Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Yoon v Matar [2018] NSWCATAP 157 Hearing dates: 14 June 2018 Date of orders: 28 June 2018 Decision date: 28 June 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member D Goldstein, Senior Member Decision: 1. The application to extend time in which to file the Notice of Appeal dated 10 February 2018 is dismissed. 2. The appeal is otherwise dismissed. 3. Each party is to pay their own costs. Catchwords: LEAVE TO APPEAL – Residential proceedings – application to extend time to appeal – no satisfactory explanation of delay – appeal unlikely to succeed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Nanschild v Pratt [2011] NSWCA 85 Category: Principal judgment Parties: First Appellant: David Yoon Second Appellant: Ju Yen Lee Yoon Respondent: Mamouh Said Matar Representation: Appellants: D Yoon for both appellants Respondent: A Abdallah (Solicitor) Solicitors: Appellants: Not applicable Respondent: One Group Legal File Number(s): AP 18/13077 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Opportunity Division Citation: Not applicable Date of Decision: 7 December 2017 Before: G Bassett, General Member File Number(s): RT 17/39400 reasons for decision Introduction 1. The appellants were tenants of a property located in Strathfield (premises). 2. The respondent was the landlord who had entered into a residential tenancy agreement with the appellants for a term of 12 months commencing on 29 August 2014. The agreement was in writing, signed by the parties (agreement). 3. The appellants filed an application in the Consumer and Commercial Division dated 11 September 2017 being application RT 17/39400. In that application, the appellants referred to various sections of the Residential Tenancies Act 2010 (NSW) (RT Act) including s 187 of the RT Act which contained order making powers. The application did not clearly identify the precise orders which were sought however it would seem from reading the whole application that there were complaints made about the state of the property and various breaches by the respondent of the terms of the agreement. Directions were made for the filing and service of evidence in relation to the claims made and the proceedings were heard by the Tribunal on 7 December 2017. 4. Prior to the application being heard, the appellants vacated the premises on 16 November 2017 and delivered up possession by agreement. Consequently, the tenancy was terminated on that date. 5. The Tribunal dismissed the application by order made 7 December 2017 and provided written reasons for decision. Those reasons set out the claims which the Tribunal was finally requested to adjudicate upon at the hearing. At [5] the Tribunal recorded the claims as follows: 1. compensation from the landlord's failure to repair items at the property; 2. compensation for health issues that arose in early 2017 from dust in the premises; 3. compensation for loss of business profits based on the alleged misrepresentation of the landlord that he could run a family day care centre at the premises; and 4. relief from payment of electricity charges for a leaking hot water system. 1. The appellants appeal the decision. Notice of Appeal, history of appeal and submissions 1. The appellants filed a Notice of Appeal dated 10 February 2018. 2. At the hearing of the appeal, the appellants (who were represented by the first appellant, Mr David Yoon) confirmed that they had received notice of the decision on 10 December 2017. They also confirmed that the Notice of Appeal was not in fact filed until 15 March 2018. The Notice of Appeal was filed substantially out of time. 3. The Notice of Appeal, as with the original application to the Tribunal at first instance, made reference to various sections of the RT Act and lacked clarity concerning the grounds of appeal. In this regard, the Notice of Appeal made reference to earlier hearing dates, prior to 7 December 2017, when the proceedings at first instance were determined and asserted that the Tribunal had inappropriately adjourned the proceedings on an earlier date. 4. At the hearing of the appeal, the Appeal Panel noted that there was no appeal against any earlier orders of the Tribunal. Further, no documents were provided in relation to any earlier hearings nor the sound recording of such hearings. It was not a matter finally pursued at the hearing of this appeal. Accordingly, it is unnecessary to deal with this issue any further. 5. Otherwise, the Notice of Appeal made reference to a hot water service that had "kept leaking long time before it was noticed by the neighbour", noted that the property which the appellants had vacated had remained unsold and asserted "that the member is either unfair or stupid or corrupt". 6. The order sought in the Notice of Appeal was "up to $15,000.00 compensation". 7. The appeal had been listed for call over on 29 March 2018. At that time, directions had been made for the appellants to provide to the Appeal Panel all evidence provided to the Tribunal below on which they intended to rely together with "the sound recording of the hearing at first instance, if … what happened at the hearing is being relied on and a typed copy of the relevant parts". 8. At the commencement of the hearing of the appeal on 14 June 2018, the Appeal Panel identified the documents which the parties had filed in relation to the appeal. 