Civil and Administrative Tribunal New South Wales Medium Neutral Citation: El Ali v Antoniou [2019] NSWCATAP 88 Hearing dates: 11 April 2019 Date of orders: 15 April 2019 Decision date: 15 April 2019 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member J Kearney, Senior Member Decision: 1. The appeal is to be dealt with by way of a new hearing pursuant to s 80(3) of the Civil and Administrative Tribunal Act 2013. 2. The application to extend the time for compliance with the conditions of the orders made 12 March 2019 or to otherwise excuse any non-compliance by reason of the failure to pay amounts required by the orders on or before the due date is dismissed. 3. The appeal is otherwise dismissed. Catchwords: PRACTICE AND PROCEDURE – conditional orders – failure to comply with consent orders and conditions agreed therein – power to extend the time for compliance with a condition. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Asia Pacific Glass Pty Ltd v Sindea Trading K Pty Ltd (No 2) (2003) 47 ASCR 737; [2003] NSWSC 845 Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 Texts Cited: Nil Category: Principal judgment Parties: Appellant: Samah El Ali First Respondent: George Antoniou Second Respondent: Georghia Antoniou Representation: Appellant: A Fernon (Counsel) Respondents: M Webhe (Agent) Solicitors: Appellant: Not applicable Respondent: Not applicable File Number(s): AP 18/15490 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 28 March 2019 Before: S Corley, General Member File Number(s): RT 19/06256 reasons for decision Introduction 1. The appellant is a tenant pursuant to a residential tenancy agreement (agreement) of a property at Greenacre (residential premises). 2. The respondents are the landlords of the property. 3. The agreement was terminated by the Tribunal in application RT 19/06256 on 26 February 2019 on the basis the appellant had failed to pay the rent. 4. The appellant appealed that decision in earlier proceedings AP 19/11087. That appeal was settled and, by consent, the Tribunal made the following orders and noted the following agreement (Consent Orders): By consent: 1. The orders made by the Tribunal on 26 February 2019 in application RT 19/06256 are varied as follows: a) Order 3 is varied to suspend the order for possession until 30 May 2019. b) Order 4 (occupation fee) is varied to a rate of $71.43 per day (being $500.00 per week), first payment of the occupation fee, including any amounts payable from 27 February 2019, to be paid on or before 26 March 2019 and thereafter weekly in arrears. c) The amount of rent of $8620.82 in order 6 is to be paid on or before 19 March 2019. d) Order 3 (order suspending the order for possession) is conditional upon the appellant/tenant paying the amounts required by order 1(b) and 1(c) by the due dates. e) In the event the appellant fails to comply with condition 1(d), the respondent/landlord may apply to the Tribunal at first instance in application RT 19/06256 to lift the order for suspension, order 3, as varied by order 1(c ) above. 2. The Tribunal notes the parties otherwise agree to release each other from all claims under the Residential Tenancy Agreement. 3. The appeal is otherwise dismissed. 1. The effect of the Consent Orders was that the tenancy remained terminated. However, the order for possession was suspended to 30 May 2019 on condition that certain payments were made by the appellant to the respondents. 2. All of the conditions were not fulfilled. Consequently, the respondents made an application to the Tribunal in the proceedings at first instance to lift the order suspending the order for possession. 3. This application was heard on 28 March 2018. 4. The Tribunal lifted the order for suspension, thereby allowing the respondents to seek a warrant for possession. The Tribunal provided reasons for decision. 5. The appellant appeals the decision. Notice of Appeal 1. The appellant filed a Notice of Appeal dated 30 March 2019. The Notice of Appeal was filed in time. 2. An application for stay was also made. At the call over of the appeal on 4 April 2019, the Tribunal stayed the order lifting the order for possession on condition that the whole of the occupation fee which might be due for the period 30 May 2019 be paid to the respondents. 3. The grounds of appeal are as follows: 1. The Tribunal erred in construing the terms and/or effect of the consent orders made on 14 March 2019 in that she erred in finding: a. They allow the appellant a significant concession; b. They required strict compliance with the terms; c. They did not permit the Tribunal to exercise a discretion to excuse non-compliance with the terms 2. The Tribunal erred in finding that there was no evidence of any attempt to make the payment of $2000 on 19 March 2019. 3. The Tribunal erred in failing to find and in failing to exercise a discretion to excuse non-compliance with the strict terms of the consent orders. 4. The Tribunal erred in failing to consider relevant evidence of what was said between the Tribunal and the parties on 14 March 2019 in respect of compliance with or enforcement of the consent orders. 5. In the alternative to Ground of Appeal for, the Tribunal erred in exercising its discretion not to excuse non-compliance the strict terms of the consent orders. 