Calabro v Beaudoin - [2021] SASCA 63

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
CALABRO v BEAUDOIN
[2021] SASCA 63
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Bleby and the Honourable Justice Blue)
23 June 2021

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - JURISDICTION
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION
Application for leave to appeal against a review decision of the South Australian Civil and Administrative Tribunal.
The appellant operated a rooming house in Felixstow. He and the respondent were parties to a rooming house agreement for the period between 21 October 2019 and 20 April 2020. This agreement followed the expiration of an earlier six-month rooming house agreement. The respondent is a citizen of the United States and was in Australia on a 12-month Work and Holiday visa. He has since returned to the United States.
The matter first came before the Tribunal on 10 March 2020, following a dispute leading to the termination of the agreement on 8 December 2019. The respondent asserted that the appellant had abandoned the premises, giving rise to the termination of the rooming house agreement. The appellant contended that he was unlawfully evicted from his room. The Tribunal Member found that the agreement had not been validly terminated. He rejected the appellant’s claims and awarded compensation to the respondent.
The appellant subsequently applied for an internal review of the decision, relying on fresh evidence. Justice Hughes refused permission to proceed on the basis that the appellant’s fresh evidence was inconsistent with his sworn evidence in the first instance.
The appeal against the review decision relies on two arguments directed at challenging the jurisdiction of the Tribunal to have heard and determined the matter at all. The first is that the Tribunal lacked jurisdiction to hear the dispute between the parties by reason of s 5(1)(c) of the Residential Tenancies Act 1995 (SA) (‘Residential Tenancies Act’), which provides that ‘an agreement genuinely entered into for the purpose of conferring on a person a right to occupy premises for a holiday’ is excluded from the application of the Act. The second argument is that the Tribunal lacked jurisdiction to hear the matter due to the principles expressed by the High Court in Burns v Corbett (2018) 265 CLR 304.
Held (by the Court), dismissing the application for leave to appeal:
1. The matters identified by the appellant before this Court would not, on any view, overcome the presumption raised by s 5(1b) of the Residential Tenancies Act against the 'holiday exclusion' in s 5(1)(c) on account of the duration of the rooming house agreement, even if they were established.
2. The interests of justice do not warrant Mr Calabro having an opportunity to mount a case asserting facts that differ entirely from the factual premise on which both claims were prosecuted and determined at first instance.
3. The respondent was not a resident of another State within the meaning of s 75(iv) of the Constitution. The diversity jurisdiction was not engaged. No constitutional issue arises.
Residential Tenancies Act 1995 (SA) ss 3, 5(1)(c), 5(1b) 24, 105U(4); Commonwealth of Australia Constitution Act (Cth) ss 77(ii), 77(iii), 75(iv); Crown Proceedings Act 1992 (SA) s 9(2)(a); Residential Tenancies Act 1987 (WA) s 5(2)(e); Judiciary Act 1903 (Cth) ss 38, 39; South Australian Civil and Administrative Tribunal Act 2013 (SA) Part 3A, referred to.
Cody v JH Nelson Pty Ltd (1947) 74 CLR 629; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; Fingleton v The Queen (2005) 227 CLR 166; Attorney-General (SA) v Raschke and Another (2019) 133 SASR 215, applied.
House v The King (1936) 55 CLR 499; Burns v Corbett (2018) 265 CLR 304; Calabro v Beaudoin [2021] SASCA 5; Re Glynn; ex parte Royle & Ors [2003] WASCA 122; Choi v NSW Ombudsman [2021] NSWCA 68, considered.

CALABRO v BEAUDOIN
[2021] SASCA 63

Court of Appeal – Civil: Kelly P, Bleby JA and Blue AJA

THE COURT: This is an application for leave to appeal against a review decision of the South Australian Civil and Administrative Tribunal (‘the Tribunal’), arising from the termination of a rooming house agreement. The primary issue raised on the application is the construction of s 5(1)(c) of the Residential Tenancies Act 1995 (SA) (‘Residential Tenancies Act’), which excludes from the operation of that Act ‘an agreement genuinely entered into for the purpose of conferring on a person a right to occupy premises for a holiday’.
