Supreme Court New South Wales Medium Neutral Citation: Ottoman Investments Pty Ltd v Consumer, Trader and Tenancy Tribunal [2011] NSWSC 1161 Hearing dates: 26 September 2011 Decision date: 29 September 2011 Jurisdiction: Common Law Before: Harrison J Decision: 1. Summons dismissed. 2. Plaintiff to pay the second defendant's costs. Catchwords: ADMINISTRATIVE LAW - appeal - Consumer, Trader and Tenancy Tribunal - residential tenancy - landlord's application to Tribunal for termination of lease and payment of arrears of rent - where tenant alleges non-receipt of notice of hearing - whether denial of procedural fairness - application for orders in the nature of prerogative relief - s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 - no denial of procedural fairness Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 Consumer, Trader and Tenancy Tribunal Regulation 2009 Income Tax Assessment Act 1936 Residential Tenancies Act 2010 Cases Cited: Berou v CTTT [2007] NSWSC 1046 Blair v Lawton [2003] NSWSC 380 Brennan v Consumer, Trader & Tenancy Tribunal [2010] NSWSC 1240 Dragus v CTTT [2004] NSWSC 819 Kelly v Chulio [2007] NSWSC 677 Mills v Consumer, Trader & Tenancy Tribunal [2003] NSWSC 782 Category: Principal judgment Parties: Ottoman Investments Pty Ltd (Plaintiff) Consumer, Trader and Tenancy Tribunal (First Defendant) Steven Kollias (Second Defendant) Representation: T Bors (Plaintiff) P Menadue (Second Defendant) David Le Page (Plaintiff) Crown Solicitor (First Defendant) Good Legal (Second Defendant) File Number(s): 2011/282979 Judgment 1HIS HONOUR : On 2 September 2010 Ottoman Investments Pty Ltd took a lease of residential premises at 17 Springfield Avenue, Roselands from Steven Kollias for a term of two years commencing on 4 September 2010. A dispute arose during the term of the lease about water penetration into the premises and, with the exception of $3,500 paid on 16 August 2011, the tenant ceased paying rent on about 27 April 2011. The tenant has paid nothing further since then. However, even before that part-payment was made, the matter had found its way to the Consumer, Trader and Tenancy Tribunal. 2On 28 July 2011 the landlord's agent delivered a Notice of Termination of the lease to the Springfield Avenue premises seeking vacant possession by 12 August 2011. The notice was expressed to be pursuant to the provisions of the Residential Tenancies Act 2010 and was based upon a non-payment of rent for a period of 14 days or more. The Tribunal subsequently sent the landlord's Application for Termination and Possession Based on Non-Payment of Rent, under cover of a letter addressed to the tenant at the premises. It listed the matter for hearing in the Tribunal on 17 August 2011. The tenant denies receiving this application or that it was otherwise given any notice of it until 16 August 2011. When the matter came before the Tribunal on the following day, the tenant did not appear. However, Mr Elali, a one-time sole director and shareholder of the tenant, contacted the Tribunal on the tenant's behalf on the morning of the hearing and said that he could not be there. The person whom he spoke to told him to put it in writing. He then sent two emails to the Tribunal saying why. The Tribunal did not accept his explanation and proceeded to hear the landlord's application and to make orders in the tenant's absence. The Tribunal also subsequently declined two further applications by the tenant for a rehearing. 3By summons filed on 2 September 2011 the tenant claims in these circumstances that it was denied procedural fairness and seeks a declaration and other orders in the nature of prerogative relief in accordance with s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 . The Tribunal is named as a defendant in the proceedings but did not participate in the hearing. For the reasons that follow, I consider that the tenant's application is without merit and that the summons should be dismissed with costs. Background 4The letter from the Tribunal that accompanied the landlord's application was dated 4 August 2011. There are two versions of it in evidence. It is in each case in effectively identical terms and described as a Notice of Conciliation and Hearing. The only difference between the two letters is that one letter is addressed to "Ottoman Investments Pty Ltd c/- Attn Nathan Elali" at 17 Springfield Avenue, Roselands, whereas the other is addressed to the company without any mention of Nathan Elali. The letters refer to the fact that a copy of the application is enclosed and that it has been listed for hearing on Wednesday 17 August 2011 at 2.15pm. In their usual and helpful way, the Tribunal's letters also contain the customary notation in the following terms: "Please arrive at least 15 minutes before the start of the hearing and report to the hearing attendant or security officer. It is important that you are on time as the Tribunal may decide the matter in your absence. The decision made will be binding on you. " 5A document was also attached to the application entitled " IMPORTANT INFORMATION ABOUT CONCILIATION AND HEARING ". Part of that document contained the following paragraph: " If you cannot attend You can seek to have the hearing postponed by asking for an 'adjournment'. Adjournment requests must be made in writing and addressed to the Registrar. A copy should be sent to the other party. Include any supporting documentation such as a copy of the medical certificate or airline ticket. If you have the consent of the other party your request is more likely to be considered favourably." 6Mr Elali sent his first email at 9.37am to the Tribunal on 17 August 2011 in these terms: "Hi, following on from my discussion of this morning with a staff member at Hurstville CTTT, I was asked to send this email; - late yesterday afternoon at about 5:00pm, I was advised by the real estate agent of a hearing scheduled for today - over past days and weeks, I have exchanged several SMS s and a few emails with the agent. The first SMS that advised of such hearing was at about 5:00pm yesterday - dispute is the result of massive flooding in the lower house and other leaks that have caused substantial stress and discomfort. - the agent in her SMS of yesterday advised that the noticed [ sic ] went to 17 Springfield Ave, a property that rented by my company to house my family members but not occupied by myself - the agent is well aware of my home address and company registered address. Notices to a company should be directed to the registered address and letters to the director should be directed to the director's home address - I am not in a position to attend the hearing today. First week of September would be the earliest - the real estate agent should be encouraged today to provide confirmation of how the substantial leaks would repaired [ sic ], expenses reimbursed and damaged items replaced. Simply stating to my family to sort it with the insurance is inappropriate. - as advised to the agent, $3,500 was deposited to the agent CBA account in cash yesterday as a gesture of goodwill - outstanding rental and payment in advance till end of December, as discussed with the agent, would be paid immediately once a satisfactory schedule to address the leaks and damages are presented. I'll forward a follow up email for your reference with attached photos that I hope would get thru." 7Mr Elali's second email was much shorter. It was sent at 9.50am. It said only this: "As advised, a second email with a few images for the Member's perusal...nathan" 8The Tribunal proceeded to determine the matter in the absence of the tenant on 17 August 2011 and made the following orders: "1. The Tribunal is not satisfied in accordance with s 89(5) that the tenant has frequently failed to pay rent owing for the residential premises. 2. Order for termination and possession: the tenancy agreement is hereby terminated, and possession is to be given to the landlord immediately. 3. The tenant, Ottoman Investments Pty Ltd, C/- Attn Nathan Elali 17 Springfield Avenue, ROSELANDS NSW 2196 Australia, is to pay the landlord, Steven Kollias, C/- H T Wills & Co 167 Forest Road HURSTVILLE NSW 2220 Australia, the sum of $7,688.22 immediately. ***** REASONS There was no appearance by the tenant. Mr Elali sent an email to the Registry this morning seeking an adjournment, but advancing no convincing reason, indeed no reason at all, for the adjournment. As the rental arrears were over $7,000 it is appropriate that the matter proceed. The Tribunal was satisfied on the basis of the sworn uncontradicted evidence of the landlord and his agent and the evidence relied on that the landlord was entitled to the above orders." 