Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Capon v Snyman [2014] NSWCATAP 35 Hearing dates: 16 July 2014 Decision date: 25 July 2014 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member S Higgins, Principal Member K Rosser, Senior Member Decision: 1. Time to appeal is extended to 3 July 2014. 2. The application for leave to appeal on the merits is dismissed. 3. Save as to the orders in order 4 and 5 below, the appeal is dismissed. 4. Order 3 of the Tribunal decision at first instance is varied by deleting the date 14 May 2014 and substituting the date 30 July 2014. 5. Order 6 of the Tribunal decision at first instance is varied by deleting the amount of $10,400.00 and substituting the amount of $10,280.00. 6. The stay on the operation of the orders of the Tribunal at first instance is lifted. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - appeal panel - Residential Tenancy - sub lease of residential premises - tribunal order terminating sub-lease on grounds of failing to pay rent -whether extension to appeal out of time should be granted Legislation Cited: Civil and Administrative Decisions Tribunal Act 2013 Civil and Administrative Decisions Tribunal Regulation 2013 Civil and Administrative Decisions Tribunal Rules 2014 Residential Tenancies Act 2010 Cases Cited: ABH v NSW Trustee and Guardian [2014] NSWCA 40 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Nadia Marie Capon (appellant) Carl Snyman (respondent) Representation: N M Capon, in person (appellant) S Orr, agent (respondent) File Number(s): AP14/0269 Decision under appeal Citation: Carl Snyman v Nadia Marie Capon Date of Decision: 2014-05-07 00:00:00 Before: FE Gray, Member File Number(s): RT14/18297 reasons for decision Introduction 1The appellant is the tenant of residential premises at [xxxx], East Sydney. On 7 May 2014, the Tribunal in the Consumer and Commercial Division (the Tribunal at first instance) made orders, under ss 87, 88 and 187 of the Residential Tenancies Act 2010 (RT Act), terminating the residential tenancy agreement in respect of the premises for non-payment of rent and requiring possession to be given to the respondent on 14 May 2014 (file No RT 14/18297). The respondent is the tenant/lessor of the premises having entered a residential tenancy agreement with the owner of the premises in 2006: see meaning of 'landlord' in subs 3(1) of the RT Act, which includes 'a tenant who has granted the right to occupy residential premises to a sub-tenant.' 2The respondent and the appellant executed a written tenancy agreement, in respect to the premises on 16 September 2013. The term of the agreement was 6 months. However, the appellant has remained in possession of the premises since the commencement of the lease: see s 18 of the RT Act. 3The premises were rented fully furnished at a rent of $560.00 per week. 4The Tribunal at first instance found that, as at 7 May 2014, the amount of rent outstanding was $10,400.00 and made orders accordingly. The appellant has not paid this amount, or paid the daily occupation fee as ordered on 7 May 2014. The appellant concedes that the last time she paid any rent was on 13 February 2014. 5On 3 July 2014, the appellant lodged this internal appeal seeking leave to appeal the decision of the Tribunal at first instance. In her Notice of Appeal, the appellant also sought an extension of time to lodge her appeal and a stay of the orders made by the Tribunal. 6In her Notice of Appeal, the appellant ticked the 'no' box to the questions as to whether she objected to her extension of time application and stay application being dealt with on the papers. 7On 4 July 2014 Senior Member Rosser, on the papers, granted a stay of the orders made on 7 May 2014, made directions for the filing and serving of evidence and submissions and listed the matter for further directions on 11 July 2014 in the event the respondent wished to press an objection to the stay order. 8On 11 July 2014 the matter came before Principal Member Harrowell and Senior Member Rosser. The appellant and the respondent were both legally represented with leave of the Appeal Panel. 9However, the appellant's legal representative was granted leave to withdraw during the hearing as his retainer had ended. 10After hearing short arguments from the parties, Principal Member Harrowell and Senior Member Rosser set the appellant's application for leave to appeal down for hearing on 16 July 2014. Orders were made for the respondent to file and serve a Reply. Orders were also made for the parties to file and serve any additional material on which they sought to rely and an order was made extending the stay to 5.00pm on 16 July 2014. 11At the conclusion of the adjourned stay and directions hearing on 11 July 2014, Principal Member Harrowell and Senior Member Rosser identified the matters for determination at the hearing on 16 July 2014 to be as follows: (a) whether the parties should be granted leave to be legally represented; (b) whether the time within which the appellant is to lodge her appeal should be extended; (c) whether, if time is extended, leave to appeal should be granted; and (d) if leave to appeal is granted, whether the appeal should be allowed. 12On 16 July 2014, at the commencement of the hearing before the full Appeal Panel, there was no appearance by or on behalf of the appellant. The respondent's legal representative Ms Vo and Mr Orr of Towers Building and Management Pty Ltd (Towers), the respondent's managing agent, were both present. 13On being advised by the Registry that the appellant was on her way, the Appeal Panel delayed the commencement of the proceedings to enable the appellant to appear in person. The appellant arrived at approximately 11.00 am and sought an adjournment as she did not feel well. After some further questioning, the appellant informed the Appeal Panel that she agreed to her appeal (including the issues related thereto) to be dealt with on the papers. The appellant also confirmed that she had filed all the material on which she relied in her appeal. The Appeal Panel notes that the appellant had previously sought to have her appeal determined on the papers. 14The respondent also agreed to this course. 