Shapkin v Lorenzato

[2022] NSWCATCD 67

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Shapkin v Lorenzato [2022] NSWCATCD 67

Hearing dates:

6 April 2022

Date of orders:

8 April 2022

Decision date:

08 April 2022

Jurisdiction:

Consumer and Commercial Division

Before:

G Blake AM SC, Senior Member

Decision:

(1)   The proceedings are dismissed.

Catchwords:

CIVIL PROCEDURE – Renewal of proceedings – Whether the respondent failed to comply with order of the Tribunal – Whether any other appropriate order should be made – Proceedings dismissed

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Residential Tenancies Act 2010 (NSW)

Cases Cited:

Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98

Flanagan v Bernasconi [2022] NSWSC 381

Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311

McLean v Power [2013] NSWSC 193

Mehr v Lau [2022] NSWCATAP 15

Minifie v Maxwell [2020] NSWCATAP 30

Smits v Loel [2014] FCA 1341

Smits v Loel (No 3) [2015] FCA 77

X-Build Construction Services Pty Ltd v O’Rourke [2020] NSWCATAP 181

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Vasiliy Shapkin (Applicant)
Angele Lorenzato (Respondent)

Representation:

Applicant (Self-represented)
N Minaway (Respondent)

File Number(s):

RT 22/14212

Publication restriction:

Nil

REASONS FOR DECISION

Overview

1. In these renewed proceedings the applicant, Vasiliy Shapkin, who is the tenant, seeks relief under the Residential Tenancies Act 2010 (NSW) (RT Act) against the respondent, Angele Lorenzato, who is the landlord, of premises situated in a multi-storey building at Liverpool (the premises) under a residential tenancy agreement between them by reason of the alleged failure of the respondent to comply with certain orders made by the Tribunal on 1 March 2022 in proceedings RT 22/06803 (the RT 22/06803 proceedings) as varied on 25 March 2022 by the Appeal Panel in proceedings 2022/00074365 (the 2022/00074365 proceedings).

2. I have decided that the renewed proceedings should be dismissed.

The factual background

3. As at 25 March 2022 the following proceedings commenced by the tenant against the landlord in relation to disputes about the residential tenancy agreement were pending before the Tribunal:

1. proceedings RT 21/43089 (the RT 21/43089 proceedings);

2. proceedings RT 21/519769 (the RT 21/519769 proceedings);

3. proceedings RT 22/06840 (the RT 22/06840 proceedings);

4. proceedings RT 22/12130 (the RT 22/12130 proceedings);

5. proceedings RT 22/12441 (the RT 22/12441 proceedings).

The RT 22/06803 proceedings

4. On 16 February 2022, the landlord as the applicant commenced the RT 22/06803 proceedings against the tenant as the respondent by filing an application seeking a termination order and a possession order on various grounds under ss 87, 90, 92, 93, 95 and 187 of the RT Act.

5. On 1 March 2022, the Tribunal published its decision in which it:

1. made the following orders (the 1 March 2022 orders):

“1. The Residential Tenancy Agreement is terminated in accordance with:

•s 92 (b) of the Residential Tenancies Act 2010 as the tenant/occupant has intentionally engaged in conduct in relation to the landlord or the landlord that would be reasonably likely to cause the landlord to be intimidated or harassed; and

•s 93 of the Residential Tenancies Act 2010 as the landlord would in the special circumstances of the case suffer undue hardship if the Tenancy Agreement is not terminated.

2. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.

3. The order for possession is suspended until 15-Mar-2022

4. The tenant shall pay the landlord a daily occupation fee at the rate of $34.29 per day from the day after the date of termination, namely 23-Feb-2022 until the date vacant possession is given to the landlord.

5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.”

2. provided reasons for the making of the 1 March 2022 orders.

The 2022/00074365 proceedings

6. On 14 March 2022, the tenant as the applicant commenced the 2022/00074365 proceedings against the landlord as the respondent by filing a notice of appeal in which he challenged the 1 March 2022 orders.

7. On 25 March 2022, the Appeal Panel made the following orders (the 25 March 2022 orders) varying the 1 March 2022 orders:

“1   By consent of the parties:

Orders made by the Tribunal on 1 March 2022 in Proceeding RT 22/06803 are varied, as follows:

1) Orders 1 and 2 are varied to read - "The Residential Tenancy agreement is terminated by consent of the parties."

2) Order 3 is varied to suspend the order for vacant possession to "8 April 2022."

3) Order 4 is varied to provide that "The tenant shall pay the landlord a daily occupation fee at the rate of $0 per day until 8 April 2022, and at the rate of $34.29 per day thereafter until the date vacant possession is given to the landlord.

4) By insertion of a new order 6. - "The landlord is to pay to the tenant the sum of $1 600.00, as follows: a) $1,000.00 by 27 March 2022; and b) 600.00 on the tenant vacating the premises in a good and clean order together with return of all keys and access cards for the premises to the landlord."

