Tribunal Denies Appeal, Corrects Lease Termination Date

The Tribunal denied the appeal of a tenant seeking to challenge the termination date of a lease and the amount owed to the landlord. The decision corrected minor errors in the original order regarding the lease termination date and the amount due.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [COMPANY] v Oh [2019] NSWCATAP 203 Hearing dates: 30 July 2019 Date of orders: 09 August 2019 Decision date: 09 August 2019 Jurisdiction: [NAME]: G K Burton SC, Senior Member J S Currie, Senior Member Decision: (1) Leave to appeal out of time is refused and extension of time to lodge notice of appeal is not granted, except to the extent required to make the correction in (3). (2) Note that, if leave to appeal out of time had been granted, appeal would have been dismissed apart from the correction in (3). (3) Correct the [NAME] order made on 1 April 2019 by: (a) substituting "2018" for "2108" in the order; (b) changing "$11,817.79" to "12,747.19"; (c) adding "on 2 April 2019" after "pay"; (d) adding "the unpaid balance from time to time of" before "this amount", so that the [NAME] order as corrected reads "Order that the respondents pay on 2 April 2019 to the applicant the amount of $12,747.19 together with interest on the unpaid balance from time to time of this amount at the rate of 12% per annum calculated from 1 December 2018 until paid in full". (4) Order that each party is to pay its or their own costs of the appeal. Catchwords: Retail lease – extension of time to appeal – no error of law – no demonstrated basis for leave to appeal on alleged error of fact Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Act (NSW) Retail Leases Act 1994 (NSW) Cases Cited: [COMPANY] t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 at [81] Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 Collins v Urban [2014] NSWCATAP 17 Craig v South Australia (1995) 184 CLR 163 Eadie v Harvey [2017] NSWCATAP 201 House v The King (1936) 55 CLR 499 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 [NAME] v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 [NAME] v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 Legal Profession Complaints Committee v Rayney [2017] WASCA 78 Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Owen v Kim [2017] NSWCATAP 26 Owners SP 63341 v Malachite Holdings PL [2018] NSWCATAP 256 Pholi v Wearne [2014] NSWCATAP 78 Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86] Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 [NAME] v Minister for Immigration and Border Protection [2018] FCA 1176 Texts Cited: None cited Category: Principal judgment Parties: [NAME] (Appellant) [NAME] and [NAME] (Respondents) Representation: Counsel: [redacted] [NAME], Solicitor (Respondents)

Solicitors: [redacted] [NAME] (Respondents) File Number(s): AP 19/20955 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 01 April 2019 Before: [NAME], Senior Member File Number(s): COM /18203

Reasons for DecIsion

Background to appeal 1. The appellant was formerly [NAME] under a retail lease from the respondent [NAME] of premises in Gladesville NSW where it apparently operated a café. Originally that was with a written retail lease under the Retail Leases Act 1994 (NSW) for a term of 5 years beginning 16 September 2008 and ending 15 September 2013. After the expiry of the lease [NAME] held over on a monthly basis (following breakdown in renewal negotiations) until notice was given and [NAME] departed in December 2014.

2. By the original application in COM18/52348 lodged 7 October 2015 [NAME] (applicant) sought return of the full amount drawn by [NAME] on [NAME]'s bank guarantee of $17,875 and other monies said to be owing at the expiry of possession, totalling $36,543.29, for alleged overpayment of council rates and land tax, cost of sewerage pump and hot water tank replacement. [NAME] said it was entitled to deduct make-good costs from the bond together with other monies outstanding for unpaid council rates, insurance and rent, and to claim a balance from [NAME] which totalled over $40,000 before deduction of the bank guarantee. There had apparently been disputes between the parties during the lease.

3. In his original decision in April 2016 [NAME] awarded an estimate of $5,000 for the make-good and gave the parties an opportunity to agree what was to be deducted from the bank guarantee, failing which he would determine the accounting. After over two years the parties could not agree and the matter was listed in December 2017 when a hearing was set down for 20 March 2018.