15In light of the agreement of the parties and their assurances that they had filed and served all the material on which they relied, the Appeal Panel determined it was appropriate to dispense with the hearing pursuant to subs 50(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), and determine the matter on the papers, subject to obtaining clarification in regard to the respondent's claim for unpaid rent. After obtaining written clarification from Mr Orr and the appellant, the Appeal Panel reserved its decision in regard to the appellant's application for an extension of time to lodge her appeal and her application for leave to appeal. 16Prior to Mr Orr giving his clarification as to the outstanding rent, the Appeal Panel also refused leave for the respondent to be legally represented further. The appellant had objected to leave being granted and as the matter was to be determined on the papers that had already been filed, the Appeal Panel formed the view that leave should be refused. 17The Appeal Panel has now considered all the material that has been filed and served and for the reasons set out below the Panel has determined to, (a) extend the time in which the appellant is to lodge her appeal, and (b) to refuse the appellant's application for leave to appeal on the merits. Material before the Appeal Panel 18In addition to the Appellant's Notice of Appeal (including the material filed with that Notice) and the Respondent's Reply (including the material filed with that Reply), the parties have placed before the Appeal Panel the following material: A letter from the respondent's solicitors McLachlan Thorpe, with attached documents, filed on 10 July 2014; An outline of written submissions and tender bundle filed by the respondent, on 11 July 2014; The respondent's statement of rent paid and unpaid, dated 14 July 2014, with attachments; Exhibit 1, being a written recalculation of the rent paid and unpaid prepared by Mr Orr during the hearing, on 16 July 2014; Exhibit A, being the appellant's written record of rent payments made and a hand written rent ledger. Both documents were prepared by the appellant during the hearing, on 16 July 2014 19The Appeal Panel also has before it the Consumer and Commercial Division files (Division file) relating to the decision the subject of this appeal. These are, Division files RT14/18297 and RT 14/25000 - the latter file being the appellant's application to set aside the decision of 7 May 2014. We also have before us the Division files of earlier applications to the Division that concern the premises and to which the appellant was a party. These are: (a) Division file RT 14/05949 - an application brought by Ms Hartley, the owner of the premises against the appellant; and (b) Division file RT 14/10924 and RT 14/15039 - applications for the setting aside of the decision in regard to Ms Hartley's application above. RT 14/10924 is the set aside application made by the appellant and RT 14/15039 is the application made by the respondent. 20The Tribunal received further documents from the appellant apparently on 16 July 2014, after the hearing had concluded, however no leave was granted to file further documents and they were not considered by the Appeal Panel. Decision of the Tribunal at first instance 21The orders made by the Tribunal at first instance, on 7 May 2014, are in the following terms: 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. 2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 14-May-2014 4. The tenant shall pay the landlord a daily occupation fee at the rate of $80.00 per day from the day after the date of termination, namely 8-May-2014 until the date vacant possession is given to the landlord. 5. 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. 6. The tenant ... is to pay the landlord the sum of $10,400.00 immediately. Reasons: Rent from 29 December 2013 to 07-May-2014. 22As can be seen from the reasons set out in the above orders, the Tribunal at first instance found that, as at 7 May 2014, the appellant's rent arrears went back some four months. Extension of time 23Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) sets out the time within which an 'internal appeal' must be lodged in respect of residential proceedings. That rule relevantly provides: 25 External and internal appeals (1) ... ... (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged: (a) ..., or (b) in the case of an internal appeal against a decision made in residential proceedings-within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or (c) ... 24There is no dispute that the appellant's appeal is an 'internal appeal' falling within s 32 of the NCAT Act and an appeal to which cl 25(4)(b) of the NCAT Rules apply. 25Subs 41(1) of the NCAT Act gives the Tribunal a discretion to 'extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.' Subs 41(2) of the Act, provides that the Tribunal can exercise its discretion even where the prescribed time has expired. 26The appellant's Notice of Appeal confirms that she was notified of the Tribunal's decision on 7 May 2014. On 14 May 2014, the appellant made an application to the Consumer and Commercial Division to set aside the orders of the Tribunal at first instance: see cl 9 of the Civil and Administrative Tribunal Regulation 2013 (NCAT Regulation). That application (Division file RT 14/25000) was dismissed, on 16 May 2014. In the Notice of that decision, the appellant was advised that she 'may lodge an appeal' if she 'believes she has a bases for setting aside or varying the orders made on 7/05/2014'. The Notice did not expressly refer to a right to make an appeal to the Appeal Panel. 27In any event, the appellant's time for lodging an appeal to the Appeal Panel commenced on 7 May 2014 and she was required to lodge her Notice of Appeal, by 21 May 2014. This she did not do until 3 July 2014, which is more than six weeks outside the prescribed time in cl 25(4)(b) of the NCAT Rules. 28The Appeal Panel recently discussed the scope of the discretion to extend time under s 41 and the relevant matters for consideration when exercising this discretion in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18] to [22]. At [18] the Appeal Panel noted that the discretion under s 41 is unfettered but is to be exercised judicially. The Appeal Panel went on to say that in exercising the discretion regard is also to be had to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings". 