Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mustaq v Mir Bros Enterprises Pty Ltd [2014] NSWCATAP 86 Hearing dates: On the papers Decision date: 18 November 2014 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Patten, Principal Member Decision: 1. Leave to file notice of appeal up to and including 30 April 2014. 2. Leave to appeal on the merits granted. 3. Appeal upheld and order made by the Tribunal below quashed. 4. Pursuant to s81 (i) (e) of the NSW Civil and Administrative Tribunal Act order that the case be reconsidered by the Tribunal below upon such evidence as it sees fit to allow. Catchwords: Hearing date-failure to notify Appellants - Appellants overseas Miscarriage of justice Legislation Cited: NSW Civil and Administrative Tribunal Act Category: Principal judgment Parties: Usman Mushtaq and Muhammad Arshad Shadab (Appellant) Bir Bros Enterprises Pty ltd ATF the Samuel Mir Trust File Number(s): AP 14/46356 (AP 14/0079) Decision under appeal Jurisdiction: 150003 Date of Decision: 2013-03-13 00:00:00 Before: G Kinsey File Number(s): RT 14/11070 reasons for decision 1In light of the material which appears hereafter we are of the opinion that this appeal should be determined on the paper and we order accordingly. 2This is an appeal against an order made by the Tribunal below on 13 March 2014 in these terms: (1)The tenant, Usman Mushtaq & Muhammad ArshadShadab also known as Muhammad Shadab Arshad, 10/2 Rosemont Street PUNCHBOWL NSW 2196 Australia, is to pay the landlord, MIR BROS ENTERPRISES PTY LTD ATF THE SAMUEL MIR TRUST, PO BOX 114 BANKSTOWN NSW 1885 Australia, the sum of $2,734.47 immediately. Reasons: * Rent from 16-Jan-2014 to 22-Jan-2014 $330.00 * WATER USAGE FROM 4/10.13 TO 22/01/14 $65.33 * COST OF REPAINTING $882.00 * PEST CONTROL $120.00 * CLEANING $150.00 * STEAM CLEANING $70.00 * REMOVAL OF RUBBISH $140.00 * REPLACEMENT OF BURNOUT RANGE HOOD $696.00 * MISSING FURNITURE BEING TABLE AND 4 CHAIRS, AND WARDROBE $408.00 * DAMAGE TO FURNITURE $977.40 * LESS $1,320.26 from bond. * The respondent's name Usman Mushtaq & Muhammad Shadab, is amended to Usman Mushtaq & Muhammad Arshad Shadab also known as Muhammad Shadab Arshad. 3The respondent and the appellants were respectively landlord and tenants of premises 10/2 Rosemont Street, North, Punchbowl under a tenancy agreement which was terminated by the appellants on or about 20January 2014. The respondent commenced the proceedings below on 19 February 2014. According to the file a Notice of Conciliation and Hearing was prepared in the Tribunal's registry addressed to the appellants at the subject premises 10/2 Rosemont Street, Punchbowl. As the respondent knew that was not then the address of either appellant. At the hearing on 13 March 2014 there was no appearance for the appellants and the Tribunal made the order reproduced above in their absence. 4In the notice of appeal filed out of time on 30 April 2014 it is claimed that the appellants received no notice of the proceedings or of the order made until about 1 April 2014. So far as Mr Mustaq is concerned he produced documentary evidence in the form of boarding passes to the effect that he travelled from Sydney to Dubai on 3 March 2014 and returned from Dubai to Sydney on 26 March 2014. 5In the circumstances there is strong evidence that the appellants received no notice of the proceedings until sometime after the hearing and were thus deprived of the opportunity to present their case. Shortly according to the Notice of Appeal their case is that the claim for damages made against them was grossly inflated and included claims for property which did not exist within the premises when let to them and for damage to an exhaust fan which was never operable. 6We are satisfied on the material before us that through no fault of their own the appellants were not notified of the hearing date and were thus deprived of the opportunity to meet the case against them. Moreover they seem to have prima facie an arguable defence to the claim. In the result there was a miscarriage of justice which requires correction. In saying this we mean no criticism of the learned member who conducted the trial at first instance as presumably he had no knowledge of the circumstances we have recited. Despite the rather flimsy excuse given by the appellants for filing their Notice of Appeal so long out of time we think that in the interest of justice we should give them leave to do so. 7We make these orders: (1)Leave to file notice of appeal up to and including 30 April 2014. (2)Leave to appeal on the merits granted. (3)Appeal upheld and order made by the Tribunal below quashed. (4)Pursuant to s81 (i) (e) of the NSW Civil and Administrative Tribunal Act order that the case be reconsidered by the Tribunal below upon such evidence as it sees fit to allow. 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: 18 November 2014