Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Raju v Sharma [2016] NSWCATAP 207 Hearing dates: 22 August 2016 Date of orders: 12 September 2016 Decision date: 12 September 2016 Jurisdiction: Appeal Panel Before: R Titterton, Senior Member D Fairlie, Senior Member Decision: (1) Leave to appeal refused (2) Appeal otherwise dismissed Catchwords: APPEAL from a decision of the Consumer and Trader Division of the Civil and Administrative Tribunal – refusal of the Tribunal to adjourn proceedings to allow evidence to be adduced at a later date – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Rahul Krishna Raju (Appellant) Sudesh Sharma (Respondent) Representation: Rahul Krishna Raju (Appellant in person) File Number(s): AP 16/28989 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 21 June 2016 Before: G Sarginson File Number(s): RT 16/14288, RT 16/26956 REASONS FOR DECISION Background 1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 21 June 2016 (the Decision). The Decision considered two applications. 2. The first application was the claim of the present appellant (the tenant) (RT 16/14288). In that application, the tenant sought orders that the Tribunal direct the present respondent (the landlord) to provide him with bank details for the payment of rent, not to park vehicles in the driveway of the premises, and a rent reduction on the basis that the landlord parked cars, utilities and a flat-bed truck in the driveway of the premises which prevented the tenant from using the driveway. These claims were dismissed. The tenant also claimed that, by reason of the actions of the landlord (namely working on his truck in the driveway, starting the truck early in the morning parking it late at night), he had suffered a significant loss of amenity of the premises. He quantified his claim as $2,028.00. The Tribunal allowed $500.00. This amount was offset against the rental arrears owing, and the amount of rental arrears ordered to be paid in application RT 16/14288 ($3,000.00), reflects that offset. While the Tribunal ordered compensation of $500.00, this was ordered in respect of the noise and fumes of his truck, not because it was parked at the premises: see par [34]. 3. The second application was the application of the landlord (RT 16/26956). The landlord sought termination of the residential tenancy agreement, possession of the premises and payment of rental arrears. The Tribunal dismissed the application for termination and possession, but ordered the present appellant (the tenant) to pay the landlord rental arrears in the sum of $3,000.00. Preliminary 1. We note one preliminary matter. Prior to the appeal hearing, the landlord sent a letter to the Registry indicating that he could not attend the appeal due to a Court commitment. Evidence of that commitment was provided. He asked that the appeal either be adjourned, or that the matter proceed in his absence. 2. The tenant submitted that the matter should proceed. The Appeal Panel agreed with this course. Directions 1. After the filing of the Notice of Appeal on 27 June 2016, on 5 July 2016 the Appeal Panel gave directions for the conduct of the appeal. Relevantly, the tenant was directed to lodge with the Tribunal and provide to the landlord by 35 July 2016 all the evidence provided to the Tribunal on which he intended to rely, any fresh evidence on which he intended to seek leave to rely, his written submissions in support of the appeal, and the sound recording or the transcript of the hearing before the Tribunal, if what happened at that hearing was being relied on in support of the appeal. 2. Similar directions were made in respect of the landlord. 3. Neither party complied with those directions. 4. We note that at the conclusion of the appeal hearing, the tenant asked the Appeal Panel if he could have the opportunity to obtain the sound recording of the hearing before the Tribunal, or a transcript of the hearing, such materials to be provided to the Appeal Panel at a later date. As the tenant had not complied with the directions of 27 June 2016, we refused him leave to do so. Notice of Appeal 1. By Notice of Appeal filed 27 June 2016, the tenant stated that he challenged the following orders of the Tribunal: 1. That rent to be paid to the [landlord] not in cash but into a nominated bank account as per the residential tenancy agreement dated 30th December 2015. 2. That the said Tribunal failed to properly direct itself in granting a money order in the sum of $3,000 when the [landlord's] claim was dismissed in RT 16/26956 as the landlord's claim for termination for non-payment of rent was dismissed on 14th June 2015. 