Bian and Wang v Xia

SHEFANG BIAN AND YAOXIANG WANG v ELENA MENG XIA
[2012] ACTSC 26 (10 February 2012)

APPEALS – application for leave to appeal from ACT Civil and Administrative Tribunal – appeal under Residential Tenancies Act 1997 – principles to be applied on application for leave – modest amount of money at issue – no question of law needing to be resolved – no obvious error of law or error in factual findings – leave to appeal refused.

Residential Tenancies Act 1997
ACT Administrative and Civil Tribunal Act 2008

Levet and anor v Dalla [2012] ACTSC 23
Re the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318

No. SCA 97 of 2011

Judge: Master Harper
Supreme Court of the ACT

Date: 10 February 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 97 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:SHEFANG BIAN AND YAOXIANG WANG
Plaintiff

AND:ELENA MENG XIA
Defendant

ORDER

Judge:  Master Harper
Date:  10 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

the application for leave to appeal be dismissed.

This is an application for leave to appeal from a decision of an appeal tribunal within the ACT Civil and Administrative Tribunal. The dispute arises out of a residential tenancy agreement between the applicants as lessors and the respondent as tenant.
The lessors are the owners of a studio apartment at the Waldorf Apartment Hotel in Canberra City. The date of the tenancy agreement was 15 February 2009. It provided for rent of $500.00 per week, with four weeks’ rent to be paid in advance. The term was forty-two weeks.
Almost as soon as the tenant moved in there were problems. She complained about a number of issues to the lessors. She lodged her application with the Tribunal on 23 February 2009, and had moved out by 28 February 2009.
She paid $2,000.00 prior to moving in, which was, as required by the Residential Tenancies Act 1997, paid to the Office of Rental Bonds.
The application came before Mr A Anforth, a senior member of the Tribunal, for directions on 19 March 2009. The directions hearing on that date occupied about an hour and a half. It is unclear whether Mr Anforth embarked on the hearing proper or simply made procedural directions. The matter came before Mr Anforth for hearing on 11 May 2009. Again the hearing took about an hour and a half. At the end of the hearing, for reasons expressed only briefly, Mr Anforth made the following orders:
1)That the tenant is to pay the lessor $1,714.28 for rent plus $194.50 for advertisements, a total of $1,908.78.
2)That the lessor is to pay the tenant $1908.78 for breach of quiet enjoyment.
3)That the Office of Rental Bonds is to release the bond of $2,000.00 to the tenant.
The present applicants lodged an internal appeal within the Tribunal and sought written reasons for Mr Anforth’s decision. Mr Anforth prepared lengthy and detailed reasons, running to sixty-nine pages, much of which was taken up with direct quoting of written submissions by the parties and of email communications between them during the time of the dispute.
It is clear from his reasons that Mr Anforth preferred the factual version given by the tenant to that put forward by the lessors. The Tribunal is not bound by the rules of evidence but may inform itself in any manner it thinks appropriate.
Mr Anforth recorded that the lessors had raised an objection to his continuing the hearing, on the ground of actual or apprehended bias. He refused the application to disqualify himself for reasons which he set out, and with which I respectfully agree.
He found that the tenant had abandoned the premises on 28 February 2009 and was liable for rent up to 1 April 2009 when the lessors found a new tenant. He rejected an argument by the lessors that the tenant should be held liable for rent for the whole of the residue of the forty-two-week term. He found the tenant liable for the advertising costs incurred by the lessors in finding a new tenant.
However, he found that the conduct of the lessors had caused the tenant substantial distress which had been the reason for her decision to vacate the premises. The conduct by the lessors had amounted to a breach of quiet enjoyment on their part. Mr Anforth adopted the practical expedient of assessing the compensation due to the tenant at precisely the same amount as her liability to the lessors.
On 15 May 2009 the Office of Rental Bonds advised the Tribunal that it had already released the bond to the lessor on 1 April 2009. Mr Anforth was, not unreasonably, highly critical of the lessors for failing to inform him of this, and remaining silent when he checked with the parties at the end of the hearing that the bond was held by the Office. The third order listed above was changed on 20 July 2009 to an order that the lessor was to pay the sum of $2,000.00 to the tenant within fourteen days.
The ACT Administrative and Civil Tribunal Act 2008 provides for an internal appeal from a member sitting at first instance to an appeal tribunal, which may be constituted by, and must include, a presidential member. The appeal was heard by the General President of the Tribunal, Ms Crebbin. She heard the appeal on 23 November 2009. Regrettably, she did not hand down her decision until 5 October 2011. In her reasons she explained the reasons for the lengthy delay, which included her heavy workload within the Tribunal, and a number of issues personal to her.
