Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dux v Medina [2023] NSWCATAP 106 Hearing dates: 6 April 2023 Date of orders: 14 April 2023 Decision date: 14 April 2023 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member L Wilson, Senior Member Decision: 1. Appeal allowed. 2. Order 1 of the Tribunal made on 10 February 2023 is set aside. 3. In lieu thereof, order that time for the lodgement of the landlord's application be extended up to and including 16 January 2023. 4. Order that the residential tenancy agreement be terminated immediately, and possession be given to the appellant on the date of termination. 5. The order for possession is suspended until six weeks from the date of this decision. 6. The respondents shall pay the appellant a daily occupation fee at the rate of $78.57 per day from the day after the date of termination until the date vacant possession is given to the appellant. 7. Within 60 days of the date for possession of the premises specified in these orders the appellant may request a relisting of the application before the Consumer and Commercial Division of the Tribunal to determine the amount of the occupation fee owing. Catchwords: ADMINISTRATIVE LAW - particular administrative bodies - NSW Civil and Administrative Tribunal – exercising jurisdiction – requirement to determine a live issue before the Tribunal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 41, 81(1) Residential Tenancies Act 2010 (NSW), s 83(2) Residential Tenancies Regulation 2019 (NSW), reg 39(2) Civil and Administrative Tribunal Rules 2014 (NSW), r 6(2) Cases Cited: Khan v Kang [2014] NSWCATAP 48 Panegyres v Medical Board of Australia [2020] WASCA 58 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Texts Cited: Nil Category: Principal judgment Parties: Henrik Dux (Appellant) Emily Medina (First Respondent) Giovanni Mellios (Second Respondent) Representation: K Neuschwanger (Agent) (Appellant) C Brown, Illawarra and South Coast Tenants Advice and Advocacy Service (First and Second Respondent) File Number(s): 2023/00058502 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 14 February 2023 Before: D Barnetson, General Member File Number(s): RT 23/02854 REASONS FOR DECISION 1. This is an appeal by a landlord from the dismissal of the application he brought against his tenants for the termination of their residential tenancy agreement and for possession of the rental premises. 2. The Tribunal dismissed the landlord's application because it was lodged three days out of time. During the hearing the Tribunal considered whether time for the lodgement of the landlord's application should be extended but made no order and gave no reasons in relation to that issue. 3. The question in this appeal is whether the Tribunal erred in relation to those omissions. In our opinion the Tribunal did err in failing to address and determine a necessary issue which had been a live issue before the Tribunal. Background 1. The parties entered into a residential tenancy agreement for a period of three months commencing on 22 April 2022 and ending on 21 July 2022. 2. On 8 July 2022, the first respondent, Ms Medina, emailed the landlord's agent about the possibility of a new lease. 3. On 12 July 2022, Ms Medina emailed the agent again and said: "Thanks for chatting with me and confirming that the landlord has not yet been in contact with you. I understand that the owner is on holidays overseas for 3-6 months. There is a possibility that they may decide to move in with their in-laws when they return, otherwise they will move back into the property. Can you please correct me if I have misunderstood? Could you please let us know as soon as possible how long is feasible in the property, as we have to decide whether to accept this offer from another property." 1. On 13 July 2022, the agent emailed Ms Medina and said that she had asked the landlord if he was happy for her to enter into a new lease with the respondents for six or twelve months. She told Ms Medina that the landlord definitely did not want the respondents to vacate and were happy for them to stay there. 2. Later that day Ms Median emailed the agent and said: "That's really great news, thank you. That sounds promising, and as I said, it's our preference to stay. We'd need to sign a lease, or at least have some assurance in writing by midday. I am sorry but we don't want to miss out on living with some security. It's been a big move out of Sydney and we want to secure either of the places in the area for at least the next 6-12 months. Can you please let us know ASAP if they respond to your question about the duration on lease?" 1. Later still on 13 July 2022, Mr Mellios, the second respondent, emailed the agent and said: "I just want to confirm the details of our conversation on the phone this morning. It's my understanding that you will be in contact with the landlord about us signing a 12 month lease and you will contact us soon after so we may sign it. Is this correct? 