9. In the case of the appellants, there were two bundles of documents. The first was a bundle filed with the Tribunal on 22 March 2018. This bundle became exhibit A in the appeal. It consisted of documents which the parties agreed had been provided to the Tribunal for the hearing at first instance. However, the respondent noted that some of the documents in that bundle were not provided and could not have been provided to the Tribunal at first instance, those documents bearing date after the hearing on 7 December 2017. These were identified and excluded from the relevant evidence. 10. A second bundle had been filed on 30 May 2018. The appellants advised these were their submissions in the appeal. Some of these documents were also duplicate documents found in exhibit A. Included in that bundle was a copy of a statement of claim which had subsequently been filed in the Local Court of New South Wales. While the appellants explained why this document had been filed, it has no relevance to the present appeal, other than that the appellants informed the Appeal Panel that they did not wish to withdraw the present appeal in order to pursue any action in the Local Court. 11. The Appeal Panel was not provided with the sound recording of the hearing at first instance nor a typed copy of what had been said. 12. An issue arose at the outset of the appeal concerning whether the appellants wished to rely upon the sound recording. In the course of discussions concerning this matter, the appellants said that they had written to the Tribunal at first instance requesting the Tribunal to provide all documents and the sound recording from the original hearing. This request had apparently been made despite the directions of the Appeal Panel made on 29 March 2018, to which we have referred above. 13. Be that as it may, the appellants finally confirmed that exhibit A contained all documents from the original hearing on which they wished to rely. However, they sought an adjournment of the hearing to obtain a copy of the sound recording. This was ultimately refused after hearing submissions from both parties, the respondent having opposed the adjournment application. Oral reasons were given. It is not necessary to set out the detail of that application nor the reasons why the adjournment request was refused. 14. The Appeal Panel asked the appellants to identify what orders they sought in connection with the appeal and the issues which they wish to raise on appeal. 15. The appellants sought a money order of $10,000, made up of a claim for refund of electricity charges of $3,500, a refund of water charges of $1,500 and a claim for $5,000 being a business related loss because they were unable to conduct a family day care business from the residential premises. 16. Initially, a claim was also made arising from dust on the premises. This claim apparently related to the possibility of future health issues arising from exposure to dust. However, this claim was not pressed at the hearing of the appeal. 17. In relation to the matters that were pursued and the issues which arose in connection with those matters, they were dealt with under the following headings: 1. Leave to appeal out of time; 2. Claim for refund of electricity; 3. Claim for refund of water usage charges; 4. Claim for business loss regarding family day care business; and 5. Claim for loss arising from inconvenience and failure to repair. 1. In relation to leave to appeal out of time, the Appeal Panel asked the appellants to explain why the appeal was not filed within time. In this regard the Appeal Panel noted to the parties the proceedings were "residential proceedings" within the meaning of the Civil and Administrative Tribunal Rules, 2014 (NSW) (Rules). Accordingly, any appeal must be lodged within 14 days from the date of the decision or the date when notice of the decision is received, whichever is the later. The Appeal Panel also noted the decision of Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22 in which the Appeal Panel set out the principles applicable to an application to extend time. 2. The appellants' submissions can be summarised as follows: 1. the decision was made shortly before Christmas and the long holiday period; 2. the appellants knew they had a right of appeal, however they were not sure if they wanted to make an appeal; 3. the appellants were waiting to see if the property which they had vacated was subsequently sold; and 4. The fairness and justice of the situation means they should be granted leave to appeal out of time. 1. In relation to the claim for refund of electricity charges, the appellants said that the hot water system had been leaking and therefore they must have incurred additional electricity charges in heating additional water. During the course of submissions, the first appellant said that the amount should be assessed at $800. The appellants relied on evidence from a neighbour who had observed leaking pipes and water damage to the adjoining fence as indicative of the fact that the water leak had been there for a substantial period of time, the appellants not having noticed the leak until near the end of the tenancy. 2. In relation to the claim for refund of water charges, the appellants noted that this claim also arose from the leaking hot water service. However, the appellants appeared to accept that they had not made such a claim in the proceedings at first instance. 