Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hannaford v Gao [2015] NSWCATAP 134 Hearing dates: 12 March 2015 Date of orders: 08 July 2015 Decision date: 08 July 2015 Jurisdiction: Appeal Panel Before: N Hennessy, Deputy President M Harrowell, Principal Member Decision: 1. Leave is refused for the appellant to appeal out of time. 2. The appeal is dismissed Catchwords: Internal appeal on question of law – residential tenancies – termination of tenancy for unpaid rent – no appearance at hearing below – appeal lodged out of time. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Interpretation Act 1987 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Gallo v Dawson [1990] HCA 30, 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 Nanschild v Pratt [2011] NSWCA 85 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 Touma v Saparas [2000] NSWCA 11 Category: Principal judgment Parties: James Hannaford (Appellant) Sophia Gao (Respondent) Representation: Solicitors: J Scarborough (agent for Respondent) Hannaford Cleaver Fox Lawyers (Appellant) File Number(s): AP 15/01442 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 3 December 2014 Before: A. McMurran File Number(s): RT 14/55273 reasons for decision Introduction 1. A tenant, Mr Hannaford, has appealed from a decision of the Consumer and Commercial Division of the Tribunal terminating his tenancy: Residential Tenancies Act 2010 (NSW. The Tribunal found that the tenant had failed to pay rent in accordance with a residential tenancy agreement with the landlord, Ms Gao, and that consequently he had breached that agreement. The Tribunal ordered that possession of the premises be given to the landlord but suspended that order for one week. 2. The tenant appealed from the Tribunal's orders thirteen days out of time. We have decided not to accept the appeal because, despite the relatively short length of time, the tenant has not provided a satisfactory reason for the delay, the landlord would be prejudiced if the appeal were accepted and there is virtually no prospect of the tenant succeeding on appeal. Background 1. The parties signed a residential tenancy agreement on 15 August 2014. The agreement was for a fixed period commencing 15 August 2014 and ending on 13 December 2015. The rent payable was $380.00 per week. 2. The landlord applied to terminate the residential tenancy for non-payment of rent. The Tribunal heard the application on 3 December 2014 and made orders in the absence of the tenant. We note that in his written submissions, the tenant incorrectly states that the hearing was on 1 December 2014. The Tribunal terminated the residential tenancy agreement and ordered the tenant to pay the landlord $2,255.00 for unpaid rent from 24 October 2014 to 3 December 2014. 3. The Tribunal also made an order for possession. That order was suspended until 10 December 2014, a week after the hearing. On that day the tenant had not vacated the premises and the landlord applied for a warrant for possession. The warrant for possession was executed by the Sheriff on 18 December 2014. Appeal Panel hearing 1. The Appeal Panel initially listed this matter for hearing on 12 March 2015. The tenant was unable to appear because he was in hospital. The Appeal Panel adjourned the hearing of the appeal, made directions in connection with the filing and service of further submissions and evidence, and indicated that it proposed to determine the appeal without the need for a further hearing. Neither party objected to the Appeal Panel dealing with the matter on the papers. Consideration of application to appeal out of time 1. Appeals against decisions made in residential proceedings must be filed within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision, whichever is the later: Civil and Administrative Tribunal Rules (NSW) 2014, cl 25(4)(c). The Tribunal made the order terminating Mr Hannaford's tenancy in his absence on 3 December 2014. The Tribunal's file shows that a letter of that date was sent to the tenant's address. Unless the tenant provides evidence to the contrary, service is taken to have occurred on 9 December 2014 which was the fourth working day after the letter was posted: Interpretation Act 1987 (NSW), s 76(1)(b). On that basis, an appeal should have been filed by 23 December 2014. It was not filed until 5 January 2015. 2. The only evidence Mr Hannaford provided which suggests that he may not have received the letter is that he did not find out about the orders until he received a text message from the real estate agent on 18 December 2014. However, without a clear statement from Mr Hannaford as to when he received the letter, we find, in accordance with the deeming rule, that he received notice of the orders on 9 December 2014. On that basis the appeal was filed thirteen days late. 3. Even if the tenant did not receive notice until 18 December 2014, the appeal should have been filed by 2 January 2015. It was not filed until 5 January 2015, three days late.. Principles for extending time 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 to appeal. The Appeal Panel stated at [22]: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the 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 - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] 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 - Jackamarra at [7]; (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 usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. Length of the delay and reasons for the delay 1. Thirteen days is a relatively short period of time, but it must be viewed in context. Appeals of this kind must be lodged within 14 days. In this case, a warrant for possession of the property was executed on 18 December 2015. The order for possession made on 3 December 2014 had been suspended for one week until 10 December 2014. 2. In the Notice of Appeal, Mr Hannaford ticked the box indicating that he did not need an extension of time to lodge the appeal. On 12 March 2015 the Appeal Panel made directions including that Mr Hannaford provide evidence as to the reason for the delay in lodging the appeal. Mr Hannaford wrote in a statutory declaration dated 9 April 2015 that when the real estate agent contacted him by text message on 18 December 2014 to let him know that the Sherriff had entered into possession, he went to Lithgow Local Court to file the appeal. He does not say when that happened. His evidence is that Lithgow Court "could not process the filing fee which I subsequently paid at an NCAT registry in Newcastle." 