1. On 4 August 2022, the agent emailed the tenants and said: "I have just spoken to the owner and they don't want to sign a new lease but are living somewhere else for the next 12 months and would like to keep you on a month to month at the moment. I do apologise for this, I did push for a new lease as much as possible." 1. On 14 September 2022, the landlord's agent issued a 90-day no-grounds termination notice. The 90 days expired on 13 December 2022. 2. Six days before the expiry of the 90-day termination notice, on 7 December 2022, the tenants emailed the agent and said: "We have been unable to secure a new rental property and are now concerned about our upcoming vacate (sic) date. Would the owner agree to a one month extension of the lease lo allow us further time to secure another home? … We would like to request an extension to the 16th January 2023 it that is agreeable to the landlord." 1. On 9 December 2022, the agent emailed the tenants and said the landlord was agreeable to an extension if the tenants agreed to allow his builders access to the premises for inspections because the owner intended to undertake renovations. 2. For various reasons the tenants refused to allow that access and the landlord refused to grant them the extension requested. 3. Section 83(2) of the Residential Tenancies Act 2010 (NSW) and reg 39(2) of the Residential Tenancies Regulation 2019 (NSW) together provide that any application by a landlord to terminate a tenancy must be made after the termination date specified in the relevant termination notice, must be made only if vacant possession of the premises is not given as required by the notice, and must be made within 30 days after the termination date specified in the relevant termination notice. 4. The 30th day after the date in the termination notice was Friday, 13 January 2023 since 13 December is not counted – r 6(2) of the Civil and Administrative Tribunal Rules 2014 (NSW). The tenants were aware of this date from the terms of the termination notice. 5. The landlord filed his application to terminate the tenancy on Monday, 16 January 2023, being three days out of time. 6. On 23 January 2023, the tenants declined an offer of a rental property that they considered unsuitable and unsafe. They said they did so because they were aware that any application for termination by the landlord was to have been filed by 13 January 2023 and they considered the personal costs of accepting the offer (of the unsuitable premises) were higher than the risks of rejecting the offer. They thought that time limits (for lodging an application with the Tribunal to terminate a tenancy) did not apply without reason and said that if they knew that the landlord was entitled to an "automatic extension of time" their decision would have been weighted towards accepting the unsuitable property for six months. 7. The tenants were served a copy of the landlord's application on 27 January 2023, some 11 days after the application was lodged. 8. The matter was listed for a Conciliation and Group List (Hearing) on 10 February 2023. 9. On that occasion the tenants raised the issue of the late filing of the application. 10. We were not provided with a copy of the sound recording of that hearing but the tenants described what occurred in a joint statement dated 27 March 2023 which we admitted on the appeal as follows: "… we explained that we thought the application was made out of time. The Member looked over the documents again and explained the application was made out of time. She also asked the real estate agent why the application was late and allowed time for each party to briefly summarise the effect of the late application. The parties disagreed about whether the time should be extended. The Member took time to review the landlord's documents before stating her decision to dismiss the application." 1. That description of events satisfies us that the issue of a possible extension of time being granted to the landlord for the filing of his application was raised and was a live issue before the Tribunal. 2. The only order made by the Tribunal at the conclusion of the hearing was: "The application for termination and possession is dismissed." 1. The reasons given for that order were: "The Tribunal has no jurisdiction to determine the application for termination and possession because the application for termination was lodged more than 30 days after the termination date specified in the notice (clause 22 of the Residential Tenancies Regulations 2010)." The Appeal 1. The landlord appealed claiming that, contrary to the Tribunal's reasons, the Tribunal did have jurisdiction to determine the application because it had power under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") to extend the time for lodgement, either on the application of a party or of its own motion. 