BUCKLEY & BANGASH (Residential Tenancies) - [2012] ACAT 6

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BUCKLEY & BANGASH (Residential Tenancies) [2012] ACAT 6

AA 12/01
Catchwords: RESIDENTIAL TENANCIES – termination of verbal occupancy agreement – classification of arrangement: occupancy or residential tenancy – application for leave to appeal out of time – explanation of delay in filing appeal – date from which the appeal period started – considerations for granting leave out of time – issue of procedural fairness in the original proceeding – appeal is not to be for delaying the execution of the original tribunal order or for just seeking the appeal tribunal to have a view different from that of the original tribunal

List of legislation: ACT Civil and Administrative Tribunal Act 2008, s.6 (objectives)
Residential Tenancies Act 1997

List of Regulations: ACT Civil and Administrative Tribunal Rules 2009, Rule 14
List of cases: Conteh v. Fan (Residential Tenancies) [2011] ACAT 45

Tribunal: Mr C.G Chenoweth, Acting Presidential Member

Date of Orders:  25 January 2012
Date of Reasons for Decision:       25 January 2012
AUSTRALIAN CAPITAL TERRITORY  )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 12/01

BETWEEN:
LINDA BUCKLEY
Applicant

AND:

MARIE BANGASH

Respondent

TRIBUNAL: Mr C.G Chenoweth, Acting Presidential Member

DATE: 25 January 2012

ORDER

The application for leave to appeal out of time and the application for the stay order are refused.

………………………………..
Mr C.G Chenoweth,
Acting Presidential Member

REASONS FOR DECISION

This is an application for leave to appeal out of time against a decision (“the order”) of the ACT Civil and Administrative Tribunal (“the tribunal”), made on 6 December 2011 by Presidential Member Stefaniak. The application also seeks a stay of the order.

Background

The respondent owns a house in Deakin, ACT. She has spare accommodation in her house, which she offered to rent through the University Accommodation Services at the Australian National University. Under "Property Type", the facility was advertised as "Granny Flat." Under additional information, it was described as a "Fully furnished and equipped granny flat." The notification indicated that the facility was available from 5 September 2011 until

5 September 2012. It also gave particulars of the rent expected and further details about the facilities available.
The respondent entered into a verbal agreement with the appellant to allow the appellant to use the facility. It appears that this commenced on

5 September 2011. On 10 November 2011, the respondent sent a letter by hand to the appellant, indicating that while the arrangement had not been reduced to writing, in return for payment of the agreed rent the appellant was entitled to occupy one bedroom at the back of the house, which had some sort of vestibule attached, together with the bathroom and toilet which were adjacent to the bedroom, and a car parking space in the garage. The letter also noted that the arrangement involved the respondent sharing the use of the shower located in the bathroom, twice per week.
The letter went on to note that after 2 1/2 months, the respondent had reviewed the situation and her needs, and had made a decision to terminate the arrangement that had previously been made. The reason given for the termination was partly due to the upcoming Christmas period and the needs the respondent’s family from Sydney, and on occasion other guests, to make use of the room and facilities that the appellant was currently occupying. The letter went on to give three weeks’ notice of termination of the arrangement.
The appellant did not leave the premises. The respondent instituted proceedings in the tribunal, with an application for resolution of a tenancy dispute dated 16 November 2011.

The initial hearing

The matter was ultimately heard on 2 and 6 December 2011.

On 6 December, Presidential Member Stefaniak made the order terminating the occupancy agreement between the appellant and the respondent, and giving the respondent until 9 AM on 30 January 2012 to leave the premises, failing which a warrant of eviction was to issue. The order also provided that the appellant was to be at liberty to leave at any time before 30 January 2012, and made orders in relation to the payment of rent and the requirement to leave the premises in an appropriate condition.
The appellant was represented at the initial hearing by Mr Emerson-Elliott from the Welfare Rights and Legal Centre (“WRLC”). The applicant appeared in person. From the original hearing file, it appears that arguments were made by the advocate for the appellant that this was not an occupancy agreement but a residential tenancy agreement under the provisions of the Residential Tenancies Act 1997 ("RT Act”). It is clear from the terms of the order made on

6 December that Presidential Member Stefaniak determined that the terms of occupancy constituted an occupancy agreement, rather than a residential tenancy agreement. The consequences of this decision were that the appellant did not obtain the benefit of the statutory terms and conditions implied into a residential tenancy agreement.
There is nothing to indicate that the advocate for the appellant submitted at the original hearing that if the arrangement was an occupancy agreement then the period of notice given by the respondent to the appellant was inadequate. Nor was that issue raised in the application for leave to appeal. The appeal application was centred on the issue of how the arrangement was to be properly classified.
It was conceded by the advocate for the appellant that the period of some 7 1/2 weeks from the date of the order until it was to take effect was decided by Presidential Member Stefaniak, having regard to the need for the appellant to find alternative accommodation, and to the Christmas and holiday period that would shortly commence.
On the 21 December 2011, the appellant's advocate wrote to the tribunal as follows:
"I am writing further to the tribunal’s order of 6 December in this matter. As the matter has now been resolved we are closing our file and will no longer be acting for Ms Berkeley."