3. That the said Tribunal member failed to adduce evidence of Dharmendra Dayaram who was a material witness to the signing of the residential tenancy agreement on the 30th December 2015. 1. The Notice of Appeal states the tenant's grounds of appeal as: 1. Miscarriage of justice as the landlord has tired [sic] to gain possession on Friday 17th of June 2016 with the assistance of Liverpool police falsely claiming that he had a court (Tribunal) order. 2. The respondent landlord acts to end the tenancy as a retaliatory action. 3. The Honourable Tribunal has failed to examine the testimony of Mr Dharmendra Dayaram who would have testified the execution and witnessing of the residential tenancy agreement on 30th December 20215 in RT 16/14288. 4. When dismissing the respondent landlord's application in case RT 16/26956, the learned Tribunal G Sarginson Esq has failed to apply the rules of natural justice in ordering a money order in the sum of $3000.00 against the applicant 1. The tenant states in the Notice of Appeal that the Appeal Panel should make the following orders: 1 That when dismissing the respondents claim in RT 16/26956 no money order should be made. 2 Evidence of Dharendar Dayaram, who is a material witness would have testified that the respondent landlord has amended, changed words after the fact that the said residential tenancy agreement dated 30th December 2015 and who had witnessed its execution. 3 That the landlord has breached the tenant's peace in parking, repairing this vehicle are in breach of the residential tenancy agreement dated 30th December 2015. 4 That the landlord provide a nominated bank account as per the residential tenancy agreement dated 30th December 2015. 1. At the hearing, the tenant confirmed that the only matters sought to be agitated on appeal were the failure of the Tribunal to adjourn the hearing to allow him to adduce the evidence of Mr Dayaram at a later date, and the amount of compensation that was ordered. The Appeal Panel understood the tenant to be submitting that the evidence of Mr Dayaram would persuade the Appeal Panel that the carport and garage did form part of the residential premises (contrary to the finding of the Tribunal), and that compensation should be given for breach of that term of the residential tenancy agreement. Nature of an appeal 1. We explained to the appellant, who was not represented that the Civil and Administrative Tribunal Act 2013 (NCAT Act) sets out the basis upon which internal appeals from decisions of the Consumer and Commercial Division may arise under s 80 of the Act. Appeals on questions of law may proceed as of right, appeals on other grounds may proceed with the leave of the Appeal Panel. 2. 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. Without expressing exhaustively possible questions of law, the Appeal Panel 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. We do not consider that the tenant has raised any error of law in his Notice Appeal or in his oral submissions. We consider that the decision said to have been made by the Tribunal (namely the refusal to grant an adjournment) was an interlocutory decision. We note that "interlocutory decision" is defined in s 4 of the NCAT Act as including "the granting of a stay or adjournment". Section 80(2)(a) of the NCAT provides that internal appeals in respect of interlocutory decisions require the leave of the Appeal Panel. 2. Accordingly, the tenant requires the leave of the Tribunal to proceed with his appeal. Leave to appeal 1. Schedule 4, cl 12 of the NCAT Act says 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; or 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 appellant has addressed each of these matters in his notice of appeal. In relation to each he refers to Mr Dayaram's evidence, and the Tribunal's decision not to allow it to be adduced at a later date. In his Notice of Appeal, the tenant states that: I had requested to the Honourable Tribunal to adduce the witness statement of Mr Dharmendra Dayaram at another date, on 14th June 2016, as the said witness was away in Fiji and was due to arrive on the 16th June, 2016, visiting his sick father. The Honourable Tribunal disregarded the material evidence of Mr Dharmendra Dayaram. 