Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hurley v Hurley [2018] NSWCATAP 283 Hearing dates: 7 November 2018 Date of orders: 28 November 2018 Decision date: 28 November 2018 Jurisdiction: Appeal Panel Before: The Hon F Marks, Principal Member L Wilson, Senior Member Decision: (1) Adjournment application dismissed (2) Leave to extend time in which to appeal is declined (3) The appeal is dismissed. (4) Costs are reserved with liberty to apply which must be exercised within 14 days of this date. Catchwords: Residential tenancy -appeal from decision to terminate tenancy- arrangement between mother and son that son could reside in her home and pay board and lodging-held constituted residential tenancy subject to the provisions of the Residential Tenancy Act and amenable to termination order for non-payment of rent - proceedings dismissed because lacking in substance and for want of prosecution-costs reserved Practice and procedure - appellant unable to appear at appeal hearing -adjournment refused Legislation Cited: Residential Tenancies Act Civil and Administrative Tribunal Act Cases Cited: Charitable Islamic Association of Beirut City Incorporated v The Owners Strata Plan No 75506 [2018] NSWCATAP 207 Texts Cited: Nil Category: Principal judgment Parties: Graham Phillip Hurley (Appellant) Stephen Mark Hurley (Respondent) Representation: Solicitors: Kells The Lawyers (Appellant) No Appearance for Respondent File Number(s): AP 18/35902 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 3 July 2018 Before: D Ash File Number(s): R T 18/27618 Reasons for decision Background 1. The appellant, Stephen Mark Hurley appeals from a decision of the Tribunal that found that he was a tenant from his brother Graham Philip Hurley, who is the respondent to this appeal, of certain residential premises. The Tribunal ordered that the tenancy be terminated and that a warrant for possession issue. 2. The respondent filed a tenancy application in this Tribunal on 14 June 2018. In that application the respondent asserted that he was the sole executor of the estate of his late mother, and that the appellant, (who is his brother) was living in a residence owned by her. The respondent had claimed that there was an agreement that he had with his late mother allowing him to reside in the home. On 27 February 2018 the respondent had served on the appellant a notice of termination of what he alleged was a residential tenancy advising him that the tenancy agreement was terminated and requiring him to provide vacant possession by 7 June 2018. The respondent alleged that the appellant had not provided vacant possession by that date. 3. A copy of the mother's will and a copy of the grant of probate and other supporting documents were annexed to the tenancy application. 4. On 3 July 2018 after conducting a hearing, a Member of this Tribunal made orders terminating a "Residential Tenancy Agreement" following service of a 90 day notice of termination of a periodic agreement, ordered that the agreement be terminated "immediately and possession is to be given to the landlord on the date of termination" but suspended the order for possession till 31 July 2018. A warrant for possession was subsequently issued on 1 August 2018. Information provided by the respondent to us is to the effect that the warrant for possession was executed on 16 August 2018. 5. We do not have a copy of any reasons for decision issued by the Member and perhaps none have issued. Neither party obtained a sound recording to provide a transcript of the hearing at first instance. The notice of appeal and the appeal proceedings 1. The Notice of Appeal was filed on 16 August 2018, the same day that the warrant for possession was executed. The decision under appeal was made on 3 July 2018, and the appellant said it was received by him on 5 July 2018. The time for filing the appeal expired 14 days from 5 July 2018, so it is considerably out of time and the appellant requires the grant of an extension of time in which to Institute the appeal. Although he acknowledged in the Notice of Appeal that he required an extension of time, he failed to offer any explanation why the appeal was not lodged within the time limit. Furthermore, the appellant has not subsequently provided any information of any kind to justify the grant of an extension of time. Prima facie, therefore, the appeal was filed out of time and there is no reason why any extension of time in which to Institute the appeal should be granted. 2. The Notice of Appeal does not appear to set out any grounds as to why the appeal should be granted. However, it does contain information that the appellant had sustained extensive head injuries in March 2018 (corroborated by a letter of support dated 23 May 2018 from Illawarra Brain Injury Service) and this had reduced his ability to process and understand what was happening at the hearing and his ability to present any evidence to the Tribunal. He said that it was possible that the decision was made "without being made aware of certain facts that may have been considered relevant," but does not specify what those facts are. He said that his memory has now improved since the date of the hearing, but again does not specify what it is that he now remembers. 3. Supplementary material contained with his appeal documents denies the existence of any residential tenancy agreement with his late mother. He did say, however, that since October 2011 he was permitted by his mother to live in the premises and he paid her "board and lodgings." He said that section 8 of the Residential Tenancies Act ("the Act") meant that that Act may not apply to his residence in the premises. 