The appeal period and grounds of appeal

Part 7 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 govern the procedures for an appeal within the tribunal. Rule 14 (1) provides as follows:
"a notice of appeal to the tribunal must be filed in the tribunal not later than 28 days after the day the decision is made, or any further time the tribunal allows.”
Rule 14(2) provides as follows:
“an application for further time must be accompanied by a written statement showing.
-the nature of the case in summary form; and
-each question involved; and
-the reasons why the extension of time should be given.”
It appears that the rules require that the appeal should have been filed by

4 January 2012. The application for leave to appeal out of time was dated

12 January 2012 and lodged with the tribunal on the same day.
The application identified the question of law or fact involved as follows:
"the issue under appeal is whether the agreement between the parties is an occupancy or tenancy agreement under the provisions of section 6 A of the Residential Tenancies Act 1997.”
The grounds relied on in support of the appeal were as follows:
"The appellant will argue that the Tribunal erred in finding that the agreement was an occupancy and not an implied tenancy on the basis that she has exclusive possession of the granny flat type of suite, the lack of control [of] the Respondent’s part, and that she did not fall into any of the excluded categories provided in section 6 A of the Residential Tenancies Act 1997. The Appellant will rely on ACAT’s previous decisions of Conteh v. Fan and the Commissioner of Social Housing v. Roughton.”
Nothing in the application for leave to appeal indicated that a ground of appeal would be the procedure adopted in the original hearing.

Additional affidavits

An additional affidavit dated 19 January 2011 (should be 2012) was filed on behalf of the appellant. In that affidavit, the appellant states that she received the order in written form late on the afternoon of 13 December 2011. The order was in an envelope slipped under her door by the landlady. The order had not been sent to her legal representatives, WRLC. The affidavit went on to state that "at some point between the time I received the order and Christmas Day" the appellant decided to appeal the tribunal's decision. She made telephone calls to both WRLC and to the tribunal registry but both organisations were closed for the Christmas break.
In paragraph 5, the affidavit sets out that the appellant had continued to ring WRLC, leaving a message for someone to contact urgently. That contact was made on 9 January 2012 and the appellant's case was reopened on 12 January. The application for leave to appeal out of time was filed on that day.
The affidavit made no mention of any inability of the appellant to consider the matter between 6 December and Christmas. Nor did it give any indication that the procedures adopted in the original hearing were unsatisfactory or were to be challenged. The affidavit was witnessed by the appellant’s advocate and presumably prepared in his office
The respondent filed an affidavit dated 20 January 2012. In that, she attested to having collected two envelopes on or around 7 December 2011 from her mailbox. One was addressed to her and the other to the appellant. The respondent knew from previous correspondence that the envelopes were from the tribunal. The respondent slid the envelope addressed to the appellant under her bedroom door on the date of receipt. The envelope addressed to the respondent contained the orders made on 6 December. The affidavit went on to affirm that on the day that the envelope was placed under the appellant’s door, the appellant's motor vehicle was still parked in the garage. The respondent also affirmed that the appellant's custom was not to take a walk from the house, and that the respondent therefore concluded that the appellant was in her room.

The Time for Appeal

At the hearing of the application, there were arguments about the date from which the appeal period should be taken to commence. The advocate for the appellant maintained that he had a date stamped envelope indicating that the orders had been posted from the tribunal on 12 December, and that therefore the affidavit of the respondent could not be correct.
I was satisfied that the proper date from which the 28 day appeal period should be calculated was the date immediately following the date of the order. As the appellant had been present in the tribunal when the order was made, and had been represented by the advocate and could discuss any uncertainties about the order with him at the time, she had proper notice of the terms of the order with effect from 6 December 2011. It was not necessary for her to receive the written terms of the order to determine what the order was. Accordingly, I declined to hear direct evidence or make any ruling on the conflict on the affidavit evidence as to the day on which the written document was placed under the door of the appellant's room.

