Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Abdel-Messih v Lobo [2016] NSWCATAP 143 Hearing dates: 3 June 2016 Date of orders: 28 June 2016 Decision date: 28 June 2016 Jurisdiction: Appeal Panel Before: D Cowdroy ADCJ, Principal Member R Titterton, Senior Member Decision: Leave to appeal granted Appeal dismissed Catchwords: APPEAL from a decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 Evidence Act (1995) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Diago Lobo v Abdel-Messih [2016] NSWCATCD 14 R v The War Pensions Entitlement Appeals Tribunal; Ex parte Bott [1933] HCA 30 Texts Cited: Aronson and Groves, Judicial Review of Administrative Action (5th Ed) Category: Principal judgment Parties: Bishoy Abdel-Messih (Appellant) Natasha Diago Lobo (Respondent) File Number(s): AP 16/12859 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2016] NSWCATCD 14 Date of Decision: 24 February 2016 Before: K Rosser, Senior Member File Number(s): RT 15/60138 REASONS FOR DECISION 1. This is an application for leave to appeal from a decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal (the Tribunal) of 24 February 2016: Diago Lobo v Abdel-Messih [2016] NSWCATCD 14. 2. In that decision, the Tribunal ordered the present appellant to immediately pay the present respondent the sum of $3,000.00 (the Decision). 3. For the reasons that follow, the Appeal Panel grants the appellant leave to appeal, but dismisses the appeal. Background 1. The parties had entered into a written residential tenancy agreement dated 28 October 2015 (the agreement). The appellant, who was himself the tenant of the premises, was, with the agreement of his landlord, sub-letting one bedroom of the premises to the respondent. Relevantly, the agreement provided the bedroom was to be rented by the respondent at a fortnightly rent of $1,000.00. The term of the agreement was 6 months, "starting on" 1 November 2015. 2. The respondent attended the premises on 31 October 2015. She says that the appellant had, on or about 28 October 2015, agreed to allow her to move in on that day (ie 31 October 2015). This was disputed by the appellant. However, when she saw the bedroom, it was covered with clothes. She decided to "cancel" the agreement. She says that, at that time, the appellant agreed to return to her the bond of $2,000.00 and $1,000.00 being two weeks rent in advance which she had paid, following her confirming the termination of the agreement. This is disputed by the appellant. 3. The respondent filed application RT 15/60138 on 3 November 2015. She sought orders that the respondent: 1. Refund to her the bond of $2,000.00. 2. Refund to her the two weeks rent paid in advance of $1,000. 3. Pay her compensation of $3,000.00 for what she described as financial loss and emotional distress. 1. As the Tribunal noted, this last claim was abandoned on the first day of the hearing. The dispute to be determined by the Tribunal was whether or not the landlord was entitled to retain the bond and the rent paid in advance as a break lease fee under cl 41 of the agreement. Clause 41 provides: 41. The tenant agrees that, if the tenant ends the residential tenancy agreement before the end of the fixed term of the agreement, the tenant must pay a break fee of the following amount: 41.1 if the fixed term is for 3 years or less, 6 weeks rent if less than half of the term has expired or 4 weeks rent in any other case, or . . . This clause does not apply if the tenant terminates the residential tenancy agreement early for a reason that is permitted under the Residential Tenancies Act 2010. 1. The Tribunal found that the agreement ended by consent on the day on which it commenced, which it found to be 31 October 2015. Accordingly, it found that a break lease fee was not payable, and that the respondent was entitled to have the bond and the two weeks rent paid in advance returned to her. Notice of appeal 1. By Notice of Appeal dated 14 March 2016, the appellant sought leave to appeal from the Decision. In his grounds of appeal, in summary, the appellant stated that: 1. The respondent had been trying to emotionally manipulate the Tribunal. 2. There was no independent evidence of the "oral agreements". 3. The respondent's witnesses were her friends, and were highly unreliable. He stated that he was "appalled "that the tribunal would even consider the evidence. 4. The respondent changed her claim when she was informed by the Tribunal that if there was an agreement to cancel then she would not be charged a break fee. Following this, the respondent's focus changed and her evidence that there was an oral agreement was "ridiculous to believe and clearly fictitious". 5. When he questioned the witnesses during the hearing, one ("Samuel") repeatedly answered questions with the words "I do not remember", but he was apparently able to remember that the agreement was mutually terminated. 1. The appellant submitted in his grounds of appeal that another witness, "Joris" gave evidence that was "completely retarded and ridiculous behaviour to claim". 