5) By insertion of a new order 7. - "The parties have leave to request a renewal of the proceeding within 30 days from 25 March 2022 if the other party fails to comply with an order herein.”

2   The appellant hereby withdraws all extant applications made by him to the Consumer and Commercial Division of the Tribunal, save for the application for miscellaneous matters lodged 22 December 2021 in proceeding RT 21/43089, and they are each dismissed.

3   The appeal is otherwise withdrawn and dismissed”

The other proceedings between the parties before the Tribunal commenced by the tenant

The RT 21/43089 proceedings

8. On 18 October 2021, the tenant as the applicant commenced the RT 21/43089 proceedings against the landlord as the respondent by filing an application seeking several orders under the RT Act including for the repayment of rent.

The RT 21/519769 proceedings

9. On 22 December 2021, the tenant as the applicant commenced the RT 21/519769 proceedings against the landlord as the respondent by filing an application seeking several orders under the RT Act including for a review or reduction of rent.

The RT 22/06840 proceedings

10. On 16 February 2022, the tenant landlord as the applicant commenced the RT 22/06840 proceedings against the landlord as the respondent by filing an application seeking several orders under the RT Act including for the payment of $3,060.00, for compensation of $1,000.00, and for a copy of a key or other opening device or information to be given to him.

The RT 22/12130 proceedings

11. On 18 March 2022, the tenant landlord as the applicant commenced the RT 22/12130 proceedings against the landlord as the respondent by filing an application seeking several orders under the RT Act including for a copy of a key or other opening device or information to be given to him.

The RT 22/12441 proceedings

12. On 21 March 2022, the tenant landlord as the applicant commenced the RT 22/12441 proceedings against the landlord as the first respondent and Commissioner Karen Webb as the second respondent by filing an application seeking several orders under the RT Act including for a copy of a key or other opening device or information to be given to him.

The history of the renewal proceedings

13. On 31 March 2022, the tenant as the appellant commenced proceedings RT 22/14212 against the landlord as the respondent by filing a renewal of proceedings application seeking to renew the RT 22/06803 proceedings and alleging that the landlord had failed to comply with varied orders 3 and 6 of the 1 March 2022 orders as varied by the 25 March 2022 orders.

14. On 1 April 2022, the Tribunal fixed the proceedings for hearing on 6 April 2022, and relevantly made the following procedural directions (the 1 April 2022 orders):

“1. By 9 am on 4 April 2022, the tenant is to provide to the landlord and the Tribunal all documents on which the tenant seeks to rely at the hearing in respect of the renewal application.

2. By 1.15 pm on 5 April 2022, the landlord is to provide to the tenant and the Tribunal all documents on which the landlord seeks to rely at the hearing in response to the renewal application.

3. In these orders "documents" means:

- For the tenant - a statement setting out in point form the order(s) made on 25 March 2022 in favour of the tenant which the tenant alleges the landlord has not complied with, together with the orders sought in the renewal application;

- Statements from parties and witnesses in support of and in response to the renewal application;

- Submissions not exceeding three pages in length addressing the facts of the case and the law to be applied, including the principles that apply in renewal applications (see cl 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013).”

The hearing

15. The hearing took place on 6 April 2022 by telephone. The tenant represented himself. The landlord was represented by Nabil Minaway (Mr Minaway). Parts of the hearing were translated by an interpreter in the Arabic language.

16. The tenant relied on the following documents which were admitted into evidence without objection:

1. video 1 attached to the email sent to the Registry and Mr Minaway on 4 April 2022 at 8.31am (Ex A1) (video 1);

2. video 2 attached to the email sent to the Registry and Mr Minaway on 4 April 2022 at 8.33am (Ex A2) (video 2);

3. video 3 attached to the email sent to the Registry and Mr Minaway on 4 April 2022 at 8.35am (Ex A3) (video 3);

4. video 4 attached to the email sent to the Registry and Mr Minaway on 4 April 2022 at 8.37am (Ex A4) (video 4);

5. statement of facts and relevant law attached to the email sent to the Registry and Mr Minaway on 4 April 2022 at 8.43am (Ex A5) (the tenant’s statement);

6. the email sent to the Registry and Mr Minaway on 4 April 2022 at 2.03pm (Ex A6);

7. the email sent to Mr Minaway and copied to the Registry on 5 April 2022 at 11.13am (Ex A7);

8. the email sent to Mr Minaway and copied to the Registry on 5 April 2022 at 2.14pm (Ex A8).

17. The tenant sought to rely on the documents attached to the email sent to the Registry on 4 April 2022 at 8.25am. The landlord objected to these documents as they had not been served upon her. I rejected the tender of these documents, delivered oral reasons for my decision and marked the documents for identification (MFI 1).

18. The landlord relied on the statement of facts and submissions (the landlord’s statement) attached to the email sent to the Registry and the tenant on 5 April 2022 at 10.17am which was admitted into evidence without objection (Ex R1).

