New South Wales Supreme Court CITATION : Josevski v Henson [2004] NSWSC 726 HEARING DATE(S) : 10 August 2004 JUDGMENT DATE : 13 August 2004 JURISDICTION: Common Law Administrative Law List JUDGMENT OF : Master Malpass DECISION : The notice of motion is dismissed; the plaintiff is to pay the costs of the notice of motion; exhibits may be returned CATCHWORDS : Appeal from Tribunal - jurisdiction - error as to onus of proof on the question of mitigation of damages and in the assessment of compensation - denial of natural justice - extension of time LEGISLATION CITED : Consumer, Trader & Tenancy Act 2001 s67 Residential Tenancies Act 1987 s78 Louie Josevski (First Plaintiff) Cveta Josevski (Second Plaintiff) PARTIES : Gregory Henson (First Defendant) Melinda Henson (Second Defendant) Consumer, Trader & Tenancy Tribunal (Third Defendant) FILE NUMBER(S) : SC 30105/03 COUNSEL : Mr R Colquhoun (Plaintiff) Ms J Needham (Defendant) Owen Hodge Lawyers (Plaintiffs) SOLICITORS : Simpson Freed Solicitors (First and Second Defendants) Crown Solicitor (Third Defendant) LOWER COURT Consumer Trader and Tenancy Tribunal of NSW JURISDICTION : LOWER COURT RT 02/20859 FILE NUMBER(S) : LOWER COURT Member T Moore JUDICIAL OFFICER : - 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST Master Malpass Friday 13 August 2004 30105 of 2003 Louie Josevski & Anor v Gregory Henson & Ors JUDGMENT 1 Master : The plaintiffs are the owners of a property at Burraneer. They entered into a residential tenancy agreement with the defendants for the occupation of that property. The defendants abandoned the property during the term of the tenancy. 2 The plaintiffs brought an application in the Consumer Trader & Tenancy Tribunal (the Tribunal) seeking a monetary order. It propounded inter alia a claim for what has been referred to as mesne profits or damages. The defendants responded with their own application. It alleged inter alia a failure on the part of the plaintiffs to mitigate their loss. 3 A contest then took place before the Tribunal. There were three hearing dates and three separate Tribunal members (13 June 2002, 5 August 2002 and 26 August 2002). On the last of the three hearing dates the matter came before Member Moore and he made a determination. 4 The nature of the application brought by the plaintiffs fell within the jurisdiction of the Tribunal. However, any monetary order made could not exceed the sum of $10,000. The claim made by the plaintiff was in fact well in excess of this figure. This jurisdictional problem was raised before the Tribunal and was known to the plaintiffs. On 5 August 2002, Member Cheesman adjourned the proceedings so as to enable the plaintiffs to obtain advice on this question. The transcripts suggest that they both sought and obtained advice and then continued to prosecute their application before the Tribunal. It appears that the application continued to be entertained by the Tribunal because the amount to be awarded may have fallen within its power to make a monetary order (it was dependant upon what was done in respect of the question of mitigation). The order that was made on 26 August 2002 fell within the jurisdiction (it was in the sum of $7,800). 5 Before the Tribunal, the parties were unrepresented. The plaintiffs took the view that the sum awarded for damages was manifestly inadequate and intention to appeal was expressed to the Tribunal. 6 Shortly after the making of the order, the plaintiffs engaged their present solicitors and became aware that an appeal could be brought to this court. An unsuccessful application for rehearing was made. In February 2003 proceedings were commenced in the District Court. Those proceedings have been met with a notice of objection to jurisdiction. 7 In November 2002, the plaintiffs had sought a transcript of the proceedings before the Tribunal. In October 2003, there was an inspection of the Tribunal file. On 8 October 2003, a request was made for reasons. The reasons were received on 22 October 2003. On 19 November 2003, the plaintiffs filed a summons in this court, seeking the setting aside of the order made on 26 August 2002. 8 I should add that the reasons were not sought within the prescribed 14 day period. Further, the reasons were in the file of the Tribunal at the time of the inspection. 9 The summons propounds an appeal pursuant to s67 of the Consumer Trader & Tenancy Tribunal Act 2001 (the Act). The section enables an appeal where the Tribunal decides a question with respect to a matter of law. It also provides that the reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. 10 The appeal is presently incompetent. It has been brought over a year out of time. 11 The hearing of the appeal was fixed for 10 August 2004. At the commencement of the hearing, no application had been made for any extension of time in which to bring the appeal. By consent, leave to amend the summons for that purpose was granted. 12 The court then heard both the application for extension of time and the appeal itself together. 13 As the plaintiffs evidence in support of the appeal had not addressed the question of delay, the first plaintiff was called to give oral evidence. There was no evidence from the legal advisers on this question. 14 The court has a discretionary power to extend time. It is exercised having regard to the relevant circumstances of the particular case before it and so that justice is best served between the parties. The onus rests with the party seeking the extension of time. 15 It would be futile to grant an extension, if the appeal lacks merit. In this application, the parties also agitated questions of delay and explanation for delay. 16 I now turn to the question of the merits of the appeal. Broadly, four matters were agitated. 17 Firstly, it was said that the Tribunal lacked jurisdiction to entertain the application. Secondly, it was said that the Tribunal erred on the question of onus of proof in dealing with the issue of mitigation. Thirdly, it is said that the Tribunal erred in its assessment of evidence and came up with a figure for damages that was erroneous and manifestly too low. Fourthly, it is said that there was a denial of natural justice. 