2. The appellant also submitted: Any reasonable person would not mutually agree to cancel and forfeit their advertising efforts and statutory rights for a break fee. The ONLY reason I asked her to write a "cancellation letter" is to show her clause 41 and convince her on the spot to move in. She attempted to write that I breached the agreement on that cancellation letter and that is why she is cancelling, which I found to be misleading. I told her to write another one, she wrote the same thing again so I just took them both. Her intentions of terminating could have been very easily shown through other methods… Such as the simple fact of her not moving in, or through a text message confirming she would not move in. I needed concrete evidence to show her that she either needs to move in or that evidence will be used against her for a break lease fee. She thought I was bluffing and that she had the right to do whatever she likes 1. The appellant asked the Appeal Panel to make the following orders: The application is dismissed. For providing false and misleading statements under section 71 of the Civil and Administrative Tribunal Act 2013, and contempt of [the] tribunal under section 73 of the Civil and Administrative Tribunal Act 2013, sections 199, 200 and 202 of the District Court Act 1973, Natash Diago Lobo, Samuel Prasanna Kymar Badampudi and Joris Frederic Jean Claude Ferre are each to pay 50 penalty units (and/or) imprisonment for 12 months as determined appropriate. Reply to appeal 1. The respondent filed a Reply to Appeal on 24 May 2016. She states that the Tribunal preferred her evidence to the evidence of the appellant. The respondent states that the Tribunal made its findings based on photographs, text messages, emails, signed statutory declarations from three witnesses, following cross examination of those witnesses and questioning by the member constituting the Tribunal. She also submitted that the appellant had provided a "fake" email from the real estate agent and an unexecuted statutory declarations which he himself had written on behalf of other flatmates. In this respect she relies on pars [27] to [36] of the Decision. 2. Attached to the Reply was a bundle of documents of approximately 45 pages. This includes some of the evidence before the Tribunal, including the three statutory declarations relied on by the respondent at the hearing, copies of various text messages between the parties, the two "cancellation letters" signed by the respondent on 31 October 2015, and a copy of the agreement. Directions hearing 1. A directions hearing was held on 5 April 2016. One of the directions made was that the appellant lodge with the Tribunal and provide to the respondent by 27 April 2016 all evidence provided to the Tribunal on which he intended to rely on the appeal, together with any fresh evidence on which he intended to seek leave to rely on, written submissions in support of his appeal, and a sound recording or transcript of the hearing before the Tribunal, if oral reasons were given and/or what happened at the hearing was being relied on. 2. The appellant did not comply with this direction. He sought an extension of time in which to comply with it, which application was refused by the Appeal Panel. Regardless of this, he filed a bundle of documents to the Appeal Panel on 27 May 2016. This bundle includes a six page statutory declaration providing his version of events (also including some submissions), a statutory declaration of Wade Mountford Swan sworn 30 May 2016, copies of text messages between him and the respondent, a copy of a document, purportedly signed by the respondent, undated and setting out her version of events and various other email correspondence. 3. In circumstances where the appellant failed to comply with the direction to file his materials, and an application for extension of time which the lodge his materials was refused, the Appeal Panel will have no regard to these materials, except where is appropriate to do so in the interests of justice. Leave to Appeal - Principles to be applied 1. The Civil and Administrative Tribunal Act 2013 (NCAT Act) sets out the basis upon which appeals from decisions of the Consumer and Commercial Division may arise. Section 80 states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). 2. We discern no error of law in the appellant's papers or in his oral submissions. Accordingly, the appellant requires the leave of the Appeal Panel for the appeal to proceed. Schedule 4, cl 12 of the NCAT Act provides that an Appeal Panel may grant leave only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable. 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel conducted a review of the relevant cases at [65] - [79] and concluded at [84]: The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant 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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. The appellant says that he has suffered a miscarriage of justice because the decision was not fair and equitable, because the decision was against the weight of the evidence, and because there is sufficient new evidence now available that was not reasonably available at the time of the hearing. 