Auld v Shannon [2017] NSWCATCD 56

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Auld v Shannon [2017] NSWCATCD 56 Hearing dates: 11 July 2017 Date of orders: 11 July 2017 Decision date: 09 August 2017 Jurisdiction: Consumer and Commercial Division Before: S. Hennings, General Member Decision: On 11 July 2017 the following orders were made: 1. The application is dismissed because the application has been lodged out of time (Section 175(3) of the Residential Tenancies Act 2010).

2. Peter Shannon is removed as a respondent. Catchwords: Rental Bond Claim, Extension of time Legislation Cited: Residential Tenancies Act 2010 Civil and Administrative Tribunal Act 2013 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, Mesiha v Murrell [2017] NSWCATAP 1 Category: Principal judgment Parties: Stephen Auld (Applicant) June Shannon (Respondent) Representation: Applicant in person Peter Shannon for the respondent File Number(s): RT 17/27479 Publication restriction: Nil

REASONS FOR DECISION 1. The applicant tenant lodged this application seeking the return of his rental bond pursuant to Section 175 of the Residential Tenancies Act 2010. The respondent landlord was represented by her son Peter Shannon. There was no dispute that there had been a residential tenancy agreement between June Shannon and Stephen Auld at Boyd Street Austral NSW. Peter Shannon was not a landlord under the tenancy agreement and therefore he was removed as a party in the proceedings. 2. The tenant vacated the premises on or about 24 October 2016. The rental bond sum of $1,461.00 was paid out by Renting Services to the landlord's real estate agent on 23 November 2016. This claim was lodged with the Tribunal on 19 June 2016. Therefore the application was lodged more than 6 months after the rental bond was paid to the landlord. Pursuant to Section 175(3) of the Residential Tenancies Act 2010 and Clause 22(8) of the Residential Tenancies Regulation 2010 the claim was lodged out of time. 3. Pursuant to Section 41 of the Civil and Administrative Tribunal Act 2013 the tenant sought an extension of time for the application to be made in respect of seeking the return of his rental bond. The landlord opposed the extension of time being granted. The Tribunal had jurisdiction to determine the application. 4. Both parties attended the hearing and an attempt at conciliation to resolve the matter was unsuccessful. Both parties stated that they were ready and wanted to have the preliminary issue in respect of jurisdiction determined by the Tribunal. Both parties were given an opportunity to state their case. The Tribunal has reached this decision following due and careful consideration of the evidence presented, the submissions made by the parties at the hearing, the legislation and the case law. 5. The facts and reasons for the delay as they were presented by the tenant were that he had been in Thailand for the last 10 months waiting for his wife's visa to be approved before he could return to Australia. The tenant produced a copy of his passport and travel documents. The tenant stated that he tried to make contact with the Tribunal but it was costing too much from overseas. The tenant stated that his paperwork was all in Australia and he couldn't lodge his application with the Tribunal online as he didn't have his paperwork. The tenant stated that he couldn't fly back to Australia until now as he couldn't afford it. The tenant submitted some of the email correspondence sent between the landlord's real estate agent and himself. 6. The tenant also produced a copy of the notice of bond claim dated 8 November 2016 issued to him by the Office of Fair Trading. The notice advised the tenant that the landlord was claiming the sum of $1,461.00 from the rental bond. The notice advised the tenant of his options which stated that if he disputed the claim he should within 14 days apply to the NSW Civil & Administrative Tribunal, it gave him the website details and information on how to lodge an application either in person, by post or online. The tenant submitted no other documentation. 7. The landlord sent in written material to the Tribunal. The landlord asked to be represented by her son. The landlord herself lives in Port Macquarie, being a considerable distance from the hearing venue in Liverpool. The landlord stated that she is 87 years of age and of frail health and it is not possible for her to travel to the hearing as it would be detrimental to her health to be directly involved in these contested proceedings. The Tribunal was satisfied that Peter Shannon could represent his mother in determining the issue of whether time should be extended for the application to be made. 8. The tenancy agreement had been managed by a local real estate agent for the landlord. The landlord's real estate agent had ceased managing the landlord's property since 21 March 2017. The landlord submitted some information from the real estate agent relevant to the dispute. There was an extensive trail of emails between the parties between October 2016 and January 2017. The documents revealed that the landlord's real estate agent conducted the outgoing property inspection report on 25 October 2016 and the next day advised the tenant in an email that the landlord would be claiming the rental bond due to the burnt section of the pergola out the back and the blockage of the sewer at the premises. 