Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ashrafinia v Augerinos [2015] NSWCATAP 200 Hearing dates: 25 August 2015 Date of orders: 21 September 2015 Decision date: 21 September 2015 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member J McAteer, Senior Member Decision: (1) the time for the appellant to file the notice of appeal is extended until 29 April 2015. (2) the appellant is granted leave to appeal the decision of the Tribunal made 31 March 2015. (3) the appeal is allowed in part. (4) order 9 made by the Tribunal on 31 March 2015 is varied so as to provide that the sum for unpaid rent as at 31 March 2015 is $6601.28. (5) the appeal is otherwise dismissed with no order as to costs. Catchwords: Leave to appeal out of time. No notice of hearing. Leave to appeal – denial of procedural fairness – miscarriage of justice. Legislation Cited: Civil and Administrative Tribunal Rules 2014 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulations 2013 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Collins v Urban [2014] NSWCATAP 17 AHB v NSW Trustee and Guardian [2014] NSWCA 40 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Texts Cited: Nil Category: Principal judgment Parties: Azadeh Ashrafinia (appellant) Kostas Augerinos (respondent) Representation: Appellant: In person Respondent: Ms Colquhoun (Agent) File Number(s): AP 15/31003 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 31 March 2015 Before: C Bradford, General Member File Number(s): RT 15/11974 REASONS FOR DECISION 1. This an appeal from an order made by the Tribunal on 31 March 2015 terminating a residential tenancy agreement between the appellant (tenant) and the respondent (landlord) in respect of a property in Mary Street Longueville. The orders were made in application RT 15/11977. 2. The Tribunal made an order for termination and an order for possession. The order for possession was suspended until 11 April 2015 and the appellant was ordered to pay the respondent a daily occupation fee of $142.14 until vacant possession was given to the landlord. 3. The termination order was on the ground that the appellant had failed to pay the rent in accordance with a residential tenancy agreement. The Tribunal determined that an amount of $8647.02 was unpaid rent at the date of the tenancy agreement was terminated, namely 31 March 2015. 4. The appellant did not appear at the hearing on 31 March 2015, the application having previously been adjourned from an earlier hearing date upon request by the appellant (due to prior work engagements). 5. The appellant received notice of the decision of the Tribunal on 31 March 2015 and filed a notice of appeal on 29 April 2015. 6. On 4 June 2015 the Appeal Panel made directions for the filing and service of an outline of written arguments together with material to be relied upon by the parties and the appeal was listed for hearing on 25 August 2015. 7. At the commencement of the hearing the Appeal Panel made enquiries about whether or not the dispute was able to be settled and in relation to the parties agreeing what, if any, rent was payable and/or remained unpaid on 31 March 2015 when the termination order was made. 8. As a consequence of these enquiries and after a brief adjournment the parties agreed the following facts: 1. as at 31 March 2015 the appellant was in arrears of rent in the sum of $6601.28. 2. the appellant had paid an amount of $411.26 towards water rates however there was a dispute about whether or not the water rates were in fact payable as the appellant contended there was a leaking tap which had not been repaired by the landlord. The amount paid is not included in calculating the unpaid rent of $6601.28. 3. the appellant had vacated the premises in April, although there was a dispute whether a vacant possession had been provided on 3 April 2015 or 7 April 2015. 1. The Appeal Panel was also informed that there were other proceedings, presently unresolved before the Tribunal, concerning inter alia a claim by the respondent (landlord) that the bond be paid to the respondent due to damage caused by the appellant. 2. Following enquiries to the parties as to whether or not all issues on appeal could be resolved by consent, the Appeal Panel proceeded to hear the appeal and the parties made further oral submissions on various issues. Notice of appeal and submissions 1. The appellant sought orders on appeal to set aside the original orders of the Tribunal and for the application to be dismissed. 2. One of the grounds raised was that the appellant had been denied procedural fairness. This ground is set out in item 12B(i) which provides: "APPELLANT DENIED PROCEDURAL FAIRNESS IN THAT SHE WAS NOT SERVED WITH NOTIFICATION OF HEARING. ONLY RECEIVED ORAL NOTIFICATION." 1. The appeal was required to be lodged within fourteen days from the decision as provided in rule 28 of the Civil and Administrative Tribunal Rules 2014. The appellant sought an extension of time in which to appeal. The ground stated in item 13 of the notice of appeal was that: "APPELLANT HAS NOT HAD THE OPPORTUNITY OF SEEKING PLENARY LEGAL ADVICE." 1. In relation to why the appellant did not attend the hearing, the notice of appeal indicates this was "due to medical issue" and "in addition, she had not received proper notification of hearing." 