Hills v Djordjevic (No 2)

[2015] NSWSC 429

Supreme Court

New South Wales

Medium Neutral Citation:

Hills v Djordjevic (No 2) [2015] NSWSC 429

Hearing dates:

16 April 2015

Date of orders:

16 April 2015

Decision date:

16 April 2015

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

The Court orders:

 

1. Leave to appeal is refused.

 

2. Proceedings dismissed.

 3. The Plaintiff to pay the Defendant’s costs of the proceedings, other than the costs of preparing the document entitled “Defence” filed in Court on 16.04.15.

Catchwords:

APPEAL – application for leave to appeal from Civil and Administrative Appeals Tribunal – small amount in dispute – no question of law arising – leave to appeal refused – no question of principle.

Legislation Cited:

- Civil and Administrative Tribunal Act 2013, s 7(1), s 80, s 81, s 83(1)
- Residential Tenancies Act 2010, s 45

Cases Cited:

- Hills v Djordjevic [2015] NSWSC 407

Category:

Principal judgment

Parties:

Nardine Jane Hills (Plaintiff)
Jovanna Djordjevic (Defendant)

Representation:

Counsel:
In person (Plaintiff)
Ms Y. Shah (Sol) (Defendant)

  Solicitors:
Metro Lawyers (Defendant)

File Number(s):

2014/339986

Publication restriction:

Nil

ex tempore Judgment

1. Before the court is a document entitled “Summons Commencing an Appeal”. As best as can be ascertained it appears to initiate an appeal from a decision of an Appeal Panel of the Civil and Administrative Tribunal of New South Wales, also known as “NCAT” (see Civil and Administrative Tribunal Act 2013, the “CAT” Act, s 7(1)).

2. There are a variety of decisions of NCAT at first instance referred to in the papers provided by the plaintiff, but the only one from which an “appeal" is directly available to this Court is a decision of an Appeal Panel. Subsection 83(1) of the CAT Act enables a party to appeal to this Court “on a question of law” but only with a grant of leave to appeal.

3. The plaintiff was a tenant at premises at 30/500 President Avenue, Sutherland (the “premises”). The defendant was her landlord. The plaintiff applied to NCAT at first instance for an order for abatement of rent under s 45 of the Residential Tenancies Act 2010 and for reimbursement of the cost of a shower head. Those proceedings were given the number RT 13/63639. Her application was dismissed on 20 February 2014.

4. There was also another proceeding on foot between the parties before NCAT at around the same time, namely, RT 19/14817. It is not clear who initiated that proceeding. In any event, on 19 June 2014 NCAT ordered that the plaintiff pay the defendant the sum of $535 for Sheriff's fees and locksmith's fees out of her bond.

5. The plaintiff appealed both decisions to an Appeal Panel. On 31 October 2014 the Appeal Panel published reasons dismissing both appeals. The Appeal Panel reviewed both decisions at first instance closely. The Appeal Panel could not detect that any question of law arose in either matter, or that there was any basis that would otherwise warrant a rehearing of the matter on the merits.

6. As noted, the effect of s 83(1) of the CAT Act is that, in this case, the plaintiff can appeal to this Court on a question of law but only with a grant of leave to appeal. If ever there was a case for the refusal of leave to appeal it is this one. Even allowing for the fact that the scope of the application for an abatement of rent is unquantified and the potential impact of the proceedings on what the plaintiff says is her "rental history", the amount in dispute is extremely small. It is a matter that strongly weighs against a grant of leave. Parties to these kinds of disputes should not be exposed to the cost of litigation in this Court. Further, I cannot determine any arguable question of law arising out of the Appeal Panel's decision that, if answered, could lead to success for the plaintiff. To the contrary, the Appeal Panel's approach to its appellate function was completely consistent with the dictates of ss 80 and 81 of the CAT Act.

7. At the hearing of the proceedings the plaintiff referred to various documents and the history of the matter in an attempt to re-agitate the facts of the dispute that were addressed by NCAT, including a number of complaints about mould at the premises. There is no doubt that the plaintiff has deeply held views about the conduct of the defendant's agent and the correctness of NCAT’s decisions. Nevertheless, none of the matters she argued raises any question of law or any matter that would warrant a grant of leave to appeal. Accordingly, leave to appeal is refused and the proceeding are dismissed.

[Parties addressed]

8. I have just heard the parties on the question of costs. Subject to one matter there is no reason why the usual order should not be made that the plaintiff pay the defendant's costs of these proceedings as a consequence of the proceedings being dismissed.

9. The one matter of exception is that there was handed by the defendant to the Court this morning a document entitled “Defence” which appears to be some form of mixed submission and pleading. The Uniform Civil Procedure Rules do not make provision for a document of that kind to be prepared in proceedings by way of appeal. Accordingly, I will shortly make a costs order that reflects the result that the defendant has received, but disallows that item.

10. For the sake of completeness it needs to be understood that this costs order does not in any way replace or supersede the costs order made by Bellew J on 13 April 2015 in Hills v Djordjevic [2015] NSWSC 407.

11. Accordingly, the Court orders that the plaintiff pay the defendant's costs of the proceedings, other than the costs of the document entitled “Defence” which was handed up in Court on 16 April 2015.

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Decision last updated: 17 April 2015