4. The decision from that hearing dated 27 July 2018 was as follows: out of the forfeited bank guarantee [NAME] were entitled to retain $5,000 for redecoration, $1,755.25 for council rates and $1,375 for rent arrears; the balance of the bank guarantee of $9,744.75 was payable to [NAME]; [NAME] was entitled to a refund also of land tax overpayment of $949.80, council rates overpayment of $2,300.41, sewerage pump replacement $759, hot water tank replacement $1,210, totalling $5,219.21. There was no order for costs as the amounts in dispute were under $30,000.

5.

Accordingly, the [NAME] order on 27 July 2018 was that [NAME] pay [NAME], on a balance of amounts due, $14,963.96 within 7 days of date of orders.

6. Following an appeal hearing on 2 November 2018 in [NAME]' appeal, on 30 November 2018 in [2018] NSWCATAP 291 the [NAME], differently constituted from the present Panel, set aside the [NAME] decision of 27 July 2018 in part and ordered a re-hearing of three matters set out in [21] of the [NAME] reasons, as follows: (1) whether the lease was terminated on 24 December 2014 or 31 December 2014 and, if it was terminated on 31 December 2014, the amount of unpaid rent owing to [NAME] for the extra 7 days; (2) the amount of council rates, if any, that [NAME] owed to [NAME]; (3) the total amount owed by [NAME] to [NAME].

7. The first two matters for reconsideration were said to flow from errors of law in the form of inadequate reasons; the third was consequential on the outcome of the first two. The obligation to pay council rates and charges was not in issue; rather, the amount owed was in issue. There was no costs order for the appeal.

The [NAME] decision under present appeal 1. [NAME] heard and determined on 1 April 2019 the three remitted issues. [NAME] had earlier been legally represented but by this point was represented by its secretary, who also represented [NAME] on the current appeal. [NAME] were represented by the firm of solicitors who also appeared on the current appeal. 2. [NAME] first declined to re-hear matters determined in the original [NAME] hearing and not remitted for re-hearing, that were sought to be re-agitated by [NAME].

3. On the first issue remitted for re-hearing, [NAME] recited the evidence of [NAME] that she tried to contact [NAME] on many occasions to arrange inspections and return of the keys, and went on at [8]-[10]: "However it is clear to me and supported by the evidence of [[NAME]] that [[NAME]] would only swap the keys for the return of the bank guarantee. [[NAME]] stated she was disappointed that [[NAME]] when he came for the inspection on 24 December [2014] did not have the bank guarantee with him. [[NAME]] also gave evidence that she was to travel to the business of [[NAME]] to return the keys but [[NAME]] cancelled the meeting. Unfortunately, [[NAME]] did not appreciate that the tenancy comes to an end when the keys are returned. There needs to be no formal meeting about this and it is not usual for the bank guarantee to be returned to the tenant until the landlord is satisfied that the tenant has complied with the obligations under the lease including leaving the premises clean and tidy and any make good obligations. She could have simply returned the keys to [[NAME]] at the inspection or dropped them in to the business of [[NAME]]. Accordingly the Tribunal agrees with the landlord that the lease ended on 31 December 2014."

4. On the second issue remitted for re-hearing, at [11] [NAME] recited what the [NAME] had recorded as not disputed, namely, that [NAME] was liable to pay council rates. Having noted that the council charged not only rates but also levies and charges for storm water and retail precinct, and having noted that [NAME] had not sent [NAME] copies of rate notices when demanding payment, "a practice which should be discouraged", [NAME] relied upon a schedule handed up by [NAME]' solicitor which had been submitted to the [NAME]. That schedule showed the amount of rates, levies and charges in the left hand column, the amount of payments by [NAME] in the right hand column, and a net balance owing by [NAME] of $841.77.

