Manny v Nissen
[2022] ACTSC 41
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Manny v Nissen |
Citation: | [2022] ACTSC 41 |
Hearing Date: | 11 February 2022 |
DecisionDate: | 11 March 2022 |
Before: | Mossop J |
Decision: | See [51] |
Catchwords: | APPEAL – PRACTICE AND PROCEDURE – Application for leave to appeal a decision of the ACT Civil and Administrative Tribunal – no arguable case of a denial of procedural fairness – no sufficiently arguable case of appellable error – no arguable ground of appeal – application for leave to appeal dismissed with costs |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 8, 26, 79, 86(4) Residential Tenancies Act 1997 (ACT), s 6A, sch 1 |
Cases Cited: | Manny v Shiels [2013] HCASL132 P and W v Manny and Jeff Manny Pty Ltd [2010] ACTSC 50 Shiels v Manny and Manny Pty Ltd [2012] ACTCA 22 |
Parties: | J Manny (Applicant) B Nissen (Respondent) |
Representation: | Counsel Self-represented (Applicant) R Patrick (Respondent) |
| Solicitors Self-represented (Applicant) Gil-Jones Barker Solicitors (Respondent) | |
File Number: | SCA 33 of 2021 |
Decision under appeal: | Court/Tribunal: ACT Civil and Administrative Tribunal Before: Presidential Member Daniel Date of Decision: 9 September 2021 Case Title: Manny & Anor v Nissen Court File Number: AA 9/2020 (RT 633/2019) |
MOSSOP J:
Introduction
Jeff Manny has applied for leave to appeal against orders of the Australian Capital Territory (ACT) Civil and Administrative Tribunal (ACAT) made on 9 September 2021. That application is brought as a consequence of the requirement to obtain the leave of the Supreme Court in relation to an appeal: s 86(4) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act). By the time of the hearing of the application, Mr Manny relied upon a draft Notice of Appeal dated 9 February 2022.
The proceedings in the ACAT were proceedings brought by Mr Manny and his wife under the Residential Tenancies Act 1997 (ACT) against a former landlord. The applicants contended that they had a fixed term lease of the property and that they were entitled to compensation arising out of their unlawful eviction from the premises, as well as compensation for certain breaches of their lease.
Most of the claims made by Mr Manny were rejected by the Tribunal at first instance (the Original Tribunal) but the lessor was ordered to pay $300 to the tenant before 27 March 2020. That order related to a failure on the landlord’s part to repair some curtains on the premises.
Mr Manny and his wife appealed within the Tribunal pursuant to s 79 of the ACAT Act. On appeal, the Tribunal (the Appeal Tribunal) dismissed the appeal and confirmed the orders made by the Original Tribunal. The Appeal Tribunal gave its decision and oral reasons on 9 September 2021. It provided written reasons, which were a corrected version of the transcript, on 2 December 2021.
Leave to appeal
Appeals under s 86 of the ACAT Act are “on a question of fact or law”. The appeals are from the Appeal Tribunal. The requirement for leave is “to reduce the number of appeals and provide a filter so that only those of some substance or where there is a miscarriage of justice should be able to be heard”: Pires v Dibbs Barker Canberra Pty Ltd [2014] ACTSC 283 at [48]. The decision in relation to the grant of leave must take into account the subject matter of the proceedings in the ACAT, and the fact an internal appeal is provided for under the ACAT Act. Whether or not to grant leave is a discretionary decision which will be significantly influenced by the court’s perception of the merits of the proposed grounds of appeal.
Brief chronology
The following is a brief chronology of the facts giving rise to the proceedings and the proceedings themselves:
(a)4 October 2017: The parties enter into a residential tenancy agreement with a fixed term from 18 October 2017 until 17 October 2018.
(b)20 August 2018: The lessor’s agent sent an email to the tenants offering a new 12-month lease from 16 October 2018 and saying: “Should you wish to commence a new fixed term tenancy from 16 October 2018, sign and return the attached agreement …”
(c)21 August 2018: Mr Manny replied by email saying: “We are happy to extend our lease for another year. We are a bit busy with work and illness to sign up the lease now. I come back to you in a couple of weeks when we have lighter workload and recover from illness.”
