Macdonald v Macdonald

Sini Macdonald (the plaintiff) seeks leave to appeal pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) against the decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (the Appeal Panel) made on 28 November 2016 (the Appeal Panel Decision). The Appeal Panel dismissed her appeal against orders made by Member Campbell in the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal (NCAT) on 23 March 2016 (the Tribunal Decision). She seeks, if leave is granted, an order that the Appeal Panel Decision be set aside.

An appeal to this Court from the Appeal Panel lies on a question of law, and is subject to leave.

The following narrative is derived from findings recorded in the reasons of the Appeal Panel: McDonald v McDonald [2016] NSWCATAP 252.

The plaintiff and Denis Macdonald (the defendant) entered into a residential tenancy agreement whereby the plaintiff was to rent premises at Tempe which were owned by the defendant, her former husband. He served a notice of termination pursuant to s 85 of the Residential Tenancies Act 2010 (NSW) which required the plaintiff to leave the premises within 90 days.

As the plaintiff failed to vacate the premises as required by the notice, the defendant commenced proceedings in the Consumer and Commercial Division of NCAT for an order for possession pursuant to s 187 of the Residential Tenancies Act.

The matter was referred for conciliation on 23 March 2016 at the conclusion of which a Conciliation Agreement Form was signed by the conciliator, the plaintiff and the defendant. The agreement recorded that the agreed arrears of rent were “nil” and that the “tenancy agreement between the parties will end today and the Tenant will vacate the premises on: 11/6/16”. It was agreed that no occupation fee would be payable by the plaintiff after the termination of the tenancy agreement.

After the conciliation the matter was referred to Member Campbell who, on 23 March 2016, made orders by consent in terms of the Conciliation Agreement (the Consent Orders). According to the plaintiff, she first became aware of the orders when she attended NCAT on 24 June 2016 although she was, as the reasons of the Appeal Panel set out below record, actually present when they were made.

The plaintiff refused to vacate the premises. On 19 August 2016 the defendant filed a request for a warrant for possession of the premises.

On 28 August 2016 the plaintiff filed a notice of appeal against the Consent Orders with the Appeal Panel. The appeal was filed out of time as appeals in residential proceedings must be filed within 14 days from the day on which the appellant was notified of the decision. The Appeal Panel granted an extension of time to the plaintiff to appeal against the Consent Orders.

In the hearing before the Appeal Panel, the plaintiff, who appeared for herself, contended that there was no residential tenancy agreement. She argued that she had lived at the premises as a co-owner since 2011 and had never paid rent for the premises. She also argued that she had not been aware that the hearing of her matter on 23 March 2016 would involve conciliation. The Appeal Panel permitted the plaintiff to adduce evidence before it. The Appeal Panel recorded at [26] of its reasons:

The Appeal Panel relevantly found as follows regarding the existence of a residential tenancy agreement between the parties:

The Appeal Panel found as follows concerning the Consent Orders:

Mr Qoro, who appeared on behalf of the plaintiff in this Court, confirmed that the plaintiff did not press her claim to set aside the Consent Orders. He accepted that the only decision sought to be challenged was the Appeal Panel Decision. He also confirmed that she did not press her claim for repossession of the premises as it was common ground that the premises had been sold. Mr Qoro argued that the Appeal Panel erred in law by not setting aside the Consent Orders on the basis that the conciliation had not taken place in accordance with a procedural direction made under s 26 of the NCAT Act.

Section 26 of the NCAT Act provides:

Mr Qoro relied on Consumer and Commercial Division Procedural Direction No 3 dated 24 December 2013 (Procedural Direction No 3). Procedural Direction No 3, which has since been repealed, relevantly provided:

Mr Qoro did not rely on any evidence in support of his submission that Procedural Direction No 3 had not been complied with. The transcript of the proceedings before the Appeal Panel was not in evidence before me.

Mr Qoro relied on Lee v Imad [2017] NSWCATAP 128 in support of his submission that a breach of Procedural Direction No 3 ought lead an Appeal Panel to set aside consent orders made by a single member of NCAT following conciliation. In that case, the Appeal Panel was satisfied from the transcript of the proceedings before a single member of NCAT that no explanation had been given to the appellant of the conciliation process and that, accordingly, the consent orders made at the conclusion of the conciliation ought be set aside and the matter remitted to the Tribunal. The Appeal Panel’s conclusions in Lee v Imad appear from the following:

Mr Qoro did not suggest that the plaintiff had, in terms, alleged in her appeal to the Appeal Panel that Procedural Direction No 3 had not been complied in the Tribunal. Rather, he submitted that she required an interpreter before the Appeal Panel as she did not have a sufficient appreciation of what was occurring. He contended that there had, accordingly, been a denial of procedural fairness by the Appeal Panel and that its decision ought be set aside as a consequence.

The difficulty with this submission is that the reasons of the Appeal Panel record the evidence the plaintiff gave and the submissions that she made. The plaintiff had the opportunity before the Appeal Panel to argue that the Consent Orders ought be set aside. She did not argue that they ought be set aside because Procedural Direction No 3 had not been complied with. The Appeal Panel also recorded in its reasons that, although the plaintiff seemed to understand most matters, she said she required an interpreter to assist her in giving evidence and one was provided. The present case is to be distinguished from Lee v Imad. I am not persuaded that there was any denial of procedural fairness before the Appeal Panel or any non-compliance with Procedural Direction No 3 by the conciliator or Member Campbell, much less one that ought to have been apparent to the Appeal Panel. Moreover, the reasons of the Appeal Panel record that it considered the fairness of the conciliation process and the extent to which it had been established that the plaintiff understood the procedure, what was at stake and the consequences of signing the agreement which led to the Consent Orders.

As the findings extracted above indicate, the Appeal Panel was careful to examine what had occurred in the course of the conciliation, as well as the steps taken by Member Campbell before the Consent Orders were made to ensure that the plaintiff appreciated the effect of their being made. The findings made by the Appeal Panel, which were based on admissions made by the plaintiff in the course of her sworn evidence, do not indicate, much less establish, that there was any non-compliance with Procedural Direction No 3.

I do not regard the plaintiff’s submissions as sufficiently arguable to warrant a grant of leave. Accordingly, leave to appeal will be refused with costs.

At the conclusion of the hearing before me I invited the parties to indicate whether there was any objection to an order that costs follow the event. Mr Qoro indicated that the plaintiff was impecunious and that each party ought bear his or her own costs. Ms Steer, who appeared for the defendant, contended that impecuniosity did not constitute a reason why a costs order ought not be made although it might affect the preparedness of the successful party to enforce it. I foreshadowed that I would permit the parties to make submissions on costs following consideration of these reasons.

As Mr Qoro informed me that the plaintiff was impecunious, the present case appears to me to be one in which it would be appropriate for a costs order to be made in a gross sum in accordance with s 98(4) of the Civil Procedure Act 2005 (NSW) to avoid the defendant having to incur costs in an assessment if an order for costs is made in his favour. Accordingly, provision will be made in the orders for such an application to be made.

For the reasons set out above I make the following orders: