Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lees v Shore [2014] NSWCATAP 25 Hearing dates: 21 May 2014 Decision date: 02 June 2014 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President S Higgins, Principal Member Decision: 1. The appeal is dismissed. 2. The stay on the operation of order 3 made on 23 April 2014 is lifted. 3. Order 3 made on 23 April 2014 is varied and the appeal panel orders that possession is to be given to the respondent immediately. Catchwords: Appeal - application for leave to appeal from decision of the Tribunal's Consumer and Commercial Division (decision at First instance) - whether the decision at First Instance was not fair or equitable on the grounds that the appellant had not received notification of the hearing - whether the document relied on by the appellant was evidence 'now available and not reasonably available at the time of the hearing of the application at First Instance Application for leave to appeal - hearing - non-appearance of the appellant at the commencement of the hearing - whether application should be heard in the absence of the appellant Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules (2014) Consumer, Trader and Tenancy Tribunal Act 2001 Residential Tenancies Act 2010 Cases Cited: Atkinson v Crowley [2011] NSWCA 194 Collins v Urban [2014] NSWCATAP 17 Hutchings v CTTT [2008] NSWSC 717 Jackson v NSW Land and Housing Corporation [2010] NSWCATAP 22 Texts Cited: - Category: Principal judgment Parties: Louise Lees (Appellant) Sam Shore (Respondent) File Number(s): AP 14/0078 Publication restriction: Unrestricted Decision under appeal Jurisdiction: 150003 Citation: Sam Shore v L Lees RT 14/18371 Date of Decision: 2014-04-23 00:00:00 Before: Member P Smith, General Member File Number(s): RT 14/18371 reasons for decision Introduction 1The appellant is the tenant of residential premises in Paddington, Sydney (the subject residential premises). On 23 April 2014, the Tribunal below made a number of orders including orders under ss 87 and 89 of the Residential Tenancies Act 2010 (RT Act), terminating the residential tenancy agreement and requiring possession to be given to the respondent landlord. The ground on which the Tribunal below terminated the residential tenancy agreement was the appellant's failure to pay the agreed bond amount or rent since the commencement of the agreement. 2On 30 April 2014, the appellant filed a Notice of Appeal. In a covering letter to the Notice, the appellant said: I attach my application for a rehearing of the orders made on 23 April 2014. This is based on my not receiving the notice of the hearing date. I did receive via email a notice from CTTT advising that there was an application from the agent, which I was aware of. But I did not receive any notice, either via email or mail, of the hearing date. I attach evidence which I would have produced at the hearing if I'd been able to attend which argues against the applicant claim. This is a bank receipt for the four weeks bond and two weeks rent in advance. I request stay of proceedings also. 3Attached to the appellant's covering letter was a Westpac 'Electronic Pay Anyone Receipt'. The appellant's name was identified as the payer and the payment was stated to be in the account name of Bauer Family Holdings, for the sum of $5,700.00. 4On 5 May 2014, Deputy President S Westgarth, made the following orders in regard to the appellant's request for a stay: 1. The operation of the order for possession (order 3) made on 23/4/14 is stayed pending further order. 2. The appellant to file and serve all evidence and submissions on which she intends to rely within 7 days. 3. The respondent to file and serve all evidence and submissions upon which he intends to rely within 7 days of receipt of the appellant's submissions. 5The appellant and the respondent were provided with a copy of the orders together with brief reasons for decision. In those reasons, Deputy President S Westgarth said that the appeal should be made ready for hearing as soon as possible. 6 On 6 May 2014, the respondent's leasing agent, on behalf of the respondent, filed a Reply. In the Reply, the respondent said that he supported the orders made by the Tribunal at First Instance. It was noted that a copy of the orders made, on 23 April 2014, were hand delivered by the respondent's leasing agent that day by placing them under the door of the subject residential premises. The respondent reiterated that no rent or bond had been paid by the appellant since the commencement of the residential agreement. Attached to the Reply were a number of documents, including a copy of the following: (a) the respondent's 'Termination Notice of Residential Tenancy Agreement' dated 4 April 2014; (b)the abovementioned Westpac 'Electronic Pay Anyone Receipt', (c)the respondent agent's trust account transaction report for the period 13 March 2014 to 6 May 2014, (d)a Westpac Choice bank statement, in the name of the appellant, for the period 6 March 2014 to 27 March 2014, (e)text messages and email correspondence between the respondent's agent and the appellant, (f)other correspondence relating to the residential premises . 