Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shamoun v Dbouk [2023] NSWCATAP 319 Hearing dates: 29 November 2023 Date of orders: 01 December 2023 Decision date: 01 December 2023 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member J McAteer, Senior Member Decision: 1. The time for lodging the Notice of Appeal is extended to 16 October 2023. 2. Leave to appeal is refused. 3. The appeal is dismissed. Catchwords: APPEAL – No question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) - ss 41, 80, Sch 4 cl 12(1) Civil and Administrative Tribunal Rules 2014 (NSW) - r 25 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 John Prendergast & Vanessa 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: Appellant – George Shamoun Respondent – Mustapha Dbouk and Rola Zheim Representation: Appellant – B Mitkovski Respondent – M Dbouk File Number(s): 2023/000325013 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2023] NSWCATCD Date of Decision: 15 September 2023 Before: P Zammit, General Member File Number(s): RT 23/31654, RT 23/35151 reasons for decision Outline 1. This is an internal appeal, under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), against a decision made in the Consumer and Commercial Division of the Tribunal, in relation to a claim by the appellant (the landlord) against the respondent (the tenant) that was dismissed on 15 September 2023. Having considered the documents lodged by the parties, and their oral submissions, we have determined that an extension of time should be granted for lodging the Notice of Appeal, but the appellant has not established either an error on a question of law or any basis for granting leave to appeal. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) of the NCAT Act. 2. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out, at [13], a list of questions of law as: (1) Whether there has been a failure to provide proper reasons. (2) Whether the Tribunal identified the wrong issue or asked the wrong question. (3) Whether a wrong principle of law had been applied. (4) Whether there was a failure to afford procedural fairness. (5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. (6) Whether the Tribunal took into account an irrelevant consideration. (7) Whether there was no evidence to support a finding of fact. (8) Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins, at [84], the Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. either with or without further evidence, in accordance with the directions of the Appeal Panel. 1. When parties to an appeal do not have legal representation, the issue which arises is whether the Tribunal should consider whether there is either a ground of appeal or a basis for leave to appeal which has not been raised by the appellant. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), at [13], the Appeal Panel said: 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. In the NCAT Act, s 41(1) provides the Appeal Panel with the power to extend the time for lodgement of a Notice of Appeal and s 41(2) permits that power to be exercised even if the relevant time has expired. 2. 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, i.e. 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 has a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable. Documents 1. The Notice of Appeal was lodged on 16 October 2023 and a Reply to Appeal was received on 3 November 2023. 2. Documents lodged by the parties in respect of this appeal were those received from the landlord on 13 November 2023 and from the tenant on 27 November 2023, the day before the hearing. On 15 November 2023 the landlord also lodged a USB drive containing a recording of the hearing. Time to appeal 1. Orders were made on 15 September 2023. The 14-day requirement of r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) means that a Notice of Appeal should have been lodged by 29 September 2023. As the Notice of Appeal was lodged on 16 October 2023, it was lodged out of time and the landlord requires an extension of time. Grounds of Appeal 1. In the Notice of Appeal, the grounds of appeal were expressed in narrative form, referring to the agreement made by the parties in relation to the period while the roof of the subject premises was repaired, but not identifying any error on a question of law. For that reason, before hearing submissions, the landlord's representative was requested to succinctly state what were said to be the errors on a question of law. The response was to the effect that it was not agreed that the parties were not communicating. 2. Leave to appeal was also sought, based on the landlord's claim that the subject property was used during a period when the roof was being repaired. The decision was said to be (1) not fair and equitable, and (2) against the weight of the evidence by, again by reference by what was said to have occurred during the period while the roof was repaired. 3. It is clear the landlord sought that the order dismissing his application be set aside and that an order for compensation be made in his favour. Hearing 1. Having identified the relevant documents, and having clarified the basis of the appeal, the Tribunal proceeded to hear oral submissions in the usual sequence of appellant then respondent, followed by the appellant in reply, so that each party was able to speak un support of their case and to respond to the case of the other party. Landlord's submissions 1. It was first noted that the hearing was necessary because the parties were unable to agree. The primary submissions related to the claim for arrears of rent which relied on an alleged breach of an agreement that the landlord would pay $200 per night from 27 March 2022 until the roof was restored on 22 August 2023, the alleged breach being that the tenants lived at the property during that period, said to be supported by the level of water usage. Those submissions may be summarised as follows: (1) The tenants were able to go to the property and the water usage showed that someone was living there. (2) The tenants were unable to provide receipts in relation to their accommodation during the period while the roof was being repaired. (3) After the roof was repaired, there were receipts in relation to mould cleaning. Tenant's submissions 1. The points made by the tenant were as follows: (1) Reasons why an extension of time should not be granted were set out at R4 (ie page 4 in the respondent's documents). (2) The rent ledger pages at R24 and R26 showed the application of the agreement to pay $200 per night until the roof was restored. (3) There was no issue in relation to that agreement until 30 November 2022 when the landlord removed the $200 per night credit from the tenancy ledger after the insurance claim was rejected. (4) There was no requirement under the agreement for receipts to be provided. (5) The tenants were not living in the premises but visited many times, such as to collect files from the property. (6) The water consumption during the period while the roof was being repaired was explained by what was set out at page R7, notably that there was an automatic irrigations system that watered daily, the consumption of water by the swimming pool, and the increased level of water usage when the tenants were living in the premises. Submissions in reply 1. It was suggested that there were multiple meetings in the office of the landlord to go through "the process", presumably a reference to the agreement relating to the period while the roof was repaired, and that the water consumption during that period was not explained by watering plants with a timer. Consideration 1. It is important to first note two matters that were brought to the attention of the parties at the commencement of the hearing. 