2. In relation to the decision not being fair and equitable, the appellant states in his Notice of Appeal: The [respondent] had decided to put me in an unfair situation by cancelling the very last minute and thus forcing me to abandon all my plans. She's been rewarded with a six weeks break fee back as if she was treated unfairly. Furthermore, the [respondent] had attempted to damage my reputation by saying I stole her bond. She labelled me a thief with my flatmates, building manager, strata manager, realty estate and owner himself. I would have explained to them all that she was lying if an equitable decision was made by the Tribunal, however they all now think of me as a thief. I find it completely unfair that I lose in every respect my statutory rights are ignored. 1. In relation to the decision being against the weight of the evidence, the appellant states that: I gave all evidence in the form of written statements and written agreements. The applicant mainly relied on fake "oral" agreements and perjury committed by her witnesses friends. She attempted to interpret text messages exchanged in a different light is supported by the perjury of her and her witnesses. Written and independent evidence should be given weight. Not "oral" my-word-against-yours agreements that are completely made up 1. In relation to significant new evidence now being available that was not reasonably available at the time of the hearing, the appellant states that: I will be applying for a summons/subpoena to order for CCTV footage to be released once appeal application submitted. 1. It might be thought that none of these matters raise issues warranting a grant of leave, given that these matters do not appear to raise issues of principle, questions of public importance, an injustice which is reasonably clear, a factual error that was unreasonably arrived at and clearly mistaken, or because the Tribunal has gone about its fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 2. Nevertheless, the Appeal Panel appreciates that the appellant is not represented, and a generous approach should be taken to understanding his submissions and arguments. In the circumstances, the Appeal Panel considers it appropriate to grant the appellant leave to appeal. 3. The Appeal Panel asked the appellant to identify what he considered worthy errors made by the Tribunal. The Appeal Panel understood there to be six principal complaints. 1. First, that the Tribunal preferred the oral evidence of witnesses in preference to their written statements to determine the respondent's claim. 2. Secondly, that the Tribunal, impermissibly, amended the applicant's claim "once her written case had failed". 3. Thirdly, that the Tribunal improperly determined the matter based on an assessment of the credibility of the witnesses. 4. Fourthly, that the Tribunal inconsistently applied, or did not apply, the provisions of the Evidence Act 1995. 5. Fifthly, that Tribunal erred in finding that the agreement had been varied so as to commence on 31 October 2015. 6. Sixthly, that Tribunal erred in finding that the appellant agreed to return the bond and the rent paid in advance to him by the respondent in consideration for providing a "cancellation" letter on 31 October 2015. 1. We consider that the fifth and sixth complaints are the nub of the appellant's appeal. 2. We will consider each of these complaints in turn. Before doing so, the Appeal Panel notes that the Tribunal considered that the issues had to determine were as follows: 1. Was the tenancy agreement varied in that the agreed commencement date was 31 October 2015 rather than 1 November 2015? 2. Did the landlord agree to return the bond and the rent paid in advance to the tenant in consideration for her providing a "cancellation" letter? 3. What orders should be made? 1. The Appeal Panel observes that the Tribunal stated that in making its decision relied on: 1. The application and the material filed with it. 2. The documents filed by the parties prior to the hearing on 24 November 2015. 3. The oral evidence and submissions of the parties at the hearing on 24 November 2015. 4. The documents filed by the parties on 3 and 10 December 2015 respectively. 5. The submissions made by the parties at the hearing on 22 January 2015. 6. The evidence of the tenant's witnesses, Jeffrey Zarif, Samuel Badampudi and Joris Ferrere. 1. Certain documents filed by the respondent on 18 December 2015 were not considered by the Tribunal. The appellant objected to the documents being received. The Tribunal accepted the appellant's submission and refused leave for the respondent to rely on these documents. 2. The Tribunal noted that the parties gave "radically different evidence" concerning what happened on and in the period leading up to their confrontation on 31 October 2015. The Tribunal considered, in our view correctly, that therefore the credibility of each of the parties was central to a determination of the issues in dispute. 