Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Thomas v Golde [2016] NSWCATAP 170 Hearing dates: 6 June 2016 Date of orders: 26 July 2016 Decision date: 26 July 2016 Jurisdiction: Appeal Panel Before: K P O'Connor, AM, ADCJ, Deputy President, Appeals Dr J Lucy, Senior Member Decision: Leave to appeal refused. Appeal dismissed. Catchwords: RESIDENTIAL TENANCIES – Statutory time bar on rental arrears application – Construction - Whether time may be extended under general Tribunal power – construction. Residential Tenancies Act 2010, s190(1); Residential Tenancies Regulation 2010, cl 22(9); Civil and Administrative Tribunal Act 2013, s 41. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act 2010 Residential Tenancies Regulation 2010 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Gallo v Dawson [1990] HCA 30 Category: Principal judgment Parties: Aaron Jason Thomas (Appellant) Ruby Golde (Respondent) Representation: In person (Appellant) K Flood, agent (Respondent) File Number(s): 16/15867 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Golde v Thomas [2016] NSWCATCD Date of Decision: 3 March 2016 Before: R Harris, General Member File Number(s): 15/56841 REASONS FOR DECISION 1. This is an appeal by a former tenant, Mr Thomas, against part of an order made against him by the Consumer and Commercial Division (CCD) of the Tribunal under the Residential Tenancies Act 2010 (the RT Act) in favour of his former landlord, Ms Golde. 2. The appeal was heard by telephone on the afternoon of 6 June 2016. It had originally been listed for the morning, and neither party appeared in person. We entered orders dismissing the appeal. We vacated those orders after being informed that the parties had arranged at the appeal directions hearing to participate by telephone (they were both located in the Coffs Harbour area), a matter that had not been noted on the listing directions. Mr Thomas represented himself. Ms Golde was represented by her agent, Ms Flood, who had already been granted leave to appear. We did not receive any detailed legal submissions from either party, or references to any relevant authorities. 3. The scope of the appeal is governed by the Civil and Administrative Tribunal Act 2013 (NCAT Act), s 80(2)(b). An appeal may be made in relation to any question of law, and, by leave, on other grounds. In the case of CCD appeals, the exercise of the leave discretion is the subject of a further provision, cl 12 of Sch 4 of the NCAT Act. As will emerge, the present appeal was confined to a question of law. Extension of Time to Appeal 1. In residential proceedings the notice of appeal must be lodged not more than 14 days from the day on which the appellant was notified of the decision or was given reasons for the decision (whichever is the later). 2. The 14 day time-limit contrasts with the usual 28 day rule for lodging appeals: Civil and Administrative Tribunal Rules 2014 (NCAT Rules), cl 25(4)(b) and (c), respectively. 3. In his notice of appeal lodged 30 March 2016, Mr Thomas sought leave to appeal out of time. He gave the following explanation: 'After receipt of written reasons. Easter break interference. A few days outside of the 14 day time limit with respect to the duration of these matters being determined and the amounts claimed should have little effect.' He did not add to this explanation at the appeal hearing. It will be seen from our reckoning of time, set out below, that he was not a few days outside the time limit as he thought, but only one day. 4. Our power to extend time is given by s 41 of the NCAT Act. The provision is set out later in these reasons, as it is connected to the substantive point of the appeal. The directions for the hearing of this appeal made on 19 April 2016 left this question to be determined by us at our hearing. 5. The decision under appeal was delivered orally on 18 December 2015. Mr Thomas requested written reasons. They were prepared, and are dated 3 March 2016. The running of time is therefore governed by the second alternative in cl 25(4)(b). 6. Mr Thomas completed the notice of appeal in hand-writing, signed it and dated it '30/03/2016'. It is stamped as received by the Newcastle Registry of the Tribunal on that date. Mr Thomas gave Friday 11 March 2016 as the date upon which he received notice of the decision. This statement is not disputed, and we accept it. Therefore the final date for filing the appeal became Saturday 26 March 2016, discounting from the reckoning of time for this purpose the day he was given notice of the decision: NCAT Rules, cl 6(2). The Registry was closed over the Easter period, from Friday 25 March 2016 to Monday 28 March 2016. The final day for lodging the appeal became Tuesday 29 March 2016: NCAT Rules, cl 6(4). The appeal was therefore one day out of time. 7. The principles upon which the Tribunal will extend time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]-[22]. As the Appeal Panel observed in that case (at [19] and [22]), citing Gallo v Dawson [1990] HCA 30 at [2], the discretion to extend time will ordinarily only 'be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.' 