19. Each of the tenant, the landlord and Mr Minaway gave oral evidence.

20. The tenant and the landlord relied on their written submissions and made oral submissions.

21. At the conclusion of the hearing, I reserved my decision.

The issues

22. The following issues arise for determination in the proceedings:

1. whether the Tribunal has jurisdiction to determine the proceedings;

2. whether the orders which are the subject of the tenant’s application include an oral order;

3. whether the landlord failed to comply with varied order 3;

4. whether, if the landlord failed to comply with varied order 3, any other appropriate order should made;

5. whether the landlord failed to comply with varied order 6;

6. whether, if the landlord failed to comply with varied order 6, any other appropriate order should made.

23. Before considering these issues it is appropriate to set out the applicable statutory provisions and legal principles, and to summarise the evidence and the submissions of the parties.

The applicable statutory provisions

NCAT Act

24. Part 3 (ss 28-34) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) contains provisions dealing with the jurisdiction of the Tribunal. Section 28 deals with the jurisdiction of the Tribunal generally, and relevantly provides:

28 Jurisdiction of Tribunal generally

(1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

(2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction—

(a) the general jurisdiction of the Tribunal,

…

25. Section 29 deals with the general jurisdiction of the Tribunal, and relevantly provides:

29 General jurisdiction

(1) The Tribunal has general jurisdiction over a matter if—

(a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and

(b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.

…

(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction—

…

(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

26. Part 5 Division 1 (ss 36-38) contains introductory provisions dealing with the practice and procedure of the Tribunal. Section 37 deals with the power of the Tribunal to promote use of resolution processes , and relevantly provides:

37 Tribunal to promote use of resolution processes

(1) The Tribunal may, where it considers it appropriate, use (or require parties to proceedings to use) any one or more resolution processes.

…

(2) A resolution process is any process (including, for example, alternative dispute resolution) in which parties to proceedings are assisted to resolve or narrow the issues between them in the proceedings.

27. Part 5 Division 5 (ss 56-63) contains provisions dealing with the determination of issues and proceedings in the Tribunal. Section 58 deals with the power of the Tribunal to impose conditions, and provides:

58 Power to impose conditions

A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision.

28. Schedule 4 contains provisions dealing with the Consumer and Commercial Division of the Tribunal (the CC Division). Clause 3 deals with the functions allocated to the CC Division, and relevantly provides:

3 Functions allocated to Division

(1) The functions of the Tribunal in relation to the following legislation are allocated to the Division—

…

Residential Tenancies Act 2010

…

29. Clause 8 deals with the renewal of proceedings in respect of certain Division decisions, and relevantly provides:

8 Renewal of proceedings in respect of certain Division decisions

(1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.

(2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.

(3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act.

(4) When proceedings have been renewed in accordance with this clause, the Tribunal—

(a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or

(b) may refuse to make such an order.

(5) This clause does not apply if—

(a) the operation of an order has been suspended, or

(b) the order is or has been the subject of an internal appeal.

RT Act

30. Part 5 Division 1 (ss 80-83) contains general provisions relating to the termination of residential tenancy agreements. Section 83 deals with termination orders, and relevantly provides:

83 Termination orders

(1) If the Tribunal makes an order terminating a residential tenancy agreement under this Act, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect.

…

31. Part 5 Division 6 (ss 100-118) contains miscellaneous provisions relating to the termination of residential tenancy agreements. Section 114 deals with the suspension of possession orders, and provides:

114 Suspension of possession orders

(1) The Tribunal may suspend the operation of an order for possession of residential premises for a specified period if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the landlord and tenant by the suspension.

(2) The Tribunal may impose an obligation on a tenant to pay a specified occupation fee for the period for which the order for possession is suspended.

The applicable legal principles

Abuse of process

32. It is an abuse of process to bring a proceeding in order to make a collateral attack upon an unappealed decision of a court, or upon a decision which, having been appealed, has been affirmed: Smits v Loel [2014] FCA 1341 at [67]; Smits v Loel (No 3) [2015] FCA 77 at [23(b)]; McLean v Power [2013] NSWSC 193 at [14]-[15].

Credibility and the reliability of the evidence

33. In Flanagan v Bernasconi [2022] NSWSC 381 (Flanagan) at [33] Schmidt summarised the applicable principles where the credibility and the reliability of the evidence of parties turns on disputed conversations and actions and what various documents, the authenticity of some of which were in issue, do and do not establish:

“[33] Given the real conflict in their evidence about many matters, it is necessary to “engage with, or grapple or wrestle with the cases presented by each party” on these issues: Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [60]. Such conflicts must be resolved by “reasoning so far as possible on the basis of contemporaneous materials, objectively established facts and the apparent logic of events”, as well as upon the assessment of a witness’ reliability: Hutchison Construction Services Pty Ltd v Fogg; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135 at [60].”