9The tenant made an application on 19 August 2011 to have the matter reheard. The application form is in evidence as well as a letter attached to it. The letter contains the substance of the tenant's concerns and is as follows: "In response to the Tribunal orders as made on 17 August 2011, I am surprised that I was expected to attend when I was given less than 20 hours notice of scheduled hearing. How could justice or fairness be applied when only one side of the story was heard and based on manipulated reason rather than facts. The tenancy commenced when the property was offered for sale and the owner and myself met to discuss price and possible terms. We could not agree on price so it was suggested that I rent the property for $900 weekly and see how could it is and we would negotiate selling price during occupation. I advised the owner that I would likely require to change and add few items, such as safety rail and security doors and so on. The owner obliged and advised that should it become necessary to attend any repairs that I should fix it and be reimbursed directly by himself as there is no need to involve the real estate agent. Soon after, and after having advised the owner of problem issues, I had attend to floor leakage in the bathrooms and replace and paint two ceilings, than new shower and repairs to shower roses and so on. As for the reimbursement, it was an issue that I thought we would discuss once we meet. On the first heavy raining session, the downstairs area that is a self contained three bedrooms area, a large section flooded badly, I contacted the owner and he sent his son to investigate. Since than, I have tried several times to address the flooding and have contacted the owner several times but not much was done. The flooding got much worse during the June - July months and that was when I expressed frustration and that I have had enough and required the issues resolved. In response, I was asked by the owner to formalise a sale offer, an issue that was raised previously just before Christmas 2010. 2 June 2011, I received a call from Val from H T Wills who advised me that I am behind on rent. I acknowledged that it was a couple of days late as I have paid till end of May. Val acknowledged the same. Few days later, Val contacted me again and advised that I am 2 months behind, I asked Val to explain how could I be two months behind when I had paid till end of May and it is still first week of June. Val then advised that I had paid til 24th May only and as payment is due in advance, I owed for part of May and all of June. Rental payment issue got worse as I received a further call stating that I am three months behind and that is how things became so frustrating for the payment of rental point of view. 20th July and after few days of severe water leakage in the downstairs area, I contacted the owner who advised that I should speak with the agent. My sister in law contacted the agent and was advised that no-one would attend to the water leakage or flooding problem till rent is paid up to date. In response, I sent the messages as emailed to the Tribunal on 17 August 2011. Should the owner wish for his property back, that is something that I cannot prevent and would not challenge. But and issue of relocation of my family is of great importance and I would need to deal with it appropriately. Furthermore, there is the issue of reimbursement of repair costs and damages that would need to be addressed. In reference to vacating the property, as I advised the owner on 17 August 2011, I would need till December to complete such a task as original agreement was meant to be for three years tenancy. Reimbursements of costs and damages that is an issue to could much easily be dealt with. I look forward to a new hearing date to be allocated so the facts could be examined and a true picture be presented that is representative of both sides. Regards, Nathan Elali". 10Apparently in response to that letter, the Tribunal made an order on 22 August 2011 staying until further order the operation of its orders for the payment of money and for termination and possession previously made on 17 August 2011. A copy of that order was sent to the tenant at a Hurstville Post Office box. 11The landlord's agent wrote to the Tribunal immediately on 22 August 2011 in response to the tenant's rehearing application. That letter is relevantly in these terms: "In response to the rehearing application the landlord has requested that the matter be dealt with immediately without further delay, due to the excessive arrears situation. As it was very difficult to communicate with Nathan Elali due to the fact that he did not answer my calls and only recently has started to respond to my SMS messages at a delayed time. The termination notice was hand delivered to the premises on 28/07/2011. The notice was given to Nathan's brother and sister-in-law who reside at the premises and was clearly explained that if the rent was paid on time and in advance then there will be no need to proceed with eviction. They assured me that they will speak with Nathan and let him know of the notice because they do not want to vacate. Several conversations later with Ada the sister-in-law and also discussions with his niece Sue, who also resides at the premises that the rent has still not been paid, and I have been instructed to proceed with termination and possession of the property. Once I applied to the tribunal I again notified Ada and advised her of the situation that I am now waiting for a hearing date. Once received the hearing date from the Tribunal I notified Ada and reminded her that still the rent was not paid. On Monday 15th August 2011 I called the house phone and advised Ada of the current rental situation that I still had not received any rent and the landlord has instructed us to continue with the hearing. Her response was, that they had told Nathan and he was going to pay the rent and that I should speak to him. I send Nathan a text message the day before the tribunal hearing and advising him again that the rent had not been paid and I have been instructed by the landlord to attend the tribunal hearing on 17th August 2011. He replied that he did not know and the mail should have been sent to his company address. I told him that the correspondence was sent to the property where everyone resides and that the occupants are well aware of the situation and advised that they were informing you. ***** Therefore, it leaves the landlord no other option other than to instruct proceedings with a tribunal hearing. Nathan has made claims that I have mislead him with incorrect information as to his rental status. In fact, he was sent tenant history ledgers to his email address, clearly indicating all the payments and where the rent has been paid to. He also, indicated via SMS to my mobile that he had received it and will be making payments. In fact this was incorrect, no payment was made. Only on the day of the hearing an amount of $3,500 appeared in the H T Wills rent trust account which was allocated to the tenant's ledger. (Attached tenant ledger). The landlord feels that rent is withheld because Nathan wants to purchase the property and this is his way of blackmailing him in doing so. Nathan made threats to the landlord that he will put a caveat on the property. Also, Nathan advised that should the tribunal hearing not be in his favour that he will pursue the matter to the District Court, and he wishes to remain in the property till December 2011. Attached SMS sent to the owner and forwarded to my mobile. In conclusion, Steve Kollias the landlord resides in Wollongong and has been placed in a financial predicament not being able to meet his mortgage repayments. He has recently under gone an operation on both his knees and is incapable of working until further notice. The rent from the property is his way of survival at the moment. The landlord has pleaded that this matter be dealt with urgently. In order to minimise his financial loss and move forward with his life." 12On 23 August 2011 the Tribunal made orders dealing with the tenant's rehearing application. It forwarded a copy of its orders to the tenant at 17 Springfield Avenue, Roselands and to the Hurstville Post Office box by letter dated 24 August 2011 in the following relevant terms: "1. The application for a re-hearing of [the] matter is not granted as the delegate of the Chairperson is not satisfied that the applicant may have suffered a substantial injustice. 2. The parties are to note that the orders made on [the] matter on 17/8/11 remain in full force and effect. Written Reasons The applicant's claim that he was not aware of the hearing date of the Tribunal is not supported by evidence. A notice of hearing was sent by the Tribunal to the residential premises on 4/8/11. That notice of hearing has not been returned to the Tribunal. The applicant was aware of the proceedings: No reasonable explanation has been provided as to why he did not attend. There is no evidence provided by the applicant for a rehearing to establish that the decision of the Tribunal was against the weight of evidence. The rent arrears were at the time of the hearing significant. No evidence has been provided to indicate that the rent ledger provided to the Tribunal was not correct. The tenant has failed to remedy the breach. APPLICATION FOR A REHEARING NOT GRANTED." 