29At [22], the Appeal Panel set out the considerations generally relevant to determining whether time should be extended. In summary these are: (a)the discretion can only be exercised in favour of an appellant upon proof that strict compliance with the rules will work an injustice upon the appellant; (b)the discretion is to be exercised in the light of the fact that the respondent has already obtained a decision in its favour and once the period for appeal has expired can be thought of as having a "vested right" to retain the benefit of the decision; (c)the Appeal Panel will generally be required to consider the length of the delay, the reason for the delay, whether the appellant has a reasonably arguable case and the extent of any prejudice suffered by the respondent to the appeal; and (d)If the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice it may be relevant whether an appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable. 30As noted by the Appeal Panel in Jackson (supra), at [25], the short period of time in which appeals may be lodged in respect of residential tenancy decisions is reflective of the nature of such matters and the legislature's balancing of the right of landlords and the rights of tenants. In Jackson, the Appeal Panel found that a delay of five weeks, in the circumstances of that case, did not 'tell substantially in favour of either granting or not granting the extension of time.' 31While the Appeal Panel agrees with the abovementioned remarks a delay of six weeks, in the circumstances of this matter, is a substantial delay. 32In her Notice of Appeal, the appellant said that the reasons for her delay was - 'Medical Certificate provided - Attachment 1.' Attached to the Notice of Appeal was a medical certificate from Dr Shannon Saad dated 23 June 2014. Dr Saad said the certificate was provided in support of the appellant's application to extend time to lodge her appeal. 33At the stay hearing on 11 July 2014 the appellant provided the Appeal Panel with some additional medical certificates and other information. These certificates and information do not relate to the appellant's conduct in relation to these proceedings but the Appeal Panel accepts that they evidence ongoing health issues of the appellant. 34The appellant requested that the contents of her medical condition remain confidential and not disclosed to the respondent or his managing agent. However, she consented to the respondent's solicitor being granted access to this information. The Appeal Panel notes that the appellant has raised her health issues in previous proceedings before the Consumer and Commercial Division and to some extent these issues are known to the respondent, through his managing agent. 35In light of the appellant's objection to the disclosure of the content of these medical certificates, their content is not disclosed in these reasons for decision. Nevertheless, the Appeal Panel accepts that the appellant has health issues and has taken these into account, but is not persuaded that these issues alone provide an explanation for the appellant's delay in lodging her appeal to the Appeal Panel: see ABH v NSW Trustee and Guardian [2014] NSWCA 40. 36In the respondent's Reply to the appellant's Notice of Appeal, Mr Orr, on behalf of the respondent, opposed the application for an extension of time. He asserted that the appellant 'has demonstrated continued delay in prosecuting her appeal.' He said the appellant had not satisfactorily explained the delay in lodging her Notice of Appeal and inferred that the appellant's conduct since the orders were made on 7 May 2014 was for the purpose of maximising 'the time she remains in occupation of the premises'. The conduct to which Mr Orr referred was the appellant's application to the Supreme Court and the subsequent application to the Court of Appeal. 37Following her unsuccessful set aside application, on 23 May 2014 the appellant filed a Notice of Motion in the Supreme Court of NSW seeking a stay on the execution of the warrant for possession, which had been issued to the respondent on 19 May 2014. The Supreme Court made ex parte orders staying execution of the warrant up to and including the first return date of the appellant's Notice of Motion, which was on 20 June 2014. 38On 23 May 2014, the Supreme Court also ordered the appellant to file and serve a Summons. A copy of that Summons and the appellant's affidavit filed in support of that Summons is contained in the respondent's bundle of documents. In her affidavit the appellant said 'I will be making an appeal to the tribunal.' 39On 20 June 2014, the matter came back before the Supreme Court and the appellant applied for an extension of the stay granted on 23 May 2014. The Court refused the application and dismissed the appellant's proceedings before that Court. A copy of the orders made by His Honour Justice Bellew, on 20 June 2014, is contained in the bundle of documents filed by the respondent. 40In his submissions, the respondent said that the appellant's application was dismissed primarily due to the availability of an internal appeal, to the Appeal Panel of the Tribunal, and the appellant having indicated in her affidavit in support of her Summons that she would be lodging an appeal with the Tribunal: see subs 34(1)(c) of the NCAT Act. 41On 4 July 2014, the day after lodging her Notice of Appeal in the Tribunal, the appellant approached the Duty Judge in the Court of Appeal, the President of the Court of Appeal, Her Honour Justice Beazley, seeking a stay of the second warrant for possession, which had been issued by the Tribunal on 27 June 2014 at the request of the respondent. Her Honour granted a stay until and including 7 July when the matter was listed for further mention before the Court. The Appeal Panel has been informed that no further orders were made on the adjourned date, as the appellant had lodged her Notice of Appeal in the Tribunal and a stay had been granted. 42On her own evidence, as at 23 May 2014 the appellant was aware of her right to appeal to the Appeal Panel and said she was going to lodge such an appeal. Yet she did not do so for almost six weeks. Instead she decided to preserve her position by prosecuting a claim in the Supreme Court and it was not until she failed in this forum that she lodged her Notice of Appeal in the Tribunal. As a result there has been a delay, causing substantial prejudice to the respondent. 