Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pineiro and Kennett v Valenzuela [2016] NSWCATAP 269 Hearing dates: 24 August 2016 Date of orders: 21 December 2016 Decision date: 21 December 2016 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member L P Robberds QC, Senior Member Decision: Leave to appeal is refused. The appeal is dismissed. Catchwords: Appeal - Landlord and tenant – Residential Tenancies Act - 90 day termination notice – notice alleged to be retaliatory – order that residential tenancy agreement terminated – notice alleged not to be signed by agent – agent alleged not to exist – denial of procedural fairness based on how the Tribunal hearing was conducted – decision said to be unreasonable – application made to set aside the decision – evidence not before Appeal Panel as to what occurred at the Tribunal hearing Legislation Cited: Residential Tenancies Act 2010 (NSW) Interpretation Act 1987 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) Cases Cited: Mulyan Pty Ltd v Cowra Shire Council [1999] NSWLEC 212 Pomare v Minister for Immigration and Citizenship [2008] FCA 458 Texts Cited: Nil Category: Principal judgment Parties: Sergio Pineiro and Melanie Kennett (Appellants) Ernestine Valenzuela (Respondent) Representation: Solicitors: R.Killalea (Appellant M Kennett) S Pineiro (Appellant in person) J Hobbs (Agent for Respondent) File Number(s): AP 16/14076 Decision under appeal Court or tribunal: Civil and Administrative Tribunal New South Wales Jurisdiction: Consumer and Commercial Division Date of Decision: 29 February 2016 Before: S Daly General Member File Number(s): RT 15/63587 and RT 16/04708 REASONS FOR DECISION Background 1. On 29 January 2016 Ernestine Valenzuela (the landlord) filed in the Tribunal a tenancy application seeking a termination order after a 90 day notice. The termination date was stated to be 27 January 2016 and the reasons for requesting the order were stated to be that "the owner has requested vacant possession of her house. She is planning on putting the house on the market for sale and requires vacant possession to prepare the property for this." That application was given file number RT 16/04708. The respondents were Melanie Kennett and Sergio Pineiro (the tenants). 2. Subsequently the application was listed for hearing on 29 February 2016. There was also listed for hearing with that application, an application file number RT 15/63587, filed by the tenants, which alleged that the 90 day notice was invalid and was retaliatory. They sought declarations under ss 111 and 115 of the Residential Tenancies Act 2010 (the Act). Section 111 (2) enables the Tribunal to declare that a termination notice was or was not given in accordance with Part 5 of the Act. Section 115 (1) (a) enables the Tribunal to declare that a termination notice has no effect, If it is satisfied that a termination notice or application made by the landlord was a retaliatory notice or retaliatory application. 3. In 2015 the landlord took proceedings in the Tribunal but on 27 October 2015 the Tribunal ordered that the termination notice, the subject of those proceedings, was invalid because it did not provide for the 90 days notice. 4. The landlord then issued another termination notice on 27 October 2015 and on 26 November 2015 the tenants filed an application file number RT 15/63587, in the Tribunal, seeking declarations under ss 111 and 115 of the Act, in respect of the termination notice issued by the landlord on 27 October 2015. This notice was a 90 day notice and is the notice referred to in par 1 above. 5. It appears that on 5 January 2016 the Tribunal gave directions for the parties to file and serve the evidence upon which they relied. It appears that those directions were given in matter number RT 15/63587, but later treated by the parties and the Tribunal as applicable to the two applications which were heard together (15/63587 and 16/04708). 6. On 29 February 2016, the Tribunal made findings in those matters that the notice of termination was given in accordance with ss 82 and 85 of the Act. Section 82 sets out the formal requirements for a termination notice. Section 85 (3) provides that the Tribunal must on application of the landlord, make a termination order if it is satisfied that a termination notice was given in accordance with s 85 and the tenant had not vacated the premises as required by the notice. 7. After making the above findings, the Tribunal Member stated in her reasons that she needed to consider whether the notice was retaliatory. After a review of the evidence, the Tribunal Member made a finding that she was not satisfied that the notice was retaliatory. 