13The tenant was not content with that response or the result of its application and wrote a letter dated 26 August 2011 to the Tribunal in aid of a further application for a rehearing. It does not appear that a formal application was made but, as will appear, the Tribunal dealt with it as if it were. The tenant's letter is quite long but reference to all of what it says is important and instructive in the disposition of these proceedings. It was as follows: "Dear Registrar Steven Kollias and Ottoman Investments Pty Ltd - Rt 11/38073 Further application for rehearing and Order for Stay of Decision 1. I refer to matter RT 11/38073 concerning 17 Springfield Avenue Roseland NSW 2196 2. I also refer to: (a) the decision and orders made at the hearing on 17 August 2011; and (b) the orders made on 23 August 2011 refusing my application for re-hearing. 3. The purpose of this letter is to: (a) make a further application under section 68(9A) of the Consumer, Trader and Tenancy Tribunal Act 2001 (Act) for the re-hearing of the matter heard on 17 August 2011; and (b) ask the Chairperson of the Tribunal to make an urgent order under section 69 of the Act to stay the decision and orders made by the Tribunal on 17 August 2011 until this further application to re-hear has been determined. I understand that the eviction order is to be executed on Monday 29 August 2011 at 11am, which makes the need for a stay a matter of urgency. 4. I ask that the Chairperson of the Tribunal take into account the following considerations in determining my requests: (a) The notice of hearing was not communicated to me and, therefore, I did not receive the notice of the hearing on 17 August 2011. The first time I became aware of this hearing was when the agent contacted me at about 5:00pm on 16 August 2011. The addresses I had previously given to the agent were: (i) the address of my place of residence, 53 Hurstville Road, Hurstville Grove NSW; (ii) my postal address, PO Box 222 Hurstville; (iii) the address of my company, Ottoman Investments Pty Ltd, which is formally the tenant; and (iv) my email address, nathan@echl.com.au. (b) These are the addresses I use for correspondence intended for me in the course of my many and various business activities. Otherwise, I am unable to keep track of correspondence addressed to me that is sent elsewhere. I gave these addresses to the agent at the time of signing the lease for the tenanted premises, because I did not intend and in fact have not lived at the tenanted address. Yet no correspondence was ever sent to any addresses I gave the agent, let alone the notice for the hearing on 17 August 2011. (c) Moreover, in the days prior to 16 August 2011, I had been in contact several times with the agent, yet no mention had been made of the hearing date. (d) I was also not able to attend the hearing at such short notice as I received when the agent contacted me at about 5:00pm on 16 August 2011, because August is the holy month of Ramadan, which commenced on 1 August 2011. This religious event lasts until the end of this month. During this time, I am accustomed to keeping a number religious observances, including extensive daily fasting which begins around 5am till the breaking of the fast at around 5:30pm. Given that I had not known about the hearing date at least some days beforehand, it was next to impossible for me to attend the hearing on such short overnight notice. (e) During Ramadan, it would be highly problematic from a religious perspective if the orders made on 17 August 2011 were executed, especially over the remaining week of this month, as family members come to visit my mother, who is the eldest member of the family, as part of the religious and cultural observances. It would be embarrassing and disruptive if an eviction were to occur at this time. (f) The current occupants of the tenanted premises are my mother (who is 92 years old), my eldest brother (who is 75 years old), my niece and her husband and children. In recent months, they have experienced serious flooding in the lower level of the house and other leaks which have caused significant inconvenience and disruption. I have asked the landlord on a number of occasions to fix the flooding and leakage problems. Nothing has been done about them. (g) During the heavy rains and severe storms in July 2011, the premises flooded continually and on many occasions reaching close to power-points. I contacted the landlord several times. (h) Because of these problems, I had some reservations about paying the rent given the conditions of the premises and no action on the landlord's part to address the flooding problem which continued to cause difficulties and disruption, especially for me niece. (i) I have annexed, by way of example, copies of communications I received in relation to these problems: (i) Message from my niece Sue Elali on 20 July 2011 (Annexure 'A'); (ii) Message from me to the landlord on 20 July 2011 (Annexure 'B'); (iii) Messages from me to the landlord on 22 July 2011 (Annexure 'C'). (j) On 16 August 2011, after communications with the agent and despite no action taken by the landlord to address the flooding problems, I deposited $3,500 into the agent's CBA account as a gesture of goodwill to meet part of the outstanding rent. In light of the circumstances I have described above, I have not had a fair and proper opportunity to put my case before the Tribunal and test the evidence and submissions made by the landlord and his agent. This is the substantial injustice I put before the Chairperson as a result of not having had the opportunity to put before the Tribunal the circumstances set out above. I respectfully ask that the Chairperson grant me a re-hearing of this matter and make an urgent order staying the orders made on 17 August 2011 until this further application for re-hearing has been determined. Yours faithfully Nathan Elali." 14With commendable alacrity, the Tribunal dealt with this further application on 29 August 2011 and communicated its decision to the tenant by letter of that date in these terms: "On 29 August 2011 the application to the Chairperson for a rehearing of [the] matter ... was not granted as the delegate of the Chairperson was not satisfied that the applicant may have suffered a substantial injustice. The application was considered under section 68 of the Consumer, Trader and Tenancy Tribunal Act 2001 (copy attached). In considering your application the delegate of the Chairperson must be satisfied that the applicant has suffered a substantial injustice because: (a) the decision of the Tribunal in the completed proceedings was not fair and equitable, or (b) the decision of the Tribunal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the completed proceedings were being heard). Written Reasons The rehearing applicant refers to a facsimile sent by the Agent on 26 August 2011 as the new evidence. The facsimile refers to negotiations between the parties and the circumstances in which the landlord would be prepared to enter into a new tenancy agreement. These are not matters which justify granting a rehearing of the original application. The rehearing applicant also relies on matters contained in his letter of 26 August 2011. The issues as to service and receipt of the notice were the subject of the first rehearing application and no significant new evidence is provided in support. The amount paid of $3,500 does not prevent the operation of the orders if the amount of arrears are [ sic ] over $7,000. The rehearing applicant does not explain in any sufficient detail why the orders could not be enforced due to the time of year. APPLICATION FOR A REHEARING NOT GRANTED." Consideration 15The tenant relied upon a single affidavit from Nathan Elali sworn on 2 September 2011 from which most of the matters already referred to have been derived. Mr Elali was cross-examined. The landlord relied on two affidavits. The first was sworn by Val Atkinson on 6 September 2011. Ms Atkinson was cross-examined. The second was sworn by Steven Kollias on 7 September 2011. Mr Kollias was not cross-examined. 