Photographic and video evidence

34. In Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 (Goode) at [93]-[96] Beazley P said (Meagher JA at [179] and Leeming JA at [212] agreeing):

“[93] A matter that frequently arises in the use of photographs is that they can be deceptive, particularly in relation to perspective and distance. This was the subject of observation in Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955; [2008] NSWCA 130 where the court (Beazley and Tobias JJA, Spigelman CJ, Giles and Campbell JJA agreeing) said, at [69]–[72], that photographic evidence could not trump the direct evidence of witnesses that compelled acceptance.

[94] I had cause to review the use of photographic evidence again in Yarrabee Coal Company Pty Ltd v Lujans (2009) Aust Torts Reports 82-024; [2009] NSWCA 85 at [20]–[27] and concluded, at [28]:

‘[28] … much will depend upon the photograph in question, the circumstances in which it was taken and what the evidence, if any, is in relation to the photograph. Thus, in Angel v Hawkesbury City Council [2008] NSWCA 130 the Court rejected that the photographs should have trumped the eyewitness evidence which, the Court held, was compelling: see at [69]-[70].’

[95] In Townsend v O’Donnell (2016) 78 MVR 283; [2016] NSWCA 288, there were photographs in evidence, taken after a motor accident, which depicted the place where the accident occurred and from which it was sought to estimate how long the respondent had had to take evasive action. Sackville AJA, with whom I and McColl JA agreed, said, at [52]:

‘[52] … great care must be taken in interpreting photographic evidence. This is particularly the case where there is no evidence as to the precise position of the camera when the photographs were taken and the photographs themselves are indistinct.’ (Footnotes omitted)

See also Warren v Gittoes [2009] NSWCA 24 at [54]–[55].

[96] In Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72, which concerned a motor accident, the appellant contended that the primary judge had failed to give adequate weight to video footage taken from a camera in a vehicle travelling behind the vehicles involved in the accident. Sackville AJA, Ward JA and Garling J agreeing, said, at [42]:

‘[42] The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved.’ (Footnote omitted)

See also, again in the context of video evidence, Asim v Penrose [2010] NSWCA 366 at [57]; QBE v Orcher [2013] NSWCA 478.”

35. The principles in Goode at [93]-[96] are applied in the Tribunal: X-Build Construction Services Pty Ltd v O’Rourke [2020] NSWCATAP 181 at [57]-[65].

Renewal of proceedings

36. In Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 (Vasudevan) at [26]-[31] the Appeal Panel described the operation of cl 8 of Sch 4 of the NCAT Act as follows (citations omitted):

“[26] The Appeal Panel has held that cl 8 of Sch 4 is an additional, simple and practical method of enforcing, and promoting timely compliance with, Tribunal orders ...

[27] The renewal procedure is often used where there has been non-compliance with an order requiring work to be done or repairs to be made. In the context of orders requiring work to be done in performance of a contract, cl 8 of Sch 4 can be seen as analogous to the power that a Court with equitable jurisdiction has to make alternative orders, including awarding damages, where there has been non-compliance with an order for specific performance of a contract. ...

[28] By cl 8(2), cl 8 is engaged “[i]f an order has not been complied with within the period specified by the Tribunal”. In those circumstances, “the person in whose favour the order was made may renew the proceedings”.

[29] “When proceedings have been renewed”, the Tribunal has the powers set out in cl 8(4) (a) and (b). The Tribunal may:

(1) “make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined” – par (a), or

(2) refuse to make such an order – par (b).

[30] The present appeal does not concern the Tribunal refusing to make any order, within par (b).

[31] In the light of the terms in which cl 8(4)(a) is expressed, the Tribunal can make an order within par (a) if the following criteria are satisfied:

(1) the order is “other” than the order originally made;

(2) the order is “appropriate”;

(3) the order is one that the Tribunal “may make … under [the NCAT] Act or enabling legislation”;

(4) the order is one “as [the Tribunal] could have made when the matter was originally determined”.”

37. In Minifie v Maxwell [2020] NSWCATAP 30 (Minifie) at [37]-[41] the Appeal Panel explained the operation of cl 8 of Sch 4 of the NCAT Act as follows:

“[37] The provisions of Cl 8 Sch 4 of the NCAT Act are “an additional, simple and practical method of enforcing, and promoting timely compliance with, Tribunal orders”: Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 at [83]; Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 at [26] (‘Vasudevan’).

[38] In making orders that are “appropriate” in renewal proceedings, the Tribunal may have regard to the orders originally made; the circumstances of non-compliance with those orders; the fact of the renewal application; and all relevant circumstances whether they occurred before or after the time the matter was originally determined: Vasudevan at [34]-[35]. In Vasudevan, the Appeal Panel stated at [35]:

…A renewal application is, however, designed to deal with a situation where there has been non-compliance with the original order that the Tribunal thought was appropriate when the matter was first determined. The circumstances will inevitably have changed since that time, if for no other reasons than because there has been non-compliance with the order that had been made. What was appropriate originally may well not be appropriate at the time of the hearing of the renewal application. To limit the orders that could be made on renewal to those that would have been appropriate when the matter was originally determined would be likely to prevent the Tribunal from doing justice between the parties, having regard to the non-compliance with the original order and to any other circumstances that had changed materially since the proceedings were originally determined. This would render the right to renew proceedings ineffective in a significant number of cases.