4. There is some amplification of the appellant's circumstances contained within a "submission" which he had made in connection with his stay application, which is in the appeal file. In view of the subsequent history of this matter, it is appropriate that we make reference to it. In that document he said; "I paid Board and Lodgings to my mother for myself and my son, Brian Charles Hurley, and her intention was for the provision of a family home for myself and for my son throughout his secondary studies at Edmund Rice College…. And if necessary to remain in place while he completed Tertiary Studies, IF he was accepted into the University of Wollongong. This is one of the reasons that my mother named me as an Executor in her will, to ensure that the Administration of the Estate was done in a manner that is in the best interests of ALL beneficiaries, giving consideration to their circumstances." In these papers the appellant denied that he had paid rent and insisted that he had only paid "Board and Lodgings". Information provided to the Tribunal for the purpose of the stay application included a copy of a statutory declaration which he had sworn on 30 August, 2018 which said, in part, "my son….. and myself have been living at (the address of his mother's home) since 10th October 2011 at the request of my late mother…… During this time I paid Board and lodgings of $240 per week to my mother for her to buy food and to assist with our costs of utilities." 5. For completeness it should be noted that both the appellant and respondent were named as executors of the estate of their late mother, but only the respondent applied for a grant of probate which, when issued, gave leave to the appellant to "come in and prove the Will." The course of the appeal proceedings 1. On 4 September 2018 directions were made by a Principal Member requiring the appellant to file and serve no later than 2 October 2018 a copy of all of the evidence upon which he wished to rely together with written submissions. The appellant has failed to file any such material. On that date this appeal was set down for hearing on 7 November 2018 at 2:15 PM 2. At 11:26 AM on 7 November 2018 the appellant forwarded an email to the Registry indicating that he was too ill to attend or participate in the appeal hearing. At 2:02 PM he forwarded a further email which enclosed a certificate issued by a general practitioner dated that day. The certificate said; "In my opinion, Graham Hurley is suffering from a severe headache. Graham will be unfit to travel for 5 days from 7/11/18 to 12/11/18. The symptoms of his illness became evident on 6/11/18." There was also attached a referral for a CT scan of the head referring to a severe headache since the previous day and noting a past history of head injury causing a subdural haematoma. The appellant sought an adjournment. 3. When we called the matter on for hearing Mr Addinall solicitor appeared for the respondent, he having been previously granted leave to do so. Mr Addinall had not received copies of the appellant's emails because of an apparent typographical error made by the appellant. We gave Mr Addinall an opportunity to obtain instructions from his client. The respondent's instructions were that he opposed the adjournment and sought that the matter proceed in the absence of the appellant. The respondent asserted that the appellant had never taken any steps to prosecute his appeal after the initial notice of appeal had been filed and was concerned that more costs would be expended if the matter were adjourned. The respondent was content for the matter to be dealt with "on the papers" having regard to written submissions which had been filed on his behalf. Finally, we were informed that the respondent sought an order for costs in the event that we determined to deal with the proceedings rather than granted an adjournment. The matter was left on the basis that we would reserve our decision whether to grant the adjournment or determine the proceedings in the absence of the appellant, and we would issue reasons for decision. We also indicated that we would not consider making any adverse costs order against the appellant without giving him an opportunity to make submissions. Some important statutory provisions 1. Before we commence to consider the disposition of these proceedings, we refer to Schedule 4 of the Civil and Administrative Tribunal Act dealing with matters relevant to the Consumer and Commercial Division. Part 6 deals with appeals and, relevantly, clause 12 is in the following terms; 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if: (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. Section 80 which informs the basis for the operation of Clause 12 is as follows; 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. It will be seen that Clause 12 restricts the operation of section 80. In the circumstances of these proceedings, where a warrant for possession has been executed, the appellant's appeal is restricted to a question of law. The only possible questions of law are whether there was in existence a residential tenancy or whether the appellant was denied procedural fairness. Was there a residential tenancy? 