Abdel-Messih v Azzi

Background to decision under appeal

1. In an initial application filed in NCAT on 25 July 2016, Mr Abdel-Messih sought orders in the following terms: An order declaring that a termination notice was not given in accordance with the Act. An order that the landlord carry out repairs. An order that all or part of the rent payable be paid into the Tribunal until repairs are carried out. An order that the tenant may transfer a tenancy or sub-let the residential premises.
2. In an amended application, Abdel-Messih sought further orders: An order as to compensation. Compensation for loss of rent. An order directing the landlord or landlord's agent to comply with a requirement of the Act or Regulations (esp[escially] quiet enjoyment).
3. Mr Abdel-Messih had been served with a Termination Notice by the Landlord's managing agent on 18 July 2016, directing that he vacate the subject premises by 1 August 2016. The Notice was issued on the basis of an alleged breach of cl 32 of the tenancy agreement: "sub-letting the premises without written permission". Mr Abdel-Messih had entered into a number of written agreements with individuals, purporting to sub-let rooms of the premises.
4. Clause 32 of the tenancy agreement stated: The landlord and tenant agree that: 32.1 the tenant may, with the landlord's written permission, transfer the tenant's tenancy under this agreement or sub-let the residential premises, and 32.2 the landlord may refuse permission (whether or not it is reasonable to do so) to the transfer of the whole of the tenancy or sub-letting the whole of the residential premises, and 32.3 the landlord must not unreasonably refuse permission to a transfer of part of a tenancy or a sub-letting of part of the residential premises, and 32.4 without limiting clause 32.3, the landlord may refuse permission to a transfer of part of the tenancy or to sub-letting part of the residential premises if the number of occupants would be more than is permitted under this agreement or any proposed tenant or sub-tenant is listed on a residential tenancy database or it would result in overcrowding of the residential premises.
5. At a directions hearing on 8 August 2016, the Tribunal entered consent orders in the following terms: 9. By consent the Tribunal orders that the respondent, Tony Azzi … is to cause the undertaking of the following work in a proper and workmanlike manner on or before 22 August 2016. Details of work order (a) Repair of the kitchen mixer tap (b) Repair the laundry tap (c) Repair the toilet leak (d) Repair the dishwasher 10. By consent, the notice of termination issued by the landlord to the tenant dated 18 July 2016 is withdrawn.
6. On 15 August 2016, the Landlord served a second Notice of Termination requiring vacant possession by 30 August 2016 for an alleged breach of cl 32 of the tenancy agreement. The notice of termination stated: "the landlord has refused permission (whether or not it is reasonable to do so) for the sub-letting of the whole of the residential premises". (emphasis added)
7. The Tribunal heard the amended application on 22 September 2016 and made the following orders: 1. On or before 20-Oct-2016 the respondent landlord is to carry out the following repairs to the residential tenancy premises in a proper and workmanlike manner and with due care and skill: to repair or replace, as required, the existing blind in the sun room (or enclosed balcony) of the residential tenancy premises so as to ensure that such blind is clean and in good working order and that any replacement blind complies with the by-laws of the strata scheme within which the residential tenancy premises are located. 2. The Tribunal notes that there is an area of the sun room (or enclosed balcony) which does not have a blind. The Tribunal determines that is it not appropriate to make any order for repairs in respect of such area as there was no blind present in that area at the commencement of the tenancy. However, the Tribunal recommends that the landlord give consideration to the placement of a blind in such area of the sun room particularly having regard to the landlord's obligations to comply with all of the by-laws of the strata scheme. 3. Consistent with their obligations under s 36(3) of the Civil and Administrative Tribunal Act 2013, the parties are to liaise co-operatively as regards reasonable access (at mutually convenient times) to the landlord's contractors in order that the landlord and his contractors may carry into effect the repair order as set out above. 4. There be compensation to the applicant tenant in the amount of $300.00 (an amount commensurate to the sum already paid by the tenant as rent for Saturday 18-Jun-2016 and Sunday 19-Jun-2016), such amount of compensation to be paid by the landlord via a credit on the rent ledger. 5. The Tribunal determines that the Notice of Termination dated 15 August 2016 is not 'retaliatory' within the meaning of s 115 of the Residential Tenancies Act 2010. 6. The Tribunal notes that the landlord reserves his position to bring any application for orders for termination and possession based on the Notice of Termination dated 15 August 2016 and further notes that the landlord must do so within the time required under the Residential Tenancies Act 2010. 7. The application is otherwise dismissed.
8. In Reasons for Decision, the Tribunal identified Mr Abdel-Messih's amended claim in the following terms: An order for repairs in respect of blinds (an existing blind and a 'missing blind') in the sun room or enclosed balcony of the premises; An order that the landlord's Notice of Termination dated 15 August 2016 was 'retaliatory' within the meaning of s 115 of the Residential Tenancies Act 2010 (RTA); A specific performance order requiring the landlord not to interfere with the tenant's quiet enjoyment of the premises; and An order for compensation in amounts of up to $9,230.00 (a separate calculation sheet was provided by the tenant at today's hearing) for interference with the tenant's right of quiet enjoyment and for actions of the landlord said to have caused the tenant's occupiers (on the tenant's case, his permitted sub-tenants) to abandon or break their sub-tenancy agreements with the applicant.

