Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mirow v Mirow [2022] NSWCATAP 383 Hearing dates: 23 November 2022 Date of orders: 9 December 2022 Decision date: 09 December 2022 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member A Boxall, Senior Member Decision: 1. The application to extend time to appeal is dismissed. 2. Each party is to bear their own costs. Catchwords: APPEALS – No question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 41, s 60, s 80 Civil and Administrative Tribunal Rules 2014 (NSW), cl 25, cl 35, cl 38A Residential Tenancies Act 2010 (NSW), s 87 Cases Cited: Cominos v Di Rico [2016] NSWCATAP 5 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Megerditchian v Kumond Homes Pty Ltd [2014] NSWCATAP 120 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: Alexander Mirow (Appellant) Brett Andrew Mirow (Respondent) Representation: Appellant (Self-represented) Respondent (No-appearance) File Number(s): 2022/00277672 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2022] NSWCATCD Before: P Gardner and P Zammit, General Members File Number(s): RT 22/14694 reasons for decision Outline 1. This appeal, lodged on 16 September 2022, sought to challenge orders made on 10 June 2022, 28 July 2022, and 1 August 2022, well outside the 14-day period set by cl 25 Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) for proceedings of this kind. As a result, the appellant requires an extension of time in which to appeal. If that extension of time is not granted, the result is that there is no appeal. 2. For the reasons set out below, we are of the view that no extension of time should be granted. Background 1. The respondent (the landlord) is the owner of a property at Marayong which was determined to be the subject of a residential tenancy agreement with the appellant (the tenant). 2. Events relevant to this appeal are summarised below, each occurring during 2022: 04 Apr Application lodged and notice sent by Tribunal to the tenant 26 Apr Conciliation hearing, adjourned at the request of the tenant 16 May Application adjourned so the landlord could obtain advice 10 Jun Hearing, termination order made in the absence of the tenant 17 Jun The tenant lodged an application to set aside that order 27 Jun The termination order was stayed while submissions were made 04 Jul Date specified for vacant possession in the 10 June order 28 Jul Set aside application dismissed and stay order lifted 01 Aug A warrant for possession was sent to the Sheriff 17 Aug That warrant was executed 16 Sep Notice of appeal lodged 19 Sep Order made for the payment of an occupation fee 1. The termination order made on 10 June 2022 was based on s 87 of the Residential Tenancies Act 2010, due to the failure of the tenant to pay rent. 2. Further, the order made on 19 September 2022 was for the payment of $2,914.48, calculated as 68 days at $42.86, being the period from and including 11 June 2022 up to and including 17 August 2022. That period was from the day after the termination order made on 10 June 2022 until the tenant vacated the premises on 17 August 2022. There has been no appeal from that order. Scope and nature of internal appeals 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) against decisions made in the Consumer and Commercial Division of the Tribunal and internal appeals may be made as of right on a question of law. 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. As the appellant only raised matters said to constitute errors on a question of law, this appeal does not require a consideration of any challenge that requires leave (i.e. permission) to appeal. 2. Although cl 25 of the Rules set time limits for an appeal to be lodged, s 41 of the NCAT Act provides that the Tribunal may grant an extension of time. 3. The relevant considerations as to the exercise of the discretion were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22] and they are as follows: (1) Is there proof that strict compliance with the rules will work an injustice on the applicant? (2) In the context of a pending appeal, the expiration period for the appeal gives a vested right to retain the decision in question with the consequence that the time for appealing should not be extended unless the proposed appeal has prospects of success. (3) It will usually be necessary to consider: (a) the length of the delay, (b) the reason(s) for the delay, (c) the applicant's prospects of success, ie whether there is a fairly arguable case, and (d) the extent of any prejudice suffered by the opponents. (4) If the explanation for the delay is less than satisfactory and/or if the opponent as a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable. Documents considered 1. In deciding the appeal, we have had regard to: 1. the Notice of Appeal, received on 16 September 2022, 2. the Reply to Appeal, received on 13 October 2022, and 3. the documents lodged with that Notice and that Reply. 