Civil and Administrative Tribunal New South Wales Medium Neutral Citation: PTM Corporate Advisory Pty Ltd v Temple [2015] NSWCATAP 218 Hearing dates: 6 October 2015 Date of orders: 12 October 2015 Decision date: 12 October 2015 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President D Goldstein, Senior Member Decision: Pursuant to section 63 orders made by the Appeal Panel on 12 October 2015 are amended to read: (1) The application for an extension of time in which to appeal is refused. (2) The appeal is dismissed. (3) These orders come into effect 14 days from the date of these reasons. (4) The stay order made on 30 September 2015 continues until the appellant's vacate the premises. (5) The respondent has liberty to apply for a variation or revocation of the stay order if the conditions are breached. Catchwords: CONSENT ORDERS – appeal out of time – length and reason for delay – merits of appeal - alleged misrepresentation by landlord to tenants that if they signed terms of settlement terminating the tenancy, the landlord would negotiate in good faith in relation to the continuation of the tenancy agreement - whether terms of agreement on which consent orders were based are invalid - – misrepresentations as to future conduct –leave to appeal out of time refused Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 41, 59, 80(2)(b) Civil and Administrative Tribunal Rules 2014 (NSW) 25(4)(b) Residential Tenancies Act 2010 (NSW) s 87 Cases Cited: Civil Service Co-operative Society of Victoria Ltd v Blyth (1914) 17 CLR 601 Gary John Mackin v Roger Belmonte as Executor of the Estate of the late Doris Hilda Mackin [2015] NSWSC 1226 Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Clancy v Prince [2001] NSWSC 85 Smith v New South Wales Bar Association (1992) 176 CLR 256 Texts Cited: Bernard Cairns, Australian Civil Procedure (8th ed, 2009 Law Book Co) J W Carter, Carter on Contract (LexisNexis online ) Category: Principal judgment Parties: PTM Corporate Advisory Pty Ltd and Peter Bartleet (Appellants) Clare Temple (Respondent) Representation: P Bartleet (In person and agent for 1st Appellant) A Williams (Agent for Respondent) File Number(s): AP 15/53229 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 10 August 2015 Before: S De Jersey File Number(s): RT 15/42772 reasons for decision Introduction 1. Residential tenants, Peter Bartleet and PTM Corporate Advisory Pty Ltd, have appealed from consent orders made by the Tribunal on 10 August 2015. Those orders terminated their residential tenancy agreement and gave possession to the landlord, Ms Temple, from 24 August 2015. The tenants contend that the orders should be set aside because their consent was based on a misrepresentation by Ms Williams, the landlord's agent. The alleged misrepresentation was that if they agreed to the tenancy agreement being terminated, the landlord would negotiate in good faith for the continuation of the agreement. Instead, after the consent orders were made, the landlord made a non-negotiable offer that the tenants either pay $52,142.88, being rent for the remaining 8 months of the tenancy agreement, or vacate the premises by 24 August 2015 in accordance with the consent orders. 2. The appeal was lodged out of time and we have decided not to accept it. The delay in lodging is not insignificant and the reason for the late lodgement is unpersuasive. Most significantly however, the appeal has no reasonable prospects of success. If the landlord's agent did tell the tenants that the landlord would negotiate in good faith in relation to the continuation of the tenancy, that is highly unlikely to be a representation that would justify the consent orders being set aside. Background 1. On 13 July 2015 the landlord applied to the Consumer and Commercial Division of the Tribunal for a termination order and an order for possession of the premises for non-payment of rent: Residential Tenancies Act 2010 (NSW), s 87. The application alleged that the tenants had failed to pay rent since 2 June 2015 and that they owed $6517.86. At the hearing on 24 August 2015 the tenants paid the landlord the full amount of the arrears. The parties engaged in conciliation with the assistance of a Tribunal appointed conciliator. The tenants were represented by a tenant's advocate. The landlord was represented by Ms Williams and Mr Sou, employees of Belle Property Pyrmont. 2. Following the conciliation the Tribunal made the following orders pursuant to s 59 of the Civil and Administrative Tribunal Act 2013 (NSW): 1. By consent, the Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 2. By consent, the order of possession is suspended until 24 August 2015. 3. By consent, the tenant shall pay the landlord a daily occupation fee at the rate of $214.29 per day from the day after the date of termination, namely 11 August 2015 until the date vacant position is given to the landlord. 4. By consent, within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 5. If the tenant wishes to vacate earlier than the above date, the landlord will have no objection provided the tenant gives the landlord seven days' notice in writing of the new date the landlord will only require the occupation fee to be paid until the new vacating date. 1. As well is making consent orders the Tribunal noted that the parties had come to the following agreement: 1. The tenant has paid by bank cheque to the agent at the hearing today payment of rent owing as at today's date in the sum of $10,071.43 plus the daily occupation fee from tomorrow up to and including 24 August 2015. 2. If the tenant pays a full calendar month of the occupation fee of $6517.86 on or before 24 August 2015 (for the rent period 25 August to 24 September) the landlord will not require vacant possession until 24 September 2015. If the tenant does not pay this occupation fee on 24 August 2015, he is required to vacate on 24 August 2015 and if he does not vacate, the landlord will execute a writ of possession. 