Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jarvis v Mansted [2018] NSWCATAP 73 Hearing dates: 6 March 2018 Date of orders: 28 March 2018 Decision date: 28 March 2018 Jurisdiction: Appeal Panel Before: Gregory Burton SC, FCIArb, Senior Member Kay Ransome, Senior Member Decision: 1. To the extent it is required, extend time to lodge the appeal against the decision on 29 November 2017 in RT17/46741 to 22 December 2017 and the appeal against the decision on 7 September 2017 in RT17/25786 to 19 January 2018. 2. Appeal allowed. 3. Set aside the decision dated 29 November 2017 in RT17/46741 and in lieu extend time to lodge the application in RT17/46741 to reinstate RT17/25786 to 3 November 2017 and reinstate RT17/25786. 4. Remit to the Consumer and Commercial Decision for hearing de novo reinstated RT17/25786 together with reinstated RT17/24613 (with current reinstatement number RT17/43470). 5. Note the parties' confirmation that the hearing de novo in the reinstated proceedings is to be on the evidence already lodged in those proceedings. Catchwords: Residential tenancy – bond and money orders at end of lease – no notice of hearing – appeal allowed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Category: Principal judgment Parties: Shane Jarvis and Sarah Shanahan (appellants) Mike and Tracey Mansted (respondents) Representation: Appellants in person Respondents in person File Number(s): AP17/53789 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Commercial and Consumer Division Citation: n/a Date of Decision: 7 September 2017 and 29 November 2017 Before: R Harris, C Marzilli File Number(s): RT17/25786, RT17/46741 reasons for decision 1. The appellants were the tenants and the respondents were the landlords under a written residential tenancy agreement dated 22 April 2016 in respect of residential premises at Wilsons Creek, New South Wales. The term was fixed for 6 months beginning 7 May 2016 at a rental of $600 per week with a rental bond of $2,400 lodged with Fair Trading. 2. The tenants vacated in April 2017, with the time and circumstances of exit being contentious in the proceedings appealed from and related proceedings, and the subject of detailed material lodged by both landlords and tenants. There was a dispute over the condition of the premises, responsibility for the condition of the premises and who was entitled to the bond. This led to the complex procedural history in the Tribunal described below. 3. The tenants lodged application RT17/24613 for return of the bond. On receipt on 6 June 2017 of that application the landlords lodged on 7 June 2017 application RT17/25786 for the bond plus additional compensation for the alleged condition of the premises. The tenants' application was referred to in the field on the application form for related proceedings. 4. After directions for preparation of the matters, both came on for hearing at Lismore on 7 September 2017, with the tenants earlier having been granted leave to appear by phone. The tenants had written to the Tribunal on 28 August 2017 asking for a hearing date to be in the September school holidays or late afternoon during school term times, because of the male tenant's school teaching commitments. There was no evidence that the tenants had any notice of the hearing date or that this request was made with such notice. The tenants did not appear at the hearing, by phone or in person. 5. The Member hearing the applications treated the tenants' letter as a request for adjournment and refused it, citing the standard reason that work commitments are not a proper basis for an adjournment and there was no reason given as to why the female tenant could not present the case. The Tribunal member noted four failed attempts to contact the tenants by phone during the hearing, only to reach a message bank on each occasion. The bond had previously been released to the landlords when a previous application by the tenants did not proceed in May 2017. The balance of the claim above the amount of the bond was ordered to be paid to the landlords, being an additional $514 (out of $587 claimed in the landlords' application). 6. The tenants lodged within the specified 7 day time period, on 13 September 2017, a set-aside application in respect of RT17/24613 (their claim, which was dismissed on 7 September 2017). This set-aside application was given number RT17/39501. The application was made under the Civil and Administrative Tribunal Regulation 2013 (NSW); reg 9. (It appears that this procedure was used rather than reinstatement under Civil and Administrative Tribunal Act 2013 (NSW) (CATA) s 55(1)(c), (2) and Civil and Administrative Tribunal Rules 2014 (NSW) rule 36, which has the same specified lodgment period.) 7. On 15 September 2017 a Tribunal member in RT17/39501 stayed the dismissal of the tenants' claim RT17/24613 and made directions to prepare the application for hearing. The reasons said, relevantly: "The principal ground of that [set-aside] application was that the tenants were unaware of the hearing date. They stated that they had received no notification and therefore were unprepared to receive the presiding member's call, and were thereby denied the opportunity to present their case. Inquiries within the NCAT Registry disclosed that technical difficulties had been experienced over the relevant period with the sending of electronic correspondence, including Notices of Hearing. It could not be conclusively shown that a notice of Hearing was sent to the tenants. There are therefore sufficient grounds to conclude that the tenants were unaware of the hearing date and that the orders made on 7 Sep 2017 should be stayed until further order." 8. It was not in the appeal papers but in the Tribunal records is an order made by a Member on 11 October 2017 in RT17/39501 setting aside the substantive orders made on 7 September 2017 in RT17/24613 which dismissed the tenants' claim. The reason given was "The Tribunal accepts that the Applicant did not receive a notice of hearing". On the material before us that is a finding with which we respectfully agree. 