Abdel-Messih v Field

The Notice of Appeal

1. In the notice of Appeal, the appellant sought leave to appeal and the grounds of Appeal were set out as follows:
2. The Appellant has suffered a substantial miscarriage of justice because: 1. The decision was not fair and equitable; 2. The decision was against the weight of evidence; 3. Significant new evidence is now available that was not reasonably available at the time of the hearing.
3. In respect of the decision not being fair and equitable, the appellant states as follows: RT 15/44902 highlights the character of Andrew Graham Field. He was more than three months in rental arrears, consistently used and threatened violence against me and other tenants. He has made everyone living with him uncomfortable and would often go inside their bedrooms without permission. He has made repeated unwanted sexual advances and remarks that would only be expected from a sex pest, that no one felt safe. He further impeded any inspections for potential tenants to be carried out. While I can recover for the pain (sic) me and the other tenants have (sic) went through, tribunal preparation and hearings during those 5 to 6 months it would be an outrageously unfair to allow such an individual to go unpunished. I have honestly never come across someone so low.
4. In respect of the second ground of appeal, the appellant alleges that the decision was against the weight of the evidence.
5. The appellant submits that the Tribunal did not consider in its reasons the substantial body of evidence tendered to the Tribunal in the form of statutory declarations, email correspondence and police reports that support his allegations of sexual harassment and erratic behaviour by the respondent. He submits that the Tribunal misdirected itself by not considering the evidence. While the Tribunal noted that "the Applicant has gone to considerable trouble to put his case together" it concluded that the appellant had failed to discharge his onus of proof, in circumstances where the respondent did not appear and the evidence was not challenged.
6. In respect of the appellant's new evidence ground, the appellant alleges he can now produce photographic evidence to support his claims for damages for cleaning costs which had been lost when he mislaid his phone and the evidence was only located after the initial hearing, and has now been tendered on the appeal
7. Mr Bishoy is not legally represented. It is difficult to discern from the submissions and the Notice of Appeal whether the issues raised on appeal involved questions of law or questions for which leave was required. In this regard the principles set out in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 are relevant. Where a party is self-represented, this may involve the Appeal Panel identifying the particular question or questions to be determined and deciding what is a question of law and what questions require leave.
8. In the present case, it would seem to us that the appellant has raised questions of law: 1. whether the Tribunal gave adequate reasons in determining that the evidence presented by the appellant was not sufficient to establish the behaviour complained of and dismissing the claim; and 2. whether the Tribunal failed to consider the evidence or afford appropriate weight to the evidence.
9. For the reasons that follow we have decided that the Tribunal did not give sufficient reasons to explain why the evidence of the appellant was not sufficient to establish his claim, this being an error of law. As the appeal may be disposed of on that basis, there is no need to consider the grounds which require leave.

Respondent's reply to Appeal

1. The Respondent did not file a reply to the appeal save to send an email denying the allegations against him. The respondent did not appear at the appeal call over or at the final hearing. The respondent informed the Tribunal by email dated 29 December 2015 that he was residing overseas and had no intention of appearing at the hearing.