7On 6 May 2014, the Registry of the Tribunal's Appeals Division forwarded, to the appellant, by email, a copy of the respondent's Reply and the attached documents, The respondent's leasing agent filed some additional material on 7 May 2014. This material we note was also emailed to the appellant, on the same day it was received at the Tribunal Registry. 8The appellant's appeal was listed for hearing, on 21 May 2014 at 9:15 am. At the commencement of the hearing, there was no appearance by the appellant. Ms Allie Ward and Mr David Gurame, of the respondent's leasing agency, appeared on his behalf. 9For the reasons set out below, the Appeal Panel proceeded to hear the appeal in the absence of the appellant. At the conclusion of the hearing the Appeal Panel made the following orders: 1. The appeal is dismissed. 2. The stay on the operation of order 3 made on 23 April 2014 is lifted. 3. Order 3 made on 23 April 2014 is varied and the appeal panel orders that possession is to be given to the respondent immediately. 10When making the orders, the Appeal Panel stated it would publish detailed reasons for decision at a later time. These are those reasons The proceedings at First Instance 11On 4 April 2014, the respondent's leasing agent, on behalf of the respondent, made an application to the Consumer and Commercial Division of the Tribunal, seeking a termination order under s 87 of the RT Act, on the grounds that the appellant had breached the residential tenancy agreement for having failed to pay the 'Bond or Rent since commencing the tenancy.' 12The practices of the Consumer and Commercial Division in determining applications under the RT Act were considered at length, by the Appeal Panel, in the Collins v Urban [2014] NSWCATAP 17, at [5] to [14] and [43] to [68]. They remain relevant for the purposes of this appeal, but it is unnecessary to repeat them in these reasons for decision. 13In this appeal, the Tribunal's file, at First Instance, contains a copy of a 'Notice of Conciliation and Hearing', dated 7 April 2014, addressed to the appellant (being the respondent below) at the subject residential premises. The Notice stated that a copy of the application of the respondent (being the applicant below) was enclosed. The Notice stated the respondent's application was listed before the Tribunal, on 'Wednesday 23rd April 2014 at 11:15 AM (AEST)' and that the appellant was required to appear. The Notice also provided details of the location where the matter was to be conciliated and heard. 14A 'Notice of Conciliation and Hearing' addressed to the representative of the respondent is also contained on the file. 15It is normal practice of the Registry of Consumer and Commercial Division to generate these Notices once a hearing date has been allocated to the matter. The Notices are then posted, in the ordinary course of the mail, to the addressee, on or shortly after the date the Notices were issued. That date being the date of the Notice. 16On 23 April 2014, the Tribunal Member at First Instance noted, on the 'Appearance Record', that Ms A Ward appeared as agent for the respondent and that there was no appearance by the appellant. 17The Tribunal Member also made the following notations on the 'Hearing Notes': (a)Ms Ward was sworn to give evidence; (b)the date of the tenancy agreement was 20 March 2014. The rent payable was $950, payable on the Friday of each week and the term of the agreement was 104 weeks from 21 March 2014 to 17 March 2016; (c)the bond amount was zero and no bond had been lodged; (d)a s88 Non-Payment Termination Notice had been issued on 4 April 2014 and had been personally served on that date; (e)the termination date on the Notice was 18 April 2014 and as at the date of the Notice being received by the appellant she was 15 days in arrears; (f)the Notice was valid; (g)the premises were not vacant; (h)the arrears claimed were $4,478.60; (i)the total number of days in arrears at the date of hearing was 33 days, and the daily rate was $135.70. 18On 23 April 2014, the Tribunal at First Instance made the following orders: 1. The Residential Tenancy Agreement is terminated in accordance with: ·s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. ·failure to pay rent in accordance with agreement. ·failure to pay rental bond 2. The Tribunal is satisfied in accordance with s 89(5) the tenant has frequently failed to pay rent owing for the residential premises. 3. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 4. The order for possession is suspended until 27-Apr-2014 5. The tenant shall pay the landlord a daily occupation fee at the rate of $135.70 per day from the day after the date of termination, namely 24-Apr-2014 until the date vacant possession is given to the landlord. 6. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 7. The landlord's agent is to advise the tenant in writing by the delivery of a letter to the premises by 6:00 pm on 23-Apr-2014 of the orders made today. 