2. Section 41 says: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. In very competent written submissions the tenants submitted that the landlord had made no application for an extension of time, said that the landlord challenged the Tribunal's "implied decision not to, of its own motion, extend the period of time", referred to the well-known principles applying to appellate review of discretionary decisions and, for completeness, referred to the well-known principles applying to the obligation to give reasons on the assumption that there was an appeal point based on those principles. That short summary does not do the tenants' written submissions justice but suffices to summarise their position. 2. It seemed to us however that the real issue on the appeal was whether the Tribunal erred in not making any order in relation to the extension of time, that issue having been raised before the Tribunal. We drew this to the attention of the parties at the commencement of the appeal and heard their submissions on it. Decision 1. In our opinion the Tribunal erred in failing to determine the extension of time issue which was a live issue before it. 2. In Khan v Kang [2014] NSWCATAP 48 the appellant made a claim for defective or incomplete work and, in addition, claimed $800 in respect of what she alleged was excess timber that she had been required to order as a result of the mismeasurement or misquoting by the respondents. The Tribunal dismissed her claim in its entirety but said nothing about the claim for $800. The Appeal Panel said: "27. … The Tribunal below dismissed the entirety of the appellant's claim but did not refer to this excess timber claim at all in the reasons for decision. No evidence was reviewed concerning it. No findings of fact were made. No exposition of the relevant law was given. No application of the law to the fact can be found in the reasons for decision. The Tribunal below simply dismissed the application in its entirety. 28. It is possible to characterise what occurred either as a failure to give reasons for the Tribunal's decision or a failure to exercise the jurisdiction conferred on the Tribunal and invoked by the appellant in relation to this claim in respect of excess timber - see Waterways Authority v Fitzgibbon [2005] HCA 57 at [129] - [130] and Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [42]. Whichever way it should be characterised, the Tribunal's failure to consider such a claim at all in its reasons for decision amounted to an error of law by the Tribunal below. ..." 1. In one of the cases cited, namely Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33, Basten JA, with whom Beazley JA (as Her Excellency then was) said at [42]: "A ground of failing to give 'any or any proper reasons' is frequently used without sufficient attention to the precise nature of the complaint. As has been noted on numerous occasions, it is important to distinguish between the situation where a judge has made and recorded a finding, without explaining the basis for the finding, and one in which the true complaint is that no finding has been made: see Waterways Authority v Fitzgibbon [2005] HCA 57 ; 79 ALJR 1816 at [129]–[130] (Hayne J). If a particular finding is a necessary step in support of the court's orders, the failure to make the finding may constitute an actual failure to exercise the jurisdiction conferred on the court, despite the appearance of exercise. However, the complaint is then not properly one of a failure to give reasons, but of a failure to address and determine a necessary issue." 1. In our view the proper characterisation of the Tribunal's omissions in this case was a failure to exercise its jurisdiction to address and determine a necessary issue, being the extension of time issue, which was a live issue before it. 2. The issue had been raised, and, based on the description provided, the Tribunal heard submissions on it together with evidence. In those circumstances it was a necessary issue to determine and provide brief reasons for the determination. 3. In Panegyres v Medical Board of Australia [2020] WASCA 58 Vaughan JA said at [271], citing the passage we have quoted above from Resource Pacific: "A failure to make all necessary findings of fact having regard to the available evidence - where constituting a failure to address and determine the material issues raised by the case - may amount to a constructive failure by the Tribunal to exercise jurisdiction." 1. In our opinion it was an error of law for the Tribunal not to determine the extension of time issue in the circumstances of this case. For that reason, the orders of the Tribunal should be set aside. 2. It is appropriate in this case that we determine the landlord's application pursuant to s 81 of the NCAT Act. 3. The first issue to determine is whether time should be extended for the lodgement of the landlord's application. 4. In our opinion time for the lodgement of the landlord's application should be extended up to and including 16 January 2023 for the following reasons. 