1. The respondent submitted a bundle of documents which contained pages 1 to 126. Those pages were received by the Tribunal on 21 November 2022. However, as the tenant said he had not received those documents, they have not been taken into consideration when determining this appeal. Notice of Appeal 1. In the Notice of Appeal, the grounds of appeal were expressed as follows: Was the Tribunal acting outside its jurisdiction when making orders on 10 June 2022, with the presumption of family members not intending such arrangements to have legal effect? If the Tribunal did not have jurisdiction to make orders, Then the Tribunal was wrong when making its decisions on 10 June 2022, 28 July 2022 & 01 August 2022. The appellant was not afforded procedural fairness by the tribunal because procedural directions made on 04 April 2022, were not complied. The appellant was not served or given any documents by the respondent for which he intended to rely on, the appellant was not afforded procedural fairness and there has been an extreme miscarriage of justice by the tribunal decisions made. The appellant was not afforded procedural fairness by the tribunal because the tribunal made its decision without hearing from each of the parties involved. By the tribunal not allowing the appellant's case to be fairly heard the tribunal has not afforded the appellant procedural fairness, a [biased] decisions made on 10 June 2022, 28 July 2022 & 01 August 2022. 1. A stay of those decisions was also sought in the Notice of Appeal, but no such stay was granted at the preliminary hearing held on 19 October 2022 which is not surprising since writ for possession had already been executed. Reply to Appeal 1. The Reply to Appeal recounted the orders made, suggested the tenant could have attended on 19 September 2022, noted that the time taken to lodge the appeal, and indicated that the landlord would be seeking an order for the tenant to pay his costs of the appeal. 2. In a covering email, dated 14 October 2022, the landlord set out a series of events which were said to have occurred after the eviction of the tenant on 17 August 2022, some of which involved the Police. Three event numbers were provided, and it was claimed the tenant is a person affected by the drug ICE. Hearing 1. The hearing was conducted using audio-visual link (AVL) facilities. At the outset of the hearing, tenant was in attendance but not the landlord. The Tribunal rang the telephone number for the solicitor who was at one stage representing the landlord, but he indicated he was no longer acting for him. 2. In case the landlord was having technical difficulties, the Tribunal rang the landlord's mobile telephone number and, as it was not answered, a message was left to indicate that another call would be made five minutes later. When that was done, there was again no answer, and another message was left. 3. Rule 35 of the Civil and Administrative Tribunal Rules 2014 provides that the Tribunal may proceed to hear a matter in the absence of a party who has failed to attend the hearing: (a) if it is satisfied that notice of the hearing was duly served on the party, or (b) if being satisfied that service of notice of the hearing has been duly attempted, or having given directions under rule 15 to bring it to the notice of the party, the Tribunal considers that justice requires that the matter be dealt with in the absence of the party concerned. 4. In this instance, the file copy of the call-over on 19 October 2022 reveals that both parties were, on that occasion, made aware of the date and time of the hearing and that document also served to provide notice of the hearing. There was nothing to indicate that the landlord has changed his address and nothing on the Tribunal's file to indicate that the copy of the orders made on 19 October 2022 that was sent to the landlord was returned to sender. 5. It was in those circumstances that the Tribunal decided to proceed with the hearing of the appeal. 6. After the hearing had concluded, the registry advised that the landlord had difficulties with the AVL link and tried to use his telephone to participate in the hearing but was unfortunately given the incorrect dial-in details. For the reasons set out below, the absence of the landlord has not affected the outcome of this appeal. 7. After identifying the documents, the tenant was given an opportunity to make submissions in relation to both the appeal and the question of whether an extension of time should be granted. Those submissions are summarised below. Tenant's submissions 1. The Tribunal was reminded that the termination order made on 10 June 2022 was made in the absence of the tenant who said he has been homeless since the writ of possession was executed. He said he wanted the matter to be heard and that the primary question was whether the Tribunal did the right thing on 10 June 2022 when the termination order was made. 2. As to the time taken to lodge the Notice of Appeal, the tenant said he had issues with his telephone, which was stolen, and that he did not have access to emails until after the set aside application was finalised on 28 July 2022. The result was that he was not aware that the set aside application had been finalised until August 2022. He also said he had a total of fifteen court cases in progress at that time and that he was self-represented. Consideration 1. The issues which require determination are: 1. whether the tenant has established there was an error on a question of law, 2. whether an extension of time should be granted, and 3. whether an order for costs should be made. 1. It is noted that an appeal does not provide a losing party in the Tribunal below with an opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Rather, an appeal requires a consideration of whether there was any error in the decision that was made. 2. The reasons provided in support of the decision made on 10 June 2022 reveal a consideration of whether there was a residential tenancy agreement between the landlord and the tenant, that there was evidence of an oral tenancy agreement, that there had been payment of rent, that there were arrears of rent, and that the termination notice complied with the formal requirements. 