8. The tenant, LOUISE LEES, [XXX], is to pay the landlord, SAM SHORE, C/- [XXX] the sum of $4,478.60 immediately. Default in the payment of any Instalment will cause the whole of the balance then outstanding to become immediately due and payable. Reasons Rent to 23/04/14 $4,478.60 19The Tribunal's First Instance file does not contain a copy of material that Ms A Ward presented at the hearing in support of the respondent's application. Nor is there any indication on the file as to what was presented. The file does, however, contain two copies of a 'Notice of Order', dated 23 April 2014. One is addressed to the appellant and the other, to the respondent. Each Notice sets out the orders that were made on that day. At the bottom of each page of each Notice is a statement setting out the parties rights, under subs 62(2) of the Civil and Administrative Tribunal Act 2013. That right being a right to make a request the Tribunal provide a written statement for reasons for its decision, within 28 days of being given notice of that decision. 20While this appeal did not raise an issue about the nature of the evidence presented to the Tribunal at First Instance, the absence on the Tribunal's file of copies of this evidence or a record identifying that evidence was of concern to the Appeal Panel. In Collins (supra), at [62], the Appeal Panel set out guidelines in this regard so far as it relates to uncontested residential tenancy matters involving relatively small amounts of unpaid rent or other similar small claims in the Consumer and Commercial Division. These guidelines were in the following terms: 62 In these circumstances and taking into account the nature of the jurisdiction being exercised, the particular subject matter of the decision in many residential tenancy disputes and the fact that giving detailed reasons is not cost free, the Appeal Panel concludes that in uncontested residential tenancy matters involving relatively small amounts of unpaid rent or other similarly small claims, while Members are required to prepare or record reasons for their decision that duty may be discharged by utilising a suitably drafted form to record (whether by written statements, circling options or ticking responses or a combination of methods): (1) the appearances for the parties; (2) the evidence given by the witness or witnesses and the resolution of any conflicts in the evidence; (3) the relevant details of the residential tenancy agreement, notice of termination and other documents provided to the Tribunal; (4) the elements of any relevant cause of action and whether the Member is satisfied that each element has been made out; (5) the elements of any relevant defence raised and whether the Members is satisfied that it has or has not been made out; and (6) any other relevant matter which would be necessary to allow the Appeal Panel to hear and determine any appeal on a question of law or, if leave were granted, on other grounds. 21The Appeal Panel went on to re-iterate that these guidelines 'should not be taken as precluding or discouraging the giving of oral reasons' and if written reasons are subsequently requested they should be made within 28 days. If a request for written reasons were to be made or an appeal was lodged, the Tribunal Member or the appeal panel should have before them the evidence, or a note thereof, that support the orders that were made. 22The Tribunal's First Instance file notes that a copy of the 'Notice of Order' addressed to the appellant was posted to her at the subject residential premises. 23No request for a written statement for reasons was made by either party to these proceedings. 24At the request of the respondent, on 29 April 2014, the Deputy Registrar of the Consumer and Commercial Division of the Tribunal, issued a warrant for the enforcement of the order, made on 23 April 2014, for possession of the subject residential premises. The Tribunal's First Instance file, contains a copy of the request, the warrant that was issued and a copy of a letter, dated that day, addressed to the appellant at the subject residential premises informing her of the warrant for possession having been issued on the basis that she had not complied with the orders that had been made. The warrant was not executed following the decision of the Appeal Panel to grant a stay of the possession order that had been made. The Notice of Appeal 25Section 80 of the Civil and Administrative Tribunal Act 2013, makes provision for internal appeals. It relevantly provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) ... (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance-as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances 26As explained in Collins (supra), at [15] to [17], the Tribunal has only one form for an internal appeal, which is called a Notice of Appeal: see also Jackson v NSW Land and Housing Corporation [2010] NSWCATAP 22, at [8]. That form requires the party seeking to appeal from a decision of the Tribunal at First Instance to indicate whether the party seeks to appeal on a question of law, or whether leave to appeal on other grounds is sought. 