Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jennings v Petrucci [2014] NSWCATAP 31 Hearing dates: Heard on the papers Decision date: 02 July 2014 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member Decision: Application for leave to appeal refused. Appeal dismissed. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - appeal - leave to appeal - whether substantial miscarriage of justice Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Category: Principal judgment Parties: Robert Jennings (Appellant) Paul Petrucci (Respondent) File Number(s): AP 14/0035 Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-03-12 00:00:00 Before: K Ross, General Member File Number(s): RT 14/03197 reasons for decision 1This is an application for leave to appeal against orders made by the Tribunal in application RT 14/03197. In those proceedings the Tribunal made orders on 12 March 2014 terminating the tenancy, an order for possessions and an order in respect of unpaid rent totalling $4,800.00 (Original Orders). 2The appellant is the tenant and the respondent is the landlord pursuant to a residential tenancy agreement. 3The original application had been listed for hearing on 3 February 2014 but was adjourned on the request of the appellant due to the ill health of the appellant's partner. The matter was then listed on 26 February 2014. The appellant appeared and the matter was again adjourned with directions for the filing of evidence. 4The matter was finally listed for hearing and determined on 12 March 2014 when the above orders were made. The appellant was present. At that hearing the Tribunal received documentary material, including a letter signed by the appellant dated 12 March 2014. In that letter the appellant said: I am aware that I am currently in $4800 of rent arrears at the above premises and am in receipt of your termination notice. But in saying this the way the contract is set up we are not really sure that we really do owe this full amount. I propose to pay these arrears off at $100 per week / on top of my usual rent. I will continue paying this extra amount until the rent arrears are paid off. 5Following the Original Orders, the respondent landlord applied for a warrant for possession which the Tribunal issued on 17 March 2014. The warrant for possession was apparently executed on 21 March 2014. History 6This present appeal was lodged on 18 March 2014 and included an application for a stay of the Original Orders. The appeal was lodged in time. The application for a stay was refused on 20 March 2014. In doing so the Appeal Panel noted the appellant was at the hearing when the original orders were made and that: (a)there was no suggestion by the appellant that outstanding rent had been paid; and (b)no arguable case had been put forward as to why leave should be granted or why the appeal should be allowed. 7At the time the stay was refused the Appeal Panel also made directions for the parties to file evidence and submissions. Aside from requesting an extension of time to comply with those directions, which was granted, the appellant has not filed any submissions nor has the appellant addressed any of the deficiencies in his application for leave to appeal identified by the Appeal Panel in its reasons for refusing a stay. 8The orders challenged by the appellant in the Notice of Appeal (section 11A) were: Dates in which they have given me to leave, Money for rent until I work out who stolen [sic] it. 9Grounds for appeal (sec 11b) were: "Had money stolen so rent can't be paid. Reguly had people enter the property and use my phone while I was sleeping. Many items have been stolen. Consistent harassment by so called landlord". 10Orders sought (section 11b) were: Two months to leave to have time to investigate who has done this. 11The respondent filed submissions opposing the application for leave to appeal. The respondent's submissions are in a letter dated 5 April 2014. Those submissions include: (a)That rent has not been paid since 13 February 2014; (b)The respondent is under financial hardship due to the non-payment of rent; (c)The warrant for possession has been executed; and (d)Despite being given an opportunity to do so, the appellant has failed to remove possessions from the subject property. Decision 12An application for leave to appeal can be dealt with on the papers without the need for a formal hearing: see section 50(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). The appellant did not object to this course of action being taken: see Notice of Appeal item 16B. The application for leave to appeal was lodged in time. 13The Appeal Panel is satisfied that the application should be dealt with on the papers as there is no issues raised that require an oral hearing and such a hearing would increase the cost to the parties and delay a final resolution. 14The appellant seeks leave to appeal. The Appeal Panel is satisfied leave is required in the present case. Leave requires the appellant to satisfy the requirements of Schedule 4 clause 12 of the Civil and Administrative Tribunal Act, 2014 and demonstrate he may have suffered a substantial miscarriage of justice. 15The reason given by the appellant as to why the decision was not fair and equitable is: have had enough money stolen so rent cant be paid and watched by video cameras and listening devices. 16As to why the decision was against the weight of evidence the appellant says he gave evidence at the hearing and contends he "should have been given at (least) sixty days notice". 17In relation to evidence that is now available but was not reasonably available at the hearing the appellant says "under investigation at the moment". 18As indicated above, and despite the Appeal Panel's directions, the appellant did not develop these contentions or file any additional evidence or submissions. 19The Tribunal at first instance made a finding that the tenant had frequently failed to pay rent: see Original Orders - Order 2. This finding has not been challenged. Further, it is clear that when the application for termination was originally filed rent had been outstanding and unpaid for some time. 20The grant of leave to appeal is discretionary. There is a requirement that the appellant demonstrate he may have suffered a substantial miscarriage because of one of the circumstances set out in Clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW). 21There is a fundamental obligation of a tenant to pay rent when due under the residential tenancy agreement. 22The Appeal panel is satisfied from the submissions made and the evidence before the Appeal Panel that: (1)the tenant breached his obligation to pay rent and that rent has been unpaid for some time and remains unpaid; and (2)that the failure to pay rent has caused financial hardship to the respondent. 23Further, having regard to: (a)the fact rent has still not been paid and the unchallenged finding the failure to pay rent has been frequent; (b)in consequence of the appellant's conduct the respondent has suffered financial hardship; (c)the fact the warrant for possession has been executed; and (d)the absence of any information from the appellant to demonstrate a substantial miscarriage of justice may have been suffered by him; the Appeal Panel is not satisfied that the appellant may have suffered a substantial miscarriage of justice and that the application for leave to appeal should be refused. Orders 24The application for leave to appeal is refused. 25The appeal is dismissed. 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: 03 July 2014