Hays v Rossington [2016] NSWCATAP 48

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hays v Rossington [2016] NSWCATAP 48 Hearing dates: 10 September 2015 Date of orders: 23 February 2016 Decision date: 23 February 2016 Jurisdiction: Appeal Panel Before: D Patten, Principal Member R Titterton, Senior Member Decision: 1. Application for leave to appeal refused. 2. Appeal dismissed. 3. Orders of the Tribunal below confirmed. Catchwords: Application for leave to appeal – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Aon Risk Services Australia Ltd v Australian National Community (2009) 239 CLR 175 Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: David Thomas Hays T/as Dave's Dry Cleaners (Appellant)

Darryl Rossington and Genevieve Rossington (Respondents) Representation: Mr K Raju, agent, was granted leave to assist Mr Hays Mr Rossington appeared for himself and Mrs Genevieve Rossington, as respondents File Number(s): AP 15/37103 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2015] NSWCAT Date of Decision: 12 June 2015 Before: D Goldstein, Senior Member File Number(s): COM 15/32959

REASONS FOR DECISION

Introduction 1. This is an appeal against the decision of the Tribunal below (Senior Member Goldstein) on 10 June 2015 in matter COM 15/32959. Reasons in support of the decision were apparently published on 12 June 2015. We reproduce the orders and reasons in full: On 10-Jun-2015 the following orders were made: 1. The respondent David Thomas Hays must pay Darryl Rossington and Genevieve Rossington the sum of $49,167.50 immediately. 2. The respondent David Thomas Hays has 21 days from the date of this order to make written submissions as to costs and to file those submissions in the registry and provide a copy to the applicants. 3. At the expiration of 21 days of the date of this order the Tribunal will make an order as to the costs of the proceedings. Reasons for decision: 1. The applicants appeared in person. There was no appearance by the respondent. 2. There appears on the Tribunal file a copy of a notice of hearing addressed to the respondent dated 3 June 2015 advising of the time and location of the hearing. In addition there appears on the Tribunal file COM 15/08601 a copy of a notice of hearing addressed to the respondent dated 1 May 2015 advising of the same time and location of the hearing in COM 15/08601 which was listed to be heard at the same time as these proceedings. 3. I am aware of the Registrar's standard practices in notifying parties of the time and place of hearing as set out in the statutory declaration of the Divisional Registrar of the Consumer and Commercial Division sworn the 30th day of July 2014. 4. Having perused the Tribunal file I am satisfied that in accordance with the Registrar's usual practices notice of hearing of today's proceedings was posted to respondent and that he has been given notice of the hearing and that the hearing notice has not been returned. 5. Further, I am satisfied that the justice of the case requires the matter proceed in the absence of the respondent having regard to the fact that the respondent has been notified of the hearing and acknowledged that he knew the hearing was listed for today since on the afternoon of 9 June 2015, he was denied a request for a telephone hearing. In addition the respondent has failed to attend on prior occasions and the applicants have attended, prepared their case in accordance with the Tribunal's directions and are ready to proceed. 6. I would add that the Tribunal would be unable to manage the hearing of cases in an efficient and timely manner if litigants are able to choose if and when they attend a hearing. 7. The Tribunal has the jurisdiction to determine this dispute pursuant to section 71 of the Retail Leases Act 1994 (the 'Act'). 8. The applicants claim the sum of $29,377.50 from the respondent for unpaid rent. They also claim the sum of $19,790.00 from the respondent for repairs and making good. 9. The applicants have stated that they will forgo their claim for interest but press their claim for costs. 10. The applicants' claim arises out of a lease entered into between the parties, which was undated, but commenced on 1 February 2013. The term was for two years with two options to renew for periods each of two years. 11. Mr Rossington's evidence was that the rental was increased on 2 February 2014 by 2% increasing the weekly rental to $701.25 per week. 12. The leased premises were shop premises situate at 113 St Aubins Street Scone. 13. The applicants' evidence is that the lease was terminated on 1 February 2015. 14. The affidavit of Mr Darryl Rossington and all annexures was exhibit A in the proceedings. The affidavit of Mrs Genevieve Rossington and all annexures was exhibit B in the proceedings. 15. The lease between the parties which is annexed to Mr Rossington's affidavit provides that rent of $32,500.00 plus GST per annum was payable by weekly instalments of $625.00 plus GST, payable in advance. 16. Annexure E to Mrs Rossington's affidavit is a document which she prepared which records all payments of rent made by the respondent in connection with the leased premises as from 11 September 2013. 17. Mrs Rossington has calculated that the respondent has failed to pay rental of $29,377.50 to 13 February 2015. 