27In her Notice of Appeal, the applicant identified the following orders as being those she challenged on appeal: - tenancy agreement terminated in accordance with s 87 of the Residential Tenancies Act 2010 as the tenant has breached the agreement. -failure to pay in accordance with agreement. -failure to pay rental bond - the residential tenancy agreement is terminated immediately and possession to be given to the landlord on termination. 28The appellant went on to list the following matters as the reason why she considered the Tribunal at First Instance was wrong when it made the orders from which she appealed: I have evidence of bank transfer for 4 weeks bond I have evidence of two weeks rent in advance 29The orders sought by the appellant were as follows: The Lease is to be not terminated Not to be given property to possession of the agent Lease to be maintained & ongoing 30On her Notice of Appeal the appellant went on to state that she was making an application for leave to appeal. The reasons she gave as to why the Appeal panel should grant her leave to appeal, the appellant said: I require leave to defend the claims that the rent and bond was unpaid. I have evidence, attached, which is a bank transfer. I did not receive the notice of hearing & hence was unable to attend & present my evidence. 31As the appellant sought leave to appeal from a decision of the Consumer and Commercial Division, she gave particulars of the matters the Appeal Panel is required to be satisfied of under cl 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013. That cl relevantly provides as follows: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). (2) ... 32In her Notice of Appeal, in response to the question as to why the decision was not fair and equitable, the appellant said: The decision was not fair & equitable as I did not receive notice of hearing & hence was unable to attend & submit evidence of bond & rent paid. 33In response to the questions as to why the decision at First Instance was against the evidence the appellant said she was not aware of what evidence was presented by the respondent/applicant at the hearing as she did not receive notice of the hearing. She also said that as she did not receive notice of the hearing, she 'could not submit [her] evidence being bank transfer'. 34And in response to the questions about evidence that is now available, that was not reasonably available at the time of the hearing, the appellant said: I have evidence of bank transfer proving bond & rent was paid. I secured the evidence from the bank & am able to present at a hearing. The Reply 35 In his Reply, the respondent said that he supported the orders made by the Tribunal at First Instance. In regard to the orders made on 23 April 2014, the respondent also said: Letter was hand delivered to property 'under tenants (sic) door on 23.04.14 advising of Tribunal decision and also emailed to both addresses on file. 36A copy of that letter and email were attached to the respondent's Reply. 37In reply to the grounds relied on by the appellant in her Notice of Appeal, the respondent said: The tenant has paid no rent or bond at all since lease commenced on 21.03.14. we took evidence of our trust account receipts and showed this to the Member on day of Tribunal. ... Owner is now out of pocket over $10.000K The appellant's evidence provided as 'proof' of payment is invalid as she has set up to come out the next day, then could have easily cancelled. ... Where is tenant's evidence for any other rent payments? We have never received anything. 38In his Reply, the respondent also noted that he objected to an extension of time, in that the appellant lodged her Notice of Appeal at the last minute, after the warrant had been issued. As the appellant's Notice of Appeal was lodged within the time prescribed, we have not considered this issue any further. The Notice of the Hearing of the Appeal 39In light of the Appeal Panel having determined to proceed with the appeal in the absence of the appellant, it is important to set out the relevant correspondence between the Principal Registry and the appellant in regard to the listing of the hearing of the appeal. 40 On Wednesday 14 May 2014, the Appeals Support Officer, of the Tribunal's Principal Registry, forwarded an email to the appellant seeking her available dates for a hearing of her appeal. The period for which her availability was sought was between 26 May and 27 June 2014. 41The appellant responded the same day, by telephoning the Appeals Support Officer, who noted the appellants availability as not being available from 23 May to 9 June 2014 and that any day after 9 June was 'OK' by her. 42On the morning of Friday, 16 May 2014, the Appeals Support Officer forwarded, by email, a Notice of Hearing to the appellant and the respondent. That Notice advised the parties that the appellant's appeal had been listed for hearing, on Thursday 22nd May 2014 at 11:00am. The location of the hearing was stated to be Level 10, 86-90 Goulburn Street Sydney and the parties were advised that they were both required to attend. 