9. On 7 November 2016, there was an email exchange between the tenant and the landlord's real estate agent where the tenant clearly stated that he was disputing the claims and wanted his full bond returned. The landlord's real estate agent wrote that without an agreement they could not do that and would hold any funds received in their office. The landlord's real estate agent clearly suggested in the email to the tenant that if he was disputing the issues then he should contest the matter in the Tribunal. The tenant was advised that he should submit an application and lodge all relevant documents. The landlord's real estate agent wrote that if the tenant required any additional information, don't hesitate to contact them. 10. On 8 November 2016 there was a further email exchange between the parties in which the tenant stated that he wished to lodge an application and as requested the landlord's real estate informed the tenant that it could be done either with the NSW Civil & Administrative Tribunal or NSW Department of Fair Trading. On 9 November 2016 the landlord's real estate agent provided the tenant with the telephone number for the NSW Civil & Administrative Tribunal, the website details and information on how to lodge an application online. The tenant was advised that the matter would be listed in due course and the Tribunal would determine the final outcome. On 19 November 2016 the landlord's real estate agent supplied the tenant with an itemised list of the repairs for which they were seeking the rental bond. 11. On 24 & 30 December 2016 there was a further email exchange between the parties in which the items were again identified in detail and disputed. The landlord's real estate agent again informed the tenant that if he sought to dispute the matter, he must lodge an application with NCAT. Again on 25 January 2017, after trying to consult with the landlord on settling the issues in dispute, the landlord's real estate advised the tenant to take the matter to the Tribunal. The landlord's real estate advised the tenant that if he did not take the matter to the Tribunal, they would release the bond to the landlord. 12. The landlord's real estate agent received nothing further from the tenant and/or any Tribunal application lodgement notification. The landlord's real estate agent finally released the rental bond to the landlord from their trust account on 20 February 2017 and archived the file on 21 March 2017 when the landlord's managing agency agreement was terminated. 13. The landlord's real estate's documents were produced. These documents included the ingoing inspection property condition report, a periodic inspection property condition report, the outgoing inspection property condition report, various photographs and quotations. The Tribunal considered that these documents demonstrated that the landlord had a strong case in respect of the items for which the rental bond was claimed and paid out. 14. In the case of Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel examined and set out the law and principles to be considered in granting an extension of time. They stated at paragraph 18: Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings". 1. They went onto state at paragraph 21: Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. 1. In the case of Mesiha v Murrell [2017] NSWCATAP 1 the Appeal Panel also examined the law and principles and set out at paragraph 45 matters for the Tribunal to consider: From these cases can be derived the following principles to be applied in determining an application for extension of time in the Tribunal: 1. the just resolution of proceedings remains the paramount consideration; 2. what is a just resolution needs to be understood in the context of the purposes and objectives of the power granted to the Tribunal to resolve disputes and involves a weighing of all relevant matters; 3. speed and efficiency, in the sense of minimum delay and expense are seen as essential to the just resolution of proceedings; 4. a party should be afforded a reasonable opportunity to present its case; 5. there are limits to what is necessary in providing a reasonable opportunity to be heard, which may involve the consideration of delay and cost both to the other party and to the Tribunal; 6. the nature of the case and its importance to the party seeking an extension of time needs to be considered; 7. reasons for failure to comply will generally need to be provided and must be weighed against the effect any delay will have both on the other party and upon the Tribunal; 8. an award of costs may not always be adequate to deal with issues of prejudice, which include wasted time and strain imposed upon litigants; 9. there is no absolute entitlement to an extension of time, even if the consequence of the refusal effectively prevents a party from presenting relevant evidence in support of its case. 1. The Tribunal has the power to resolve disputes in respect of rental bonds. The legislation allows 6 months for any dispute in respect of rental bonds to be agitated before the Tribunal. The Tribunal's guiding principle is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In line with the case law above in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, the Tribunal is satisfied that time limits are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties and if required achieving finality in litigation. This allows parties a reasonable opportunity of time to bring a claim but also allows closure and the ability for parties to move on, if a claim is not brought within time. 2. It is clear from the evidence presented in the matter that the tenant was notified by both Renting Services and the landlord's real estate agent of the process for disputing the landlord's claim on the rental bond. From October 2016 to January 2017 the landlord's real estate agent on numerous occasions in email correspondence gave the tenant information in respect of taking the matter to the Tribunal to dispute the landlord's claims. This included all the contact details, and as relevant to this matter, the website details and information on how to lodge an application online. After receiving the rental bond on 23 November 2016, and giving the tenant every opportunity to take the matter to the Tribunal, the landlord's real estate agent did not release the rental bond from their trust account to the landlord until 20 February 2017. 