3. The Tribunal found that the evidence of the respondent, overall, to be more credible and persuasive than that of the appellant, and that her evidence was plausible, internally consistent, and supported by the evidence of her witnesses and documents. 4. The Tribunal found the appellant's evidence to be generally lacking credibility. There were two principal reasons for this. The first was that the appellant included three unexecuted statutory declarations, each in identical terms, in his documents, and, contrary to directions made, failed to make any of the deponents available for cross examination. This was in circumstances when one of those who had allegedly made a statutory declaration in support of the appellant, Mr Thomas Merlo, was in fact at the hearing to give evidence on behalf of the respondent. The Tribunal put to the appellant that given that Mr Merlo was present, he could call him as a witness, so that he could adopt what was set out in the unexecuted statutory declaration. The appellant declined to do so, even though the Tribunal put him on notice that a failure to call Mr Mark Merlo might lead it to make an adverse finding about the appellant's credibility: see [30] of the Decision. The Tribunal noted that the appellant conceded that he had personally written the unexecuted statutory declarations: see [31] of the Decision. The Tribunal found that the fact the appellant unexecuted statutory declarations from people who had declined to sign them raise serious concerns about his honesty and his integrity, and led the Tribunal to conclude that the appellant was prepared to mislead it: see [31]. The Tribunal found that the landlord's evidence should not be accepted unless it was corroborated by independent evidence from a realisable source: see [31]. 5. The second reason that the Tribunal found adversely affected the appellant's overall credibility concerned an email the appellant included in his documents. This was an email dated 13 November 2015 which purported to be from Mr Carlos Gonzalez, the agent who managed the premises on behalf of its owner. However, the respondent relied on a statutory declaration dated 1 December 2015 sworn by Mr Jeffrey Zarif. Mr Zariff stated that Mr Gonzales had told him he was on leave on 13 November 2015 and did not send the email to the appellant. Mr Zarif said that Mr Gonzales confirmed that the email was a "fake". 6. The Tribunal refused an application by the appellant to exclude Mr Zarif's evidence "because he was giving evidence about something someone else said: Decision at [35]. The Tribunal refused to do so, given that the rules of evidence did not apply in Tribunal proceedings: s 38(2) of the NCAT Act. 7. Mr Zarif was cross-examined by the appellant in respect of his declaration. Mr Zarif's evidence did not alter, and the Tribunal found it was consistent with evidence given by the respondent. In the circumstances, the Tribunal was satisfied that weight could be placed on Mr Zarif's evidence, and was not satisfied that the email purportedly sent from the managing agent was in fact sent by him. The Tribunal found that Mr Zarif's evidence went to the overall lack of credibility of the appellant's evidence: see [36]. 8. Having made those observations, the Appeal Panel now turns to consider each of the appellant's criticisms of the reasons for decision of the Tribunal. Oral evidence preferred over written evidence / credibility of witnesses 1. These two matters can be considered together. 2. We have set out above why the Tribunal considered it was appropriate, and in our view necessary, to make findings of credit in respect of both the appellant and the respondent. The Tribunal did so because of the "radically different evidence" provided in the written statements provided to the Tribunal by each party. The traditional method in which reason testimony is tested in a court or tribunal is by cross-examination. Following this the presiding officer is able to assess the credibility of the witnesses before them. This the Tribunal did. The Appeal Panel discerns nothing irregular or unorthodox in the manner in which the Tribunal approached its task. Indeed, it appears to be an entirely appropriate approach to determining the issues of the Tribunal had to decide. 3. The Appeal Panel sees no error in the way in which the Tribunal made its findings following its assessment of the oral evidence it heard and the written evidence relied on. Amendment of claim 1. The appellant claimed that the Tribunal had impermissibly amended the respondent's application of 3 November 2015. This argument was based on the Tribunal not considering the respondent's claim for compensation for financial loss and emotional distress, and only determining the claim for the return of the bond and the rent paid in advance. The appellant submitted that the Tribunal had failed to give notice to him pursuant to s 53 of the NCAT Act that it proposed to amend the application. 2. The submission is misconceived. The Tribunal did not amend the response application, nor did it purport to do so. As the Decision makes clear at par [1], the application for orders for compensation was abandoned on the first of the hearing on 24 November 2015. 