(d)17 September 2019: The lessor serves the tenants with a notice to vacate.
(e)10 October 2019: Mr Manny and his wife sign the residential tenancy agreement provided on 20 August 2018 and return it to the lessor’s agent.
(f)20 March 2020: Decision of Original Tribunal.
(g)22 May 2020: Written reasons given by the Original Tribunal.
(h)14 August 2020: Hearing before the Appeal Tribunal.
(i)9 September 2021: Orders made and oral reasons given by the Appeal Tribunal.
(j)5 October 2021: Mr Manny requests written reasons for decision.
(k)29 October 2021: Supreme Court proceedings adjourned pending provision of written reasons by Appeal Tribunal.
(l)2 December 2021: Written reasons for decision given by the Appeal Tribunal.
(m)11 February 2022: Hearing of the application for leave to appeal.
Decision of the Original Tribunal
The decision of the Original Tribunal was structured around two issues:
(a)Issue 1: is the notice to vacate served on the tenants on 17 September 2019 valid?
(b)Issue 2: breaches of the residential tenancy agreement by the lessor.
Issue 1 related to whether or not Mr Manny’s email of 21 August 2018 was effective to create a lease, notwithstanding that the condition specified in the email from the lessor’s agent of 20 August 2018 was that, if there was to be a new lease, the tenants should “sign and return the attached agreement”.
If Mr Manny’s email of 21 August 2018 was effective to create a lease, then that lease would be a fixed-term lease from 16 October 2018 until 15 October 2019. If that was the case, then the tenants contended the notice to vacate dated 17 September 2019 was invalid because it was a notice given pursuant to cl 96 of the standard residential tenancy terms (see sch 1 of the Residential Tenancies Act) and that clause only operated where there was a periodic tenancy as opposed to a fixed term tenancy. (The Original Tribunal wrongly referred at [5] and [10] to the email of 21 August 2018 being an email of 21 August 2019 but nothing turns on this.)
The Original Tribunal referred to s 6A of the Residential Tenancies Act, which indicates that a residential tenancy agreement may be “express or implied” or “in writing, oral, or partly in writing and partly oral”. The Tribunal found that there was no evidence to establish that the tenants took any steps to sign and return the second residential tenancy agreement for a further fixed term. The Tribunal concluded that “the lessor had imposed a condition precedent on the creation of a new fixed term tenancy: that is that the tenants sign the agreement and return it to the agents for execution by the lessors”. The Original Tribunal did not accept Mr Manny’s evidence that the agents told him in later conversations that it was not necessary to sign the agreement. The Original Tribunal accepted the evidence given by the agent that the lessors had not been unhappy that the tenants had not returned the lease and had therefore transitioned to a periodic tenancy. The Original Tribunal found that the tenants could not unilaterally create a fixed term agreement by belatedly signing and returning the tenancy agreement after the giving of the notice to vacate. The Original Tribunal found that the notice to vacate was valid and had been served on the tenants.
In relation to Issue 2, the tenants had claimed compensation for a number of matters arising from the alleged invalidity of the notice to vacate:
(a)the difference in rent paid between the old and the new premises;
(b)the difference in electricity costs between the old and the new premises;
(c)the cost of moving house;
(d)in compensation for Mr Manny suspending his studies being undertaken at the University of Canberra.
In light of the Original Tribunal’s conclusion as to the validity of the notice to vacate, these aspects of the application were dismissed.
The other component of Issue 2 was the claim for compensation by the tenants because:
(a)the tenants asserted that the premises were not clean at the commencement of the tenancy on 16 October 2017 and that as a result they paid two weeks’ extra rent in their previous premises; and
(b)of the loss of enjoyment caused by the lessor’s failure to repair curtains in the premises.
The Original Tribunal found that while the tenancy was expressed to commence on 18 October 2017, the lessor had granted early access to the tenants to allow them to begin moving their possessions into the premises. On 16 October 2017, the tenants complained about the habitability of the premises. There was correspondence between the tenants and the agent. The terms of that are set out in the Original Tribunal’s reasons and reflect what was described by the Original Tribunal as a “rude and offensive” tone on Mr Manny’s part.
