Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sesay v Duran [2023] NSWCATAP 124 Hearing dates: On the papers Date of orders: 09 May 2023 Decision date: 09 May 2023 Jurisdiction: Appeal Panel Before: K Ransome, Senior Member Decision: (1) An extension of time to file the set aside application is refused. (2) The set aside application is dismissed. Catchwords: APPEAL – appeal dismissed for non-appearance – application to set aside dismissal - previous application for reinstatement refused – relevant principles Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulation 2022 Residential Tenancies Act 2010 Cases Cited: Hammond v Ozzy's Cheapest Cars Pty Ltd t/a Ozzy Car Sales [2015] NSWCATAP 65 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Wallace v Price [2017] NSWCATAP 151 Texts Cited: None cited Category: Procedural rulings Parties: Isatu Sesay (Appellant) Alie Duran (Respondent) Representation: Appellant (Self Represented) Respondent (Self Represented) File Number(s): 2022/00366226 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 28 November 2022 Before: M Zraika, Member File Number(s): RT 22/50197 REASONS FOR DECISION 1. This is an application to set aside a decision of the Appeal Panel which on 13 March 2023 dismissed the appellant's appeal from a decision of the Tribunal in the Consumer and Commercial Division. In the proceedings at first instance before the Tribunal the tenancy agreement between the appellant as tenant and the landlord in respect of premises in Guildford was terminated. That decision was made on 28 November 2022. 2. The appellant filed a Notice of Appeal from the Tribunal's decision on 2 December 2022. The appeal was listed for hearing on 13 March 2023. On that day the Appellant failed to appear at the hearing and the appeal was dismissed under s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). In addition, a stay order which had previously been made staying the operation of the decision of 28 November 2022 was lifted. 3. On 15 March 2023 the appellant applied to reinstate the appeal on the basis that she had experienced technical difficulties while trying to connect to the appeal hearing which was conducted by audio visual link. The reinstatement application was refused on 22 March 2023 and oral reasons for that decision were provided. Those oral reasons are not before me. 4. The appellant has now applied to set aside the decision made on 13 March 2023 dismissing her appeal. On the date that she applied to set aside the decision (11 April 2023), the appellant also sought a stay pending the appeal. The stay was refused as there is no appeal on foot, the appeal having been dismissed on 14 March 2023 and reinstatement refused on 22 March 2023. Power to set aside an earlier decision 1. The power to set aside or vary a decision is contained in cl 9 of the Civil and Administrative Tribunal Regulation 2022 (NCAT Regulation). Under cll 9(1)(a) and (b) the Tribunal may set aside a decision: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, or (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. 1. Clause 9(1)(a) is not relevant to this application. When cl 9(1)(b) is under consideration, the Tribunal must be satisfied that: 1. the decision was made in the absence of a party, and 2. that party's absence resulted in the party's case not being adequately put to the Tribunal. 1. If those two requirements are satisfied, the Tribunal then has a discretion as to whether to set aside the decision. 2. As to the exercise of that discretion, Hammond v Ozzy's Cheapest Cars Pty Ltd t/a Ozzy Car Sales [2015] NSWCATAP 65 at [80] makes it clear that the question is whether there would be a real likelihood of injustice if the decision was allowed to stand and that relevant considerations will generally include (1) why the party was absent, and (2) whether the absent party has an arguable defence or an arguable case that a different decision could have been reached. 3. By virtue of s 81(2) of the NCAT Act, the Appeal Panel may exercise all of the functions that are conferred or imposed by that Act, or other legislation, on the Tribunal at first instance. 4. Clause 9(3) of the NCAT Regulation requires an application to set aside a decision to be made within 7 days of the decision sought to be set aside. The application to set aside 1. The appellant states that she attempted to join the hearing by audio visual link on 13 March 2023 at the appointed time. She experienced technical difficulties and contacted Tribunal staff to resolve the issue, however the problem was not fixed. The appellant also states she has additional evidence to support her appeal against the decision terminating her tenancy. 2. The appellant has filed several submissions in support of her application, some of which contain essentially the same information. In her submissions in support of the set aside application, the appellant states that she had paid all rent owing, that the landlord has failed to undertake repairs at the rented premises and that she has suffered an injury arising from the failure to undertake repairs. She also refers to the death of her husband which has impacted her mental health and has provided a report from a psychologist who has diagnosed her with a Major Depressive Disorder and Panic Attacks. The appellant asks for further time to reside in the premises so that she can find suitable alternative accommodation. She also seeks various orders, including orders for repairs, a rent reduction and compensation. Should a hearing be dispensed with? 1. By reason of cl 9 (8) of the NCAT Regulation, an oral hearing is not required to determine the set aside application. However, the Tribunal is not prevented from holding a hearing even if it is not required: s 50(4) NCAT Act. 2. On 12 April 2023 the Appeal Panel made directions for the filing and serving of evidence and submissions in relation to the set aside application. The appellant was given until 17 April 2023 to provide further material and the respondent was required to file and serve his material by 24 April 2023. The parties were also asked to provide submissions about whether a hearing of the set aside application should be dispensed with in accordance with s 50 of the NCAT Act and the matter dealt with on the papers. 3. On 17 April 2023 the appellant advised that she consents to the decision being made on the papers and a hearing dispensed with. On 28 April 2023 the appellant asked for an urgent hearing as she states the respondent landlord has locked her out of the property and she cannot access her medications. No response or submissions have been provided by the respondent. 4. I note that a warrant for possession was in fact executed on 21 April 2023 which explains why the appellant no longer has access to the premises. Should she seek to recover her goods she will need to make arrangements to do so with the landlord. 