2. Consequently, the appellant contends she was not provided an opportunity to present her evidence which consisted of: 1. a condition report of the property; 2. payment of rent; and 3. evidence of vacation of the premises 1. The appellant filed written submissions and made oral submissions at the hearing. The submissions can be summarised as follows: 2. The appellant says she did not receive any written notice of hearing from the Tribunal for 31 March 2015. However, she was aware of the hearing date on 31 March 2015 because: 1. she was advised by the respondent's agent Ms Colquhoun by email dated 25 March 2015 (appellant's bundle page 16); and 2. she had called the Tribunal "to check on its progress" on 30 March 2015 and had been advised that there was a hearing scheduled the following day, 31 March 2015 (appellant's submissions paragraph 8) 1. The appellant says she was unable to attend the hearing on 31 March 2015 because she injured her back and sent the Tribunal an email to this affect. She says she saw an acupuncturist on 31 March 2015. The appellant also relies on a medical certificate from Dr Spielman dated 6 May 2015 (appellant's bundle page 19) which states that the appellant "had a medical condition and was in excruciating pain and was unable to attend a Court hearing on 31 March 2015 inclusive." 2. The Appeal Panel notes that the medical certificate does not indicate when the doctor saw the appellant however it is clear from her submissions at paragraph 9 that she "could not see a doctor in time for a Medical Certificate" and that she "made an appointment to see (her) GP while making arrangements to vacate the premises." 3. No suggestion is made by the appellant that she sought to telephone the Tribunal on the morning of the hearing. 4. In relation to the notice of hearing that was sent by the Tribunal, the appellant says that this notice was in fact received on 6 April 2015 "in redirected mail at (her) new address": appellant submissions paragraph 12. 5. In relation to her request for an extension of time, she says that the appeal was not lodged on time because: 1. she applied to set aside or vary the Tribunal decision by application dated 7 April 2015: 2. she made a second application to set aside or vary the Tribunal decision on 21 April 2015; and 3. that following dismissal of the second application to set aside, notice of which she received on 28 April 2015, she lodged the notice of appeal. 1. In relation to her arguments about why the appeal should be upheld, she relied on various clauses of the residential tenancy agreement which she asserted has been breached by the landlord. These clauses were: 1. clause 4.2 – landlord not to require the tenant to pay more than two weeks rent in advance; 2. clause 4.7 – landlord to keep a record of rent paid under the agreement and to provide a written statement showing the rent record within seven days of request; 3. clause 11.1 - landlord not to require payment of water usage charges unless tenant given a copy of part of the water supplies authorities bill setting out the charges; 4. clause 11.2 – landlord not to require payment of water usage charges unless tenant is given 21 days to pay; 5. clause 11.4.1 – landlord not to require tenant to pay water usage charges unless all internal cold water taps and single mixer taps or kitchen sinks or bathrooms have specified water efficiencies devises fitted; 6. clause 11.4.3 – landlord not to require payment of water usage charges unless there are no leaking taps at the commencement of the agreement or when the water efficiencies measures are installed, whichever is the later; 7. section 33 of the Residential Tenancies Act 2010 (RT Act) - landlord must not require a tenant to pay more than two weeks rent in advance; 8. section 37 of RT Act – landlord to keep record of rent received and provide statements within seven days of written request; 9. section 39 of RT Act which relates to the obligations concerning levying water charges and time to pay. 1. The appellant submitted the landlord "deducted rent more than two weeks in advance", failed to keep a proper ledger and failed to account for the first five payments made to the landlord's agent. 2. The appellant set out in paragraph 2 of her submissions the payments she had in fact made, which payments were taken account of by the parties in agreeing the amount of rent which in fact remained unpaid at 31 March 2015. 3. In relation to the breaches relating to claims for water usage charges, the appellant contends she was not provided with relevant accounts and was not given time to pay. She also asserted that relevant water efficiency measures had not been installed and that the landlord had charged her when there were leaking taps in the premises, a matter noted at the commencement of the residential tenancy agreement. In relation to the leaking taps the appellant relied on the inspection report found at pages 64-75 of her bundle. 4. The appellant then made submissions concerning the date she said she would be vacating the premises and subsequently sought to book an "outgoing inspection" on 4 April 2015 which she said could not be arranged until 7 April 2015 because of the Easter break. 5. The appellant also submitted that there was new evidence, namely that further applications had been made and that the present proceedings should be dismissed because they were an abuse of process. In this regard the appellant relied on an email from the respondent's agent which identified the continuing proceedings, applications RT 15/29566 and the appellant's "claim to the Tribunal for compensation" in which the agent said the "older application of 15/11974 is no longer relevant." 