Background
The appellant, Mr Calabro, operated a rooming house in Felixstow. He and the respondent, Mr Beaudoin, were parties to a rooming house agreement for the period between 21 October 2019 and 20 April 2020. This was the second six‑month rooming house agreement between them. Mr Beaudoin is a citizen of the United States. It does not appear to be contentious that he was in Australia on a 12-month Work and Holiday visa. He has since returned to the United States.
The matter first came before the Tribunal on 10 March 2020, following a dispute leading to the termination of the agreement on 8 December 2019. The Tribunal Member, in reasons published on 19 March 2020, summarised the evidence presented at the hearing, which was as follows.
Mr Calabro asserted that he had raised an issue with Mr Beaudoin relating to unpaid electricity charges, and had then heard from other residents that Mr Beaudoin did not intend to pay. He perceived that Mr Beaudoin was avoiding contact with him and suspected that he may be preparing to leave. Mr Calabro relied on a text message he received from another resident which read, ‘I think your mate did a runner this morning. Took two big suitcases and guitars etc’.
Mr Beaudoin said that he had slept in his room on 7 December 2019, and had left the premises on the morning of 8 December 2019 to busk in the city. At some point during the day, he received a text message from Mr Calabro asking him to confirm that he had abandoned his room. The respondent replied via text message, ‘What? Im busking in town with my gear. No’. The appellant responded, ‘OK, cool thanks for letting me know’.
Mr Calabro nevertheless then entered Mr Beaudoin’s room and removed the remainder of Mr Beaudoin’s belongings. Mr Beaudoin returned to discover the door forcibly opened, his belongings missing, and a document he described as an ‘eviction notice’ on his bed. He contacted police after perceiving that Mr Calabro was holding his belongings to ransom for unpaid rent.
Mr Beaudoin claimed that Mr Calabro had broken an iPad that was stored in the front compartment of a guitar bag when removing his belongings from the room. When he recovered his property, the screen was cracked and the device no longer functioned.
Mr Calabro contended before the Tribunal that he had not placed a document on Mr Beaudoin’s bed and that Mr Beaudoin was welcome to stay in the room. He asserted that Mr Beaudoin had in fact abandoned the premises, giving rise to the termination of the rooming house agreement. He claimed various sums for breaches of obligations under the agreement, including for unpaid rent, electricity usage, cleaning fees, repairs and loss of rent and break lease charges.
Mr Beaudoin contended that he was unlawfully evicted from his room. He sought compensation for six nights’ accommodation he had spent in a hotel following the incident, as well as compensation for the repair of his broken iPad. He accepted liability for one week of unpaid rent, amounting to $180.
The Tribunal Member found that the agreement had not been validly terminated and that Mr Calabro had unlawfully entered Mr Beaudoin’s room. He rejected all of Mr Calabro’s claims of alleged breaches, apart from the unpaid rent, and awarded Mr Beaudoin the costs of his accommodation and compensation for the broken iPad, amounting in total to $1,329.
Mr Calabro subsequently applied for an internal review of the decision, relying on fresh evidence. He required permission to proceed with the review and an extension of time to file the application. The President granted an extension of time on medical grounds, but refused permission to proceed on the basis that the appellant’s fresh evidence was ‘entirely inconsistent with his sworn evidence on the first occasion’.
The putative fresh evidence was that Mr Calabro now recalled that he did place a notice on Mr Beaudoin’s bed, and had a large, sufficiently clear photograph of the notice for it to be read. This notice purported to evict Mr Beaudoin pursuant to s 105U(4) of the Residential Tenancies Act, on the ground that he had caused damage or created danger to a person in the rooming house, or seriously interrupted the privacy, peace, comfort or quiet enjoyment of another tenant.
The President considered that it would be an abuse of the Tribunal’s process for Mr Calabro to be permitted to re-run his case on the basis of a completely different account of his claim, contrary to the evidence that he had given at the original hearing. She declined to grant leave for Mr Calabro to bring the application for internal review and dismissed the application.
The appeal
Mr Calabro seeks leave to appeal to this Court. Rather than asserting any process or outcome error in the decision of the President refusing leave,[1] he adopts two new arguments directed to challenging the jurisdiction of the Tribunal to hear and determine the matter at all.