18. I accept the applicants' evidence which is uncontradicted. 19. I will make an order in their favour for $29,377.50 for rent due and owing under the lease. 20. The applicants also claim the sum of $19,790.00 from the respondent for repairs and making good. 21. The respondent's obligations regarding the leased premises so far as keeping it clean in good condition and repair are to be found in clauses 6.1.3, 7.2, 7.3.1 and 7.3.3 of the lease. 22. Annexure C to Mr Rossington's affidavit is a list of the damage to the leased premises that was observed and recorded at the end of the lease when the applicants inspected the leased premises on 27 February 2015. The applicants claim the sum of $19,790.00 from the respondent for repairs and making good the leased premises. 23. Annexure D to Mr Rossington's affidavit is a quote dated 15 April 2015 in the sum of $19,790.00 for the cost of making good the damage referred to in Annexure C. In response to my questions the applicants satisfied me that each line item the quote relates to one or more items of damage referred to in annexure C. 24. I am satisfied on the basis of the applicants un-contradicted evidence that the damage to the leased premises as listed in annexure C was not fair wear and tear and was caused by the respondent in breach of clauses 6.1.3, 7.2, 7.3.1 and 7.3.3 of the lease. In particular I find that the respondent in breach of the lease failed to maintain the leased premises in its condition at the commencement date and actually damaged the premises. 25. I am satisfied that the quote dated 15 April 2015 in the sum of $19,790.00 is a reliable quote for the repair of damage caused by the respondent to the leased premises. 26. I will make an order in the applicants favour for $19,790.00 for repair of the leased premises arising out of the respondent's breach of the terms of the lease. Costs 27. The applicants have claimed the costs of the proceedings which they have established to my satisfaction are $4,576.80. 28. Section 60 of the Civil and Administrative Tribunal Act 2013 (the 'Act') states that: (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. Rule 38 of the Civil and Administrative Tribunal Rules states: (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000. 29. The amount claimed in these proceedings is $49,167.50. Accordingly I may award costs in the proceedings. 30. I will give the respondent 21 days to make written submissions on the question of costs. At the expiration of the 21 day period referred to I will consider the question of costs and make a determination on that issue. 1. An Amended Notice of Appeal filed 13 July 2015 did not in terms or in actuality identify a question of law. In the section headed "Orders Challenged on Appeal", the following appeared: 11A. Orders challenged on appeal: List below the orders that were made by the Tribunal that you want to have changed by the Appeal Panel (List orders on a separate sheet if space is not sufficient) 1. THAT the said Tribunal (D Goldstein Esq) had ruled on the 10th of June, 2015 in COM 15/08605 against the Appellant in COM 15/08605 and dismissed the Appellant's Applicant without due consideration of the facts of the case and further ruled against the Appellant in COM 15/32959 which was amalgamated by an earlier case by (K. Ross Esq) in COM 15/32959 together as related matter without the consent of the Appellant and that the Appellant has now suffered a substantial miscarriage of justice. 2. THAT the presentation of all evidence together with photographic evidence in a digital format (CD) should have been accepted by the Said Tribunal (D Goldstein Esq) on the 10th of June, 2015 in COM 15/08605 as material evidence and the Respondent (s), Cross-Petition Application in COM 15/32959 should not have been entertained as a stand alone case as both matters were related and arising from the same facts and situation and upon the dismissal of Appellant's Case in COM 15/08605 (D Goldstein Esq) rejected in principle all material evidence and only considered evidence of the Respondents which has cause a serious miscarriage of Justice against the Appellant in both COM 15/0806 and COM 15/32959 as evidence presented before the Honourable Court in COM 15/0806 could have provided material evidence in relation to the admissibility of the said matters according to Law, and a fair and a just decision could have obtained by the Tribunal. 3. THAT COM 15/08605/ COM 15/32959 are related matters and that the COM 15/32959 is a new and a Separate Tribunal Adjudication matter and the Appellant was only notified of it on the 2nd of June, 2015 for a hearing date of the 10th of June, 2015. 4. THAT the Appellant seeks that both matters in COM 15/08605 and COM 15/32959 be stayed until the final determination of this Appeal according to Law. 5. THAT the Order of the Honourable Tribunal in COM 15/08605 and COM 15/32959 on the 10th of June, 2015 (D Goldstein Esq) was not fair and equitable according to Law. 6. THAT the Order of the Honourable Tribunal in COM 15/08605 and COM 15/32959 on the 10th of June, 2015 (D Goldstein Esq) was against the weight of evidence and if the evidence of the Appellant in COM 15/08605 was not dismissed and considered in the final decision of the Tribunal a different decision would have obtained in COM 15/32959, and no miscarriage of law would have been permitted against the Appellant. 