Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pholi v Wearne [2014] NSWCATAP 78 Hearing dates: 29 October 2014 Decision date: 06 November 2014 Jurisdiction: Appeal Panel Before: A P Coleman SC, Senior Member J Smith, Senior Member Decision: 1. Application for Extension of Time refused 2. Appeal dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Collins v Urban NSWCATAP 17 Habib v State of NSW [2014] NSWCATAP 70 Category: Principal judgment Parties: Appellant: Shonnelle Pholi Representation: Appellant: Ms N Heron (Managing Agent) File Number(s): AP 14/46525 Publication restriction: Nil Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-08-01 00:00:00 Before: Member T Simon File Number(s): RT 14/29037 reasons for decision Background 1This is an application for an extension of time to appeal and leave to appeal from a decision of the Tribunal made 1 August 2014. 2The appellant received notice of the original decision on 6 August 2014. As such, being a "residential proceeding", the Notice of Appeal had to be filed within 14 days of that date, namely, by 20 August 2014: Civil and Administrative Rules 2014 clause 25(4)(b). It was filed on 21 August 2014. It was therefore one day out of time. 3The appellant appreciated that she required an extension of time as it was stated in her Notice of Appeal. The reasons for the delay in filing the Notice of Appeal as set out in the Notice of Appeal were said to be that she was awaiting information from contractors in respect to certain matters. We will return to this below. The Decision Below 4The decision the subject of the appeal concerned a claim for compensation by the respondent from the appellant who was her landlord. There were also claims for repairs to the leased premises. 5Relevantly, the Tribunal ordered that : 1. The landlord Shonelle PHOLI c/ LJ Hooker Liverpool 286 Macquarie Street LIVERPOOL NSW 2170 Australia, is to pay the tenant, Aimee Wearne, XX XXXX Street, PARRAMATTA NSW 2150 Australia, the sum of $2,288.56 immediately. Reasons: Compensation for the period 24 April 2014 to 13 June 2014 - abatement of half the rent $1,602.85 Compensation for the period 14 June 2014 to 31 July 2014-abatement of rent $100.00 $685.71 6There were other orders made with respect to some repairs to the front door and in relation to an air conditioning remote and also as to the level of rent for a confined period (which had expired by the time of the appeal). As they do not form part of the appeal, we need not refer to them in detail. The Notice of Appeal 7The Notice of Appeal stated that the order challenged on appeal was order 1 referred to above. The grounds of appeal were said to be that the decision was not fair and equitable "based upon the fact that the owner was expecting quotes to proceed with repairs. The owner approved repairs and proceeded with them as soon as the tenant provided access to the contractors. Considered not fair too because tenant promised to the owner that she will be doing some of the repairs. The owner does not consider that the outstanding repairs made the property unliveable..." 8The Notice of Appeal sought that the Appeal Panel "review the compensation requested and ordered by Tribunal. Owner does not agree that rental reduction no less than $20 per week as expressed before...." 9Under section 12B(i) of the Notice of Appeal where it was properly indicated that leave to appeal was required, the reasons in support of leave on the basis that the decision was not fair and equitable were stated to be: "Owner knew about repairs, waiting on quotes and access from tenant in order to proceed with repairs. Tenant was constantly arguing owners decisions in relation to repairs". 10Under section 12B(iii) of the Notice of Appeal dealing with new evidence, it was stated that the appellant would seek to produce to the Appeal Panel "statutory declaration from contractors advising deficient access to premises and cooperation from tenant. Delaying owners decisions on repairs." It was stated in response to the question on the Notice of Appeal as to when the appellant first became aware of this evidence that the appellant was " still waiting on the declarations to arrive". As at the date of the hearing before the Appeal Panel, no such declarations had been filed or provided and we shall not say anything further about this. There was no new evidence provided by the appellant. 11It was also stated on the Notice of Appeal that the appellant sought a stay of the original orders on the basis that: "not enough facts to proof (sic) that the owner has to refund 50% of rent to the tenant based on repairs completed and the property being suitable for living." 12The Notice of Appeal was signed by a Maria Cuoto, apparently from the appellant's managing agent, LJ Hooker Liverpool. Directions for the Appeal 13On 29 August 2014, the President directed that the application for a stay be stood over until the first directions call over, which was listed for 15 September 2014. 