Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chen v Baxter [2014] NSWCATAP 50 Hearing dates: Determined on the papers. Decision date: 17 September 2014 Jurisdiction: Appeal Panel Before: P Wass SC, Senior Member K Rosser, Senior Member Decision: That an oral hearing of the application for an extension of time in which to appeal be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). The application for an extension of time in which to appeal is dismissed. The appeal is dismissed. Catchwords: APPEAL - Civil and Administrative Tribunal (NSW) - application for extension of time in which to appeal - exercise of discretion - appeal dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) NCAT Interim Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 Gallo v Dawson [1990] HCA 30; 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 Nanschild v Pratt [2011] NSWCA 85 Opera Australia Ltd v Carr [1999] NSWADTAP 6 Tomko v Palasty (No 2) (2007) 71 NSWLR 6 Category: Principal judgment Parties: Yichang Chen and Shan Ling Hung (Appellants) William Baxter (Respondent) File Number(s): AP 14/0049 Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-02-26 00:00:00 Before: P Smith, General Member File Number(s): RT 14/07984 reasons for decision Introduction 1The appellants are the landlords of premises at Chatswood, in the State of New South Wales ("the premises"). The respondent was a tenant of the premises pursuant to a residential tenancy agreement dated 19 July 2013. The appeal is in respect of a decision made in the Consumer and Commercial Division of the Tribunal on 26 February 2014. On that date, the Tribunal ordered the appellants to pay to the respondent the sum of $1215.60, which had previously been released to the appellants by Rental Bond Services. The Tribunal also ordered Rental Bond Services to pay to the respondent the balance of the bond, which was $1384.52, together with any interest owing. 2The appellants wished to appeal against that decision. The Notice of Appeal was filed on 26 March 2014. For the reasons set out below, the Appeal Panel has concluded that the appeal was filed out of time, that time in which to file the appeal should not be extended and that the appeal should be dismissed. Proceedings at first instance 3On 7 February 2014, the respondent to this appeal (the applicant in the original proceedings) lodged an application with the Tribunal seeking an order for payment of the rental bond. The reason for seeking that order was stated to be "lease ended by agreement (which landlord/agent is now disputing)". 4The application was on a Consumer Trader and Tenancy Tribunal application form. However, the Consumer Trader and Tenancy Tribunal ceased to exist on 31 December 2013 and the application was at all times an application to the Consumer and Commercial Division of the Tribunal. 5The application was heard on 26 February 2014. After hearing the matter, the Tribunal relevantly ordered that: 1. The landlord ... is to pay to the tenant ... the sum of $1,215.60 immediately (being bond money held by the appellants); and 2. The Rental Bond Services is directed to pay the tenant ... the balance of bond $1384.52 held in trust by rental bond board plus interest of Rental Bond number K698042-2. 6The Tribunal had jurisdiction to make the orders pursuant to s 175(1) of the Residential Tenancies Act 2010 (NSW) (RT Act). 7The Tribunal did not give a written statement of reasons for the decision at the time the orders were made, neither party requested a written statement of reasons pursuant to s 62(2) of the Civil and Administrative Tribunal Act 2013 (the Act) and the appellants did not file a transcript of the hearing in accordance with directions made by the Appeal Panel on 30 April 2014. The reasons the Tribunal made the decision are therefore not before the Appeal Panel. However, notes on the Tribunal file indicate that the Tribunal heard evidence that there had been flooding in the premises on 15 November 2013, on 22 November 2013 there had been an offer to consider the contract frustrated and that the respondent vacated the premises on 23 November 2013. The fact that the Tribunal ordered the appellants to refund to the respondent that part of the rental bond which had been paid to them indicates that the Tribunal accepted the respondent's contention that the tenancy agreement had ended by agreement. 8The appellants, who were the respondents in the original proceedings, were represented at the hearing by Mr Tang from Shead Property, the appellant's managing agent. The respondent appeared in person. Notice of Appeal 9On 26 March 2014, the appellants filed a Notice of Appeal under s 80 of the Act. They did not seek an extension of time in which to appeal or a stay of the original orders. The issue of time is dealt with below. 