8. The Tribunal made an order that the residential tenancy agreement was terminated immediately and possession was to be given to the landlord immediately. Other ancillary orders were also made. Notice of appeal 1. On 22 March 2016 the tenants filed a notice of appeal under s 80(1) of the Civil and Administrative Tribunal Act 2013 NSW. First ground of appeal 1. The first ground of appeal was that the notice of termination was not filled in by the landlord or the landlord's agent as the purported agent does not exist. It was said that the notice therefore did not comply with s 82 (2) of the Act and according to s 80 (2) of the Interpretation Act 1987 NSW, the notice had not been duly completed and was therefore invalid. Thus it was said that no termination notice had been given to the tenants by the landlord. Second ground of appeal 1. The second ground of appeal was that the Tribunal did not afford the tenants natural justice, procedural fairness nor did it ensure that they had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. Third ground of appeal 1. The third ground of appeal was that the decision was unreasonable because: 1. it was made against the weight of evidence; 2. the tenants were not able to complete providing their "oral evidence" because the Tribunal substantially shortened the time it had told the tenants on 5 January 2016 would be allocated for their hearing by at least half the time, and this was done without notice; 3. the question of law which they put forward was not considered; 4. the Tribunal allowed evidence of the landlord without leave and used this evidence against the tenants' case; 5. the Tribunal did not consider the tenants' relevant evidence and instead misconstrued, to their detriment, some of the evidence the tenants provided; 6. had the tenants known of the statutory declaration of 29 February 2016 and other items which the tenants said "were sneaked in evidence", they would have caused the landlord to request leave from the Tribunal to admit the statutory declaration as evidence. The tenants would have opposed it and failing that would have requested the author and persons referred to in the statutory declaration, and other documents, and all of the pages in other documents, be summoned and cross examined. Fourth ground of appeal 1. In this ground the tenants stated (see par 4 on page 6 of the Notice of Appeal) that they put on an application to set aside the decision under s 53 (4) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) on the basis that an irregularity existed as stated in s 53 (3) because s 38 (2), s 38 (5) (c) and clause 10 of Sch 6 (sic) of that Act had not been complied with "(as above mentioned in paragraph 2)". We assume that the tenants intended to refer to clause 10 of Sch 4 of that Act. It was said that the Tribunal Member who heard the application misconstrued it as if it had been made under clause 9 of the Civil and Administrative Tribunal Regulation 2013, which it was not. Leave to appeal 1. The tenants sought leave to appeal in respect of numerous matters. For present purposes those matters can be briefly summarised as follows: 1. The decision was not fair and equitable. 2. The rules of natural justice were not observed. 3. The tenants sought to rely upon additional evidence. 1. Many of the complaints made in that part of the notice of appeal which dealt with leave to appeal, related to what occurred during the hearing before the Tribunal Member. One of those complaints was that a statutory declaration signed on 29 February 2016, was provided to the Tribunal Member by the landlord's agent during the hearing and that this was provided to the Tribunal Member "on the day disguised as 'Hearing Notes'". It was alleged that this statutory declaration was wrongly used by the Tribunal Member to determine an issue against the tenants. Reply to appeal 1. The reply to appeal supported the original orders made by the Tribunal and attached an eleven paragraph annexure. 2. Paragraph 8 of that annexure stated: "In response item 3: (VI ) Statutory Declaration dated 29th March (sic) 2016 formed part of our case RT 16/04708 which was not a response to his case, this was supplied in duplicate to the tenant and the member before the hearing commenced." The Appeal Panel concludes that it was intended to refer to the statutory declaration dated 29 February 2016. 3. That paragraph appears to be a response to the following statement made on the third page attached to the notice of appeal: "(VI) had we known of the Stat Dec of 29 February 2016 and other items we say were sneaked in evidence, we would have caused the other side to request Leave from the Tribunal to admit as evidence and opposed it, and failing that we would have requested the author and persons referred to in the Stat Dec, and other documents, and all of the pages in other documents, to be summonsed and cross examined." 