43Why the appellant took this course has not been satisfactorily explained. At the same time it cannot be said that she sat on her hands. She is an unrepresented litigant and it is evident from the submissions that she has filed in these proceedings that many of the issues she raises are misconceived. This misconception may, in part, arise from the fact that the managing agent for Ms Hartley and the respondent, Towers, initially commenced proceedings to terminate the appellant's lease in the name of Ms Hartley. This is discussed in more detail below. Notwithstanding this error, the issues have always been the same, namely the appellant's failure to pay rent when it was due and payable. 44Being unrepresented and raising issues that are confusing and misconceived are generally not a basis to extend time to lodge an appeal. However, having regard to the appellant's circumstances and the fact that the respondent's agent Mr Orr has consented to a variation, as determined by the Appeal Panel, of the money order made by the Tribunal at first instance, the Panel is of the view that it is appropriate to make the order sought to extend time to lodge the Notice of Appeal to 3 July 2014. Internal appeals 45Section 80 of the NCAT Act, 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 46Cl 12 of Schedule 4 of the NCAT Act sets out a number of limitations on internal appeals against decisions of the Tribunal in the Consumer and Commercial Division. That clause relevantly provides: 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) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if: (a) ...., or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order 47 As the warrant for possession of the residential premises the subject of the orders made by the Tribunal on 7 May 2014, has been stayed the limitation in sub cl 12(2)(b) above does not apply in this matter. However, the limitation in cl 12(1) does apply. That is, other than an appeal on a question of law, unless the appellant is able to satisfy the Appeal Panel that she may have suffered a substantial miscarriage of justice on one or more of the grounds set out in cl 12(1)(a), (b) or (c) her application for leave to appeal must be refused. 48In Collins v Urban [2014] NSWCATAP 17, at [76], the Appeal Panel made the following remarks in regard to the meaning of the phrase "substantial miscarriage of justice": 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. 49As 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, and/or whether leave to appeal on other grounds is sought. Where a party seeks leave to appeal, the Notice of Appeal form requires the party seeking to appeal to identify whether they are appealing from a decision of the Consumer and Commercial Division and if the answer is 'Yes', the form makes provision for the party to address each of the abovementioned limitations in cl 12(1)(a), (b), or (c). The Appellant's Notice of Appeal 50In her Notice of Appeal, the appellant identified the orders she was challenging as follows: An order for the amount of $10,700 to be paid to Mr. Snyman Termination of agreement and vacant possession for non payment of rent Daily occupation fee of $80 to be paid to Carl Snyman care of Towers property management. 51The appellant went on to identify her grounds of appeal as: 1.New evidence - member made decision against the weight of evidence (see attached). 2.Procedural unfairness (I appeared via telephone for medical reasons. Towers property did not provide me with the submissions tendered to the registrar) 3.Recent stay granted by the Supreme Court in order to appeal decision and present new evidence (see attached) 4.Verification by Ms Hartley (the owner of the apartment) that Mr Carl Snyman has been terminated and has given 'vacant possession' as well as a claim on his rental bond. 5.A significant price difference requested by Ms Hartley as opposed to Mr Snyman (see attached). 52The appellant described the orders she said the Appeal Panel should make were as follows: -That Mr Snyman kindly remove his belongings from the premises. - My agreement with Mr Snyman is only valid if he is in possession of a current tenancy agreement for the apartment in question. - Since I am a tenant remaining on the premises (head tenant leaves). - Ms Hartley (the Landlord / owner) is to either enter into an agreement with me or to apply for a termination to the tribunal as a tenant remaining in the premises. 53During the hearing of the appellant's stay application on 11 July 2014, the appellant said she no longer sought an order in respect of the respondent's belongings or any orders against Ms Hartley. However, she was seeking a finding that, at the time the Tribunal at first instance made the orders on 7 May 2014, she no longer had a tenancy agreement with the respondent, it having been terminated on an earlier date. 54In her Notice of Appeal, the appellant said that she was asking for leave to appeal the decision of the Tribunal at first instance. The appellant went on to address each of the matters set out in cl 12(1)(a), (b) and (c) above. These are discussed in more detail below. The respondent's Reply 55On behalf of the respondent, Mr Orr addressed each of the matters raised by the appellant and in summary contended that the appellant had failed to establish that she had suffered a substantial miscarriage of justice, as required under cl 12 of Schedule 4 of the NCAT Act. 56For the reasons set out below we agree with the respondent. Appeal as of right - error of law 57The appellant does not appear to have had legal representation when completing her Notice of Appeal. We have borne this in mind when considering her grounds of appeal and her grounds for leave to appeal on the merits. 58The appellant does not specifically identify an error of law being the basis of her appeal. She does however, as noted above, say at point 2 under the heading 'Grounds of appeal' - 'procedural unfairness (I appeared via telephone for medical reasons. Towers property did not provide me with the submissions tendered)'. The Appeal Panel assumes that this is a reference to a denial of procedural fairness, which, if established, is an error of law. 59As the appellant included the failure to be provided with documents tendered by the respondent at the hearing in her grounds for leave to appeal we have dealt with this issue under that heading (i.e. cl 12(1)(b) -decision is against the weight of evidence). The Appeal Panel has found that the appellant has failed to establish this ground and hence a claim of denial of procedural fairness, if made, has not been established. Leave to appeal on the merits Cl 12(1)(a) - decision not fair and equitable 60In regard to the decision of the Tribunal at first instance not being fair and equitable, the appellant said: My reason for appearing via telephone was of a sensitive medical nature and I believe that given the circumstances the process not made clear and accessible. 