9. The tenants also lodged on 31 October 2017, well outside the specified 7 day time period, a set-aside application in respect of RT17/25786 (the landlords' claim). This application was given number RT17/46741. There was no reference on the face of the application to the other set-aside application but by then it had already been determined. An extension of time under CATA s 41 for the lodgement was sought. 10. In support of this application the tenants handwrote (through the male tenant): "I was unaware of the Tribunal date. I recently contacted the Tamworth office and asked for an update and if I could receive notice of a hearing date. I was told that nothing could be seen on my file and for me to send in my response to the claims made against me – please see attached sheet". An attached sheet relevantly said: "And that I require a second Hearing take place as I was not aware of the date of the initial hearing and made attempts to find out the date of the initial hearing to no avail, yet the hearing went ahead in my absence". That attachment formed part of a statutory declaration made 12 September 2017 which infers it was prepared for the other set-aside application lodged on 13 September 2017. 11. There was a further attached sheet which said, relevantly: "I then sent in my response (attached) and awaited contact from the office. I then recieved [sic] and read an email informing me that the Tribunal had been held in my absence. Subsequently a decision had been made against me. I also noticed at the end of my working day, that the Tribunal Convenor (Magistrate) had tried to contact me by phone. I was not aware of the date of the Tribunal, hence my phone enquiry to the NCAT office around three weeks prior. … If the Tribunal attempted to make contact with me about the hearing date, I was not aware. I read/recieved [sic] no correspondence. If I was sent any documents or message to indicate a Tribunal date, they were not present at my current address." There was then attached the response to the landlords' claim that had been sent previously to the Tamworth registry on 28 August 2017. 12. The reason for seeking an extension of time for lodgement dealt with why the application was being posted rather than emailed but not with the earlier delay. The reason for the late lodgement becomes apparent from orders made on 25 October 2017 in the tenants' reinstated claim which was given the number RT17/43470. There the tenants were ordered to submit any application to set aside the orders made in RT17/25786 (the landlords' claim), including any application for extension of time and explanation for the delay in making the application, on or before 1 November 2017. 13. Set-aside application RT17/46741 (to set aside the decision in the landlords' claim RT17/25786) was heard by a different Member from the Member who stayed the timely set-aside application RT17/39501, on 29 November 2017. No reference was made to the other proceedings or set-aside application in the determination of RT17/46741. The set-aside application in RT17/46741 was dismissed because, although the orders were made in the absence of the applicant and the Tribunal was satisfied that the party's absence resulted in their case not being adequately put to the Tribunal, in the exercise of discretion the Tribunal was not satisfied that there was a real likelihood that it would be unjust to let the decision stand because "the Applicant's absence was as a result of the Applicant's application for an adjournment on 07/09/17 being refused because work commitments not being a proper basis for an adjournment application". A stay order apparently made in RT17/25786 on 6 November 2017 was lifted. 14. Meanwhile, the reinstated tenants' claim RT17/39501 with its new number RT17/43470 had a further directions hearing on 7 December 2017 in which a different Member ordered the tenants to lodge an appeal against the decision on 29 November 2017 in RT17/46741 (refusing to reinstate the landlords' claim RT17/25786). The Member on 7 December 2017 said, as part of his reasons: "The issues in RT17/[46741] [number misprinted] which have been determined by the Tribunal, are identical to those in the application for hearing by the Tribunal today (RT17/43470 being the reinstated application made by the tenants in RT17/24613). Due to the principle of issue estoppel, the Tribunal cannot reconsider those same issues in this application, unless and until the decision in RT17/46741 is overturned on appeal. At hearing on 7 December 2017, the tenant advised the factual basis for the decision in RT17/46741 was incorrect, and he wished to appeal that decision." Apparently (from the Tribunal files) a hearing in RT17/43470 as at 21 February 2018 remains to be set. 15. The tenants' original notice of appeal was lodged 20 December 2017 in conformity with the 7 December 2017 orders. It relevantly stated: "The tribunal made orders in [the tenants'] absence due to us not receiving correspondence from NCAT of a date for the above-mentioned hearing. We never asked for adjournment due to work commitments. I made contact with the tribunal office about a hearing date and was told that there was no information on our file to indicate a date. We were then told to wait and we would definitely be informed of a hearing date. Unfortunately the hearing went ahead without us and we were unaware that this had taken place, until after the hearing was held in our absence. I then, under duress, contacted the office explaining what had happened and I was advised to apply to have the decision set aside due to the fact that we were not aware of the hearing at all. The NCAT office then found that due to an unforeseen error there had been no letter or email sent to us to inform us of the hearing date. Therefore, we could not reasonably have any opportunity to have our