4. For present purposes it is unnecessary for us to refer to the detail of the other ten paragraphs in the annexure to the landlord's reply to appeal. Directions and legal representation 1. On 31 March 2016 the Appeal Panel gave the following directions: The Appellant is to lodge with the Tribunal and provide to the Respondent by 7 April 2016: All the evidence provided to the Tribunal below on which it is intended to reply; Any fresh evidence on which it is intended to seek leave rely; The Appellant's written submissions in support of the appeal; and The sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is relied on. The Respondent is to lodge with the Tribunal and provide to the Appellant by 14 April 2016: All the evidence provided to the Tribunal below on which it is intended to rely; Any fresh evidence on which it is intended to seek leave rely; The Respondent written submissions in opposition to the appeal; and The Appellant to lodge with the Tribunal and provide to the Respondent any written submissions in reply by 21 April 2016. The Appeal is listed for HEARING on 29 April 2016 at 2.15pm for a half day. NOTE: Appeal is from decision made on 29 February 2016. 1. Written submissions of the landlord were forwarded to the Tribunal by letter from A M Rutty estate agents dated 13 April 2016. 2. On 29 April 2016 the tenants sought an adjournment of the hearing of the appeal. This was opposed by the landlord but granted by the Appeal Panel. 3. On 29 April 2016 the Appeal Panel gave further directions as follows: 1. Adjourned part heard for further hearing on a date to be fixed for half day. 2. Time to comply with order 1 made on 31 March 2016 is extended to 9 May 2016. 3. Time to comply with order 2 made on 31 March 2016 is extended to 19 May 2016. 4. Time to comply with order 3 made on 31 March 2016 is extended to 26 May 2016. 5. In complying with order 1, the Appellant is to: (a) Specify the orders sought on the appeal, in view of the fact that the warrant for possession has been extended. (b) Provide a transcript of any part of the original hearing by the Tribunal that the Appellant claims is relevant to the grounds of appeal. 6. The parties have leave to be legally represented. 7. The parties are to appear in person or by their representative in Sydney and not by telephone at the next hearing. 1. The tenants did not comply with the directions given on 31 March or 29 April 2016. 2. When the appeal hearing took place on 24 August 2016, Mr R Killalea, solicitor, represented Ms Kennett. Mr Pineiro appeared without representation. Application file number RT 16/13509 1. On 17 March 2016 the Tribunal received an application from the tenants to set aside the decisions made by the Tribunal on 29 February 2016 in the matters numbered RT 15/63587 and RT 16/04708. The tenants relied upon s 53 (4) of the NCAT Act in making that application. 2. On 21 March 2016 the Tribunal dismissed the application for two reasons: 1. It was not satisfied that the decision made on 29 February 2016 was made in the absence of the tenants and the application was not made in time. 2. The application pursuant to s 53 (4) of the NCAT Act was misconceived and there was no relevant s 53 irregularity. The submissions by the tenants properly related to a section 80 appeal. There was no procedure for an applicant to file a set aside under s 53. 1. When completing the notice of appeal, the tenants included in that part of the notice of appeal which required details of the decision that the tenants wanted set aside or varied, file number RT 16/13509, as well as the file numbers RT 15/63587 and RT 16/04708. Appeal on questions of law 1. The notice of appeal stated that there were 2 questions of law the subject of the appeal: s 82 (2) of the Act and s 53 (4) of the NCAT Act. First ground of appeal 1. Our understanding of the first ground of appeal is that the tenants claim that the notice to terminate the tenancy agreement was not filled in by the landlord nor by the landlord's agent and thus the notice did not comply with s 82 (2) of the Act. That subsection requires that the termination notice must be signed by the party giving the notice or the party's agent. The notice was filled in and signed by Ms Rachael Letham of "A M Rutty City". It is claimed by the tenants that A M Rutty City does not exist. 2. The bottom of page 1 of the notice to terminate tenancy agreement makes provision for the signature and name of the landlord/agent to be inserted. What was inserted in the notice was the signature of Rachael Letham and opposite the name of the landlord's agent: "Rachael Letham – AM Rutty City – on behalf of Mrs. E. VALENZUELA." 3. In par 13 of the Tribunal Member's reasons, she stated: "I accept the evidence of the agent that it received instructions from the landlord to issue a Section 90 notice. I find that this instruction was a continuing instruction in that it applied until it was revoked. This means that on 27 October 2015 when the Tribunal ordered that the September notice was invalid, even if the agent was not able to obtain further instructions from the landlord because he was overseas, the agent was able to issue a new notice in accordance with its continuing instructions." 