[1] House v The King (1936) 55 CLR 499.
The first is that the Tribunal lacked jurisdiction to hear the dispute between the parties by reason of s 5(1)(c) of the Residential Tenancies Act. As identified above, this provides that ‘an agreement genuinely entered into for the purpose of conferring on a person a right to occupy premises for a holiday’ is excluded from the application of the Act. Mr Calabro contends that the agreement was genuinely entered into for the purpose of conferring on Mr Beaudoin a right to occupy the room for a holiday.
The second argument is that the Tribunal lacked jurisdiction to hear the matter due to the principles expressed by the High Court in Burns v Corbett (‘Burns’).[2] Put simply, a State tribunal that is not one of the ‘courts of the States’ within the meaning of s 77(ii) of the Constitution cannot exercise the jurisdiction described in s 75(iv) of the Constitution, being over matters ‘between States, or between residents of different States, or between a State and a resident of another State’.
[2] (2018) 265 CLR 304.
Ordinarily, this Court will not entertain new questions raised for the first time on appeal.[3] However, Mr Calabro being unrepresented and having raised matters going to the jurisdiction of the Tribunal to hear the matter in the first instance, Livesey JA considered it appropriate to refer the question of leave to appeal to the Court of Appeal.[4]
[3] University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481.
[4] Calabro v Beaudoin [2021] SASCA 5.
The Court invited the Attorney-General for the State of South Australia to intervene in the proceeding pursuant to s 9(2)(a) of the Crown Proceedings Act 1992 (SA), to make submissions on the interpretation of s 5(1)(c) of the Residential Tenancies Act. She did so on 30 March 2021. Her submissions, which extended to all matters raised by the Notice of Appeal, were of considerable assistance.
Section 5(1)(c) of the Residential Tenancies Act: the ‘holiday exclusion’
In deciding the dispute at first instance, the Tribunal was purportedly exercising its jurisdiction to hear and determine a tenancy dispute under s 24 of the Residential Tenancies Act. ‘Tenancy dispute’ is defined in s 3 to mean:
(a) a claim under a residential tenancy agreement, a rooming house agreement, or an agreement collateral to a residential tenancy agreement or a rooming house agreement; or
(b) a dispute between parties or former parties to a residential tenancy agreement, a rooming house agreement, or an agreement collateral to a residential tenancy agreement or a rooming house agreement, about matters arising under the agreement or this Act; or
(c) any matter that may be the subject of an application under this Act to the Tribunal;
However, s 5(1)(c) of the Act provides:
(1) This Act does not apply to—
…
(c) an agreement genuinely entered into for the purpose of conferring on a person a right to occupy premises for a holiday; …
Section 5(1b) then provides:
(1b) For the purposes of this Act, an agreement conferring a right to occupy premises for a fixed term of 60 days or longer is to be taken, in the absence of proof to the contrary, not to be an agreement referred to in subsection (1)(c).
The agreement was for a period of six months. The onus is therefore on Mr Calabro to displace the presumption that the agreement was not genuinely entered into for the purpose of conferring on a person a right to occupy premises for a holiday.
The term ‘holiday’ is not defined in the Act. It should be given its plain and ordinary meaning.[5] The Attorney-General referred to the Macquarie Online Dictionary definition as ‘a period of cessation from work, or of recreation; a vacation; a trip taken for recreation’. The Shorter Oxford Dictionary includes in its definition, ‘A day on which work is suspended; a day of recreation or amusement; … A vacation; … Cessation from work; recreation…’.
[5] Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 647-648 (Dixon J).