1. We note that the submission that the Tribunal disregarded Mr Dayaram's evidence is not correct. At that stage, that is at the hearing, there was no evidence of Mr Dayaram before the Tribunal. This is confirmed in the Notice of Appeal. In answer to the question, "Why was this evidence (including documents) not available at the time of the hearing?", the tenant states: The evidence of Dharmendra Daydream is submitted by way of an affidavit dated the 21st June 2015 [sic 2016] who is a material witness to the actual signing of the residential tenancy agreement dated the 30th December 2015. The appeal hearing 1. We asked the tenant to explain these matters. He said that at the hearing on 14 June 2016 he had asked the Tribunal to hear as much of his application as it could, and then to adjourn, so as to allow the evidence of Mr Dayaram to be adduced at a later time. The tenant said that he had not been able to obtain a statement from Mr Dayaram prior to the hearing, who had been overseas, and was still overseas at the time of the hearing. The tenant said that the Tribunal refused this application. 2. We note that there is no reference to such an application being made in the Decision. Nor has the tenant provided the sound recording, or a transcript of the hearing, as directed, if he wished to rely on it. Consideration 1. We will assume in favour of the tenant, despite his failure to file the sound recording or a transcript of the proceedings as directed, that he made the application for an adjournment as claimed. Although we do not know the reasons why the application was refused, we discern no error in the Tribunal's refusal to adjourn the proceedings and to allow Mr Dayaram's evidence to be tendered at a later date. We have reached that conclusion for the following reasons. 2. First, both applications had been set down for hearing some time previously. The tenant agreed that directions had been made for the filing of evidence for the Tribunal hearing. Indeed, he had provided a number of witness statements (which the Tribunal noted he had drafted). However, he did not file a statement of Mr Dayaram, who apparently had been unavailable. 3. Secondly, the tenant submitted that the significance of Mr Dayaram's evidence was that there was a second residential tenancy agreement with additional notations, those notations having been made by the landlord. This was referred to by the Tribunal in the Decision, when it found that it was not satisfied that the tenant had proved that use of the driveway and carport was a term of the residential tenancy agreement. The Tribunal stated at par [31] of the Decision: The Tribunal is not satisfied that the tenant has proven on the balance of probabilities that the use of the driveway and carport was a term of the residential tenancy agreement. As discussed above, each party relied on different versions of the residential tenancy agreement, with each party claiming the other party doctored their version of the document (ie changed it or added things to it) and each party denying that they had done so. However, on the version of the residential tenancy agreement that the tenant relied on, the section of the agreement that lists whether or not the agreement includes a garage, driveway or parking space is marked "N/A". This is consistent with the evidence of the landlord that the agreement did not include use of the driveway or the carport by the tenant. 1. However, the Tribunal based its decision on the residential tenancy agreement relied on by the tenant. In other words, given that the Tribunal had taken into account the tenant's version of the residential tenancy agreement, and not the one allegedly concocted by the landlord after the event, it was difficult to see what difference the adducing of Mr Dayaram's evidence, which relevantly went to the creation of the second residential tenancy agreement, would have made. 2. Thirdly, as the appeal hearing proceeded, it became clear that the tenant had misunderstood the terms of the residential tenancy agreement. He thought that the carport and garage formed part of the premises which he was renting, and that therefore he was entitled to compensation for the failure of the landlord to allow him to park in those areas. The Appeal Point pointed out to the tenant that the residential tenancy agreement on which he relied (Annexure A to the Notice of Appeal) made no reference to the residential premises including the carport or garage, and that the section of the residential tenancy agreement which provided for the inclusion of such areas had been completed with "N/A", that is, not applicable. The tenant told the Appeal Panel, on several occasions, if that was the case, he had misunderstood the terms of the residential tenancy agreement. Conclusion 1. We do not consider that the appeal raises any question of law. 2. For the reasons stated above, we discern no error in the Tribunal's refusal to adjourn the hearing and to allow the evidence to be tendered at a later date. In our view, leave to appeal should be refused, and the appeal otherwise dismissed. Orders 1. The Appeal Panel makes the following orders: 1. Leave to appeal refused. 2. Appeal 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: 12 September 2016