Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tuitea v Liu [2023] NSWCATAP 65 Hearing dates: 1 March 2023 Date of orders: 2 March 2023 Decision date: 03 March 2023 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member Decision: (1) Leave is granted to the respondent to be legally represented. (2) The application to extend time to lodge the application to reinstate the appeal is refused. Catchwords: APPEAL – reinstatement after dismissal for non-appearance - principles to be applied where extension of time required Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Gallo v Dawson (1990) HCA 30; 93 ALR 479 Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 Kelly v Szatow [2020] NSWSC 407 Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Tomko v Palasty (No 2) [2007] NSWCA 369 Wallace v Price [2017] NSWCATAP 151 Texts Cited: None cited Category: Procedural rulings Parties: Melissa Tuitea (Appellant) Jiahui Liu (Respondent) Representation: Solicitors: Appellant (self-represented) Prudentia Legal Pty Ltd (Respondent) File Number(s): 2022/00367933 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Cited Date of Decision: 21 November 2022 Before: S Hennings, Member File Number(s): RT 22/37315 REASONS FOR DECISION Reinstatement of Appeal Summary 1. This is an application to reinstate appeal proceedings pursuant to s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The proceedings were dismissed due to the applicant's failure to appear at the first mention of the appeal on 21 December 2022, i.e. under s 55(1)(c) of the NCAT Act. The application was lodged out of time and is opposed. 2. For reasons which will become apparent, it has been important that I prepare this decision with some urgency. I regret any infelicity of expression or inaccuracy. 3. Section 55(2) provides as follows: The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers there is a reasonable explanation for that failure. 1. That is, if satisfied that there is a reasonable explanation for the failure to attend, the Tribunal has a discretion to reinstate the appeal. 2. For the reasons set out in this decision, I will refuse leave to extend time to lodge the application. Parties 1. If I had reinstated the appeal, I would have needed to clarify the role of the other occupants of the home, two of whom are the applicant's adult children. They are named in the Tribunal's order as respondents, but not ordered to pay rent or occupation fees. It is questionable whether they are properly parties to any appeal or to the proceedings at first instance. Having reviewed the Tribunal's Hearing Notes from 21 November 2022, and earlier records, it is clear they were tenants, with the applicant, of the respondent under a prior agreement. That agreement was terminated by the Tribunal with an order for outstanding rent of $12,632.00, on 8 March 2022. However, as possession was not delivered up, that balance of rent and occupation fee outstanding increased to approximately $22,000 by the time the new agreement with the appellant was entered into. The other occupants were not named in the Notice of Appeal and have not sought to participate in these proceedings. Arguably, they could apply for a correction of the Tribunal's order but, as there are no orders directly affecting them, I do not feel it necessary to do so where it has not been addressed. The Tribunal recorded that the new residential tenancy agreement, with the appellant alone as tenant, commenced on 21 July 2022. Background 1. The application relates to a decision (Decision) made by the Consumer and Commercial Division of this Tribunal on 21 November 2022, in the absence of the applicant, to terminate her tenancy. As I indicated above, she was the sole tenant of the respondent. Due to the changes to, and reversal of, the parties' respective positions throughout the proceedings, I will hereafter refer to the applicant as the appellant, for consistency and ease of reading. 2. In summary, the Tribunal: 1. Terminated the residential tenancy agreement under s 87 of the Residential Tenancies Act 2010 (NSW) (the RTA) for breach of the agreement by non-payment of rent; 2. Ordered that possession be delivered up to the respondent, but suspended the operation of the order for possession until 27 November 2022; 3. Provided machinery orders for the tenant to be notified of the orders and for calculation and payment of a daily occupation fee until the tenant delivered up possession; 4. Ordered the tenant to pay the amount the Tribunal found to be then outstanding for rent, of $11,581.43, meaning it was satisfied no rent had been paid during the term of the agreement; and 5. Made a finding under s 89(5) of the RTA that the tenant had frequently failed to pay rent. The significance of such a finding is that a warrant for possession may be executed even if the tenant subsequently, but before eviction, brings the rent up to date. 1. The Tribunal's order makes it plain that it gave oral reasons for its decision. In that regard, see an addendum to these reasons below. 2. Relevantly, the application made by the respondent at first instance had indicated that, as at the date of filing in August 2022, "[t]he tenants have more than $20,000 rent arrears." It also alleged that "[t]he tenant provided fraudulent documents to convince us the rent would be covered by the insurance." 