43Shortly, after the email was sent, the appellant sent an email to the Appeals Support Officer, in which she said: Thank you for your email. When we spoke on the phone I advised that I was overseas from 22nd May for two weeks and you advised that the hearing would be from the week commencing Monday 9th June. Could you please get back to me as I will not be in Australia on 22nd May. 44The Appeals Support Officer responded shortly thereafter and said: I refer to our conversation on 14/5/2014. You advised me that you were unavailable between 23/5/2014 and 9/6/2014. I have been directed to list this matter as a matter of urgency for the 22nd of May prior to you going overseas. All parties have been notified of the hearing date. If you wish to make a formal request for an adjournment, you should do that in writing explaining your reason for the request and any supporting documents to support your request. 45The appellant sent a further email stating that she was departing on 22nd May at 9am. In response the Appeals Support Officer said that she would refer the appellant's request for an adjournment to the Appeal Panel Member for consideration and asked the appellant if she wished to add any further documents in support of her request. The appellant responded to say that she would scan and email her flight confirmation - she just needed to get her scanner to work. 46The Appeals Support Officer also sent an email to the respondent's agent advising that the appellant had made a request for an adjournment of the hearing as she was travelling overseas. The respondent's agent relied as follows: 'Thanks ..., we predicted the tenant would try and postpone the hearing. We have still received no bond or rent from the tenant since she commenced tenancy on 21.03.2014, ... so hopefully the member can understand the urgency of this hearing. ... 47Later that afternoon, the Appeals Support Officer sent an email to the parties in which she said: I refer to the above matter and the Appeal hearing set down for Thursday 22 May 2014 at 11:00 PM (sic). The Appellant has advised the Tribunal that she is travelling overseas from 22 may 2014. As the matter is a matter of urgency, the hearing will be rescheduled for Wednesday 21 May 2014. You will receive a new Notice of hearing on Monday to advise the time of the hearing. If parties fail to attend, orders will be made in your absence. 48On Monday, 19 May 2014, a fresh Notice of Hearing was issued and sent to the parties by email and express post. That Notice stated that the date and time of hearing was 'Wednesday 21 May 2014 at 9:15 AM'. The specified location was the same as that contained in the earlier Notice. 49Shortly, after the Appeals Support Officer had sent her email, the appellant sent an email in response stating that she was unavailable on 21 May and she reiterated her earlier conversation, regarding her availability, in that she was only available after 9 June 2014. The appellant also said 'If you had asked me if I was available this week I would have told you that I am in a conference today, Tuesday and Wednesday.' The Appeals Support Officer responded in an email stating: The Tribunal enquired as to your general availability and you provided very confined options. The date selected does not fall within a period you indicated to the tribunal you would not be available to attend. This appeal is a matter of urgency. The matter is listed on Wednesday 21 May at 9:15 am. If you cannot attend orders will be made in your absence. If you cannot attend you are able to submit any documents in support of your application that you would like the Tribunal to consider when making its determination. Alternatively, at the hearing, you can raise any issue with the listing of this appeal with the presiding member, Deputy President Westgarth. 50The appellant sent a further email at 1:55pm on 20 May 2014, in which she re-iterated her unavailability on the following day. In response the Tribunal's Project Officer said that the appellant's email would be put on the file for consideration at the hearing. The Appeal Hearing and decision to proceed in the absence of the appellant 51The hearing of the appellant's appeal commenced, as scheduled, at 9:15 am on 21 May 2014. As noted above, Ms A Ward and Mr D Gurname appeared as agents for the respondent. However, there was no appearance by the appellant. 52Ms A Ward informed the Appeal Panel that the appellant remained in possession of the subject residential premises and that she had not made any payments in accordance with order 5 of the Tribunal at First Instance. That is, as at the date of the appeal hearing, the respondent had received no payment, in respect of rent or bond, from the appellant since she took possession of the premises on 20 March 2014. After hearing some brief submissions by Ms A Ward and Mr D Gurname as to whether the matter should proceed in the absence of the appellant, the Appeal Panel determined that it should proceed. 