16The principal issue that emerged for consideration before me was whether or not the tenant was given more than one day's notice of the hearing in the Tribunal. It was the tenant's principal contention in submissions to the Tribunal and in this Court that the failure to grant an adjournment was a denial of procedural fairness because notice, or at least adequate or sufficient notice, of the hearing in the Tribunal on 17 August 2011 was not provided to it. The relevance of that issue must be considered in the light of the relief that this Court can grant on an application such as the present application. Section 65 of the Act sets this out: " 65 Review by prerogative writ etc generally excluded (1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of: (a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or (b) a declaratory judgment or order, or (c) an injunction, in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter. (2) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the jurisdiction of the Tribunal to determine the matter was disputed if the ground on which the relief or remedy is sought is that: (a) the Tribunal gave an erroneous ruling as to its jurisdiction, or (b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed. (3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that: (a) the Tribunal had no jurisdiction to make the order, or (b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness." 17Both parties proceeded in this Court upon the basis that I should make a finding about, or upon, the issue of what notice the tenant received of the hearing in fact so as in effect better to inform a consideration of whether or not the Tribunal's original decision or its decision on the rehearing applications amounted either alone or in combination to a denial of procedural fairness. 18The lease itself, which Mr Elali signed on behalf of the tenant, provided for the service of termination notices upon it. Clause 4 is in these relevant terms: " HOW NOTICES ARE PROPERLY GIVEN 4. 1 A notice of termination given to a tenant may be: a posted to the tenant's home; or b given to the tenant personally; or c given to a person over 16 who normally pays the rent; or d given to a person over 16 at the premises to pass on to the tenant." 19Section 78 of the Consumer, Trader and Tenancy Tribunal Act deals with service of documents. It provides relevantly as follows: " 78 Notices, service and lodgment of documents (1) For the purposes of this Act, a notice or document may be given to a person (and a document may be served on a person): (a) in the case of a natural person-by: (i) delivering it to the person personally, or (ii) leaving it at, or by sending it by post to, the residential or business address, or other address for service, of the person that was last known to the person giving or serving the document, or (b) in the case of a body corporate-by leaving it at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate, or (c) ... (3) Nothing in this section affects the operation of any provision of any law or the rules of a court authorising a document to be served in a manner not provided for by this section. (4) The regulations may: (a) provide for additional means of serving, giving or lodging any notice or document, and (b) provide that a notice or document of a class specified by the regulations be served, given or lodged only in the prescribed manner." 20Regulation 50 of the Consumer, Trader and Tenancy Tribunal Regulation 2009 is in the following relevant terms: " 50 Service of documents (1) An application for the purposes of any proceedings must be served on each of the other parties within a reasonable time before the return date endorsed on the application by the Registrar or in accordance with directions under subclause (6). (2) Service of a summons is to be effected... (3) Service of any other document may be effected in any manner provided by section 78 of the Act or in any of the following ways : (a) if the person has an address for service on record with the Registry: (i) by pre-paid ordinary post addressed to the person's address for service, or (ii) if the person's address for service is a box in a document exchange, in New South Wales, of Ausde Pty Ltd, by leaving a copy in that exchange box or in another exchange box for transmission to that exchange box, (b) in such other manner as may be directed by the Chairperson, a Deputy Chairperson or the Registrar in a particular case. (4) Service by post is taken to have been effected on a person at the end of the fourth working day after the date on which the document was posted to the person. (5) ...". [Emphasis added] 21Section 223 of the Residential Tenancies Act also deals with service. It is relevantly as follows: " 223 Service of notices or other documents (1) A notice or other document that is authorised or required by this Act or the regulations or a residential tenancy agreement to be given to or served on any person may be given or served by: (a) in the case of a natural person: (i) delivering it to the person personally at the person's residential or business address, or (ii) delivering it personally to a person apparently of or above the age of 16 years at the person's residential or business address, or (iii) delivering it in an envelope addressed to the person and leaving it in a mailbox at the person's residential or business address, or (iv) sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or (v) sending it by facsimile transmission to the facsimile number of the person, or (b) in the case of a corporation: (i) leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the corporation or to an address specified by the corporation for the giving or service of documents, or (ii) sending it by facsimile transmission to the facsimile number of the corporation, or (c) ... (2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner. (3)...". 22No point is taken that the service of any document upon the tenant was not properly effected in some formal sense because it failed to accord, or to comply, with a mandatory or prescribed mode or method of service. This is unsurprising in the scheme of these Acts and the Regulation. The tenant appears tacitly to acknowledge that the application was sent to the subject premises in accordance with such manner as may have been directed in this particular case. In any event, there is not in this case some formal or specified mode of service or the giving of notice that operates as a jurisdictional or substantive precondition to the valid commencement or continuance of the proceedings. This is to be contrasted, for example, with old provisions such as s 222AOE and s 222AOF of the Income Tax Assessment Act 1936 . The tenant's complaint is rather that, whether the application was or was not somehow properly or formally served, it did not manage as a matter of fact to reach the tenant, and so actually to come to its notice or attention. Important evidence was given by both parties about this issue. 23Mr Elali's evidence about this is to be found in the following paragraphs of his affidavit: " Notice of hearing on 17 August 2011 13. At about 5pm on 16 August 2011 the agent for the second defendant, Val Atkinson, sent me a text message on my mobile phone asking me if I was attending the hearing at the first defendant on 17 August 2011. This was the first notice the plaintiff or I had received of the hearing for the second defendant's application for termination and possession. 14. Prior to 5pm on 16 August 2011 I recall having several conversations and text messages with the agent for the second defendant relating to my request for repairs to be undertaken at the property and her request to make payment of arrears of rent to the second defendant. At no time during any of our communications prior to about 5pm on 17 August 2011 [ sic , 16 August 2011] did the agent for the second defendant inform me of an application for termination and possession or the hearing of the application on 17 August 2011. I recall the agent for the second defendant requested I make some payments of outstanding rent prior to the second defendant making repairs to the property. I then made a cash payment of $3,500 into the account of the agent for the second defendant on 16 August 2011 as a gesture of goodwill so the second defendant would start repairing the property. 15. I have never received a notice of termination pursuant to the Residential Tenancies Act 2010, the second defendant's application for termination and possession, or the notice of hearing at the first defendant on 17 August 2011. 