3. Accordingly, the Appeal Panel discerns no error by the Tribunal in this respect. The Tribunal inconsistently applied, or failed to apply, the Evidence Act 1995 (NSW). 1. This submission is also misconceived. As we understood the appellant, the inconsistency advanced by the appellant was as follows. On the one hand, the Tribunal refuse to exclude the evidence of Mr Zarif, on the basis that the rules of evidence did not apply in the Tribunal: par [34]. On the other hand, the Tribunal applied the principles of the Evidence Act in that it proceeded to determine the credibility of the witnesses, including himself. 2. With respect to the appellant, this submission is difficult to understand. It proceeds on a misconception that assessment of credibility of witnesses involves an application of the provisions of the Evidence Act. That is not correct. As indicated above, the assessment of a witness' credit, following testing by cross examination, is part and parcel of the court/tribunal process and occurs in courts and tribunal every day, regardless of whether or not the rules of evidence apply. In this regard, we note that Evatt J, in R v The War Pensions Entitlement Appeals Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228., in discussing a jurisdiction which was not bound by the rules of evidence, stated at 256: But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice." 1. Further, as observed by Aronson and Groves in Judicial Review of Administrative Action (5th Ed) at 581: Provisions which free a tribunal or other body from the rules of evidence are best regarded as facultative. They are intended to provide procedural flexibility but not to displace logic or reasons. A decision-maker freed from the rules of evidence must therefore still consider the whether the material it can consider should in fact be considered. The litmus test is usually whether the material is rationally probative. It follows that provisions which free tribunals from the rules of evidence do not allow decision-makers to "draw inferences or jump to conclusions, which the available material did not adequately support". 1. In the circumstances, we do not consider that the Tribunal erred in its application or non-application of the Evidence Act to the proceedings before it Variation of agreement 1. The fifth error advanced by the appellant claimed that the Tribunal improperly found that the agreement had been varied so as to commence on 31 October 2015. 2. We consider that the findings made by the Tribunal were open to it. Indeed, having reviewed the evidence that was provided to the Appeal Panel, we consider that the Tribunal was entirely justified in reaching that conclusion. 3. The respondent informed the Appeal Panel that she had a discussion on 28 October 2015 with the appellant in which he agreed that she could move in on 31 October 2015. This appears to have been referred to by the Tribunal in par [6] of its reasons where it notes that the respondent claimed that "prior to 31 October, the appellant agreed that she could move in on 31 October instead of 1 November". The Tribunal made no finding that such a discussion took place. 4. However, in our view, the Tribunal's understanding is supported by the evidence now before the Appeal Panel. The material provided to the Appeal Panel by the appellant on 27 May 2015 includes text messages which support the variation of the agreement by amending the start date from 1 November 2015 to 31 October 2015. 5. There had been an exchange of text messages between the parties on 31 October 2015. The respondent provided only a few of the text messages to the Appeal Panel pursuant to directions. The appellant provided other text messages, but not in compliance with the directions. As both parties referred to the passing of text messages between them, and it is evident some (possibly all) of the text messages were before the Tribunal, the Appeal Panel considers it appropriate now to take into account the relevant parts of the text message chain which was before it at the hearing of the appeal. Those text messages provide as follows: Thursday 29 October 2015 Respondent: Morning Bi. Have you sent me the receipts yet. I will start moving my stuff from sat afternoon [ie 31 October 2015] by 3 pm. [09:04] Appellant: Yep. [09:04] Saturday 31 October 2015 Appellant: Good morning Natasha, I'm thinking of extending for another week. I reckon it would make my life easier and u get the most out of your prepaid rent. [08:17] Respondent: Hi Bi, I have nowhere to go. All my flatmates found new places and moved out so the owner is giving up the flat today. I'm all packed and ready to leave. Please don't give me thus [sic] last min jolt [L emoticon] Appellant: Really? I thought you paid until the 12th or something? Is he at least giving you the rent back? [08:23am] Respondent: He will adjust it with the bills and consider returning the rest. He is still thinking about it. He will be leaving for his home country tomorrow so he will let me know this evening. He does not live with us so he has to give up the flat today. [08:27am] Appellant: Be careful as I've heard of