Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zhang v Tam [2019] NSWCATAP 32 Hearing dates: 17 January 2019 Date of orders: 25 January 2019 Decision date: 25 January 2019 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President S Montgomery, Senior Member Decision: (1) Leave to appeal is refused; and (2) The Appeal dismissed. Catchwords: Appeal – out of time – no error identified Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Guan Bo Zhang (Appellant) Thomas Tam (Respondent) Representation: G Zhang (Self Represented)(Appellant) K Brown (Agent)(Respondent) File Number(s): AP 18/47903 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 4 September 2018 Before: S Sutherland, General Member (RT 18/16746 & RT 18/21576)R Titterton, Principal Member (RT 18/40874) File Number(s): RT 18/16746, RT 18/21576 & RT 18/40874 REASONS FOR DECISION Background 1. This is an appeal from decisions made in the Consumer and Commercial Division of the Tribunal concerning a residential tenancy agreement. Under that agreement the appellant was the tenant and the respondent to the appeal was the landlord. It is convenient to refer to the parties as "the tenant" and "the landlord". Prior Developments 1. It is helpful in order to understand this appeal to have a brief chronology of the progress of applications in the Tribunal concerning the parties. That brief chronology is set out in the following paragraphs. 2. On 28 June 2018 the Tribunal heard an application brought by the tenant for compensation and a rent reduction and also heard an application brought by the landlord for payment of arrears of rent and termination of the tenancy. 3. The Tribunal reserved its decision following the hearing on 28 June 2018 and published its decision and orders on 17 August 2018 (the "17 August Decision"). The orders provided for: 1. the tenancy to be terminated as at 17 August 2018 and for possession to be provided on or before 30 August 2018; 2. the tenant to pay a daily occupation fee of $55.71 from 18 August 2018 until the date vacant possession was given. The wording of this order clearly contains an error in that the reference to 30 August 2018 should have been 17 August 2018 because that was the date of termination; 3. the tenant to pay arrears of rent of $4,290.00 for the period to 28 June 2018, such amount to be paid on or before 30 August 2018; 4. the landlord to have the opportunity to relist the application for the purposes of determining any further rent arrears and the occupation fee; and 5. the tenant's ledger to be credited with three different amounts. The first was an amount for a period of 11 days during which the Tribunal decided the rent payable was excessive and there should have been no rent payable. The second credit concerned an order that in respect of the period from 27 March 2018 until 17 August 2018 the rent should be reduced to $702.00 (instead of the agreed amount of $780.00) per fortnight. The third credit concerned an amount of $120.00 to reimburse the tenant for the cost of pest eradication. 1. In short, the tenant was required to pay the sum of $4,290.00 before 30 August 2018, the landlord was required to credit the tenant's ledger with certain amounts described in the orders and there was an order for a relist to determine further arrears and the occupation fee. 2. The proceedings were relisted for hearing on 4 September 2018 for the purposes of making orders concerning rent from 28 June to 17 August 2019 and the occupation fee. However, the orders made on 4 September 2018 were later set aside, presumably because the tenant was absent and was successful in making a set aside application by reason of his absence. 3. The application to determine the further rent and occupation fee then came before the Tribunal on 27 September 2018 and the Tribunal published its decision on 5 October 2018. Following an application made under s 63 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) the Tribunal Member corrected some errors made in the decision of 5 October 2018 and on 10 October 2018 published a revised decision under s 63. The effect of the revised decision was to require the tenant to pay the landlord $3,818.54. That amount incorporated not only the rent before and after 28 June 2018 and the occupation fee for the period of the tenant's occupation after the tenancy had terminated, but also the amounts required to be credited having regard to the orders made in the 17 August Decision. In other words, the 10 October decision incorporated the tenant's obligation to pay arrears of rent and the landlord's obligation to provide credits to the tenant having regard to the orders made in the 17 August Decision. Notice of Appeal 1. The tenant appeals the decision made on 10 October 2018 and also appeals the decision of 17 August 2018 insofar as it concerns the landlord's application (RT 18/20576). The tenant does not appear to appeal the decision of 17 August 2018 insofar as it concerns the tenant's application (RT 18/16746). 