3. The appellant indicates that she received notice of the decision on 25 November 2022. She lodged the appeal on 5 December 2022, within the required time to do so. With the Notice of Appeal, the appellant lodged an Application for a Stay of the Tribunal's orders. The grounds of the appeal, as they might be reframed, were: 1. That the Tribunal erred in its finding as to the amount of rent owing, as the appellant had made a payment toward rent of $6,800.00 on 21 November 2022 (the day of the hearing); and 2. The appellant was denied procedural fairness by the Tribunal proceeding to determine the matter in her absence, in circumstances where she was away attending a funeral overseas when the hearing was conducted and had sought an adjournment. 1. Importantly, in my view, the Notice of Appeal records, at page 3, the orders sought by the appellant. They were: 1. To reduce the order for outstanding rent to $4,781.43 (clearly to account for the purported payment of $6,800 on 21 November 2022); and 2. Not to "terminate under section 89(5) [of the RTA] as the agent did not include other rental payments". 1. There was no explanation for the apparent inconsistency between the first order sought in the appeal and the allegation that other payments toward rent had not been accounted for. 2. Nothing was lodged with the Notice of Appeal or Application for a Stay to support any of the appellant's contentions of error in the Decision. 3. The matter was referred to me in chambers on 7 December 2022 in respect of the Application for a Stay. I listed the appeal for callover and hearing of the application on 21 December 2022. I directed the appellant to lodge and serve evidence and submissions in support of the proposed stay by 12 December 2022 and the respondent to do likewise in response by 19 December 2022. I declined to grant an ex parte stay in respect of the order for possession at that time (there being no certified money order issued and therefore no risk the orders for rent could be enforced prior to the hearing date I set) and gave reasons. In summary, I indicated that: …there is no evidence of the alleged payments toward rent, but even if I accept the appellant's assertion that she paid the sum of $6,800 on the date of the hearing, that would be sufficient to demonstrate that the Tribunal's findings that there was significant rent outstanding to that point and that there had been a regular failure to pay rent, were objectively correct. The appellant is also still significantly behind in the rent on the Tribunal's findings, causing relative prejudice to the respondent if the stay is granted, even if only on an ex parte basis pending determination of the application. The appellant has demonstrated no willingness or capacity to maintain payment or part-payment of the rent, or to make a significant contribution to the current arrears, pending the determination of the application if an ex parte stay is granted. On the material currently before me the appeal appears to have been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695; Aquaqueen International Pty Ltd v Titan National Pty Ltd [2015] NSWCA 9 (McColl JA) at [48]. For those reasons, the interests of justice do not lead me to exercise my discretion to grant a stay on the material before me. The Appeal Panel may revisit the issue of an ex parte stay on compliance by the appellant with the direction herein to lodge and serve any further evidence and submissions in support of the stay, providing it is lodged and able to be considered before any warrant for possession is executed. Any evidence that the money order should be varied under s 43(3) of the NCAT Act can be considered at the hearing. 1. In compliance with the directions I made, the appellant lodged on 8 December 2022: 1. A payment receipt which appeared to depict payment from a Westpac account to the respondent's agent of $6,800 on 21 November 2022; 2. Travel itineraries for the appellant and her adult children, and information regarding a funeral which indicated, prima facie, that the appellant was out of the country to attend a funeral between 11 November 2022 and 17 December 2022 (I interpolate here to note that the appellant is from a culturally and, potentially, linguistically diverse background. I will take that into account in my considerations to the extent I am able on the evidence but my dealings with the appellant make it plain her command of English is of a high level); 3. An explanation for the tenants falling behind in the rent (which did not discriminate between the tenancies and predominantly raised COVID-19 related issues) and an offer to pay $800 per week toward rent and arrears, the rent at the time being $670 per week; 4. An email to the Tribunal of 18 November 2022 at 1 p.m., confirming a discussion with a Registry officer seeking an adjournment of the hearing scheduled for 21 November 2022 and: 1. Complaining of a lack of phone and internet reliability where the appellant was then located; 2. Complaining about damage to the property which the agent had failed to remedy; and 3. Claiming that "[s]ome of the non profitable organizations (sic) have also paid but are not included in their report." This last comment can only relate the rent ledger in my view; 1. An email to the respondent's agent dated 21 November 2022 (the date of the hearing leading to the Decision) at 9.41 am, apologising for the late notice but asking that the hearing be adjourned; and 2. An email to the Tribunal dated 21 November 2022 at 1.50 pm, indicating, relevantly: 1. That monies had been paid toward rent but not reflected on the rent ledger; 2. Alleging an unspecified agreement with a former agent of the respondent to compensate the tenants which should offset rent arrears; 3. Asking that, essentially, if the agreement was terminated a finding under s 89(5) RTA not be made and that the appellant be given until at least 17 December 2022 to pay the arrears. That email did not reiterate, in terms, a request for an adjournment. 