Krystal Stocks and Grant Morehead; v Kylie Jackson

[2014] NSWCATCD 242

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Krystal Stocks and Grant Morehead; v Kylie Jackson [2014] NSWCATCD 242

Hearing dates:

7 May 201415 August 20143 September 2014

Decision date:

18 December 2014

Jurisdiction:

Consumer and Commercial Division

Before:

P Boyce, Senior Member

Decision:

1.The Rental Bond service is to pay rental bond O864172-3 as follows:

a. to the landlord Kylie Jackson the amount of $1,020.00;
b. to the tenants Krystal Stocks and Grant Morehead the amount of $1,020.00 plus interest due.

2. The application for compensation is dismissed.

Catchwords:

Time limits to make application; Tribunal discretion to extend time under Section41 of Civil and Administrative Tribunal Act 2013

Legislation Cited:

Civil and Administrative Tribunal Act 2013
Residential Tenancies Act 2010
Residential Tenancies Regulations 2010

Cases Cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Gallo v Dawson [1990] HCA 30, 93 ALR 479
Nanschild v Pratt [2011] NSWCA 85
Jackamarra v Krakouer (1998) 195 CLR 516
Tomko v Palasty (No 2) (2007) NSWLR 61
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 (1984) FCR 344 Comcare v A’Hearn [1993] FCA 498; (1993) 119 ALR 85
Roads and Traffic Authority v Swain [1997] NSWSC 181
Swain v Residential Tenancies Tribunal (unreported, NSWSC, 22 March 1995).
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Antonia Heydon v NSW Land and Housing Corporation [2014] NSWCATCD 74
Molyneaux v Chief Commissioner of State Revenue [2012] NSWADTAP 53

Category:

Principal judgment

Parties:

Krystal Stocks and Grant Morehead (applicants)
Kylie Jackson (respondent)

Representation:

Litigants in person
Solicitors: Ms Aleesha Bajcarz,
HWL Ebsworth, Lawyers

File Number(s):

RT 13/65400

Publication restriction:

Unrestricted

reasons for decision

Application

1. This is an application made by a tenant of residential premises on 13 December 2013 to the Consumer Trader and Tenancy Tribunal (“CTTT”) for orders against the landlord of those premises pursuant to the Residential Tenancies Act 2010.

2. The tenants seek orders pursuant to:

1. S 44(1)(b) that the rent payable is excessive due to the reduction or withdrawal of any goods, services or facilities provided with the residential premises;

2. S 45 reducing the rent payable where the premises are unusable or uninhabitable or destroyed;

3. S 46 for the repayment of rent paid in excess of an amount specified by the Tribunal;

4. S 65(1)(a) that the landlord carry out repairs;

5. S 65(1)(b) that the landlord reimburse the tenant an amount of money for urgent repairs carried out by the tenant;

6. S 103 for a termination order where the landlord has breached the residential tenancy agreement;

7. S 109 for a termination order where the agreement is frustrated Tenant Provide the termination date and details about how and when the premises have become unusable or destroyed or appropriated bay an authority;

8. S 187(1)(a) that restrains any action in breach of a residential tenancy agreement;

9. S 187 (1)(b) that requires an action in performance of a residential tenancy agreement;

10. S 187(1) (c) for the payment of an amount of money

11. S 187(1)(d) for compensation.

3. The tenants claim is for the return of their bond of $2,040.00 and for $15,000.00 compensation made up of:

1. Cost of Building Certifiers Assessment: $2,087.25

2. Mechanical Engineers Assessment and Report $1,056.00

3. Excessive Rent 23 July 2013 - 3 September 2013 $3,060.00

4. Excessive Rent

1. 9 July 2012 - 22 July 2013

2. Economic loss 9 July 2012 - 16 September 2013

3. Non-economic Loss (physical inconvenience) $8,796.75

Total $15,000.00

Jurisdiction of the Tribunal

4. Clause 2 (1) (d) of Schedule 1 of the Civil and Administrative Tribunal Act 2013 (“NCAT Act”) defines the CTTT as an “existing Tribunal” for the purposes of the NCAT Act.

