the Notice of Appeal, the grounds of appeal were expressed as follows: There is no rent arrears whatsoever to Silverwater Projects P/L as it has wrongly claimed. Rent has been paid from 11/3/0222 – 22/9/2022 s 196 days. Total rent was $13,440. – 196 days x $68.57 = $13,440. It was a hiccup of late payment from the beginning caused by lack of agent representation as LJ Hookers Real Estate denied acting for the new owner after I paid them $960 on 1/3/2022 because Mr Alaa Alameri did not contact them. On or about 12/4/2022, Mr Alaa Alameri, as Silverwater Projects P/L came to see me and claimed he had settled the property on 11/3/2022, and requested to pay rent to his Silverwater Projects P/L bank account, starting from dated 11/3/2022 onward. He did not provide any documents to me to prove that he is the new owner. However, as a goodwill gesture, I did pay rent to Silverwater Projects P/L account from 25/3/2022 to 16/6/2022 total of: $5,760, and to Century 21 Real Estate from 17/6/2022 to 22/9/2022, total of $6,720. Plus $960 prior to LJ Hookers, made a total rent paid from 11/3/2022 to 22/9/2022 is: $13,440 (196 days x $68.57 = $13,440). Leave to appeal 1. Leave to appeal was sought on the basis that the decision was not fair and equitable, that the decision was against the weight of the evidence, and that there was significant new evidence now available that was not reasonably available at the time of the hearing. 2. The new evidence was said to be an 11 March 2022 letter advising the tenant of the sale of the property to the landlord and bank statements for the period from 1 March to 7 September in 2022. It was said that those documents were not presented at the hearing because the tenant did not know the Tribunal needed copies of bank statements and that reliance had been placed on rent payment receipts to prove that the rent payments were up to date. Tenant's submissions 1. The tenant said the decision was not fair and equitable because she was not given more time, to enable her to provide her bank statements as the hearing was not adjourned. She claimed that her rent was not in arrears because she had paid the landlord all the rent that was due after 11 March 2022. Indeed, she suggested she had paid rent up to 20 October 2022 despite being evited on 11 October 2022. Landlord's submissions 1. Submissions for the landlord referred to the first hearing on 28 July 2022 and the second hearing on 8 September 2022. It was contended that the tenant had only paid rent to 18 February 2022 when the landlord became the owner on 11 March 2022 and that the tenant, in calculating rent payable from 11 March 2022, was acting under the belief that she did not have to pay for the arrears of rent as at the date when the landlord became the owner. Reply 1. The tenant repeated her claim to have paid the rent due from 11 March 2022. Consideration 1. As was indicted at the outset of the hearing, an appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing". 2. From the reasons published on 9 September 2022, it appears that the payments for which the tenant contends were not in dispute and that the problem was that those payments did not result in the rent being paid up to date. It was noted that the tenant "concedes that she did not pay rent for a period in January and February 2022 after requests to rectify were ignore by the former owner". Periods of four weeks and six weeks when no rent was paid were noted. Further, it was noted that the other two tenants were no longer living at the premises at the time of the hearing. 3. The absence of the tenant's bank statements would not appear to have made any difference to the outcome because what was in issue was not what payments had been made but to what date the rent had been paid. Further, there is nothing to suggest that the tenant sought an adjournment of the hearing on 8 September 2022. 4. As the tenant's obligation to pay rent arose because of the residential tenancy agreement, the sale of the property only involved a change in the identity of the landlord: that sale did not create a new agreement between the parties to these proceedings such that arrears at the date when the sale of the property was finalised ceased to be owing. 5. The tenant has failed to establish any error in what occurred at first instance. She has not demonstrated any error on a question of law and, following the approach suggested in Cominos, we are unable to discern any such error. 6. The decision cannot be said to have not been fair and equitable and was not against the weight of the evidence. What was said to constitute fresh evidence was not fresh evidence but evidence the tenant now wishes she had provided to the hearing. That evidence only goes to the payments that were made and does not address the date to which rent was paid when those amounts were received. As none of those three claims has been made out, there is no basis for a grant of leave to appeal. 7. The following matters are noted: 1. An earlier hearing on 28 July 2022 resulted in a termination order and a money order but those orders were later set aside due to the absence of the tenant on that occasion. 2. As the landlord obtained vacant possession on 11 October 2022, the only remaining issue is the money order that was made. 3. Although the orders made on 8 September 2022 were made against all three tenants, only one tenant has pursued an appeal from those orders. 4. When the issue is whether there are arrears of rent, it is not enough to refer to what was paid as it is also necessary to consider what was due and when. As a result, the fact that a payment is made and received on a particular day does not mean the rent is paid up to that day. 5. Since were provided with copies of each of the documents that were before the member at the hearing on 8 September 2022, we were able to see what evidence was before the Tribunal at that hearing. 6. While the tenant referred to a claim that she was owed nine days' rent because she paid to 20 October 2022 when she was evicted on 11 October 2022, that is not a matter that forms part of this appeal. Nor is the position in relation to the rental bond a matter that can be considered in this appeal. Conclusion 1. For the reasons set out above, the orders that will be made are as follows: 1. Leave to appeal is refused. 2. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2022