3. While Mr Hannaford has set out what he did in relation to the filing of an appeal, he does not explain when he did it or why he did not file the appeal in time. This lack of explanation is even more significant because a warrant for possession was executed on 18 December 2014 and more than 14 days passed before an appeal was filed. Prospects of success on appeal 1. As the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act, and a warrant for possession was executed on 18 December 2014, the tenant is only entitled to appeal on a question of law: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), Sch 4, Cl 12(2)(b). 2. The grounds of appeal are: 1. that the tenant was denied natural justice and procedural fairness; 2. that the Tribunal did not have before it all relevant facts and circumstances; 3. that the Tribunal was misled by the real-estate agent; and 4. that the real-estate agent made no attempt to contact the tenant to enquire why he could not attend the hearing despite the tenant having left text messages for the landlord's agent. 1. There is no dispute that Mr Hannaford received notice of the hearing but did not attend. 2. The tenant's statutory declaration records that he was injured in a car accident on Saturday, 29 November 2014 and was unable to attend the hearing or provide any evidence. 3. While the tenant says he was unconscious following the accident, the statutory declaration does not suggest he was in hospital on the day of the hearing on 1 December 2014. However, the tenant says he was "in no position to attend due to (his) unstable condition and injuries" and that he had "been advised by doctors at Lithgow Hospital (following x-rays and head scans) not to drive, fly, work or travel any distances due to internal swelling to the right side of (his) head". 4. Mr Hannaford says that early on the morning of 1 December 2014, he telephoned the landlord's real estate agent and left a message on her mobile phone that he had been in an accident and was unable to attend the hearing. He also says he sent a text message to the same effect. Mr Hannaford says he also asked a friend to contact the Tribunal. He says the friend told him that she had spoken to a person from NCAT, advised that he was unable to attend, and requested that the matter be adjourned. There is no statutory declaration from the friend and no record on the Tribunal's file of any contact having been made. 5. The Tribunal is required to comply with the rules of procedural fairness which are sometimes called the rules of natural justice: NCAT Act, s 38(2). Those rules require that a person be given a fair and unbiased hearing before decisions are taken which affect their interests. The NCAT Act also requires the Tribunal to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: NCAT Act, s 38(5)(c). The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case: Touma v Saparas [2000] NSWCA 11 at [27]. 6. We find that the tenant in this case did not apply for an adjournment. Despite his evidence that he asked a friend to telephone the Tribunal on 1 December 2014 and let them know that he would not be able to attend, there was no evidence filed by that friend. Furthermore, there is no record on the Tribunal's file of such an application having been made. 7. There is no evidence suggesting that the tenant was unable to apply for an adjournment. If, as he says, he telephoned the real estate agent two days before the hearing, he could have telephoned the Tribunal as well. If his friend did phone the Tribunal on 1 December 2014 the tenant should have telephoned the Tribunal again the following day if she had not heard from the Registry. 8. It is irrelevant if, as the tenant asserts, the real-estate agent made no attempt to contact him to ask why he could not attend the hearing. It is up to the tenant to attend the Tribunal or to apply for an adjournment if he wished to do so. 9. In circumstances where the tenant did not apply for an adjournment although he was able to do so, the appeal has no prospects of success on the ground of a breach of procedural fairness. 10. None of the other grounds of appeal or submissions made by the tenant has merit. We deal with each of them briefly below. 11. The tenant did not say why the Tribunal would have made a different decision if it had before it all relevant facts and circumstances, nor did the tenant say how the Tribunal was misled by the real-estate agent. 12. In relation to the issues of rent arrears, the tenant submitted that: "It is not disputed that the rent was in arrears at the time of the accident. The rent was paid by direct funds deposit from my bank account to the Agency. However, unbeknownst to me a large sum had been debited to my account by the Child Support Agency in early November/late October. I was therefore unaware that the particular Westpac account was also in arrears. And so direct debits were being deducted and then denied." 1. The tenant does not assert that the rent was subsequently paid. In reply, the landlord provided written submissions from its agent dated 1 April 2015. In those submissions the landlord provides evidence that rent of $770.00 had only been paid on four occasions since the tenancy started in August 2014. On that basis, the rent was paid until 24 October 2014. The landlord says that the tenant has made no attempt since that time to pay the arrears. 2. The notice of termination was delivered on 30 October 2014 when the tenant was 22 days behind in rent, the notice expiring on 13 November 2014. 3. The landlord also says that the tenant failed to pay $3,080.00 by 26 February 2015 as required as a condition of the stay orders previously made by the Appeal Panel. 4. The tenant submitted that he had received a notice for disposal of goods which had remained on the property after the landlord had executed the warrant for possession. Because the issue of notice of disposal of the tenant's goods following termination of the tenancy was not the subject of the original application to the Tribunal, it cannot be the basis for a ground of appeal. 5. In our view Mr Hannaford does not have a fairly arguable case. Prejudice to the landlord 1. The property has been re-let. There would be considerable financial prejudice to the landlord if time were extended for the tenant to lodge an appeal. Orders 1. The Appeal Panel makes the following orders: 1. Leave is refused for the appellant to appeal out of time. 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: 08 July 2015