16. The plaintiff has never received a notice of termination pursuant to the Residential Tenancies Act 2010, the second defendant's application for termination and possession, or the notice of hearing at the first defendant on 17 August 2011 at either its registered office or principal place of business or at all." 24Mr Elali was cross-examined. Some of that evidence is as follows: "Q. The lease started on these premises in about September of last year, didn't it? A. That seems about right. Q. Since that time there have been about 12 members of your family in the premises? A. Not from the beginning. The past three or four months, so that number has increased. Q. Your brother Alan has been in occupation of the premises? A. From day one, that's right. Q. Your sister in law Aida has been in occupation of the premises? A. That's right. Q. Since they have been in occupation of the premises you have had regular talks with them, haven't you? A. I do. Q. At least once a week? A. Visiting. Yes, that's right. Q. Sometimes more than once a week? A. That's right. Q. You were informed by one of them that they had received a termination notice from the landlord of the premises? A. No, I didn't. Q. Are you saying that you had discussions with them and they never mentioned it to you? A. That's right. Q. Where are those people today? A. At home I'd say. Q. They haven't put in any evidence, have they? A. No, they haven't. Q. There is nothing to stop them coming to court, is there? A. Oh, well, it depends who you want to come to court. HIS HONOUR Q. I think the question is there is nothing that would prevent them, by reason of ill health, location overseas or imprisonment, or something over which they have no control, that would prevent them being here to give evidence if needed? A. Sorry, that's what I meant. It depends who you are asking for. My brother is due for a substantial operation very soon. My mum is 93, so it depends who you need to come to court, that's what I mean. Q. What is the nature of the operation that your brother is it your brother Alan? A. That's right. Q. What is the nature of the operation that Alan is anticipating? A. Corrective surgery to five disks in his neck. Q. And your sister Aida, how old is she? A. She is four years older than me, that makes her early 50. Q. Is she in good health? A. Not really. Q. What is wrong with her? A. I know she has huge swelling of the feet and a few other problems, as you tend to. She had a scare really I don't ask personal questions relating to some cancer in the breast, I think I'm not really certain. MENADUE Q. Really both of them could make it here to court today, couldn't they, if they had to come? A. Yes. Q. You were well aware of the termination notice well before the tribunal hearing on 17 August, weren't you? A. No. Q. You were well aware that the tribunal had sent to the rented premises a notice of hearing, weren't you? A. No. Q. Your evidence is that the first time you became aware of the tribunal hearing was 5pm on 16 August, correct? A. About 5pm, that's right. Q. You say that the real estate agent, Val Atkinson, informed you by SMS, correct? A. That's right. She questioned if I'm attending that day, the next day." 25Mr Elali also deposed in his affidavit to the reasons that he said prevented him from attending the hearing at the Tribunal on 17 August 2011. The relevant paragraphs are as follows: " Hearing on 17 August 2011 19. I was unable to attend the hearing on 17 August 2011 at the first defendant as I had a commitment to attend a conference relating to a long standing Court case involving me and some other companies that I control. I was not unable [ sic , able] to rearrange this commitment on such short notice nor was I able to properly prepare for the hearing. 20. At 9.37am on 17 August 2011 I sent the first defendant an email advising, amongst other things, that I could not attend the hearing on the day. [The letter is annexed]. 21. At 9.50am on 17 August 2011 I sent the first defendant an email attaching photos supporting the matters raised in my previous email sent that morning. [The letter is annexed]. 22. The first defendant heard the matter on 17 August 2011 and made orders, amongst other things, terminating the tenancy agreement and requiring possession to be given to the second defendant immediately. [The orders are annexed]." 26Mr Elali was also cross-examined about his reasons for not attending the hearing. Some of that evidence took the following form: "MENADUE Q. So, apart from mentioning to the Tribunal, that you had only had late notice you didn't give any further reason did you? A. They didn't ask. Q. Could you look over at page 80 of your affidavit? A. Yes. Q. This is a letter, part of a letter dated 26 August 2011? A. That's right. Q. Which you sent to the tribunal? A. I did. Q. If you look over at page 80 at paragraph (d)? A. Yes. Q. You say there don't you that the reason why you couldn't attend the Tribunal was because of Ramadan? A. That's one of the reasons that's right. Q. You do not say it is one of the reasons do you? A. No I do not. Q. You say it is the reason? A. It is. It is one of the reasons exactly correct. HIS HONOUR Q. No I think the question you are being asked is: In little paragraph (d) on page 80 that's the reason you state in that paragraph. Is that right or not? A. That is correct. That is what I stated. MENADUE Q. In fact. The fact of Ramadan wouldn't have stopped you attending a hearing in the city the next day? A. It wasn't in the city. It was at Hurstville. Q. At Hurstville then? A. No it would not. Q. That is not the explanation which you give in the affidavit you filed in these proceedings is it? A. Sorry? Q. The affidavit which you have filed in these proceedings gives a very different explanation for why you couldn't attend the Tribunal hearing on 17 August does it not? A. Possibly because the reasons there, acting as far as I could to provide all the reasons they wanted from me; just giving them all the evidence they needed. Q. Are you saying you are giving them all the evidence they needed for the second application? A. No, as time goes by you have more stuff at your disposal. More documents at your disposal. Q. Could I take you to paragraph 19? A. From that letter? Q. Paragraph 19 of your affidavit in these proceedings? A. Yes. Q. At paragraph 19 of your affidavit in these proceedings, you say the reason you couldn't attend a Tribunal hearing on 17 August was because you had a conference to attend don't you? A. That's correct. Q. You mention actual nothing about Ramadan? A. In this one here that's right. HIS HONOUR Q. Where was the conference? A. At Pitt Street Sydney. Q. Who attended? A. Darren Massey a barrister and a few other parties. MENADUE Q. You have been issued with a notice to produce in relation to that conference haven't you? A. Yes I have. Q. You have produced absolutely no documents have you? A. I don't know if they have received anything yet. Q. Your barrister got up and said you haven't produced any documents didn't he? A. That's correct. Q. In fact there was no conference was there? A. There was a conference. Q. You are just making this up as you go along because you know you need an excuse for not having attended on the Tribunal on 17 August correct? A. That is not true. Q. Are you saying that you forgot to mention the conference when you wrote to the Tribunal on 26 August? A. No, as you are reading the application, the answers are based on what they are asking you and I simply just answered every question that I was actually asked. HIS HONOUR Q. Could I take to you page 44 of your affidavit? A. Sure. Q. Apropos your last answer you were asked at the bottom of that page: "When did you first become aware of this evidence?" I think that was the late notice. You say: "I did not attend the hearing due to the very late advice hence nothing was provided earlier ". I think you were being asked why in that box, if you were troubled by a previous commitment at a conference in Pitt St, you didn't mention it there. What's your answer to that? A. They say why I didn't. If I was given at least a day or two I would be able to re schedule things. So the reason I didn't attend was the actual late advice, not the actual meeting itself, if you had one or two days to re schedule things. Q. Sorry, we maybe at cross-purposes. I think the burden of the question was if your inability to re schedule a meeting was at the heart of your inability to attend the Tribunal why was there no reason when you tick that box? A. Because they asked me the reason not to attend. The reason was because I was not given enough notice. If I had been given enough notice I would have been able to re schedule the next day. Q. When did you first find out? A. 5 pm the afternoon before. So I rang the Tribunal and they advised me to send an Email and say why I didn't attend and I did exactly that. Q. If you found out the previous evening why weren't you? A. I found out at 5 pm. I couldn't re schedule the other meetings. Q. If you found out 5 pm the previous afternoon, what was preventing you attending the hearing? A. Because I had the precommittments in the other meetings I had to attend the very next morning. Q. Was that you say at a barristers chambers? A. It was several meetings. One of them at the barristers chambers in Sydney that's right. Q. What time did they commence? A. I don't have the record but they were pretty intensive so I didn't finish until pretty late that day. Q. What time did they commence? A. Very early in the morning. I think I was on an 8 o'clock train or 7 o'clock train into town. That is why the Email I send was from my phone I am not sure but it might have been the old phone. MENADUE Q. Did you mention this Tribunal commitment to Mr Massey? A. No. Q. Mr Massey is a lawyer isn't he? A. Yes, he is. Q. Didn't you think you should ask him whether or not you should go along? A. No, because I knew what I needed to do how important that meeting was as well. It was prescheduled and needed to happen. I asked the CTTT; I couldn't attend and I expected them to come back to me and they didn't. Q. Do you know where Mr Massey is today? A. No. Q. Have you tried to make any attempts to get Mr Massey to come and give evidence? A. No. Q. In fact there was no meeting? A. There was. Q. And you are making this up? A. No I didn't. Q. If there was you would have mentioned it at the same time as you mentioned Ramadan wouldn't you? A. No, I was simply answering the question as it was provided." 