Scope of the Appeal

1. In a Notice of Appeal filed on 30 September 2016, Mr Abdel-Messih sought the following orders: 2. Installation and upkeep of both blind units 4. Correct calculation of compensatory amount 5. Notice of Termination deemed retaliatory 7. Specific performance order requiring the landlord not to interfere with the tenant's quiet enjoyment of the premises.
2. By submissions filed on 3 November 2016, Mr Abdel-Messih sought three additional orders. For convenience, we list each order sought and the provision of the RTA relied on by Mr Abdel-Messih: 1. An order declaring that a termination notice was or was not given in accordance with the Act: s 111 2. An order that the landlord carry out repairs: ss 65(1)(a) and 65(5) 3. An order that the tenant may sub-let the residential premises: s 75(5) 4. An order as to compensation: s 187(1)(d) 5. Compensation to be paid for loss of rent: s 187(2)(a) 6. An order directing a landlord or landlord's agent to comply with a requirement of the Act or the regulations (esp. Quiet enjoyment) s 187(1)(h) 7. An order that the landlord provide the tenant named in the residential tenancy agreement a copy of the key or any other opening device or information required to open a lock or security device for the residential premises or common property to which the tenant is entitled to have access: s 70(2).
3. Proposed order 7 related to the provision of keys and was not part of Mr Abdel-Messih's initial or amended application to NCAT nor was it raised directly or indirectly at the hearing below. It did not form part of the decision under appeal and we will not address it in this appeal.
4. Although the initiating application to NCAT sought a declaration that Mr Abdel-Messih may transfer a tenancy or sub-let the premises, the Tribunal did not determine that issue in its decision of 22 September 2016. This issue does not appear to have been the subject of argument or submissions in the hearing below.
5. The issue concerning the sub-letting of the premises arose in relation to the initial Termination Notice of 18 July 2016 which, as noted, was withdrawn by the Landlord at the hearing on 8 August 2016. The only issue canvassed at the final hearing in relation to the second Termination Notice of 15 August 2016 was whether it was "retaliatory" within the meaning of s 115 of the RTA. The Tribunal recorded in its orders that the Landlord, at the hearing on 22 September 2016, reserved his position in respect of an application for termination based upon the second Notice of Termination.
6. In the appeal, Mr Abdel-Messih did not challenge the decision that the second termination notice was not retaliatory.
7. As the initial termination notice was withdrawn and the second termination notice was not raised in either the amended application or at the hearing at first instance and was not the subject of the decision under appeal, in this appeal we will not address proposed orders 1 and 3.
8. Many issues were canvased in course of this appeal. Having considered the Notice of Appeal and the submissions in support of the appeal, including those advanced by Mr Abdel-Messih at the hearing of the appeal, the grounds of appeal may be distilled as follows: 1. That Mr Abdel-Messih was denied procedural fairness by the Tribunal's decision to permit Mr Yu, the managing agent who represented the Landlord in the Appeal, to be assisted by a solicitor. 2. That the decision under appeal was "not fair and equitable" because the Tribunal ignored Mr Abdel-Messih's evidence. 3. That the Tribunal misapplied s 63(2) of the RTA. 4. That the decision in relation to the claim for compensation was not "fair and equitable" and was "against the weight of evidence".

Statutory framework

1. Mr Abdel-Messih's rights of appeal are limited by s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) which provides: (2) 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 Appeal Panel, 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 Appeal Panel, on any other grounds.
2. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act, leave to appeal may only be granted under s 80(2)(b) if we are satisfied Mr Abdel-Messih 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).
3. Grounds 1 and 3 raise a question of law. The remaining grounds do not and therefore leave of the Appeal Panel is required to appeal on those grounds.