18 No arguments were directed towards the vexed question of the ambit of the avenue of appeal provided by s67 (which on any view is a narrowed one). Accordingly, I will do no more than address the arguments that were conducted before this court. 19 It seems to me that the alleged question of jurisdiction is misconceived. In my view, the order is not able to be disturbed by reason of lack of jurisdiction. I expressed these views during the course of argument. Ultimately, if it was still pressed, this contention was but pressed faintly. 20 The plaintiffs persisted with a monetary claim that was in excess of the amount that could be ordered by the Tribunal. In so doing, they had placed themselves in the position where they may have been taken to have elected to waive any excess recoverable in the application. Be that as it may, the order that was made fell within the Tribunal's monetary jurisdiction. 21 There was evidence before the Tribunal on the question of mitigation. It suffices to merely mention certain of it. There was evidence that the rental figure under the agreement was too high for the purposes of the period of mitigation. There was evidence of an offer made by the defendants which was not accepted by the plaintiffs. There was evidence of attempts made by both the plaintiffs and the defendants to obtain a tenant. There was evidence of refusal to accept a particular tenant by the plaintiffs because the proposed tenant had a dog. 22 The plaintiffs had a statutory entitlement to compensation (s78 of the Residential Tenancies Act 1987). The section requires the plaintiffs to take all reasonable steps to mitigate the loss and provides that they are not entitled to compensation for any loss that could have been avoided by taking those steps. 23 It may be observed that the section imposes not only a statutory obligation on the plaintiffs, but also a statutory restriction on what may be recovered as compensation. 24 Leaving aside any relevant statutory provisions, there is authority for the proposition that the defendant bears the onus on the issue of mitigation of damages (to show that the plaintiffs ought reasonably to have taken certain mitigating steps). The question of whether that position had been affected by statute was not really argued. 25 I have carefully read the transcript and the reasons of the Tribunal. Whatever construction is put on what was said at times in dialogue with the parties, it seems to me that the effect of what was done was no more than make a decision on what was perceived to be the evidence before the Tribunal in accordance with the statutory requirements. The reasons reveal that regard was had to at least three matters (including the failure to reduce rental and the refusal to rent to the prospective tenant). I am not satisfied that there was error in respect of the onus of proof. 26 Further, I consider that the complaints made concerning the quantification of the order do not fall within the ambit of s67. 27 It may well be that the quantum of the order is on the low side. It may well be that criticism can be directed towards the manner in which the evidence was evaluated and how the amount of compensation came to be fixed. Be that as it may, on any view of the ambit of s67, what was done did not involve the deciding of a question with respect to a matter of law. 28 The arguments that were put forward as part of the contention that there had been a denial of natural justice seem to me to be both erroneous and ill-conceived. It is contended that conflicting advice was given by different members or officers of the Tribunal to the plaintiffs on the matter of jurisdiction and that the Tribunal should have referred the matter to another forum. 29 It seems to me to be erroneous to endeavour to categorise what was said by the Tribunal as advice. The jurisdictional problem was ventilated by the Tribunal and an adjournment was granted to enable the plaintiffs to get advice on that matter. After obtaining legal advice the plaintiffs continued to prosecute the application before the Tribunal. They did not apply to have the matter referred elsewhere. In these circumstances, whatever may have been said by the Tribunal would not justify disturbing the order made by it. 30 Whether or not there is a denial of justice will depend on the particular circumstances of the relevant case. In the circumstances of this case, I am not satisfied that there was any denial of natural justice. 31 The real substance of the complaints made against the Tribunal is that the amount ordered as compensation was too low. I gained the impression that arguments were being "dressed up" in the hope of presenting what may be an appeal point. 32 I should add that it seems apparent from the presentation of the case for the plaintiffs that the purpose of the conducting of this appeal was to have the decision of the Tribunal set aside so as to enable the plaintiffs to pursue the proceedings in the District Court. 33 The reaching of these views suffices to dispose of both the appeal and the application for extension of time. Despite this, I should briefly address the other considerations which were advanced in opposition to the granting of an extension of time. I do so, because these matters of themselves would have justified a refusal of the application. In my view, the interests of justice would not be served by a granting of the application. 34 The delay is long. The explanation proffered for that delay fell well short of being adequate. For much of the period, the plaintiffs had legal advisers and were aware that they had a right of appeal to his court. There was significant inactivity which was left unexplained. There was no evidence from the legal advisers to assist in explaining the long delay. 35 The summons is dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned. Last Modified: 08/16/2004 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.