4. The management agency agreement for the premises, signed by the landlord shows the name of the licensee as A M Rutty Pty Ltd and its rading name AM Rutty City. That agreement also records that the principal (who is shown as Ernestine Valenzuela) grants to the licensee exclusive letting and management rights as set out in the agreement. 5. In the space provided for the signature of the principal, there is a signature of "Ernestine A Valenzuela". In the space provided for the signature of the licensee, there is somebody's signature. 6. In our view this document proves that the landlord appointed A M Rutty Pty Ltd as its managing agent of the premises. 7. It is clear from the Tribunal Member's reasons for decision that part of the evidence before her included the managing agency agreement (par 14), a notice to terminate the tenancy (par 6) and a residential tenancy agreement (par 15). Further to the directions given by the Appeal Panel on 31 March 2016, on 13 April 2016 "A. M. RUTTY ESTATE AGENTS" wrote to the Tribunal attaching copies of those documents. Also attached was a copy of a statutory declaration dated 29 February 2016 and signed by Rachael Letham. 8. In his oral submissions to the Appeal Panel, Mr Pineiro submitted that the managing agent was A M Rutty Pty Ltd and it did not issue the notice to terminate the tenancy agreement. He submitted that the notice was (purportedly) issued by A M Rutty City and that that business name registration was cancelled in 1981. Attached to the grounds of appeal was a document extracted from ASIC's database on 17 March 2016. It showed that the business name "A. M. RUTTY CITY" had been cancelled on 22 October 1991. There was handwritten on this document, apparently by one of the tenants, "we wish to put this on as evidence (new)". If it be the fact that this business name was cancelled, that has no bearing on the outcome of the appeal. The landlord appointed A M Rutty Pty Ltd as the managing agent and it was to that company that the landlord gave instructions to gain vacant possession. The landlord appointed A M Rutty Pty Ltd as her managing agent. At the time she did so, A M Rutty Pty Ltd apparently traded as A M Rutty City. If subsequently it ceased to trade under that business name, it does not follow that A M Rutty Pty Ltd ceased to be the landlord's managing agent. That company remained the managing agent of the landlord. 9. It is not clear from the notice of appeal whether the tenants claim that the notice to terminate the tenancy agreement was invalid because there was no dot between the "A" and the "M" in the name A M Rutty City which appeared on the notice. The Appeal Panel is of the view that whether a dot appeared or did not appear in the name "A M Rutty City" would have no effect upon the validity of the notice to terminate the tenancy agreement. The residential tenancy agreement showed the landlord's agent as A. M. Rutty City. The Tribunal Member made a finding in par 16 of her reasons for decision that all of the correspondence in the tenants bundle of evidence referred to A. M Rutty City and that the tenants had been responding to the correspondence and accepting that it was from the managing agent. When one has regard to the appointment by the landlord of A M Rutty Pty Ltd as the landlord's licensee under the managing agency agreement, which was shown in that agreement as having a trading name of A M Rutty City, there can be no doubt that the entity which gave the notice to terminate the tenancy agreement was A M Rutty Pty Ltd and it would make no difference to that conclusion that a dot may or may not have appeared in the name. 10. We have mentioned above that the tenants have sought to lead further evidence on the appeal, namely an extract from ASIC's database made on 17 March 2016. Schedule 4 clause 12 (c) of the NCAT Act enables an Appeal Panel to grant leave under s 80 (2) (b) of that Act for an internal appeal against a Consumer and Commercial Division decision only if the Appeal Panel is satisfied that 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 readily available at the time the proceedings under appeal were being dealt with). 1. No submission has been made to us that the ASIC extract is significant new evidence which was not readily available. 2. Furthermore when the landlord lodged with the Tribunal her reply to appeal, she impliedly sought leave to rely upon an ASIC record of registration for the business name A M Rutty City which showed a renewal date of 23 March 2016 and a registration date of 23 March 1995. The landlord also impliedly sought leave to rely upon an ASIC record of registration for a business name A M RUTTY CITY which showed a next renewal date of 23 March 2016. That document showed that it was a record of registration issued by ASIC on 18 May 2013. The ASIC document sought to be relied upon by the tenants showed a printout date of 17 March 2016. 3. No submissions were made on behalf of the landlord as to why we should admit the document which her agent produced to the Appeal Panel nor as to why it was significant new evidence which was not readily available. 