[39] The Tribunal has a wide discretion in renewal proceedings to determine what are appropriate orders, including the power to make orders that could not have been made in the original proceedings because there was no power to make a particular order at that stage, but such a power has been enlivened by subsequent events: Vasudevan at [41]-[43]; Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 at [43]-[45]; [54] (‘Bondarek’).

[40] In Bondarek, the Appeal Panel held that determination of what are “appropriate” orders in a renewal application does not involve re-hearing the original proceedings. The Appeal Panel stated at [44]-[45]:

This interpretative assistance reinforces the purpose, object and context of the renewal power. It is not simply an aid to enforce the Tribunal's existing orders as clause 4(a) makes clear in its reference to "make any other appropriate order". There is no restriction in the clause to the existing material before the Tribunal or its existing findings on that material.

Rather, it is to consider what to do next given a non-compliance, but not to rehear the substantive merits already determined, and to do that on the basis of material put forward by the parties relevant to the issue of what to do next. As was said in Akratos v Papadopoulos [2016] NSWCATAP 139 at 36:

the purpose of the renewal proceedings was to consider, in light of the fact that the original order was not complied with, what other appropriate orders it could have made when the matter was originally determined and not to reconsider the substantive merits of the respondent’s building claim.

[41] By reason of the operation of Cl 8 (1) and (2) of Sch 4 of the NCAT Act, for the Tribunal to have jurisdiction: (i) the party bringing the renewal application must be a “person in whose favour” the order in the original proceedings was made; and (ii) the renewal proceedings must be filed in the Tribunal within 12 months of the “end of the period” in which the order (or orders) in the original proceedings was to be complied with.”

38. In Mehr v Lau [2022] NSWCATAP 15 (Mehr) at [37]–[40] the Appeal Panel explained the operation of cl 8(5) of Sch 4 of the NCAT Act:

“[37] The effect of cl 8(5) is to prevent renewal proceedings where an order not complied with is suspended, is the subject of an appeal (and therefore may be set aside or varied for example) or has been varied by an Appeal Panel (and the renewal proceedings assert that the original, unvaried order, was not complied with).

[38] The words “has been the subject of an appeal” in cl 8(5)(b) do not mean that the order not complied with was merely considered in an appeal. If that were correct, then a party could fail to comply with an order and then prevent the bringing of renewal proceedings (and further orders) by bringing an unsuccessful appeal from that (original) order.

[39] The words “has been the subject of an appeal” mean that if an order is varied or set aside or otherwise changed by an Appeal Panel, then renewal proceedings cannot be brought in relation to non-compliance with the original order for the obvious reason that the original order is no longer operative. However, if an order is considered by an Appeal Panel and is left undisturbed, then it has not relevantly been the subject of an appeal.

[40] Further, if an Appeal Panel varies an order, then that varied order (which is the operative order) is not the “subject of an internal appeal”. It follows, that if the varied order is not complied with, renewal proceedings may be commenced (with leave).”

The evidence of the parties

The evidence of the tenant

The documentary evidence

39. The only documentary evidence of the tenant was videos 1 to 4 which I viewed subsequent to the hearing. Each of the videos depict the unsuccessful attempts of a person using a key pad to open the front door of a building together with a mobile phone showing the date and time on videos 2 to 4. Video 2 depicts the mobile phone on 1 April at 2.15pm. Videos 3 and 4 depict the mobile phone on 30 March at 9.00pm.

40. Having regard to the principles in Goode at [93]-[96], I am not satisfied that videos 1 to 4 establish that the tenant was unable to gain access to the building. There is no evidence that the keypad depicted in the videos is the first keypad provided to the tenant by the landlord.

The oral evidence

41. In cross-examination the tenant gave evidence that he agreed to be paid by electronic transfer into his bank account and accepted that he received payment of $1,000.00 on Monday 28 March 2022.

The evidence of the landlord

The documentary evidence

42. On 25 March 2022 at 2.51pm, the tenant sent an email to Mr Minaway in which he provided details of his bank account.

43. On 26 March 2022 at 1.00pm, Mr Minaway sent an email to the tenant, which was copied to the landlord (the 26 March 2022 at 1.00pm email), and which relevantly stated payment of $1,000.00 into his bank account had been made at 8.10am on that day and attached a lodgement receipt dated 26 March 2022 of the ANZ Bank recording payment of $1,000.00 to the bank account of the tenant with the receipt number 148690 (the ANZ receipt).