5. Clause 7(2) of Schedule 1 of the NCAT Act provides that unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT.

6. S 28 of the NCAT Act provides that the NSW Civil and Administrative Tribunal ("Tribunal") has jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

7. S 21 of the Residential Tenancies Act 2001 grants to the Tribunal the jurisdiction to hear and determine disputes conferred under the Act.

8. The Tribunal is satisfied that the applicants were tenants of the respondent landlord pursuant to a residential tenancy agreement entered into on or about 9 July 2012 for residential premises located within NSW.

Legislation

9. For the purposes of this application the relevant sections of the Residential Tenancy Act 2010 and Residential Tenancy Regulations 2010 are set out in full for ease of reference having regard to the number of orders sought by the tenants.

44   Tenant’s remedies for excessive rent

(1) Excessive rent orders

The Tribunal may, on the application of a tenant, make any of the following orders:

(a)  an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount,

(b)  an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount.

(2) Time limit for excessive rent increase applications

An application for an order that a rent increase is excessive must be made within the period prescribed by the regulations after notice of the increase is given.

45   Remedies for reduction of rent on frustration of residential tenancy agreement

(1)  The Tribunal may, on application by the landlord or tenant, make an order determining the amount of rent payable if the rent is abated under section 43 (2).

(2)  The Tribunal may order that:

(a)  from a specified day, the rent for the residential premises must not exceed a specified amount, and

(b)  the landlord must repay to the tenant any rent paid by the tenant since the specified day that is in excess of the specified amount.

Note. The residential tenancy agreement may also be terminated in these circumstances (see section 109).

46   Contraventions of rent order

(1)  A person must not demand, require or receive any rent from a tenant exceeding an amount specified by the Tribunal.

Maximum penalty: 20 penalty units.

(2)  A court before which proceedings for an offence under this section have been brought, or the Tribunal, on application by a tenant, may (in addition to any other penalty) order the person who committed the offence or any person on whose behalf that person acted to pay to the tenant against whom the offence was committed an amount equal to the amount of any rent unlawfully received from the tenant.

65   Tenants remedies for repairs

(1) Orders for which tenant may apply

The Tribunal may, on application by a tenant, make any of the following orders:

(a)  an order that the landlord carry out specified repairs,

(b)  an order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant.

(2) Orders for repairs

The Tribunal may make an order that the landlord carry out specified repairs only if it determines that the landlord has breached the obligation under this Act to maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.

(3)  The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that:

(a)  the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair, and

(b)  the landlord failed to act with reasonable diligence to have the repair carried out.

(4) Reimbursement for urgent repairs

The Tribunal may order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant if it is satisfied that the landlord has failed to reimburse the tenant for the costs in accordance with this Division.

(5) Payment of rent into Tribunal

The Tribunal may order that all or part of the rent payable under a residential tenancy agreement be paid into the Tribunal until an order under this section has been complied with.

103   Breach of agreement—termination by Tribunal

(1)  The Tribunal may, on application by a tenant, make a termination order if it is satisfied that:

(a)  the landlord has breached the residential tenancy agreement, and

(b)  the breach is, in the circumstances of the case, sufficient to justify termination of the agreement.

(2)  In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following:

(a)  the nature of the breach,

(b)  any previous breaches,

(c)  any steps taken by the landlord to remedy the breach,

(d)  any steps taken by the tenant about the breach,

(e)  the previous history of the tenancy.

(3)  The Tribunal may refuse to make a termination order if it is satisfied that the landlord has remedied the breach.

(4)  A tenant may make an application under this section without giving the landlord a termination notice.

(5)  The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.

109   Agreement frustrated—destruction of, or uninhabitable, premises

(1)  This section applies if residential premises under a residential tenancy agreement are, otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable or cease to be lawfully usable as a residence or are appropriated or acquired by any authority by compulsory process.

(2)  The landlord or the tenant may give the other party a termination notice.

(3)  The termination notice may end the residential tenancy agreement on the date that the notice is given.

(4)  The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement.

(5)  The Tribunal may, on application by a landlord or tenant, make a termination order if it is satisfied that a termination notice was given in accordance with this section and that this section applies to the residential premises.