1. The Tribunal's hearing had been scheduled to commence at 9.15 am on 21 November 2022. 2. Upon receipt of that material I granted an ex parte stay on the order for possession on 8 December 2022, in the following relevant terms: 1 In respect of the decision made on 21 November 2022 in matter number RT 22/37315 the operation of the order for possession is suspended until 5:00 PM on 21 December 2022 or finalisation of the appeal, whichever is the earlier in time. The preceding order is conditional upon Melissa Tuitea (APPELLANT): Ensuring the occupation fee, at least, is paid to date at all times whilst the stay is in force. The appellant should ensure this is done by no later than 9 December 2022, and thereafter on an ongoing basis. NOTE: Jiahui Liu (RESPONDENT) is free at any time to make an application for the stay granted by these orders to be lifted, if a condition is not complied with or if there are any other sufficient grounds for doing so. 2 The appellant should note that the extent of arrears, if any, as at the hearing of the stay will be a relevant factor in considering whether the stay will be continued pending the hearing of the appeal. 1. In making that order, I was satisfied that I had appropriately protected the appellant's right to remain in the premises and prosecute her appeal, including in relation to the order for the rent arrears, whilst balancing the respondent's position by ensuring, if the condition of the stay was complied with, that the rent would not fall further behind and increase the prejudice caused by granting the stay. 2. The respondent complied with the direction in respect of its material on 19 December 2022. The respondent lodged: 1. Submissions on the application for a stay; 2. A copy of the Westpac receipt purportedly paid to their agent's trust account in the sum of $6,800 on 21 November 2022; 3. A copy of their agent's trust account bank statement for the period 21 to 24 November 2022, demonstrating that the account number was different to the number the $6,800 was deposited to, in respect of one digit out of six; 4. An updated rental history report and rental ledger to the 19th December 2022, showing: 1. No payments toward the tenants' rent since 2 July 2022 from any source; and 2. Total arrears to date of $36,960 (because it did not differentiate between the tenancies); 3. Rent outstanding of: 1. $22,220 at around the date of the commencement of this tenancy; and 2. $34,280 at around the date this tenancy was terminated; 1. A separate document headed "tenancy ledger" but showing only the payments toward rent, which correspond with those in the document referred to in (4) above, but not the accumulation of the weekly rent. In other words, that document tallies the credits, but without "debiting" the weekly rent; 2. A letter, purportedly from a law firm and purportedly addressed to the appellant, dated 23 June 2022, indicating that she was soon to receive compensation in the sum of approximately $227,000 (I note the temporal connection between that date and the respondent's agreement to enter a new agreement with the appellant solely); 3. An email from the respondent's agent to that law firm dated 12 September 2022, purportedly confirming a discussion on 17 August wherein the law firm advised the agent that the appellant was not a client of the firm; and 4. An email, purportedly from someone at the same firm to the respondent's agent, dated 12 September 2022, indicating that "[f]ollowing our discussions earlier today I confirm the attached document is a fraud. Our letterhead has been forged, cut and pasted file number that belonged to one of our clients [who the email names] in 2016. The format of the document is also incorrect. Melissa Tuitea has never been a [name of firm] client." I should record two things about that email. First, of course, if the allegation of forgery is true it may have serious consequences. However, it has never been relied on in the proceedings before me by the appellant and bears no relevance to my determination. Secondly, if the email of 12 September 2022, purportedly from the law firm to the agent is valid, it would be an egregious breach of the named client's right to confidentiality for their name to have been used in that context, if that occurred without the client's consent. Given the uncertainty of the veracity of any of these issues, and where I do not need to decide them to resolve this application, I have redacted not only the client's name but also the name of the firm. 1. The respondent's material indicated that, prima facie, the condition I had placed on the stay of the order for possession had not been complied with. Prima facie, it also indicated that the appellant had neither paid rent under the current relevant agreement on any occasion nor contributed to the debt in respect of the prior agreement. 2. The callover and hearing of the application for a stay was conducted by me on 21 December 2022. The parties had been provided the details to appear via audio visual link or telephone. The appellant: 1. Did not appear; 2. Did not have anyone else, including any of the other occupants of the house appear for her; and 3. Did not seek an adjournment before the hearing was conducted. 