3. The reasons provided in support of the dismissal of the set aside application on 28 June 2022 record that the tenant had "failed to address the substantive issue regarding the rental arrears". 4. 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. 1. Having looked at all the available material, we are unable to discern a ground that may raise either a question of law or a basis for granting leave to appeal. 2. It is also relevant to note that, to the extent that the tenant did not have an opportunity to present his case on 10 June 2022 due to his absence, he had an opportunity to present his case during the set aside application. 3. Simply stated, the landlord's case was based on a failure to pay rent under a residential tenancy agreement and the tenant does not appear to have had either a defence to that claim or any other reasons that would warrant an exercise of the Tribunal's discretion in his favour, either on 10 June 2022 at the hearing, or subsequently when the set aside application was considered and determined on 28 July 2022. 4. While the Notice of Appeal also referred to a decision dated 1 August 2022, that was only the issue of a writ of possession which was an administrative consequence of the decision made on 28 July 2022 when the set aside application was rejected. 5. As to the explanation for the delay in lodging the appeal, an appeal in relation to the orders made on 10 June 2022 should have been lodged by 24 June 2022. The Notice of Appeal was not lodged until 16 September 2022. 6. In short, it took 14 weeks to do what should have been done in 2 weeks. Even if the tenant's explanation of not learning of the outcome of the set aside application until August 2022 is accepted, there is no explanation for the period of about a month after that. 7. Even if this appeal is treated as being an appeal against the 28 July 2022 decision to dismiss the application to set aside the orders made on 10 June 2022, and even if the explanation of the tenant for the time it took for him to become aware of that decision is accepted, there remains a period of about a month for which there is no adequate explanation. 8. When the Tribunal is weighing up the considerations set out in Jackson, the most important aspects are the explanation of the delay and the prospects of the appeal. If either of those matters is strong, an extension of time is commonly granted. However, in this case, neither of those aspects is strong. 9. By reference to what was said in Jackson, there are two reasons why the time for lodging the Notice of Appeal should not be extended. First, since there is no adequate explanation for the delay and the grounds raised in the appeal cannot be said to be fairly arguable. Secondly, either on 24 June 2022 (when the period for an appeal from the termination order was made on 10 June 2022 expired) or on 12 August 2022 (when the period for an appeal from the dismissal of the set aside application made on 28 July 2022 expired) the appellant acquired a right to retain the decision in question with the consequence that the time for appealing should not be extended as the appeal does not have prospects of success. Costs of the appeal 1. The respondent has sought an order for his costs in the appeal. 2. By reason of cl 38A(2) of the Rules, the costs of this appeal are governed by the provision which applied at first instance. As a result, s 60 of the NCAT Act applies when considering the costs of this appeal. 3. The effect of s 60 of the Act is that s 60(1) provides that "Each party to proceedings in the Tribunal is to pay the party's own costs" but s 60(2) relaxes that default position by providing that "The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs". The following non-exhaustive list of considerations is set out in s 60(3): (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter the Tribunal considers relevant. 1. Although it common for parties to focus upon whether any of those individual considerations apply, the Tribunal is required to make a global assessment of whether there are special circumstances, having regard to the matters set out in subsection 60(3). 2. It is well-established that the adjective "special" requires circumstances that are out of the ordinary but do not need to be extraordinary or exceptional: Megerditchian v Kumond Homes Pty Ltd [2014] NSWCATAP 120. 3. Since s 60(2) commences with the words "The Tribunal may award costs …", it is clear the Tribunal has a discretion which must be exercised. It is necessary to consider not only whether there are special circumstances but also whether those circumstances warrant an award of costs. 4. The fact that the landlord chose to retain a solicitor at some stage during the life of this appeal does not necessarily mean that an order should be made for the costs of doing so to be recovered from the tenant since, regardless of whether the landlord is legally represented, the question is whether the test imposed by s 60, namely that there are special circumstances warranting an order for costs, is satisfied in this case. 5. As we are not satisfied that there are special circumstances in this appeal, the default position applies, namely that each party is to bear their own costs of the appeal. Conclusion 1. For the reasons indicated above, the following orders are made: 1. The application to extend time to appeal dismissed. 2. Each party is to bear their own costs. 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