Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sol & Mar Pty Ltd v The SG Spark Group Pty Ltd [2018] NSWCATAP 105 Hearing dates: 1 March 2018 Date of orders: 01 March 2018 Decision date: 01 March 2018 Jurisdiction: Appeal Panel Before: K O'Connor, AM, ADCJ, Deputy President K Ransome, Senior Member Decision: 1. The application for an extension of time in which to appeal is refused. 2. The appeal is dismissed. Catchwords: APPEAL - Consumer claim – no appearance of respondent at hearing – adjournment refused - appeal lodged out of time – no explanation for extensive delay Legislation Cited: Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: Sol & Mar Pty Ltd (Appellant) The SG Spark Group Pty Ltd (Respondent) Representation: M Ferreira for the Appellant J Ponce for the Respondent File Number(s): AP17/52524 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Commercial and Consumer Division Date of Decision: 27 March 2017 Before: G Sarginson, Member File Number(s): COM 16/55670 reasons for decision 1. An ex tempore decision and reasons were given by the Appeal Panel on 1 March 2018. Written reasons under Section 62 of the Civil and Administrative Tribunal Act 2013 have subsequently been requested. The following is the formatted version of the reasons that were delivered on 1 March 2018. Background 1. This is an appeal against a decision of the Tribunal in the Consumer and Commercial Division made on 27 March 2017 concerning a dispute between a tenant and sub-tenant under a retail lease. The Tribunal ordered the respondent in those proceedings to pay the applicant in the proceedings a sum of money. The appeal is made by the respondent in the Tribunal proceedings (the Appellant). 2. The Appellant did not attend the hearing of the Tribunal matter on 16 March 2017. A director of the Appellant telephoned the Tribunal Registry on the morning of the hearing and left a message that the Appellant would not be appearing as there was a family funeral. No documentation or evidence of attendance at a funeral was provided. The Tribunal refused to adjourn the hearing and the matter proceeded on 16 March 2017 with orders being made on 27 March 2017. 3. The Appellant lodged an appeal to the Appeal Panel on 12 December 2017. While the appeal did not articulate the grounds of appeal, the Appellant disputed the refusal of the Tribunal to adjourn the hearing on 16 March 2017 and the findings of the Tribunal concerning money owed by the Appellant to the original applicant (the Respondent in this appeal). Late filing of appeal 1. The rules of the Tribunal require that, in an appeal of the present kind, the appeal is to be lodged 28 days from the day on which the Appellant was notified of the decision to be appealed from. From the material before us it is apparent that the date of notification of the Tribunal's decision was somewhere between 27 March 2017 and 1 April 2017, based partly on the fact that Mr Ponce for the Respondent obtained a certified copy of the money order in the original proceedings on 3 April 2017. If 1 April 2017 is taken as the required date for lodgement of the appeal, the appeal which was lodged on 12 December 2017, was some eight months and 11 days out of time. Unless an extension of time is granted under s 41 of the Civil and Administrative Tribunal Act 2013, the appeal must be lodged within 28 days. 2. Section 41 of the Act provides that the Tribunal may, of its own motion or on the application of any person extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction. The Appellant has made such an application Should time for the filing of the appeal be extended? 1. The general power to extend time must be exercised in a fair and reasonable manner and in a way which takes account of the interests of both parties. The further away in time from the deadline, in a sense the weaker a claim to an extension of time becomes, and this was a very late lodgement of an appeal. The explanation by Ms Ferrera on behalf of the Appellant is that she did not know until the day the sheriff came to her premises that there was anything to worry about. However, we have great difficulty accepting that explanation because Ms Ferrera was an active participant in the proceedings before the Tribunal up to 16 March 2017. 2. While Ms Ferrera stated she could not be at the hearing on 16 March 2017, she was still actively participating, as reflected in the fact that she rang the Tribunal and explained why she could not be there. She, of course, then ran the risk that her application for an adjournment may not be accepted. 3. It seems to us that, if the Appellant was seriously concerned about the processes occurring at the Tribunal, she might have made some efforts to find out what had happened at the hearing. She also might have taken action as soon as possible to repair the damage that she clearly had suffered as a result of the hearing going ahead on 16 March and the member making orders she pay certain monies to the Respondent. Mr Ponce, the applicant in those proceedings, on the face of the file, actively pursued his case. He put on a substantial amount of material and he attended directions hearings. Ms Ferrera was aware that Mr Ponce had put on some material and it needed a response. We can find nothing in the files by way of any significant reply of a documentary kind by her during those stages of the proceedings. 4. The Respondent came to the Tribunal fully prepared and the Tribunal proceeded with the hearing. He has been successful in obtaining a judgment in his favour. The Appellant questions the fairness and accuracy of that judgment but the difficulty she faces is that she did not mount any challenge quickly. We are not satisfied on the basis of the material before us that she took any reasonable efforts to ascertain the outcome of the hearing on 16 March 2017. 5. The Appellant states that she never received the orders or reasons for decision. We do not accept that the Appellant was unaware of the outcome of the hearing until she received a visit from the sheriff many months later. The orders and reasons were sent by the Tribunal to two addresses – the business premises of the Appellant and a post office box which the Appellant states belongs to her accountant. These were the same addresses to which previous notices had been sent and received. During the relevant period when the notices should have reached her, Ms Ferrera continued to operate her business. She did close for a period from June to the end of July or early August, but the orders of the Tribunal were sent well before that date. 6. In exercising the discretion whether to allow the late filing of the appeal, account must be taken of the prejudice that each party may suffer. The prejudice suffered by the Appellant if the matter is not re-opened is that she is not able to air her grievances with the decision which she says is wrong. On the other hand, Mr Ponce has had the benefit of that decision for the best part of a year and he has taken all sorts of administrative steps to seek to enforce the order made in his favour. For us now to entertain the appeal by Ms Ferrera is to put at risk the benefit of that decision to Mr Ponce. It may be that the appeal would be unsuccessful and he would not lose the benefit of the Tribunal's decision, but nevertheless he would be put through another round of litigation when he could reasonably have assumed 28 days after getting the orders that there was no appeal and the matter had come to an end. One significant matter is the length of delay in lodging the appeal. Conclusion 1. These are the main matters in this case that lead us to the conclusion that it would not be a proper exercise of the discretion under s 41 to extend the period to allow this appeal to be heard. Other matters 1. During the course of the hearing today Mr Ponce raised concerns about the proper identity of the Appellant against whom he had orders made in his favour in the Tribunal. Mr Ponce has had difficulty in enforcing those orders and wishes to add another respondent to the original proceeding. As explained to Mr Ponce at the hearing, there is nothing before us which would enable the Appeal Panel to take any such action. 2. Orders 3. For these reasons, the Appeal Panel makes the following orders: 1. The application for an extension of time in which to appeal is dismissed. 2. The appeal is dismissed. ********** 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. 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