53That decision was made, having regard to the guiding principles set out in subs 36(1) of the Civil and Administrative Tribunal Act 2013, and on the basis that the Appeal Panel was satisfied, on the material before it: (a)the urgent listing of the hearing of the appeal was appropriate given the matters in issue and the respondent was ready to proceed, (b)the appellant had received a copy of the respondent's Reply and the documents on which it would rely, (c)there was no additional material on which the respondent sought to rely and the respondent was ready to proceed, (d)the material on which the appellant relied in support of her appeal was attached to her Notice of Appeal and despite the orders made on 5 May 2014, no further material had been filed by her, (e)the matter was not complex, but involved a fundamental breach, by the appellant, of the residential tenancy agreement she had entered one month earlier, on 21 March 2014, for which the respondent had obtained judgment, in his favour, before the Tribunal at First Instance, and (f)there was no evidence that the appellant had made any further payments in rent as ordered by the Tribunal at First instance, and (g)the appellant had received notice of the hearing date as well as the time and location of that hearing and while the applicant had indicated she was not available on this day she failed to provide any evidence to support an adjournment of her appeal hearing. At the same time, to delay the hearing of the appeal would prejudice the respondent who asserts no payments have been made by the appellant since she took possession of the subject residential premises and as a consequence the amount of outstanding rent continues to increase. In this regard the Tribunal noted that even if the appellant were to establish that she had made the asserted payment, at the time of hearing there remained a large amount of outstanding rent. 54The Appeal Panel then heard some further short submissions form the respondent's representatives and adjourned the hearing briefly to consider the material in regard to the substance of the appellant's appeal. 55During the course of this adjournment, a member of the Appeals Registry staff advised the Appeal Panel that he had been informed that the appellant was in attendance at the Registry of the Consumer and Commercial Division, in Castlereagh Street. As the distance between this venue and level 10 of 86-90 Goulburn Street is no more than a 10 to 15 minute walk away, the Panel requested the Appeals Registry staff member to advise that the appeal was proceeding, however, in light of the appellant not being far away, the Panel would await 15 minutes before continuing so that the appellant had time to walk to level 10. 56Approximately 20 minutes later the Appeal Panel was advised by the Appeals Registry staff member that he had been informed that the appellant had collapsed at the Registry in Castlereagh Street and an ambulance was being called. 57For the reasons stated above, the Appeal Panel, decided to continue with the hearing in the absence of the appellant. The Appeal/Application for Leave to Appeal 58The matters specified by the appellant, in her Notice of Appeal, as the reason why she considered the Tribunal at First Instance was wrong, do not identify any errors of law. The matters specified are matters of fact. Nor did the appellant request an appeal as of right. As noted above, the essence of the appellant's appeal is an application for leave to appeal on each of the grounds set out in cl 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013. For the reasons set out below, the Appeal Panel found that the appellant had failed to establish any of these grounds. 59As the appellant was not legally represented and her application for leave to appear was based, on an assertion of not being notified of the hearing at First Instance, the Appeal Panel also gave consideration to a possible claim of denial of procedural fairness, which, if established, is an error of law. 60As set out below, in Collins, at [77], the Appeal Panel noted that a claim of denial of procedural fairness, fell within the terms of the cl 12(1)(a) ground of the decision not being 'fair and equitable'. As the Appeal Panel found that the appellant had failed to establish this ground, the Appeal Panel concluded that for the same reasons set out below, had the appellant appealed, as of right, on the basis of a denial of procedural fairness, a similar finding would have been made. 61In Collins (supra), at [66], the Appeal Panel noted that cl 12(1) of Schedule 4 of the Act vests the Appeal Panel with a discretion to grant leave to appeal where it is satisfied the appellant has suffered 'a substantial miscarriage of injustice' because of one or more of the matters set out in sub paragraphs (a) to (c) in that clause. In that matter, the Appeal Panel went on to note that the clause appeared to be based on s 68(2) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) as it applied prior to 1 January 2014. 