6. Consequently, the appellant says the orders should be set aside in application RT 15/11974, which is the subject of this appeal, and that this application should be dismissed. 7. The appellant also sets out various "grievances" in her submissions. It is not necessary to record these matters. 8. Finally, the appellant made submissions to the effect that she was entitled to an order for costs in her favour being the fees payable in respect of the two set aside applications, the fee for the appeal - $398.00 and her "costs for obtaining legal advice and preparation" which she said "exceed $5000". The total amount she claimed was $5590.00. 9. In relation to the claim for costs of obtaining legal advice, the Appeal Panel notes no supporting documentation was provided nor was any leave granted to either of the parties to be legally represented. 10. In relation to what special circumstances existed to justify the Appeal Panel making an order for costs, the appellant referred to the submission made above and the fact that her appeal was necessary, it having been shown that the order for unpaid rent was excessive, the amount of unpaid rent being only $6601.28. 11. The respondent filed written submissions and made oral submissions in reply which can be summarised as follows. 12. The agent had received notice of the hearing on 20 March 2015 and it was the appellant's responsibility to follow up when the matter had been adjourned if she had not received notice. Further the notice of hearing would have been posted to the residence of the tenant. 13. The tenant's medical evidence is not sufficient to explain why she did not attend. In this regard the acupuncture receipt does not specify any injuries and lacks details and, in the case of the doctors certificate it is dated 6 May 2015, "nearly two months after the adjourned hearing of the 31 March 2015." 14. In so far as the mail may have been delayed notifying the appellant of the hearing, the respondent says the agent was not notified of any change of address nor was the Tribunal notified and that the appellant was still occupying the subject property which was her last known address. 15. In relation to the appellant's assertion that the respondent acted in contravention of the RT Act and/or in breach of the residential tenancy agreement, the respondent made the following submissions: 1. the tenant agreed, as indicated in the tenancy agreement, that she would like to pay rent monthly, the initial monies paid one month in advance. However, the tenant was given the option to pay weekly, fortnightly or monthly; 2. due to a "system crash" the ledger was not able to state payments made by the appellant between 23 January 2014 and 23 May 2014. In this regard the respondent relied on various statements. 3. in relation to relevant water bills, the respondent asserts these were provided and that various checks had been completed concerning water efficiency measures. In this regard the respondent relied on an invoice for an inspection of taps and flow testing conducted sometime prior to 28 February 2012. 1. In relation to the appellant ultimately vacating the premises, the respondent contends that the keys were not returned until 7 April 2015 and that "rent is payable up to and including at least the day the keys are returned". 2. In relation to the tenant's submission that the proceedings were an abuse of process by reason of the subsequent proceedings commenced by the respondent, the respondent said that the other proceedings were in connection with payment of the rental bond and "to ensure the outstanding rent was paid". In this regard in proceedings RT 15/29566 filed on 27 April 2015 the respondent apparently seeks "an order for the payment of an amount of money $6597.80." 3. The Appeal Panel notes that this claim may be for unpaid rent or other claims for damages however these subsequent proceedings have not had any decision made by the Tribunal and are not the subject matter of the present appeal. 4. In relation to the issue of costs, the respondent said that each party should pay their own costs and that the only reason the proceedings before the Tribunal and Appeal Panel were necessary was in consequence of the appellant's failure to pay the rent on time. 5. However, the respondent was not able to explain why the original amount of the order for payment of rent was incorrect. Consideration 1. The appellant requires leave to appeal because the notice of appeal was filed more than fourteen days after 31 March 2015 being the date on which she received notice of the decision: see rule 25(4)(b) of the Rules. 2. If leave if granted the appellant has a right of appeal on a question of law and otherwise requires leave of the Tribunal: see s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). Where leave is required, it may only be granted if the appellant has suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with See cl 12 of Sch 4 of the NCAT Act. 1. The principles applicable to whether leave to appeal out of time should be granted were dealt with by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. It is not necessary to set out the applicable principles. 