1. There is no dispute that the tenants did pay a full calendar month of the occupation fee before 24 August 2015 and have remained in occupation. Application for extension of time 1. As these proceedings are "residential proceedings" the tenants are required to lodge an appeal within 14 days from the day on which they were notified of the decision or given reasons for the decision, whichever is the later: Civil and Administrative Tribunal Rules 2014 (NSW), (NCAT Rules), rule 25(4)(b). The Tribunal made the consent orders on 10 August 2015 and the tenants acknowledge that they were "notified" of the decision on that date. To be within time, the appeal should have been lodged by 24 August 2015. It was not lodged until 17 September 2015, 3 weeks and 3 days late. 2. The time for lodging an appeal may be extended even though the time has expired: Civil and Administrative Tribunal Act 2013 (NSW), (NCAT Act), s 41. The Appeal Panel set out the principles to be applied when considering an application for an extension of time in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 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 61at [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]. Consideration of the out of time application Length of the delay 1. In residential proceedings, parties have only 14 days to lodge an appeal. A longer period would be unnecessarily prejudicial to the landlord. The length of the delay in this case is 24 days. That is a significant delay in the circumstances of this case. Reason for the delay 1. According to the tenants, the reason for the delay was that they were expecting to be able to negotiate fair and reasonable terms on which to continue the tenancy. Instead, on 1 September 2015, the landlord's agent emailed the tenants in the following terms: The landlord is willing to continue the current fixed term agreement with PTM Corporate Advisory Pty Ltd and Peter Bartleet only if the remainder of the tenancy (8 months) is paid in full, $52,142.88 is required on or before 24 September 2015. (This is non-negotiable based on the events of the past three months). 1. The tenants responded on 2 September 2015 stating that: . . . we note the demand for payment of eight months' rent in advance in no way reflects the spirit of the agreements reached in the NCAT process on 10 August 2015 where it was agreed by you and, more particularly, Ashleigh, that we would have the opportunity to negotiate the continuance of our tenancy in good faith or, at the time, Ashleigh suggested an offer of a payment of two months in advance should be attractive to the landlord and settle things down. We also outlined the extenuating personal circumstances which temporarily drained our funds. 1. Further emails were exchanged but it was not until 17 September 2015, a week before the tenancy was due to end, that the tenants lodged the appeal. 2. The tenants knew on 1 September 2015 that the landlord had made a non-negotiable offer in relation to the continuation of the residential tenancy agreement. Rather than appeal at that time the tenants chose to wait more than two weeks. They have not provided a satisfactory explanation for that delay. Prospects of success 1. The tenants are entitled to appeal on a question of law but must obtain the Appeal Panel's leave before appealing on other grounds: NCAT Act, s 80(2)(b). 2. It is apparent from the Notice of Appeal that the tenants' only ground of appeal is that the consent orders should be set aside because they were induced to sign terms of settlement on the basis of a misrepresentation by the landlord's agent. 3. At common law, the grounds for quashing a consent order are the same as those for quashing the agreement on which it is based: Bernard Cairns, Australian Civil Procedure (8th ed, 2009 Law Book Co) at 418. The relevant principle was articulated by the High Court in Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243-244, (Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ): The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. The rule appears rather from positive statements of the grounds that suffice (cf Halsbury's Laws of England, Vol 26, 2nd ed, pp 84, 85); but there is a dictum of Lindley LJ which is distinct enough: ". . . nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual . . . To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course if that agreement cannot be invalidated the consent order is good": Huddersfield Banking Co Ltd v Henry Lister & Son Ltd (1895) 2 Ch 273, at p 280. 1. The Supreme Court recently applied these principles in relation to the setting aside of consent orders in Gary John Mackin v Roger Belmonte as Executor of the Estate of the late Doris Hilda Mackin [2015] NSWSC 1226 at [12] – [16]. 2. The agreement on which the consent order was based was not in evidence but we have assumed, for the purpose of these proceedings, that it was in the same or similar terms as the consent order. It did not contain any term relating to negotiating the continuation of the tenancy agreement. 3. Carter on Contracts describes a misrepresentation as "a false statement of a material fact made by one person (the representor) to another (the representee) in order to induce that other party to enter into the contract and which has this effect": JW Carter, Carter on Contracts (LexisNexis online, Chapter 20, 20-001.) 4. Assurances as to what will happen in the future or statements of intention or opinion are not generally misrepresentations: Civil Service Co-operative Society of Victoria Ltd v Blyth (1914) 17 CLR 601. The relevant principles applicable to misrepresentation as set out by Santow J in Clancy v Prince [2001] NSWSC 85 at [61] are extracted below: "[61] It is convenient that I first set out the principles applicable to fraudulent misrepresentation before turning to their potential application. (1) To constitute a fraudulent misrepresentation, there must first be found all the elements of a misrepresentation.