4. In the above circumstances the Appeal Panel does not admit into evidence the ASIC extract produced by the tenants nor the ASIC extract produced by the landlord. 5. For the above reasons the Appeal Panel dismisses the first ground of appeal. Second ground of appeal 1. In the notice of appeal it was said that what is set out in par 11 above, as the second ground of appeal, occurred because the Tribunal did not comply with ss 38 (2) and 38 (5) (c) of the NCAT Act and because the Tribunal did not use its powers under clause 10 of schedule 6 (sic) of that Act. It was said that the tenants could not put their case forward; they were told they had a couple of hours for the hearing and due to interruptions they were unable to go through at all or tell the Tribunal the point of law they were trying to make nor explain the two hundred pages of documents (which they apparently handed to the Tribunal Member), which without oral evidence were useless. 2. The notice of appeal went on to state that the Tribunal Member did not take into account relevant considerations "and in the absence of these she made decisions against us. Such evidence was: 1. Around 200 pages showing our actions enforcing our rights under the Tenancy Agreement and RT Act and threatening (landlord/agent) Tribunal action. This evidence of correspondence between Agent/Landlord and ourselves and Sergio's Statutory Declaration which we submitted to show Retaliatory Eviction wasn't considered …; 2. We submitted around 25 pages extracted from Australian Government to show that the purported trading name used in the Notice of Termination form doesn't exist; 3. The Member took into account irrelevant considerations and used them to make decisions against us. These were evidence that agent/landlord put on as evidence contrary to the Tribunal order of 5 Jan 2016, the previous hearing and they had no leave to admit this evidence, particularly: Stat Dec of 29th Feb 2016 which was NOT explicitly referred to nor mentioned at the hearing and we only became aware of its existence after the hearing, see further details on page 49 – 50 in our evidence attached; 4. Other evidence submitted on time but not as required by the Tribunal, one of these is their Agency Agreement that showed their requirement to fulfil Clause 3.1 which referred to issuing of notices and appearing at the Tribunal, which we would have opposed leave to admit had we had more time. The fact that the person who signed the notice had no authority to sign it was implied in our application form that commenced these proceedings." 1. We have assumed that the reference to section 10 of schedule 6 of the NCAT Act was meant to be a reference to clause 10 of schedule 4 of the NCAT Act. 2. We fail to see how it is said that the Tribunal did not comply with s 38 (2) of the Act. How the Tribunal was said not to have complied with s 38 (2) of the Act was not explained in the notice of appeal nor orally during the hearing before the Appeal Panel. 3. We fail to see how it is said that the Tribunal did not use its powers under clause 10 of schedule 4 of the Act. How the Tribunal was said not to have used its powers was not explained in the notice of appeal nor orally during the hearing before the Appeal Panel. 4. In order for the Appeal Panel to make a decision on the other complaints set out above in relation to the second ground of appeal, it would be necessary for the Appeal Panel to have provided to it by the parties the transcript or a sound recording of the proceedings which took place before the Tribunal Member. It would also be necessary for the Appeal Panel to have provided to it by the parties all of the documentary evidence tendered to the Tribunal by the parties. Directions were given on two separate occasions for the parties to lodge with the Tribunal all the evidence provided to the Tribunal below on which it was intended to rely; including any fresh evidence on which the parties sought leave to rely and the sound recording or transcript of the hearing at first instance, if what happened at the hearing was being relied on. The tenants did not comply with those directions. 5. At the hearing before the Appeal Panel on 24 August 2016, no application was made by the tenants to put evidence before the Appeal Panel as to what occurred at the hearing of the application on 29 February 2016. The importance of the evidence of what occurred at the hearing on 29 February 2016 is highlighted by the serious allegations made by the tenants in their notice of appeal (see par 12 (f) above. See also par 23 of the "History and Details of our Case" document which is part of the notice of appeal, where it is said that Ms Bradshawe who appeared for the landlord, "whispered to Sergio behind the microphone that the hearing notes were the same as their evidence, in fact they differed in the number of pages and most critically that a statutory declaration was included which had not been submitted as evidence upon which the Member relied." The hearing notes were tendered as evidence to the Tribunal Member by Ms Bradshawe. The Appeal Panel could only make a finding on these allegations if the relevant evidence concerning them was given to it. That would include evidence given by the witnesses involved. 