8. Mr Thomas's explanation as to why he had not strictly complied with the time limit, and ended up one day late, was not a strong one. For the reasons which follow we are not satisfied that Mr Thomas has suffered any practical injustice. We therefore refuse to grant leave. Background 1. On 7 August 2015 in matter no 15/37226 the Tribunal granted Ms Golde's application for termination of her residential tenancy agreement with Mr Thomas in respect of premises at Bonville because of failure to pay rent, to take effect not later than 21 August 2015. The Tribunal also required Mr Thomas to pay an occupation fee if he overstayed, fixed at $77.14 per day from 22 August until the date vacant possession was given to Ms Golde. There was also an order for the cost of removal of rubbish, being $540. 2. Ms Golde obtained possession of the property on 29 October 2015 after the sheriff executed a warrant for possession. 3. In the meantime Mr Thomas had appealed from the decision of the Tribunal, and the appeal was dealt with by an Appeal Panel on 8 October 2015. The orders for termination and payment of an occupation fee were affirmed: Thomas v Goldie (sic) [2015] NSWCATAP 243 (8 October 2015). The order for removal of rubbish was set aside, by consent. 4. The Tribunal's orders of 7 August 2015 did not include one for rent arrears. The Tribunal's jurisdiction to make orders includes an order for the payment of an amount of money (RT Act, s 187(1)(c)). The original application dated 9 June 2015 sought a termination order (RT Act, s 187(1)(i)) on the ground of rent arrears. The application asserted that Mr Thomas had been in arrears since 28 April 2015 under a lease that had commenced on 13 April 2015, and that as of 9 June 2015 he was in arrears by 15 days. It did not include a specific application for a rental arrears order. 5. As we understand the history of the matter as given at our hearing by Ms Flood, and not disputed by Mr Thomas, Ms Golde proposed to apply for a rental arrears order at the hearing on 7 August 2015, but it was not sought because of steps taken by Mr Thomas on that day. Mr Thomas presented Ms Flood with a cheque in the amount of $3,320 for rent due. The cheque was not met when presented on 11 August 2015 (see statement in Mr Thomas's present notice of appeal, and the evidence given by Ms Flood to the Tribunal on 18 December 2015, as recorded by the Tribunal in its written reasons for decision at para [4]). Decision under Appeal 1. Ms Flood, on Ms Golde's behalf, lodged a further application with the Tribunal on 14 October 2015, in which she sought a rental arrears order for the period 15 June 2015 to 21 August 2015, being $5,245.52 (matter no 15/56841). This appeal is from the order which resulted. At its hearing on 18 December 2016, the Tribunal also dealt with an application by Ms Golde for unpaid occupation fees for the period 22 August 2015 to 29 October 2015 ($5,322.66). The Tribunal heard evidence, and made the orders sought in the amounts sought. 2. Mr Thomas did not dispute his liability for the occupation fee, and does not dispute that now. The Appeal 1. Before the Tribunal below, Mr Thomas disputed Ms Golde's entitlement to rental arrears, relying on a legal argument. The Tribunal rejected Mr Thomas's submissions. He now challenges that ruling. He seeks an order setting aside the Tribunal's order to pay $5,245.52 in its entirety, or, in the alternative, to be required only to pay the amount agreed between the parties on 7 August, $3,320, plus the amount the subject of the order subsequently set aside, $540, i.e. total, $3,860. 2. Applications for orders in relation to breaches of residential tenancy agreements are subject to various time limits. Relevant to the present matter are s 190 of the RT Act and cl 22(9) of the Residential Tenancies Regulation 2010. They provide: Section 190 Applications relating to breaches of residential tenancy agreements (1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations. (2) An application may be made: (a) during or after the end of a residential tenancy agreement, and (b) whether or not a termination notice has been given or a termination order made. (3) A landlord's agent may make an application on behalf of a landlord. Clause 22 Times for making applications to Tribunal: ss 44 (2), 83 (2) (a), 98 (4), 115 (3), 125 (3), 134 (3), 141 (2), 175 (3) and 190 (1) of Act (9) For the purposes of section 190 (1) of the Act, the prescribed period for making an application for an order in relation to a breach of a residential tenancy agreement or proposed agreement is within 3 months after the applicant becomes aware of the breach. 