Bridge Housing Limited v Ichsanna Widhyastuti [2015] NSWCATCD 54

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bridge Housing Limited v Ichsanna Widhyastuti [2015] NSWCATCD 54 Hearing dates: 27 March 2015 Decision date: 22 April 2015 Jurisdiction: Consumer and Commercial Division Before: S Westgarth, Deputy President D Patten, Principal Member Decision: Orders 1, 2, 3, 4 made on 30 December 2014 in proceedings SH 14/49929 are set aside Catchwords: Set Aside application, contempt Legislation Cited: Residential Tenancies Act 2010 NSW (the RTA) Civil and Administrative Tribunal Act 2013 (the Act) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATA822 Gallo v Dawson [1990] HCA30 Texts Cited: Clark v Macourt [2013] HCA 56 Robinson v Harman (1848) 1 Exch 850 Category: Principal judgment Parties: Bridge Housing Limited (applicant) Ichsanna Widhyastuti (respondent) Representation: Miss RA Pinkstone for the applicant Respondent in person File Number(s): SH 15/05034 Publication restriction: Nil

reasons for decision

Background 1. The applicant is the landlord named in a residential tenancy agreement dated 8 December 2010. The respondent is the tenant under that agreement. The Tribunal has jurisdiction to determine the dispute between the parties by reason of the provisions of the Residential Tenancies Act 2010 NSW (the RTA). 2. The applicant's application is brought under regulation 9 of the Civil and Administrative Tribunal Regulation 2013 (the Regulation). That regulation confers on the Tribunal a power to set aside or vary its decisions in circumstances where a decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. 3. In this matter, the Tribunal made orders on 30 December 2014, following a hearing on 12 December 2014. The hearing occurred in the absence of the applicant (who we shall refer to as the landlord in these reasons). Those proceedings concerned an application brought by the respondent (who we shall refer to as the tenant) and the orders made by the Senior Member on 30 December 2014 are as follows (noting that the reference in the orders to the respondent is a reference to the landlord and the reference to the applicant is a reference to the tenant): 1. Order, pursuant to s 187(1)(d) of Residential Tenancies Act, 2010, that the Respondent pay $15,000.00 to the Applicant. 2. Order, pursuant to s. 187(1)(e) of the Residential Tenancies Act, that the Respondent forthwith undertake all necessary rectification works at the premises the subject of the residential tenancy agreement dated 8 December 2010 so as to rectify the cause of water penetration from the bathroom into the second bedroom of the premises, and in association with such works do all things necessary to remediate any and all consequential rising damp and mould affectation arising therefrom. 3. Order the Respondent to pay the costs of the Applicant of all applications, being SH 14/30566, SH 14/48047 and SH 14/49929, on the indemnity basis. 4. Grant leave to the Applicant to advance a further application for such costs to be made on a gross sum basis, unless such costs can be agreed between the parties, or they be assessed. 5. Direct that the Respondent is to show cause within 7 days of this order being published why it should not be referred to the President for consideration for further referral for contempt under s. 73 of the Civil and Administrative Tribunal Act, 2013 (the "NCAT Act"), or for the imposition of a civil penalty pursuant to s. 77 of that Act. 6. Direct that in association with the Respondent showing cause, an affidavit of facts, matters and circumstances is to be sworn or affirmed by the Chairman of the Respondent, and filed with the Tribunal giving the basis why the Respondent contends it ought be excused from such further referral. 7. Direct that the Chairman of the Respondent appear before the Tribunal to be examined upon the affidavit in association with that process of showing cause, and the transcript of that examination be made available to the President in any such consideration of the question of further referral. 1. As is apparent from the orders set out above the tenant successfully obtained an order that the landlord pay her $15,000 and costs. In addition, the landlord was required to comply with orders intended to address the question of whether consideration should be given to determining that the landlord had committed a contempt of the Tribunal. 2. The effect of Regulation 9 (3) is to require the landlord's application to have been filed by 7 January 2015. The landlord's application to set aside the orders of 30 December 2014 was in fact filed with the Tribunal on 30 January 2015. Accordingly, it is necessary for the Tribunal to grant an extension of time under section 41 of the Civil and Administrative Tribunal Act 2013 NSW (the Act) if the application is to be heard. 3. The landlord has complied with order 5 of the orders made on 30 December in that the landlord's submissions include submissions with respect to the question of contempt raised in the reasons published on 30 December 2014. The landlord has complied with order 6 made on 30 December 2014 by filing an affidavit of the Chairman of the landlord and the landlord has complied with order 7 by indicating to the Tribunal that the Chairman was available to appear before the Tribunal at the hearing of this application on 27 March 2015. As neither the tenant nor the Tribunal wished to cross examine the Chairman, the Chairman was relieved of the obligation to actually appear at the hearing. 4. The tenant initially commenced proceedings (SH 14/30566) against the landlord on 11 June 2014 seeking compensation by reason of the fact that the residential premises the subject of the agreement between the parties were partially unusable due to water ingress and mould. The Tribunal ordered the parties to file and serve evidence and those proceedings were heard on 15 September 2014. The landlord did not file any evidence and did not appear at the hearing. The decision of the Tribunal was to the effect that the landlord should pay to the tenant compensation in the sum of $3000.00. There was an additional order that the rent should be reduced to $280.00 per fortnight until certain work the subject of the tenant's complaint was rectified. 5. The Chairman's affidavit does not provide an explanation as to why evidence was not submitted for the hearing on 15 September. The Chairman's affidavit addresses the question of why a representative of the landlord was not present at the hearing and states that the relevant officer of the landlord was on annual leave. The landlord had requested an adjournment of the hearing and that request had been refused. 6. The Tribunal then received an application (SH 14/48047) from the landlord to set aside the Tribunal's decision of 15 September 2014 and that application was successful. The proceedings which lead to the decision of 30 December 2014 were then initiated (SH 14/49929) and there was a directions hearing on 7 November 2014. The Tribunal ordered the parties to file and serve their evidence. The landlord was required to file its evidence by 8 December 2014, but no evidence was filed. The Chairman's affidavit acknowledges the landlord did not file any evidence. The hearing occurred on 12 December 2014 and the landlord failed to appear at the hearing. The Chairman's affidavit says that it appears as if the landlord did not file evidence because of an oversight by the relevant officer. The Chairman's affidavit also states that it appears that the relevant officer of the landlord was not aware of the hearing date and that there were inadequate mail receipting procedures in place in the office of the landlord at the relevant time. 7. The Chairman's affidavit goes on to record that the history of the matter has been unsatisfactory and that steps have been taken within the office of the landlord to improve their practice and procedures and to require the appropriate priority to be given to Tribunal orders. In addition the Chairman reported in the affidavit that one of the landlord's officers has been commissioned to provide recommendations for improvements and to report back to the board of the landlord.