14On 15 September 2014, the call over was held before the Appeal Panel constituted by Mr Cowdroy QC. At that time the following directions were made: 1. On or before 22 September 2014 the Appeallant is to provide in writing that $2,286.56 has been credited to the Respondent's account. 2. The Appellant is to file and serve submissions on or before 4 pm 29 September 2014. 3. The Respondent file and serve submissions in reply on or before 13 October 2014. 4. The Appellant is to file and serve submissions in reply on or before 20 October 2014. 5. The matter is set down for hearing on 29 October 2014 at 2.15 pm. 15There is no record of any application for a stay being pursued at the call over. We assume that is because, as direction 1 above records, it was suggested that the amount found to be payable to the respondent was to be credited to her ledger or account with LJ Hooker in respect to the premises. In the events that happened, as we explain below, that did not happen. Material before the Appeal Panel 16On 29 September 2014 the appellant's agents, LJ Hooker Liverpool, sent by email a document with the message " Please find attached some declarations from the owner in relation to the appeal above mentioned." These were the submissions in support of the appeal filed and served on behalf of the appellant and we have considered them for the purposes of the appeal. They do not address, in any proper sense, why it is said that the decision below was not fair and equitable, rather they seek to reargue the matters that had been decided by the Tribunal. The document states that : "As mentioned previously to the tribunal the owner has the following to say and therefore refuse to pay the compensations (sic) ordered by the tribunal member..." There are several matters then listed as to issues requiring repair which were dealt with by the Tribunal and which have or are to be fixed. The rest of the document simply repeats arguments as to the state of the property and the rental reduction which the appellant "will agree to". 17Attached to the document was a report from Integrity Handyman and Maintenance dated 25 September 2014 in relation to the property. This document is not of the type listed in the Notice of Appeal as being the "declarations" which were to be filed by contractors. It appears to suggest that work required to the front door has been completed. 18There is nothing in the material relied upon by the appellant which properly identifies any reason why the decision of the Tribnal was not fair or equitable, let alone why it was otherwise wrong. 19On 7 October 2014 the respondent sent to the Tribunal and to the appellant's agent, a letter enclosing her Reply to Appeal. She noted that as at that date she had not received a "Notice of Appeal" (we assume she means submissions) and made other comments with respect to what she said had been delays by the appellant in complying with her obligations and directions made by the Tribunal. In her Reply to Appeal, she stated that she did not think the appellant had identified any error of law and otherwise stated why she resisted the appeal. She said she had taken time off work to attend the hearing and would have to do so again for the appeal. Importantly, in the section dealing with the stay of the original decision, she noted that : "I received email notification after the directions hearing that the amount owed had been credited to my ledger. As such, there is no money owed and as far as I am concerned there is nothing pending." The Hearing of the Appeal 20At the hearing of the appeal, a representative of the managing agent, from LJ Hooker Liverpool, sought leave to appear on behalf of the appellant. On citing the relevant managing agency agreement, leave to appear was granted. The managing agent had prepared the Notice of Appeal and had sent the "submissions" on behalf of the appellant on 29 September 2014. It could be assumed, therefore, that the managing agent was familiar with the matter. 21Unfortunately, it became apparent that the representative who appeared before us knew nothing about the matter as she had just been handed the file. She could not assist the Appeal Panel in answering any questions. She did not know why the Notice of Appeal was filed late (albeit one day). She could not answer questions as to whether or not the amount of $2,286.56 had been credited to the respondent's ledger as the respondent believed and as was to be confirmed in accordance with the directions made on 15 September 2014. She knew nothing about the matter, yet she had been put forward to appear on behalf of the appellant. She did not make an application for an adjournment so that someone with knowledge of the matter could appear. 