1. I satisfied myself that the appellant had been sent the details of the hearing and of how to join it. After giving the appellant a reasonable opportunity to join, I dismissed the appeal for want of appearance under s 55(1)(c) of the NCAT Act. 2. After I dismissed the appeal, the appellant contacted the Registry to advise that she was in hospital and unable to connect to the hearing due to "poor reception." Why the appellant could not have used her phone to connect to the hearing, in accordance with instructions provided, if she was able to telephone the Registry is not recorded in the note made of that conversation. Nor does she explain it in this application. 3. As it transpires, the cheque used by the appellant to pay the lodgment fee on the Notice of Appeal was subsequently dishonoured, meaning the appeal was irregularly commenced in any event. 4. On 11 January 2023, the appellant lodged her first application to re-instate the appeal, however it was rejected by the Registry after the payment of the filing fee was dishonoured. 5. The appellant filed this application to reinstate the Appeal Proceedings on 15 February 2023. The payment of the filing fee was again dishonoured, but the appellant remedied that this morning after having been advised by Registry that the hearing today would not proceed if it was not paid prior. That means that the original filing fee on the Notice of Appeal remains unpaid but as I could re-instate the appeal on the condition that it be paid, nothing turns on that. 6. In preparation for today's hearing, I made directions that the appellant lodge and serve material in support of her application to reinstate the appeal by 21 February 2023. She did not comply with that direction. 7. I directed the respondent to lodge and serve material in reply by 28 February 2023. The respondent did not do so but, of course, the respondent was given nothing to reply to. 8. Yesterday, at 11.34 am, the appellant did lodge material in the application and serve it on the respondent. That material consisted of; 1. An application by the appellant to the Consumer and Commercial Division, dated 9 February 2022, but without evidence that it was lodged then, or at all. It seeks $23,000 compensation from the respondent and a repair order; 2. Attached photographs headed "damaged goods" and "damaged stuff." The photographs before me are indecipherable but I infer they purport to show damage to the appellant's belongings said to be caused by the respondent's failure to maintain the premises; 3. Another copy of the explanation for the tenants falling behind in rent, identical to that referred to at [16(3)] above; 4. Another copy of the Westpac receipt previously provided and referred to above; and 5. An order of Justice Garling of the Supreme Court of New South Wales, dated 17 February 2023, in the following terms: 1. In this matter I am satisfied that a stay of possession ought be ordered. 2. Order that the order for possession made by the NSW Civil and Administrative Tribunal in RT 22/37315 on 31 January 2023 be, and hereby is, stayed. 3. Order that the stay continue until further order of this Court, or until 5pm on 1 March 2023 or such other date as may be fixed by the NSW Civil and Administrative Tribunal after 1 March 2023. 4. For the avoidance of doubt, I direct that the respondent to this application, Jiahui Liu, by herself or her agent, Wessel Real Estate, forthwith permit the plaintiff, Ms Melissa Tuitea and members of her family, to re-enter and occupy the premises at [redacted] Scarlett Beach Street, Bardia NSW 2565. 5. I order that the defendant, by herself, her servants or agents, be restrained from interfering with the possession of the property at [redacted] Scarlett Beach Street, Bardia NSW 2565, by the plaintiff Melissa Tuitea, until further order of the Court at 5pm on 1 March 2023 or such later date as the NSW Civil and Administrative Tribunal may order. 6. Stand these proceedings over before the Common Law Registrar to 9am on 3 March 2023 for further directions. 7. Direct that service of this order on the defendant be effected by email to her agent, Wesell Real Estate Pty Ltd: rental@wesellestate.com.au. 8. Direct that such service take place by no later than 9am Saturday 18 February 2023. 9. Grant leave to the plaintiff to notify the Sheriff of this order by telephone and email as may be required. 10. Grant the parties to these proceedings liberty to apply on short notice. 11. Grant leave to the plaintiff to file in the Registry, a Summons in the form provided to me which I have initialled and dated today together with all affidavits in support. Considerations in respect of Justice Garling's order 1. At the hearing today, the respondent was legally represented, by leave, and without opposition from the appellant. 2. I was only provided with the appellant's material during the course of the hearing, including Justice Garling's (the Court's) order. The appellant did not lodge, and had not served on the respondent, the summons or affidavits referred to at 11 of the Court's order. The appellant points out, correctly, that she was not required to do so by the terms of the order. 3. It is apparent that order 2 of the Court's Order refers to a decision of the Tribunal made on 31 January 2023 to extend time to issue a warrant for possession based upon the original order for possession made 21 November 2022 (which is a subject of this appeal). I am satisfied that the Court's order is relevant to these proceedings, and not simply some other subsequent and unconnected proceedings between these parties. Whilst the parties put none of this information before me, I have reviewed the Tribunal's record to satisfy myself of these issues. 