10The appellants' grounds of appeal as set out in the Notice of Appeal are as follows: i.The order was made that the respondent only need pay rent up to 28 November 2013. The day was a mistake made by the appellants' agent, Shead Property. The tenant had given notice on 1 November 2013 to break the lease. He would vacate the premises on 7 December 2013 and would pay rent until a new tenant entered into a new lease, or to the end of the existing lease on 19 January 2014. ii.The Tribunal member who made the order only asked why the appellants' agent charged five days rent in the sum of $1,215.60 and did not enquire into rental arrears. The rental arrears ought to have been calculated to 19 January 2014 and not to 28 November 2013. 11In the Notice of Appeal, the appellants were required to indicate in section 12B of the form whether they were seeking leave to appeal. They indicated that they were not doing so. The requirement for leave to appeal is dealt with in s 80 of the Act, which relevantly provides: (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) in the case of an interlocutory decision of the Tribunal at first instance-with the leave of the Appeal Panel, and (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. ... 12The decision that the appellants are seeking to appeal was a final decision and not an interlocutory or ancillary decision (see the definitions in s 4(1) of the Act). Under s 80(2)(b), the appellants can only appeal as of right from the Tribunal's decision on a question of law. Otherwise, leave to appeal is required under s 80(2)(b). 13Although the appellants indicated that they were not seeking leave to appeal, they filled in other parts of section 12B, specifically 12B i (Decision not fair and equitable) and 12B iii (Evidence is now available that was not reasonably available at the time of the hearing). They also filled in one part of section 12B ii (Decision of the Tribunal against the weight of the evidence). Accordingly, the Appeal Panel concludes that the appellants are in fact seeking leave to appeal the Tribunal's decision in accordance with s 80(2)(b) and clause 12(1) of Schedule 4 of the Act. 14In section 12B i, the appellants state that the decision made by the Tribunal was not fair and equitable because: i.The Tribunal member only asked the appellants' agent to hand over the rent ledger. The agent was unaware of the need to explain what rent was outstanding and was unprepared for the hearing. Accordingly the agent made a mistake only seeking rent up to 28 November 2013. ii.The premises were not re-let until 8 February 2014. iii.Accordingly, the respondent is responsible for rent from 28 November 2014 [sic] until 19 January 2014. Based on $650 per week, the rent arrears are $4828.57. iv.On the day the order was made, the appellants' agent did not show the Tenancy Agreement. One of the appellants was present and the Tribunal did not ask him any questions and so he did not have a chance to speak. 15In section 12B ii, the appellants wrote "none" in response to the question "what evidence did you give at the hearing?". They did not answer the next question in that section, which concerns the evidence given by the other party. In response to the question "What decision do you think the Tribunal should have made, given the evidence / documents presented at the original hearing?, the appellants state that the Tribunal should have ordered the respondent to pay rent until 19 January 2014. 16In section 12B iii, the appellants state that the evidence or documents they now seek to produce to the Tribunal are: i. The tenancy agreement signed by the tenant. ii.The email which states that the tenant agreed to pay rent to the end of the lease or until a new tenant took over. iii.The cleaning and repair bill after the tenant left. 17In response to the question "When did you first become aware of this evidence?" the appellants state that after they spoke to their agent they realized [the agent] made a mistake and that they looked at the tenancy agreement after the order was made. Reply to Appeal 18On about 16 April 2014 the respondent lodged a Reply to Appeal pursuant to Rule 26 of the Rules. In the Reply to Appeal, the respondent states that the appellants require leave to appeal which is opposed as the appeal has no basis and is out of time. The respondent does not object to an application for an extension of time or to the appeal itself being dealt with on the papers. Directions, submissions and documents 19On 30 April 2014, the Appeal Panel, constituted by Principal Member Harrowell, made the following directions: 1.By consent provided by the appellant in the Notice of Appeal dated 23/3/14 and the respondent in the Reply to Appeal dated 16/4/14 the application for leave to appeal, if leave is granted and the appeal are to be dealt with on the papers and the need for a hearing is dispensed with pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013. 