2. The Notice of Appeal was filed on 5 November 2018 but the Notice of Appeal does not say when the decision of 10 October 2018 was received. At the appeal hearing, the tenant said the decision was received the same day (10 October 2018). 3. An appeal of this nature must be filed within 14 days of the date of receipt of the decision under appeal: see r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the Rules). The appeal is therefore out of time. However, the Tribunal may extend time but would require the tenant to make an application for extension of time with accompanying reasons for the delay and provide submissions in support of extending time. 4. The tenant appears to recognise that an appeal from the decision of 17 August 2018 is out of time, and in the Notice of Appeal sought leave to appeal. He explained the delay upon the basis that he had thought that the proceedings culminating in the orders of 10 October 2018 were a mere continuation of the case decided on 17 August 2018. The tenant does not seek leave to appeal the orders made on 10 October 2018 upon the basis that that appeal was filed within 28 days of 10 October 2018. That view is mistaken as the relevant period is 14 days: see r 25(4)(b) of the Rules. The tenant's explanation at the appeal hearing for filing the appeal out of time was that he sought to have the decision corrected on the basis that it contained obvious errors relying upon s 63 of the NCAT Act rather than lodging an appeal. Grounds of Appeal 1. The tenant's grounds of appeal may be summarised as follows: 1. the 17 August Decision requiring him to pay $4,290.00 "appears to be erroneous" given the other orders for reduction of rent and given the rent paid totalling $1,560.00; 2. the order which reduced the rent by approximately 10% from $780.00 to $702.00 per fortnight is against the weight of evidence and a larger reduction should have been ordered; and 3. the Principal Member's calculations in the decision of 10 October 2018 are erroneous. The tenant says that he was not required to pay an occupation fee until after 30 August 2018 and therefore there was no such fee payable because he moved out on 30 August 2018. The tenant's submissions state that there should be an order for the payment of $956.00 to him and he sets out the basis for that calculation. Decision 1. Given our decision concerning the merits of this appeal, it is not necessary to explain the landlord's position. It is sufficient to say that the landlord filed a Reply to Appeal and opposes the appeal. Ground 1 1. The orders made on 17 August 2018 have been summarised above. Essentially, they required the tenant to pay an amount for arrears of rent but also required the landlord to credit the tenant's ledger. Accordingly, the tenant is mistaken in describing the order requiring him to pay $4,290 as erroneous on the basis that by a separate order the rent was reduced. The decision of 17 August 2018 expressly required the tenant's ledger to be credited with the amounts decided in the tenant's favour. Insofar as this ground also concerns a submission that the Tribunal failed to take into account rent paid by the tenant that submission is to be rejected. This is because the decision of 5 October 2018 (amended as at 10 October 2018) expressly took into account rent paid. Ground 2 1. This ground concerns the tenant's submission that the reduction in rent was insufficient. The 17 August Decision makes it clear that that reduction was ordered because the air-conditioning unit in the premises was not working. The tenant submitted to us that in his opinion, the amount of the reduction should have been greater. He did not provide us with the evidence which the Member at first instance had considered, and nor did he submit how that evidence should or could have led to a greater reduction. Appeals from decisions in the Consumer and Commercial Division are regulated by s 80 of the NCAT Act and by cl 12 of Sch 4 of the NCAT Act. Where a question of law is involved, the appellant may appeal as of right, but otherwise leave may only be granted in the circumstances set out on cl 12. Here, no error of law has been identified. In our view, there is no basis for invoking the provisions of cl 12 to grant leave to the tenant. The tenant's submissions do not demonstrate that the decision under appeal was not fair and equitable (cl 12(1)(a)) or was against the weight of evidence (cl 12(1)(b)). Accordingly, this ground of appeal is rejected. Ground 3 1. The tenant's submission that