27It should be noted that the notices to produce directed to the tenant, to which reference is made in that evidence, required production, among other things, of all documents in respect of the conference referred to in paragraph 19 of Mr Elali's affidavit as well as all pleadings in respect of the court proceedings that are also referred to there. A call upon these notices did not result in the production of any documents at all. 28Ms Atkinson's affidavit dealt with the issue of whether or not the tenant received, or might be taken to have received, notice of the hearing at the Tribunal on 17 August and related matters. The relevant paragraphs of her affidavit are as follows: "16. On 28 July 2011, I personally attended the premises and delivered the termination notice. The notice was handed to Nathan's brother and sister in law who reside at the premises. I explained to them and said 'if the rent is paid, then there will be no need to proceed with the eviction'. Nathan's brother said 'we will speak to Nathan and let him know of the notice as we don't want to leave'. The sister in law also confirmed that contact will be made with Nathan. I did not receive any response from Nathan and no rent was paid into the account for the arrears. 17. On 2 August 2011 at 9.30am I had a number of conversations on the phone with Aida, the sister in law, and with the niece, Sue, about the rent not being paid and that the matter will proceed to a hearing at the Tribunal for possession of the property. 18. I again contacted Aida 3 August 2011 and said 'I have now applied to the Tribunal and I am waiting to be notified of the hearing date'. 19. On 9 August 2011 I received notification from the Tribunal as to the hearing date. I contacted Aida on the phone and said 'The hearing date is on the 17 August and the rent has still not been paid'. 20. On 15 August 2011, I called the house phone and spoke to Aida. I said 'I still have not received any rent and the landlord has instructed us to continue with the hearing'. She said 'we have told Nathan and he has said that he will pay the rent and you should speak to him'. 21. I tried to contact Nathan by phone a few times, but I could not get in touch with him. He did not make any contact with me at any time. I sent Nathan a text message on 16 August 2011. Annexed hereto and marked 'F' are copies of numerous text messages exchanged between myself and Nathan. He replied that he did not know about the Tribunal hearing and that the mail should have been sent to his company address. I said 'the correspondence has been sent to the property where everyone resides and are aware of the situation and that you were advised of the situation'." 29Although Ms Atkinson was cross-examined on some issues, it was never put to her that anything that she said in these paragraphs was incorrect or did not occur. Some of the cross-examination should, however, be recorded: "Q. Is it your evidence that you never delivered a copy of the actual application to the CTTT to the premises? A. It is the job of the - it is the tribunal's responsibility to notify the tenant and the agent. Q. So is it your evidence to his Honour that you didn't deliver a copy of the application to the premises? A. I delivered them a copy of the application that was received by myself from the tribunal, so they were very well aware of the situation. Q. You left it with who at the premises? A. Aida Elali, Nathan's sister in law. Q. At that point in time did you think it was a good idea to get in touch with Mr Elali and let him know that an application has been made at the CTTT? A. The application was delivered to the premises, and it was my job to do that. The hearing was I did try to communicate with Nathan on a few times. The last, final time I did actually call Nathan SMS Nathan to confirm whether he was coming or not. Several conversations were made between myself and his sister in law and his niece, Sue, that the application was scheduled, and I still haven't had any communication with Nathan and what were they intending to do. ***** Q. You prepared and lodged your application on 3 August? A. I did. Q. Your evidence just a moment ago was that you thought that you would send him an SMS so as to give him an opportunity to negotiate, then you could avoid the tribunal hearing? A. If possible. Q. You were aware that the tribunal hearing was on the 17th? A. Correct. Q. You filed your application on the 3rd? A. Correct. Q. You thought that the optimal time to give Mr Elali the opportunity to negotiate was at 5pm on the day before the hearing? A. No, that was to confirm whether he was going to attend or not going to attend, or what his intentions were all together to try and avoid not going, as he had not communicated with me in the past. Q. You had between 3 August and 16 August to get those negotiations rolling? A. I was communicating with his sister in law and she was telling me and she told me clearly, and his brother, that they were communicating with Nathan, and he was well aware of what was happening. Q. Why didn't you send an SMS to him at some point between 3 August and 16 August saying, "What is your position? I'm told that you are informed as to what is going on. Do you wish to negotiate?" A. I've done my communications, and I don't think I needed to do further. Q. The fact is that you designed upon not having any communication with Mr Elali in respect of the hearing on the 17th in order to ambush him? A. That's not true. Q. After you SMS Mr Elali on the 16th, did you speak to him? A. After the SMS? Q. Yes? A. I don't recall. I think we did communicate, I think we did speak. Q. What did he say? A. He wasn't aware of the application. I said, "I don't understand how you couldn't be, because your sister in law clearly told me that she had told you basically." He said, "Well, I'm going to put an application to the tribunal to have it reheard." I said, "No problem, I'll be attending regardless, and I will wait for the results"." Procedural fairness in the CTTT 30The parties referred me to a number of cases from which they sought to draw support. On behalf of the tenant, Mr Bors of counsel drew my attention to an early decision of Master Harrison (as her Honour then was) in Blair v Lawton [2003] NSWSC 380. That was a matter concerned with an alleged non-receipt by the plaintiff of a notice of hearing from the Tribunal. Helpfully for present purposes, her Honour had this to say at [6] - [10]: " Denial of natural justice and procedural fairness [6] In relation to natural justice, Professor S A de Smith, Judicial Review of Administrative Act, 2nd ed., pp 180-181 has stated: 'Natural justice generally required that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position: (a) to make representations on their own behalf; or (b) to appear at a hearing or inquiry (if one is to be held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet.' [7] In Kioa v West (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing such as to give it a reasonable opportunity to meet that case and to advance its own. These statements are similar to those expressed by Professor de Smith and referred to earlier. Brennan J (as he then was) stated at 628: 'A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interest which the repository of the power proposes to take into account in deciding upon its exercise.' [8] In relation to procedural fairness, Mason J stated in Kioa at 584-585 that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. [9] In Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951 Grove J stated at para 25: 'There is ample authority that procedural fairness is denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequate opportunity to prepare or present a case: Sullivan v Department of Transport (1978) 20 ALR 323; Opitz v Repatriation Commission (1991) 29 FCR 50; Humphrey v Wills (1989) VR 439.' [10] Whether there is a denial of procedural fairness depends on the circumstances in each case." 31In Berou v CTTT [2007] NSWSC 1046 Harrison AsJ said this at [12], [14] and [15]: "[12] At the outset, it is helpful to set out some of the provisions of the Act. The functions of the Tribunal are to adjudicate disputes between consumers and commercial disputes between landlords and tenants. The Tribunal is not constrained by the rigour of the courtroom. Its objects are to ensure that the Tribunal is accessible, its proceedings are efficient and effective, its decisions are fair and to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner. The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 28)... Procedural fairness in Tribunal [14] Section 28 of the CTTT Act reads: '28 Procedure of Tribunal generally (1) The Tribunal may, subject to this Act, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand: (a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings. (5) The Tribunal ... (g) may dismiss any proceedings if the applicant fails to attend a hearing, ...' [15] Section 35 of the Act reads: 'Opportunity for parties to present case The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity: (a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and (b) to make submissions in relation to the issues in the proceedings'." 