Ground 1: Denial of procedural fairness

1. Mr Abdel-Messih contends that he was denied procedural fairness as a result of the Tribunal's decision to permit the Landlord's solicitor to sit next to the managing agent, Mr Yu, and to give advice throughout the hearing. Mr Yu represented the Landlord at the hearing.
2. In its reasons for decision (the Reasons) the Tribunal recorded (at p 2) that neither party had been given leave to be legally represented but a solicitor had been present with Mr Yu throughout the hearing and had been permitted by the Tribunal to provide Mr Yu with advice from time to time. The Tribunal wrote (at p 2), "the solicitor was not permitted to be an advocate in the landlord's case and the solicitor gave no evidence in the landlord's case".
3. The solicitor who assisted Mr Yu apparently acted in the role of a "McKenzie friend", namely a person who provides support and assistance to a party throughout a hearing but does not advocate or represent the party (see McKenzie v McKenzie [1970] 3 All ER 1034).
4. Parties to proceedings have the carriage of their own cases and require leave of the Tribunal to be represented by an Australian legal practitioner: s 45(1) of the NCAT Act. Neither the NCAT Act its procedural rules nor the Civil and Administrative Tribunal Regulation 2013 (NSW) stipulate that a party requires leave of the Tribunal to be assisted by a McKenzie friend. Nonetheless, consistent with its broad power to determine its own procedure, subject to the guiding principle - to facilitate the just, quick and cheap resolution of the real issues in the proceedings" - the Tribunal had the power to refuse to permit the solicitor to assist Mr Yu: ss 36 and 38(1) of the NCAT Act.
5. The Tribunal was obliged to afford each party procedural fairness: see, s 38(2) of the NCAT Act and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [17]. Among other things the Tribunal was obliged to take such measures as are "reasonably practicable" to ensure that each party had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5)(c) of the NCAT Act.
6. Mr Abdel-Messih has not explained how, as a result of Mr Yu receiving assistance from a McKenzie friend, he was deprived of a reasonable opportunity to be heard. Nor did he identify how he was disadvantaged as a result. The record in the Tribunal at first instance suggests that Mr Abdel-Messih had no difficulty understanding the issues raised in those proceedings and addressing them. He appears to us to have been able to present his case (as he has done in this appeal). He was able to present his evidence and arguments and was heard on them.
7. The obligation to afford procedural fairness does not require the Tribunal to ensure that there is a "level playing field" vis-a-vis the parties. In any case, it is not evident that this "playing field" was not "level". The contention that Mr Abdel-Messih was denied procedural fairness as a result of the solicitor acting as a McKenzie friend is not established.

Ground 2: Not taking into account Mr Abdel-Messih's evidence

1. Mr Abdel-Messih contends that the Tribunal failed to take into account his evidence. He submits: Member D.G. Charles failed to give proper consideration to the substantial evidence put forward to him. He had went to great lengths to ignore the relative sections of the Residential Tenancies Act cited and even the respondent's written agreement varying the lease commencement date when the premises was inaccessible, to my detriment. I seek an objective and independent Member to review the application of the law and the validity of the orders.
2. He went on to assert: The respondent relied on some of my evidence and attempted to show it in a different light, intentionally ignoring evidence indicating otherwise.
3. At the hearing of the appeal, Mr Abdel-Messih did not identify the evidence he asserts the Tribunal failed to take into account in making its decision. Nor did he identify any particular factual finding made by the Tribunal where his evidence was said to have been ignored.
4. The assumption on which this ground is based is not established.