61The Division file RT 14/18297 confirms that, at her request, the appellant appeared at the hearing by telephone. The respondent also appeared by telephone and Mr Orr, from the respondent's managing agent Tower, was present in person. The Division file also contains a completed 'Hearing Notes' form and notes the oral evidence given by both parties. The Notice of Order issued on the date of the hearing records the orders made and notes that oral reasons were given. Neither party to the proceedings requested written reasons. 62Notwithstanding the rather lengthy procedural history of the appellant's leased premises before the Consumer and Commercial Division of the Tribunal, the Appeal Panel is not persuaded that the appellant has established that the decision she seeks to appeal was not fair and equitable. 63The respondent commenced proceedings against the appellant in regard to the residential premises on 3 April 2014, when Tower lodged an electronic application on behalf of the respondent in the Consumer and Commercial Division. The application sought orders for termination of the respondent's residential tenancy agreement with the appellant and other related orders. In the application, the reasons for the orders sought were said to be the appellant having failed to pay rent since 28 December 2013 and that there was an amount of $7,680.00 outstanding. The application was given the Division file of RT 14/18297. 64In compliance with the principles in ss 36(1) and 37 of the NCAT Act, applications of this nature are listed for conciliation and hearing at the earliest available date. A Notice of Conciliation and Hearing is sent to the parties. Attached to the Notice sent to the respondent is a copy of the applicant's application. The Notice of Conciliation and Hearing advises the parties of the hearing date and time. It also informs the parties 'if conciliation is unsuccessful, or only one party appears, the case proceeds to hearing.' The Notice also states - 'As this is the first hearing you are not required to bring witnesses. However, you should bring with you all the relevant documents or material to support your case.' The Appeal Panel notes that on the same day as the respondent's application was lodged, a Notice of Conciliation and Hearing, addressed to the appellant and also a Notice addressed to the respondent was generated. Each Notice was in the usual form and stated that the respondent's application was listed, on 14 April 2014, and that the appellant and respondent were required to attend. 65On 10 April 2014, the appellant sent an email to the Division's Registry requesting an adjournment of the hearing as she was a student and had assessment exams on the nominated hearing date. The respondent had also sought to appear by telephone as he was in New Zealand. 66On 11 April 2014, Member Simon, made an order adjourning the hearing. The parties were notified, in writing, that the conciliation and hearing was adjourned. 67On 15 April 2014, the Division's Registry issued a further Conciliation and Hearing Notice, which stated that the application was listed on 24 April 2014 and that the respondent would be appearing by telephone as he was overseas. On 22 April 2014, the appellant sent a further email to the Division's Registry requesting to appear by telephone. In support of that request, the appellant provided a medical certificate from Dr Saad. The matter was adjourned on 24 April 2014, and the Division's Registry issued a further Conciliation and Hearing Notice, which stated that both parties would be appearing by telephone and that the application was adjourned to 7 May 2014. 68On 6 May 2014, the appellant sent an email to the Division's Registry enquiring about the 'duration for the phone hearing tomorrow'. She said she had been advised that the hearing would take about 30 minutes and she attached a copy of her student timetable as she would be unavailable after 3pm. 69It is apparent from the hearing notes of the Member that the matter commenced at 1:45pm and concluded at about 2:25pm. 70In light of this sequence of events it is difficult to accept the appellant's contention that the process and circumstances were not made clear and accessible, or that she was not given a reasonable opportunity to be heard. 71As noted above, the hearing on 7 May 2014 was not the first time the appellant had been issued with a Conciliation and Hearing Notice in regard to tenancy of the subject premises. 72Earlier this year, on 31 January 2014, Tower as managing agent for Ms Hartley, the owner of the premises, lodged an electronic application for the termination of the appellant's lease of the premises on the basis of the appellant's failure to pay rent (Division file RT 14/05949). That application was made on the basis of a termination notice served on the appellant by Mr Orr, naming 'Carl Snyman sub-tenant to Vera Hartley' as the landlord. On the lodgement of this electronic application for termination, the matter was automatically set down for conciliation and hearing at the earliest available date, being 17 February 2014. A Conciliation and Hearing Notice was issued and sent to the parties accordingly. The Division file in this matter contains an email from the appellant, sent on the morning of the allocated hearing, to the Division's Registry requesting an adjournment of the hearing for medical reasons. However, the matter proceeded and the Tribunal made orders for the termination of the lease (on the grounds of unpaid rent) and related orders. 