2. First, that an appeal to an Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. 3. That point is made clear by the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) which includes the words: "an appeal is not an opportunity to have a second go at a hearing". 4. Secondly, that it is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: an appellant must demonstrate either that an error was made on a question of law. 5. It is first necessary to consider whether to grant an extension of time for lodging the Notice of Appeal. While the tenants provided significant reasons why no extension of time should be granted (R4), as that notice was lodged less than three weeks after the date by which it was required to be filed, since medical evidence has been provided by way of explanation for that delay, and there is no prejudice to the respondent from extending time, we consider the preferable course is to consider this appeal on its merits and not to finalise it on what might be called a time technicality. 6. No transcript of the hearing was provided. It was therefore necessary to listen to the recording to ascertain what was said and done at the hearing. What occurred may be summarised by saying that the sequence was as follows: 1. The parties were given an opportunity to speak, outside the hearing room, to see if they could reach agreement prior to the commencement of the hearing. 2. The presiding member explained the hearing procedure. 3. The landlord's representative was given an opportunity to present the landlord's case. 4. The tenant was given an opportunity to ask questions of the landlord's representative. 5. The tenant presented his case. 6. The landlord's representative was given an opportunity to question the tenant. 7. The parties were permitted to make closing submissions. 8. The parties were given time to discuss the matter again, outside the hearing room, while the presiding member considered the evidence and submissions, reached a decision, and formulated reasons for that decision. 9. During the last 12 minutes of the 100-minute hearing, the presiding member gave oral reasons for the decision made in relation to each claim. 1. The claims of the landlord, in the proceedings with the reference RT 23/31654 may be summarised as (1) rent arrears, (2) water usage, (3) what was described as a "carpet burn", (4) carpet cleaning, (5) cleaning of the kitchen and bathroom, and (6) pool cleaning. Each of those claims was rejected and oral reasons were given, by reference to the relevant evidence. 2. The claim of the tenant, in the proceedings with the reference RT 23/35151, was for the rental bond, which has already been paid to the landlord, to be refunded. By reason of the dismissal of the landlord's claims, an order was made for the landlord to pay the tenant $2,600, being the amount of the rental bond. 3. In relation to the primary claim, for rent arrears of more than $18,000, the outcome was the result of the landlord having agreed to pay the tenant $200 per day for the period from 7 March 2023 until the roof repairs where completed, which was on 22 August 2023. 4. There was no evidence that the agreement covering the period while the roof was repaired either did not permit the tenants to visit the premises or require the tenants to keep and provide receipts for their alternative accommodation. 5. The reasons provided for rejecting both the claim for rent arrears, and each of the other claims, was the combined result of (1) findings of fact based on the evidence before the Tribunal, and (2) a correct application of the relevant legal principles. Simply stated, the presiding member accurately assessed the evidence and made decisions which were dictated by that evidence. Listening to the reasons provided on the day of the hearing, does not reveal that any error was made. 6. There is nothing in the conduct of the hearing, the decision reached in relation to each claim, or the reasons given for each such decision, which would provide any basis for any assertion (1) that there was an error on a question of law, (2) that the decision was not fair and equitable, or (3) that the decision was against the weight of the evidence. 7. It should be observed that the presiding member gave both sides an opportunity to not only present their case but also to respond to the case of the other party. The parties were given two opportunities to resolve the applications: (1) immediately before, and (2) after the hearing, prior to the reasons being delivered. 8. The potential outcome on the primary claim was raised prior to the conclusion of the hearing so that the parties had a clear opportunity to suggest why there should be a different outcome. The presiding member demonstrated patience throughout the hearing, even when interrupted, including while presenting the reasons for the decision reached. 9. While the document published on the day of the hearing did not include a sentence to indicate that oral reasons were given, that was known to the parties and was made clear to us by the provision of a recording of the hearing. 10. Applying what was said in Cominos, we have considered whether there is any error on a question of law which the landlord has failed to identify but have not been able to discern any such question. Orders 1. We have determined that an extension of time for lodging the appeal should be granted. However, as we are not satisfied the decision involved any error on a question of law, the appeal must be dismissed. Further, as no basis for granting leave to appeal has been demonstrated, leave to appeal must be refused. Accordingly, for the reasons set out above, the orders that will be made are as follows: 1. The time for lodging the Notice of Appeal is extended to 16 October 2023. 2. Leave to appeal is refused. 3. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2023