62The Appeal Panel also considered what was meant by the phrase 'substantial miscarriage of justice' and at [76], it held: 76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 63In this appeal, in regard to the ground that the decision of the Tribunal at First Instance was not fair and equitable (cl 12(1)(a)), the appellant asserted she was not notified of the hearing and was unable to attend and submit her evidence. 64As noted by the Appeal Panel, in Collins, at [77], citing Hutchings v CTTT [2008] NSWSC 717 at [35] and Atkinson v Crowley [2011] NSWCA 194 at [12]: If there is a denial of procedural fairness the decision under appeal can be said to have been 'not fair or equitable'. 65In this appeal, in her covering letter to her Notice of Appeal, the appellant said she received notice from the Tribunal (CTTT) of the respondent's application. (it is noted that since 1 January 2014, the CTTT ceased to exist and is now the Consumer and Commercial Division of this Tribunal: see cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013).The appellant asserted that this notice was sent by email. 66Having regard to the Tribunal's file at First Instance, as noted above, a notice addressed to the appellant was issued a few a days after the respondent had lodged his application. That notice was a standard form of 'Notice of Conciliation and Hearing', dated 7 April 2014, and located, on the file, immediately after the respondent's application for a termination order. This is the only Notice, addressed to the appellant, issued by the Tribunal, prior to the 23 April hearing. Furthermore, the Notice states a copy of the respondent's application was attached. At the same time there is no record on the Tribunal's file of an email address for the appellant. Accordingly, the overwhelming inference is that the Notice, referred to by the appellant in her letter attached to her Notice of Appeal, was the 'Notice of Conciliation and Hearing'. That Notice contained the details of the hearing date, time and location. 67It is noted that rule 13(2)(b) of Part 4 of the Civil and Administrative Tribunal Rules 2014 (the Rules) makes provision for the service of a notice or document, required to be served under the Civil and Administrative Tribunal Act 2013, or the statutory rules made under that Act, to be served by post, addressed to the person concerned at that person's address for service, or if the person does not have an address for service the last known business or residential address of the person. 68Accordingly, the Panel was not satisfied that the appellant had not received notice of the hearing of the respondent's application at First Instance. 69The Appeal Panel also formed the view that the appellant's immediate response to Ms Ward's text message, of 29 April 2014 was consistent with its finding. In her text message, sent late that afternoon, Ms Ward said: Louise, when will you be vacating [name of street], Paddington? We have order from the tribunal to say your lease is now terminated. 70The appellant responded by saying 'I wl advise you via email when I get home.' That night, the appellant sent the following email message to Ms Ward: Allie, I just went to the mailbox and found the letter it was under some junkmail and I hadn't seen it. I will advise you regarding my departure date and time and details for keys etc. 71Had the appellant not had notice of the hearing, the response would have differed and been one of extreme surprise and annoyance that a hearing had been held, without the appellant's knowledge, especially where the orders made were adverse to her interests. 72In regard to the appellant's arguments in support of her claim that the decision of the Tribunal at First Instance was against the weight of evidence, the Appeal Panel formed the view that these were misconceived. As indicated by the terms of cl 12(1)(b) of Schedule 4 of the Act, this ground is based on the material that was before the Tribunal Member at the time the decision was made. In this appeal, the appellant appears to have assumed that the material on which she now relies was not before the Member at First Instance. Whether it was, or was not, is unclear. Nevertheless, on the basis of the appellant's assumption, the appropriate ground is that set out in cl 12(1)(c) of Schedule 4 of the Act. 73As noted above, to satisfy cl 12(1(c), the appellant must establish that she has evidence that was not reasonably available at the time of the hearing of the respondent's application before the Tribunal at First Instance. In this regard the appellant relies on the Westpac 'Electronic Pay Anyone Receipt' (Westpac Receipt) attached to her Notice of Appeal. This document, the appellant asserts to be proof of payment, by her, on 21 March 2014, to the respondent's leasing agent's trust account for bond (i.e. four weeks of rent) and two weeks of rent in advance. 74The Appeal Panel formed the view, on the material before it, the appellant had failed to establish this ground, as it was evident that the document was available well before 23 April 2014. Furthermore, the Panel was not persuaded that the document on its own established that payment had in fact been made, as asserted by the appellant. 