Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Day v Bari [2015] NSWCATAP 15 Hearing dates: Appeal determined on the papers Decision date: 12 February 2015 Jurisdiction: Appeal Panel Before: J Redfern, Principal Member R Titterton, Principal Member Decision: Extension of time in which to commence the appeal refused Appeal dismissed Catchwords: Appeal – Civil and Administrative Tribunal (NSW) Extension of time – principles ‒ no evidence to support explanation for delay or basis for fairly arguable case Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: Not applicable Category: Principal judgment Parties: Alan Day and Connie Day (Appellant) Abdul Bari (Respondent) Representation: Counsel: Not applicable Solicitors: Not applicable File Number(s): AP 14/47959 Publication restriction: Not applicable Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 22 July 2014 Before: K Ross, Member File Number(s): RT 14/14589 REASONS FOR DECISION Introduction 1. In this matter the appellants, Mr Alan Day and Mrs Connie Day, seek to appeal from a decision of the Consumer and Commercial Division of the Tribunal (the CCD) of 22 July 2014. 2. Mr and Mrs Day were the tenants of residential premises at New Lambton. On 22 July 2014 the CCD ordered them to pay the respondent, Mr Abdul Bari, $7,337.00, which was stated to comprise rent for the period 7 January 2014 to 29 January 2014 and compensation for damage to the premises. The amount was to be paid on or before 5 August 2014. Mr and Mrs Day did not attend the hearing and the proceedings were determined in their absence. 3. Mr and Mrs Day did not pay the amount ordered and on 4 September 2014 Mr Bari obtained a garnishee order for the debt from the Local Court of NSW. He has been unable to effect the garnishee order. 4. Mr and Mrs Day filed a notice of appeal on 23 September 2014. 5. This is a matter where Mr and Mrs Day require an extension of time in which to lodge their notice of appeal. For the reasons appearing below we consider that the application for an extension of time should be refused, and the appeal otherwise dismissed. Grounds of appeal and extension of time 1. The decision appealed from was made on 22 July 2014, and the appeal was filed on 23 September 2014. Unless the Appeal Panel grants an extension of time under s.41 of the Civil and Administrative Tribunal Act 2013 (the Act), appeals in respect of residential proceedings must be lodged within 14 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later): see rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014. 2. In their notice of appeal, Mr and Mrs Day state as follows: The reason no one was present on the 22/7 was that the day before the set trial date Angie (Angela Cruickshank) the representative for [the tenants] at the time emailed the Tribunal office to inform them that she could not make Court due to her being in hospital in Sydney at that time. A few days later a notice of order arrived to her surprise. She called the Tribunal to which they informed her that the email was received and they would send a new court date. She was informed to wait until the Tribunal made contact which was never made. 1. In response to the question in the notice of appeal about whether they need an extension of time to lodge the appeal, Mr and Mrs Day have ticked the "yes" box and stated as follows: Due to the events that unfolded which have been stated in 11A we have been waiting for the Tribunal to respond with a new hearing date. Unfortunately we did not hear from the Tribunal either to inform us a new hearing date had been denied or a new date had been set and the money had started to be taken from our account. 1. While Mr and Mrs Day have not stated when they were notified of the decision, they acknowledge that their representative was notified of the order "a few days later". It is clear from their notice of appeal that Mr and Mrs Day were notified of the order by their representative at about this time. We therefore infer from the information provided by Mr and Mrs Day in their notice of appeal that they became aware of the decision by at least 29 July 2014. Accordingly, and this is acknowledged by Mr and Mrs Day in their notice of appeal, their appeal has been lodged out of time. On the information available, it appears that Mr and Mrs Day should have appealed on or before 12 August 2014. As such, the notice of appeal was filed more than five weeks out of time. 2. Mr Bari objects to the appeal proceeding, the notice of appeal having being lodged out of time. He submits that Mr and Mrs Day are "using delaying tactics" to "prolong the process and to avoid paying the money". 3. On 13 November 2014, the Tribunal stayed the orders made on 22 July 2014 until 2 December 2014 and listed the matter for call over on this day. The stay was subsequently refused and directions were made for the parties to file and serve evidence and submissions: Mr and Mrs Day by 16 December 2014 and Mr Bari by 23 December 2014. 4. Mr and Mrs Day did not file and serve any evidence or submissions by the due date or at all. 5. Mr Bari filed submissions with the Tribunal noting, amongst other things, that Mr and Mrs Day had failed to comply with the order made on 22 July 2014 and an earlier order made on 8 April 2014, they had failed to comply with the Local Court garnishee orders and in the previous hearings had requested extensions of time to prepare evidence but failed to produce any evidence at the hearing. Mr Bari repeated his objection to the appeal and to the extension of time sought by Mr and Mrs Day. Consideration 1. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel considered the principles which govern the granting of an extension of time. The Appeal Panel stated at [22] that generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider the length of the delay, the reason for the delay, the appellant's prospects of success (that is usually whether the applicant has a fairly arguable case); and the extent of any prejudice suffered by the respondent (to the appeal). 2. Mr and Mrs Day's grounds of appeal appearing in their notice of appeal are set out above. We note that they have not explained the reason for the delay in filing the notice of appeal; they have not referred to the prejudice that may be suffered by Mr Bari if the appeal now proceeds; nor have they explained why they have an arguable case if leave is granted. The failure to address any of these matters weighs heavily against an extension of time being granted. 3. We note, in particular, that Mr and Mrs Day have not provided a copy of the email they contend was sent to the CCD by their representative seeking an adjournment of the hearing of 22 July 2014 nor evidence about any correspondence with the CCD or their representative about a "new court date" as alleged in the notice of appeal. Furthermore, and perhaps most relevantly, they have not provided any evidence or submissions about the basis for why they say the CCD below erred in making the orders or why leave should be given to appeal the decision. Mr and Mrs Day did not attend the hearing. That is not in dispute. However, this of itself is not sufficient. As noted, Mr and Mrs Day must not only explain their delay but must also establish that they have a fairly arguable case to prosecute in any appeal. There is no evidence or submissions about the nature of their case and why they say the rental arrears is not owing or why the claim for compensation made by Mr Bari was not properly made. Mr and Mrs Day were given the opportunity to provide this information by 16 December 2014 and they did not do so. 4. In circumstances where no evidence has been provided of any of these matters, we are not persuaded that there is any merit or substance in the matters raised by Mr and Mrs Day. Orders 1. For these reasons, the Appeal Panel makes the following orders: 1. The application for an extension of time to lodge the 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 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: 12 February 2015