VALASSIS v BERNARD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL BEAZLEY JA and STEIN JA 12 October 1998 [1998] NSWCA 244 Beazley JA. There are two applications before the Court. The first is a Notice of Motion in which the claimant, Mr Valassis, seeks an extension of time in which to file the summons for leave to appeal from a decision of Dowd J. That Notice of Motion was filed in the Court on 24 September 1998. The second application before the Court is the summons for leave to appeal. That in fact was filed prior to the Notice of Motion for an extension of time, but there is no need to take any formal point in that regard. We propose to deal with each application. It is convenient in the first instance to deal with the summons for leave to appeal. The proceeding before Dowd J was a proceeding brought by Mr Valassis under s 107 of the Residential Tenancies Act 1987. That provides an appeal to the Supreme Court lies against a decision of the Residential Tenancies Tribunal in respect of a matter of law. Mr Valassis had brought an application in the Residential Tenancies Tribunal in 1997 in which he sought a number of orders including forarrears of rent and for the payment of money for damage to his property. The first hearing date of that application was 24 September 1997. On that day, according to the reasons for decision of the Tribunal given on 11 December 1997, a consent order was made to the effect that the tenancy agreement was terminated on 13 September. A consent order for possession was also made, and in addition certain procedural orders were made, including orders relating to the exchange of documentation, the calling of witnesses at the next hearing, as well as an order that Mr Valassis provide to the tenant particulars of the further orders he was seeking and the amount claimed for compensation. He was informed of the need to provide an ingoing and outgoing condition report and to support his claims for compensation by quotation of an invoice. The Tribunal records these various orders at paragraph 2 of its reasons for decisionThe matter was set down for hearing on 28 October 1997. Before referring to what occurred on that day, I should refer first to the Notice of Hearing which was given to the parties in respect of the first hearing date on 24 September 1997. That appears at page 25 in the white folder. The document is a pro forma notice of hearing and there was certain information provided to persons who were to appear at that hearing. Included in that information was a paragraph (i) which stated 'Do not bring any witnesses to the first hearing'. It also stated that the application had been listed before the Tribunal on Wednesday 24 September 1997 at 2pm. A second Notice of Hearing was issued in the matter. That appears at page 37 of the white book. It specifies the hearing date of Tuesday 28 October 1997 at 10.30am. It also includes in bold type in a larger font than some of the other printing on the document 'for formal hearing — bring witnesses'. It also includes the same information which was on the original Notice of Hearing to which I 2 UNREPORTED JUDGMENTS have referred, including the statement "Do not bring any witnesses to the first hearing'. That notice, of course, was not the notice of first hearing but notice of the formal hearing of the application. The Tribunal in its reasons for judgment found that the order for termination was made by consent, and as I have previously stated, the date of termination was agreed to be 13 September 1997. The tribunal found that there were arrears of rent for the period 4 September 1997 to 13 September 1997 and the Tribunal also found that an amount of $355 should be paid with respect to compensation for damage to the premises. Mr Valassis appealed to the Supreme Court under the provisions of s 107. That appeal was heard by Dowd J on 30 March 1998. Mr Valassis alleged that the Tribunal's decision involved three errors of law. The first was that he was disadvantaged in relation to the presentation of his case. The second — and it is not clear whether this is an independent ground or a particular of the general disadvantage — was that he was not given the opportunity to call witnesses, nor was he given an opportunity for an adjournment to call witnesses. The third was that as at 26 September 1997 he proved that persons were still in occupation of the premises and that he was therefore entitled to receive monies for arrears of rent, as those persons must have been in possession under the holding over clause in the lease. Dowd J found that none of these matters raised any error of law. In respect of the disadvantage of which complaint is made that he was not entitled to call witnesses, the second Notice of Hearing which was issued notifying the formal hearing date of 28 October specifically indicated in large type that the formal hearing was the occasion that witnesses were to be brought to the court. In addition there were the orders made of a procedural nature, to which I have referred and which were set out in the Tribunal's reasons for decision. The Court agrees with Dowd J that no error of law was demonstrated by Mr Valassis in relation to that matter. We should add that to the extent that Mr Valassis says that he was disadvantaged, if the legal terminology which should be used is that he wasdenied procedural fairness because of not having the opportunity to call witnesses, no error has been found, given the clear directions of the Tribunal in respect of the hearing on 28 October. The next matter is in relation to the Tribunal's refusal to award rent for the period to 26 September 1997. There seems to have been some suggestion before Dowd J that the court order on 13 September was not by consent. However, that is entirely contradictory to the recording of the court's order, to which the Tribunal member refers in his reasons for decision. It therefore follows that the holding over clause did not apply. At the hearing before the Tribunal on 28 October 1997, Mr Valassis argued that he was entitled to rent up until 26 September 1997. The case was adjourned to allow Mr Valassis to obtain a statutory declaration from the sheriff (i) to verify the service of the warrant on 26 September 1997; (ii) that persons were still in occupation; and (iii) that they were subtenants of the respondent. Strictly, his entitlement, if any was to mesne profits, not rent, the tenancy having been terminated on 13 September. At the further hearing on 17 November 1997, Mr Valassis did produce a statutory declaration from the sheriff. However, the statutory declaration verified only the first two matters and not the third of the three matters upon which URJ VALASSIS v BERNARD (Beazley JA) 3 evidence was required, with the effect that there was no evidence before the Tribunal that the persons in possession were in possession as subtenants of the tenant. Dowd J found that there was no error of law proved in that respect, and we respectfully agree with his determination in that regard. To the extent that there may have been some independent grounds raised under s 94 of the Residential Tenancies Act, there was nothing in the material which was presented to this Court on the application which would indicate that there was any breach of those provisions or that they were wrongly applied to Mr Valassis" presentation of the case. In the Court's opinion, this is not a matter where the appellant should have leave to appeal, as no error of law was demonstrated in the Tribunal's decision, and it follows that no error has been shown in Dowd J's decision. It is not necessary, therefore, for us to formally rule as to whether this would have been an appropriate matter to grant an extension of time to file the application for leave to appeal, and in due course that Notice of Motion will also be dismissed. There has been nothing put before the Court by way of evidence or submission which satisfies the Court that the usual order as to costs ought not to be made in this matter. Accordingly, the orders of the Court are that 1. The summons for leave to appeal from the decision of Dowd J be dismissed 2. The Notice of Motion seeking leave for extension of time be dismissed. 3. The claimant is to pay the opponent's costs of the summons for leave to appeal and the Notice of Motion for extension of time. Orders accordingly.