1. This requires an examination of the Act. Section 13 defines a residential tenancy agreement. It is as follows; 13 Agreements that are residential tenancy agreements (1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence. (2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing. (3) An agreement may be a residential tenancy agreement for the purposes of this Act even though: (a) it does not grant a right of exclusive occupation, or (b) it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities. Note. See section 8 for agreements that are not covered by this Act. Section 7 sets out premises not covered by this Act. (4) For the purpose of determining whether an agreement is a residential tenancy agreement, it does not matter that the person granted the right of occupation is a corporation if the premises are used (or intended for use) as a residence by a natural person. 1. Prima facie there is evidence that the appellant's mother granted him a right of occupation of the premises and that the consideration was what he called "board and lodging". 2. However, it seems from material filed with his stay application that the appellant relies on section 8 of the Act which is in the following terms; 8 Agreements to which Act does not apply (1) This Act does not apply to the following agreements: (a) occupation agreements to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies, (b) residence contracts within the meaning of the Retirement Villages Act 1999, (ba) site agreements within the meaning of the Residential (Land Lease) Communities Act 2013, (c) an agreement under which a person boards or lodges with another person, (d) an agreement under which a person resides in refuge or crisis accommodation of a kind prescribed by the regulations, (e) leases and licences under the Crown Land Management Act 2016, (f) an agreement for the sale of land that confers a right to occupy residential premises on a party to the agreement, (g) an agreement that arises under a term of a mortgage and confers a right to occupy residential premises on a party to the mortgage, (h) an agreement made for the purpose of giving a person the right to occupy residential premises for a period of not more than 3 months for the purpose of a holiday, (i) an agreement that arises under a company title scheme under which a group of adjoining or adjacent premises is owned or leased by a corporation each of whose shareholders has, by virtue of his or her shares, an exclusive right to occupy one or more of the residential premises, (j) an agreement having a term, together with the term of any further agreement that may be granted under an option in respect of it, that is equal to or exceeds 99 years. (2) (Repealed) 1. The relevant provision can only be section 8 (1) (c). Whether this applies would depend upon whether the appellant occupied the premises under an arrangement which could be characterised as board and lodging. In common terms board and lodging refers to the provision of both accommodation and food. There is simply no evidence provided by the appellant to that effect. Even if there was such evidence, it is arguable that once his mother died and he continued to stay in the property any arrangement of that kind in a practical sense would have come to an end. His mother died on 12 June 2017. 2. It will be remembered that the appellant had been ordered to file all of the evidence upon which he wished to rely by 2 October 2018, that he failed to do so, and there is no explanation provided for this failure. 3. There is no or insufficient material to establish that the Act did not apply by reason of section 8(1)(c) or for any other reason, and therefore it seems clear that, prima facie, the agreement the appellant had with his late mother for him and his son to reside in the premises upon payment of monies is a residential tenancy. Prima facie, therefore, this aspect of the appeal has no merit. Was the appellant denied procedural fairness? 1. In his appeal submission the appellant says that he was unfairly deprived of the opportunity of obtaining legal representation at the hearing, such leave having been granted to the respondent who was legally represented. However, it is not clear whether the appellant made that request to the Tribunal, or whether he opposed the respondent having leave to be represented. 2. In order for the appellant to succeed on this ground he would need to demonstrate that by reason of some actual conduct or omission of the Member he was inappropriately deprived of telling him what he wanted to say in defence of the Application. That is, that he was not given a reasonable opportunity to be heard which can amount to a denial of procedural fairness. Again, in having failed to file any evidence as required without any explanation, there is simply no basis for upholding any suggestion that he was deprived of procedural fairness. Even if the appellant had appeared today and made submissions, there would be no evidence upon which we could have found that he was denied procedural fairness such as a transcript of the hearing now under appeal. 3. Even if the appellant proved, which he has not, that he was not given a reasonable opportunity to be heard, he would need to show that that denial of procedural fairness removed from him the possibility of a favourable outcome in the proceedings. As we have already determined that the proposition he wanted to more fully argue has no grounds, that is, that the arrangement by which he resided in his late mother's home was not a residential tenancy, it does not seem to us that even if he had been given a greater opportunity to argue his case at the hearing he would have achieved a more favourable outcome. 4. This aspect of the appeal has no merit. Should the proceedings be adjourned? 1. It is first necessary to deal with the adjournment application. 