44. On 26 March 2022 at 4.13pm, the tenant sent a text message to the landlord (the 26 March 2022 at 4.13pm text) which relevantly stated:

“Please reactivate my cards on Monday morning.

I told Nabil that if he does not reactivate the key tags by Monday I will reinstate the proceedings and $1000 in the account by Monday”

45. On 28 March 2022 at 1.32pm, the following text messages passed between the landlord and the building manager (the 28 March 2022 at 1.32pm texts):

1. a text from the landlord to the building manager which relevantly stated:

“ … Please reacting the swipe key For Vasiliy ….”

2. a text from the building manager to the landlord which stated:

“I am doing it now”

3. a text from the landlord to the building manager which stated:

“Thanks”

4. a text from the building manager to the landlord which stated:

“Done”

46. On 4 April 2022 at 7.03am, Mr Minaway sent an email to the building manager, which was copied to the landlord and others (the 4 April 2022 at 7.03am email), and which relevantly stated:

“Can you please confirm that Fob key D37D5C32 was reactivated on Monday 28 March 2022 as per Ms Lorenzato’s request?”

47. On 4 April 2022 at 10.50am, the building manager sent an email to Mr Minaway which was copied to the landlord and others (the 4 April 2022 at 10.50am email), and which relevantly stated:

“The fob you have mentioned was activated on 28/03/2022.

I had sent a confirmation text to Angelena.”

The oral evidence of the landlord

48. In cross-examination the landlord gave the following evidence:

1. she agreed that she had a conversation with the tenant on 26 March 2022 in which she said that had told Mr Minaway to pay the money;

2. she said that the keypad was reactivated on the morning of Monday 28 March 2022.

The oral evidence of Mr Minaway

49. In cross-examination Mr Minaway gave the following evidence:

1. he said that he made the payment of $1,000.00 to the tenant at around 8.30am on 26 March 2022;

2. he agreed that he sent an email to the tenant on 26 March 2022 at 1.04pm in which he said the key tag would be reactivated as soon as possible, which was to be on Monday 28 March 2022;

3. he said the key tag was reactivated on the morning of Monday 28 March 2022.

The submissions of the parties

The submissions of the tenant

The written submissions

50. In the tenant’s statement the tenant relevantly makes the following submissions:

“8.   `On 25 March 2022 I participated in a call-over hearing for a stay of order 3.

9. At the call-over hearing, and prior to order and directions being issued for the internal appeal, I entered into conciliation pursuant to section 37 of the NCAT Act with the landlord and her representatives.

10.   During conciliation, I entered into a conditional settlement agreement with the landlord and her representatives (“the settlement agreement”).

11. One of the oral orders and directions made by the Tribunal Member to the landlord, and one of the conditions of settlement under s 58 of the NCAT Act under which the tenant withdraw all of his applications, including the appeal, was that the tenant was to be provided with at least one key tag to access the building, the mailroom and the lifts (audio recording can be provided if required).

12.   The order to reactivate the key tags was the subject of the proceedings RT22/06804.

13.   The Tribunal Member inserted a new order 6. (not the subject of the internal appeal), that the tenant was to be returned the overpayment of rent as at 24 March 2022 of $1600 in two instalments: $1000 on or by 27 of March 2022 and $600 upon giving possession to the landlord with conditions therein.

14.   This order was the subject of the proceedings RT22/06804 (to return $3060 adjusted).

15.   The Tribunal Member varied order 4 in the original proceedings (not the subject of the appeal) that the tenant would be provided with 14 days of free occupation.

16.   The landlord failed to comply with the settlement agreement by:

a.   Not complying with the new order 1 4) 6. a) within the period specified by the Tribunal by not returning $1000 by 27 March 2022 (Sch 4, Cl 8(1), s 72).

b.   Not activating at least one key tag as per the directions and an oral order by the Tribunal Member and as per one of the conditions of settlement (see evidence exhibits, including videos and email correspondence) (s 58).

c.   Not complying with order 1 3) 4. by providing the tenant with 14 days of free occupation, including unrestricted access to the building, the mail room and the lift facilities (if the landlord is not providing access to the building, the lifts and the mail room, including after hours, the tenant is unable to occupy the premises).

17.   Under order 1 5) 7. parties were given leave to request a renewal of the proceedings if the other party failed to comply with a condition or an order therein (see s 58 and s 72, Sch 4, Cl 8(1)).

18.   On 28 March 2022 I withdrew all my proceedings and complied with order 2 therein.

19.   The landlord failed to reactivate the key tags (see exhibits as evidence).

20.   The landlord failed to provide me with 14 days of free occupation by preventing access to the building and the lifts, I had to find alternative temporary accommodation and have been made homeless with no notice to move my belongings, including furniture.

