Bhana v Chamoun - [2017] NSWCATCD 105

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Bhana v Chamoun [2017] NSWCATCD 105
Hearing dates: 30 October 2017
Date of orders: 15 November 2017
Decision date: 15 November 2017
Jurisdiction: Consumer and Commercial Division
Before: P French, General Member
Decision:
(1) Pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 time is extended to 11 August 2017 for this application to be made to the Tribunal, being the date the application was made.
(2) The Respondents, Layla Chamoun, Mallek Chamoun, George Chamoun and Joseph Chamoun, c/- Raine & Horne Burwood, XXX XXX Road, Burwood, NSW, 2134, Australia are to pay the Applicant, Pravin Bhana, X XXXX Street, Constitution Hill, NSW, 2145, Australia, the sum of $682.89 immediately
Catchwords:
BOARDING HOUSES – registrable boarding house - general boarding house – occupancy principles dispute – Occupancy principle 8 Payment of Security Deposits - resident’s claim for occupation fees paid in advance on the date vacant possession was recovered – where the proprietors have applied the occupation fees to the costs of cleaning, rubbish removal, carpet replacement and changing the lock of the resident’s room – where the resident was locked out after failing to deliver up possession of his room in accordance with a termination notice - where the proprietor did not require the resident to pay a security deposit – where the resident paid a key deposit - where the occupation agreement is not in writing -where there is no statutory or contractual basis upon which the proprietors are entitled to retain the key deposit or convert occupation fees paid in advance into security for the resident’s failure to comply with a term of the occupancy agreement and Occupation Principles

PRACTICE & PROCEDURE – application made outside the time period permitted – extension of time - where the Boarding Houses Act 2012 and Boarding Houses Regulation 2013 do not prescribe a time period within which an occupancy principles dispute must be brought to the attention of the Tribunal – where Rule 23 of the Civil and Administrative Tribunal Rules 2014 applies, which requires that the application be made within 28 days of the applicant becoming entitled to make the application – where the application has been brought to the attention of the Tribunal 10 days outside the time period permitted – where the Tribunal has a discretion to extend the time within which an application may be made – principles to be applied – time extended to the date the application was made
Tribunal’s discretion and obligation to grant an adjournment of the hearing – where proprietors seek compensation that cannot be recovered in the context of the resident’s application – whether an adjournment should be granted to enable the proprietors to file a related application to be dealt with concurrently with the resident’s application – where the proprietors are not legally represented – where the proprietors are represented by a Managing Agent – where any related application would be more than 90 days out…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCATCD 105
Decision Date: 15 November 2017

CaseChat Overview and Summary

The case of Bhana v Chamoun involved a dispute between Pravin Bhana, the resident, and Layla Chamoun, Mallek Chamoun, George Chamoun, and Joseph Chamoun, the proprietors of a boarding house, concerning the recovery of occupation fees and a key deposit. The dispute was heard by the Civil and Administrative Tribunal (CAT). Bhana sought a refund of occupation fees paid in advance and a key deposit after being locked out of his room for failing to comply with a termination notice. The proprietors had applied the occupation fees to cleaning, rubbish removal, carpet replacement, and changing the lock of Bhana's room. The case raised issues about the interpretation and application of the Occupancy Principles under the Boarding Houses Act 2012 and the Civil and Administrative Tribunal Rules 2014. The central legal questions were whether the proprietors could legally retain the key deposit and convert the occupation fees into security for Bhana's failure to comply with the occupancy agreement, and whether the Tribunal had the discretion to extend the time period for lodging the application.

The Tribunal found that while the application was made 10 days outside the permitted time period, Rule 23 of the Civil and Administrative Tribunal Rules 2014 did not prescribe a specific time limit for lodging an occupancy principles dispute. Therefore, the Tribunal exercised its discretion under section 41 of the Civil and Administrative Tribunal Act 2013 to extend the time for the application to be made. The Tribunal also considered the request for an adjournment to allow the proprietors to file a related application for compensation. However, the Tribunal determined that the proprietors' claim for compensation appeared to have limited prospects of success and was more than 90 days out of time, so no adjournment was granted.

In its final orders, the Tribunal extended the time for the application to be made to the date it was actually made, 11 August 2017. The Tribunal also ordered the proprietors to pay Bhana the sum of $682.89 immediately, representing the refund of the occupation fees and the key deposit. This decision underscored the importance of adhering to procedural timelines where applicable and highlighted the Tribunal's discretion in managing cases to ensure fairness and procedural justice.

Orders

Orders of the court

(1) Pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 time is extended to 11 August 2017 for this application to be made to the Tribunal, being the date the application was made.

(2) The Respondents, Layla Chamoun, Mallek Chamoun, George Chamoun and Joseph Chamoun, c/- Raine & Horne Burwood, XXX XXX Road, Burwood, NSW, 2134, Australia are to pay the Applicant, Pravin Bhana, X XXXX Street, Constitution Hill, NSW, 2145, Australia, the sum of $682.89 immediately

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bhana v Chamoun [2017] NSWCATCD 105
Hearing dates:	30 October 2017
Date of orders:	15 November 2017
Decision date:	15 November 2017
Jurisdiction:	Consumer and Commercial Division
Before:	P French, General Member
Decision:	(1) Pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 time is extended to 11 August 2017 for this application to be made to the Tribunal, being the date the application was made. (2) The Respondents, Layla Chamoun, Mallek Chamoun, George Chamoun and Joseph Chamoun, c/- Raine & Horne Burwood, XXX XXX Road, Burwood, NSW, 2134, Australia are to pay the Applicant, Pravin Bhana, X XXXX Street, Constitution Hill, NSW, 2145, Australia, the sum of $682.89 immediately
Catchwords:	BOARDING HOUSES – registrable boarding house - general boarding house – occupancy principles dispute – Occupancy principle 8 Payment of Security Deposits - resident’s claim for occupation fees paid in advance on the date vacant possession was recovered – where the proprietors have applied the occupation fees to the costs of cleaning, rubbish removal, carpet replacement and changing the lock of the resident’s room – where the resident was locked out after failing to deliver up possession of his room in accordance with a termination notice - where the proprietor did not require the resident to pay a security deposit – where the resident paid a key deposit - where the occupation agreement is not in writing -where there is no statutory or contractual basis upon which the proprietors are entitled to retain the key deposit or convert occupation fees paid in advance into security for the resident’s failure to comply with a term of the occupancy agreement and Occupation Principles PRACTICE & PROCEDURE – application made outside the time period permitted – extension of time - where the Boarding Houses Act 2012 and Boarding Houses Regulation 2013 do not prescribe a time period within which an occupancy principles dispute must be brought to the attention of the Tribunal – where Rule 23 of the Civil and Administrative Tribunal Rules 2014 applies, which requires that the application be made within 28 days of the applicant becoming entitled to make the application – where the application has been brought to the attention of the Tribunal 10 days outside the time period permitted – where the Tribunal has a discretion to extend the time within which an application may be made – principles to be applied – time extended to the date the application was made Tribunal’s discretion and obligation to grant an adjournment of the hearing – where proprietors seek compensation that cannot be recovered in the context of the resident’s application – whether an adjournment should be granted to enable the proprietors to file a related application to be dealt with concurrently with the resident’s application – where the proprietors are not legally represented – where the proprietors are represented by a Managing Agent – where any related application would be more than 90 days out…