73On 25 February 2014, the appellant made an application to set aside the decision of the Tribunal, under cl 9 of the NCAT Regulations (Division file RT 14/10924) and the respondent, Dr Snyman, also made a similar application (Division file RT 14/15039). Both applications were determined on the papers, by Senior Member Smith on 20 March 2014. Senior Member Smith dismissed the appellant's application on the basis that he was not satisfied on the information before him that if the matter were to be set aside there would be a different outcome. The application of the respondent, however, was allowed. As a consequence, Ms Hartley's application was listed for a re-hearing on 3 April 2014. The appellant actively participated in these processes and appeared at the hearing on 3 April with a support person. On 3 April 2014, Member Levingston found that there was no tenancy agreement between the appellant and Ms Hartley and on this basis dismissed Ms Hartley's application for termination. Member Levingston found that there was a tenancy agreement between the appellant and the respondent. He also found that the appellant had breached that agreement by failing to pay rent when it was due and payable. However, as there was no application for termination of the tenancy agreement between the respondent and the appellant no orders for termination could be made. 74The decisions made in these earlier proceedings are not the subject of this appeal, however they do demonstrate the appellant's familiarity with the Tribunal's processes in regard to residential tenancy matters of the kind the subject of this appeal. Hence, in the absence of any evidence to indicate that the appellant expressed concerns about the process at the time of the 7 May hearing, or shortly thereafter, the Appeal Panel is not satisfied that the appellant has established that the decision of the Tribunal at first instance was not fair and equitable on the grounds relied upon by the appellant. Cl 12(1)(b) - decision is against the weight of the evidence 75The essence of the appellant's argument in regard to the decision being against the weight of the evidence is that: (a) she did not present the Tribunal with any documentation as she had been told the allotted time was to conciliate the matter, and (b) as the respondent presented a number of documents, which she did not see, the Tribunal should not have considered that material. The material presented by the respondent is identified by the appellant as follows: a ledger a temporary agreement between Towers property management [the respondent's managing agent] and Mr. Carl Snyman. The residential lease between myself and Mr. Snyman. 76The Appeal Panel is of the view that while this is articulated as a claim that the decision of the Tribunal at first instance is against the weight of the evidence, it is more properly characterised as a claim that the decision was not fair and equitable, or a denial of procedural fairness: see Collins (supra), at [77]. 77Subs 38(2) of the NCAT Act provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such a manner as it thinks fit, subject to the rules of natural justice. The rules of natural justice, includes procedural fairness. At the same time, subs 38(4) of the NCAT Act provides that the Tribunal is to act with as little formality as the circumstances of the case permit and according to good equity, good conscience and the substantial merits of the case without regard to technicalities and legal form: see also subs 36(1) of the NCAT Act which provides that the guiding principles for the Act and the procedural rules, in their application to proceedings in the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 78There does not seem to be a dispute that the appellant was aware, during the course of the hearing that these documents were being presented at the hearing. Whether she objected is not clear. In any event it is convenient to consider separately each document, its relevance to the matters in issue before the Tribunal at first instance and whether the appellant was denied procedural fairness in not being given an opportunity to know what was contained in these documents. 79The management agreement between the respondent and his managing agent was presumably presented at the hearing to establish that Mr Orr had authority to appear and give evidence on behalf of the respondent. The appellant had not previously raised any objection to him doing so in these proceedings or the prior proceedings. Furthermore, on her own evidence, the appellant regularly dealt with Mr Orr in his capacity as the respondent's agent. 80The management agreement does not otherwise contain any relevant evidence concerning whether rent has been paid as required by the residential tenancy agreement. Accordingly, it is difficult to see how a failure to provide this document to the appellant prior to the hearing caused any prejudice to the appellant. 81In regard to the residential tenancy agreement between the appellant and the respondent it is clear the appellant was aware of this document and its terms. The appellant had co-executed this agreement in September 2013 and again it is improbable she did not already have a copy. It is noted a full copy of that agreement is contained within the bundle of documents filed by the appellant in this appeal. A copy of the signed agreement was also before the Tribunal at the April 2014 rehearing of Ms Hartley's application for termination. It formed the basis of the findings of Member Levingston in regard to the appellant's tenancy relationship with the respondent. The appellant was in attendance at that hearing. 82The amount of rent outstanding was clearly an essential matter at issue in the respondent's application for termination and an order for the payment of that amount by the appellant. The ledger referred to by the appellant is in a form in which a landlord proves rent paid and that which remains outstanding. This does not mean that the tenant cannot challenge what is stated on the ledger, but in the absence of objection or proof of error the amounts recorded in the ledger may be accepted. In this case, the appellant had been provided with an earlier version of the ledger in the rehearing of Ms Hartley's application. The ledger presented on 7 May 2014 was an updated version of the ledger, as at the date of hearing. No additional payment entries were recorded and as noted below, there is no dispute that the payment entries are correct. The only difference in the ledger is an updated entry of rent charged up to 7 May 2014. 