5. The schedule had been noted by the [NAME] as a summary of the evidence before [NAME]. The sources were recorded below the schedule as a spreadsheet provided by the council, handwritten notes on the managing agents' invoice, and bank statements and BPay receipts provided by [NAME]'s then solicitor. The [NAME] recorded [NAME]' solicitor's submission that the source evidence was uncontested and that the schedule did not include interest and other penalty charges.

6. Having made these findings, [NAME] dealt with the third issue remitted for re-hearing by finding that [NAME] owed [NAME] $11,817.79 out of the forfeited bond money. Having noted "with disappointment" that [NAME] had not been paid even a reduced amount pending determination of the reduced issues and that [NAME] had had extended use of the funds, [NAME] ordered interest at the rate set in the lease of 12%pa apply to the unpaid amount from the day after the [NAME] decision (that is, from 1 December 2018) until payment was made in full.

Corrections to [NAME] orders 1. There are four corrections under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) that need to be made to the [NAME] order: (1) to a typo of the year in the [NAME] order, from "2108" to "2018"; (2) to the [NAME] amount which should be corrected to $12,747.19; (3) to insert a date by which the principal sum was to be paid without affecting the order concerning interest; (4) to the order for interest which should be to the effect that interest is on the unpaid balance of the principal sum from time to time.

2. We shall make those corrections in our orders on appeal and grant leave to appeal for that limited purpose. It seems to us that the terms of s 63 together with CATA s 81, especially s 81(1)(b) and (2), are sufficiently broad for the [NAME] to make that correction. We note that [NAME] in fact sought the second and third of those orders in her notice of appeal.

3. CATA s 63(3) gives examples of obvious errors open to correction. The first correction is an obvious clerical or typographical error (s 63(3)(a)). The second, third and fourth corrections are within any of the categories of s 63(3)(b)-(d), being respectively an error arising from an accidental slip or omission, a defect of form or an inconsistency between the stated decision and the stated reasons. We have already noted [NAME]'s unhappiness with non-payment of the principal amount as the reason for his award of interest. In relation to correction of the principal amount, we note that the unpaid rental of $1,375 for the period 16 to 23 December 2014 had already been deducted to reach the figure of $14,963.96 found by [NAME] on 27 July 2018 to be owed to [NAME]. [NAME]'s reasons under appeal on the remitted issues did not deal with that period, on 24 to 31 December 2014 and the unpaid rates of $841.77. These are the two amounts that need to be deducted from the figure of $14,963.96, arriving at $12,747.19, to be consistent with [NAME]'s reasons of 1 April 2019.

Grounds of appeal 1. The notice of appeal and associated submissions suffered from English not being [NAME]'s secretary's [NAME] language. The secretary was assisted by a Korean interpreter at the appeal hearing.

2. Having regard to the approach taken in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 in a situation where there was no overt legal representation at the point where this appeal was drafted and conducted, we have sought to discern the substance of the grounds.

3. The grounds for the challenge were, in summary, as follows:

1. There was an error of law in that [NAME] was said to have not given [NAME] an equal hearing but listened mainly to and asked questions of mainly [NAME]' lawyer.

2. The was an error of law in that [NAME] gave inadequate reasons for his findings on the two remitted issues and the date from which interest was to run, and also did not give a date for payment of the principal sum he ordered to be paid to [NAME] by [NAME] (we have already dealt with the last of those matters above by way of correcting an obvious error in the [NAME] orders).

3. There was an error of law in that [NAME] took into account in arriving at his final figure an irrelevant consideration, being the rent of $1,375 from 16 to 23 December 2014 which had already been deducted in his orders of 27 July 2018, and this reduced the amount in the [NAME] orders owed to [NAME] by such amount, in effect twice (we have already dealt with this matter above by way of correcting an obvious error in the [NAME] orders).

4. The matters in (2) also constituted errors of fact on which there was a basis for a grant of leave.

1. There was no formal distinction in the notice of appeal between what was said to be an error of law and what was said to be an error of fact requiring leave to be pursued.