21.   On 28 March 2022 at 10:06pm the landlord’s representative paid me $1000 (receipt R208704009772).

22. Under order 1.5) 7. and Sch 4, Cl 8(1)-(2), and within 30 days from 25 March 2022, I am requesting for a renewal of the proceedings, as on the balance of probabilities, the landlord has failed to comply with the conditions of the settlement agreement and orders 1 3) 4. and 1 5) 7. therein.” (emphasis in original)

The oral submissions

51. In his oral submissions the tenant in substance repeated his written submissions.

52. The tenant also submitted that the ANZ receipt was not authentic. He referred to the font and the blue coloured text, and the fact that its receipt number did not match the receipt number for the receipt of the payment into his bank account.

53. When I asked the tenant what other appropriate orders I should make if I exercised the power under cl 8(4)(a) of Sch 4 of the NCAT Act in his favour, the tenant said I should refer to proceedings to the Appeal Panel. I explained on several occasions the effect of cl 8(4)(a) and that I did not have such a power. The tenant then said he wanted an adjournment and without waiting for this application to be dealt with terminated the telephone call. When I called the tenant approximately 10 minutes later he said he wanted 14 days free occupation of the premises with the landlord to reactive the key tag and not to deactivate the key tag to the building, and the payment of $2,060.00 in addition to the $1,000.00 ordered to be paid by the 1 March 2022 orders as varied by the 25 March 2022 orders.

The submissions of the landlord

The written submissions

54. In the landlord’s statement the landlord relevantly makes the following submissions:

“PAYMENT OF FIRST INSTALMENT

…

19.   Order 4 required Ms Lorenzato, the landlord, to pay a) $1,000 by 27 March 2022. That date, 27 March 2022, falls on a Sunday.

20.   In compliance with her obligations in the orders, and Mr Shapkins directions to make the payment into his nominated bank account, Ms Lorenzato paid the $1,000 to Mr Shapkins account on 26 March 2022, one day earlier than the orders had stipulated.

21.   An email was sent to Mr Shapkin on the same day attaching a receipt for the payment [the 26 March 2022 at 1.00pm email]. …

22.   Mr Shapkin is attempting to mislead and deceive the Tribunal when in his statement of facts at 21 he states "On 28 March 2022 at 10:06pm the landlord's representative paid (him) $1,000 (receipt R208 704009772).

23.   Mr Shapkin is well aware that the payment was made on 26 March 2022 and that date is even confirmed in his own receipt under the heading "Transfer instructions"

…

REACTIVATION OF FOB KEY

…

26.   Mr Shapkin has always had unlimited access to the property and his FOB key was reinstated as agreed and on the day it was agreed that it would be. [the 26 March 2022 at 4.13pm text] …

27.   Mr Shapkin holds 2 FOB keys after Ms Lorenzato recently loaned him her daughters FOB key to allow his girlfriend to deliver him groceries when he was presumably sick.

28.   Mr Shapkins FOB key number is D37D5C32 …

29.   On the morning of Monday 28 March 2022 Ms Lorenzato contacted the building manager and asked him to reinstate FOB key D37D5C32. [the 28 March 2022 at 1.32pm texts]

30.   … the building manager confirmed the earlier instructions and then advised, on the same day, that the FOB key was reactivated. [the 28 March 2022 at 1.32pm texts]

31.   Further to the above and to save any argument about which FOB key was reactivated an email was sent to the building manager stating the FOB key number and asking for confirmation that the key was reactivated on Monday 28 March 2022. [the 4 April 2022 at 7.03am email] The building manager responded confirming the activation of the FOB and the date of activation. [the 4 April 2022 at 10.50am email]

32.   Mr Shapkin has been seen regularly and continuously accessing the room he currently resides in. His FOB key was reactivated on Monday 28 March 2022.

33.   Mr Shapkin has not approached Ms Lorenzato or Nabil Minaway at any time to enquire or complain about the FOB key activation since 26 March 2022.

34.   Again Mr Shapkin is deceiving and misleading the Tribunal in suggesting that he has not had access.

35.   Mr Shapkins latest photos and video's showing a FOB key not operating the door are also deceptive and misleading as he is using the FOB key that was loaned to him by Ms Lorenzato which has not been reactivated.”

The oral submissions

55. In her oral submissions the landlord in substance repeated her written submissions.

Whether the Tribunal has jurisdiction to determine the proceedings

56. I am satisfied that the landlord in the RT 22/06803 proceedings has made an application within ss 87, 90, 92, 93 and 95 of the RT Act, and that the tenant has renewed these proceedings pursuant to cl 8 of Sch 4 of the NCAT Act.

57. I am satisfied that the Tribunal has jurisdiction to determine the proceedings pursuant to ss 28(1) and (2)(a) and 29(1)(a) of the NCAT Act as ss 87, 90, 92, 93 and 95 of the RT Act enable the Tribunal to make decisions in relation to the application of the landlord, and ss 28(1) and (2)(a) and 29(2)(b) of the NCAT Act enable the Tribunal to make decisions in relation to the application of the tenant. It follows that the functions of the Tribunal in relation to the RT Act have been allocated to the CC Division pursuant to Sch 4 cl 3(1) of the NCAT Act.