4. There are no other proceedings between these parties in the Tribunal scheduled to be determined today that I was pointed to or have located. I surmise, therefore, that the reference to the Tribunal making further orders (at 3 & 5 of the Court's orders), and in particular the reference at order 5 of the Court's order to extending restraint on the execution of the warrant for possession beyond today, can only be intended to provide for the potential for me to determine to do so today in these proceedings. 5. Whilst I consider the intervention of the Court in these proceedings to be a serious issue warranting careful consideration, it does not stay these proceedings. Nor am I satisfied that the Court's order is intended to do so, for the reasons above. I see no benefit in adjourning these proceedings whilst the Court considers making further orders on or after 1 March 2023, and think it likely that would lead to delay and confusion. Rather, I understand the Court's intent to be that I determine this application today, if otherwise appropriate, so that my decision can be considered when the matter is back before the Common Law Registrar on 3 March 2023. 6. If I am wrong in that, and do not reinstate the appeal and grant an extended stay, the appellant is protected from immediate eviction in any event. The warrant for possession which issued consequent on the Tribunal's decision on 31 January 2023 has now expired and a further application would need to be made by the respondent for a new warrant. That could not realistically occur before 3 March 2023. 7. Finally, the Court's order did not stay the Tribunal's order for payment of the occupation fee made on 21 November 2022, meaning the appellant is not excused by the Court's order from payment. The application to reinstate the appeal is out of time 1. In the application form eventually lodged 15 February 2023, the appellant has re-used an application dated 27 December 2022 and added some minimal commentary about her requested extension of time for lodging the reinstatement application. What the appellant records, relevantly, is "I previously posted this application dated 27/12/22 but the appeals tribunal have not received it due to the public holidays" and "I was told on 6 January 2023 to email the application." 2. Rule 36 of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules) provides that, unless an extension is granted under s 41 of the NCAT Act, an application to reinstate proceedings that were dismissed under s 55(1)(c) of the NCAT Act must be made within 7 days after the proceedings were dismissed, not including the date the order is provided to the party: Rules, r 6(2). 3. On any version of events, the application has been lodged significantly out of time. An extension of time to lodge the application? 1. I have power to extend time to lodge the application to reinstate the appeal under s 41 of the NCAT Act. 2. In Kelly v Szatow [2020] NSWSC 407, the Court summarised the principles that apply to an extension of time to appeal, which are apposite here. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the plaintiff's case and consideration of whether the defendants would be prejudiced by a granting of the application: see Tomko v Palasty (No 2) [2007] NSWCA 369 at [55]. 3. The appellant bears the onus of demonstrating that strict compliance with the timeframe would work an injustice: see Gallo v Dawson (1990) HCA 30; 93 ALR 479 ("Gallo"). In Gallo, McHugh J stated at [2]: "[2] …The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935: 'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.'" 1. On that basis, I should consider the reason for and length of the delay, the nature of the proceedings, any prejudice to the respondent if an extension of time is granted and the appeal is reinstated, or to the appellant if it is not. I also need to consider the prospects of the appellant succeeding in the appeal. Where no question of law is identified, I should consider the appellant's apparent prospects of obtaining leave to appeal. 2. The appellant attempted to explain the delay by virtue of what she described as difficulties caused by Australia Post and in her communication with the Registry. 3. Nothing had been lodged to substantiate either claim. I find neither explanation satisfactory for a delay of approximately seven weeks in properly lodging (if I ignore the subsequent dishonouring of the fee for the second time) the application. That is particularly the case in circumstances where the appellant was aware of the process and of the seven day time limit for lodgement of the application, as is apparent from her having completed the first version of her application on 27 December 2022 and the fact that the time limit is displayed prominently on the form itself. 4. Nor is there any explanation for the subsequent delay between the appellant lodging the first reinstatement application with its, subsequently declined, payment and the second application with its, subsequently declined, payment. 5. Whilst it was not raised by the appellant I have also considered whether the delay could properly be attributed to a lack of funds to pay the filing fee on the appellant's part. 6. Having considered that issue, on the evidence available to me, I reject it as a cause for the delay. Firstly, there is no evidence as to the appellant's financial circumstances. Secondly, the Tribunal's website makes it plain that a fee waiver or reduction is available if applied for and a party can demonstrate that it is warranted. Thirdly, the appellant tells me today that her adult children, at least, are working and, as I will come to, none of them are paying rent. Fourthly, the fee was not paid, in any meaningful sense, until this morning. 