2. The notice of appeal raised matters outside of those remitted, concerning the $5,000 make-good finding and a higher cost than that found for the sewerage pump replacement. We have not considered those matters as they were outside the scope of the [NAME] decision from which this appeal is brought and were already the subject of a [NAME] decision and a decision on appeal.

Applicable legal principles 1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) states: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the [NAME], and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the [NAME], on any other grounds."

1. Clause 12 of Schedule 4 to CATA states: An [NAME] may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the [NAME] is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. A Division decision is a [NAME] decision of the Consumer and Commercial Division. The [NAME] decision here is such a decision.

2. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.

3. These categories are not exhaustive of errors of law that give rise to an appeal as of right. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the [NAME] enunciated the following as specifically included: 1. whether the Tribunal provided adequate reasons, which explain the Tribunal's findings of fact and how the Tribunal's ultimate conclusion is based on those findings of fact and relevant legal principle; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.

1. The "no evidence" ground must identify that there is no, or substantially inadequate, evidence to support a "critical" or an "ultimate" fact in order to constitute a jurisdictional error (a form of error of law): [COMPANY] t/as [NAME] (2016) 77 MVR 348, [2016] NSWCA 229 at [81]; [NAME] v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 at [52]-[56].

2. A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: [NAME] (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; [NAME] (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, by s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: [NAME] (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].

3. Legal unreasonableness can be concluded if the Panel comes to the view that no reasonable tribunal could have reached the [NAME] decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for [NAME] (2013) 249 CLR 332 at 364 [68]). A failure properly to exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: [NAME] (2013) 249 CLR 332 at 367 [76]). There is an analogy with the principle in [NAME] (1936) 55 CLR 499 at 505 that an appellate court may infer that there has been a failure properly to exercise a discretion "if upon the facts [the result] is unreasonable or plainly unjust" and legal unreasonableness as a ground of judicial review: [NAME] at 367 [76]. Further, there is some authority to the effect that unreasonableness as a ground of review may apply to factual findings, although this has not been finally resolved: see Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [153]; [NAME] v Minister for Immigration and Border Protection [2018] FCA 1176 at [29]; Legal Profession Complaints Committee v Rayney [2017] WASCA 78 at [193].

4. The [NAME] has stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations in favour of the respondent: [redacted]

5. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an [NAME] stated at [76]–[79] and [84(2)] as follows: 74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the [NAME] may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the [NAME] may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. 84 The general principles derived from these cases can be summarised as follows: … (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an [NAME] in Owen v Kim [2017] NSWCATAP 26. In that appeal the [NAME] stated at [37] –[39]: 37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the [NAME] stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the [NAME] stated at [40 ]: 'The meaning of this clause was considered by the [NAME] in [NAME] v [COMPANY] t/as [NAME] [2015] NSWCATAP 111. At [23] – [24] the [NAME] said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the [NAME] refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the [NAME] granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in [NAME] v [COMPANY] t/as [NAME]: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'

1. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an [NAME] stated at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. [NAME] has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.

1. Even if the appellant establishes that he or she may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the NCAT Act, the [NAME] has a discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]) The matters summarised in [NAME] v [NAME], above, at [84(2)] will come into play in the Panel's consideration of whether or not to exercise that discretion.

2. In dealing with errors of law and errors of fact, the Panel must be cognisant that the two can intermingle. The Panel must also be alert that, under Australian law, there is a different approach to matters between two situations. The first of these is where the particular decision has involved evaluation from findings of [NAME] facts and the drawing of inferences therefrom on which reasonable minds may differ but which must be accepted as legally correct unless overturned or varied on appeal. The second situation arises where there has been an exercise by the [NAME] decision-maker of a discretion or choice embodied in the statute or law being applied, including as to whether relief is to be granted or refused and the form of relief: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [18], [20], [26], [30]-[32], [43]-[45], [48]-[49], [55]-[56], [85]-[87], [127]-[128], [153]-[155].