As the Attorney-General submitted, whether a party genuinely entered into an agreement for the purpose of a holiday will ultimately turn on the facts. In Re Glynn; ex parte Royle & Ors (‘Re Glynn’),[6] the Full Court of the Supreme Court of Western Australia considered the approach to characterising whether an agreement has been entered into for the purpose of a holiday, by reference to the definition of holiday in s 5(2)(e) of the Residential Tenancies Act 1987 (WA), which was in closely similar terms:[7]
It is convenient to consider s 5(2)(e) first. It is permissible to look at the subjective intention of the parties to determine the purpose of the agreement. The mere terms of the agreement while important, do not conclusively determine the purpose of the agreement: Buchmann v May [1978] 2 All ER 993. Regard must be had to other factors. This is clear by the use of the expression “bona fide”. The honesty of an agreement must be judged by consideration of the overall circumstances. The section invites this consideration. A written agreement may apparently be entered into for holiday purposes. However, it may not be bona fide for that purpose because the intention of the parties may be a different purpose, that of long term accommodation. The words bona fide govern the whole of the words which follow. The Residential Tenancies Act is not to be evaded by a merely colourable use of words which do not correspond with what is really provided: see Palser v Grinling [1948] AC 291 per Lord Simon at 310 in a similar context to the Residential Tenancies Act. The agreement in a particular case may, or may not, of itself indicate the purpose. However, the surrounding circumstances may clearly indicate the purpose. The focus of attention is not the purpose of the agreement, but the purpose of entry into the agreement. The purpose must be the dominant or principal purpose. This is a question of fact in each case.
[6] [2003] WASCA 122.
[7] Re Glynn; ex parte Royle & Ors [2003] WASCA 122 at [64] (McKechnie J, Murray J agreeing).
The only difference between the Western Australian provision and s 5(1)(c) is the use of ‘bona fide’ in place of ‘genuinely’. Consistently with the Full Court’s descriptive account in Re Glynn of matters that may be taken into account, s 5(1)(c) necessitates an inquiry of the following nature:
·the focus of the section on the purpose of entering into an agreement invites attention, consistently with ordinary contractual principles, to the presumed intention of the parties as to their purpose at the time of entering into the agreement. In the ordinary course, this is to be determined objectively by reference to any expression of purpose in the agreement and the objective framework of facts within which the agreement came into existence.[8] To this end, the Act elevates one potential objective circumstance, being where an agreement is for a fixed term of 60 days or longer, as creating a presumption that the purpose is not to confer on a person a right to occupy the premises for a holiday;
·the purpose to be ascertained is the dominant or principal purpose. If the parties entered into the agreement for what is properly characterised as mixed purposes, the exclusion would not apply;
·the qualifier ‘genuinely’ operates as a subjective overlay on the ordinary, objective inquiry. It looks to ensure that the presumed intention as to purpose, revealed by the objective circumstances of the agreement (such as any expression of purpose in the agreement), is also subjectively shared by the parties and is not, for example, the product of a sham or some other device.
[8] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352 (Mason J).
In the present case, the agreement was expressed to be a rooming house agreement for a period of six months. The onus therefore lay on Mr Calabro to prove that it was not a rooming house agreement to which the Act applied. He did not adduce before the Tribunal any evidence that would tend to displace the presumption; neither did he submit at that time that the Tribunal was without jurisdiction.
The Tribunal at first instance identified that both parties had made applications for compensation arising out of the rooming house agreement. Mr Calabro having made that application is inconsistent with him now seeking to argue that the Tribunal did not have jurisdiction.
Mr Calabro’s implied concession that the Tribunal had jurisdiction does not bind the Court.[9] However, jurisdiction here depends on the factual question of whether the agreement was genuinely entered into for the purpose of conferring on a person a right to occupy premises for a holiday. The Act creates a presumption of fact that Mr Calabro only now seeks to displace.
[9] Fingleton v The Queen (2005) 227 CLR 166 at [196] (Hayne J).
The Court was provided with information that had not been in evidence before the Tribunal, but which could potentially be adduced in the form of evidence, should the matter be remitted. This information took the form of submissions and documents filed in the Supplementary Core Appeal Book. Having regard to the fact that both parties were unrepresented, and that Mr Beaudoin was appearing in person by an audio connection to the United States, the Court was prepared to have regard to these items of information to identify whether, if taken at their highest, they would be capable of establishing the holiday exclusion.
The first of these was a copy of the Work and Holiday (subclass 462) visa, which Mr Beaudoin caused to be included in the Supplementary Appeal Book. Mr Calabro relies on the existence of this visa, referring to it as Mr Beaudoin’s ‘holiday visa’. At best, this visa is equivocal in its relevance to the parties’ purpose of entry into the agreement. It would not assist Mr Calabro in establishing that the dominant or principal purpose of the agreement was the right to occupy premises for a holiday. At its highest, it tends to identify a mixed purpose.