The Original Tribunal referred to the evidence of the agent that cleaning was completed and the premises were in a reasonably clean state prior to the date of the commencement of the residential tenancy agreement, namely 17 October 2017: [28]. The Original Tribunal referred to Mr Manny’s evidence that the premises were not clean by 18 October 2017. It referred to the difficulty with Mr Manny’s evidence arising from the fact that he could not explain how photos which he gave evidence were taken on 1 November 2017 were attached to an email to the agent dated 17 October 2017. The Original Tribunal referred to the fact that the evidence established that on 16 October 2017, the lessor’s agent did organise for cleaning to be done: [30].
The conclusion of the Original Tribunal was that the tenants had not established on the balance of probabilities that the premises were uninhabitable on 16 October 2017, or that the premises were not reasonably clean on that date. The conduct of the agent in promptly repairing and cleaning the premises and asking for a list of repairs to be put to the owner remedied any breach, if there was one, prior to the commencement of the tenancy: [33]. The Original Tribunal found that a request for repairs submitted by the tenants on 5 December 2018 was dealt with “promptly and appropriately”: [35].
In relation to the curtains, the Original Tribunal found that they were “old and in poor condition at the commencement of the tenancy”. The Original Tribunal was satisfied that the curtains were not able to be properly operated and the tenant was not able to fully open some of the curtains to allow sunlight into and ventilation of the premises. The Original Tribunal was satisfied that the tenants had asked for the curtains to be repaired but they were not repaired or replaced during the tenancy and that as a result, the tenants were inconvenienced. The Original Tribunal identified that the lessor should compensate the tenants in the amount of $300 for the loss of enjoyment of the property caused by that inconvenience: [38].
The end result was that the lessor was required to compensate the tenants in the amount of $300 for loss of enjoyment of the property but the application was otherwise unsuccessful.
The decision of the Appeal Tribunal
The reasons of the Appeal Tribunal acknowledged that its decision had taken too long to be given and explained the reasons for that delay: [4]. It explained the material that was before the Appeal Tribunal and that some fresh evidence provided by the lessor was not admitted for the purposes of the appeal: [7].
The Appeal Tribunal then summarised the decision of the Original Tribunal. It first summarised the Original Tribunal’s decision in relation to Issue 2, addressing the issue of habitability: [9]-[12] and then the issue of failure to repair: [13]-[15]. At [16]-[19], the Appeal Tribunal summarised the approach of the Original Tribunal to the question of whether the tenants were inappropriately or improperly given the notice to vacate.
At [20]-[24], the Appeal Tribunal explained its approach to the principles to be applied on an internal appeal and that it was proceeding by way of a review rather than a hearing de novo. That required the tenants to establish error on the part of the Original Tribunal. It indicated that the Appeal Tribunal was obliged to conduct a real review of the decision and the reasons of the Original Tribunal but would give proper allowance to the advantage of the Original Tribunal who had seen and heard the witnesses: [23].
The Appeal Tribunal indicated at [25]-[28] that the document lodged with the appeal on 2 July 2020 identified grounds of appeal which asserted errors in three main findings:
(a)failure to find that there was a further fixed term lease and that the notice to vacate was invalid;
(b)failure to find that the premises were uninhabitable and hence to award two weeks’ rent for having to go and live in their old premises for another two weeks; and
(c)failure to find that the lessor breached of the obligation to repair and maintain the premises in relation to laundry tiles, the fly screens and the loss of enjoyment caused by the failure to repair.
The Appeal Tribunal identified the various outcomes sought by the tenants including the claim for the following dollar amounts:
(a)$4760 a year for the additional rent paid at more expensive premises;
(b)$1200 for extra electricity costs;
(c)$300 per quarter as a result of a failure to order a cover for the evaporative cooler and the increase in electricity costs;
(d)$2500 for the removalists arising from having to leave the premises early;
(e)$5600 for a failure to complete a University of Canberra course;
(f)$4680 for loss of enjoyment of the premises (being 10 percent of the rental costs of $46,800);
(g)$5000 for damaged furniture; and
(h)$900 for the two weeks’ rent because of the premises being uninhabitable.
The tenants also claimed “indemnity costs”.
The position of the lessor was that the decision of the Original Tribunal should be upheld. The Appeal Tribunal identified the tenants’ contention that the law had not been correctly applied, hence challenging the conclusions reached by the Original Tribunal.