32In Dragus v CTTT [2004] NSWSC 819 her Honour also commented as follows at [11]: "[11] Section 35 of the Act provides that the Tribunal must ensure that each party in any proceedings is afforded a reasonable opportunity to call or give evidence and otherwise present the party's case and to make submissions in relation to the issues in the proceedings. Whether there is a denial of procedural fairness depends on the circumstances in each case. What the principles of natural justice or procedural fairness require in particular circumstances depends on the circumstances known to the CTTT at the time of the exercise of its power or further circumstances which, had if acted reasonably or fairly, it would have known - see Kioa v West (1985) 159 CLR 550, particularly at p 762." 33His Honour Hoeben J also commented relevantly in Kelly v Chulio [2007] NSWSC 677 at [28] - [31] in these terms: "[28] The second matter raised by the plaintiff is the failure to grant an adjournment to Mr Kelly when he requested one. The exchange between the member and Mr Kelly has been set out above. [29] A refusal to grant an adjournment may give rise to procedural unfairness. Some guidance is provided in Italiano v Carbone [2005] NSWCA 177: '[102] The relevant question is what test a court exercising supervisory jurisdiction should apply in considering whether the request was "reasonable". In Touma v Saparas [2000] NSWCA 11, this Court applied the principles in House v R (1936) 55 CLR 499 in determining whether a District Court judge had erred in refusing an adjournment, so as to render the trial before him procedurally unfair: at [27]. The minimum requirement of fairness, consistent with a legal exercise of power, will depend not only on the circumstances of the case, but also upon the statutory regime. The fact that the provisions of the CTTT Act referred to above permit the Tribunal a considerable area of discretion in moulding its own procedures suggests that the bounds of legality may need to be expanded beyond those which might apply in other circumstances. Indeed, it is well understood that the requirements of natural justice may need to be modified from time to time "to meet the particular exigencies of the case": see Kioa v West (1985) 159 CLR 550 at 615, per Brennan J.' [30] The matters which the member took into account in refusing the adjournment were the fact that a number of orders had been made by the CTTT in relation to both sides serving experts' reports. He also took into account the failure on the part of Mr Kelly to request an adjournment before the proceedings started. Finally, the member took into account the inconvenience and potential unfairness to the other parties of granting an adjournment at such a late stage in the proceedings. [31] It seems to me that these were all relevant considerations. Accordingly, it cannot be said that the member took into account irrelevant considerations in exercising his discretion to refuse the adjournment." 34Finally, in Brennan v Consumer, Trader & Tenancy Tribunal [2010] NSWSC 1240, his Honour also said this at [48]: "[48] As Italiano v Carbone demonstrates, the supervisory power of this Court can be exercised to intervene where procedural unfairness occurs in proceedings before an inferior Tribunal. The question remains, however, whether the Court should intervene. In other words would the attendance of the plaintiff have made any difference to the outcome?" Disposition 35In Mills v Consumer, Trader & Tenancy Tribunal [2003] NSWSC 782, Master Malpass had cause to comment upon matters which are to some extent redolent of matters that arise for consideration before me. The learned Master said this at [19] - [26]: "[19] Largely, the Tribunal is in a position to determine its own procedure (see inter alia s 28 of the Act). Whilst it is appreciated that it is required to act as informally as the circumstances permit and that substantially it deals with litigants in person, this case (like many others that have been brought to this Court in recent times), throws up the problems that can arise when adjournment applications are dealt with by way of telephone or facsimile transmission. There have now been a number of appeals before this Court which have arisen from a refusal of an adjournment application and/or the plaintiff not attending before the Tribunal. [20] There seems to be a fashionable trend to allege denial of procedural fairness consequent upon a refusal of an adjournment application or a non-attendance. The trend is founded on misconception. Generally speaking, if there be an avenue of appeal, it could be expected to be by way of challenge to the exercise of the discretion. [21] In this case, the refusal of the adjournment application did not occasion denial of procedural fairness. There was an awareness that the application may be dealt with in the absence of an attendance. There was an awareness that the application for adjournment would be dealt with by the Tribunal Member at the hearing. The plaintiff should have been aware that the application may not be granted. A reasonable opportunity was had to present a case. Advantage was not taken of that opportunity. A decision was made not to attend and to proceed on the basis that the application would be granted. [22] I put to one side the question of whether or not there was genuine reason for not attending. It is not a question that needs to be determined. However, I will make certain observations. It was not a reason advanced in the facsimile and it was not a matter which would appear to have to be kept "private". One of the reasons advanced suggests that they were not ready to proceed (witnesses on holidays). [23] Assuming that there was a requirement for an attendance at their home on 13 January 2003, nothing has been said to suggest that it was not possible for one of the parties to be at their home for some time during the day and for at least the other to attend before the Tribunal at 2.00 pm. [24] The facsimile reflects a disturbing trend manifested by some litigants in person. It is now not an unusual practice for such facsimiles to be received by a court or tribunal shortly before the time of hearing. Inevitably they give rise to the suspicion that it is sought to force an adjournment on the court and the other parties. If it is granted it can be expected to cause prejudice to others and is disruptive to the conduct of the court's business. [25] In this case, the facsimile transmission has the characteristics of arrogance. It presents itself as a "Notice of non attendance" and calls upon the Tribunal to respond by telephone. At the very least it manifests a lack of respect for the Tribunal. Indeed, it might be said to be bordering on contempt. [26] I now turn to the not granting of the rehearing. The plaintiff was given a reasonable opportunity to put her case on the rehearing. In my view, there is no basis whatsoever for contending (if indeed, such an allegation is made) that there was any denial of procedural fairness in relation to it." [Emphasis added] 36In the particular circumstances of this case I am satisfied that Mr Elali, and hence the tenant, received notice or otherwise became aware of the Tribunal hearing scheduled for 17 August 2011, and that this occurred well before that date and in all probability sometime very shortly after the delivery of the Tribunal's notice to the subject premises. It follows from that conclusion that I reject Mr Elali's evidence about this. It therefore becomes important that I give my reasons for coming to that view. There are several. 