people returning to their home country with the bonds [08:29am] Respondent: Yes. I will chase him once I've moved in today. I've lived here for over nine months and I have a good relation with him. So hopefully he will return my bond. [08:31am] Appellant: So you want to move your luggage today and move in tomorrow? [08:47am] Respondent: Everything happened so quickly with the flatmates here that they all moved out. I'm the only one left. So I need to move in by today only as the keys have to be given back today to the real estate guys. Will start with moving the luggage at 12:30pm coz I have to chase my landlord for the bond n ensure he returns it today itself. It's going to be a headache. [08:51am] Appellant: Guess I'll be sleeping on the couch tonight. OK. [08:55am] Respondent: Don't mean to put you in any inconvenience but this is just beyond my control. Thank you for your understanding. I will see you at the lift at 12:30 PM. Appreciate it. [08:59am] (emphasis added) 1. The Tribunal found that the combination of Mr Ferrere's evidence (who stated that the appellant told him that the tenant would move into the premises on 31 October 2015: see par [39]), the tenant's evidence) and the text messages caused it to consider that it was more likely than not that the commencement date of the agreement was varied from 1 November 2015 to 31 October 2015. 2. The Appeal Panel agrees. We consider that the text messages of 8:31AM, 8:47AM, 08:51AM and 08:59AM, establish that by 08:55AM the appellant had agreed to allow the respondent to move in on 31 October 2015, and thus for the agreement to commence on that day. In particular, we note that at 08:47AM the appellant asked the respondent "So you want to move your luggage today and move in tomorrow?" (ie 1 November 2015), but the respondent replied "I need to move in by today" (ie 31 October 2015). In response to this the appellant stated "Guess I'll be sleeping on the couch tonight. OK". (Again, emphasis added). 3. Given that evidence, the Appeal Panel does not discern any error in the Tribunal finding that the parties agreed that the commencement date of the agreement was to be varied from 1 November 2015 to 31 October 2015. 4. But there is an additional reason why the Appeal Panel accepts that the Tribunal did not err in finding that the parties agreed to vary the commencement date of the agreement to 31 October 2015. That afternoon, the parties had a confrontation (Decision at [11]) when the respondent discovered the bedroom she was to rent was not ready for occupation. In this respect, the Tribunal notes p 28 of the respondent's materials shows an unmade bed with clothes and bed coverings on it, various parcels, packages, clothes, and bags on the floor, and was in a condition that was described by the Tribunal at [10] as "a mess". Following this confrontation, there were two letters signed by the respondent at the appellant's request that afternoon. The first was in the following terms: I would like to cancel the lease agreement for the property listed at XXXXX. The reason for my cancellation is the room which I'm supposed to move [into] was not available as of 1 November 2015 as agreed and also the condition of the room is not as it is supposed to be at the time of inspection and is not in good condition. Key not provided. Since I'm not able to move in tomorrow 1st Nov. I would like to cancel this lease immediately. Please refund AUD 3100 paid as four weeks bond, two week rent advance and deposit for the swipe key (emphasis added) 1. The appellant considered that the contents of this letter were inappropriate and persuaded the respondent to write another one. The second letter was in the following terms: This is a request to cancel the lease agreement for bedroom one at XXXXXX The reason for cancelling the lease is because the room is not in the condition as it was during the time of inspection. The condition of the room was not as agreed. It is not in good condition. There are scratches in the room/bathroom door. I was promised that the swipe key will be provided but have not received it yet. I had already paid a deposit for the key. I request you to please return my bond and rent advance and key deposit. Total of AUD 3100 in cash and cancel this agreement. 1. It is to be noted that the first letter refers in two places to the tenant moving in (and therefore the agreement commencing) on 1 November 2015. By way of contrast, the second letter, written at the request of the appellant, removes all reference to the agreement commencing on 1 November 2015. 2. In the circumstances, the Appeal Panel is comfortably satisfied that the parties agreed to vary the commencement date of the agreement to 31 October 2015. Was there an agreement by the appellant to return the bond and rent paid in advance? 