Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Grant v Schultz [2018] NSWCATAP 66 Hearing dates: 09 February 2018 Date of orders: 19 March 2018 Decision date: 19 March 2018 Jurisdiction: Appeal Panel Before: R L Hamilton S.C., Senior Member Dr J Lucy, Senior Member Decision: 1. Application for an extension of time to 18 January 2018 for the filing of the Notice of Appeal be granted. 2. Appeal allowed. 3. Matter be remitted to Consumer and Commercial Division for rehearing Catchwords: ERROR OF LAW- Failure of party to be heard Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Waters v Chai [2016] NSWCATAP 248 Category: Principal judgment Parties: Stuart Grant-Appellant Sandra Schultz- Respondent Representation: Counsel: Both parties self represented Solicitors:N/A File Number(s): AP 17/50844 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 27 October 2017 Before: R. Harris, Tribunal Member File Number(s): RT 17/30212 REASONS FOR DECISION 1. This matter involves a residential tenancy dispute. For convenience we shall refer to the Appellant, Mr Grant, as the landlord; and to Ms Schultz as the tenant. 2. The decision of the Tribunal under appeal was made on the day of the hearing, 27 October 2017. The landlord did not appear at the hearing. His explanation for this is that he did not receive the notice of the hearing from the Tribunal, or the written evidence served by the tenant. He says he first became aware of the Tribunal hearing by text message from the tenant after the hearing and first saw a hard copy of the order on 24 November 2017. 3. It appears that the reason for the landlord's ignorance of the hearing date was that the tenant, in the original application to the Tribunal, gave the landlord's residential address, and omitted to give other contact details, including the landlord's mobile phone number which she knew. She did not give the landlord's email address either, though it is not clear that she knew it. The landlord moved from the residential address and redirected mail to a post office box. The landlord (an electrician) took a contract position in a new location interstate and only cleared his PO box when he returned to the area of his former residential address which is when he saw the order made by the Tribunal. He also explained that during any time off from his contract position he was supporting his father (who lived in Brisbane) through a recent bereavement and dealt with his financial and related matters on-line and did not monitor the PO Box closely. 4. The reasons for the Tribunal's decision at first instance were given orally. Unfortunately, the sound recording of the hearing was faulty and was not transcribed. It would seem that the Tribunal may have treated the matter as uncontested, and assumed that the landlord had notice of the hearing. It has not been possible to verify this. Unfortunately, the landlord did not exercise his rights to seek written reasons (Civil and Administrative Tribunal Act 2013 (NSW) ("CATA"), s 62) or to have the decision below set aside (Civil and Administrative Tribunal Regulation 2013 (NSW), cl 9), perhaps because he was unaware of them or because he thought he was out of time. 5. The tenant was directed in relation to this appeal to lodge with the Tribunal and provide the landlord all the evidence provided to the Tribunal below on which it was intended to rely. The tenant did not comply with this direction. The tenant was also directed to lodge and provide any fresh evidence on which she intended to seek leave to rely, but nothing was lodged. 6. The landlord was directed to lodge and provide all evidence he would have relied on below. He lodged a statutory declaration and written statement; materials from his real estate agent; bank statements; copy of rent receipts; statements of third parties; material in relation to electrical supply and hot water services; pay documents; and what appears to be a copy of the tenant's submissions below, mixed with a transcript of relevant text messages between them. 7. The landlord can appeal to the Tribunal as of right if he can establish there has been an error of law: CATA, s 80(2)(b). 8. The landlord claims he has suffered procedural unfairness because he was not given an opportunity to present his case at the hearing, and that this constitutes an error of law. Failure to provide an opportunity to be heard can be an error of law, depending on the circumstances (e.g. Waters v Chai [2016] NSWCATAP 248). 9. If there was no satisfactory explanation for the landlord failing to appear at the hearing, then that may not amount to an error of law. 10. We are satisfied that the landlord has sufficiently explained his absence from the hearing. The tenant, by failing to comply with directions and failing to provide full contact details of the landlord, has not assisted her position. We note the absence of a transcript, which may have placed events in a different light. However, on the evidence before us, we find that the landlord was not given an opportunity to be heard and was thus denied procedural fairness (see also CATA, s 38(5)(c)). 11. The landlord also sought leave to appeal on the basis that he suffered a substantial miscarriage of justice. In view of our finding that there was an error of law, it is not necessary to decide this point. 12. The landlord has sought leave to file his appeal out of time. It is not clear that this is even necessary. Unless the Tribunal grants an extension under s 41 of the CATA, an appeal from a decision in residential proceedings must be lodged within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later) (Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(b)). The precise chronology is hard to track but the Notice of Appeal is dated 27 November 2017, three days after the landlord received documents relating to the decision of 27 October 2017. The Notice of Appeal in the appeal papers is date stamped 17 January 2018 by the Sydney Registry and 18 January 2018 by the Principal Registry. However, directions in the proceedings were made by the Appeal Panel on 4 December 2017. 13. Assuming that the appeal is out of time, we would grant the landlord's application for an extension of time. The applicable principles are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. Relevant considerations include the length of the delay, the reason for the delay, the appellant's prospects of success (that is usually whether the applicant has a fairly arguable case) and the extent of any prejudice suffered by the respondent to the appeal. 14. The tenant opposed an extension of time, challenging the landlord's claims about lack of knowledge of proceedings, but was not able to demonstrate any prejudice to her. On balance, we accept the landlord's evidence that he was unaware of the Tribunal hearing. The landlord has suffered an injustice by being excluded from the hearing below, has reasonable prospects at a rehearing, and has not caused any lengthy delay in bringing the appeal (if there has been delay at all). In the circumstances, we consider that a decision not to extend time would work an injustice upon the landlord. Orders 1. Application for an extension of time to 18 January 2018 for the filing of the Notice of Appeal be granted. 2. Appeal allowed. 3. Matter be remitted to Consumer and Commercial Division for rehearing. ********** 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: 19 March 2018