6. In the annexure to the reply to appeal, it was stated: "In response to item 3: VI (6) Statutory Declaration dated 29th March 2016 formed part of our case RT 16/04708 which was not a response to his case, this was supplied in duplicate to the tenant and the Member before the hearing commenced. " The Appeal Panel has not accepted this statement into evidence before it. 7. The alleged failure of the Tribunal to comply with s 38 (5) (c) of the NCAT Act and the alleged breaches of natural justice and procedural fairness are based on events which occurred during the hearing and how the hearing before the Tribunal Member was conducted. It is not possible for the Appeal Panel to make findings on these issues in the absence of its being provided with evidence of what occurred during the hearing and in the absence of its being provided with documentary evidence tendered to the Tribunal which is relevant to these issues. It follows therefore that the tenants have failed to establish this second ground of appeal and it is dismissed. Third ground of appeal 1. As the Appeal Panel does not have the evidence that was placed before the Tribunal Member, we are unable to make any findings as to whether the decision was made against the weight of evidence. Furthermore because the evidence has not been provided to the Appeal Panel, we are unable to make a finding that we are satisfied that the tenants may have suffered a substantial miscarriage of justice because the decision of the Tribunal was against the weight of evidence (see schedule 4, clause 12 (1) (b) of the NCAT Act). The tenants must therefore fail on the ground set out in par 12 (a) above. 2. As the evidence before the Tribunal Member has not been provided to the Appeal Panel, we are unable to make any of the findings set out in par 12 (b), (d), (e) or (f) above. The tenants must therefore fail on the grounds set out in par 12 (b), (d), (e), and (f) above. 3. We have dealt above (see pars 30 – 44) with the question of law which has been stated in the first ground of appeal (see par 10 above). The tenants must therefore fail on the ground stated in par 12 (c) above. Fourth ground of appeal 1. On 17 March 2016, the Tribunal received an application from the tenants to set aside the decisions made on 29 February 2016. The application comprised 3 pages and was signed on the third page by the tenants and dated by them 17.3.16. In the application the tenants stated that they relied upon s 53 (4) of the NCAT Act. On 21 March the Tribunal dismissed the application. Two reasons were given for the dismissal: 1. The Tribunal was not satisfied that the decision made on 29 February was made in the absence of the applicant and the application was not made in time. 2. The application pursuant to s 53 (4) was misconceived and there was no relevant s 53 irregularity. The submissions by the applicants properly related to a section 80 appeal. There was no procedure for an applicant to file a set aside under s 53. 1. It appears that the first reason given by the Tribunal was based on clause 9 (b) of the Civil and Administrative Tribunal Regulation 2013. If it was, then that reason was not based on s 53 (4) of the NCAT Act. 2. Section 53 (1) enables the Tribunal to make any amendments to any documents (for example an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. Section 53 (3) states that if a provision of that Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. Section 53 (4) provides that "The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings. 3. In our view neither s 53 (4) nor any other subsection of s 53, gives the Tribunal power to set aside the decisions made by the Tribunal on 29 February 2016. Section 53 is dealing with amendments and irregularities. The decisions made by the Tribunal on 29 February 2016 were not irregularities. They were the decisions intended to be made by the Tribunal after it had heard the cases propounded by each of the parties. To set aside those decisions would not be an amendment of the decisions. Section 53 does not enable an applicant to file an application to set aside decisions previously made by the Tribunal. The fourth ground of appeal is therefore dismissed. Other complaints 1. In attachment 1 to the s 53 (4) application, the tenants set out further details from the main points in their s 53 (4) application. It was said that the document was to be read in conjunction with Appendix 1 'History and Details of our Case, and what happened (conversations) at the hearings, as per CD Recordings (quoted herein)'. 