2. The Appeal Panel has recently said the following about adjournments in Charitable Islamic Association of Beirut City Incorporated v The Owners Strata Plan No 75506 [2018] NSWCATAP 207 (followed in Ghazal v Masterton Home Pty Ltd [2018] NSWCATAP 227): In Donna O'Neil v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [20] to [23], the Appeal Panel made the following remarks in regard to the principles applicable to adjournment applications: "20 In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, a unanimous High Court said: "In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice." 21 That approach is applicable in this Tribunal. Section 36(1) of the Civil and Administrative Tribunal Act 2013 ('the Act') is in relevantly identical terms to s 56(1) of the Civil Procedure Act2005, the provision considered in the Expense Reduction decision. 22 It follows that a number of principles apply to applications for an adjournment: (1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2) an application for an adjournment should be seen as the exceptional rather than the ordinary course; (3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment. 23 Further, there is the effect on the opposing party to consider. In Sayhoun v Owners Corporation Strata Plan 75123 [2014] NSWCATAP 112, an Appeal panel of this Tribunal said at [17], in terms we would adopt: "We are satisfied that the respondent would be prejudiced if an extension of time were granted. That prejudice may be addressed by an award of costs, although we note the remarks of the plurality in Aon Risk Services Aust Pty Ltd v Australian National University[2009] HCA 27; (2009) 239 CLR 175 at [100] that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants; and their approval (also at [100]) of Bowen LJ's statement in Cropper v Smith [1884] 26 Ch D 700 that: Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary." 1. Applying these principles to this application for an adjournment, we have declined to adjourn the Appeal hearing. 2. We have summarised above the factual material available to us, which must be considered in the context that the appellant has absolutely failed to provide any information, evidence or submissions as required by directions issued by this Tribunal a long time ago. Furthermore, the analysis that we have undertaken of our understanding of the issues raised by the appellant in the appeal indicates that it is strongly arguable that the appeal is without merit. Furthermore, the appellant requires leave to extend the time for filing the appeal and has provided no information or evidence of any kind to justify the grant of leave. 3. We have regard to the submissions of the respondent, that any adjournment would cause prejudice which extends beyond costs. That prejudice includes delay in winding up the estate of the parties' mother. 4. In all the circumstances the appeal is highly likely to fail. Any sympathy which the appellant might attract by reason of his medical condition evaporates against the matters to which we have referred above, and the complete failure of the appellant to take any action of any kind to prosecute and support his appeal. We conclude that the application for adjournment should be refused. The determination of these proceedings 1. This then leaves for determination the ultimate fate of the appeal proceedings. The respondent asked that the appeal be dismissed by reference to such evidentiary material and information as was properly before us. 2. Our power to dismiss the proceedings is contained in section 55 of the Civil and Administrative Tribunal Act which is as follows; 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure. 1. For the reasons expressed above, we are of the opinion that the appeal is without merit and is lacking in substance. In addition the appellant requires leave to appeal out of time and has provided no evidence or information in support of the grant of such leave. Leave to extend time is accordingly not given. Furthermore, as we have explained, the appellant has failed to prosecute the appeal in accordance with directions issued by the Tribunal on 4 September 2018 requiring evidence to be filed by 9 October 2018. This is a substantial period of non-compliance, without any explanation of any kind. Both of these matters justify dismissal of the proceedings and we propose to so order. The matter was not dismissed because the appellant failed to appear; they have been dismissed because they were lodged out of time and time was not extended. 2. In so determining we are conscious that the appellant said he was incapable of appearing at the hearing and he provided corroborative medical evidence. In these circumstances, while there may be some sympathy due to the appellant by reference to his medical condition, the circumstances which we have outlined above are such that overall, in the interests of the efficient, effective and just determination of these proceedings, they should be dismissed. We formally declined to grant leave to the appellant to extend time to appeal, and the appeal must be dismissed. Costs 1. The respondent wished to argue that a costs order should be made against the appellant. We will not consider any costs order without giving the appellant an opportunity to be heard. We will reserve costs and grant liberty to apply. Orders 1. Adjournment application dismissed 2. Leave to extend time in which to appeal is declined 3. The appeal is dismissed. 4. Costs are reserved with liberty to apply which must be exercised within 14 days of this date. ********** 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 November 2018