Whether the orders which are the subject of the tenant’s application include an oral order

Introduction

58. As set out in the tenant’s statement the tenant contends at the time of making the 25 March 2022 orders the Appeal Panel made an oral order that he was to be provided with at least one key tag to access the building, the mailroom and the lifts. During the oral testimony of the landlord and Mr Minaway the tenant sought to ask questions directed to establishing such an oral order which I rejected.

Consideration and determination

59. On 25 March 2022, the Appeal Panel exercised its power to use a resolution process under s 37 of the NCAT Act. In making the 25 March 2022 orders the Appeal Panel gave effect to the agreement of the tenant and the landlord (the settlement agreement), and did not impose any condition about the activation of the key pad to the building by the landlord pursuant to s 58 of the NCAT Act. Varied order 1 to 3 complied with s 83(1) of the RT Act. Order 2 of the 25 March 2022 orders effected the dismissal of the RT 21/519769 proceedings, the RT 21/06840 proceedings, the RT 21/12130 proceedings and the RT 21/12441 proceedings. The tenant has made no application to the Appeal Panel to vary the 25 March 2022 orders on the ground that they do not fully give effect to the settlement agreement.

60. In contending that at the time of making the 25 March 2022 orders the Appeal Panel made an oral order, the tenant was seeking to make a collateral attack on the 25 March 2022 orders. For this reason I rejected questions asked by the tenant of the landlord and Mr Minaway as to whether the settlement agreement included a condition about the provision of a key tag and making of an oral order on the ground that this was an abuse of process.

61. It follows that in considering the tenant’s application under cl 8 of Sch 4 of the NCAT Act the relevant orders which he must establish were not complied with by the landlord within the period specified by the Tribunal are the 1 March 2022 orders as varied by the 25 March 2022 orders.

62. However, I accept that it is necessary for the purpose of implementing and giving effect to the 25 March 2022 orders to construe varied order 3 as requiring the landlord to activate a key tag to permit access the building, the mailroom and the lifts by the tenant. In the absence of any time specification the landlord was required to do this within a reasonable time.

Whether the landlord failed to comply with varied order 3

63. Having regard to the principles in Flanagan at [33], I am satisfied that the landlord failed to comply with varied order 3 for the following reasons:

1. having regard to the 26 March 2022 at 4.13pm text a reasonable time for the landlord to activate a key tag to permit access the building, the mailroom and the lifts was by the morning of Monday 28 March 2022;

2. the most reliable as to the time the key pad was re-activated is the 28 March 2022 at 1.32pm texts. I accept that as indicated in the 28 March 2022 at 1.32pm texts the key pad was activated at that time.

64. I reject the contention of the tenant that he did not have access to the building subsequent to 1.32pm on 28 March 2022. As set out in [40] above, videos 1 to 4 do not establish the inability of the tenant to obtain access to the building. There was no other evidence supporting this contention. I accept the evidence of the landlord that videos 1 to 4 do not relate to the first key pad provided to the tenant by the landlord, and that he regularly and continuously accessed the premises after the reactivation of the key pad on 28 March 2022.

Whether, if the landlord failed to comply with varied order 3, any other appropriate order should made

65. Having regard to the principles in Mehr at [37]–[40], there is no impediment to making another appropriate order for varied order 3 by reason of the operation of cl 8(5)(b) of Sch 4 of the NCAT Act.

66. Having regard to the principles in Vasudevan at [26]-[31] and Minifie at [37]-[41], I have decided to refuse to make another appropriate order pursuant to cl 8(4)(b) of Sch 4 of the NCAT Act. The breach of the order was for a period of just over 90 minutes and there is no evidence that the tenant sought to enter the building during that period. There is no ground to further suspend the order for vacant possession under s 114 of the RT Act.

Whether the landlord failed to comply with varied order 6

67. Having regard to the principles in Flanagan at [33], I am satisfied that the landlord failed to comply with varied order 6 for the following reasons:

1. I reject the tenant’s submission that the ANZ receipt is not authentic. There is nothing on its face, and particularly the font of its text and blue colour text, which suggests it is no authentic. The tenant adduced no evidence establishing that the ANZ receipt is not authentic;

2. I accept the evidence of the landlord that the payment of $1,000.00 was made at 8.10am on 26 March 2022;

3. there is no evidence that the payment of $1,000.00 was not received into the bank account of the tenant on 26 March 2022.

Whether, if the landlord failed to comply with varied order 6, any other appropriate order should made

68. In view of my finding in [67] above, this issue does not arise for determination.

Order

69. I make the following order:

1. the proceedings are dismissed.

**********

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

Amendments

13 July 2022 - Catchwords amended - CIVIP to CIVIL

Decision last updated: 13 July 2022