3. The Tribunal found that the landlord's real estate agent was very professional and comprehensive in dealing with the matter and gave the tenant all the information and every opportunity to pursue the claim, if he intended to do so, through the appropriate process. The Tribunal was satisfied that if the tenant was overseas, then he was still clearly given information of the process and how to proceed through the internet. And the Tribunal has set in place processes, and routinely deals with applications, where a party is located overseas. The tenant produced no evidence in respect of it costing too much to engage with the Tribunal from overseas. 4. The tenant stated that his documents and paperwork were all in Australia and he couldn't lodge his application with the Tribunal online as he didn't have his paperwork. But the tenant has now lodged this application with little documents, and even though the tenant has returned to Australia, he has produced little paperwork in support of his position the matter. 5. The Tribunal considered the material that the tenant has lodged and his claim. The Tribunal found that the tenant was clearly given sufficient information which provided him with a reasonable opportunity to lodge and present this claim as currently submitted on line within the required time limit, but he failed to do so. Overall, the Tribunal did not accept that the tenant being overseas was a sufficient reason that prevented him from lodging his claim, and lodging his claim within time. 6. The Tribunal considered the real estate's documents that were produced. The Tribunal considered that these documents demonstrated that the landlord had a strong case in respect of the items for which the rental bond was claimed and paid out. The tenant produced little evidence, if any, to dispute the substantive issues in dispute, other than his own words. The Tribunal considered that the tenant had little corroborating evidence on which it could be considered that he had a reasonable case and/or prospects of success in the matter. 7. The Tribunal also considered whether the landlord would suffer prejudice if the extension of time was granted. 8. The landlord's real estate agent was responsible for managing the property during and after the tenancy and up until 21 March 2017. They were responsible and the author of most, if not all, of the landlord's documentation relevant to the matter. The Tribunal considered the nature of the proceedings and was satisfied that the real estate agent would have been the most appropriate person to conduct the landlord's case in respect of any dispute regarding tenant vacating charges and the rental bond. 9. The Tribunal was satisfied that the tenant had more than enough information and time to lodge his claim while the managing agency agreement was still in place. But now that the application has been lodged out of time, the landlord's local real estate is no longer engaged to manage the property and represent the landlord in the proceedings. And because the managing agency agreement has now ended, the Tribunal accepted that there is no obligation on the real estate agent to be present to give evidence, explain or be cross examined on the evidence at the hearing. 10. The Tribunal accepted that the landlord is elderly, of frail health and was more at arm's length in respect of managing the previous tenancy agreement between the parties. This clearly could put the landlord at a disadvantage or at least put her to inconvenience and cost in attempting to re-engage with the real estate agent to possibly attend the hearing. And there is no certainty that the real estate agent would be receptive to such an approach. The Tribunal was satisfied that this situation could have all been easily avoided if the tenant had lodged the claim soon after he vacated the premises, as suggested on numerous occasions to him by the landlord's real estate agent. 11. The Tribunal has been informed that the landlord herself lives in Port Macquarie, being a considerable distance from the hearing venue in Liverpool. The landlord is elderly and of frail health and it is not possible for her to travel to the hearing as it would be detrimental to her health to be directly involved in these contested proceedings. These factors do not appear to be in dispute. The Tribunal is satisfied that these factors would most likely prejudice her in being able to present her case effectively and be detrimental to her personally if the extension of time was granted. 12. Based on all the above factors, the Tribunal is satisfied that the landlord would suffer prejudice if the extension of time was granted. 13. Overall, in summary of the reasons as set out above, the Tribunal was not satisfied that there would be an injustice if the application to extend time was refused. The sum involved is $1,461.00. It was paid out by Renting Services to the landlord's real estate agent on 23 November 2016. That is some considerable time ago. The Tribunal was satisfied that the tenant was given more than sufficient information to make a claim within the time limit but he failed to do so. The Tribunal does not accept that the reasons given by the tenant for the delay were sufficient to prevent him from lodging online and within time. 14. Additionally, the Tribunal was satisfied that the landlord had a strong case in respect of the tenant vacating charges and the amount that her real estate agent claimed and received from the rental bond. The Tribunal was not satisfied that the tenant presented any evidence of substance reasonably capable of potentially disputing the landlord's substantive evidence. The Tribunal accepted that the landlord would suffer prejudice if the extension of time was granted. The Tribunal was not persuaded that time should be extended even if the consequence of the refusal effectively prevents the tenant from presenting evidence in support of his case. The Tribunal was not persuaded that to refuse the application for an extension of time would work an injustice. The application was dismissed.