3. In relation to the business loss claim, the appellants said that there were emails from the agent to prove there was an agreement they could use the premises to carry on a family day care business. When asked to identify these documents in exhibit A, the appellants were unable to do so. All they were able to point to were some emails apparently sent after the agreement had been signed, which they submitted corroborated their assertion that an agreement had been reached to permit them to carry on this business. One of those documents which was marked "A2" in exhibit A said at item 9: 9. Swimming pool certificate & safety gates obtained after we gave up our business, which should have been done before we moved in the property on August 2014. 1. In relation to evidence of loss, the appellants relied upon a "report" prepared by Olive Accountants. This document purported to be "financial statements" for the period 1 September 2014 until 31 August 2015. This document was a profit and loss statement indicating a profit of a business known as "Family Day Care with After School & Holiday Care" in the sum of $54,867.52. Significantly, this document had attached to it a "Partner Declaration" signed by the appellants that purported to say the accounts "present fairly the partnership's financial position and its performance for the period ended on that date". The first appellant conceded at the hearing of the Appeal that this document did not in fact reflect actual accounts of any business which the appellant had operated but rather was said to be an estimate of what money they might have lost in connection with this business. However, there was no other material to support a contention that the revenue and expense items recorded in those documents in any way demonstrated an alleged loss arising from the opportunity to conduct such a business on the premises if the agreement had permitted this to occur. 2. Finally, in relation to the inconvenience/failure to repair claim, the appellants again relied on the leaking hot water service and referred to photographs as demonstrating the presence of cement dust (a matter not pursued on appeal) and a gate and other items requiring repair. The appellants asserted that they should be awarded an amount by way of general damages. 3. In reply, the respondent relied on his Reply to Appeal, written submissions provided by his lawyers and submissions made by his solicitor, Mr Abdallah, at the hearing of the appeal. 4. In relation to extending the time to appeal, the respondent said that the appellants were aware of their right to appeal and have offered no satisfactory explanation as to why time should be extended. The respondent said there was no relevant injustice which needs to be corrected and relied on the decision of Nanschild v Pratt [2011] NSWCA 85. 5. The respondent said the delay was substantial and leave to appeal out of time should be refused. 6. Generally, in relation to the merits of the appeal, the respondent referred to various decisions such as Collins v Urban [2014] NSWCATAP 17 and said that an analysis of the appellants' claim does not demonstrate that they may have suffered a substantial miscarriage of justice. In this regard, the findings of fact which had been made when considered against the background of the evidence before the Tribunal do not warrant the grant of leave and there is otherwise no legal error demonstrated by the appellants sufficient to justify the Appeal Panel extending time. 7. In relation to the claim for refund of electricity charges, the respondent said that the Tribunal was correct in its conclusion that any defects which required repaired work were carried out by the respondent in a reasonable time. Consequently, there was no basis to make any order having regard to the terms of s 63(3) of the RT Act, which prevents the Tribunal from finding any relevant breach because the landlord had acted with reasonable diligence to have the repairs carried out when notified or becoming aware that such repairs were required. 8. During the course of this submission, the Appeal Panel noted that the letter from the neighbour relied upon by the appellants as supporting the claim of a long-standing problem with the hot water system (marked K1 in exhibit A) was dated 17 September 2017, that is a date shortly before the appellants vacated the property in November 2017. 9. In the context of a claim for inconvenience, or what might be referred to as a breach of a landlord's obligation in respect of quiet enjoyment, the respondent said that the issue with the hot water service arose at the end of the tenancy and there is no causal link to establish any relevant loss or damage. In this regard we note the letter from the neighbour does not indicate the nature and extent of the damage to the fence and does not provide any details which might assist in assessing how long the hot water system had been leaking. 10. In relation to the claim for refund of water charges, the respondent said this issue had not been raised at the original hearing. 11. In relation to the claim for business loss, the respondent adopted the reasoning of the Tribunal and said the Tribunal was correct to conclude that there was no agreement permitting the carrying on of a family day care business on the premises. 12. In relation to the submission by the appellants concerning the alleged correspondence from respondent, said to be an email sent prior to the agreement being signed which provided permission to carry on such a business, the respondent denied any agreement. Also, the respondent noted that this same issue had been raised at the hearing of the proceedings at first instance. The respondent said that the Tribunal dealt with this issue at [11] of its reasons. There the Tribunal said: When asked if [the first appellant] had any documentary evidence of these conversations prior to entering into the residential tenancy agreement he said an email existed in which these issues were raised. However, no such email was provided with documents under the procedural direction setting up the hearing. Nor could the applicant find such a document in days he brought to the Tribunal. The tenant conceded that there were no notes or special conditions in the residential tenancy agreement that indicated he could operate a family day care centre at the premises. 