Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Brock v Seymour [2019] NSWCATAP 277 Hearing dates: 23 October 2019 Date of orders: 21 November 2019 Decision date: 21 November 2019 Jurisdiction: Appeal Panel Before: A Bell SC, Senior Member S Thode, Senior Member Decision: Leave to appeal is refused and the appeal is dismissed. Catchwords: APPEAL – Error of Law - Conduct of parties at hearing – Failure of Appellant to comply with Directions to provide sound recording or transcript of the hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Nicola Brock (Appellant) Shane Seymour (First Respondent) Melissa Seymour (Second Respondent) Representation: Solicitors: Hicksons Lawyers (Appellant) First Respondent (Self Represented) Second Respondent (Self Reprseented) File Number(s): AP 19/37974 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 2 August 2019 Before: J.M.Rickards, Tribunal Member File Number(s): COM 18/48987; COM 18/48988; COM 19/3783 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 against a decision made in the Consumer and Commercial Division of the Tribunal on 2 August 2019. 2. The appeal was brought by Ms Brock against Mr and Ms Seymour. 3. For the reasons set out below, we have decided to refuse leave to appeal (to the extent to which leave is required) and to dismiss the appeal. Background 1. The proceedings relate to shop premises owned by Mr and Mrs Seymour which were occupied for a period of time by Ms Brock as lessee, commencing on or about 2 June 2017. Ms Brock operated a cafe business at the premises. There was no dispute that the Retail Leases Act 1994 (NSW) applied to the lease. 2. Disputes arose between the parties in relation to rent arrears claimed by Mr and Ms Seymour and in relation to alleged defects within the building alleged by Ms Brock. 3. On 15 November 2018 Ms Brock commenced proceedings in the Tribunal seeking interim relief against a threat of lock-out which had been made by Mr and Ms Seymour. Mr and Ms Seymour then locked Ms Brock out of the premises on 17 November 2018. An order for relief against forfeiture was made by the Tribunal on 23 November 2018 but Ms Brock did not return into possession of the premises. 4. Ms Brock sought orders for compensation for loss of profit; relieving her from any obligation to pay rent over the period during which she did not operate the business at the premises; and confirming her right to re-enter occupation of the premises as lessee under the terms of a continuing lease. Mr and Ms Seymour sought orders confirming termination of the lease; for payment of rent arrears; and for permission to retain and sell Ms Brock's equipment, furniture and other items in order to recover part of the claimed outstanding arrears. 5. Prior to the hearing before the Tribunal the parties undertook formal mediation through the Office of the Small Business Commissioner on 24 January 2019. The mediation was successful and the parties entered into a written mediation agreement dated 24 January 2019 which was signed by the parties (Mediation Agreement). Tribunal proceedings and decision 1. The Tribunal, in essence, held that the Mediation Agreement had resolved the dispute between the parties and that their respective rights and obligations under the terms of the lease had been replaced by their rights and obligations under the Mediation Agreement. 2. In light of that finding, the Tribunal made orders in accordance with the terms of the Mediation Agreement that: 1. the retail lease agreement between the parties was declared to be terminated as and from 22 February 2019; 2. Mr and Ms Seymour pay Ms Brock $10,195 .00; and 3. upon payment of that amount to Ms Brock, Mr and Ms Seymour could retain, sell or otherwise dispose of any items presently located at the premises at their absolute discretion. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 to the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Submissions and evidence 1. In deciding the appeal, we have had regard to the following: * The Notice of Appeal lodged on 21 August 2019 * The Reply to Appeal lodged on 7 September 2019 * Ms Brock's Amended Submissions lodged on 4 September 2019 * Mr and Ms Seymour's response to the appellant's written submissions lodged on 9 September 2019 * The oral submissions made to us at the hearing on 23 October 2019 Applications 1. During the hearing of the appeal on 23 October 2019, Mr Pardy, for Ms Brock, made two applications for the hearing to be adjourned and Mr Seymour made an application under section 55 (1) (b) of the NCAT Act that the appeal be dismissed on the grounds that the appeal was frivolous or vexatious or otherwise misconceived or lacking in substance. We refused each of these applications. 2. At the commencement of the hearing Mr Pardy applied for an adjournment on the basis that whilst he had written instructions from Ms Brock concerning the appeal, he had not been able to contact her in the previous few days to obtain updated instructions. Mr Pardy said that Ms Brock had referred to an upcoming funeral and had also indicated some uncertainty about the date of hearing for the appeal, which Ms Brock had initially understood to be on 29 October 2019. 