2.On or before 30/5/14 the appellant is to file and serve a bundle of documents (marked "Appellant's Bundle") and written submissions in support of the appeal. The bundle is to contain: a)A transcript of the hearing and decision at first instance on 26/2/14; b)All evidence to be relied upon; and c)Any written submissions. 3.On or before 6/6/14, the respondent is to file and serve a bundle of documents (marked "Respondent's Bundle") and submissions in reply. The bundle is to contain: a)The submissions in reply; and b)Any evidence relied on by the respondent and not contained in the Appellant's Bundle. 4.On or before the 13/6/14, the appellant is to file and serve submissions in reply. 5.The matter is to be referred to the appeal panel after 13/6/14 for determination on the papers. 20On 2 June 2014, the appellants filed a bundle of documents in response to the Appeal Panel's directions. The appellants provided copies of: i.The Tribunal's decision of 26 February 2014; ii.Written submissions; iii.The tenancy agreement with the respondent; iv.An email dated 1 November 2014 from the Appellants' managing agent Mr Tang; v.A rent statement dated 26 November 2013 and vi.A residential tenancy agreement with a new tenant, which commenced on 8 February 2014. 21Contrary to the directions, the Appellant's Bundle did not include a transcript of the hearing. 22The email provided in the bundle states that the appellants' tenant (that is, the respondent) "will be breaking his lease". It goes on to state that the tenant "will be responsible for the rent until a new tenant takes over" and that he "will be responsible for all fees & charges incurred with breaking a lease". 23The appellants' submissions relevantly state that: i.On 1 November 2013, the respondent gave notice to the Appellant's property manager that he would break the lease from 7 December 2013. ii.The respondent paid rent to 23 November 2013 and then stopped paying. iii.The appellants' agent Mr Tang claimed a further five days rent and other fees totaling $1215.60 from the rental bond. iv.On the day of the hearing, the Tribunal Member asked Mr Tang what he had claimed $1215.60 for. Mr Tang answered "I don't know, I had moved on to another job, no longer manage this property, it looks like 5 days rent". The Tribunal Member said "a week['s] rent is $650, it doesn't make [sense] $1215.60 for 5 days rent" my agent had no answer". The Tribunal Member asked the appellants' agent to "hand over the ledger, and then made the Judgement to order the refund of $1215.60". v.Neither the Tribunal Member nor Mr Tang had mentioned what day the respondent should stop paying rent and never mentioned what day is the end of the lease agreement. vi.Shead Property did not find a tenant until 8 February 2014. vii.The respondent should pay rent from 23 November 2013 to 19 January 2014 at $650 per week. 24In their submissions, the appellants did not address the Reply to Appeal, specifically the respondent's assertion that the appeal was out of time and that he did not agree to an extension of time. Application for extension of time in which to appeal 25The appeal is an internal appeal as defined in s 80 of the Act. Time periods in which appeals must be filed are set out in Rule 25(4) of the Civil and Administrative Tribunal Rules (the Rules). Rule 25(4)(b) states that unless the Tribunal grants an extension of time under s 41 of the Act, an internal appeal against a decision made in residential proceeding must be lodged "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)". 26Residential proceedings is defined in Rule 3 of the Rules as including any proceedings allocated to the Consumer and Commercial Division of the Tribunal arising under the RT Act. The proceedings before the Tribunal were residential proceedings as the respondent sought an order for payment of the rental bond pursuant to s 175 of the RT Act. 27The Notice of Appeal was filed 28 days after the hearing of the application. This means that the appeal was lodged 14 days out of time. The Notice of Appeal and the Appellants' submissions make it clear that at least one of the appellants was present at the Tribunal when the orders were made and therefore was aware of the orders on the day of the hearing. 28Under s 41 of the Act the Appeal Panel may of its own motion extend the period of time in which to file a Notice of Appeal, even though the relevant period of time for doing so has expired. Pursuant to Rule 8 of the NCAT Rules any such application for an extension of time must be made in writing unless the Tribunal dispenses with that requirement. 29In the interests of expediency, and in order that the matter might properly be dealt with, the Appeal Panel has determined to dispense with the requirement otherwise imposed on the appellants to make their application regarding the extension of time in writing and regard such an application as having been made. Such an approach is consistent with the legislative requirement that the Tribunal act with as little formality as the circumstances of the case permit and without regard to technicalities or legal forms (s 38(4) of the Act) and the requirement that the Tribunal's practice and procedures should be implemented so as to facilitate the resolution of issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings (s 36(4) of the Act): Jackson v. NSW Land and Housing Corporation [2014] NSWCATAP 22 at [80]. 30As noted above, the appellants and the respondent consent to the appeal being determined by the Appeal Panel on the papers. In any event, s 50(1)(a) of the Act expressly provides that an application for leave to appeal in a matter such as the present may be dealt with on the papers and the Appeal Panel, to the extent it needs to, has determined to do so. 31As noted above, although the parties do not object to an application for an extension of time in which to appeal being dealt with on the papers, the respondent's Reply to Appeal makes it plain that he objects to an extension of time being granted. 32The Appeal Panel is satisfied that the appellants were on notice that an explanation as to why a Notice of Appeal is lodged out of time was required by the contents of the Notice of Reply and the terms of the Notice of Appeal form. Further, the appellants were given an opportunity in the Notice of Appeal form and once the Notice of Reply had been received, to explain why the appeal was not lodged within time and to raise any relevant considerations as to why an extension of time should be granted. They did not do so and in fact incorrectly asserted that they did not require an extension of time. 33The Appeal Panel is satisfied that the parties have had a reasonable opportunity to be heard or otherwise have their submissions considered on the application for an extension of time and that the issues for determination can be adequately dealt with in the absence of the parties by considering the written submissions and other documents provided to the Appeal Panel. On these bases, the Appeal Panel considers it appropriate to make an order that an oral hearing of the application for an extension of time be dispensed with under s 50(2) of the Act. Extension of Time to Appeal - Principles 34The discretionary power to grant an extension of time under s 41 of the Act, is unfettered but it must be exercised judicially and having regard to s 36 of the Act and the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings". 35The grant of an extension of time is not automatic. The discretion to extend time is given for the sole purpose of enabling the Appeal Panel to do justice between the parties. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. It is also necessary to consider the prospects of the applicant succeeding in the appeal. In order to justify the Appeal Panel extending the time, there must be some material upon which the Appeal Panel can exercise its discretion: see Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2] per McHugh J. and the authorities referred to therein. See also Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16] and Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. 36Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings, and to achieve finality in litigation. For these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted. 37As set out in Jackson v Land and Housing Corporation at [22], the relevant considerations in deciding whether to grant an extension of time in which to lodge a Notice of Appeal include: (1)The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant ­ Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2)The discretion is to be exercised in the light of the fact that the respondent (to the appeal) 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 that decision ­ Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success ­ Jackamarra at [7]; (3)Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a)The length of the delay; (b)The reason for the delay; (c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d)The extent of any prejudice suffered by the respondent (to the appeal): Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4)It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable ­ Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] ­ [59]. Extension of Time to Appeal ­ Consideration 38In this matter, the length of delay was only 14 days. However, there is a very short period of 14 days in which appeals may be lodged in respect of Residential proceedings. 39As referred to above, in their Notice of Appeal the appellants did not seek an extension of time in which to appeal and therefore did not explain why the application was not lodged within the time limit nor give any information as to what effect granting or not granting the extension would have. The appellants were assisted at the Tribunal by Mr Tang, a real estate agent, and at least one of the appellants was present at the hearing. There is no suggestion in any of the material that the appellants were impeded in any way from lodging their Notice of Appeal within time. The appellants contend that it was apparent on the day of the hearing that their representative had not, in their view, put the appropriate submissions and evidence forward and that the orders made were not to their satisfaction. 40Accordingly, there is no basis for the Appeal Panel to be satisfied that the appellant has provided an adequate explanation of the delay in lodging the appeal. The lack of an explanation of the delay weighs against granting an extension of time: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. 41As to whether there is any prejudice to either party, the Appeal Panel notes no submission regarding prejudice has been made by either party. However, the respondent is a private individual who has had the benefit of the orders since they were made, the appellants having not sought a stay of those orders. Although there is no specific evidence of prejudice if the respondent were to be required to repay all of any of the bond monies to the appellant, some level of prejudice can be inferred, given the nature of the proceedings. This consideration marginally weighs against extending the time for appeal. 42Finally, the Appeal Panel should consider the appellant's prospects of success on any appeal if an extension of time were granted. In short, the appellants contend that the tenancy agreement required further rent to be paid and the respondent contends that the tenancy agreement had ended by agreement. The appellants contend that the decision was not fair and equitable because their agent Mr Tang did not show the tenancy agreement to the Tribunal and because the Tribunal did not ask any questions of the appellant who was present at the hearing. 43In relation to the assertion that Tribunal did not take into account the terms of the tenancy agreement, if the appellants are right in this contention it is consistent with the Tribunal having taken the view that the agreement had come to an end by consent of the parties. Further, as the appellants were represented by their managing agent, there was no reason for the appellant who was present to give evidence, as their representative would have been in a position to explain the basis for any claim the appellants had on the rental bond. 44The appellants also claim that new evidence is now available that was not reasonably available at the time of the hearing. The "new evidence" by way of further explanation of the claimed rent owing and the provision of a copy of the residential tenancy agreement is not new evidence in the strict sense in that this evidence was available when the matter was before the Tribunal. 45Furthermore, although the appellants assert that they were not given an opportunity at the Tribunal to properly present their case, it is clear from the Notice of Appeal that it is not a question of new evidence now available that was not reasonably available at the time of the hearing, but rather that the appellants assert that Mr Tang, who appeared for them at the Tribunal hearing, did not draw appropriate matters to the attention of the Tribunal and that the appropriate evidence was not put before the Tribunal at that time. There is no suggestion in any of the material before the Appeal Panel that the appellants were not afforded procedural fairness or that they did not have a reasonable opportunity to be heard or otherwise make their submissions. Rather, it is contended that Mr Tang failed in his obligation to present the material either at all or in a way that was compelling before the Tribunal and was "unprepared". In the Appeal Panel's view, this is an issue between the appellants and Mr Tang. It is not a basis for concluding that the appeal has merit. 46Given the other considerations which weigh against an extension of time being granted, the Appeal Panel considers that the appellants would have to satisfy the Appeal Panel that their case has more substantial merit than merely being fairly arguable: see Jackson at [35] and the cases cited therein. The appellants have failed to establish such substantial merit, militating against granting an extension of time. Conclusion on Extension of Time and Consequential Matters 47For these reasons, the Appeal Panel has determined that it should not grant the appellants an extension of time in which to appeal. 48Consequently, the questions of leave to appeal and where any appeal should be heard do not arise. The appeal itself should be dismissed, being out of time. Orders 49For these reasons, the Appeal Panel makes the following orders: (1)That an oral hearing of the application for an extension of time in which to appeal be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2)The application for an extension of time in which to appeal is dismissed. (3)The 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: 17 September 2014