5. It is not clear whether the appellant's communication of 28 April 2023 in which she asks for an urgent hearing means that she no longer consents to the matter being dealt with on the papers. On one reading she is simply asking for her application to be dealt with as a matter of urgency as she has been locked out of the premises. The appellant sent a further email to the Tribunal on 3 May 2023 asking for an urgent hearing. Again it is not clear if she now seeks an oral hearing or is simply asking for consideration of her application to be expedited. 6. In any event, I am satisfied that the issues for determination can be adequately determined in the absence of the parties on the basis of the written material provided. This is so even though the landlord has not provided any response. Should the decision to dismiss the appeal be set aside? 1. It is not in dispute that the appeal was dismissed in the absence of the appellant and therefore the first requirement of cl 9(1)(b) is satisfied. I am also satisfied that the appellant's absence resulted in her case not being adequately put to the Appeal Panel. Indeed, there was no consideration of her grounds of appeal and the appeal was dismissed for non-appearance. Thus, the second requirement is also made out. 2. A fundamental problem, however, with the appellant's set aside application is that it has been filed out of time. As set out above, the application was required to be made within 7 days of the date of the dismissal decision by the Appeal Panel, that is by 20 March 2023. The set aside application was made on 11 April 2023, three weeks out of time. The time to make the application can be extended under s 41 of the NCAT Act. 3. The principles relating to consideration of an application to extend time were set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [21]-[22]. In order to extend time I must be satisfied that strict compliance with the rules will work an injustice on the appellant. The relevant factors to consider are: 1. the length of the delay, 2. the reason(s) for the delay, 3. the applicant's prospects of success, i.e. whether there is a fairly arguable case, and 4. the extent of any prejudice suffered by the respondent landlord. 1. The appellant has not made submissions directed to the late filing of the set aside application. Her submissions concern the termination order made by the Tribunal and the appellant's criticisms of the actions of the landlord, along with her desire to remain in the property. Nevertheless, I have considered whether an extension of time should be granted and have decided it should not. 2. The delay in lodging the set aside application, being three weeks, is not insignificant as the application was required to be lodged within 7 days of the dismissal decision by the Appeal Panel. As to the reason for delay, it seems from the history of the applications made by the appellant that she lodged the set aside application only after her reinstatement application was refused by the Appeal Panel. It appears that she simply wished to have a further attempt at getting the appeal back on foot. In my view that is not a legitimate reason to support an extension of time. 3. The landlord has not provided any submissions in relation to the set aside application and it therefore not possible to identify with precision the extent of any prejudice he may suffer. Possession of the premises has now been returned to the landlord which will allow the landlord to re-let the premises. 4. Turning now to whether the appellant has a fairly arguable case in relation to the set aside application, having determined that the threshold matters in cl 9(1)(b) have been made out, the issue would be one of the exercise of the discretion. As set out in Hammond, one of the matters relevant to the exercise of the discretion is whether the absent party, in this case the appellant, has an arguable case such that a different decision could have been reached. 5. The termination decision was made by the Tribunal after hearing from both parties and the tenancy was terminated on the basis of non-payment of rent. The evidence provided by the landlord at the Tribunal hearing established that the appellant had failed to pay rent and was therefore in breach of the residential tenancy agreement. I note that issues raised by the appellant concerning water ingress, the failure of the landlord to undertake repairs which she claims resulted in injury to herself were not before the Tribunal which was dealing with the landlord's termination application. 6. Evidence filed by the landlord in the appeal was to the effect that the appellant remained in arrears of rent. In her submissions the appellant does not seem to suggest otherwise, although she now claims that her rent is now up to date as she has made payments. Those payments, however, post date the decision of the Tribunal to terminate the tenancy. There is therefore no suggestion that the provisions of s 89 of the Residential Tenancies Act 2010 regarding payment of rent arrears following the issue of a termination notice are relevant in this matter. 7. At the time the application for reinstatement of the appeal came before the Appeal Panel on 22 March 2023 the evidence of the landlord was that the arrears were still owed by the appellant. The material filed by the appellant in support of the reinstatement application is similar to that filed in the set aside application. As noted above, the Appeal Panel dismissed the reinstatement application. Without having the benefit of written reasons for the decision, it is not possible to determine the basis upon which the reinstatement application was dismissed. I note, however, that one of the principles as set out in Wallace v Price [2017] NSWCATAP 151 relevant to the exercise of the discretion to reinstate an appeal is the strength of the appeal and its likelihood of success. It can be assumed that this principle was taken into account by the Appeal Panel in dismissing the reinstatement application. 8. In light of the evidence before it and noting that the appellant was present at that hearing and had an opportunity to present her case, it was open to the Tribunal to terminate the appellant's tenancy for rent arrears and non-payment of rent and to make an order for possession. In my view, the appellant's appeal from that decision had little prospect of success. For that reason, her application to set aside the decision of the Appeal Panel dismissing her application also has little prospect of success. The application to set aside the decision of the Appeal Panel therefore does not have substantial merit. In the circumstances an extension of time to file the set aside application should not be granted. 9. I should note that, even if an extension of time was warranted, I would not have exercised my discretion to set aside the dismissal decision as I am not persuaded that the appellant has an arguable case that a different decision (other than dismissal of appeal, albeit on other grounds) could have been reached. Orders 1. I make the following orders: 1. An extension of time to file the set aside application is refused. 2. The set aside application 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 May 2023