6. Tribunal erred in ordering the lifting of suspension of the possession order (order 3) made on 26 February 2018. 1. Directions were made for the parties to file and serve evidence and written submissions and the appeal was fixed for hearing on 11 April 2019. 2. The appellant was represented by Mr Fernon of Counsel. The respondents were represented by the agent, Ms Wehbe. 3. During the hearing of the appeal, the Appeal Panel indicated it may proceed by way of a new hearing as permitted by s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). This was because the Appeal Panel had some concern about the adequacy of the evidence provided to the Tribunal at first instance and on appeal, the explanation of the circumstances in which payments had been made pursuant to the conditions of the Consent Orders, the fact that a transcript of the original hearing was not available due to the need for an expeditious hearing and the fact that the appellant raised issues concerning whether the Tribunal took account of all evidence before it in deciding to lift the order for suspension. 4. The appellant submitted the Appeal Panel should proceed by way of a new hearing under s 80(3) of the NCAT Act. The respondent said the appeal should be dealt with pursuant to s 80(2)(a) of the NCAT Act, the decision of the Tribunal being an interlocutory decision for which leave to appeal was required. 5. In order to facilitate an efficient hearing, the Tribunal determined to receive further evidence from the appellant, which was provided by the appellant's uncle Mr Nathan El Ali, a matter to which we will return below. Consideration 1. There was no dispute that the appeal was in respect of an interlocutory decision. Consequently, leave to appeal is required in accordance with s 80(2)(b) of the NCAT Act. 2. There was no dispute that the principles applicable to the grant of leave were those set out in the Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54. New Hearing – s 80(3) 1. However, we have decided in the present case that we should proceed by way of a new hearing pursuant to s 80(3) of the NCAT Act. In doing so we should permit the further evidence provided by the appellant's uncle, Mr El Ali. 2. The reasons are as follows. 3. There was, on the documentary material, some ambiguity concerning what the documents recorded in terms of payments made. There was also issues arising from the statement of Mr El Ali dated 27 March 2019 which was relied on for the purpose of the appeal and, in the absence of the transcript of the proceedings at first instance, we are satisfied that it was appropriate for Mr El Ali to be permitted to provide further oral evidence and for that evidence to be tested by cross-examination. This also provided the Appeal Panel with an opportunity to ask its own questions concerning the circumstances in which various payments were made. 4. During the course of this evidence, various documents were tendered by the appellant. These were: 1. Exhibit A – transaction record showing $2000.00 was paid by electronic funds transfer to the respondent's agent on 27 March 2019 at 15:14. 2. Exhibit B – transaction record showing $5000.00 was paid by electronic funds transfer to the respondent's agent on 19 March 2019 at 11:20. 3. Exhibit C – transaction record showing $1620.82 was paid by electronic funds transfer to the respondent's agent on 19 March 2019 at 19:58. 1. In relation to the evidence provided, including the oral evidence of Mr El Ali, we make the following findings of fact: 1. The appellant's uncle, Mr El Ali, was responsible for ensuring payments were made in connection with the amounts due pursuant to the conditions of the Consent Orders. 2. At all relevant times, the appellant and her uncle knew that, pursuant to order 1(c) of the Consent Orders, an amount of $8620.82 was to be paid to the respondents on or before 19 March 2019. 3. Mr El Ali arranged to process and did process two payments from a St George Bank account on 19 March 2019. These payments were for $5000.00 made at 11:20 AM (Exhibit B) and $1620.82 made at 19:58 (Exhibit C), both payments made to the respondents' agent "Deft Rent" account number #####. 4. Mr El Ali attempted to make a third payment of $2000.00 at about the time the amount of $1620.82 was paid. However, this transaction was not completed by him, for reasons presently unknown and unexplained. 5. At the time the first payment of $5000.00 was made on 19 March 2019, Mr El Ali believed he had a transaction limit of $5000.00 per day only. That is, he understood at that time he may not be able to transact any further payments. 6. Later on the same day, 19 March 2019, Mr El Ali attempted to make two further payments at around 19:58 hours. As indicated above, the only payment which was successfully processed was for $1620.82, the payment of $2000.00 not been completed in his online banking application. 7. On or about 20 or 21 March 2019, Mr El Ali was aware that the respondent had not received all payments due. In particular, he knew that the amount of $2000.00 had not been received. He was also aware at this time that the amount of $2000.00 had not in fact been transferred from his bank account. That is, the transfer of $2000.00 which he had attempted on 19 March 2019 was unsuccessful. 