1. The next issue identified by the appellant as being an error is the Tribunal's finding that he agreed to return the bond and rent paid in advance by the respondent to her. The Tribunal stated at [52] that: There is a radical difference between the parties in relation to whether the landlord agreed that he would refund the bond and the rent paid in advance if she gave him a "cancellation" letter. The tenant claims that this was the reason she wrote the letter. She states that she wrote two versions of the letter, with the second version being written after the landlord rejected the first version. (Both versions of the letter are included in the documents filed by the tenant prior to the first hearing). The landlord claims that the cancellation letter was requested to encourage the tenant to proceed with the tenancy. 1. The Tribunal preferred the respondent's evidence to that of the appellant for four reasons. 1. First, because the appellant's evidence should not be relied on unless independently corroborated. 2. Secondly, because a witness, Mr Samuel Badampudi, who provided a statutory declaration, stated that the respondent only wrote the cancellation letter because he agreed to return all her money. The Tribunal found that he "strongly maintained" this position on cross-examination, and rejected a submission by the appellant that it should not accept his evidence because he was a friend of the respondent. The Tribunal found Mr Badampudi to be a credible witness. 3. Thirdly, because it was inherently implausible that the respondent would have written the cancellation letter (and particularly that she would have written two versions of the letter) if she had not been led to believe that she would get something in return, such as the refund of her bond and rent paid in advance. 1. The Appeal Panel considers that these three reasons have substance, and constitute sufficient reasons for the Tribunal to find that there was such an agreement. In particular, the Appeal Panel notes that the Tribunal found that Mr Badampudi supported the respondent's version of events. 2. The Appeal Panel notes that the Tribunal also found that there was a fourth reason why there was an agreement to return the bond and the rent paid in advance. This was that on 1 November 2015, that is the date after the confrontation, the respondent sent a text message to the appellant indicating that she wanted to move into the premises. The Tribunal accepted the respondent's explanation that she did this because the appellant had not returned her money. The Tribunal found that if the respondent's "cancellation" letter had been a unilateral decision to terminate the tenancy agreement, there would be no reason for the respondent to expect to be able to move into the premises on 1 November 2015. 3. The Appeal Panel does not find this fourth reason to be persuasive. However, the Appeal Panel does except that the other three reasons have substance, and that it was open to the Tribunal to make the finding that it did as to the existence of the agreement to return the bond and rent paid in advance. Conclusion 1. The Appeal Panel has carefully considered the appellant's written materials and his oral submissions. For the reasons given above, the Appeal Panel does not discern any error in the manner in which the Tribunal approached its task, or in the conclusion it reached. Not only were the Tribunal's findings clearly open to it, they are findings with which the Appeal Panel, having had the additional benefit of the submissions and evidence of each of the parties, agrees. 2. In concluding, we note that the appellant also submitted in his oral submissions that the Tribunal did not allow him to cross-examine the respondent at the hearing. As no transcript of the hearing had been provided (in accordance with directions) to support this submission, and as this matter had not been referred to in the Notice of Appeal, the Appeal Panel determined not to consider this submission. 3. In the circumstances, the appeal should be dismissed. Other 1. On 8 June 2016, after the conclusion of the hearing and the reasons for decision reserved, the Registry received from the appellant a bundle of further materials. The Appeal Panel did not grant leave to any party to file further submissions. The Appeal Panel does not know whether these materials have sent to the respondent. Accordingly, the Appeal Panel has paid no regard to those materials in its reasons for decision. As Mason J noted in Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 at [29]: The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions. 1. To similar effect, see Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 per McHugh J at [29] (with whom Gleeson CJ agreed): Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing - ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing. 1. For these reasons we have paid no regard to the submissions of the appellant provided to the Registry on 8 June 2016. Orders 1. The Appeal Panel orders that: 1. Leave to appeal be granted. 2. The appeal be 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 Amendments 05 July 2016 - Pursuant to section 63 of the Civil and Administrative Act 2013 orders published on 28 June 2016 are amended to read as follows: Cover page: Bishoy Par [13] unexecuted Par [35] 30 November 19 July 2016 - Par [35] 13 November 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: 19 July 2016