37First, there is no evidence to suggest that the Tribunal's correspondence did not reach the Springfield Avenue premises in the normal course of the post. The tenant did not argue that there was any reason why it would not have. The Tribunal material indicates that their correspondence was not returned. In those circumstances I find that it is probable to a point approaching certainty that Mr Elali would have been handed such correspondence by members of his family who lived there and that he would have read it. His own evidence was that he visited the premises at least once a week and sometimes more than that. There is no evidence to suggest that he had had difficulty in the past receiving correspondence addressed to the tenant or to him personally at that address. 38Secondly, the tenant failed to call any members of Mr Elali's family or other occupants of the premises to give evidence about what mail may have been received or not received at the premises. The trigger for an anticipation that such evidence might have been expected was the affidavit evidence from Ms Atkinson about her various conversations and dealings with these people. I consider that an inference clearly arises that nothing that any of the occupants of the premises could have said about the issue would have assisted the tenant. This extends both to the question of what correspondence may have arrived at the premises from the Tribunal as well as the occupants' various conversations and dealings with Ms Atkinson to which she deposes. 39Thirdly, Ms Atkinson gave clear and uncontradicted evidence that she spoke on several occasions with some of the occupants of the premises about the upcoming Tribunal hearing and that they assured her both that they would speak to Mr Elali, and later that they had spoken to him, about it. Paragraphs 16 to 20 of Ms Atkinson's affidavit make it clear that she informed named members of the household that the Tribunal hearing was scheduled for 17 August 2011 and that they told her that they would tell Mr Elali. These people had a personal interest in remaining in the premises and I find it completely unlikely that they would not have relayed any concerns that they may have had about that if Ms Atkinson was constantly raising the matter and seeking some definitive response. Ms Atkinson's version was not put in issue during her cross-examination. Nor was the content of her letter dated 22 August 2011 that she sent to the Tribunal in response to the tenant's rehearing application. Her oral evidence was consistent with what she said in both her affidavit and her letter and I found her to be a most believable witness. It follows that I disbelieve Mr Elali's evidence that he was not informed by members of his family residing at the premises that the Tribunal hearing was approaching. 40Fourthly, the content and timing of two text messages sent by Mr Elali to Mr Kollias are instructive. They are annexed to Ms Atkinson's affidavit and neither their authorship nor their authenticity became the subject of any controversy in these proceedings. The first was sent to Mr Kollias at 2.22pm on 12 August 2011 in these terms: "Hi Steve. Trust your operation went well. I have asked Val this morning to provide amount required to fulfil rental commitment till end of December. As you are aware, particularly due to flooding, I can not carry on without major repairs. Hence, we would to establish a termination agreement or a sale agreement before end December. Nathan" 41The second message was sent to Mr Kollias at 9.22am on 18 August 2011 in these terms: "Hi Steve. Val delivered an eviction notice to Springfield Street property. I'll appeal the decision tomorrow and that fails, I'll have no choice but to commence proceedings in the district court. This is not what I want but have little choice. If you want your house back, it is your right but I can not vacate family before December." 42The first message was sent in the shadow of the approaching hearing. Although it does not refer to the hearing, it confirms that Mr Elali had spoken to Ms Atkinson that same day. I find it difficult to accept that Mr Elali, as a matter of pure coincidence, would then have sought spontaneously to contact the landlord and offer to discuss the long outstanding rent for the premises if he had not been prompted to do so by some matter of current and urgent significance. Ms Atkinson said that she received notification from the Tribunal of the hearing date on 9 August 2011 and that she contacted Mr Elali's sister-in-law by phone and informed her of this. Three days later Mr Elali asked Ms Atkinson for the amount required to fulfil the rental commitment until the end of December. In my view this uncharacteristic enthusiasm for complying with the tenant's obligations, in the face of a history of relevant delinquency, is more probably than not explicable only by reason of Mr Elali's need to make arrangements for his family because of the hearing that was then only five days away. 43The second message is even more significant in my view. If Mr Elali had been ambushed, to adopt the language of his counsel when cross-examining Ms Atkinson, because he was given little or no notice of the hearing, I find it to be incredible that that matter would not have received at least some passing reference in the message. This is particularly so given its otherwise clearly dissatisfied tone. Instead, the message conveys the mood of a person disgruntled with the fact that his earlier attempt to reach some agreement had been rebuffed and is consistent with the fact that the Tribunal decision was both anticipated and inevitable. Mr Elali would not in my view have expressly referred to the "decision" without also referring to the fact that it was unfair for him to have received no proper or sufficient notice of the hearing that produced it if that were indeed either his opinion or the fact. 44The decision of the Tribunal was in any event not one that was made in the face of either a credible explanation of why the tenant could not be at the hearing in the first place or what defence it proposed to raise that would have led to a different result in the second place. The Tribunal's statement that the tenant advanced no convincing reason, or indeed any reason at all, for requesting the adjournment, is wholly unexceptionable. Mr Elali did not mention that he had a conference with his legal advisers in relation to other proceedings in his email to the Tribunal. It is surprising that that would not have been the first thing that he mentioned if it were true. Notwithstanding this conference, that required him to travel into the city by train at seven or eight o'clock in the morning, he was still able to send his first email at 9.37am and then a second email "with a few images for the Member's perusal" at 9.50am, by each of which times the conference might reasonably be expected to have been in full swing. The evidence does not permit me to make a positive finding about that but the tenant's response to the notice to produce gives rise in my view at least to an inference that there was no conference at all because nothing was produced. An affidavit from Mr Elali's barrister could have dispelled any doubt about it but none was forthcoming. 45Moreover, if the holy month of Ramadan had caused him a personal devotional inconvenience, of the sort that Mr Elali referred to in later correspondence with the Tribunal, it is also incredible that he did not mention that in his email to the Tribunal as well. I leave to one side what appears to be an unexplained contradiction between the fact that Ramadan made it difficult for Mr Elali to attend the Tribunal hearing but did not apparently intersect adversely with his ability to attend a conference in Sydney with his legal counsel. 46I accept that there is ample authority that procedural fairness is denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of an adequate opportunity to prepare or present a case. However, there was no denial of procedural fairness here. Mr Elali knew all along that the Tribunal hearing was scheduled for 17 August 2011 and failed to attend. He had no good reason for taking that course and he proffered no good reason to the Tribunal in support of his application for an adjournment. He was neither deprived of an adequate opportunity to prepare nor present his case. The tenant's defence to the claim has also never been articulated. There does not appear to be one. The lease contained no relevant abatement clause and the claimed value or cost of repairs or loss or inconvenience caused by water damage has never once been quantified in any evidence that I have seen. I consider that, alike with the sentiments expressed by Hoeben J in Brennan , the tenant's attendance at the Tribunal would not in any event have been likely to make any difference to the outcome. Conclusion and orders 47In my opinion the tenant was not denied procedural fairness in any of the ways contended for or at all. In the circumstances, therefore, I consider that the following orders should be made: 1. Summons dismissed. 2. Plaintiff to pay the second defendant's costs. ********** 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: 11 October 2011