187   Orders that may be made by Tribunal

(1)  The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders:

(a)  an order that restrains any action in breach of a residential tenancy agreement,

(b)  an order that requires an action in performance of a residential tenancy agreement,

(c)  an order for the payment of an amount of money,

(d)  an order as to compensation,

(e)  an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement,

(f)  an order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined,

(g)  an order that requires rent paid to the Tribunal to be paid towards the cost of remedying a breach of the residential tenancy agreement or towards the amount of any compensation,

(h)  an order directing a landlord, landlord’s agent or tenant to comply with a requirement of this Act or the regulations,

(i)  a termination order or an order for the possession of premises,

(j)  an order directing a landlord or landlord’s agent to give a former tenant or person authorised by a former tenant access to residential premises for the purpose of recovering goods of the former tenant or fixtures that the former tenant is entitled to remove.

(2)  Without limiting the Tribunal’s power to make an order as to compensation, the Tribunal may order compensation to be paid for the following:

(a)  loss of rent,

(b)  any other breach of a residential tenancy agreement,

(c)  loss or damage suffered by a person as a result of inaccurate, ambiguous or out-of-date information being listed about the person on a residential tenancy database.

(3)  An order under subsection (1) (a) or (b) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available.

(4)  The Tribunal must not make an order for:

(a)  the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or

(b)  the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section.

190   Applications relating to breaches of residential tenancy agreements

(1)  A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations.

(2)  An application may be made:

(a)  during or after the end of a residential tenancy agreement, and

(b)  whether or not a termination notice has been given or a termination order made.

(3)  A landlord’s agent may make an application on behalf of a landlord.

Reg 22   Times for making applications to Tribunal: ss 44 (2), 83 (2) (a), 98 (4), 115 (3), 125 (3), 134 (3), 141 (2), 175 (3) and 190 (1) of Act

(1)  For the purposes of section 44 (2) of the Act, the prescribed period for making an application for an order that a rent increase is excessive is within 30 days after notice of the increase is given.

(2)  For the purposes of section 83 (2) (a) of the Act, the prescribed period for the making of an application by a landlord for a termination order is within 30 days after the termination date specified in the relevant termination notice.

(3)  For the purposes of section 98 (4) of the Act, the prescribed period for the making of an application by a landlord for the revocation of a termination notice is within 7 days after being served with the termination notice.

(4)  For the purposes of section 115 (3) of the Act, the prescribed period for the making of an application by a tenant for a declaration that a termination notice has no effect on the ground that it is a retaliatory notice is:

(a)  within 30 days after being served with the termination notice, if the termination notice was given under section 85 of the Act, or

(b)  within 14 days in any other case.

(5)  For the purposes of section 125 (3) of the Act, the prescribed period for making an application for a tenancy is within 30 days after the applicant was given notice of proceedings for the recovery of possession of the residential premises.

(6)  For the purposes of section 134 (3) of the Act, the prescribed period for making an application for an order:

(a)  under section 134 (1) (a) of the Act is within 30 days after the applicant becomes aware that goods have been disposed of otherwise than in accordance with the Act, or

(b)  under section 134 (1) (b) of the Act is within 30 days after the applicant becomes aware that goods have been damaged, or

(c)  under section 134 (1) (c) of the Act is within 3 months after the applicant becomes aware that the goods are in the possession of the landlord or landlord’s agent, or

(d)  under section 134 (1) (d) of the Act is within 6 months after the residential tenancy agreement is terminated.

(7)  For the purposes of section 141 (2) of the Act, the prescribed period for the making of an application by a tenant under a social housing tenancy agreement or proposed agreement that rent is excessive is within 30 days after the cancellation of the rent rebate takes effect.

(8)  For the purposes of section 175 (3) of the Act, the prescribed period for making an application for an order as to the payment of the amount of a rental bond is within 6 months after the bond is paid.

(9)  For the purposes of section 190 (1) of the Act, the prescribed period for making an application for an order in relation to a breach of a residential tenancy agreement or proposed agreement is within 3 months after the applicant becomes aware of the breach.