The Appeal Tribunal then considered whether the Original Tribunal had got the law right. It found that the Original Tribunal had:
(a)correctly identified the onus of proof as being on the tenant, to the civil standard;
(b)correctly identified s 6A of the Residential Tenancies Act as being relevant to determining what constituted a lease; being aware of the terms of the residential tenancy agreement in relation to condition reports and the obligations of a lessor to maintain the premises; and
(c)been aware of contract law in relation to offer, acceptance and conditions precedent.
The Appeal Tribunal noted that the Original Tribunal placed a lot of weight on the email correspondence between the parties and noted that the Original Tribunal did not prefer the evidence of Mr Manny where it was contradicted by a document or testimony of the lessor’s agent: [36]-[37]. The Appeal Tribunal identified that it was open to the Original Tribunal to prefer the evidence of the agent in some respects and there was no error in the Original Tribunal taking that approach: [38].
The Appeal Tribunal then considered whether the Original Tribunal had erred in failing to find that the tenants had a new fixed term lease. The Appeal Tribunal summarised the arguments put by the tenants. The Appeal Tribunal said:
42.The conclusion as to whether there has been such a meeting of minds so as to form a new fixed term contract really depends on an assessment of the entire communications and relationship. It certainly seems to me that the history of communications between the tenants and the lessors had, even by email, been fraught and peppered with very upsetting language, even what could be taken to be abusive or threatening language. Against a background of that communication I consider that the original tribunal is correct to find that neither party was going to feel that there was an agreement until it was in some form of written exchange. Indeed, in one of Mr Manny’s emails he points out things should be put in writing.
43.I consider the original tribunal was correct to find then that there wasn’t a meeting of minds by that reply email of 21 August saying, “We’re happy to accept but we don’t have time to sign it”, and correct to find, effectively, that offer was no longer on the table by 27 September; indeed, if it had been still on foot it was impliedly retracted by the issuing of that notice to vacate. An objective bystander would see, as the original tribunal concluded, both parties to this residential tenancy agreement were keeping their options open and they were not pursuing a further fixed term tenancy after the failure of the tenants to provide a signed copy of the proposed lease.
44.I think the original tribunal’s finding in this respect can’t be interfered with. As I say, the legal reasons put forward by the appellants are arguable, but with regard to the entirety of the communications between the parties, I don’t think that that’s the correct analysis. I agree with the original tribunal that this was an offer made clearly saying, “accept by doing this”. I think both parties were keeping their options open and the original tribunal was correct to find that.
45.If there was no error in that finding about there being no further fixed term agreement, all of those other arguments about the notice to vacate being invalid fall away and so those aspects of the claim were correctly dismissed.
The Appeal Tribunal then turned to consider the finding about uninhabitability at the commencement of the tenancy. The Appeal Tribunal addressed the contention that the Original Tribunal had erred in saying that there was no contemporaneous claim by the tenants in relation to the uninhabitability of the property. The tenants pointed to an email of 29 October 2017. The Appeal Tribunal accepted that the Original Tribunal was incorrect in saying there was no contemporaneous claim by the tenants for that two weeks’ rent. However, it found that there was no evidence that the tenant continued to complain about the level of cleanliness after 18 October 2017. The Appeal Tribunal found that the Original Tribunal, when referring to a contemporaneous claim, was referring to one which was contemporaneous with 18 October 2017. Therefore, the Appeal Tribunal found that there was no error but if there was an error, it did not have any real weight in the finding that the premises were not uninhabitable at the requisite time: [52]. The Appeal Tribunal reasoned that just because, in the particular circumstances, the tenants had paid an extra two weeks’ rent “at a stressful point in time to manage a practical problem”, that did not mean that the lessor was obliged to reimburse them. The Appeal Tribunal was not satisfied that the Original Tribunal was wrong in reaching the conclusion that it did on the evidence that it had.