Extension of time to appeal 1. The appeal was lodged on Friday 3 May 2019, when the last day for lodgment was Monday 29 April 2019 being the 28 day period allowed in rule 25(4)() of the Civil and Administrative Tribunal Rules 2014 (NSW) (CATA Rules). The appellant [NAME] secretary had conducted the remitted [NAME] hearing on 1 April 2019, so was personally present to hear the result, and received the orders and reasons by email. There was no suggestion she was notified of the decision or received the reasons for the decision later than 1 April 2019. 2. [NAME], in applying for an extension of time by leave, under CATA s 41, to lodge the appeal and avoid its being dismissed for being out of time, said in the notice of appeal as follows: the case had taken more than five years; [NAME]'s lawyer had "disconnected" [NAME] in that time having been paid $11,500; [NAME] did not have time and money to find another lawyer "Especially I exhausted to explain it again. Therefore, I made this material without a lawyer."; [NAME]'s secretary did not know it would take "long time to make material by myself"; [NAME] was short-staffed; the secretary only finished 3.30 to 4pm so could not arrive 4.30pm from Marrickville to NCAT; [NAME]'s secretary was really sorry about the delay and really wanted to appeal; the secretary felt the hearing on 1 April 2019 was unfair and the interpreter was no good for her; [NAME] repeated the ground of appeal about not being listened to by [NAME].

3. In the hearing the secretary said that she was working seven days a week, she had lost contact with her solicitor and that he had all the documents. There was no indication of the secretary's attempts to obtain documents. The notice of appeal was focused in its content on what happened at the [NAME] hearing, rather than on supplying documents at that point in time.

4. The principles on which an extension of time would be granted to bring an appeal were set out by the [NAME] in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [21]-[22], drawing on early orthodox principle and authority: "Time limits, including the specification of the time within which an appeal from an internally appealable decision to the [NAME] of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation.

For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice."

1. The criteria for assessing an extension application can be summarised from [NAME] as follows: (1) the appellant must demonstrate that strict enforcement of the time limit will work an injustice on the appellant; (2) the respondent, having obtained a favourable [NAME] decision, can be thought of as having a "vested right" to retain the benefit of that decision after the normal time for appeal has expired; (3) Consistent with the foregoing, the factors to be considered are the length of the delay, the reason for the delay, the prospects of success ("that is usually where the applicant has a fairly arguable case"), and the extent of any prejudice suffered by the respondent to the appeal; (4) "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".

2. In the present circumstances, the following seem to us to be important. First, the delay was short. Secondly, however, the history of the proceedings has been long and tortuous and this gives weight to [NAME]'s interest in finality once the appeal period expired, although the degree of prejudice (being the difference in amount of refund to [NAME] if the appeal was successful on the matters available to be argued on the appeal) is relatively minor. Thirdly, [NAME]'s explanation, while understandable, shows the type of circumstances faced by most self-represented litigants earning a living and is not distinctively strong. This leads us to the critical factor, being (for the reasons given below) the weakness of [NAME]'s prospects on appeal.

3. Balancing the foregoing factors, particularly the last, we consider [NAME] has not made out a case for a grant of leave to extend time to appeal and refuse such an extension. The consequence is that the appeal must be dismissed since it was brought out of time. However, given the full argument on hearing and the fact that the absence of prospects of success are a weighty consideration in not granting leave, we set out below our reasons which lead us to the conclusion that, if leave to appeal out of time had been granted by an extension of time, the appeal would have been dismissed on the merits.

Errors of law 1. We do not deal further with the matters which were called errors of law but which we have identified as in fact errors capable of correction under CATA ss 63 and 81.

2. Listening to the recording of the [NAME] hearing on 1 April 2019 does not bear out [NAME]'s contention that [NAME] did not give her an equal hearing but listened mainly to and asked question of mainly [NAME]' lawyer. [NAME] put her case through an interpreter for a considerable period of time, the member asked questions and tested issues with both parties. There was no procedural unfairness. There was no basis put forward for any attack upon the accuracy or adequacy of the interpreter's work.