22Whilst we do not wish to be personally critical the representative who appeared and who may have been placed in the invidious position of having to attend the appeal without notice, it is important for parties to appeals and their representatives to appreciate that if parties seek leave to have someone else, such as a managing agent, appear at the Appeal Panel pursuant to s 45 of the Civil and Administrative Tribunal Act 2013 (the Act), they should ensure that the representative has sufficient knowledge of the matter, including the decision below, the grounds of appeal, the evidence relied on and the submissions put forward, so as to be able to assist the Appeal Panel. Parties and their representatives must understand that by reason of s 36(3) of the Act, they are each under a duty to co-operate with the Tribunal to give effect to the guiding principle of the Tribunal which is to facilitate the just, quick and cheap resolution of the real issues on the proceedings. 23It may be in circumstances where a party seeks and is granted leave to have someone else represent them at the appeal, and that person does not have sufficient knowledge of the matter, that leave to appear for the party will be revoked with the result that, absent an adjournment of the appeal (which may be unlikely where an appellant appearing by another is simply not prepared to argue the matter), the appeal may be dismissed. If it is the respondent's representative who has insufficient knowledge and leave to appear is revoked, the appeal may proceed ex parte and orders made. Further, it may be that the failure of the party's representative to be properly prepared so as to be able to assist the Appeal Panel could constitute special circumstances warranting an order for costs against the party (see s 60 of the Act). In this case, no application for costs was made. Principles for Granting an Extension of Time 24As is noted above, the Notice of Appeal was filed one day late and it was acknowledged by the appellant that she required an extension of time pursuant to s 41 of the Act. The principles applicable in considering whether to grant an extension of time were set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]-[22]. The considerations that will be generally relevant to the exercise of the discretion to grant the extension are (omitting citations): 1.The discretion can only be exercised in favour of the appellant upon proof that strict compliance with the rules will work an injustice upon the appellant; 2. The discretion is to be exercised in 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, 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; 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 whether the appellant has a fairly arguable case; and d) the extent of any prejudice suffered by the respondent. The length of and reason for the delay 25As has been observed above, the delay in filing the Notice of Appeal was only one day. However, be that as it may, it was still out of time and an explanation for the delay is required. Parties should not expect that just because the delay is short, an extension will automatically be granted. Whilst a period of delay of one day, being very short, may ordinarily weigh significantly in favour of granting an extension (see Habib v NSW (NSW Police Force) [2014] NSWCATAP 70 at [76]) there must still be a proper explanation for that delay having regard to the fact that time limits are set to promote the orderly and efficient conduct of the proceedings of the Tribunal and to provide certainty to parties to the proceedings and to achieve finality in litigation: Habib v NSW, supra, at [74]. 26The appellant's representative could not give any explanation for the delay (indeed, it was apparent she did not even know that an extension of time was required until it was raised with her). It was necessary, therefore to consider the explanation provided in the material that was before the Appeal Panel. 27From the Notice of Appeal, the only explanation for the delay in filing the Notice of Appeal was that the appellant was waiting for "relevant information from contractors involved in the process". However, no further relevant information (whatever that may have been) was forthcoming. We have referred to a letter from Integrity Handyman & Maintenance dated 25 September 2014 which was sent to the Appeal Panel on 29 September 2014. This document does not deal, in so far as we can tell, with any issue except the front door of the premises and why there may have been a delay in fixing it. It does not deal with why there was a delay in filing the Notice of Appeal. In so far as it may be thought to be relevant, which is not apparent, there is no explanation as to why this document could not have been provided within the appeal period. There is no explanation as to why the other declarations from the contractors (which were foreshadowed as dealing with difficulty in gaining access) could not have been obtained either for the hearing or during the appeal period. In any event, no such declarations were provided. 28In our view, there is no adequate explanation for the delay in filing the Notice of Appeal. The Appellant's Prospects of Success 29We bear in mind that the appellant requires leave to appeal. There is no appeal on a question of law. The appellant asserts that the decision was not fair and equitable. In matters involving an appeal from a decision of the Consumer and Commercial Division, cl 12 of Schedule 4 of the Act provides that the Appeal Panel's discretion to grant leave to appeal is only enlivened if the Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice, relevantly, because the decision of the Tribunal was not fair and equitable. The principles to be applied in these circumstances are set out in Collins v Urban [2014] NSWCATAP 17 at [65]-[79]. We take them into consideration below. 