Kostov v Ecclesia Housing Limited (No 2) [2018] NSWCATAP 215

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kostov v Ecclesia Housing Limited (No 2) [2018] NSWCATAP 215 Hearing dates: 3 September 2018 Date of orders: 14 September 2018 Decision date: 14 September 2018 Jurisdiction: Appeal Panel Before: The Hon J Boland ADCJ Deputy President The Hon F Marks Principal Member Decision: The Application made by the applicant under Regulation 9 is dismissed. Catchwords: Application to set aside decision - principles to be applied - held no lost opportunity to present case because case futile - application dismissed

Stay application - set aside application to be dismissed - no basis for stay of proceedings Legislation Cited: Civil and Administrative Tribunal Act Civil and Administrative Tribunal Regulation Family Law Act (Cth) Cases Cited: Alexander v Cambridge Credit Corporation (1995) 2 NSWLR 685 Allesch v Maunz [2000] HCA 40 Category: Principal judgment Parties: Adriana Kostov (Applicant) Ecclesia Housing Limited (Respondent) Representation: Applicant self represented M Thompson respondent File Number(s): AP 18/28381

Reasons for decision

Introduction and background to the proceedings 1. These proceedings concern an Application filed in this Tribunal on 27 July 2018. The applicant is Adriana Kostov. She seeks to set aside or vary a Decision of this Tribunal described in her Application as delivered on 27 July, 2018 in AP 18/28381 ("the appeal decision"). Those proceedings were determined by an Appeal Panel of this Tribunal and took the form of an appeal brought by the applicant from a decision of a Senior Member of this Tribunal made on 5 June, 2018. That decision determined to refuse to set aside or vary an earlier decision of this Tribunal made on 21 May 2018 which we shall hereafter referred to as the "initial decision". This initial decision had the effect of terminating a residential tenancy which the applicant held as tenant from the respondent; Ecclesia Housing Limited as landlord. 2. In her Application the applicant was asked to nominate the decision which she wished to set aside and, if she wished that decision to be varied, what orders she now wished to be made assuming she was successful in this application. The applicant stated, in a manner which was not entirely responsive to the material which she was asked to provide, that she wished the appeal the subject of the appeal decision to be dismissed and that the appeal be relisted. The appellant confirmed at the hearing before us that she sought an order that the appeal decision be set aside and that a fresh hearing be conducted. 3. The ground which the applicant nominated in her Application was that the appeal decision was made in her absence "which resulted in my case not being adequately put to the Tribunal". The applicant then provided information about why she was absent when the Tribunal made its appeal decision. That information was to the effect that an apprehended domestic violence order had been issued against the applicant's "ex-partner" on 25 July 2018 and that she had "asked for adjournment, as I was sick." 4. When asked in her Application form to describe in summary form the evidence and arguments that she would have put to the Tribunal if she had not been absent the applicant nominated that she had suffered a miscarriage on 24 July 2018 and said in addition, "I deserve my appeal." 5. The applicant annexed documentation to her Application which we summarise as follows; 1. an email from the applicant to the Appeal Panel registry dated 25 July, 2018 at 9:03 AM stating that she was suffering from stress related to her application for the ADVO to be made that day and attaching a medical certificate. She requested a short adjournment and indicated that if that was not to be granted, she asked that she be contacted on a designated mobile telephone number. The applicant referred to hard copies of submissions filed on 12 July, 2018. 2. copy of an interim apprehended domestic violence order issued against a named person for the protection of the applicant which appears to have been issued on 25 July, 2018 3. a certificate of attendance which does not bear any date issued by Dr Yan Zhang certifying that the applicant attended an unspecified medical Centre on 24 July, 2018. There is no indication as to the reason for that attendance. 4. an email from the applicant to the appeal panel registry dated 26 July, 2018 at 10:28 AM saying "Please advise the appeal committee, I apologise for being upset today, if they could reconvene the hearing for later today, appreciated." 5. an email from the applicant to the appeal panel registry dated 27 July, 2018 at 11:18 AM. That email purported to have attached to it the Application to set aside which is the subject of these proceedings. In that email the applicant indicated that she had been viciously attacked by her ex-partner on 20 July 2018, had suffered a miscarriage on 24 July 2018 when she was nearly 11 weeks pregnant (with medical attendance notice attached), that an interim ADVO had been issued on 25 July, 2018, that she had requested a telephone appearance and "try to attend the Tribunal the morning of 27th July anyway, I was sick, I was tired, became too upset, and left." The applicant also said; "I would hope, being attacked, losing a child, and having ADVO orders, all issued in the space of a week, are sufficient reason, for a rehearing, with the present, when, I tried to tell the Tribunal, what occurred." Importantly, the applicant said that she would send her "payment details" in her next email. We shall refer to the question of payment details at a later stage, because their absence is a significant matter in the determination of these proceedings.