3. In our view [NAME] properly considered, particularly at paras 8-11 of his reasons, the evidence on the two remitted issues, applied the correct principle about when the lease ended (return of the keys as indicia of possession), and reached findings on the two remitted issues in accord with the evidence and the relevant legal principles. 4. [NAME] said, in respect of the council rates and charges, that documents were withheld from her by [NAME]. There was no indication that she had sought to obtain such documents by the issue of a summons, even when legally represented. In any event, the time for dealing with production of documents had passed by the time of the [NAME] hearing before us on appeal, and was not agitated at or before that [NAME] hearing. The evidence relied upon by [NAME] for his decision was that already available, being summarised by [NAME]' solicitor in a schedule, and there was no further evidence before [NAME].

5. As to the date from which interest was to run, there was the possibility that the interest could have run, as [NAME] contended, from a date when the original decision was made in 2016, or from 26 July 2018 when [NAME] further considered and determined the two issues on which the parties could not agree.

6. However, the previous [NAME] decision did not completely uphold [NAME]'s previous determinations, hence the need for the further hearing on 1 April 2019. Until the [NAME] delivered its decision on 30 November 2018 there was no basis for any finally-determined figure that [NAME] were obliged to pay to [NAME].

7. Indeed, it could have been argued that there was no finality in the figure owed by [NAME] to [NAME] until the decision and orders of 1 April 2019, but [NAME] did not appeal the order on interest.

8. We see no error of law in [NAME]'s determination of the date from which interest ran that is the subject of an appeal before us.

Leave to appeal on questions of fact 1. For reasons already given in relation to errors of law, there is no material error of fact in [NAME]'s reasons. All the more so, there is no basis to justify a grant of leave.

Costs 1. CATA s 60, together with rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules), provide that the ordinary costs rules apply, even in the absence of special circumstances required by s 60 (which in s 60(2) gives examples of such circumstances), where "the amount claimed or in dispute in the proceedings is more than $30,000".

2. The requirements of CATA s 50 may (or may not) apply to a separate costs determination even when there has been a hearing on the merits of the matter, and require the parties to be given an opportunity to make submissions before a hearing is dispensed with and the matter is determined on written submissions and evidence.

3. However, the usual position is that costs along with all other issues are dealt with at the same time unless a party seeks, or the parties seek, and are granted the opportunity to deal with costs after the substantive decision is made. No such request was made here.

4. Rule 38A of the Rules applies the same costs rules as applied in the Division when there is a departure under the Division rules (such as under Rule 38) from CATA s 60.

5. Here the amount claimed or in dispute on the round of [NAME] hearing from which we are hearing an appeal, being the remitted matters from the first appeal, did not exceed $30,000. No special circumstances were pointed out to [NAME] or to us and we can see none.

6. We discern no error in [NAME]'s decision on costs, namely, to make no order on costs with the effect that each party bears its or their own costs of and incidental to the application. The same order is appropriate for the costs of the appeal.

Orders 1. The orders we accordingly make are as follows:

1. Leave to Appeal out of time is refused and extension of time to lodge notice of appeal is not granted except to the extent required to make the correction in (3).

2. Note that, if leave to appeal out of time had been granted, appeal would have been dismissed apart from the correction in (3).

3. Correct the [NAME] order made on 1 April 2019 by: (a) substituting "2018" for "2108" in the order; (b) changing "$11,817.79" to "12,747.19"; (c) adding "on 2 April 2019" after "pay"; (d) adding "the unpaid balance from time to time of" before "this amount", so that the [NAME] order as corrected reads "Order that the respondents pay on 2 April 2019 to the applicant the amount of $12,747.19 together with interest on the unpaid balance from time to time of this amount at the rate of 12% per annum calculated from 1 December 2018 until paid in full".

4. Order that each party is to pay its or their own costs of the appeal.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2019