2. A large part of attachment 1 sets out complaints made by the tenants concerning the manner in which the application was heard on 29 February 2016 and how the tenants were prejudiced by the way that the application was conducted. This included an allegation that the Tribunal Member did not take into account any of the 220 pages apparently tendered by the tenants. 3. Other parts of attachment 1 refer to: 1. Page numbers of documents apparently tendered by the tenants to the Tribunal. The documents are not attached to attachment 1. 2. Emails which the tenants apparently referred to in their oral evidence before the Tribunal Member. The emails are not attached to attachment 1. 3. The fact that the tenants had put in evidence in accordance with directions given on 5 January 2016. If this evidence was to be relied upon on the appeal, it should have been produced to the Appeal Panel but it was not. 4. The objections that the tenants would have taken had they seen a certain envelope and had they read a colour copy of a particular letter. 1. In order for the Appeal Panel to adjudicate on these complaints (and the statements referred to in pars 64 – 66 below), it would need either the transcript of the proceedings before the Tribunal Member or the sound recording of those proceedings and the documentary evidence tendered to the Tribunal Member. None of this was produced by the tenants (see par 50 above). 2. Furthermore the "History and Details of our Case" document contains statements which were not in evidence before the Appeal Panel. It included statements of how the tenants prepared their case which was heard on 29 February 2016. 3. The document contained the statement alleged to have been made to Mr Pineiro during the hearing, to the effect that everything in the hearing notes and copies of the same documents were already provided to Mr Pineiro. The document alleged that in fact the documents differed significantly and there was a statutory declaration "which was not admitted in evidence". These statements were not presented as evidence to the Appeal Panel. 4. The document included a statement of the understanding of the tenants that refuting new evidence and cross examination occurred after giving evidence. 5. No attempt was made by the tenants to tender any of this material to the Appeal Panel and it was not tendered. The Appeal Panel is therefore not in a position to make findings on this material. Not fair and equitable 1. As we understand it, the case sought to be made by the tenants is that the decisions were not fair and equitable because the tenants, so it is alleged, did not have sufficient time to put their case forward orally. They say that the Tribunal had not allocated the time it told the tenants it would allocate and they had prepared their case based on a couple of hours. 2. The notice of appeal alleges that the tenants were unable to present their evidence nor respond to evidence from the landlord, nor go through their (the tenants') submissions adequately, nor refute, question, assess or discuss the landlord's agents' evidence nor cross examine their evidence and the agent nor to cross examine (sic) evidence that was submitted after the date set out by the Tribunal nor to discuss all the relevant legislative references which the tenants provided and tried to provide. These matters were expanded upon in the notice of appeal and over the next three pages of the notice of appeal the tenants set out complaints which they make as to how the hearing was conducted by the Tribunal Member. The History and Details of our Case document and the four and a half pages attachment 1 document, also contain complaints as to how the hearing was conducted by the Tribunal Member. A one page document is attached to the notice of appeal and it sets out complaints in relation to the Tribunal Member's accepting into evidence a statutory declaration dated 29 February 2016 signed by Rachael Letham. One of the complaints is that the Tribunal Member should not have referred to the statutory declaration in order to make the orders of 29 February 2016 because the statutory declaration was not served in accordance with the directions for evidence given on 5 January 2016. 3. As we have mentioned in par 17 above the landlord's agent has stated that the statutory declaration was supplied in duplicate to the tenants and the Tribunal Member before the hearing commenced on 29 February 2016. That statement has not been accepted into evidence by the Appeal Panel but what it illustrates is that this dispute about the statutory declaration cannot be decided by the Appeal Panel without evidence being tendered to the Appeal Panel as to what occurred on 29 February 2016 before the Tribunal Member. 4. None of these matters were the subject of evidence which the tenants tendered or sought to tender to the Appeal Panel. 