7. I consider the appellant's delay in lodging her application to be significant and unsatisfactorily explained. 8. I will return to the other considerations relevant to an extension of time after determining the apparent merit of the application to reinstate the appeal which, in itself, involves consideration of the apparent merit of the substantive appeal. Consideration of the application to reinstate the Appeal Proceedings A reasonable explanation for failing to appear on 21 December 2022? 1. I then need to consider whether the appellant had a reasonable explanation for her failure to appear on 21 December 2022. The only evidence I have, in that regard, is a one page Emergency Department patient report from the Liverpool Hospital, dated 21 December 2022. 2. That report indicates that the appellant was admitted to the hospital that day with back pain and knee pain and that she reported she was unable to walk. It reports that the appellant advised she had "never experienced pain like this before." She was administered morphine and admitted for tests. 3. The report is then signed as a copy by a Dr Ferguson on 22 December 2022. in addition to signing the report, the doctor then wrote their name. As best I can tell, the doctor's signature, name and date of 22 December 2022 are all photocopied on the document before me. There is then, in handwriting, the words "Discharge date – 03/01/2023". Under that record, the same doctor's name is written again, without a signature. Somewhat curiously, the doctor's name is written over an application of liquid paper. 4. Nowhere does the report indicate any diagnosis of a cause for the appellant's pain, however, clearly, the hospital was sufficiently concerned to administer morphine. An inference is available, I think, from the fact that the appellant was apparently admitted to the hospital for a period of 14 days that her condition was considered serious. None of that explains how it was that the appellant was able to telephone the Registry to seek an adjournment but not to appear at the hearing by telephone. Perhaps it is explained by the timing of issues occurring at the hospital which remain unknown to me. 5. If I am to err in this regard, I think I should err on the side of caution, given the importance of this matter and the potential prejudice to the appellant. On balance, I find that the appellant had a reasonable explanation for her failure to appear on 21 December 2022. 6. I will also proceed on the basis the appellant was admitted to hospital until 3 January 2023, despite what I think to be, prima facie, an anomalous situation that a busy emergency department doctor had the time and inclination to, presumably, liquid paper over and more clearly re-write their own name to attest to that issue. Would I exercise my discretion to reinstate the appeal (leaving to one side the extension of time required)? 1. The relevant principles were set out, albeit not exhaustively, in Wallace v Price [2017] NSWCATAP 151. 2. Notwithstanding there is an adequate explanation, the question is whether an order to reinstate the proceedings should be made as a matter of discretion. 3. Factors relevant in the exercise of the discretion include: 1. The nature of the appeal and the issues raised; 2. The strength of the appeal and its likelihood of success; and 3. Any injustice to the opposing party. 1. In respect of the claimed procedural unfairness, the appellant would also need to demonstrate practical injustice, in the sense described in Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 and Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151, to succeed in the appeal. That is, even if procedural unfairness is established, a new trial will only be ordered where doing so could possibly make a difference and a rehearing would not inevitably lead to the same result. 2. I acknowledge that it may also be argued that the Tribunal constructively failed to exercise its jurisdiction, by failing to deal with the application for an adjournment. However, I would not rush to that conclusion where the Tribunal gave oral reasons, which have not been put before me. 3. In respect of the challenge to the Tribunal's finding as to the amount of rent owed, the appellant would otherwise require leave to appeal on this issue if the appeal is reinstated. 4. The general principles applicable to the grant of leave are set out in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 ("Das") and Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 ("Lee"). 5. In Das, at [32]-[33], [35], Basten JA stated: "[32] The principles governing cases such as these have recently been restated in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. As Campbell JA noted (with the agreement of Young JA) at [22]: 'It is of some importance to reiterate the principles that were stated in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, where Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute.' [33] In Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Campbell JA, with the agreement of Young and Meagher JJA, expanded on his summary of Carolan, noting that Kirby P had recognised 'that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable': at [46]. … [35] In Coulter v The Queen [1988] HCA 3; 164 CLR 350, dealing with a challenge to a refusal of the South Australian Full Court to grant leave to appeal in a criminal matter, the majority noted that a leave requirement was a preliminary procedure 'recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention': at 356 (Mason CJ, Wilson and Brennan JJ). That statement is clearly applicable to civil, as well as criminal, appellate jurisdiction." 