1. Otherwise, the respondent submitted that the "report" from the accountant provided no relevant evidence of loss. 2. In relation to the issue of inconvenience and failure to repair, the respondent relied on the fact that he had acted diligently in carrying out repairs when notified and that there was otherwise no evidence that he had breached any other obligation under the agreement, including in respect of quiet enjoyment. 3. Lastly, the respondent said the appeal should be dismissed and that the appellants should be ordered to pay his costs, assessed on an indemnity basis. 4. The respondent submitted that special circumstances exist. The respondent submitted that proper grounds of appeal were not provided in the Notice of Appeal nor have the appellants set out the orders which they seek on appeal in that document. The respondent submitted that the use by the appellants of the expression "stupid or corrupt" when referring to the Member of the Tribunal constitutes contempt, that the proceedings should be summarily dismissed and an order for costs should be made on an indemnity basis because the appellants' case is "hopeless". Consideration 1. The matters raised on appeal substantially involve questions for which leave to appeal is required because they are not questions of law. To the extent leave is required Sch 4 cl 12 of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act) applies and the principles in Collins are relevant in determining whether or not leave should be granted. This is because this appeal is a decision from the Consumer and Commercial Division. 2. In addition, as noted above, the present appeal is substantially out of time. Rule 25(4)(b) provides a period of 14 days to lodge the appeal as these were residential proceedings. As notice of decision was received on 10 December 2017, the time to appeal was on or before 27 December 2017, 24 December fell on a Sunday and the first working day thereafter being 27 December 2017. Consequently, the appeal was filed 76 days late. 3. The principles in Jackson apply to the grant of an extension of time. At [22] the Appeal Panel said: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a)The length of the delay; (b)The reason for the delay; (c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d)The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. 1. In the present case, the appellants were aware of their right of appeal. They chose not to exercise that right until filing the Notice of Appeal on 13 March 2018. 2. They offer no reason why they did not file the appeal at an earlier time other than that they were unsure if they wanted to appeal. While mention was made that the appellants were waiting to see if the premises were sold, no explanation was provided to us about why that matter was relevant to a decision not to file the appeal at an earlier time. 3. The time limits are strict and, in the absence of any plausible excuse for the delay, we are not satisfied the appellant ever offered any reasonable excuse for the failure to time. This matter counts against extending the time to appeal. 4. As to the merits of the appeal, it is appropriate to deal with the issues raised under the headings we set out above. 5. In relation to the leaking hot water service and the claim for electricity charges, the Tribunal evaluated the evidence before it and found that the respondent, when notified of the leaking system, took steps to rectify the repair within a reasonable time: reasons at [13]-[14]. Section 65(3) provides that the Tribunal must not determine that a landlord has breached the obligation to repair unless satisfied that the landlord had notice of the need for repairs or ought reasonably to have known of the need for repairs and the landlord has failed to act with reasonable diligence to have the repairs carried out. 6. There was no evidence to suggest that the landlord was aware of the need for repairs to be carried out and failed to act with reasonable diligence. The fact that a neighbour may have known of the leaking system does not establish the landlord knew or ought reasonably have known of the need for the repairs. 7. In these circumstances, the evidence does not establish a relevant breach of the obligation to repair and, on this basis, the Tribunal was correct to dismiss this particular claim. 8. In relation to the claim for extra water usage, the Tribunal noted that there was evidence from the respondent that the appellants "sublet the premises to 5 or 6 other people". This use, the respondent submitted, increased the water consumption. The respondent said that the water consumption remained high throughout the tenancy, even though the leaking hot water service problem only occurred in October 2017, close to the end of the tenancy. 9. Having stated that the appellants' bear the onus of proving their case, the Tribunal accepted the evidence from the respondent and found that his "reaction to required repairs was reasonable in the circumstances". That is, as with the electricity claim, the Tribunal found that there was no relevant breach of the obligation to repair. 