2. Substantially, the appellant contends that she had tried to exercise rights to set aside the decision prior to lodging the appeal and when these were dismissed she subsequently filed the notice of appeal on 29 April 2015. 3. The appeal was lodged fifteen days out of time. This is a relatively lengthy delay having regard to the short time afforded by the legislation for appealing a decision made in residential proceedings. This is a factor which weighs against the grant of leave to appeal out of time. 4. The appellant says that the delay should be excused because she sought to exercise a right to set aside or vary the decision made on 23 March 2015. The time for making such an application is seven days after the decision was made: see reg 9(3) of the Civil and Administrative Tribunal Regulations 2013 (Regulation). The Regulation also provides that a second application to set aside may not be made without leave of the Tribunal: see cl 9(6) of the Regulation. 5. The first set aside application was made on 7 April 2015 and was dismissed on 15 April 2015 however a notice of appeal was not lodged at this time. Rather a second application to set aside was made. Notwithstanding any "advice" received from NCAT, it is clear that the second application was not in fact lodged until 21 April 2015 and, in any event, the lodgement of the first set aside application on 7 April 2015 did not prevent the appellant from lodging a notice of appeal thereafter within the time limit prescribed by the rules. 6. These are matters which count against the grant of leave to file the notice of appeal out of time. 7. Notwithstanding the above, the Appeal Panel notes that the parties agreed at the hearing of the appeal that the money order made in respect of unpaid rent of $8647.02 as of 31 March 2015 was incorrect and overstated and that the amount of rent outstanding at this date was in fact $6601.28. That is the amount of rent the appellant has been ordered to pay the responded on 31 March 2015 is more than $2000 in excess of the amount of rent that was actually due at that time. 8. In the Appeal Panel's opinion, this is a significant error in the original decision which, in the circumstances, justifies extending the time for the appellant to file a notice of appeal up until 29 April 2015. Accordingly, the Appeal Panel extends the time for lodgement of the notice of appeal. 9. The next question to be determined is whether or not the appellant was denied procedural fairness because she did not have notice of the hearing on 31 March 2015. 10. The evidence before the Appeal Panel from the appellant is that she did not in fact receive written notice of the hearing from the Tribunal prior to 31 March 2015. This evidence is found at item 12(B)(i) of her notice of appeal which she has signed and dated 28 April 2015. However, that same item records that she "received oral notification" of the hearing. In this regard her submissions indicate that she was advised by the Tribunal over the telephone on 30 March 2015 that the matter had been scheduled for hearing on the following day on 31 March 2015: see paragraph 8 of her submissions. It is also apparent that on 25 March 2015 she had received an email from the respondent's agent advising her that "Tribunal is next week the 31 March as I am sure you are already aware of. We are going there for vacant possession for non-payment of rent." See appellant's bundle page 16. 11. In these circumstances, the Appeal Panel is satisfied that the appellant in fact had notice of the hearing on 31 March 2015. 12. In relation to the appellant's assertion that she was unable to attend on that day, the evidence tendered in the form of a receipt for acupuncture treatment and a medical certificate from Dr Spielman dated 6 May 2015 (more than six weeks after the date of the hearing) is in the Appeal Panel's opinion insufficient evidence to satisfy the Tribunal that she had a medical condition which reasonably prevented her from attending the hearing on 31 March 2015: (AHB v NSW Trustee and Guardian [2014] NSWCA 40 at 4]). 13. Further, it is clear that on the afternoon of 31 March 2015 the appellant was "in (her) car with (her) two and a half year old son" when she received a copy of the Tribunal's orders: see paragraph 10 of appellant's submissions. It is also clear that the appellant had a mobile telephone, the number of which she included in an email sent to the Tribunal on the morning of the hearing. 14. The fact that appellant could drive her motor vehicle suggests that she was capable of travelling and therefore the Appeal Panel is not satisfied that she could not have physically attended the hearing on 31 March 2015. Further, and in any event, she could have telephoned the Tribunal and requested that she attend via telephone at the hearing. This was not done. 15. In these circumstances the fact that the appellant may not have received the Tribunal's written notice of hearing prior to 31 March 2015 does not constitute circumstances that would amount to a denial of procedural fairness because the appellant in fact had notice of the hearing and the Appeal Panel is not satisfied on the evidence provided that she could not, in any event, have made arrangements to attend the hearing either in person or by telephone. 16. Consequently, no question of law is raised by the appeal and any entitlement to appeal requires leave of the Appeal Panel. 