Facts

10. The tenants entered into a residential tenancy agreement with the landlord on 9 July 2012 and agreed to pay $510.00 rent per week for a term of one year, the fixed term expiring on 8 July 2013.

11. On the tenants sworn evidence the tenants first complained by telephone call to the landlord’s agent about odours and the smell of cigarette smoke in the premises to the landlord’s agent during the first week of the tenancy and confirmed their complaint by email dated 15 August 2012 to an employee of the landlord’s managing agent.

12. The tenants complained about the smells in the premises to the landlord’s agent throughout the tenancy.

13. The tenants moved out of the premises on 23 July 2013 and continued to pay rent.

14. By letter dated 26 August 2013 to the landlord’s agent the tenants claimed compensation of $52,488.25 from the landlord.

15. A notice of termination of the tenancy was given by the tenants to the landlord’s agent on or about 26 August 2013.

16. The tenants vacated and gave up possession of the premises on 16 September 2013.

17. At the time of vacating the premises the tenants were two weeks in arrears of rent in the amount of $1,020.00.00.

18. The tenants filed their application to the Consumer Trader and Tenancy Tribunal (“CTTT”) on 13 December 2013.

19. The application came before the Tribunal on 17 January 2014 for conciliation and hearing.

20. The parties were unable to resolve the matter during conciliation and the Tribunal adjourned the matter to allow the parties to exchange their evidence, directing the tenants to file the documents upon which they relied on or before 14 February 2014 and the landlord to file the documents on which she relied by 14 March 2014.

21. The Tribunal extended the time for the tenant and the landlord to file their documents to 21 February 2014 and 17 March 2014 respectively.

22. The tenants filed their documents on 21 February 2014.

23. On 18 March 2014 the Tribunal extended the time for the landlord to file her documents until 11 April 2014.

24. The application was listed for hearing on 21 March 2014.

25. The hearing date was vacated.

26. The landlord filed her documents on 14 April 2014.

27. The application was listed for hearing on 7 May 2014 for 90 minutes. The hearing commenced on that day and was part heard.

28. The application was listed for further hearing and was heard on 15 August 2014 for a full day’s hearing.

29. On 29 August 2014 the Tribunal directed the parties to participate in a further directions hearing.

30. The directions hearing was listed on 3 September 2014 and the parties were directed to make submissions in respect of the jurisdiction of the Tribunal in “respect of the time for making the tenants’ application and cross examination of the respondent [landlord]”.

31. The tenants filed their submissions in accordance with the Tribunal Directions on 18 September 2014.

32. The landlord filed her submissions in accordance with the Tribunal Directions on 25 September 2014.

Threshold issue

33. The Tribunal raised the jurisdictional issue as to the time limits for the tenants to make the application for orders sought by the tenants. The parties addressed the issue in the further submission made by them respectively.

34. The Tribunal must first consider that issue as a threshold issue before it considers the cross examination issue and the substantive matter.

33. For the Tribunal to have jurisdiction to determine the tenants application for the various orders the application must be made in accordance with time limits imposed by s 190 of the Act and reg 22 of the Regulations.

Tenants’ submission

36. The tenants submission in response to the Tribunal Directions of 3 September 2014 are wide ranging and go beyond the issues directed by the Tribunal to address. Nevertheless the Tribunal has referenced those parts of the submission where the tenants address the issue of time limits for bringing the application.

37. As an explanation of their delay in filing their claim, the tenants submit that they have relied on information provided to them by the inquiry officers of the CTTT when filing their application as to any time limits within which they must bring their application. They also submit that when filing the application they specifically asked the counter representative of the CTTT whether they needed to “tick yes on section 14 of the application which states “Do you need an extension of time?”. It is the tenants’ uncorroborated submission that the counter representative told them they did not need to apply for an extension of time.

38. The tenants also refer in their submissions to advice obtained and on which they acted upon by a tenancy advocacy service, Eastern Area Tenants Service (“EATS”). An email dated 22 July 2013 adduced by the tenants from a representative of that service refers to “Sample” letters for the tenants to use when writing to the landlord’s agent about their complaints. The tenants did not adduce any other corroborating evidence to support their contention that they were not made aware of a time limitation to bring their application. They relied on their assumption as to the time limit in which to file their application with the Tribunal.