10. Again, no error is shown to have been made by the Tribunal in rejecting the claim for breach of the repair obligation under the agreement. 11. In relation to the business loss claim, there is no evidence to suggest any agreement was reached between the parties to permit the carrying on of a family day care business at the premises. The signed agreement does not provide such permission. 12. The appellants suggested there was email correspondence prior to the agreement being signed. No emails were provided as evidence in the appeal. More particularly, no emails were provided to the Tribunal in the hearing at first instance, a matter specifically dealt with by the Tribunal in its reasons at [11], set out above. 13. None of the subsequent correspondence to which the appellants referred in their submissions leads to a different conclusion. That correspondence, even if relevant, does not prove an earlier agreement to permit the carrying on of a family day care business in premises let for residential purposes. 14. Further, and in any event, there is no relevant evidence of loss. As explained above, the document from Olive Accountants does not establish any lost business opportunity arising from the ability to operate a family day care centre at the premises. 15. In these circumstances, the appellants have not demonstrated any error in the Tribunal's decision. 16. The last issue is inconvenience arising from failure to repair. For the reasons set out above, the claim in respect of breach of the obligation to repair cannot succeed. However, the claim made by the appellants might otherwise be categorised as a breach of a landlord's obligation to permit a tenant quiet enjoyment of the premises. 17. At [12] the Tribunal dealt with a number of complaints made by the appellants concerning the property. These included a problem with the gate to the pool, a matter of acknowledged by the respondent is taking "some time to repair" and competing evidence concerning the adequacy of fencing around the pool as well as the issues concerning the hot water service. In addition there was the issue of the hot water service to which we have referred above and the respondent's complaint that the appellants had sublet the premises. 18. Aside from water usage arising from the leaking hot water system, the appellants did not point to any facts in the appeal which would show the use and occupation of the property was adversely affected. Certainly it was not suggested to the Appeal Panel that the pool facility could not be used or that any of the identified matters requiring repair otherwise interfered with their quiet enjoyment of the property. 19. In these circumstances, we are not satisfied that the Tribunal was in error in failing to award compensation to the appellants. 20. Finally, a number of the challenges made by the appellants relate to findings of fact for which leave to appeal would be required. The matters we have identified do not lead to a conclusion that the appellants may have suffered a substantial miscarriage of justice and therefore it is unlikely leave to appeal would be granted in any event. 21. It follows from the above that, even if time to appeal was extended, it is unlikely leave to appeal would be granted or that the appeal would otherwise succeed. That is, we are not satisfied that the merits of the appeal, particularly in the absence of any reasonable explanation for the delay in filing the appeal, would otherwise justify an order to extend the time in which to appeal. Orders 1. We have reached the conclusion that the application to extend time in which to file the appeal should be dismissed. 2. We note the respondent applied for costs of the appeal. Section 60 of the NCAT Act requires the respondent to show there are special circumstances warranting an award for costs before an order can be made. Otherwise each party is to pay bear their own costs. "Special" means out of the ordinary but not necessarily extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. 3. The matters relevant in determining what constitutes special circumstances are set out in s 60(3) of the NCAT Act. 4. The respondent says the lack of information in the Notice of Appeal and the language used by the appellants concerning his description of the Member who determined the case constituted special circumstances. In relation to the first point, the proceedings were not unnecessarily prolonged nor could it be said that the documents provided did not allow the respondent an opportunity to understand and respond to the issues raised by the appellants. The lack of correct completion of the documents is not of itself out of the ordinary. 5. Secondly, while the language used by the appellants in their description of the Member is quite inappropriate, we do not see this matter as warranting an order for costs in favour of the respondent as it is not shown to have any relevant impact in the conduct of the matter or to have increased any cost to the respondent. 6. Lastly, as the parties represented themselves, we are not satisfied special circumstance otherwise exist which warrant an award for costs or that such an order should be made in any event. 7. Consequently, the Appeal Panel makes the following orders: 1. The application to extend time in which to file the Notice of Appeal dated 10 February 2018 is dismissed. 2. The appeal is otherwise dismissed. 3. Each party is to pay their own costs. ********** 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 June 2018