7. THAT the Appellant seeks leave to file this amended Notice of Appeal against the decision of Goldstein Esq on the 10th of June, 2015 in COM 15/08605 and Com 15/32959. 8. THAT the Appellant seeks an Urgent Stay of Proceedings against the Respondents in COM 15/32959 and COM 15/08605 and all Orders of the said Tribunal dated the 10th of June, 2015 to be vacated or Stayed until and unless the final determination of this Appeal before the Honourable Appeals Tribunal according to Law under Section 43(3) of the Act. 9. THAT the Appellant seeks an Interim or a Permanent Stay of Proceedings in COM 15/32959 and COM 15/08605 until and unless the final determination of the Internal Appeal is heard and determined according to Law. 10. THAT the Appellant seek that until the Stay of Proceedings is Ordered in COM 15/32959 and COM 15/08605 (Goldstein Esq dated the 10th of June, 2015), the Respondent (s) will enforce the Order of the said Court against the Appellant and as a result a serious miscarriage of Justice will be made against the Appellant. 1. Later in the document the Appellant sought leave to appeal on these grounds: Reasons why the NCAT Appeal Panel should grant leave to appeal against the decision/s 1. THAT the said Appellant seeks the Honourable Appeals Tribunal to determine matters on the Question of Law and the Appellant has a colour of right to Appeal to get a just and fair determination of the said Question of Law and it's Interpretation. 2. THAT the said amalgamation of the said matters filed by the Respondents in respect of COM 15/32959 and Appellants Application in COM 15/08605 / COM 15/08601 should be determined on the Question of Law and not procedure. 3. THAT the said separate new application filed by the Respondent (s) in COM 15/ 32959 should be determined by the Appeals Tribunal on the Question of Law and its wide application and implication bearing on the final determination of the Appellant (s) original case in COM 15/08605 and COM 15/08601. 4. THAT the admissibility of all evidence and photographic evidence in a digital format (ie CD) in COM 15/0805 is a Question of Law and should be interpreted whether admissible evidence for the final determination of the said matters in COM 15/32959 is material evidence and related with COM 15/08605 before the said Honourable Appeals Tribunal according to Law be heard. 5. THAT the Appellant should not be made to await Justice, and Fairness as the said Tribunal could not Interpret the amalgamation of the Respondent (s) new separate Application (COM 15/32959) and admission of legal representation in the said matters as an earlier Tribunal had ruled against legal representations according to Law (COM 15/08601. 6. THAT the said Judicial Review and the Interpretation as to the Amalgamation of Cross Applications and it's representation by Legal Representation is an Abuse of Tribunal Process after an earlier Tribunal had ruled against Legal Representation. 1. The only matter number quoted in the orders and reasons reproduced above was COM 15/32959 proceedings instituted by the respondents Mr and Mrs Rossington on or about 1 May 2015. There were other proceedings before the Tribunal namely COM 15/08601 commenced by Mr Hays against Mr and Mrs Rossington. 2. Both sets of proceedings were before the Tribunal (Senior Member Rosser) on 2 June 2006. The Tribunal refused an application by Mr Hays for an adjournment of the directions hearing and noted that the matters were listed for hearing at Muswellbrook on 10 June 2006. The Tribunal also noted that each party had the right to be represented at the hearing by a lawyer or agent and did not require leave. 3. The Tribunal on 2 June 2006 made other directions of a formal nature and ruled that the Tribunal would not accept evidence in digital form. 4. Mr Hays filed a Notice of Appeal in the Tribunal 9 June 2015 which included these paragraphs: 11A Orders challenged on appeal: List below the orders that were made by the Tribunal that you want to have changed by the Appeal Panel (List orders on a separate sheet if space is not sufficient) 1. THAT the said Tribunal (K Rosser Esq) had ruled on the 2nd of June, 2015 in COM 15/08601 and amalgamated COM 15/32959 together as related matter without consent of the Appellant and that the Appellant has now suffered a substantial miscarriage of Justice. 2. THAT the presentation of photographic evidence in a digital form (CD) should be acceptable by the Said Tribunal as material evidence and the Respondent (s) , could cross-exam the same for the purpose of admissibility in the Said Tribunal, according to Law. 3. THAT COM 15/08601/ COM 15/08605 are related matters and that the COM 15/32959 is a new and a Separate Tribunal Adjudication matter and should not be amalgamated but dealt with separately on it's own merits and weight of evidence. 