39. The tenants further submit that at no time until the further hearing on 3 September 2014 were they told by the Tribunal that the time for bringing their application may have been subject to a jurisdictional limit.

40. They submit in their submissions that “[I]n retrospect the tenants wished they had applied to the CTTT as soon as they became aware of the problem, however this was within the first week of moving in to the apartment”.

41. The tenants imply that they were waiting to bring their claim until the builder of the premises (that is Stocklands, which not a party to the proceedings) had an opportunity to consider remedying the alleged defect and payment of compensation.

Landlord’s submission

42. The landlord submits:

1. That the time for bringing an application to the Tribunal for alleged breaches of a residential tenancy agreement is within 3 months of the tenant becoming aware of the breach or within such other period as may be prescribed by the regulations; referring to s 190 of the Act and reg 22 of the Regulations.

2. In this application the parties agree that the tenant had 3 months to bring the application, however, the issue is from when does that limitation period start;

3. The time limits from when the period starts are either;

1. 26 July 2012 (cigarette smoke);

2. 7 March 2013 (cooking during tenancy);

3. 20 May 2013 (cigarette smoke);

4. 3 months from the latest of those dates is 20 August 2013;

5. NCAT (and its predecessor CTTT) does not give legal advice and the tenants cannot rely on information they say they gleaned from the Tribunal’s representatives;

6. It is not the responsibility of the Tribunal as constituted by its members to give advice;

7. It was within the tenants capacity to act on their rights and they chose not to;

8. The tenants submission that it would be unjust if they could not proceed with their application because of time off work and forgone income to pursue their application is rejected as the landlord has done similarly in her defence of the application;

9. The tenants did not seek an extension of time when they lodged their application or at all;

10. In any event the tenants are not entitled to an extension of time as it is not reasonable to extend the time;

11. In Antonia Heydon v NSW Land and Housing Corporation [2014] NSWCATCD 74 (9 May 2014) Member Levingston summarised the factors derived from his consideration of s 41 in light of Brisbane South Regional Health Authority v Taylor [1996 HCA 25; (1996) 186 CLR 541; Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) FCR 344 and Comcare v A’Hearn [1993] FCA 498; (1993) 119 ALR 85 that NCAT will consider in any extension of time claim under s 41 of the Civil and Administrative Tribunal Act 2013 (“NCAT Act”) including as follows:

1. While there is no onus of proof on the application for an extension of time, an application must actually be made;

2. The “prescribed period” is not to be ignored in that a prima facie rule is that proceedings commenced outside the prescribed period will not be granted;

3. In an application for an extension of time, the explanation for the delay is a relevant matter to be considered;

4. Consideration of whether the applicant’s actions including whether he or she has rested on their rights;

5. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay;

6. The merits of the actual application brought by the applicants; and,

7. Consideration of fairness between the applicants and other people in a similar position.

12. The tenants have failed to bring their application in time and in the absence of the Tribunal extending the time to bring the application and “the starting position is that no determination can be made”.

Findings

43. The Tribunal has considered the submissions of both the tenants and the landlord supported by the evidence in the hearing of the substantive matter.

44. Unless the Tribunal grants leave to bring the application out of time, the tenants must make their application within the time permitted under s 190 of the Act.

45. S 190 clearly sets out that the time limit for bringing an application is:

[W]ithin the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations.

46. Regulation 22 (9) prescribes that the time limit for bringing an application for orders under s 190 as:

For the purposes of section 190 (1) of the Act, the prescribed period for making an application for an order in relation to a breach of a residential tenancy agreement or proposed agreement is within 3 months after the applicant becomes aware of the breach.

47. The tenants evidence is quite clear that they became aware of the odour issue which they regarded as a breach of the residential tenancy agreement as early as the first week of their tenancy culminating, after a significant amount of correspondence with the landlord’s agent and their investigation, in them moving out of the premises on 23 July 2013 to avoid the odours which by that time they alleged were affecting their health.