The Appeal Tribunal finally turned to the question of whether there was a breach by the lessor of her obligation in relation to repairs beyond the $300 that was awarded. The Appeal Tribunal identified that the claims made before it were somewhat broader than those made in the Original Tribunal but that it was not appropriate to go beyond the matters that were pressed before the Original Tribunal: [58]. The Appeal Tribunal indicated that it had reviewed the email correspondence and was not satisfied that the Original Tribunal erred in finding that there was no breach by the lessor of her obligations to repair. The Appeal Tribunal identified that the tenants may have carried out some work with the consent of the lessor but that did not mean that the lessor had breached her obligation to repair: [61].
In relation to the $300 compensation, the tenants asserted that this was too low for the loss of use or partial loss of use of the curtains. The tribunal found that the $300 amount was “in the ballpark of what might be awarded for that sort of breach” and found that there was no error.
Overall, the Appeal Tribunal was not satisfied that the Original Tribunal made any appellable errors: [65]. It therefore dismissed the appeal and confirmed the orders of the Original Tribunal.
The draft Notice of Appeal
The structure of the draft Notice of Appeal dated 9 February 2022 appears to involve three principal grounds of appeal which are then supported by particulars which are provided as sub-paragraphs under each ground of appeal. The grounds of appeal as they appear in the draft Notice of Appeal are as follows:
5A-Trail Jude [sic] exercised her apprehended bias and prejudice to the Appellants before the final hearing
…
5B-Trail Jude [sic] exercised her apprehended bias and prejudice to the Appellants during the final hearing
…
5C-Trail Jude [sic] exercised her bias and prejudice to the Appellants on her final decisions on 9 September 2021-AA 9/2020.
The reference to “Trail Jude” should be understood as a reference to the presidential member who constituted the Appeal Tribunal.
Ground 5A
The particulars of this ground are hard to understand, however they appear to involve an allegation of an apprehension of bias as a result of the presidential member having heard a case between a Yodollah Rezvani, Mr Manny and three other members of Mr Manny’s family. The particulars provided were as follows:
5A.1-The Presidential member M-T Daniel was the member heard the appeal in the matter of AA 21/2018 when Mr Rezvani brought in the tribunal the Orders of Justice Grey [sic] on 2010-SC 601 of 2005 and the related Google posts as evidence that the Appellants exercise Malice and Can’t be trusted in which Presidential Member said that she believed Justice Grey’s [sic] order on 11 June 2010 that she was disappointed on the Appellants.
There was then reproduced part of a tribunal document recording orders made on 2 July 2018 by the presidential member but not the terms of those orders. There was no explanation of the context or significance of those orders.
The particulars of the ground are very difficult to understand. They were not explained in oral or written submissions. The material before the court does not establish that there was any application to the presidential member to disqualify herself because she had previously been involved in the other matter. The mere involvement of the presidential member in another matter involving Mr Manny is not sufficient to establish any apprehension of bias.
Ground 5B
The particulars of this ground provide:
5B.1-The Appellants sought to attend in the hearing on 17 September 2020 in person because his hearing impairment but Presidential member Daniel did not allow it.
5B.2-The P residential [sic] member Daniel did not let Appellants to give evidence and kept on interrupting the Appellants and arguing with him. Please refer to the transcript of appeal hearing on 17 September 2020 in the matter of AA92020
5B.3-The Presidential Member Daniel took almost one year to make her decision and took 3 months to give reason to order and did not forward the transcripts of 9 September 2021 and among other things.
It is not clear what hearing occurred on 17 September 2020 for the purposes of particulars 5B.1. The evidence put before the court for the purposes of the application for leave to appeal does not establish what occurred on this date, or provide an indication of the facts that would be sought to establish upon an appeal in order for this ground to be established.
Ground 5B.2 refers to 17 September 2020 as being the appeal hearing. The transcript of this was not put before the court for the purposes of the application for leave to appeal.
Ground 5B.3 arises from the length of time taken to make the decision and three months being taken to give reasons for the order. While both the delay in making the decision and the delay in responding to the request for written reasons were not satisfactory, they do not of themselves provide a basis for an assertion of apprehended bias.