Ground 3: The Tribunal misapplied s 63(2) of the RTA

1. Mr Abdel-Messih contends that the Tribunal misapplied s 63(2) of the RTA by declining to make an order requiring the Landlord to install an additional blind to cover a window in the sunroom of the premises.
2. It is common ground between the parties that at the commencement of the tenancy there was no blind in the relevant location in the sunroom. After the tenancy commenced, Mr Abdel-Messih requested the landlord to install a blind in that location. The Landlord refused.
3. Section 63 of the RTA relevantly states: 63 Landlord's general obligation (1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. (2) A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises. … (4) This section is a term of every residential tenancy agreement.
4. Mr Abdel-Messih's submits that the Landlord's refusal to accede to his request to install a blind, constituted a breach of the tenancy agreement, specifically the obligation to "provide and maintain the premises in a reasonable state of repair". Citing s 63(2) of the RTA, he asserts the Landlord was required to install a blind notwithstanding that he was aware when he entered into the tenancy agreement, that there was no blind in the relevant location. He argued that the absence of a blind in that location made the room unliveable.
5. This submission conflates two separate obligations imposed by the RTA: the obligation to maintain the premises in a "reasonable state of repair": s 63(1); and, the obligation to provide premises "fit for habitation by the tenant": s 52(1). The absence of a blind in a particular position in the sunroom could not be said to relate to the state of repair of the premises.
6. While it may have improved the general amenity of the premises, it could not reasonably be argued that without an additional blind in the sunroom they were uninhabitable. Section 63 of the RTA does not require a landlord to improve premises or provide additional facilities that were not present at the commencement of the lease. Rather it relates to the state of repairs of the premises.
7. We do not accept the proposition that the Tribunal misapplied s 63 or s 52 of the RTA. This ground of appeal is not established.

Ground 4: The decision in relation to the claim for compensation was not "fair and equitable" and "against the weight of evidence"

1. Mr Abdel-Messih sought an order for compensation of $9230. He contends that the Tribunal erred by awarding the lesser amount of $300.
2. In the amended application, Mr Abdel-Messih sought compensation for: (i) the inability to access the premises for a period after the commencement of the tenancy agreement, and (ii) the alleged interference with his "quiet enjoyment" of the premises.

(i) Failure to award compensation for the inability to access the premises

1. Mr Abdel-Messih claimed (and the Landlord did not dispute) that it was agreed that the tenancy would commence two days after the start date recorded on the tenancy agreement. The Tribunal awarded compensation to Mr Abdel-Messih of $300, being an amount equivalent to two days' rent.
2. In addition, Mr Abdel-Messih sought compensation for his alleged inability to access the premises for a further period because one of the lifts in the apartment building was not operating. The Tribunal declined to award compensation for these "access issues" and found they were neither caused by, nor in the control of, the Landlord (Reasons, p 4)" [O]ther access issues (which meant all furniture could not be moved into the premises until 9 July 2016) were not caused by the landlord. There were issues of security and lift access with building management which caused a delay with occupants moving in all of their furniture but these were matters beyond the landlord's control.
3. Mr Abdel-Messih was unable to point to any provision of the tenancy agreement said to have been breached by the fact that one of the lifts in the apartment block where the premises was located was not working for a period.
4. It was open to the Tribunal to decline to award compensation for the "access issues". We do not accept the proposition that this part of the decision was not fair and equitable or was against the weight of evidence.

(ii) Alleged interference with the right of quiet enjoyment

1. Mr Abdel-Messih contends that the Tribunal erred by failing to award compensation for the alleged interference with his right of quiet enjoyment of the premises. He asserts that his right of quiet enjoyment was interfered with by: 1. The alleged refusal by the building manager to issue his sub-tenants with access cards to access the building and/or the cancellation of those cards; and 2. The action of the Landlord's managing agent of informing the sub-tenants that the tenancy agreement was to be terminated.
2. Section 50 of the RTA states: Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. Maximum penalty: 10 penalty units. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement.

(a) Denial or cancellation of access keys

1. In the initiating application, Mr Abdel-Messih claimed that on 24 July 2016 one of his "sub-tenants", Mr Lima, approached the manager of the apartment complex to obtain an access card to the building for his girlfriend, who was about to move in. Mr Abdel-Messih claimed that the building manager told Mr Lima that he had been instructed by Mr Yu not to issue any further swipe cards and to "deactivate all swipe cards soon".
2. Mr Abdel-Messih claimed compensation for lost rent, asserting that as a result of the Landlord's instruction to the building manager, he was unable to sub-let the premises.
3. The Tribunal found that Mr Abdel-Messih had "not proved, on the balance of probabilities, a case for any further compensation": Reasons at p 2. In determining the claim for compensation, the Tribunal considered the threshold question of whether Mr Abdel-Messih had consent to sub-let the premises, as required by cl 32 of the tenancy agreement.
4. In its Reasons (at p 2), the Tribunal noted that the tenancy agreement permitted up to six persons to reside in the premises. However, the Tribunal rejected the assertion made by Mr Abdel-Messih that correspondence between the Landlord's managing agent and the building manager "evidence[d] the consent of the landlord for the sub-letting of the premises to the persons named".
5. In its Reasons, the Tribunal referred to correspondence dated 27 June 2016 and 11 July 2016 from Mr Yu to the building manager. Each letter merely listed Mr Abdel-Messih and a number of individuals as residents of the premises and requested that they be issued access cards. Neither letter mentioned permission being given to sub-let.
6. The finding that Mr Abdel-Messih did not have written permission to sub-let the premises was a finding open to the Tribunal. It could not be said to be "against the weight of evidence".
7. While not expressly stated in the Reasons, it is apparent that the Tribunal considered this finding determinative of this component of the claim for compensation.
8. In any event, Mr Abdel-Messih's submission that the failure to provide "sub-tenants" access cards constituted a "loss of quiet enjoyment" was based on the factual assumption that the Landlord or his agent had instructed the building manager not to issue access cards to the occupants of the premises. As noted above, there was evidence before the Tribunal that the Landlord had instructed the building manager to issue access cards

