Hanna v Consumer Trader and Tenancy Tribunal (No 2)

[2012] NSWSC 1638

Supreme Court

New South Wales

Medium Neutral Citation:

Hanna v Consumer Trader & Tenancy Tribunal (No 2) [2012] NSWSC 1638

Hearing dates:

19 October 2012

Decision date:

19 October 2012

Jurisdiction:

Common Law

Before:

Adams J

Decision:

1. Summons dismissed.

2. No order as to costs.

Legislation Cited:

Consumer, Trader and Tenancy Tribunal Act 2001

Category:

Principal judgment

Parties:

Anne Hanna (First Plaintiff)
Fayez Phillipe Hanna (Second Plaintiff)
Consumer Trader & Tenancy Tribunal (First Defendant)
Showcase Realty (Second Defendant)
Antonio Carlo Liviani (Third Defendant)

Representation:

I V Knight, Crown Solicitor (First Defendant)
H Watts (Second & Third Defendants)

File Number(s):

2012/210180

ex tempore  Judgment

1. This is a summons seeking prerogative relief under s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 in respect of a decision of the Tribunal. The original application was brought by Anne Hanna and Fayez Hanna against the landlords Antonio and Carlo Liviani to the Tribunal seeking reduction of rent and correction of what was alleged to be the unsuitable condition in a number of respects of the premises which was leased to them.

1. The Tribunal, on 9 May 2012, dismissed it for want of appearance by either Mr or Mrs Hanna. On 6 June 2012 their application for rehearing of the dismissed application was refused. Mr and Mrs Hanna seek relief in this Court in respect of the dismissal of their application and the refusal to grant a rehearing. (As I mentioned in a previous judgment in these proceedings, they added as a party to the summons the real estate agent which was not a party at any stage to the proceedings in the Tribunal. For the reasons earlier given, I ordered that the agent be removed from the summons as a party.)

1. The notice of the hearing that was sent to the plaintiffs by the Tribunal clearly states that the hearing was to take place at 11.15am on 9 May 2012 in the premises of the Tribunal in Castlereagh Street, Sydney. Mr Hanna says that he and his wife mistakenly thought that the hearing would be conducted at the Tribunal's premises in Parramatta but, when they arrived, they discovered that the Tribunal had moved and realised that the venue of the hearing was in Castlereagh Street. Mr Hanna called the Tribunal and told the person to whom he spoke. (He told me that he had spoken to the Tribunal Member. However, he stated that this conversation was with a person who was not a member of the Tribunal. Nothing turns on this.) He was told that if they did not attend on time, the Tribunal Member might dismiss their application. They believed that it would have been unsafe to attempt to drive from Parramatta to the city to arrive on time and, as I understand it, did not attempt to do so.

1. When the matter came on before the Member, the real estate agent, Mr Circosta, was present, but of course neither Mr nor Mrs Hanna was there. The Member informed Mr Circosta -

"The tenants who are the applicants today have telephoned at ten to eleven to say that they cannot attend the hearing today. They have not told me why, or the Tribunal why, and are requesting an adjournment. What do you have to say about that?"

Mr Circosta, not surprisingly, opposed the application. The Member gave the following reasons:

"The applicants contacted the Tribunal by telephone at 10.50am on the hearing date to advise they could not attend. There has been no explanation given as to why they could not attend. The applicants' were warned that the matter may be determined in their absence. The respondent's did attend and have indicated that they oppose any adjournment. For the above reasons the Tribunal does not grant an adjournment to the applicants, either one of whom could have attended, and the matter is accordingly dismissed."

1. It seems to me that it was entirely proper in the circumstances, in light of what was apparently known by the Member about the reasons for non-attendance, that he dismissed the application. It appears that, even from Mr Hanna's affidavit, they did not suggest that they could attend after a reasonable delay to enable safe travel but, rather, sought an adjournment to another day.

1. There is no error in law or, for that matter, in fact on the part of the Member. The rehearing was refused for the following reasons:

"The applicants claim one reason neither of them could attend at the hearing of the matter was due to a medical condition. No evidence has been tendered in support of this submission. No satisfactory explanation why neither applicant was before the Tribunal has been provided. The hearing notice clearly states Notice of Conciliation and Hearing and for the above reasons the application for re-hearing is dismissed."

1. Of course, there was nothing to prevent Mr and Mrs Hanna from making a fresh application, there not having been any decision on the merits in relation to the dismissed application. However, they decided instead to take proceedings in this Court.

1. I am unable to see any error of law in the decisions either to dismiss the application or to refuse a rehearing and, accordingly, the summons must be dismissed.

1. I should point out that Mr Liviani, in an affidavit sworn 21 September 2012, and as I understood it served on Mr and Mrs Hanna, said that he consented to have the matter which was dismissed being remitted back to the Consumer Tenancy Tribunal to be heard by a new Member and that this was agreed to by the Hannas at a hearing at the Tribunal on 15 August 2012. This was in the context of an application by Mr Liviani for termination of the lease and for possession of the premises but all issues, it was agreed by the parties, would all be heard together and a hearing date of 15 November 2012 has been set down.

1. In the circumstances, since the Hannas will have their matters considered by the Tribunal at the hearing on 15 November 2012, it appears to me that as a matter of fact they suffer no real prejudice by my applying the appropriate legal outcome to this appeal. Accordingly, the summons is dismissed.

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Decision last updated: 14 February 2013