30The appellant needs to establish that she may have suffered a substantial miscarriage of justice by reason of the decision not being fair and equitable such that there was a significant possibility or a chance which was fairly open, that a different and more favourable result would have been achieved. It is generally necessary for the appellant to explain what its case would have been and show it was fairly arguable. 31Even if the appellant establishes that she may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). She must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result. 32In our opinion, there is nothing in the material provided by the appellant that would support a finding that the hearing was not fair and equitable. She simply seeks to reargue the findings of the Tribunal. She does not complain about the manner in which the tribunal made its findings of fact or conducted the hearing. She has failed to identify in any sufficient way supported by reference to the evidence that was before the Tribunal, any errors of fact or law. 33Further, the matter does not involve any issue of importance. Neither is any injustice to the appellant clear from the materials that she relies on. She does not, and could not, suggest that the fact finding process of the Tribunal was unorthodox. 34For all of these reasons, we do not believe that the appellant has any real prospects of success in the appeal. Even if she had been able to demonstrate that she may have suffered a substantial miscarriage of justice (and we emphasise she has fallen a long way short of doing so) in applying the principles referred to above, we would not have granted her leave to appeal. Prejudice to Respondent 35There is a further matter to consider. The Tribunal ordered that the appellant pay to the respondent the sum of $2,286.56 immediately. As we have recited above, although there was an application for a stay, that application was not pursued as the appellant had indicated that she was going to credit that amount to the respondent's ledger with the managing agent. So much appears to have been said to the Appeal Panel on 15 September 2014 (hence direction 1) and to the respondent (by way of the email to her referred to in her Reply to Appeal which confirmed that the money had been credited to her account). 36At the hearing of the appeal, we asked the appellant's representative whether that money had been credited to the respondent's account. She was unable to assist us with submissions. She did, however, provide the rental ledger for the respondent's account with LJ Hooker. It showed that, in fact, no credit had been made to the respondent's ledger in the sum found to be payable consequent upon the orders of the Tribunal. 37The respondent is entitled to the benefits of the Tribunal's orders in her favour. It has been said that she has a "vested right" to the benefit of the orders made in her favour (see the discussion in Habib v NSW, supra, at [85]-[86]). The appellant did not pursue a stay and, indeed, eschewed such an application and stated positively to the respondent, and (at least) indirectly to the Appeal Panel on 15 September, that the money would be credited to the respondent. It was not. We regard this failure to otherwise abide with the Tribunal's orders and to pay the money found to be due to the respondent as prejudice to the respondent. 38Such conduct can be also taken to be relevant as to whether the rules as to the time by which an appeal must be lodged work an injustice against the appellant. In our view, the failure by the appellant to comply with the orders and directions of the Tribunal, as well as her conduct in stating to the respondent that the amount due had been credited to her account when in fact it had not, speaks against such an injustice. 39We have taken this into account in reaching our decision. Conclusion and Orders 40In all of the circumstances and for the reasons set out above, the appellant has not discharged her onus to establish that she is entitled to an extension of time. In any event, if the Appeal Panel was required to determine if leave to appeal ought to have been granted, we would not have granted leave to appeal. She has not demonstrated that she has any real prospects of success on the appeal. 41As was noted in Habib v NSW, supra at [130] citing Roskott v Commonwealth Bank of Australia [2014] NSWCA 341 at [8], when an extension of time is sought for an application or appeal but the application or appeal is without merit and would be refused or dismissed, the proper course is to refuse the application for an extension of time. 42The orders we make are: 1.The application for an extension of time to file the Notice of Appeal is refused. 2.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: 06 November 2014