The President gave reasons for her decision orally, over about an hour and running to some seventeen pages of transcript. She noted that there was no cross-appeal from the tenant. If she had been hearing the matter at first instance she would not have found that the tenant abandoned the premises, and would not have ordered the tenant to pay the rent from 28 February to 1 April 2009 or the advertising fees. However, those were not matters raised on appeal. She otherwise generally agreed with Mr Anforth’s reasons for decision and with his conclusions, and dismissed the appeal.
The lessors filed an application for leave to appeal to this court on 25 October 2011. They are not legally represented. Neither party was legally represented before the Tribunal.
The tenant has not filed a notice of intention to respond or attended on any of the five occasions when the matter has been listed before me.
The documentation before the Tribunal does not include a current address for service for the respondent. Her address when she lodged the original application was the address of the apartment she was renting from the applicants. The application also gave a mobile telephone contact number and an email address.
The address for the respondent set out by the applicants in the application to this court (Suite 330 Southbank Victoria 3006) appears to be incomplete. The applicants have not filed an affidavit of service. I shall have my Associate attempt to contact the respondent via email or telephone in an endeavour to ascertain whether she has been served before delivering these reasons for decision. If she has not, no practical harm will have been done in view of the conclusion I have arrived at.
I made some observations as to the principles to be applied to the determination of an application for leave to appeal from the Tribunal to this court in Levet and anor v Dalla [2012] ACTSC 23. In limiting appeals from the Tribunal to those in respect of which this court grants leave, the evident intention of the legislature was to cut down such appeals. Generally there will be an onus on the applicant for leave to satisfy this court that the decision of the Tribunal was wrong and that injustice will be done by leaving the decision in place. The court will more readily grant leave where the issues which would be raised on the hearing of the appeal involve a matter of general importance, or where the law is unclear by reason of conflicting authorities on the point involved on the decision.
As I said in Levet and anor v Dalla, the range of matters which come before the Tribunal is extraordinarily wide, ranging from minor disputes between individuals over a few hundred dollars to multi-million dollar planning and revenue disputes. One of the factors which will be taken into account by this court in considering an application for leave to appeal from the tribunal is whether the appeal can be justified in the light of the importance of the dispute and the amount at issue.
The present application falls towards the lower end of the jurisdictional range of the Tribunal in money terms. The effect of the order from which the applicants wish to appeal is the equivalent of a judgment against them for $2,000.00.
The Tribunal, which presently has more than seventy members, disposes of a very large number of matters. These include money claims which were formerly within the small claims jurisdiction of the Magistrates Court, with an upper limit of $10,000.00. If leave to appeal were not required, it is conceivable that, to quote Jordan CJ in Re the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318 at [323], the volume of appeals would be disastrous to the proper administration of justice, with the disposal of cases delayed interminably.
In the circumstances of the present application, there was no obvious error made by the Tribunal, either at first instance or on internal review, as to findings of fact or as to the applicable law. There is no conflict as to the law which needs to be resolved in the interests of the wider community. On analysis, this appears to me to be no more than a decision at first instance, upheld on internal appeal, with which the applicants are dissatisfied. The reality is that one party wins and another party loses every application before the Tribunal and every case before this court, and the losing party is understandably unhappy with the outcome. This is such a case. Grounds for an appeal to this court have not been made out.
The application for leave to appeal will be dismissed.
I certify that the preceding twenty-four (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 10 February 2012

Counsel for the applicant:  In person (Ms Bian)
Counsel for the respondent:  No appearance
Date of hearing:  3 February 2011
Date of decision:  10 February 2012

[2012] ACTSC 26

February 10, 2012