Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chester v Prestige Promotions Pty Ltd [2014] NSWCATAP 34 Hearing dates: 8 July 2014 Decision date: 22 July 2014 Jurisdiction: Appeal Panel Before: K O'Connor AM ADCJ, Deputy President K Rosser, Senior Member Decision: Respondent's application for summary dismissal of the appeal granted. Appeal dismissed Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - appeal panel - practice and procedure - residential tenancy - order for termination and possession - tenants absent from hearing - application to set aside - refused - appeal - respondent's application for summary dismissal - granted; application for costs - granted in fixed amount. Legislation Cited: Civil and Administrative Regulation 2013 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Category: Principal judgment Parties: Jerome Chester & Leah Chester (Appellants) Prestige Promotions Pty Ltd (Respondent) File Number(s): AP 14/0025 Publication restriction: Nil Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-02-20 00:00:00 Before: M Harrowell, Principal Member File Number(s): 14/06496; 14/01770 reasons for decision 1This is an edited and extended version of reasons delivered orally by the presiding member on behalf of the Appeal Panel on 8 July 2014. 2HIS HONOUR: The Appeal Panel has before it an application by the respondent to strike out or dismiss an appeal filed by Mr and Mrs Chester on 5 March 2014. They are the tenants of a flat at Bondi owned by the respondent. 3Section 55 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides relevantly: The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (b) if the Tribunal considers tha that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. 4The appeal has the following background. Primary Decision 5On 29 January in file no RT 14/01770 the Consumer Commercial Division of the Tribunal (CCD) (Levingston M) upheld the respondent's application under the Residential Tenancies Act 2010 for termination of the tenancy agreement. The Tribunal relied on two grounds: an arrears of rent (three days) in the sum of $300; and failure to comply with previous orders of the Tribunal. The Tribunal also found that the tenant had frequently failed to pay rent owing. 6The decision on its face would appear to have been a decision that was open to the Tribunal to make in the circumstances (see further below). 7On 4 February 2014 the appellants lodged a 'Notice of Appeal' (the notice) using the form prescribed by the Tribunal. Under the heading relating to the 'orders challenged on appeal' the appellants referred to the order of termination. In a covering letter accompanying the notice they requested an 'urgent stay' of the orders. The material accompanying the notice contended that there had been a lack of procedural fairness because the orders were made in the absence of the appellants. 8The notice was not stamped and an appeal file was not raised. Instead the file discloses that the appellants' attention was drawn to Civil and Administrative Tribunal Regulation 2013, cl 9 which gives the Tribunal the power to order that a determination made in the absence of a party be set aside on the ground that 'the party's absence has resulted in the party's case not being adequately put to the Tribunal'. The file discloses that the appellants withdrew this appeal and made an application under cl 9. 9On 5 February 2014 the Tribunal stayed the orders for termination and possession until further order. The parties were ordered to file submissions, and a timetable was set. Decision on Application to Set Aside 10On 20 February 2014, the Tribunal dealt with the application on the papers. In its reasons the Tribunal (Harrowell PM) held that the Tribunal was correct to find that the payment made by the appellants on 28 January 2014, the day before the hearing before Levingston M, did not bring the monthly rent due on 26 January 2014 entirely up to date. The rent was short, as the member had found, by $300. 11The Tribunal rejected the appellants' assertion that the parties had reached an agreement that the respondent would have the application dismissed when it came on for hearing on 29 January 2014. The reasons also noted that the fixed term of the tenancy agreement would have expired in any case on 17 February 2014. 12The tenancy agreement had, at this point, a fixed term of four months, though the parties had been in a landlord-tenant relationship for around twenty years. Some of this history is referred to in the decision of 29 January 2014. 13The stay was lifted. The order for possession was suspended until 7 March 2014. The tenants were ordered to pay the occupation fee as provided in order 4 made on 29 January 2014 including for the period of the suspension. The Appeal 14On 5 March 2014 the appellants filed another Notice of Appeal. It is stamped, and a file was raised (14/0025). It is the foundation of these proceedings. 15An appeal may be made under s 80(2)(b) of the NCAT Act 'as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.' 16The discretion to grant leave to allow an appeal to proceed on any other grounds is circumscribed, in the case of appeals from the CCD, by cl 12 of Schedule 4 of the Act which provides that before doing so the Appeal Panel must be 'satisfied the appellant may have suffered a substantial miscarriage of justice' on one or more of the three grounds set out there. 17The Notice of Appeal, as a technical matter, focused on the later event which was dismissal of the application to set aside the original order. 18However, Mr Jaron Chester - the appellants' son, who appeared for them at the hearing, has has made it clear today, and as I think a fair reading of the papers would suggest, that the real object of the Notice of Appeal is to have undone the decision made on 29 January. I will not get into issues today about whether or not the Notice of Appeal is affected by time in relation to that matter. 