48. When did the tenants become aware of the breach that there was an alleged reduction in the facility of the premises? On the tenants’ evidence, that was as early as 26 July 2012 and at its latest 23 July 2013. That is, the latest they could have commenced their application was 23 October 2013.

49. The tenants chose not to commence proceedings for orders relying on their attempts to have the builder of the premises and its advisors to resolve the matter to their satisfaction. It was always open to the tenants to commence proceedings at anytime during their tenancy and in any case before 23 October 2013 at the latest. They admit in their submissions that with the benefit of hindsight they would have commenced the action sooner.

50. The tenants did not file their application until 13 December 2013 believing that the time limit of 3 months commenced on the day that they vacated the premises following termination of the residential tenancy agreement.

51. On the face of it the tenants have failed to commence their application for orders within the time prescribed by the Act and regulations.

52. The Tribunal must take into account the effect of s 41 of the NCAT Act which provides:

(1)  The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2)  Such an application may be made even though the relevant period of time has expired

53. The landlord refers to the decision of Member Levingston, where he summarised in Antonia Heydon v NSW Land and Housing Corporation the elements to consider in the exercise of the discretion in s 41. The landlord submits that an application of the principles in Heydon militates against the tenants being granted an extension of time to bring their application.

54. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel of the Tribunal set out the principles to be applied when the Tribunal is considering its power to grant an extension of time. The guiding principles of the NCAT Act in s 36 must also be considered to “facilitate the just quick and cheap resolution of the real issue in the proceedings”.

55. The Appeal Panel set out the matters for consideration of whether to grant an extension of time in which to lodge a Notice of Appeal. Those principles apply to consideration of whether to grant an extension of time in which to file an application under the Residential Tenancies Act.

56. Those principles in relation to appeals at [22] are:

1. The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant-Gallo v Dawson[1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

2. [In an appeal] The discretion is to be exercised in the light of the fact that the respondent has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a “vested right” to retain the benefit of that decision-Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success- Jackamarra at [7];

3. Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

1. The length of the delay;

2. The reason for the delay;

3. The appellant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and,

4. The extent of any prejudice suffered by the respondent

-Tomko v Palasty (No 2) (2007) NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and,

It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17] and Molyneaux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] – [59]

57. When applied to the tenants’ application the Tribunal has regard to all the principles.

58. The consideration of whether an extension of time should be granted to lodge the application is on the Tribunal’s own motion. The tenants made no application because they thought, on the information they had at the time of lodging their application, that it was filed in time. This alone is not a sufficient explanation of the delay in filing the application.

59. The application was filed on 13 December 2014, 2 days short of the elapsing of 3 months from the date they vacated the premises following termination of the residential tenancy agreement. On the tenants’ reckoning of the time limit for filing the application, they filed the application just in time. They moved out of the premises when they allege they could no longer remain in them because of the offence that the odours caused and the impact they allege the odours had on their health on 23 July 2013. They raised their first concern about the odour problem during the first week of their tenancy in July 2012. Some twelve months earlier.

60. The issue of odours became so concerning to the tenants that, of their own volition, they were prepared to move out of the premises and continue to pay rent for a period of eight weeks before finally terminating their tenancy.

61. The tenants concerns were at their highest on or about 23 July 2013 as demonstrated by the claim for compensation made on that day.

62. On a reasonable assessment it was then that they had the opportunity and the will for lodging their claim. The tenancy was still on foot. However, they chose to wait while an unrelated party to the tenancy (the builder) considered and ultimately rejected their claim for compensation.

63. The tenants submit that it would be unjust to deny them the opportunity to file their application because they had “suffered for over 2 years” and “after weeks of waiting and being hopeful of compensation their claim was dismissed [by Stockland, the Builder of the building]”.

64. The explanation that they were waiting for the outcome of their claim for compensation and repairs to be carried out by the builder of the premises, Stocklands, is not an adequate explanation of delay. The tenants produced a remarkable volume of material in the conduct of their relationship with the landlord and pursuit of a remedy for the landlords perceived breach of the residential tenancy agreement accumulated during their tenancy.

65. The paucity of material put to the Tribunal by the tenants to provide an adequate explanation of the delay weighs against the granting of an extension of time; “where a discretion is sought to be exercised in favour of one party, and the disadvantage of another, an explanation will be called for”: Gummow, Hayne, Crennan, Kiefal and Bell JJ in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [103].

