Wallace v Price [2017] NSWCATAP 212

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wallace v Price [2017] NSWCATAP 212 Hearing dates: 04 October 2017 Date of orders: 04 October 2017 Decision date: 04 October 2017 Jurisdiction: Appeal Panel Before: Gregory Burton SC, Senior Member Theresa Simon, Senior Member Decision: (1) Leave for extension of time to Appeal is denied.

(2) The Appeal is dismissed. Catchwords: RESIDENTIAL TENNANCY - Extension of time to make application, abandonment. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act 2010 Residential Tenancies Regulation 2010 Category: Principal judgment Parties: Lisa Wallace (Appellant) Tracy Lee Price (Respondent) Representation: By telephone (Appellant) No appearance (Respondent) File Number(s): AP 17/24312 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 12 April 2017 Before: S De Jersey, Senior Member File Number(s): RT 17/12692

Reasons for Decsion 1. These reasons have been provided following a request for written reasons by the appellant on 16 October 2017. The appellant appeared in person by telephone. The respondent did not appear at the hearing and has not appeared at any stage of the appeal proceedings. 2. The appellant landlord lodged the appeal on 3 May 2017 in relation to orders that were made by the Tribunal on 12 April 2017. That application had been made to the Tribunal on 16 March 2017. In that application the appellant had been seeking an order for the payment of an amount of compensation in the amount of $17,293.00, for loss that was caused to her by the abandonment of the residential premises by the tenant. That abandonment had occurred on 26 June 2014, almost three years earlier. 3. The appeal was made more than 14 days after the decision was given. In her application and at the hearing the appellant explained to the Appeal Panel that the reason for the delay in lodging the appeal was that in between the issuing of the decision by the Tribunal and her lodging the appeal there were the Easter public holidays and ANZAC Day and that she did not receive the notice of orders to forward an appeal until later. That reason is an appropriate reason as to why there may have been some delay in the lodging of the appeal, but we must also consider, in determining whether or not we should grant an extension of time for the appeal, the merits of the appeal. 4. The basis of the appeal is that there has been an error of law and the Tribunal's discretion miscarried when the Tribunal decided not to extend time for the landlord's application. The Appellants application to the Tribunal had been made under both ss 107 and 190 of the Residential Tenancies Act 2010 (NSW). Regulation 22 (9) of the Residential Tenancies Regulation 2010 (NSW) requires that applications in relation to s 190 and breaches of the lease agreement are to be made within three months of the tenant becoming aware of the breach. 5. In relation to s 107, r 23 of the Civil and Administrative Tribunal Rules 2014 (NSW) requires that in the situations where there is no time in the enabling legislation, then applications should be made within 28 days. The appellant states that she told the primary member that she had contacted the Tribunal on numerous occasions and had been advised by the Tribunal that there were no time limits in relation to the making of the application and she had also been told that she would need an address at which to serve the tenant. On that basis she believed that an extension of time should be granted. 6. The Appeal Panel is satisfied that those submissions were made to the primary Tribunal Member and considered by her in weighing up the exercise of discretion whether or not to extend time. The primary member clearly made reference to those submissions in her written reasons. Reference is also made to those submissions in the transcript of the hearing. The Member considered the landlord's explanation that she had not filed the application earlier because she did not know where the tenant had moved to. The Tribunal also considered that the landlord said that she had been advised by the Tribunal that she could file the application at any time. The Tribunal ultimately found: as the application has been filed two years and 11 months after the tenant vacated the premises, in effect, the landlord is seeking an extension of two years and eight months as the application should have been filed approximately 18 July 2014. 'Two years and eight months' is a substantial delay and I am not satisfied that the reasons provided persuade me that discretion ought to be exercised to extend time for bringing the claim. 1. It is clear that the Tribunal considered the submissions of the appellant and has come to a conclusion that the length of delay outweighed the explanation given by the appellant. 2. The Tribunal also decided that the matter should be transferred to the Local Court where the Local Court might have jurisdiction to determine the matter. 3. Ultimately, we are told by the appellant that the matter was rejected by the Local Court and sent back to the Tribunal. 4. Consideration of the reasons of the Tribunal does not reveal that the Member considered the issue of transfer in the weighing up of factors in the exercise of discretion as to why she should not extend time under s 41 the Civil and Administrative Tribunal Act 2013. The transfer, as the Tribunal put it, was simply made in order to preserve the filing date of the application being 16 March 2017. The primary Tribunal member told the appellant landlord that she ought to obtain her own advice in that regard and that the Tribunal could not give advice in relation to those matters. 5. The fact that the matter was subsequently not accepted by the Local Court does not have bearing, as we see it, on the outcome of this appeal. The appellant is still in a position, if she wishes, as she was at the time of the making of the original order, to seek legal advice about her options in other jurisdictions. 6. Having considered the appeal we are not satisfied that the exercise of discretion has miscarried. We are not satisfied that any other grounds have been raised by the appellant which would challenge the primary decision of the Tribunal and so on that basis leave is denied for the extension of time to make the appeal and the appeal itself is dismissed.