19The purpose of today's hearing was to hear the respondent's application for summary dismissal of the appeal. 20As my remarks already indicate, it seems to me that on the technical point of whether the decision made 29 January was based on a proper ground (namely the arrears of rent ground) then this appeal has no prospects of success. 21Mr Chester, on behalf of his parents today, has raised as he did before the Tribunal when it considered the application to set aside the order that had he or his parents been able to attend on 29 January a different outcome may have followed. 22The position in that regard appears to be this. The appellants do not dispute that they received the Tribunal's notice of the proceedings, they say they were led to believe they needed did not have to attend on the day because they had settled the matter (by the late payment made 28 January 2014) and the proceedings would be withdrawn. 23They were given the opportunity by the directions in the appeal proceedings that were made in April by Ms Rosser, my colleague today, to put on evidence in regard to that. No evidence has been placed before us in that regard, evidence in this context being at the least a formal statement setting out the particulars of the alleged communications made by, or on behalf of, the appellants and the replies said to have been given by, or on behalf of, the respondent. 24On the other hand this contention is known to Ms Sassoon (the respondent's managing agent), and there is a long statement on the file from Ms Sassoon denying that she dishonoured in any way any agreement with the appellants to withdraw the application to the Tribunal, given that the rent paid was short of the full amount. 25It seems to us that Mr Chester, on behalf of his parents, had sufficient notice to get any evidence on by today. As to that matter, the material that is before the Appeal Panel would appear to indicate that there was no misunderstanding that might explain the non-attendance at the Tribunal hearing on 29 January. 26In any event the case is one where it is difficult to see how attendance would have made any difference to the outcome. The respondent pressed the case at the hearing before the primary tribunal that they had an unassailable ground upon which to be granted the order they sought. The Tribunal found, correctly we consider, that the respondent had given notice in the form required by the Act for the period required by the Act, there was rent in arrears and a history of rent arrears. So we cannot be satisfied that attendance on the day would have had any effect on the outcome of the case. 27Therefore, it appears to the Appeal Panel that there is no utility in having this case proceed any further to a full hearing, particularly in view of the appellants' failure to comply with the Appeal Panel's directions. 28On those grounds, therefore, the respondent's application to have the appeal summarily dismissed is granted. Costs 29The question that now arises is the respondent's application for the costs of the proceedings pursuant to s 60 of the NCAT Act. Various matters were put before us by the respondent as to the 'special circumstances' that might justify an order for costs in a tribunal where the usual rule is that each party bears their own costs of proceedings. 30The terms 'frivolous' and 'abuse of process' have been used. I think that language might be seen to be too strong. Clearly the loss of occupation of a rental property is a very serious issue for tenants. 31The present case is one where the primary finding that provides the foundation for the termination is based on a relatively small arrears of rent. The case, on the other hand, that Mr Chester has put is a weak one for the reasons I have given. As already stated, it seems to us that the original order was relatively unassailable. 32The amount of costs that has been incurred to date is already significant. Had this matter gone on to a full appeal, that amount of costs would possibly have doubled. 33It seems to us that it is desirable to fix the amount of any costs order. 34The Appeal Panel is satisfied that there are special circumstances in this case. The special circumstances essentially have to do with the weakness of the contest with the original ruling made on 29 January. The Tribunal acted beneficially in making an interim stay order. 35The Appeal Panel then gave Mr Chester an opportunity to put on relevant material, in particular evidence. That opportunity has not been availed of in a manner that assists the Appeal Panel. Most of the material put before us is really a recitation of legal headings with little or no detail under any of those headings and that does not assist the Appeal Panel in any way. 36The respondent, the landlord, has been put to a degree of expense in responding to this material, a cost which in our opinion ought not to have been incurred by it. Had the material been brought forward in a concise and orderly way and admitted of relatively direct response we may have had a different view. But it seems to us in the circumstances some order for costs should be made. 37The Appeal Panel will make an order for costs in the amount of $1,500, that is that the appellants pay the respondent's costs of these proceedings fixed in the sum of $1,500. 38Having said that, I would encourage the parties to find a way through that enables the appellants to remain in occupation. But that requires the appellants to establish a rent payment arrangement that is orderly and predictable. And I should add it would have been helpful, I think, if the appellants had been here today to hear some of what has been said in the hearing room. I will have a written decision prepared and that can be provided to the parties. 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: 22 July 2014