side of the story as it were, heard. Thus, the decision in File No: RT17/46741 was incorrect. It states that we were not present as we prioritized work over the hearing. This was not the case. We were not present as some administrative error prevented us from being informed of the actual hearing date." 16. The tenants' amended notice of appeal lodged 18 January 2018, to be read in conjunction with the original notice of appeal, stated: "We were not informed of the hearing date. Tamworth NCAT office apologised and sent us correspondence to say so. This information is on our file. … I was directed to ask for more time in the callover listing 17/53789". The last sentence was reference to direction 1 in the appeal callover made on 11 January 2018: "The Appellants are to file an amended Notice of Appeal by 18 January 2018 including to appeal the original decision made in application RT17/25786 on 7 September 2017. The amended Notice of Appeal is to include any request to extend time and seek leave to appeal and relevant grounds for such requests". 17. It will be seen that the reasons for refusal of the later set-aside application simply repeated the erroneous characterisation of what occurred on 7 September 2017. The decision did not, with respect, give reasons, in the presence of substantial contentious material from both parties on the issues in dispute and an explanation of what occurred in relation to notice of the hearing on 7 September 2017, as to why the primary Member was not satisfied of injustice if the decision was allowed to stand. 18. At present there is a primary level order in the Tribunal that gives the landlords a right to money from the tenants, but another primary order that sets aside the dismissal of the tenants' claim for money from the landlord. Technically the two decisions could stand. The landlords could enforce the small money order. If the tenants succeeded in their claim, they could recover the bond and, if they amended, claw back (if totally successful) money paid to the landlord under the enforced order. But that would cause delay and expense and not be in accord with the guiding principle in CATA s 36: to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The problem of issue estoppel also exists, as identified on 7 December 2017. There is presently a finding potentially forestalling proper determination of contentious issues. It would be unsafe for an issue estoppel to determine those issues because the findings were not made in a hearing where one party was able to present their case and their reasons for not doing so have already been accepted (correctly we consider) by the Tribunal. 19. Accordingly, and despite the time this matter has taken and its complexity compared with the amount involved, there should be a combined hearing on the merits of the competing money claims with an order for the net outcome. 20. We consider that the reasons for refusal of the later set-aside application, against which this appeal is brought as well as against the original decision sought to be set-aside, were inadequate in that they failed to address relevant considerations and addressed erroneous considerations, being the characterisation of the tenants' non-appearance at hearing. Inadequate reasons is an error of law. So is a denial of procedural fairness when notice of hearing is not given to one party who then cannot cross-examine and make submissions on the material before the decision-maker. The appeal should be allowed on these grounds and appropriate orders made to enable a hearing of the original claims on the merits. An extension of time for lodgement of the later set-aside application and appeals should be allowed because there was a timely cognate set-aside application which was successful and the proceedings are intrinsically connected. 21. The orders made on 25 October 2017 in RT17/43470 expressly noted that "neither party wishes to rely on any further documents other than those provided in proceedings RT17/25786 and RT17/24613", being the original proceedings. The parties confirmed during the appeal hearing that noted position. The remission therefore should be simply to set a hearing date as soon as possible together with a venue, for both primary matters on the existing material lodged by the parties. 22. In coming to the above conclusion we acknowledge the landlords' strong submission on appeal that the primary member on 7 September 2017 considered all the material lodged by both parties and made findings on which the relief he granted was based. However, the facts remain as we have set them out above, primarily that one party did not know about the hearing and a request for a convenient hearing date was wrongly treated as an adjournment application. One of the decisions in which those findings were made has already been set-aside; the other is the subject of this appeal. For the reasons we have given we consider the merits of the dispute need to be considered afresh in one hearing, on the material already lodged, with both parties present to argue their cases. Orders 1. To the extent it is required, extend time to lodge the appeal against the decision on 29 November 2017 in RT17/46741 to 22 December 2017 and the appeal against the decision on 7 September 2017 in RT17/25786 to 19 January 2018. 2. Appeal allowed. 3. Set aside the decision dated 29 November 2017 in RT17/46741 and in lieu extend time to lodge the application in RT17/46741 to reinstate RT17/25786 to 3 November 2017 and reinstate RT17/25786. 4. Remit to the Consumer and Commercial Decision for hearing de novo reinstated RT17/25786 together with reinstated RT17/24613 (with current reinstatement number RT17/43470). 5. Note the parties' confirmation that the hearing de novo in the reinstated proceedings is to be on the evidence already lodged in those proceedings. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ********** 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: 28 March 2018