1. Similarly, in Lee, Bathurst CJ at [12] outlined the principles relevant to the granting of leave as follows: "[12] The principles upon which leave to appeal is granted are well established. Ordinarily it is only appropriate to grant leave concerning matters that involve issues of principle, questions of general public importance or where it is reasonably clear there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Zelden v Sewell [2011] NSWCA 56 at [22]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service [2012] NSWCA 219 at [10]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[34]." 1. During the course of her submissions the appellant confirmed that neither she, nor the other occupants, have made any payments towards the rent or occupation fee since the Tribunal terminated the tenancy on 21 November 2022. She attempted to explain that by uncorroborated claims of experiencing difficulty in contacting the agent and confusion over whether she had the correct account details to pay the rent. 2. I was not satisfied that I could properly accept any of those assertions. It is implausible in the extreme that the appellant was sufficiently aware of the respondent's agent's bank details to purportedly make a deposit of $6,800 to it on 21 November 2022, with five of the six digits of the account correct and in order, without the appellant knowing the correct account number. Nor, in the absence of any supportive evidence, do I accept that the respondent has contributed to any difficulty in allowing the appellant to pay the rent. 3. The appellant then raised, for the first time in any specific way, an allegation that various charitable or governmental organisations have paid 10 weeks of her rent to the respondent. 4. I asked her what evidence she had in that regard. She said that she had emails but that there had also been undocumented conversations of an unspecified nature. The appellant acknowledged that, given the importance of maintaining her tenancy, the production of these documents should have been her priority. She provided no proper explanation for failing to have done so. Despite the appellant's ongoing non-compliance with directions to lodge her evidence in these proceedings, I considered whether I should grant a short adjournment to allow the appellant to locate and produce the emails she refers to. I indicated that I might be prepared to adjourn the matter long enough for the appellant to do so, whilst still bringing the matter back before me to determine before the proceedings in the Court resume on 3 March 2023. The appellant then proceeded to give me a series of reasons why she would be unable to produce the documents within that time. 5. On that basis, I was not satisfied that I should adjourn but I did give the appellant an opportunity during the hearing to search her emails to find any relevant emails supporting her contention. In the time allowed, the appellant was able to locate only one email, which I had her read into the record. It did not indicate that any payment of rent had been made on her behalf. In the circumstances, I was not satisfied any further accommodation should be made for the appellant to provide evidence or that the matter should be adjourned. 6. At the conclusion of hearing from the appellant I was left in a position to make the following findings. Where I make a finding of fact, or that there is no evidence in a particular instance, it should be read as a finding "on the material and evidence before me": 1. The appellant has had sufficient direction, and ample time, to lodge and serve whatever evidence she relies upon to support the assertions she makes in these proceedings; 2. There is no evidence, or even a particularised assertion, that the appellant has paid any rent since the tenancy began; 3. There is no evidence that any charitable or governmental organisation has made any contribution towards the appellant's rent, in respect of this or the previous tenancy; 4. There is no evidence the appellant had $6,800 in her account on 21 November 2022; that that sum left the account that day; or to establish that, if it did, it did not 'bounce' back; 5. The sum of $6,800 was not paid to the respondent's agent's bank account on 21 November 2022 as alleged. Even if I am wrong in that, the appellant was still sufficiently behind in the rent to make it unlikely, as at 21 November 2022, that the proper exercise of the Tribunal's discretion to terminate the tenancy and delay possession would have led to an outcome which allowed her to still be in occupation now; 6. The appellant has not made it clear whether she asserts that the organisations made the payments of 10 weeks' rent before or after the tribunal terminated the tenancy, however, I will deal with both outcomes, below; 7. The appellant expressly disavows any occupants of the house having made any payment towards the rent or occupation fee since 21 November 2022; 8. The explanation for that is entirely unsatisfactory; 9. On the only evidence available to me, being the tenancy ledger to 19 December 2022 and the appellant's confirmation that there has been no subsequent payment, the current rent and occupation fee outstanding