83The Appeal Panel notes that on 3 April 2014, the appellant was served with a Notice of Termination, which stated the amount of rent outstanding as at that date was $7,860.00. It was on the basis of this Notice that the respondent lodged his application for termination. Again having regard to the 'Hearing Notes' it is difficult to accept that the appellant was not informed about the updated amount in Tower's ledger, as presented by Mr Orr. There is no evidence that she objected to the total amount outstanding. 84However, it is unnecessary for the Appeal Panel to deal with this matter any further as the applicant has now had an opportunity to examine the ledger and Mr Orr, on behalf of the respondent, has agreed that the Appeal Panel is to examine his re-calculations, as set out in Exhibit 1, and those of the appellant set out in Exhibit A. Furthermore, the respondent has consented to a variation of order 6 of the decision of the Tribunal at first instance if the Appeal Panel's determines a different amount is payable to the amount contained in order 6 made on 7 May 2014. 85We have dealt with this issue below. 86However, it is sufficient to conclude the Appeal Panel finds that the appellant has failed to establish this ground in support of her application for leave to appeal. She requested to attend the hearing by telephone. Her request was granted and the matters in issue at the hearing were well established prior thereto. Accordingly, for the reasons set out above, the Appeal Panel finds that the applicant has failed to establish that she was denied procedural fairness as asserted. Cl 12(1)(c) - significant new evidence 87Under this ground, in her Notice of Appeal, the appellant said: 'I wish to produce an emails (sic) from Towers property management and Ms Hartley.' In response to the question as to why these were not available at the time of the hearing the appellant said she did not produce any submissions due to her appearance by telephone. 88As noted above, the appellant had indicated under the heading 'Grounds of appeal' that she had new evidence, a copy of which was attached. Attached to the appellant's submissions were a series of emails the appellant seems to have cut and pasted into an email she sent to the Division Registry on 30 June 2014. 89Included in the appellant's documents is the following email, Ms Hartley is said to have sent to the appellant on 28 May 2014. In that email Ms Hartley said: Hi Nadia I need to get Carl's furniture out of the flat seeing as he is no longer my tenant and you said you also want it out. What would be suitable days/times for you? You mentioned that Stuart had a submission to the court regarding my alleged 'agreement' to sublet. Did I hear you right? Do you have a copy of that document? So Nadia, I have thought about things and I cannot consider signing a lease with you until you are up-to-date with the back payment of rent. I've checked and you have paid up to the second week of February - much of that money went on paying for the new blinds. I have not received any rent since then ... Please organise payment of arrears since March 15, ie. 9 (nine) weeks @$400.00 per week, $3600.00 in total. Carl's bond should cover most of the difference, let you know when I have received it.... .... 90In the absence of the context in which this email was sent it is difficult to make findings in regard thereto. 91However, the Appeal Panel has assumed that the appellant contends that this email supports her contention that at the time the Tribunal at first instance made its decision there was no residential tenancy agreement between the respondent and Ms Hartley. That is, his tenancy had been terminated. On the basis of her submissions, the Appeal Panel understands the appellant to contend that it ended in March 2014. 92In asserting that the tenancy agreement between Ms Hartley and the respondent had ended, the appellant is acknowledging that such a tenancy agreement did exist. However, if it did exist it can only be terminated on one of the grounds set out in s 81 of the RL Act, which provides: 81 Circumstances of termination of residential tenancies (1) Termination only as set out in Act A residential tenancy agreement terminates only in the circumstances set out in this Act. (2) Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises. (3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act. (4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs: (a) a person having superior title (such as a head landlord) to that of the landlord becomes entitled to possession of the residential premises, (b) a mortgagee of the residential premises becomes entitled to possession of the premises to the exclusion of the tenant, (c) a person who succeeds to the title of the landlord becomes entitled to possession of the residential premises to the exclusion of the tenant, (d) the tenant abandons the residential premises, (e) the tenant gives up possession of the residential premises with the landlord's consent, whether or not that consent is subsequently withdrawn, (f) the interests of the landlord and tenant become vested in the one person (merger), (g) disclaimer occurs (such as when the tenant's repudiation of the tenancy is accepted by the landlord). 93There is no evidence to support that the respondent's residential tenancy agreement with Ms Hartley terminated under any of the abovementioned circumstances. On the evidence, the respondent has not given up 'possession' of the premises. The fact that he does not occupy the premises is not material as the residential tenancy agreement gives him a right to possess the premises and that is a continuing right where the tenant sub-leases the premises to another tenant. Nor is there any evidence that Ms Hartley has taken steps to terminate the lease. Had the respondent's tenancy agreement been terminated, then subject to a new agreement with Ms Hartley, the appellant's tenancy would also have been terminated at the same time and she would have been required to give vacant possession. 94Accordingly, while Ms Hartley may wish to terminate the tenancy agreement she has with the respondent, this has not occurred as a matter of law. Nor has Ms Hartley entered a tenancy agreement with the appellant. Her email clearly states that she was not willing to enter a tenancy agreement with the appellant until such time the appellant paid her arrears in rent. 95Accordingly, the new evidence relied on by the appellant would not alter the findings of the Tribunal at first instance that at the time the orders were made there was an ongoing residential tenancy agreement between the appellant and the respondent in regard to the premises. 