5. The delay was short, being three days two of which were weekend days. 6. The landlord said the reason for the delay was his granting of the extension of time first requested by the tenants on 7 December 2022. True it is that the landlord did not agree to this extension in writing, and true it is that no evidence was given by the landlord to that effect, but the evidence relied on was the fact that the application was not filed until that day, being 16 January 2023. In other words, the fact is that the tenants were given until 16 January 2023 without proceedings having been commenced against them prior to that date. 7. The tenants said they were prejudiced because they had passed up the opportunity of renting the premises earlier referred to and which they had found unsuitable. However, that is prejudice which has arisen, at least in part, from their lack of legal knowledge (being the power under s 41 of the NCAT Act to extend time) and thus a mistaken assumption about the certainty of the 30-day limit applicable to commencing termination proceedings. 8. In addition, the force of the submission is somewhat weakened by Ms Medina's email to the agent on 19 January 2023 wherein she said: "I understand that your property is not for us, no worries at all. I am just worried for future applications as we cannot secure a home. We have already overstayed our 90 Day Notice as we have nowhere to move, no family." 1. This email rather suggests she was aware that the 30-day time limit was not set in stone. 2. The landlord submitted that had he filed his application on 13 January 2023 it is likely that the application would have taken the same period to come to the notice of the tenants, namely eleven days later (being 24 January 2023) and thus one day after the tenants rejected the other property. In other words, had he filed his application within time on 13 January, the tenants would still have rejected the unsuitable property. 3. That submission involves a degree of speculation which is probably unwise to engage in. Suffice to say that we do not accept that the tenants suffered from substantive prejudice by reason of the fact the landlord's application was filed on 16 rather than 13 January 2023. As earlier noted, at least part of their thinking was based on an erroneous assumption that time limits could not be extended, they knew there was a risk in rejecting that property (see [18] above) and they knew they'd overstayed their 90-day notice period. By 23 January they had had 131 days' notice of the termination of their tenancy (a little over four months). 4. The tenants also submitted there was no prejudice to the landlord if his application was refused. We do not accept this submission. The landlord is the owner of the premises and, subject to the tenants' rights, may use it as he sees fit. A delay in him being able to do so is a form of prejudice. 5. This appeal was heard on 6 April 2023. By the time of this hearing the tenants have had six months and 23 days' notice of the termination of their tenancy. 6. In all those circumstances we consider it appropriate to extend the time for the lodgement of the landlord's application. 7. Ms Brown properly conceded that there was no other ground upon which the landlord's application could be resisted, the termination notice otherwise being compliant with the various statutory obligations. 8. In the tenants' written submissions, a submission was made to the effect that during the tenancy the tenants had been given a verbal assurance from the agent in July 2022 that they would be given a 12-month lease and thus the landlord is estopped from denying them that lease. 9. We do not agree that the evidence establishes the facts contended for. We have set out the communications in July and August 2022 about a possible lease above. Those communications, taken as a whole, do not amount to the agent offering a lease. The possibility was discussed, and the agent tried to achieve that goal for the tenants, but no firm offer to that effect was ever made. 10. Therefore, the landlord's application should be granted, and the residential tenancy agreement terminated. 11. The tenants requested a stay of 12 weeks on the order for possession on the basis that vacancy rates in the local area were under 1% and they were suffering from some adverse personal circumstances. The landlord suggested two weeks. 12. In our opinion it is appropriate to stay the order for possession for six weeks. Orders 1. We make the following orders: 1. Appeal allowed. 2. Order 1 of the Tribunal made on 10 February 2023 is set aside. 3. In lieu thereof, order that time for the lodgement of the landlord's application be extended up to and including 16 January 2023. 4. Order that the residential tenancy agreement be terminated immediately, and possession be given to the appellant on the date of termination. 5. The order for possession is suspended until six weeks from the date of this decision. 6. The respondents shall pay the appellant a daily occupation fee at the rate of $78.57 per day from the day after the date of termination until the date vacant possession is given to the appellant. 7. Within 60 days of the date for possession of the premises specified in these orders the appellant may request a relisting of the application before the Consumer and Commercial Division of the Tribunal to determine the amount of the occupation fee owing. 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: 14 April 2023