The considerations in granting leave out of time

The advocate for the appellant and the solicitor for the respondent substantially agreed on the criteria which I should consider in determining whether the application for leave should be granted. These were:
- the extent to which the application is out of time:
- the importance of parties to a case complying with the procedural rules relating to a matter, so that finality in litigation was achieved:
-the reasons for the delay in the appellant exercising appeal rights:
-the prospects of success on the appeal:
-the principle of not withdrawing from a successful party the fruits of that decision:
-whether the granting of appeal out of time would have any substantial adverse effect on the respondent.

Appellant’s submissions.

The appellant's advocate pressed the point that the application was just out of time. He acknowledged that the right of appeal and the time limit that applied had been discussed with the appellant when the decision had been made. He also conceded that after the decision the appellant had been looking for alternative accommodation, but up until just prior to the Christmas break she had been unsuccessful. The appellant had been trying to maintain good relations with the respondent and had complied with all her obligations, possibly hoping that the respondent would change her mind and agree to the order being waived. There were no matters that the advocate could point to that indicated any prospect for that proposition.
The letter of the 21st December from WRLC supported the proposition that up to that date, no instructions for an appeal had been given by the appellant. It was only after that date that the appellant tried to telephone WRLC and the tribunal about an appeal. It should be noted that the tribunal registry closed at about midday on the 23rd December, was open for several days between Christmas and New Year, and then reopened on 3 January 2012.
The appellant's advocate also argued that on a proper consideration of all of the factual material, the accommodation right should have been properly classified as a tenancy and not a mere occupancy. As a tenancy, the appellant would have the benefit of the statutory provisions under the RT Act, and could not be removed from the property in the short timeframe contemplated by the respondent. He also argued that there was no disadvantage to the respondent if the appeal was allowed and was successful, because the situation that presently applied would continue.
During the hearing, the appellant's advocate raised a separate argument that had not been included in the application for leave to appeal. He maintained that because of the way that the matter had been conducted by Presidential Member Stefaniak, there had been a failure of procedural fairness in the hearing. He said that during the hearing the President had discussed the matter with a senior member of the tribunal and obtained her views about certain aspects of the case. The Presidential Member had subsequently referred to this discussion and had relied on aspects of this discussion in making his decision.
It was argued for the appellant that she had not been given the opportunity to fully understand the basis on which the case had been put to the senior member, nor comment on whatever view she may have had about the case. It was not appropriate for this to have been done and for the Presidential Member to have relied on those discussions in coming to his decision. This constituted a failure of procedural fairness, and by itself was a matter which justified giving leave to appeal. Although not referred to in the application for leave, it was indicated that the grounds of the application would be amended to include this point.
No explanation was offered for the omission from the appellant’s affidavit of any reference to the alleged failure of process in the original hearing.

Respondent’s submissions

The respondent submitted that this appeal was "an attempt to buy time" for the appellant to obtain further accommodation. The appellant had given no satisfactory reason for the delay between the 6 December and the period when the Christmas/New Year closures occurred, although she had been informed by her advocate of the right of appeal and the appeal time limitation. These holidays were well known to everyone involved in legal proceedings, and appropriate account should have been taken of them in deciding whether to exercise appeal rights.
Whether the occupancy of the respondent’s property is terminated in accordance with the order, or (if a residential tenancy had been found) by the respondent giving the appropriate notice under the RT Act, the outcome would be the same albeit in a different time frame. The respondent did not want the appellant to continue living in her house, and had showed no signs of changing her mind after the date of the order. The issue of whether the accommodation rights was an occupancy or a tenancy had been fully explored in the original decision, and it was not appropriate to institute an appeal on the basis that the appeal tribunal might take a differing view of the facts that distinguished the two forms of occupancy: there had to be some real and substantial failure in the earlier proceedings which would warrant a review.
The respondent’s solicitor had not received any notice of the appellant’s argument concerning the alleged lack of procedural fairness, nor was it included in the application for leave to appeal or in the appellant’s affidavit in support. The respondent’s solicitor had not been present at the earlier hearing and was unable to make any further comment about what had actually happened.
I noted that neither party had taken out the transcript of the earlier hearing, and

I could express no view on the way in which the proceedings had been conducted.

