Hitchens v Bassett & Mulhall [2016] NSWCATAP 65

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hitchens v Bassett & Mulhall [2016] NSWCATAP 65 Hearing dates: 7 March 2016 Date of orders: 16 March 2016 Decision date: 16 March 2016 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member G Meadows, Senior Member Decision: (1)Appeal dismissed. (2)Respondent's application for money order dismissed. Catchwords: Appeal – claim for damages for breach of residential tenancy agreement – no appearance by appellant. Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Category: Principal judgment Parties: Cheryl Anne Hitchens (Appellant)

J Bassett and B & M Mulhall (Respondents) Representation: Ms Wilkins (Respondents) File Number(s): AP 15/62758 Decision under appeal Court or tribunal: Consumer and Commercial Division Jurisdiction: Consumer and Commercial Division Date of Decision: 13 November 2015 Before: W Priestley, Member File Number(s): RT 15/56745

REASONS FOR DECISION 1. The appellant's claim for compensation for breach of a residential tenancy agreement was dismissed by the Tribunal below. Her claim arose out of her occupancy of a unit in Kingscliff on the north coast of New South Wales. The appellant is no longer in occupation of that unit. 2. The appeal in this matter was fixed for hearing on 7 March 2016 at 2:15pm. 3. It was fixed for hearing on that date at a directions hearing on 3 December 2015. At that directions hearing the appellant appeared by telephone, as did Ms Wilkins on behalf of the respondents. It is clear, therefore, that the appellant was aware of the date for the hearing. The appeal file contains letters to the appellant setting out the directions made on 3 December 2015, including the date of hearing of the appeal of 7 March 2016. One of those letters is addressed to the appellant at an address provided by the appellant to the Tribunal at the directions hearing on 3 December 2015. 4. There was no appearance by the appellant at the hearing of the appeal. 5. The Notice of Appeal gave a mobile number for the appellant and the record of the directions hearing on 3 December 2015 refers to the same mobile number for her. At the hearing of the Appeal, the Appeal Panel telephoned that mobile number. A recorded message referred to the appellant and invited the caller to leave a message. The Appeal Panel left a message referring to the hearing of the appeal at that time and stating that if the Appeal Panel did not receive a call back from the appellant within 10 minutes it would proceed with the hearing of the appeal on the basis that the Appellant did not appear and pointing out that the Appeal Panel had power to dismiss the appeal in the absence of her appearance. 6. The Appeal Panel did not receive any return call from the appellant. 7. By leave of the Appeal Panel Ms Wilkins appeared by telephone on behalf of the respondents. Ms Wilkins is the Property Manager at Kingscliff Sales and Rentals. This firm are the managing agents of the rental property the subject of these proceedings. 8. We also note that the appellant did not comply with the directions of the Appeal Panel made on 3 December 2015 to lodge with the Tribunal her written submissions by 31 January 2016. 9. Under s 55(1)(c) of the Civil and Administrative Tribunal Act (NSW) 2013, the Tribunal has power to dismiss an appeal in circumstances where the appellant has failed to appear in the proceedings. 10. Given the circumstances we have referred to, the Appeal Panel decided to exercise that power to dismiss the appeal. 11. By submissions dated 15 February 2016, the respondents applied to recover from the appellant the sum of $1,024.86 as amounts due and owing pursuant to the tenancy agreement. Such an application was made following a direction of the Appeal Panel on 3 December 2015 indicating that the respondents may in their written submission make any application they may wish to make in respect of rent arrears and other costs owed to them by the appellant. 12. At the hearing of the appeal, Ms Wilkins stated that, in view of the dismissal of the appeal for want of appearance by the appellant, the respondents would withdraw this application for money said to be due under the tenancy agreement. 13. In the circumstances, pursuant to the power of the Tribunal under s 55(1)(a) the Appeal Panel ordered that such application be dismissed.