there was no order to pay for any other periods and in particular that the occupation fee did not commence until after 30 August 2018 is also rejected. In our view, the tenant relies upon a clear typographical error in Order 4 made on 17 August 2018. That order required the tenant to pay a daily occupation fee "from the day after the date of termination [i.e. 17 August 2018], namely the date after 30 August 2018 until the date vacant possession is given to the landlord". Clearly, the reference to 30 August 2018 should have been 17 August 2018 because that was the date of termination. Were the position to be as contended for by the tenant, the result would be that the tenant would receive free occupation from 17 August 2018 to 30 August 2018. The tenant's calculations as to what is payable are erroneous in that they fail to take into account rent between 28 June and 17 August 2018 and the daily occupation fee between 18 and 30 August 2018. 2. At the appeal, considerable time was taken up in considering the tenant's submissions that the calculations made by the Tribunal in the decision of 10 October 2018 were erroneous. Although there may have been some typographical errors (for example the statement that the relevant period consisted of 197 days towards the end of the decision is an error and should have been 167 days), the position in our view is that the tenant was unable to demonstrate any error in the calculations. The discussion of the many alleged errors raised by the tenant at the appeal hearing resulted in the tenant acknowledging that the relevant calculations were correct. Towards the conclusion of the appeal hearing, the tenant's position was that he acknowledged owing $3,429.00 whereas the order required him to pay $3,818.54. 3. The tenant submitted that the occupation fee payable from 17 to 30 August 2018 had been calculated at a rate of $55.71 instead of the rate of $50.14 per day. On reviewing the decision of 10 October 2018, we hold a contrary view. The approach taken in that decision was to calculate the "gross rent" from 17 March 2018 to the date of termination on 17 August 2018 to produce a total figure of $9,303.57. The decision then listed a number of deductions to be made. These include the rent actually paid, an amount to recognise the reduced rent ordered in the 17 August Decision, an amount for compensation ($120.00) and the fact that the landlord had received the bond. In our view, the occupation fee was not included. If that is an error, it is to the tenant's advantage. 4. In summary, we are of the opinion that the tenant's appeal must fail, as the tenant has not demonstrated any error of law or a leave ground. 5. The final question is whether we should extend the time for lodgement of the appeal. Insofar as the appeal is an appeal from the decision of 17 August 2018, it is significantly out of time. Insofar as the appeal is an appeal from 10 October 2018 decision, it is out of time by a couple of weeks. The relisting of the landlord's application after 17 August 2018 came about at the behest of the landlord who sought orders for arrears of rent and the occupation fee. The relisting was not intended to be a vehicle for the tenant to ventilate dissatisfaction with the decision of 17 August 2018. The tenant's explanation for the delay in filing the appeal insofar as it concerned the 10 October 2018 decision is also unconvincing. The tenant was aware that he had a limited time in which to appeal. He mistakenly thought it was 28 days. Although he may have attempted to have the decision of 10 October 2018 amended again on the basis of it containing an error, that separate action is, in our view, not an excuse for filing the appeal out of the requisite time. 6. Appeal Panel decisions in this Tribunal have set out the factors which an Appeal Panel should consider when considering extending time for the filing of an appeal. Essentially, those factors involve a consideration of the length of the delay in filing the appeal, the reasons for the delay and whether an injustice would result in a decision to not extend time. Here, the period of the delay is significant given the tight timeframes which the Rules provide for the filing of tenancy appeals. Secondly, the reasons for the delay are not, in our opinion, persuasive. Thirdly, in our view, no injustice arises by reason of refusing leave given our view on the merits of the appeal. 7. In these circumstances, the appropriate orders are for leave to appeal to be refused and for the appeal to be dismissed. Orders The Appeal Panel makes the following orders: 1. Leave to appeal is refused; and 2. The Appeal dismissed. ********** 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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