8. Despite knowing of this fact, Mr El Ali took no steps to immediately pay the amount of $2000.00 which then remained outstanding pursuant to order 1(c). This amount was not transferred until 27 March 2019. 1. In her written submissions, the appellant says that non-compliance with the Consent Orders should be excused. Reliance was placed on s 188 of the Residential Tenancies Act, 2010 (NSW) (RT Act) as providing power to vary the Consent Orders. 2. During the course of submissions, the Appeal Panel pointed out that a condition imposed in making an order was not enforceable and is not, of itself, a source of an obligation. In this regard the Appeal Panel referred the appellant to the decision of Barrett J in Asia Pacific Glass Pty Ltd v Sindea Trading K Pty Ltd (No 2) (2003) 47 ASCR 737; [2003] NSWSC 845. At [13] his honour said: A condition of the kind with which I am concerned is not, of itself, a source of obligation. The successful plaintiff is not, by the conditional order, directed to do the things that make up the condition. Failure by the plaintiff to do those things does not entail, in any sense, disobedience: Talbot v Blindell [1908] 2 KB 114. It is just that the plaintiff has not done things the doing of which is, by the terms of the order, necessary to secure for the plaintiff the benefit of the order. The concept underlying a conditional order is that the Court, by the condition, specifies what the successful party must do in order to have the benefit of the order; and it is then for that party to decide whether he or she will take the specified steps and secure that benefit or not take them and thereby forgo it. There has been some discussions of these matters at appellant level in England (city of Westminster Assurance Co Ltd v Ainis [1975] 29 P & CR 469) and New Zealand (McIvor v Donald [1984] 2 NZLR 487). 1. Therefore, there was some doubt that s 188 of the RT Act, which permits variation of orders, to be a source of power to "excuse" the non-compliance with a condition. On the other hand, the condition was on terms that orders specifying dates be complied with. As such, extending the time to comply with the orders may have the same effect. 2. However, in our view, s 41 of the NCAT Act would permit the Tribunal to extend time. This is because there is a power to "extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation" and an application to do so "may be made even though the relevant period of time has expired". This would include the time for compliance with a condition which the Tribunal could impose in respect of any order as permitted by s 58 of the NCAT Act. 3. While the appellant conceded she did not make an application to extend time under s 41 of the NCAT Act in the proceedings at first instance, because we have decided to proceed with a new hearing it is appropriate for us to treat the submissions made as such an application for the purpose of this hearing. 4. The appellant says a decision whether or not to extend time involves the exercise of a discretion. We agree. 5. In connection with the decision of the Tribunal at first instance, one complaint raised was that the decision reflected a view by the Tribunal that only the respondents had made any significant concessions in settling the proceedings and entering into the Consent Orders. Consequently, the Tribunal's approach to determining whether the appellant's conduct should be excused failed to have regard to the fact that both parties had compromised their position in entering into the Consent Orders. In this regard, the appellant referred to the mutual releases noted by the Appeal Panel. 6. The appellant then submitted that all payments of rent had now been made and that a reasonable explanation for the default in satisfying condition 1(c) had been provided. Mr El Ali had explained why he had not arranged to reprocess the payment for $2000 due to "uncertainty" which arose from the fact that the respondents had sought to if the order for suspension. In this regard Counsel for the appellant submitted from the bar table (without evidence) that the payment of $2000 was subsequently made by Mr El Ali in consequence of advice which Counsel provided to him. 7. Consequently, to the extent necessary, the appellant seeks an order to vary the conditions so as to extend the time for payment until the dates they were in fact made. 8. In our view, it is inappropriate to extend time in the circumstances of this case. 9. Our reasons are as follows: 1. The original termination order was made on 26 February 2018 for non-payment of rent. The Consent Orders constituted a compromise of all claims by the parties in respect of the residential tenancy agreement on terms that the appellants could remain in possession of the residential premises on condition all outstanding rent was paid by 19 March 2019. The included a reduction of the occupation fee payable to the respondents. 2. The responsibility for meeting the conditions of the Consent Orders in respect of payments at all times remained with the appellant. There are no actions of the respondents which contributed to the default. The appellant did not meet all of these conditions as agreed. 