(b) Informing sub-tenants the lease was to be terminated

1. Mr Abdel-Messih alleges that the Landlord's managing agent informed his "sub-tenants" that the tenancy agreement was to be terminated, and as a result they vacated the premises before the end of the tenancies.
2. The Tribunal declined to award compensation for this claim for the same reason given in relation to the decision to decline to award compensation in relation to the access cards. For the reasons set out above, we do not accept the proposition that this part of the decision was not fair and equitable or was against the weight of evidence.
3. Moreover, we are not persuaded that the notification of sub-tenants, by a head-lessor's agent, that the head-lessor has served a notice of termination, constitutes a breach of the covenant of quiet enjoyment owed by the head-lessor to the head-tenant. Such notification, had it been made, would have been accurate. The Landlord had served a notice of termination. In our view, informing sub-tenants that the head lease is potentially to be terminated could not be said constitute a breach of the covenant of quiet enjoyment.

Summary

1. We are not satisfied that the decision in relation to the claim for compensation was not fair and equitable or was against the weight of evidence.

Written submissions with leave

1. At the close of the hearing we invited Mr Abdel-Messih to identify the principles he contended were established by Martins Camera Corner Pty Ltd v Hotel Mayfair Pty Ltd [1976] 2 NSWLR 15, AF Textile Printers Pty Ltd v Thalut Nominees Pty Ltd [2007] VSC 73 and Halsbury's Laws of England, 3rd ed, Vol 23, pp.605, 606, pars 1298, 1299. We made this direction because in the course of the hearing of the appeal, Mr Abdel-Messih asserted that these decisions and the extract from Halsbury's supported his "case" but he did not identify the principle said to be supported. Nor did he provide a copy of the relevant extracts to the Landlord's representative or the Appeal Panel.
2. In submissions filed on 15 November 2016, Mr Abdel-Messih referred to the passage from the judgement of Yeldham J in Martins Camera Corner Pty Ltd v Hotel Mayfair Pty Ltd at 23 E-F: I take the relevant law in relation to the covenant for quiet enjoyment to be correctly set out in Halsbury's Laws of England, 3rd ed., Vol 23, pp.605, 606, pars 1298, 1299 in these terms: "the covenant for quiet enjoyment operates according to its terms to secure the tenant, not merely in the possession, but in the enjoyment of the premises for all usual purposes; and where the ordinary lawful enjoyment of the demised premises is substantially interfered with by the acts or omissions of the landlord or those lawfully claiming under him, the covenant is broken, although neither the title to, nor the possession of the land may otherwise be affected... "if the act causes physical interference with the demised premises, there is a breach of covenant, notwithstanding that the act itself is done off the premises;..."
3. We understand Mr Abdel-Messih to contend that that passage is authority for the proposition that the concept of "quiet enjoyment" extends to the enjoyment of premises "for all usual purposes". We agree. However, that does not advance Mr Abdel-Messih's argument that the decision was not fair and equitable given the basis on which the Tribunal determined his claim for compensation.

Further submissions/claims made by Mr Abdel-Messih

1. On 12 December 2015, without the leave of the Appeal Panel, Mr Abdel-Messih filed further submissions. Headed "additional clarification", the submissions listed what Mr Abdel-Messih apparently believes to be further heads of claim.
2. We did not consider these submissions. The authorities have consistently identified the harm in filing submissions without, or outside, leave: see for example, NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 (at p 192); and Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 (at pp 513, 514); Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 (at p 330).

Conclusion

1. None of the grounds of appeal are established. Leave to appeal is refused. The Appeal is 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 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: 13 March 2017