Hawkins v Papandrea [2015] NSWCATAP 44

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hawkins v Papandrea [2015] NSWCATAP 44 Hearing dates: 16 January 2015 Date of orders: 19 March 2015 Decision date: 19 March 2015 Jurisdiction: Appeal Panel Before: M Chesterman, Principal Member R Titterton, Principal Member Decision: Extension of time in which to commence the appeal refused Appeal dismissed Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal (NSW) – appeal – whether time to commence appeal should be extended Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2013 (NSW) Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: David Hawkins (Appellant) Sam and Miranda Papandrea (Respondent) Representation: Counsel: Mr Conomos (Appellant)

Solicitors: Mr Shehadie (Respondent) File Number(s): AP 14/46512 Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 21 July 2014 Before: B Howe File Number(s): RT 14/35591

REASONS for decision

Introduction 1. In this matter the appellant seeks to appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 31 July 2014. 2. The appellant was the tenant and the respondents the landlord of residential premises in Elanora Heights. In these reasons we shall refer to the parties as the tenant and the landlord respectively. The tenancy had commenced on 2 December 2013. On 31 July 2014 the Tribunal terminated the residential tenancy agreement immediately and ordered the tenant to give the landlord immediate possession, but suspended the order for possession until 15 August 2014, a date chosen by the tenant. Thenceforth the tenant was to pay a daily occupation fee to the landlord until vacant possession was given. In addition the tenant was ordered to pay rental arrears of $7,228.59 on or before 15 August 2014. 3. The orders for termination and possession were subsequently stayed by order of the Tribunal, until further order. The stay was conditional on the tenant paying any rental arrears outstanding as at 29 August 2014 on or before that date, and then continuing to pay the occupation fee specified in the orders of 31 July 2014 on each second Friday after 29 August 2014. Neither the arrears or ongoing rent were paid and the landlord eventually obtained possession of the premises. 4. This is a matter in which the tenant has filed his appeal out of time, and requires leave from the Appeal Panel to extend the time for the filing of the appeal. The decision of the Tribunal was made on 31 July 2014, and the notice of appeal was filed on 22 August 2014. Unless the Appeal Panel grants an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013, appeals in respect of residential proceedings must be lodged within 14 days from the day on which the tenant was notified of the decision to be appealed or given reasons for the decision (whichever is the later): see rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014. 5. The notice of appeal should have been lodged on or before 14 August 2014. The respondent objects to the Appeal Panel extending the time for the lodging of the appeal. Were we persuaded of the merits of the appeal we would extend the time for filing the notice of appeal. However, for the reasons that follow, we have concluded that there is no substance in the grounds of appeal raised by the tenant. In the circumstances, we decline to extend the time in which to file the notice of appeal. Consequently the appeal is dismissed.