75As noted above, a copy of the appellant's Westpac Receipt was attached to the respondent's Reply. Also attached to the Reply was a copy of a one page Westpac bank statement, in the name of the appellant, for March 2014. 76It appeared that the appellant had given both documents to Ms Ward, some time prior to 1 April 2014, as proof of her having paid the bond and two weeks rent. On 1 April 2014, in a text message to the appellant, Ms Ward made reference to the appellant's bank statement and her initial Westpac payment. The former she asserted to have been falsified and the latter she asserted to have been stopped by the appellant. The appellant responded later that evening and said 'the bank statement is not falsified and the funds wr not stopped by westpac ...' On 3 April 2014, there were further email exchanges between the appellant and Ms Ward. 77In her email, on this day, Ms Ward said that if no funds were received from the appellant by the following day, a termination notice would be served on her. Ms Ward also said that the agency had contacted the local police who had visited to inspect the alleged 'fraudulent bank statement' provided by the appellant. In her email response that day, the appellant reiterated that payment had not been stopped and the 'bank statement is not fraudulent'. It is noted that Ms Ward and the appellant made a number of further allegations against each other. As these allegations are of no relevance to this application for leave to appeal we have considered them no further. Nor has and the appellant placed before the Appeal Panel any bank statements and in light of this we have not considered the statement attached to the respondent's Reply. 78Nevertheless, the content of the email and text message exchanges, between the appellant and Ms Ward, indicate that the document, on which the appellant relied in her application for leave to appeal, was available well before the respondent's application was heard, at First Instance. That is, it is evidence that was available at the time of the hearing on 23 April 2014. It appeared to have been provided, by the appellant, to Ms Ward, some time prior to 31 March 2014, as evidence of her having made payment, on 21 March 2014, of the bond and 2 weeks rent in advance. It was also clear from the communications between Ms Ward and the appellant, that Ms Ward did not accept the Westpac receipt as evidencing payment having been made. It was on this basis that the respondent served on the appellant, on 4 April 2014, the s88 Non-Payment Termination Notice. In an email, sent that day, the appellant acknowledged receipt of that notice and the basis on which it had been issued - namely her failure to pay any rent or bond. 79Even if the Westpac Receipt was not reasonably available as at 23 April 2014, the document appeared to be no more than a receipt of a request by the appellant, made at 13:49 AEDT, on 20 March 2014, for the payment of $5,700.00, to the 'Bauer Family Holdingws '(sic) account, for the appellant's 'bond/rent'. In a text message to Ms Ward, in response to an earlier request as to what 'Westpac had to say?' followed by a number of requests about when payment would be received, on 31 March 2014, the appellant said: Hi just got yr msg im out doing a shoot. When I get back on line wl forward u bank mgr eml. I get paid latr ths wk so if not sortd I wl repay. I cldnt do last wk as spent remainder of avail funds buying new furniture. I shld be back arnd 4.30. 80The Panel noted the respondent's leasing agent's trust account transaction report, attached to the Reply, was named the 'Bauer Family Holdings P/L trading as Ray White Bondi Beach'. That report, as pointed out by Ms Ward at the hearing, was a record of payments received into that account, during March and April 2014, for amounts between $5,000 and $6,000. There was no record of an amount of $5,700 having been received into the account during this time. 81In the absence of the appellant producing a document that might evidence her request for payment having in fact been made prior to the 23 April hearing, the Appeal Panel could only infer that payment of rent and bond remained outstanding as at the date of the hearing of the appeal. Conclusion and Orders 82For the reasons set out above, the Appeal Panel was not satisfied that the appellant had established any of the grounds set out in cl 12(1)(a) to (c) of Schedule 4 of the Act. Hence it was not necessary for the Appeal Panel to consider whether the discretion to grant leave to appeal should be exercised in favour of the appellant. In light of the Appeal Panel's findings it made the following orders: 1. The appeal is dismissed. 2. The stay on the operation of order 3 made on 23 April 20014 is lifted. 3. Order 3 made on 23 April 2014 is varied and the appeal panel orders that possession is to be given to the respondent immediately. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2014