66. The Tribunal is not satisfied that a strict interpretation of the time for filing the application will bring an injustice to the tenants. The tenants had a lengthy time in which to exercise their rights and failed to do so.

67. The tenants appeared as capable, competent, assertive and well-resourced in the presentation of their evidence to the Tribunal.

68. The tenants could have filed an application at any time during their engagement with the landlord’s agent. Those discussions took the form of telephone calls and a large number of lengthy emails and letters from the tenants.

69. The tenants continued to occupy the premises for the fixed term of the residential tenancy agreement. They had the benefit of that occupancy.

70. The tenants claim appears to be an ambit claim and they have sought, in their first letter claiming damages from the landlord, an amount of $52,488.25, reducing that amount to conform to the jurisdictional limit of the Act to the maximum claim of $15,000.00.

71. Many of the orders sought by the tenants are not available to them.. Their claim for orders under:

1. S44(1)(b) will fail as for the Tribunal to make an order under this section the claim must be brought before the end of the tenancy; see S44(3). The construction of s47 of the former Residential Tenancies Act was considered by Rolfe J in Swain v Residential Tenancies Tribunal (unreported, NSWSC, 22 March 1995). S47 is in the same terms as s44 of the current Act. Rolfe J found that the claim must be brought during the tenancy. The principle was confirmed by in Roads and Traffic Authority v Swain [1997] NSWSC 181 by the Court of Appeal;

2. S45 only applies in relation to the frustration of a residential tenancy agreement and is reliant on the Tribunal making an order determining the amount of rent payable if the rent is abated under section 43(2). That order is only available if the premises become uninhabitable, cease to be usable as a residence or resumed by the Crown. The Tribunal has not made an order abating the rent. The tenants’ evidence has not established to the civil standard of proof that the premises became uninhabitable (see commentary in relation to s109 below).

3. S46- such an order is only available if the Tribunal has made an order specifying the rent payable and is in the nature of penalty proceedings before a court. The application for this order is misconceived;

4. S65(1)(a)- The tenants terminated the residential tenancy agreement and vacated the premises before making this claim for orders to the Tribunal. Such an order is only available during the term of the tenancy. The application for this order is misconceived;

5. S65(1)(b)- to succeed in such an order the tenant needs to establish the urgency of the repairs they claim to have carried out. The tenants expended monies on repairs that they claim. They have not established to the civil standard of proof that the work they undertook and the supplies they purchased to carry out the work were in the nature of “urgent” repairs. There is no prospect for success in relation to this claim.

6. S103- this section provides a tenant with a right to make an application to the Tribunal where the landlord has breached a residential tenancy and the circumstances are sufficient to justify termination of the agreement. The circumstances in this application are that the fixed term agreement expired on 8 July 2013. During the periodic agreement following the fixed term agreement, the tenants gave a termination notice to the landlord on 13 August 2013 and vacated the premises on 16 September 2013, that is more that 21 days after giving the notice as required by s97 of the Act. The tenants validly terminated the periodic agreement and the order sought serves no purpose. The application for this order is misconceived;

7. S109- this section allows a tenant to terminate a residential tenancy agreement if there has been a breach of the agreement, the premises destroyed, partly or wholly destroyed or uninhabitable or acquired by the Crown. The tenants terminated their tenancy by notice and vacated the premises. The effect of this section is for the tenants to obtain an order that the agreement was terminated on the day the notice was given. For the premises to become uninhabitable the tenants must establish that the cause for their complaint, the odour, was so pervasive that it made the premises not fit for habitation. The test of inhabitability is a difficult one to satisfy and has not been lightly found by the Tribunal; Cameron v Pemberton (1997). The tenants first complained about the ingress of cigarette smoke in the first week of their tenancy. It was an occasional odour. On the tenants evidence the odour was not present at all times. Notwithstanding their complaints they continued to live in the premises up until after the expiration of the fixed term agreement. They delayed in making their application to the Tribunal until nearly three months after they terminated the periodic agreement and vacated the premises. The Tribunal is not satisfied that the tenants have established on the civil standard of proof that the odour was so pervasive that it would have made the premises not fit for habitation.