Ground 5C
Under this ground, there are 69 paragraphs of particulars which extend over almost 18 pages of the draft Notice of Appeal. They challenge every paragraph of the Appeal Tribunal’s reasons. The nature of the particulars is illustrated by the first of them which is the only one that does not relate to a particular paragraph of the reasons given by the Appeal Tribunal. It provides:
5C.1-The trail [sic] presidential Member erred to exercise apprehend bias , [sic] prejudice and denied the Procedural Fairness to the Appellants on Order 1 dismissed the Appellants’ appeal in the matter of AA 9/2021 when she was in the position of orders of Justice Gray on 11 June 2010 in the matter of SC601 of 2005 by having adverse opinion about the Appellants, Interest (the landlord is high in public service that can give lots of favour back to Members of ACAT that the Appellant was warned about that by another member of ACAT); Conduct (denied the Procedural Fairness); Prejudgment (judgment against the Appellant in the matter of SC 601 of 2005); Association (member in the original decision was her colleague and “P” was a lawyer), and extraneous information (Justice Grey [sic] in his orders of 11 June 2010 say that Mr Manny acted in “Malice” and “Can’t be trusted” in the matter of SC 601 of 2005 ). Refer to in original.)
The reference to proceedings SC 601 of 2005 is a reference to P and W v Manny and Jeff Manny Pty Ltd [2010] ACTSC 50. Subsequent proceedings in that case are Shiels v Manny and Manny Pty Ltd [2012] ACTCA 22; Shiels and Shiels v Manny and Jeff Manny Pty Ltd [2010] ACTSC 58 and Manny v Shiels [2013] HCASL132.
The draft Notice of Appeal focuses on an apprehension of bias on the part of the presidential member. There does not appear to be a proper basis for this allegation. It was not a matter which was raised before the presidential member. An evidentiary basis for it has not been established. The possible existence of errors in the decision of the Appeal Tribunal does not provide a proper basis for the assertion of an apprehension of bias.
Decision
In relation to the alleged errors in the decision of the Appeal Tribunal, the errors were identified in a manner which lacked any focus. They sought to expand rather than narrow the issues on appeal. Given the prolixity of the draft Notice of Appeal, it is appropriate to deal with the grounds of appeal as a whole rather than attempt to assess them individually.
The Original Tribunal conducted the hearing by telephone and heard statements and arguments from Mr Manny on the one hand and two representatives of the managing agent for the landlord on the other. The Original Tribunal was entitled to proceed in the manner that it did, which did not involve the calling of evidence on oath or affirmation. Sections 8 and 26 of the ACAT Act makes it clear that the Tribunal is not bound by the rules of evidence and may inform itself in any way that it thinks fit. While, in a hearing by telephone, the Original Tribunal might have had less of an advantage when compared to the Appeal Tribunal or this court than it would have had if it had both seen and heard the witnesses, it was authorised to proceed in this manner and was entitled to make findings of fact that were influenced by the impression of those which participated in the hearing. Insofar as Mr Manny sought to challenge conclusions reached by the Original Tribunal and accepted by the Appeal Tribunal as to what occurred at the commencement of the lease, Mr Manny has not demonstrated an arguable claim that the Original Tribunal had misused its advantage or made a decision proven to be incorrect, having regard to the available contemporaneous documents.
Insofar as there were asserted errors in the approach to whether or not there was a fixed term or periodic lease at the time of the notice to vacate, there is no sufficient reason to doubt the conclusion reached by the Original Tribunal and the Appeal Tribunal.
In so far as there were asserted errors in relation to questions of damages, the Original Tribunal considered each of the claims made by the tenants and reached conclusions in relation to them. The Appeal Tribunal conducted a proper review of those findings based upon the arguments that were put to it on appeal. It was not obliged to hear the matter de novo. There is no reason to doubt the correctness of the approach taken by the Appeal Tribunal.
In summary, the matters raised in the draft Notice of Appeal do not disclose a sufficiently arguable case that the decision is vitiated by denial of procedural fairness arising by reason of an apprehension of bias to warrant a grant of leave to appeal. Further, if, notwithstanding the form of the grounds in the draft Notice of Appeal, they are considered to involve, instead of an allegation of denial of procedural fairness, a direct assertion of error on the part of the Appeal Tribunal, the grounds of appeal are not sufficiently arguable to warrant a grant of leave to appeal.
For these reasons, the application for leave to appeal will be dismissed. Costs will follow the event.
Order
The order of the Court is: the application for leave to appeal dated 4 October 2021 is dismissed with costs.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 11 March 2022 |
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