17. The principles applicable to the grant of leave were considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. This case deals with the question of when a person suffers a substantial miscarriage of justice and the principles applicable to the grant of leave. 18. In the present case, having regard to the fact the parties agree the unpaid rent as at 31 March 2015 was $6601.28 it is clear to the Appeal Panel that more than one month's rent remained unpaid at this time and that the grounds for making a termination order existed. Further, because no finding was made under s 89(5) of the RT Act to the effect that the tenant had frequently failed to pay rent, at any time after the termination order was made the tenant was at liberty to pay all of the unpaid rent whereupon the termination order would have ceased to have effect: see s 89(3) of the RT Act. 19. This fact would lead to the conclusion that there was no substantial miscarriage of justice because the grounds entitling the landlord to terminate to tenancy for non-payment of rent were made out. 20. However, the agreement between the parties on appeal that the rent outstanding was actually $6601.28 and not $8647.02 as recorded in order 9 leads the Appeal Panel to conclude that the decision to make a money order in the sum of $8647.02 was not fair and equitable. Further, there is a significant amount involved, being an amount in excess of $2000. The reasons for this amount of the order being excessive is unexplained and to allow it to remain would amount to a substantial miscarriage of justice. 21. Accordingly, leave to appeal should be granted. 22. Further, in the opinion of the Appeal Panel the appeal should be allowed in part so as to enable the error made by the Tribunal on 31 March 2015 to be corrected. 23. While the respondent sought to suggest that any error in the amount awarded arose from an error made by the Tribunal, the fact remains that it was for the respondent landlord to prove its case and demonstrate what was the actual amount of rent which remained unpaid. 24. Having regard to the agreement reached between the parties, it is unnecessary for the proceedings to be remitted to the Tribunal for redetermination. Rather, the Appeal Panel is able to correct the error and vary the original decision in respect of the amount of rent which remained unpaid at 31 March 2015. 25. Accordingly, the Appeal Panel will make an order to vary the amount in paragraph 9 of the orders made 31 March 2015 from $8647.02 to $6601.28. 26. The Appeal Panel notes that the amount payable does not include the sum of $411.26 which was paid by the tenant in respect of water usage charges. There is a dispute about whether or not these amounts were in fact payable and/or whether further water usage charges are also payable by the appellant. This issue was not determined by the Tribunal at first instances and the Appeal Panel makes no findings or orders in this regard. The parties will need to make whatever further applications they consider appropriate to the Tribunal. 27. Save as provided above, the appeal should be dismissed. While there is an issue concerning the date the appellant (tenant) vacated the property, this is a matter to be raised in any application to fix the occupation fee as provided in order 7 made 31 March 2015. Such an application has not yet been made to the Tribunal and is not therefore properly a matter to be considered by the Appeal Panel in making this decision. Hopefully the parties can resolve this issue by agreement. If not, an appropriate application will need to be made as provided for in the orders made 31 March 2015. 28. The final issue to consider is the appellant's application for costs. 29. Section 60(1) of the NCAT Act provides that each party to the proceedings is to pay their own costs. The present proceedings are of a type of which the Tribunal can only make an order for costs if it is satisfied that there are special circumstances warranting such an award. 30. Section 60(3) sets out the criteria to be considered in determining whether or not special circumstances exist. 31. The appeal was resolved in part adversely to the appellant as the Appeal Panel was satisfied there were arrears of rent at 31 March 2015. The rent that was actually outstanding was different to the order originally made by the Tribunal but was also different to what the appellant contended was the "correct rental calculations". In this regard paragraph 28 of the appellant's submissions said that the rent due to the landlord was only $5558.80. 32. While the Appeal Panel spent considerable time during the hearing of the appeal discussing with the parties the proper calculation of unpaid rent, none of the features of this case make it out of the ordinary in the sense referred to in Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. 33. Accordingly, the Appeal Panel is not satisfied special circumstances exist and the application by the appellant for costs is dismissed. Orders 1. The Appeal Panel makes the following orders: 1. the time for the appellant to file the notice of appeal is extended until 29 April 2015. 2. the appellant is granted leave to appeal the decision of the Tribunal made 31 March 2015. 3. the appeal is allowed in part. 4. order 9 made by the Tribunal on 31 March 2015 is varied so as to provide that the sum for unpaid rent as at 31 March 2015 is $6601.28. 5. the appeal is otherwise dismissed with no order as to costs. 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: 21 September 2015