The Court asked Mr Calabro some questions about the nature of the facilities he provided and the agreements he entered into. Mr Calabro explained that the premises comprised two units, number 11 (upstairs) and number 11A (downstairs). Number 11 contained three bedrooms, of which one was a master bedroom. Number 11A contained two bedrooms, again, one of which was a master.
Taking the master bedroom in number 11A as an example, Mr Calabro explained that this might be rented out on a short-stay or long-stay basis. A short‑stay basis might be for a single night, a week or three months. It might even comprise six months. The price would depend on the precise arrangement. A short stay might command $250 per week. He would usually charge per night for short stays, and has charged $40 or $50 per night on this basis. He explained that if a person were only renting for a night, he would treat that as a short stay, ‘no different from a motel’. A long stay tenancy for, say, 12 months, might be $220 per week. He would advertise rooms on various websites such as Facebook, Gumtree or Stayz, as a ‘From…’ price. His advertising extended to circulating leaflets in universities for students. Should a couple stay in a bedroom, he would charge an uplift, raising the price to, for example, $250 or $300 per week.
Mr Calabro said that the rate would also depend on the ‘purpose’ of the tenancy, but he did not explain what he meant by that. His grounds of appeal assert that he offered various types of accommodation, including ‘holiday stay accommodation’. However, neither the premises nor the terms of the rooming agreement incorporated any kind of facilities or services, or even tourist information, that objectively supported the parties having entered into the agreement for the purpose of a holiday. It was not a short stay arrangement. The agreement was not expressed to be ‘holiday stay accommodation’ as described in the grounds of appeal. This was a simple rooming agreement in a suburban block of flats. Manifestly, any identified ‘purpose’ of the tenancy was not material to Mr Calabro’s claim in the Tribunal, nor to his defence of Mr Beaudoin’s claim.
Mr Calabro otherwise identified, in his written submissions, statements that he says Mr Beaudoin made to him about his ‘holiday’. If he were permitted to adduce this evidence at a further hearing, it would be necessary for Mr Beaudoin to give evidence and be cross-examined. In any event, those statements, if made, are not inconsistent with the objective evidence of the terms of Mr Beaudoin’s visa, or the fact that he was also earning money by busking, at the very least. These matters together point strongly to the conclusion that, if a ‘purpose’ for the parties entering into the agreement could be identified at all, it was a mixed purpose.
Mr Beaudoin, for his part, indicated that when he arrived in Australia, he had intended to work in his profession of accountancy and had sought work to that end, but was unable to find any. He said that he then turned to musical performance to earn money. This was not limited to busking.
To be clear, the Court invited submissions in this form in order to ascertain the evidence that Mr Calabro would seek to adduce on the matter being remitted. It did not receive these statements as evidence.
Ultimately, the inquiry on any remitted hearing would be as to the purpose of the parties in entering into the agreement at that time. Consistently with the test articulated above, even if Mr Calabro could establish that he thought that Mr Beaudoin had only entered into the agreement for the purpose of a holiday, his subjective state of mind would not, alone, engage the holiday exclusion. Otherwise, the matters identified before this Court would not, on any view, overcome the presumption against the exclusion, even if they were established.
Further, the interests of justice do not warrant Mr Calabro having an opportunity to mount a case asserting facts that differ entirely from the factual premise on which both claims were prosecuted and determined at first instance. This would require an entirely new trial as to the circumstances surrounding the entering into the lease agreement and the intentions of the parties, in circumstances where Mr Beaudoin has long since returned to the United States. To permit that course in these circumstances would not serve the interests of justice.
In any event, having regard to the matters identified before this Court and the construction of the holiday exclusion in s 5(1)(c) articulated above, Mr Calabro would have no prospect of establishing the application of the exclusion. Leave to appeal on this ground is refused.
The asserted Constitutional issue
Section 75(iv) of the Constitution provides that in all matters, the High Court shall have original jurisdiction ‘between States, or between residents of different States, or between a State and a resident of another State’. This is commonly described as the diversity jurisdiction. Section 77(ii) empowers the Commonwealth Parliament to make laws defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States. Section 77(iii) empowers it to make laws investing any court of a State with federal jurisdiction.
