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. Submissions 1. The appellant provided oral submissions but did not add or seek to vary the grounds advanced in his Notice of Appeal. The essence of the appellant's submissions was that he intended to use the land, the subject of tenancy agreement, for the purpose of carrying out various farming activities. 2. The appellant asserted that there was an agreement between the parties that the respondent would remove various timber logs located on the agricultural land and that the respondent failed to do so. Consequently the appellant asserted he had suffered loss and damage by reason of the respondent's breach of the tenancy agreement. 3. In making his submissions, the appellant conceded that the amounts found payable by the Tribunal set out in order 4 above had not been paid. 4. During the course of the appeal, the Appeal Panel noted that it had not been provided with the evidence originally submitted to the Tribunal at the hearing nor had the Appeal Panel been provided with the audio recording of what occurred. Nonetheless, the appellant decided to continue with his appeal on the basis of the information he had provided in the Notice of Appeal and in written submissions. 5. The Respondent also provided oral submissions at the hearing of the appeal and relied on written submissions dated 25 October 2015. 6. In the course of oral submissions the respondent indicated that he wished to seek orders to terminate the tenancy agreement. However, no cross appeal had been filed in relation to the Tribunal originally refusing to make such an order. He also contended that the appellant had allowed a third party to occupy residential premises on the property. Consideration 1. The tenant has appealed from this decision, as he is entitled to, under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. The Notice of Appeal also appears to seek leave to appeal, various sections of item 12 of the Notice of Appeal having been completed. Insofar as leave is required, the appellant must demonstrate he may have suffered a substantial miscarriage of justice as provided in clause 12 of schedule 4 of the NCAT Act. The applicable principles for the grant of leave are set out the decision of Collins v Urban [2014] NSWCATAP 17. 3. It is difficult to discern from the submissions and the Notice of Appeal whether the issues raised on appeal involved questions of law or questions for which leave was required. In this regard the principles set out in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 are relevant. Where a party is self-represented, this may involve the Appeal Panel identifying the particular question or questions to be determined and deciding what is a question of law and what questions require leave. 4. In the present case, it would seem that the questions of law were: 1. whether the Tribunal was correct in determining whether the appellant had breached the agreement by not paying rent and other amounts due; and 2. whether the Tribunal was in error in failing to take account of any breach by the respondents of the agreement which might have caused loss and damage to the appellant which the appellant was entitled to set-off against amounts unpaid by him. 1. In so far as leave may be required, it appears that the appellant asserted he had, as a matter of fact, suffered loss and damage which could be offset. 2. The Tribunal determined that the parties entered into a written agreement dated 11 March 2014 which was a tenancy agreement within a meaning of the AT Act. 3. This written agreement was provided as part of the papers submitted for the purpose of the Appeal. The document is entitled "Commercial Lease" and is between Allan and My Tat and the appellant. In addition, Rixin Liu is also recorded as a guarantor and as a tenant. 4. It would seem that Mr Liu has passed away and that the respondent "has no knowledge of the legal representatives of the estate or how to contact them". 5. There may be a question about whether the form of order made against "The Estate of the Late Rixin Liu" is enforceable by the respondent to the appeal (the applicant before the Tribunal). This is because no legal person or entity is identified in the orders in respect of the Estate of the Late Rixin Liu. However, this was not a matter raised by the appellant and was irrelevant to his grounds of appeal. In so far as the respondent may wish to have this matter addressed, no application was made in this appeal and it is inappropriate for the Appeal Panel to make comment at this time. 6. The tenancy agreement had the following features: 1. The permitted use was "Farming" only: see "Permitted Use" page 1; 2. Clause 13(a) of the tenancy agreement prevented the property from being used for any other purpose; 3. Clause 13(b) prevented the tenant and any other person from sleeping at the farm unless that portion of the farm was zoned for residential use. 1. There was no evidence submitted in the appeal to suggest that the respondent landlord had agreed to any part of the farm being used as residential premises. No party made any submission to the effect that the approval to occupy part of the farm as residential premises had been given. 2. The Tribunal found that the farm was "a small farm holding of about 5 acres at Rossmore" and therefore the property the subject of the tenancy agreement was a farm within the meaning of section 4 of the AT Act. This finding was not challenged on appeal. Consequently the Tribunal determined it had jurisdiction to deal with the tenancy agreement under the AT Act. 3. Neither party submitted this decision was in error and having regard to the terms of the tenancy agreement we are satisfied the Tribunal was correct in concluding it had jurisdiction under the AT Act. 4. The substantial issue on appeal was whether or not the Tribunal was in error in making the monetary awards in favour of the respondent. 5. The appellant conceded that the amounts in orders 4 a) – c) have not been paid. However, the appellant submitted that the Tribunal was in error in making these orders because the appellant contended the respondent was in breach of the tenancy agreement in failing to remove the timber logs. Therefore the appellant said he had suffered financial loss as he was not able to use the farm for the purposes allowed in the tenancy agreement. 6. The effect of the concession made by the appellant was that amounts were due to the respondents under the tenancy agreement for rent, water usage and part of the bond. However, the appellant maintained there was no obligation to pay these amounts because the tenant was entitled to set off its claim for damages. 7. No application was filed by the appellant in the Tribunal seeking any damages for breach of the tenancy agreement in his favour against the respondent. The appellant did not provide the Appeal Panel with any evidence provided to the Tribunal at the original hearing nor the audio recording of the hearing to suggest these matters were raised at that time. 8. In the absence of any application having been made and in the absence of any evidence that was before the Tribunal, the Appeal Panel is not satisfied that the Tribunal was in error in failing to conclude the appellant was not required to pay the bond, rent and any water usage charges by reason of any set-off. No breach of agreement by the respondent has been established by the appellant, no entitlement to any amount in favour of the appellant has been established nor has the appellant otherwise demonstrated any error of law in the Decision. 9. We find that the appellant has not demonstrated any error of law or any other error for which leave to appeal should be granted. 10. That is not to say the appellant is not entitled to lodge a separate application to recover any damages for the breach of the tenancy agreement, if any, by the respondent. However, the fact the appellant says he has such a claim and wishes to make it, is not a reason to set aside the orders made. 11. Accordingly, the appeal should be dismissed. Orders 1. The Appeal Panel makes the following orders: 1. My Tat is joined as a respondent to the appeal. 2. Leave to appeal is refused. 3. The appeal is otherwise 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: 20 November 2015