1. The application sought rent arrears as from 15 June (not 14 June, as stated by the Tribunal in its reasons). For the application to embrace arrears going back to 15 June, cl 22(9) required the application to be lodged by 15 September. Instead it was lodged on 14 October 2015. The time-limit set by cl 22(9) of the Regulation pursuant to s 190(1) of the RT Act is expressed in absolute terms. 2. We will set out the Tribunal's account of Mr Thomas's argument, and its ruling: 5 ... The respondent disputed the claim in respect of the rent owing up until 21 August on the basis of remarks he claimed were made by the Appeal Panel at the appeal hearing which are not referred to in the Appeal Panel's written judgment. He had difficulty articulating the objection however the submission that was made was that the application was not made in the 30 day time limit. In this regard the Tribunal notes that the time limit for bringing proceedings for breach of agreement is 3 months pursuant to regulation 22(9) of the Residential Tenancy Regulation, that the application was lodged on 14 October 2015 in respect of rent arrears from 14 June and the obligation to pay rent is a continuing obligation. When asked to make a submission as to why time should not be extended the respondent made no submission. The Tribunal to the extent it was necessary extended the time in which to bring the application for rent arrears noting that the rent arrears were clearly raised in the application by the applicant for termination which had been the subject of the appeal and the history of the litigation between the parties and that the order for removal of rubbish on 7 August was in part an error by the Tribunal as it was intended to be for rent arrears and that a payment as made in August by cheque which was subsequently not met on presentation. 1. The Tribunal brought the period 15 June to 13 July within the scope of its final order by extending time in which to bring the rental arrears application, in effect by one month, i.e. an application that should have been lodged by 15 September 2015 for it to cover a period commencing 15 June was allowed to be lodged on 14 October 2015. While the Tribunal did not articulate the power on which it relied, we assume it was relying on the NCAT Act, s 41. Section 41 provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. The leave discretion given by s 41 appears in the practice and procedure part of the NCAT Act and in the division of that part headed 'Commencement of Proceedings'. The effect of s 41 is to give the Tribunal a power to extend any fixed period for the filing of any application. While the rule reflected in cl 22(9) is expressed as a fixed, absolute rule, the NCAT Act moderates its rigour. Nothing was brought to our attention that might found an argument, despite the strong words of s 41(1) – 'despite anything to the contrary under that legislation' - that provisions elsewhere in the RT legislation might oust s 41; that there were qualifying provisions elsewhere in the NCAT legislation; or the context and purpose of the legislation within which the primary rule appears should be read so as to oust s 41. 2. We consider that the Tribunal did, therefore, have the power to extend time. It exercised it in a judicial manner having regard to relevant considerations (as to which, see generally, Jackson v NSW Land and Housing Corporation, previously cited). 3. Accordingly, the Tribunal was entitled to make an order, as it did, for proven rental arrears covering the period from 15 June 2015 to 21 August 2015. 4. Had his cheque been honoured, Mr Thomas would, as we read the history of the matter, have been able to resolve the dispute in return for payment of the sum stated in the cheque, $3,320 and the further amount of $520, instead of the full amount due, $5,322.66. He claimed in his notice of appeal that the dishonour was unanticipated as he had expected to have funds in the account, from an approved personal loan, but they were credited two days too late. He expressed anger over steps taken by or behalf of Ms Golde raising the dishonour with the police. There is no evidence that he took any further steps to rectify the position. The Tribunal was entitled to make an order for the full amount, as it did. Order 1. Leave to appeal refused. Appeal 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: 26 July 2016