Lee v Tat [2015] NSWCATAP 247

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lee v Tat [2015] NSWCATAP 247 Hearing dates: 6 November 2015 Date of orders: 20 November 2015 Decision date: 20 November 2015 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member S Thode, Senior Member Decision: (1) My Tat is joined as a respondent to the appeal.

(2) Leave to appeal is refused.

(3) The appeal is otherwise dismissed. Catchwords: Jurisdiction- agricultural tenancy agreement Set-off- need to adduce evidence of claim Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Agricultural Tenancies Act 1990 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Tong Thong Bay Lee (Appellant) Allan Tat and My Tat (Respondents) Representation: Appellant- In person Respondents- Mr Allan Tat File Number(s): AP 15/45504 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 7 July 2015 Before: J Levingston, General Member File Number(s): COM 15/26547 formerly RT 15/26547

reasons for decision 1. This is an appeal against a decision made by the Tribunal in application RT 15/26947. The decision concerned an agreement called a "Commercial Lease" (tenancy agreement) and a dispute arising out of the appellant failing to pay rent and other amounts due under that agreement. 2. The parties appeared in person. In the case of the appellant he had the assistance of a Mandarin interpreter. 3. At the commencement of the hearing, the Appeal Panel identified that one of the landlords identified in the tenancy agreement, Ms My Tat, was not a party to the appeal. By consent the parties agreed she should be added as a party for the purpose of the appeal. She was represented by the first respondent Mr Tat. 4. The power to join Ms Tat is found in s44(1) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act) which allows a party to be joined if the Tribunal is of the view that the party should be joined. Rule 29 of the Civil and Administrative Tribunal Rules, 2013 (Rules) provides that a party joined under section 44 becomes a party to the appeal. The Appeal Panel was satisfied that her joinder was appropriate as she was a party to the "Commercial Lease". 5. The Tribunal published reasons for decision dated 7 July 2015 (Decision) and the appeal was lodged on 30 July 2015. The appeal was lodged in time. 6. While the application was originally commenced in the Residential Tenancies List of the Consumer and Commercial Division, the orders made by the Tribunal transferred the proceedings to the Commercial List in the Division. The reason for this is that the Tribunal concluded there was a tenancy under the Agricultural Tenancies Act, 1990 (AT Act). Consequently, any appeal was required to be lodged in 28 days: see Rule 25(4)(b). 7. The applicant challenges orders 4(a), (b), and (c) for payment of various moneys. Those orders provided as follows: 4. The respondents are to pay the applicants the sums owing of: (a) $1,440.00 being the balance of the bond, on or before Friday 10 July 2015; (b) $20,592.00 being for unpaid rent due to 7 July 2015, on or before Tuesday 14 July 2015; (c) $1,664.90 being for unpaid water usage to be paid on or before by Tuesday 14 July 2015. 1. The appellant's grounds of appeal were set out in 11B of the Notice of Appeal in the following terms: 1. Mr Alan Nguyen Hanh Tat, the farm owner, has breached the tenancy agreement; 2. This has caused big damages to our business plan in terms of time and equipment; 3. We cannot implement our business plan due to owner Mr Allen N.H.T. has put a lot of timber logs on the farm, these logs have taken the Farm's area and we thus cannot carry out our business plan; 4. We have lost in our investment; 5. We have lost our integrity; 6. We are highly stressed due to the above issues. 1. The respondent filed a Reply to Appeal dated 28 July 2015. In that Reply the respondent contended that the appeal was not on a question of law, that no error had been made by the Tribunal and that the original orders should remain. No cross appeal was lodged.