96For completeness, the Appeal Panel will briefly deal with the issue as to the agreed weekly rent amount raised in the appellant's submissions. This was not an issue raised in the grounds for leave to appeal and appropriately so. The appellant seems to assert that in light of the respondent having removed his furniture from the premises, the extra rent paid for the premises being furnished should not be charged from the time this furniture was removed. What should be charged, the appellant asserts, is the weekly amount referred to in the email of Ms Hartley. Whether the appellant has a claim in this regard is not for the Appeal Panel to determine and we have not done so. Nor was there an application by the appellant before the Tribunal at first instance seeking an order to reduce rent under section 44 of the RT Act on the basis of the premises no longer being furnished and services having been withdrawn. 97Accordingly, the Appeal Panel finds that the appellant has failed to establish this ground in support of her application for leave to appeal Conclusions in regard to application for leave to appeal 98On the basis of the findings above, the Appeal Panel is not satisfied that the appellant has established that she has suffered a substantial miscarriage of justice as required under cl 12 of Schedule 4 of the NCAT Act. Accordingly, her application for leave to appeal on the merits of the decision of the Tribunal at first instance is refused. 99The Appeal Panel also notes that even though it has found that the appellant has failed to establish that she has suffered a substantial miscarriage of justice to warrant the exercise of the discretion to grant leave to appeal on the merits, the Tribunal at first instance did not make a finding of frequent non-payment of rent, under subs 89(5) of the RT Act. Therefore, even in circumstances such as these where there is a substantial amount of rent is unpaid, it is open to the appellant to pay the rent or comply with a repayment agreement with the respondent prior to the execution of the warrant for possession. If such a payment is made, by reason of subs 89(3) of the RT Act, the termination order and any warrant for possession ceases to have effect. Adjustment of rent arrears and other orders 100As noted above, prior to reserving our decision, Mr Orr was sworn and questioned about the rent ledger which had been tendered on 7 May 2014. At the Appeal Panel's request, he re-calculated the amount of rent the respondent claims was owing as at 7 May 2014. Mr Orr's calculation is set out in a document accepted into evidence as Exhibit 1. This document states that the rent payable from 16 September 2013 (the date the tenancy commenced) to 7 May 2014 was $18,640.00, from which was subtracted the sum of $2,500.00, being an amount agreed between the parties after the appellant had complained about a non-operational fridge which resulted in no rent being payable in November 2013. The appellant described this payment as compensation and the respondent described it as a rent free period. Their differing descriptions are not material to this appeal. 101Exhibit 1 also sets out rent payments made by the appellant from the beginning of the tenancy amounting to $5,860.00 and states that the rent owing as at 7 May 2014 is $10,280.00, which is marginally less than that claimed at the hearing (i.e. $10,400.00). 102The appellant did not agree with Mr Orr's calculation. At the request of the Appeal Panel, the appellant provided a document that set out her calculations (Exhibit A). 103In regard to the amounts paid by the appellant, there is no dispute as to the total amount of rent paid. In addition, the appellant included her payment of the bond as 'rent'. That amount is not included in Mr Orr's calculations, as rental bonds are required to be forwarded to the Rental Board and not held by the managing agent. Otherwise, Mr Orr's record of payments received corresponds to the amounts the appellant says she paid and Mr Orr confirmed that the rental bond was still held by the Rental Board. 104In regard to the amounts charged, Mr Orr's calculations differed to that of the appellant as the appellant's calculation go for a shorter period of time (only to March 2014). The appellant submitted there were 229 days from the commencement of the tenancy on 16 September 2013 to 7 May 2014. This is clearly incorrect. 105The Appeal Panel has also made its own calculations. While the Appeal Panel calculated one additional day to that of Mr Orr, the Appeal panel has accepted Mr Orr's calculation of $10,280.00 which is less than the sum originally payable under Order 6 of the orders made by the Tribunal at first instance. In light of those findings and the agreement of the parties, it is appropriate that the amount in Order 6 is varied accordingly. 106The order for possession was previously stayed. The stay should be lifted. However, it is appropriate to vary the order for possession to allow the appellant to consider these reasons for decision and vacate the premises. Considering the time since possession was originally required and the benefit the appellant has enjoyed, a short period should be allowed. 107Accordingly, the Appeal Panel considers it appropriate to vary the date in Order 3 of the decision of the Tribunal at first instance by deleting the date 14 May 2014 and substituting the date 30 July 2014. Orders 108For the reasons set out above the Appeal Panel makes the following orders: 1.Time to appeal is extended to 3 July 2014. 2.The application for leave to appeal on the merits is dismissed. 3.Save as to the orders in order 4 and 5 below, the appeal is dismissed. 4.Order 3 of the Tribunal decision at first instance is varied by deleting the date 14 May 2014 and substituting the date 30 July 2014. 5.Order 6 of the Tribunal decision at first instance is varied by deleting the amount of $10,400.00 and substituting the amount of $10,280.00. 6.The stay on the operation of the orders of the Tribunal at first instance is lifted. 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: 25 July 2014