Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dimitriou v Sigdel [2019] NSWCATAP 33 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: Insofar as the appeal concerns the landlords' application (RT 18/42934): (1) the Appeal is dismissed; and (2) the orders made on 19 November 2018 are affirmed, subject to amending the amount in order 8 to $11,348.67. Insofar as the appeal concerns the tenant's application (RT 18/43565): (1) The application is reinstated and remitted to the Consumer and Commercial Division for directions and hearing. Catchwords: Appeal – no error – reinstatement Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act, 2010 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Georgina Dimitriou and Steven Heapy (Appellants) Surendra Sigdel and Sarita Sigdel (Respondents) Representation: G Dimitriou & S Heapy (Self Represented)(Appellants) J Lee (Agent)(Respondents) File Number(s): AP 18/50897 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Act Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 19 November 2018 Before: C Marzilli, General Member File Number(s): RT 18/42934 & RT 18/43565 REASONS FOR DECISION Background 1. This is an appeal from two decisions made in the Consumer and Commercial Division of the Tribunal published on 19 November 2018. The decisions concerned a dispute between the parties who had entered into a residential tenancy agreement. The appellants are the tenants and the respondents to the appeal are the landlords. 2. The decision under appeal in regard to the tenant's application (RT 18/43565) was to dismiss the application for non-appearance. 3. The decision under appeal in regard to the landlords' application (RT 18/42934) made orders terminating the tenancy and ordered the tenants to provide possession to the landlords immediately. There was an order for an occupation fee to be paid from 20 November 2018 at the rate of $64.29 per day. In addition, there was an order requiring the tenants to pay the sum of $9,035.71 for arrears of rent that was for the period from 27 June 2018 and took into account the sum of $350,00 paid on account. Notice of Appeal 1. The Notice of Appeal was filed on 29 November 2018. The Grounds of Appeal are not clear. However, in the Notice of Appeal, the tenants assert that the decision made was not fair and equitable and make a number of submissions. These submissions essentially are to the effect that the tenancy agreement was void or partly void, does not comply with the Residential Tenancies Act, 2010 (RT Act) and is misleading and deceptive. There is an assertion that the property was uninhabitable and that the landlords' agent did not have an appropriate licence. There was reference to a cross claim brought by the tenants, about which we will say more later in these reasons. Decision 1. The Tribunal made directions for the parties to exchange submissions. The tenants have provided an email dated 27 December 2018. The email lists a number of complaints concerning the Registry and the failure of the Tribunal previously to grant an adjournment. It also submits that the agent was not licensed, that rental payments have not been accounted for, that the notice of termination was not valid and the ledgers are fraudulent. None of these assertions are supported by evidence. 2. The basic facts are not in dispute, namely that the tenants were in occupation of the premises owned by the landlords for a considerable period and paid rent until approximately 28 June 2018. Thereafter they ceased making any payments (except for a payment of $1480.00 on 18 December 2018). On the basis that the agreement is enforceable, there does not appear to be any evidence contradicting that finding that the tenants were in breach of their obligations to pay rent or that orders made by the Tribunal on 19 November 2018 were appropriate. 3. It is also relevant to record that the tenants lodged a separate claim for compensation and rent abatement. This is evident from the terms of the directions made by the Tribunal on 18 October 2018, in which there was a direction for the tenants to provide to the Tribunal and to the landlords documents in support of the tenants' applications under various sections of the RT Act. Those directions were made not only in the proceedings under appeal, but also in separate proceedings brought by the tenants (application RT 18/43565) (the tenants' application). The tenants' application came before the Tribunal on 19 November 2018. An application by the tenants for an adjournment was refused and the Tribunal dismissed the application because of the nonappearance of the tenants. 4. Although the Notice of Appeal appears on its face to appeal only the decision in the landlords' application, nevertheless, various statements are made in the Notice of Appeal which arguably suggests that the tenants intended to also appeal the dismissal of the tenants' application. 5. In our view, the appeal in respect of the landlords' application (RT 18/42934) should be dismissed and we indicated at the hearing that such an order would be made with our reasons to follow. Our reasons for dismissing the appeal are as follows: 1. There is no evidence supporting the proposition that the residential tenancy agreement was void. The fact that it appears to have been entered into by an agent for undisclosed landlords does not render the agreement void. The identity of the landlords has since been disclosed and they are the respondents to this appeal; 2. The fact that the agent may or may not have had a licence does not impact upon the efficacy of the residential tenancy agreement; and 3. The tenants' contentions that the premises were uninhabitable were not supported by the provision of evidence. Similarly, there is no evidence that the rental ledgers are fraudulent. 1. In summary, the tenants' were not able to demonstrate that there was any error made in the decision under appeal insofar as it concerns the landlords' application. Nor are we satisfied that there is a basis for deciding leave to appeal should be granted under cl 12 of Sch 4 of the NCAT Act. 2. Insofar as the tenants have appealed the decision in respect of the tenants' application, it is our view that that application should be reinstated and at the conclusion of the hearing of the appeal we made an order accordingly. The reason for reinstatement is as follows: 1. The tenants submitted that evidence was supplied to the Tribunal on the day of or the day before the hearing on 19 November 2018 in support of their application for compensation and rent abatement. That evidence appears not to have been considered by the Member. The tenants were not able to provide a copy of that evidence to us at the appeal hearing. If such evidence was supplied, as the tenants contend, it is in the interests of justice that that evidence be considered by the Tribunal; and 2. The tenants appear to be at some disadvantage in articulating their case and accordingly, it is the Appeal Panel's view that that consideration, as well as the fact that evidence was allegedly submitted to the Tribunal, supports the conclusion that it would be just and equitable to enable the tenants' case to be ventilated and considered by the Tribunal. This approach is consistent with the requirements contained in s 38(4) of the NCAT Act, that the Tribunal should act according to equity and good conscience. 1. The decision to reinstate the tenants' application does not impact upon or cause any delay in the landlords being able to enforce the orders made in respect of the landlords' application. Notwithstanding the existence of the tenants' application they are not entitled to withhold payment of rent. Accordingly, the landlords are able to enforce the order for possession and recover arrears of rent and the occupation fee. If the tenants are later successful in their application for compensation and rent abatement, then they will be entitled to the return of money "overpaid". 2. The landlords' representative (Mr Lee) gave evidence to the effect that the tenants are still in possession and that the arrears of rent to date total $11,348.57. We find that that is the current amount of arrears. Orders 1. In the above circumstances, the Appeal Panel makes the following orders. 2. Insofar as the appeal concerns the landlords' application (RT 18/42934): 1. the Appeal is dismissed; and 2. the orders made on 19 November 2018 are affirmed, subject to amending the amount in order 8 to $11,348.67. 1. Insofar as the appeal concerns the tenant's application (RT 18/43565): 1. The application is reinstated and remitted to the Consumer and Commercial Division for directions and hearing. ********** 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: 25 January 2019