By ss 38 and 39 of the Judiciary Act 1903 (Cth), the Commonwealth Parliament has enacted laws contemplated by these sections, investing the courts of the States with federal jurisdiction in all matters in which the High Court has original jurisdiction, subject to identified (and here, irrelevant) exceptions. This conferral of federal jurisdiction on the courts of the States includes the diversity jurisdiction.
In Burns v Corbett, Kiefel CJ, Bell and Keane JJ said:[10]
Considerations of constitutional text, structure and purpose compel the conclusion that a State law that purports to confer jurisdiction with respect to any of the matters listed in ss 75 and 76 of the Constitution on a tribunal that is not one of the courts of the States is inconsistent with Ch III of the Constitution, and is, therefore, invalid.
Chapter III of the Constitution provides for the authoritative adjudication of matters listed in ss 75 and 76 by federal courts and by State courts co-opted for that purpose as components of the federal Judicature. The provisions of Ch III exhaustively identify the possibilities for the authoritative adjudication of matters listed in ss 75 and 76. Adjudication by an organ of State government other than the courts of the States is not included within those possibilities and is therefore excluded from them.
[10] Burns v Corbett (2018) 265 CLR 304 at [2]-[3].
Mr Calabro submits that this principle precluded SACAT from exercising jurisdiction in this matter. The Tribunal is not a State court.[11] The determination of residential tenancy disputes will ordinarily require the Tribunal to exercise judicial power.[12] Where a dispute under the Residential Tenancies Act engages the diversity jurisdiction, Part 3A of the South Australian Civil and Administrative Tribunal Act 2013 (SA) provides for the matter to be transferred to the Magistrates Court of South Australia. That did not occur in this case.
[11] Attorney-General (SA) v Raschke and Another (2019) 133 SASR 215.
[12] Attorney-General (SA) v Raschke and Another (2019) 133 SASR 215 at [95], [100] (Kourakis CJ, Kelly and Hinton JJ agreeing).
Mr Beaudoin is a citizen of the United States of America. Whether or not he could have been described accurately as a resident of South Australia at the relevant time, on no view was he a resident of another State within the meaning of s 75(iv) of the Constitution. A similar argument was addressed in the recent decision of Choi v NSW Ombudsman, which the New South Wales Court of Appeal addressed as follows:[13]
Ms Choi submitted that the Tribunal had no jurisdiction to appoint a guardian ad litem for her because in doing so the Tribunal purportedly exercised federal judicial power contrary to Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15. This argument was based on the incorrect premise that where s 75(iv) of the Constitution confers federal jurisdiction on the High Court in matters between residents of different “States”, that included the conferral of jurisdiction between the resident of a State and the resident of a foreign state. Ms Choi deposed that she was a resident of South Korea. But in the Constitution “the States” do not include foreign states. “States” refer to those colonies or territories referred to in s 6 of the Constitution as being parts of the Commonwealth or which are admitted into or established by the Commonwealth as States. Ms Choi’s argument is misconceived.
[13] Choi v NSW Ombudsman [2021] NSWCA 68 at [32].
Mr Calabro’s argument is similarly misconceived. On no view was the diversity jurisdiction engaged. No constitutional issue arises.
Interlocutory application seeking summary judgment
On 24 March 2021, Mr Calabro filed in the appeal proceedings an interlocutory application expressed to be for ‘summary judgment’. The affidavit filed in support of the interlocutory application repeats the arguments raised in support of the application of the holiday exclusion. The application is misconceived. In any event, the arguments raised in its support are without merit, for the reasons given above.
Conclusion
The President of the Tribunal made orders on 13 August 2020, refusing the application for permission to proceed with an internal review. Mr Calabro did not file the Notice of Appeal until 8 December 2020. He seeks an extension of time. The Notice of Appeal expresses the grounds in support of an extension to be ‘new evidence’, being the existence of s 5(1)(c) of the Residential Tenancies Act, his disability and associated issues, and the impact of the COVID-19 pandemic. Other than to note that the ongoing existence of s 5(1)(c) is not capable of constituting fresh evidence, it is not necessary to consider these grounds. For the reasons given above, we dismiss the application for leave to appeal.