4. THAT the Respondent (s) new Application in COM 15/32959 is an abuse of Tribunal Process and further Amalgamation is a breach of Order Tribunal ( K Ross Esq) dated 24th of April, 2015 in COM 15/08601), 5. THAT the Appellant now resides in Sydney, NSW and seeks to vacate the hearing date of 10th of June, 2015 in Muswellbrook and appoint Newcastle or Sydney as the appropriate Tribunal for the said hearing according to Law. 1. Also on 9 June 2006 Mr Hays sent a letter by electronic means to the Tribunal: The Divisional Registrar NCAT Newcastle (Muswellbrook Registry) NSW 2300 By Fax Notification Re: Notice of Appeal David Thomas Hays v Darryl Philip Rossington & Genevieve Doris Rossington COM 15/08605; 15/08601; 15/32959 Please find attached Notice of Appeal Filed at the Sydney Appeals Penal (sic) NCAT. Iam awaiting for an allocation of a Court Date before the said Appeals Penal (sic) to determine important questions of Law and issues in respect of the above listed matters for a hearing at the Muswellbrook Court tomorrow being 10th June, 2015. The above matters as mentioned above are COM 15/08605; 15/08601; 15/32959 and an Appeal has been duly filed herewith the said respective Appeals Penal (sic) in Sydney today. I will therefore not be appearing at the Muswellbrook Court tomorrow being the 10th of June, 2015 as the said Appeal Penal (sic) needs to be determined first before a final hearing could be conducted. The said Appeal will also determine both important Questions of Law and admission of vital evidence in a digital format ie CD. The Appeals Penal (sic) also needs to determine the amalgamation of COM 15/08605; 15/08601; and 15/32959 and the legal representation for the Respondents in these matters. Until the said Appeals Penal (sic) determines the said Appeal, together with the Stay of Proceedings, I therefore request the said Tribunal to adjourn the above listed matters on Notice until the direction and orders of the Appeals Tribunal. In the event, despite informing both the Muswellbrook Court and the Newcastle Court of the pending Appeal Application, and in the event the said Tribunal intends to proceed with the original application without due regard of the pending Appeals Penal Application, then I will have no option but to file for an urgent Appeal at the NSW Supreme Court for an Stay Order and apply to vacate any orders of this Tribunal as the said Tribunal did not respect an pending Application for an Appeal according to Law. I will not be in attendance as the said Appeal Application is yet to be heard and determined according to Law and once the said Appeals Penal (sic) determines the Appeal according to Law, then only the listed Tribunal matters should go ahead. Please feel free to contact me on mobile 0400132596 or email: davesdrycleaners@gmail.com if you seek any further information or clarification. Regards David Thomas Hays Applicant 1. It seems that Mr Hays did not notify Mr and Mrs Rossington of his intention not to appear at the hearing in Muswellbrook the following day. 2. In our opinion, Mr Hays had no legitimate reason for failing to appear and it is unsurprising that the matter proceeded in his absence: see s 36 of the Civil and Administrative Tribunal Act 2013 and Aon Risk Services Australia Ltd v Australian National Community (2009) 239 CLR 175. 3. At the hearing of the appeal Mr Rossington sought to agitate the underlying claims which had been brought in the Tribunal below. 4. In our opinion, the Appeal raises no discernible question of law. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right and noted at [11] that, in circumstances where appellants are not legally represented, it is apposite to approach the issue by looking at the grounds of appeal generally. The Appeal Panel considered the requirements for establishing an "error of law" giving rise to an appeal as of right. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred at [13] to the following as constituting errors of law: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law has been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account a relevant (mandatory) consideration. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision was so unreasonable that no reasonable decision-maker would have made it. 1. In our view, there is nothing in the appellant's Amended Notice of Appeal or written submissions, or in the oral submissions he made at the hearing of the appeal, which suggests that he has an arguable question of law. Having completed the section of the Amended Notice of Appeal and indicated that he was asking for leave, and to describe in detail how the decision was not fair and equitable, it is arguable that the appellant recognized that leave to appeal is necessary. In our view, the appellant requires leave of the Appeal Panel for his appeal to be heard. 2. For leave to appeal to be granted, an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application, an injustice which is reasonably clear, a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal went about its fact finding process in such an unorthodox manner that it produced an unfair result: Collins v Urban [2014] NSWCATAP 17. 3. In our view, there no reason to conclude that the result of the hearing was unjust or inequitable. It is plain from its reasons that the Tribunal carefully considered all the material before it including (so we were informed by Mr and Mrs Rossington) the material filed by Mr Hays. 4. In the circumstances, leave to appeal must be refused, and the appeal dismissed. We confirm the orders under appeal.