3. We refused the adjournment application because Mr Pardy had written instructions from Ms Brock to conduct the appeal and was well able to represent Ms Brock's interests at the hearing of the appeal in her absence. 4. Mr Seymour then applied for an order under section 55 (1) (b) of the NCAT Act for summary dismissal of the appeal on the grounds that the appeal was frivolous or vexatious or otherwise misconceived or lacking in substance. The factual basis for the application was a claim by Mr Seymour that the appeal had in fact been settled. Mr Pardy disputed that the matter had been settled. The evidence referred to by Mr Seymour indicating that the appeal had been settled was equivocal. There was no settlement agreement in writing signed by both parties, which would have given us power to dismiss the appeal to give effect to an agreed settlement pursuant to section 59 (1) of the NCAT Act. In these circumstances we were not able to conclude that the appeal had been settled and we dismissed Mr Seymour's application. 5. At the conclusion of the hearing of the appeal, Mr Pardy made a further application for an adjournment on behalf of Ms Brock. The application at this time was put on the basis that Mr Pardy had received a text from Ms Brock confirming that she was in fact attending a funeral at the time of the hearing. This further application for an adjournment was also refused on the same basis as the earlier application, namely that Mr Pardy had written instructions from Ms Brock and was able to represent her interests at the hearing of the appeal in her absence. Grounds of Appeal 1. The first ground of appeal identified by Ms Brock in her Amended Submissions, as amplified by Mr Pardy in his oral submissions, was that the Tribunal Member had made an error of law in determining the matter by reference to the Mediation Agreement. This ground had two aspects. The first aspect was that it was put that Ms Brock, who was unrepresented at the hearing, had no adequate opportunity to put on evidence to meet the claim that the matter had been settled by the terms of the Mediation Agreement. The second aspect was that it was put that there was no analysis by the Tribunal Member of whether the Mediation Agreement was still in force at the time of the hearing. Alternatively, as we understood it, Ms Brock sought leave to appeal on the basis of these considerations. 2. In relation to this ground of appeal, Mr Seymour reminded us that Ms Brock had made a choice not to have legal representation at the hearing before the Tribunal Member, just as she had made a choice to be legally represented at the hearing of the appeal. 3. A second ground of appeal by Ms Brock was an application for leave to appeal on the basis of new evidence presented in relation to the economic loss suffered by Ms Brock as a result of her being locked out of the premises. Consideration 1. An insurmountable problem for Ms Brock in relation to the asserted error of law by the Tribunal was her failure to comply with a direction made by the Appeal Panel prior to the hearing of the appeal for her to provide the sound recording of the hearing before the Tribunal Member and a transcript of the hearing, insofar as it was being relied upon . 2. Without any knowledge of what occurred at the hearing before the Tribunal Member it is impossible for us to conclude that Ms Brock did not have an adequate opportunity to put on evidence in relation to the Mediation Agreement. Nor, in the absence of being provided with a sound recording or a transcript, is it possible for us to conclude that the reasons given by the Tribunal Member in relation to the Mediation Agreement were inadequate. It is true that there was no consideration by the Tribunal Member of the possibility that the Mediation Agreement was no longer in force. However, the failure to explore that possibility does not mean there may have been an error of law. For all we know, the reason why there was no consideration of the possibility that the Mediation Agreement was not in force was because at the hearing Ms Brock acknowledged that the agreement was still in force and binding upon her. 3. It can be seen that both aspects of the alleged error of law depend upon an analysis of what occurred at the hearing before the Tribunal Member. As Ms Brock has failed to comply with the directions of the Appeal Panel to supply us with this information, this ground of appeal must fail. 4. In relation to the second ground of appeal raised by Ms Brock, Mr Pardy frankly, and in our opinion, correctly, acknowledged that the further evidence proffered did not satisfy the test of "significant new evidence" required by cl 12(1) of Schedule 4 to the NCAT Act. It follows that this ground of appeal also fails. Conclusion 1. Leave to appeal is refused and the appeal is 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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