3. The evidence of Mr El Ali is that he did not make payments in respect of the outstanding rent of $8620.82 until 19 March 2019, being the date that payment was due. He did so in circumstances where an initial transfer of $5000.00 was made in the belief that no further payments could be made on that day. That is, if we accept his evidence as to the first payment and his expectations at that time, he knew on the morning of 19 March 2019 that if his understanding was correct as to the account limits for daily transfer, the condition could not be met. This conduct suggests there was no intention at that time to pay the whole of the funds on 19 March 2019, but rather to pay any balance the following day or at a later time. 4. The fact that payment of $1620.82, made later in the day, succeeded against Mr El Ali's expectations that there was a limit to his online bank account that would prevent payment, does not alter our view that at the time the payment of $5000.00 was made, Mr El Ali had no intention to pay the whole of the sum of $8620.82 by 19 March 2019.. 5. Further, Mr El Ali gave evidence that he received email confirmations of payment processed which he did not check. Counsel for the appellant accepted that this conduct was "careless" but was not conduct which was in disregard of the obligations which the appellant had agreed to by the Consent Orders. In our view this conduct demonstrates an indifference to ensuring that the agreement reached in order to settle the appeal proceedings by the Consent Orders would be performed according to its terms and that the consent orders would be complied with in the specified time. 6. In relation to the $2000.00 payment, we do not accept Mr El Ali's statement that he would have "rectified immediately" any failure of the transaction. He knew there was an agreement in place which required the payment of the whole amount of $8620.82 by 19 March 2019 and an order to this effect. Irrespective of any "uncertainty" which he suggests existed in his own mind, he took no steps to perform the agreement which constituted a compromise by both parties of their rights on strict terms of performance. 7. The conduct of Mr El Ali must be imputed to the appellant. She has not provided any evidence to distance herself from her uncle's conduct. She did not attend the hearing of the appeal or otherwise provide evidence concerning her default. Rather, we can only infer that she authorised her uncle to act on her behalf in meeting obligations under the agreement in the manner he did, an inference corroborated by the evidence of Mr El Ali. 8. The grant of an extension of time would impose upon the respondents a timeframe for payment to which they had not agreed in circumstances where there was a history of non-payment of rent prior to the entry of the Consent Orders. 9. Finally, the conduct not only constituted a failure to comply with the condition, but was a breach of the Tribunal's orders to pay by a specified date, made by consent, for which no sufficient explanation has been provided. 1. In these circumstances, we are not satisfied that the time for compliance with the conditions should be varied or that the appellant should be excused from the obligations which she accepted in entering into the Consent Orders. 2. The appellant submitted that she had now paid all amounts which were due. In this regard we note the appellant has "prepaid" the whole of the occupation fee that would be payable for the period until 30 May 2019, being the date to which the appellant was entitled to remain in possession if the Consent Orders had been complied with and the conditions met. 3. This payment was made as a condition to the stay granted for the purpose of this appeal. However, it does not alter our view that the appellant did not comply with the express terms of the agreement originally made and failed to meet her agreed obligations on a timely basis. 4. Consequently, we decline to extend the time for compliance with the conditions and the appeal should be dismissed. Orders 1. It follows from the above that we should make the following orders: 1. The appeal is to be dealt with by way of a new hearing pursuant to s 80(3) of the Civil and Administrative Tribunal Act, 2013. 2. The application to extend the time for compliance with the conditions of the orders made 12 March 2019 or to otherwise excuse any non-compliance by reason of the failure to pay amounts required by the conditions on or before the due date is dismissed. 3. The appeal is otherwise dismissed. 1. We indicated at the conclusion of the hearing that we would adjourn these proceedings until 15 April 2019 for the purpose of delivering our decision and deciding what consequential orders should be made. This was to allow the parties to prepare submissions concerning what orders should be made in the event the appeal was dismissed and the time for delivery up of possession needed to be re-fixed. Orders should also be made for repayment of any prepaid occupation fee, depending on the date the appellant actually vacates the residential premises. 2. Subject to any orders that might be made in consequence of the above, it is unnecessary to make any order concerning the existing stay order made by the Appeal Panel on 4 April 2019 as that stay expired on 11 April 2019. 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: 16 April 2019