exceeds $20,000; 10. There is no evidence to establish, or from which a proper inference can be drawn, that the appellant or the other occupants can pay that amount; 11. There is no evidence to establish, or from which a proper inference can be drawn, that the appellant or the other occupants are willing or able to make ongoing payments toward the occupation fee if I extend time, re-instate the appeal, and renew a conditional stay. On that basis, I cannot be satisfied that there is any way the respondent can be protected from further, and ever increasing, prejudice if that occurs; and 12. The history of the appellant's conduct of the proceedings to date can give me no confidence that the appeal could be conducted in a manner which is just, quick, and cheap, or in a manner which minimises ongoing prejudice to the respondent, if the appeal is reinstated. The appellant's loss of her tenancy 1. As I indicated above, I consider the appellant's loss of her tenancy to be a serious issue. There is, notoriously, a rental crisis in New South Wales which will make it difficult for the appellant to obtain alternate housing if evicted in these circumstances. I understand her to be the carer for an infant child. I do not think that is an impermissible consideration in the exercise of my discretion as to whether she should be given an ongoing opportunity to prove error in the Tribunal's decision. I will weigh it on that basis. 2. However, I cannot foresee any outcome of the appeal, if reinstated, which would allow the appellant to maintain the tenancy. If I assume I am wrong, and the appellant did pay $6,800 toward rent on 21 November 2022, and the organisations did pay 10 weeks' rent in the period of this tenancy, the appellant would still be over 10 weeks and $6,700 in arrears. If, during the period the appeal was on foot, the appellant succeeded on her proposed damages claim entirely, there would be no cause for the Tribunal to offset it against the rent in this tenancy. The application and attached photographs purportedly showing damage predate this tenancy. 3. Further, if I extend time, reinstate the appeal, and reconsider the grant of a stay, I do not see how the exercise of my discretion could properly lead to a stay on the order for possession on any other condition more favourable to the appellant than the one I put in place on 8 December 2022, which the appellant did not comply with and has not demonstrated that she could or would do so in future. The appellant's loss of an opportunity to demonstrate that monies were paid toward the rent by others before the Tribunal terminated the tenancy. 1. The appellant has made assertions in this regard since at least 18 November 2022 (see [16(4)(c)] above) but despite being given several opportunities has failed to lodge a scintilla of probative evidence to support her assertions. Whilst the loss of opportunity, if I do not reinstate the appeal, is real, I cannot be satisfied it is meaningful. The appellant's loss of an opportunity to demonstrate that monies were paid toward the rent by others after Tribunal terminated the tenancy. 1. There is no prejudice to the appellant in terms of loss of monies in this regard. To collect the occupation fee ordered, the respondent will need to apply for an extension of time and for calculation of the fee and an order that it be paid. If that eventuates, the appellant will have a further opportunity to put evidence of the payments before the Tribunal, and for them to be taken into account. 2. To the extent it is argued that payments made by those organisations since termination of the agreement would have a bearing on the issue of a stay, even if 10 weeks' occupation fee had been paid after termination, the overall rent outstanding would remain in excess of $10,000 and, if the period since the 21 November 2022 was considered in isolation, the appellant would still be four weeks behind in rent for that isolated period. In the circumstances, an order for termination and prompt possession would still be the likely outcome. Outcome 1. Weighing those findings in consideration of whether I would exercise my discretion to reinstate the appeal if I thought I should extend time, I cannot be satisfied that it would be a proper exercise of my discretion to do so. 2. This application was lodged very late, without adequate explanation. If granted, it will cause significant prejudice to the respondent, who has already been without any rent for this property for about eight months. In total, the appellant, with the other occupants, are over $40,000 in arrears over the period of the two tenancies. On the evidence before me, the appeal has little prospects of success in a way which might actually benefit the appellant. Indeed, if I were redetermining the matter on the evidence before me today, a termination order with almost immediate possession would be warranted, without changing the findings as to rent or that the appellant had frequently failed to pay it. 3. As I would not exercise my discretion to reinstate the appeal, there is no utility in my extending time. Addendum 1. The order made by the Tribunal, in respect of outstanding rent is followed by a heading "Reasons" and an explanation of the way in which the figure to be paid is calculated. This is an unfortunate product of the Tribunal's internal order making system, and should not be read as the Tribunal's substantive reasons. Here, the Tribunal made it clear that it gave oral reasons. ********** 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: 03 March 2023