Consideration of the issues

I was not satisfied that there was any credible reason why the appellant had not lodged an appeal between 6 and 21 December. The affidavit that she had filed did not provide in paragraph 4 any substantial reason for the delay. It should have been obvious that, knowing that the 28 day period was to expire shortly in January, it would be difficult to arrange the appeal over the Christmas/New Year period. Had she approached the tribunal's registry on the days that it was open over that period, then some sort of document could have been lodged but the appellant did not do so.
The actions of the appellant are consistent with her using the appeal process to try and delay the execution of the order, rather than seriously disputing the terms of the order itself.
It is true that the distinction between an occupancy agreement and a residential tenancy is not always an easy one to draw. The appellant in the notice of appeal referred to the tribunal decision in Conteh v. Fan (Residential Tenancies) [2011] ACAT 45, a decision provided to the Presidential Member in the proceedings below. That decision in paragraph 21 and 22 indicates the issues that need to be considered, but they are essentially factual issues.
The process of appeal is not simply to take a dispute with which the appellant is unhappy to another or higher tribunal to see if it might have a different view of the facts: it is necessary that the appellant be able to demonstrate where the lower tribunal has misinterpreted the issues before it, or has made a decision which of itself is so unsatisfactory that it ought to be reviewed. I am not satisfied in this case that the finding set out in the order that the arrangement between the parties was an occupancy agreement was incompatible with the evidence before the tribunal – in, in my view there was appropriate evidence upon which it could make such a finding. Accordingly, I am not satisfied that there is a substantial question of law or an error in the findings of the tribunal on this point, which would warrant reconsideration of the issues through the granting of leave to appeal.
I note that in the application for leave, the appellant indicates that no further evidence is to be introduced by her and she relies on the evidence produced below. There is no indication of to any evidence being produced on the alleged failure of due process.
I have given careful consideration to the submissions relating to the way in which the proceedings appealed from were allegedly conducted. As indicated above, neither the appellant nor the respondent nor myself had the benefit of reviewing the transcript of the proceedings. I am not satisfied that this of itself provides an arguable basis for appeal.
Procedural fairness is a basic part of the obligations on the tribunal in conducting matters. Without wishing to determine whether there has been a failure of procedural fairness (which could not be determined in the absence of the transcript) there is, in my view, a more fundamental problem. If there had been a breach of that nature, then there is no credible explanation as to why an appeal was not immediately launched on that point. For the appellant to have failed to raise the matter by way of a prompt appeal, presumably after advice from her advocate at the time about the alleged flaws in the proceedings, and for the matter not to be raised in the notice of application for leave to appeal, is also difficult to comprehend. This must reflect on the prospect of success on appeal on this point, and give support to the respondent’s solicitors argument that the appeal application was less about the issues than an attempt to buy time for the appellant to find alternative accommodation

While the appellant's advocate indicated that if leave to appeal was granted he proposed to amend the notice of appeal to include this ground, the failure to appeal on that point during the fortnight after the decision was given (when, presumably, the issue would have been of major concern to the appellant, upon advice) leads to the conclusion that it should not be now given the weight that would justify leave to appeal.
I must give such weight as I consider appropriate to all of these factors, having regard to the objectives of the tribunal as set out in its Act, when determining whether the application for leave should be granted. I am also conscious of the principle of not depriving a successful party to proceedings of the benefit of that decision after the appeal period has expired without good reason being shown for it.
As part of the mix of factors, I take account of the fact that the appeal period expired only a short time before the application was made. An unexplained lengthy delay would normally be regarded as a significant factor against granting leave. I do not consider the short time to be such a consideration in favour of the appellant that it should outweigh the other factors.
I also give some weight to the fact that the respondent is an elderly lady who is in a situation now where a person is living in her house who she does not want to continue to live there. There was medical evidence before the tribunal in the lower proceedings about her medical condition, and it is clear that that is likely to be worsened by stress arising after she had considered the matter resolved. In my view, that constitutes detriment to the respondent which must be taken into account.
In making this decision, I am conscious that accommodation for students or people of limited means is difficult to obtain in Canberra, but that of itself is not a basis for giving leave to appeal out of time in circumstances where the other factors referred to above do not themselves warrant it.
The application for leave to appeal out of time and for a stay order of the decision of 6 December 2011 is therefore refused.

………………………………..
Mr C.G Chenoweth, Acting Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO: AA 12/01

APPLICANT: Linda Buckley

RESPONDENT: Marie Bangash

COUNSEL APPEARING: APPLICANT:

RESPONDENT:

SOLICITORS: APPLICANT:

RESPONDENT:

OTHER: APPLICANT:

RESPONDENT:
TRIBUNAL MEMBER/S:

DATE/S OF HEARING: PLACE: CANBERRA

DATE/S OF DECISION: PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS:

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Citations

Buckley and Bangash (Residential Tenancies) [2012] ACAT 6

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

0

Conteh v Fan [2011] ACAT 45