(2) The elements of misrepresentation are as follows: (i) there must be a statement or conduct conveying a representation which is false in not according with the true facts, past or present; (ii) thus a promise or assurance for the future cannot be presently true or false, and does not of itself constitute a misrepresentation; see, for example, Civil Service Co-operative Society of Victoria Ltd v Blyth (1914) 17 CLR 601; (iii) however statements of intention or opinion are capable of being a misrepresentation and indeed fraudulent, where the state of the maker's mind is not consistent with them, so that the person does not hold the opinion professed; Edgington v Fitzmaurice (1885) 29 ChD 459 where Bowen LJ said (at 483) 'a misrepresentation as to the state of a man's mind is, therefore, a misstatement of fact'; . . . (vi) the representor must have intended the representee to rely upon the representation, as for example in inducing the representee to enter into a contract, reliance being a question of fact with the burden of proof resting upon the person claiming the misrepresentation; and (vii) the representation must be of a material fact such that, in the case of fraud, the representation must be a real inducement to the party claiming reliance; see for example, Australian Steel & Mining Corporation Pty Limited v Corben [1974] 2 NSWLR 202. 1. As conciliation conferences are not recorded, there is no direct evidence of what was said at that conference. The most probative written evidence of what was alleged to have been said is the email the tenants sent to the landlord on 2 September 2015 the relevant parts of which are reproduced at [11] above. Ms Williams verbally denies having said that the tenants would have the opportunity to negotiate the continuation of the tenancy in good faith or that she suggested an offer of a payment of two months' rent in advance should be attractive to the landlord. 2. The tenants did not file a statement or affidavit from any witness to the alleged conversation and Ms Williams denies making the representation. In those circumstances, the tenants have not discharged their onus of proving that the representation was made. 3. This appeal hearing was expedited and the tenants were not legally represented. Had they received legal advice, they may have filed evidence to support their allegation. In other circumstances we would have considered granting an adjournment to allow them to do so. We have decided not to take that course in this case because even if the representation was made, it is nevertheless highly unlikely that the appeal would succeed. 4. A statement or representation that the landlord would negotiate in good faith as to the terms on which the tenancy may be continued, is not a statement or representation that can presently be true or false. It is a statement of intention or opinion. Such statements are capable of being a misrepresentation where the representor's state of mind is not consistent with them. That means, for example, that the tenants would have to prove that Ms Williams knew that the landlord did not intent to negotiate in good faith. Because the concept of negotiation in good faith is inherently vague, the chances of the tenants being able to prove matter are slight. It is not alleged that Ms Williams promised that the landlord would continue the tenancy if the tenants paid two months' rent in advance. The allegation was merely that such an offer "should be attractive to the landlord and settle things down." 5. The appellant's would also have to prove that Ms Williams intended that they rely on the representation and that it was a real inducement to them signing the terms of agreement. Again, those are matters which would be difficult to prove. In all the circumstances, while the tenants ground of appeal is not necessarily doomed to fail, in our view it has no reasonable prospects of success. Prejudice to landlord 1. The landlord will be prejudiced if leave is granted to extend time for the appeal to be lodged. She will be put to further expense in circumstances where the tenants were behind on the rent and did not make up the shortfall until the day of the hearing in the Tribunal below. Conclusion 1. There is a public interest in the need for finality of litigation: Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265-267. We decline to extend time for the filing of this appeal because there was a delay of more than three weeks in the lodging of the appeal, that delay is not fully explained, the landlord would be prejudiced if time were extended and the appeal has no reasonable prospects of success. 2. At the hearing, we varied the stay order which was in effect at the time: The stay order made on 30 September 2015 is varied so that it is subject to the following condition: 1. By 5 PM on 8 October 2015 the appellants are to pay the respondent the sum of $4,283.58 being arrears in rent and rent in advance to 15 October 2015; and 2. By 15 October 2015, and every week thereafter until the Appeal Panel's decision is handed down, the appellants are to pay to the respondent the sum of $1,500 being weekly rent in advance calculated at $214.29 per day. 1. As the tenants are obliged to continue paying the rent in advance, the orders we have made will not come into effect for 14 days after the date of these reasons to give the appellants the opportunity to vacate the premises. Orders 1. The application for an extension of time in which to appeal is refused. 2. The appeal is dismissed. 3. These orders come into effect 14 days from the date of these reasons. 4. The stay order made on 30 September 2015 continues until the appellant's vacate the premises. 5. The respondent has liberty to apply for a variation or revocation of the stay order if the conditions are breached. ********** 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 Amendments 13 October 2015 - Cover sheet amendment: Pursuant to section 63 orders made by the Appeal Panel on 12 October 2015 are amended to read: (1) The application for an extension of time in which to appeal is refused. (2) The appeal is dismissed. (3) These orders come into effect 14 days from the date of these reasons. (4) The stay order made on 30 September 2015 continues until the appellant's vacate the premises. (5) The respondent has liberty to apply for a variation or revocation of the stay order if the conditions are breached. Orders have been amended. 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: 13 October 2015