8. S187(1)(a) the application for orders under this section is only relevant during the term of a tenancy.

9. S187(1)(b) similarly to s187(1)(a), the application for orders under this section is only relevant during the term of a tenancy.

10. S187(1) (c) the orders that the Tribunal can make is dependent on a finding that the tenants are entitled a money order including a repayment of rent if the Tribunal is satisfied that such an order can be made.

11. S187(1)(d) this is the principal order that the tenants, if they can establish an entitlement, can seek. However, to do so they must establish a breach of the residential tenancy agreement or the Act. In the list of orders the tenants rely upon none have been made out on the evidence adduced by the tenants.

72. The Tribunal is not satisfied on the merits of the tenants’ application that any order is available to them as they have not established to the satisfaction of the Tribunal that they are entitled to the orders they seek.

73. The landlord has been put to considerable expense and expended considerable time by having to defend the tenants’ application. The landlord has suffered prejudice through the tenants’ application.

74. The tenants have not shown strict compliance with the time limits have worked an injustice on the tenants. The Tribunal, in considering the substantive matter, is not satisfied that the tenants’ have any prospects of success.

75. In the circumstances the Tribunal is not satisfied that the tenants have shown that their case has merit; Tomko and Molyneaux .

76. Having considered all the circumstances and the evidence before it, the Tribunal is not satisfied that it should grant an extension of time for filing the application for compensation.

77. Before concluding these reasons for decision the Tribunal addresses the claim by the tenants that they were not given the opportunity to cross examine the landlord.

78. Ms Stocks claims that as she is not a lawyer she was “unaware that she herself would be cross examined and did not know she too could have done this” (tenants submissions page 7 of 29).

79. Ms Stocks then lists 16 questions she would have asked the landlord had she known she could ask her questions.

80. The landlord submits that:

1. at the conclusion of the first day of hearing the Tribunal made a direction that the parties advise the Tribunal and each other of the witness they required for cross examination by 21 May 2014. The tenants made no request for the landlord to be available for cross examination.

2. At the beginning of the resumed hearing the Tribunal discussed with the parties who would be cross examined that during the hearing. Ms Stocks was present and did not make a request to cross examine the landlord.

3. During the hearing the Tribunal Member asked Ms Stocks on a number of occasions if there was anything else she wanted to say to the Tribunal. On those occasions Ms Stocks did not request that she be able to cross examine or question the landlord.

4. To permit Ms Stocks to cross examine the landlord after the case has been run and forensic legal decisions have been made would be procedurally unfair to the landlord.

81. After consideration of the submissions of both parties on the issue of cross examination the Tribunal is satisfied that the tenants were given a reasonable opportunity to cross examine and question the landlord and failed to do so. Ms Stocks’ submission that she was denied the opportunity to cross examine because she did not know she could is not accepted. The Tribunal throughout the conduct of the matter made the tenants aware of the procedure and were given opportunities to request witnesses be available for cross examination (in particular directions were given by the Tribunal on 7 May 2014 requiring notice of who would be required for cross examination) and ask questions about procedure generally. Ms Stocks had the opportunity to present her case in the fullest sense. To permit Ms Stocks to effectively reopen the matter would be procedurally unfair to the landlord. The Tribunal is not satisfied that the tenants have suffered an injustice because they did not cross examine the landlord.

82. On the admission of the tenants at the time of their termination of the residential tenancy agreement they owed the landlord two weeks rent in the amount of $1020.

83. The tenants bond of $2040 has not been paid out by Renting Services.

84. The tenants application for the return of the rental bond may be made at any time up to the six months after the termination of the tenancy (see S175 of the Act and Reg 22(8) of the Regulations). The tenants have made their application in time and are entitled to an order that the rental bond be paid to them less the outstanding rent of $1020.00.

85. Otherwise the Tribunal determines that tenants’ application was filed out of time and is accordingly dismissed.

P. Boyce

Senior Member

Civil and Administrative Tribunal of New South Wales

18 December 2014

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 12 February 2015