5. It is clear that for the Appeal Panel to adjudicate on these issues it would be necessary for the Appeal Panel to have tendered to it the evidence relied upon by the tenants, which would include the transcript of the evidence given to the Tribunal Member or the sound recording of that evidence. As this has not occurred, the Appeal Panel is unable to make any findings that decisions in matters RT 15/63587 or RT 16/040708 were not fair and equitable. The rules of natural justice were not observed 1. This issue has been dealt with above. The tenants sought to rely upon additional evidence 1. This has also been dealt with above. 2. It follows from the reasons set out above that the tenants have not shown a valid reason why leave to appeal should be granted to them and it is refused. Bias 1. In a document apparently attached to the tenants' s 53 (4) application, the tenants allege that there was bias from the Tribunal towards the landlord in giving advice to the landlord and allowing the landlord the privilege to rely upon evidence which was in breach of the Tribunal order of 5 January 2016. It was said that there was evident bias for the landlord in the conduct of the Tribunal and the outcome against the tenants. It was also said that there was bias against the tenants in that they were not able to respond to the landlord's evidence nor cross examine their evidence nor being made aware of the evidence that would be used against the tenants' case, hence the Tribunal's decision went skewed heavily not in the tenants' favour. 2. As the evidence before the Tribunal Member has not been tendered to the Appeal Panel we are unable to adjudicate on this allegation and if it is said to be a ground of appeal then it is dismissed. Authorities 1. In the document apparently attached to the s 53 (4) application, it was said that the Tribunal ignored the tenants' arguments and the legislative instruments that they put forth in relation to the validity of the notice to terminate the residential tenancy agreement not complying with the legislation. It was said that the tenants cited s 80 (2) of the Interpretation Act NSW, a case from the Land and Environment Court (which was Mulyan Pty Ltd v Cowra Shire Council [1999] NSW LEC 212 and a Federal Court of Australia case, which was Pomare v Minister for Immigration and Citizenship [2008] FCA 458). However it was unnecessary to refer to s 80 (2) of the Interpretation Act. If the termination notice was not signed by the landlord's agent, as required by s 82 (2) of the Act, then the termination notice would not have been valid. As far as we can see the Mulyan case is no more than an illustration of the application of s 80 (2) of the Interpretation Act. We have not had the benefit of any submissions as to the significance of the Pomare case. We note that at [35] Lindgren J said that he did not think that the clerical slip or error prevented a particular notice from satisfying a statute. The clerical slip or error was that a reference to "501" should have been to "500". Without the benefit of submissions we are unable to see how the Pomare case advances the case sought to be made on the appeal by the tenants. An oral submission 1. At the hearing of the appeal on 24 August 2016, Mr Killalea made a submission that there had been a breach of natural justice/procedural fairness. The submission was to the following effect. The statutory declaration of Ms Letham dated 29 February 2016 was taken into account by the Tribunal Member and should not have been. The statutory declaration was in a bundle of documents given to Mr Pineiro (by the landlord's agent) on 29 February 2016. He had a flick through the bundle and did not see the statutory declaration. It was given to him under an oral statement: "These are documents we have given to you before" but it was a new document which Mr Pineiro had not seen before. The statements in par 24 of the Tribunal Member's reasons: "The evidence for the landlord is that it wants to renovate and sell the property. It is for this reason it issued the notice", were based on the statutory declaration of Ms Letham. That evidence was used by the Tribunal Member to make the finding in par 24 of her reasons, namely "Based on the evidence before me I am not satisfied that the notice is retaliatory." When the Tribunal Member weighed up the two competing sets of evidence, the Member would "present" upon the evidence in par 22 because it had not been tested. The Tribunal Member may have concluded, if the landlord was cross examined, what is in par 22 may not have been the intention of the landlord. 2. The Appeal Panel could only make a finding on that submission (a) if it were given the transcript or sound recording of the hearing of 29 February 2016 (to see whether the statutory declaration was discussed during the hearing) and (b) if it received evidence from the tenants and the landlord's agents as to what transpired when the statutory declaration was handed to Mr Pineiro. As this has not occurred, the Appeal Panel rejects this oral submission made by Mr Killalea. Orders 1. The Appeal Panel makes the following orders: 1. Leave to appeal is refused. 2. The appeal is 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: 21 December 2016