Bates v Lien [2015] NSWCATCD 98

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bates v Lien [2015] NSWCATCD 98 Hearing dates: 29 July 2015 Decision date: 10 August 2015 Jurisdiction: Consumer and Commercial Division Before: P French, General Member Decision: 1 The application to extend the time in which to make this Application to the Tribunal is refused. 2 The Application is dismissed on the basis that the Tribunal does not have jurisdiction to deal with it, it having been made outside the prescribed period provided for in sub-clause 22(9) of the Residential Tenancies Regulation 2010. Catchwords: RESIDENTIAL TENANCY – application to extend time in which to make an application under section 190 of the Residential Tenancies Act 2010 Category: Principal judgment Parties: Michael Bates (applicant) Stephen John Lien (respondent) Representation: Applicant in person Stephen John Lien for the respondent File Number(s): RT 15/43537 Publication restriction: Nil

REASONS FOR DECISION 1. This is an application by a former tenant (tenant) of rented premises pursuant to section 190 of the Residential Tenancies Act 2010 (the Act) which alleges breaches by the former landlord (landlord) of sections 40(c), 50(3), 70(1), 71 and 72 of the Act and their corresponding provisions in the Residential Tenancy Agreement that subsisted between the tenant and landlord of the rented premises (the Agreement). This Application was made on 16 July 2015. 2. The tenant seeks Orders from the Tribunal pursuant to sub-sections 187(c) and (d) of the Act directing the landlord to pay him money and compensation respectively in unspecified amounts as remedies for these alleged breaches. 3. The Agreement which gives rise to this Application commenced on 27 November 2009 and continued up to 27 April 2014 when the tenant gave vacant possession pursuant to consent orders made by the Tribunal on 17 April 2015. 4. In the course of the tenancy, on 21 October 2014 the tenant entered into a new lease agreement with a new landlord following the sale of the rented premises. This Agreement was expressed to run from 5 September 2014 to 5 March 2015. 5. The former tenant claims that for the whole of the period up to or about 5 September 2014 he was charged excessive electricity supply costs in circumstances where electricity to the rented premises was not separately metered from a downstairs shop. He also says that for the whole of the period up to or about 5 September 2014 there was inadequate security for the rented premises which resulted in persons entering the rented premises from the downstairs shop. For the same reason, the former tenant claims he was deprived of quiet enjoyment for the whole of the period of the tenancy up to or about 5 September 2014. 6. It was an agreed fact between the parties that upon purchase of the rented premises, the new landlord installed a separate electricity meter and rectified the security problems alleged by the tenant. 7. The tenant's Application therefore relates only to the period from 27 November 2009 up to or about 5 September 2014. 8. Section 190 of the Act relevantly provides: Applications relating to breaches of residential tenancy agreements (1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations, (2) An application may be made: (a) during or after the end of a residential tenancy agreement, and (b) whether or not a termination notice has been given or a termination order made. (3) … 1. Sub-clause 22(9) of the Residential Tenancies Regulation 2010 provides that the prescribed period for making an application for an order in relation to a breach of a residential tenancy agreement is within three months after the applicant becomes aware of the breach. 2. The tenant gave evidence to the Tribunal to the effect that he knew about the breaches he alleges for the whole of the period of the tenancy. He says he complained about the alleged breaches to the landlord's Managing Agent on numerous occasions, but nothing was done to rectify the breach. He says that he did not make an earlier application to the Tribunal in relation to these alleged breach because he did not know about the Tribunal or its role, or of his right to do so, until he became involved termination of tenancy proceedings in April 2015. In short, he says he did not know he could do anything about these breaches. 3. In these circumstances the tenant asks the Tribunal to extend the time in which his Application may be made to the Tribunal from on or about 27 February 2010 (three months after the commencement of the tenancy) up to 16 July 2015 when the Application was lodged with the Tribunal. 4. The Tribunal has discretion to extend the time for the making of an Application alleging breach of a residential tenancy agreement pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). This discretion is unfettered, but it must be exercised judicially and with regard to the statutory command in section 36 of the NCAT Act which is to the effect the guiding principle applying to the Tribunal's procedure "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at 18 (Jackson). 5. In Gallo v Dawson [1990] 93 ALR 479 McHugh J, sitting as a single justice of the High Court, said at 2: The grant of an extension of time … is not automatic. The object … is to ensure that those Rules which fix times for doing acts don't become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Tribunal to do justice between the parties. This means that the discretion can only be exercised in favour of an applicant on proof that strict compliance with the rules will work an injustice to the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for an extension of time (references omitted). 1. In Jackson, the Tribunal's Appeal panel set out the principles that are to apply to the exercise of a discretion to extend the time in which an appeal may be made from a division of the Tribunal. This is not an Application to appeal, but these principles apply mutatis mutandis in the present case. In this respect, the Appeal Panel said (relevantly) [at 21], subject to the principle enunciated by McHugh J in Gallo set out above: Time limits … are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, … and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. 1. As noted, the context in which this opinion was expressed was an Application to extent time in which to lodge an appeal from a decision made in a division of the Tribunal. In this case, there has been no vesting of a favourable decision in the Respondent which would be disturbed if time were to be extended. 2. Nevertheless, an extension of time in this case would disturb the finality of the legal relationship between the parties, at least with respect to their rights and obligations under the Residential Tenancies Act 2010, that might be viewed as having finally vested on or about 5 December 2014, three months after the sale of the property and the rectification of the alleged breaches by the new owner. Moreover, it is an application which asks the Tribunal to disturb the finality of the legal relationship between the parties which might be viewed as having vested progressively from 27 February 2010 (three months after the commencement of the tenancy) up to 5 December 2014. 3. In considering this Application, the Tribunal must bear in mind the specific legislative context in which the Application is made and the broader implications for the administration of this legislation if time were to be extended as requested by the Applicant. 4. The Application is made under residential tenancy legislation. The time limits set for the doing of things under this legislation provide important protections for tenants, landlords and some third parties against claims being asserted against them in relation to matters that arose outside the temporal range of those time limits. These time limit the risk and liability of parties in tenancy relationships. The broad policy of this legislation might be viewed as requiring tenancy disputes to be asserted promptly and brought to finality quickly. 5. In Jackson, the Appeal Panel identified the following factors as relevant to the exercise of the Tribunal's discretion to extend time pursuant to section 41 of the NCAT Act: 1. the length of the delay; 2. the reason for the delay; 3. the applicant's (appellant in that case) prospects of success; that is, does the applicant have a fairly arguable case; 4. the extent of any prejudice that would be suffered by the Respondent if time were to be extended; and 5. particularly where the applicants explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, whether the applicant is able to show that his or her case has more substantial merit than merely being fairly arguable. 1. Given the need for the Tribunal to consider (without deciding) the substantial merits of an Application in order to determine if the time in which to make that Application ought to be extended, a common practice in the Tribunal is to determine the issue of leave to extend time in the context of the hearing of the Application as a whole: Anarene v Solomon & Ors (Tenancy) [2012] NSWCTT 150 (16 April 2012); Banna v Parkes (Tenancy) [2012] NSWCTTT 433 (24 October 2012). 2. The Tribunal has not opted for this course in this case. If an extension of time were to be granted in this case, according to the terms in which it is sought, it is likely to require the parties to retrieve documents and prove facts in issue over an extended past period of time. This will involve considerable effort, and potentially, expense. Additionally, for reasons that will emerge later in these reasons it is clear that the Applicant's claim has, prima facie, substantial merit. It is therefore unnecessary to put the parties to the inconvenience of a hearing of the substantial Application on its merits in order to determine the preliminary issue of leave to extend time.