The Decision at first instance

1. On 22 October 2015, the Consumer and Commercial Division of the Tribunal heard the matter and orders were made on that day with written reasons for decision published on 22 October 2015. Since this Appeal concerns the adequacy of the reasons of the Tribunal below it is appropriate to set out the reasons in full at this point.
2. On 22 October 2015 the following orders were made: The application is dismissed because: Having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make orders sought have been established. REASONS The application is one of several brought by the Applicant against this tenant. On 4 September 2015, orders were made in matter number RT 15/44902 terminating the tenancy with associated orders for payment of rental arrears, an occupation fee and vacant possession. The Applicant today states that he has taken action to obtain the money owed under the orders and that the Respondent left the premises on the day of the hearing. The Tribunal file shows the tenant attended, albeit apparently late. This application seeks orders for payment of $5,075.73 alleged missing rent from a double room in the premises because of the Respondent's behaviour, making it impossible to obtain new tenants for that room, $471.42 total occupation fee, advertising expenses (on Gumtree) of $462.34 in relation to the double room and later to the Respondent's room, cleaning cost of $100.00 and a replacement dryer in the sum of $275.00. There is no appearance by the Respondent today, although the Respondent sent two emails to the Tribunal, making allegations in relation to the Applicant having already received the rental bond and accusing the Applicant of misleading the Tribunal in that regard and therefore possibly being "in contempt of court". The reason the Respondent cannot attend today is because he is currently overseas. There is some email correspondence between the Respondent and the Tribunal but it does not seem to have been raised by the tenant that he could appear by telephone today. There is no record of any such application being made by the tenant, although that is the usual procedure. The matter was listed for conciliated hearing on 30 September 2015. Unfortunately there is no record of any attendance by the parties on that occasion, although the Applicant states the Respondent did not attend. In any case, orders were made for the Applicant to amend his application and to serve his evidence by 9 October 2015, which the Applicant did. The Respondent was ordered to serve his evidence by 16 October 2015 but the Tribunal has received no evidence from the Respondent. The orders sought as summarised above are taken from the amended application. The Applicant himself is the head tenant of a three-bedroom dwelling, and he sublets the various rooms to other tenants. The Applicant states that he sometimes lived at the premises but not always. The Respondent rented one bedroom, and there was another double room which appears to have been rented either to a couple or to two single occupants from time to time. The Applicant's case is that the Respondent's behaviour was such that other tenants would not stay or would not take the double room. The Applicant has calculated the amount of rent lost because of that in the sum of $5,075.73. This is supported by an email and two statutory declarations from former tenants, and a note from the agent, making allegations of sexual harassment, inappropriate and "relentless" sexual advances and asking two tenants if they knew what a paedophile was. There are two reports of reports to the police but not accompanying details and no evidence from the police. These complaints relate to a relatively early portion of the Respondent's tenancy. The Applicant submits that the various pieces of evidence all hang together, in that, for example, when one tenant makes a complaint about the Respondent, that tenant leaves the premises soon after. Noting that there is no evidence from the Respondent (either in this application or in the previous application referred to above), I do note that an email from the Respondent suggests these allegations are nonsense and he will not respond, which I take to amount to a denial of the allegations. I am not satisfied the evidence provided by the Applicant is sufficient to establish the behaviour complained of, nor that it relates to most of the period of residence by the Applicant. I am surprised, if the behaviour was as bad as alleged, that more action was not taken and in particular the police were not called in. However, that is not the reason why I do not find the Applicant has proved his case: it is not missing evidence but the fact that the evidence that is provided does not, in my opinion, prove the case on the balance of probabilities. It follows, therefore, that I do not allow the claimed cost of advertising that room. There is no evidence to support the claim that the Respondent damaged a dryer and indeed the Applicant himself stated that there is no proof to that effect, merely that that is the most likely explanation. That does not amount to proof on the balance of probabilities, as it is easy to speculate on other possible causes. There is simply nothing to link the Respondent with this dryer. The claim for "occupation fees" is actually a claim for the period between which the Respondent left the premises and new tenants commenced. There is no evidence to support any claim for lost rent during that brief period. In relation to the claim for cleaning, there is no evidence to support the claim that cleaning was required. There is a short note from a person stating that she did some cleaning (not a tax invoice or a receipt) but no evidence as to the state of the Respondent's room. While the Applicant has gone to considerable trouble to put this case together, the evidence provided does not prove the allegations. The application is therefore dismissed.

Submissions by Appellant

1. The Appellant submitted that the Tribunal below was provided with several statutory declarations and emails from co-tenants supporting his case, but that the Tribunal failed to consider the evidence in its written reasons for decision. There can be no question that the reasons refer generically to the documents tendered but make no specific reference to the content of the evidence. The appellant tendered all documents to the Appeal Panel that were tendered to the Tribunal below.
2. These included: 1. Statement given by the appellant to the New South Wales Police dated 6 August 2015 following an assault on him by the respondent; the alleged assault was reported to Police; 2. Statutory Declaration by the appellant's brother, Michael Abdel-Messih dated 13 July 2015, corroborating the appellant's account given to police. 3. Email dated 27 May 2015 from Delphine Simonneau stating that she was sexually harassed by Mr Field, which prompted her to vacate the premises shortly after taking up residency; 4. Email dated 29 May 2015 from Lucas Stark and Aaron Boger terminating the tenancy due to threatening behaviour by the respondent. 5. Letter from Professional Property Agents dated 2 August 2015 providing contemporaneous evidence corroborating Ms Simonneau's account of the events and permitting her to terminate the tenancy. 6. Statutory Declaration dated 5 August 2015 from Maaike Harperink complaining of unwanted sexual advances and confirming that the behaviour of the respondent was likely to deter prospective tenants at an inspection on 2 August 2015. 7. Statutory Declaration by Lesther Varela dated 16 June 2015 complaining of erratic and invasive behaviour of the respondent and "planning" to move out. 8. Numerous emails from the appellant informing the respondent of inspections. 9. Email by the respondent dated 28 July 2015 objecting to inspections.

Jurisdiction of the Appeal Panel

1. There is no dispute that the decision of the Tribunal from which the Appellant seeks to appeal is an "internally appealable decision" see s 80 of the Civil and Administrative Tribunal Act 2013 (the CAT Act).
2. Subsection 80(2)(b) of the CAT Act provides that an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. In his Notice of Appeal the appellant sought leave to appeal. Clause 12 of Schedule 4 of the NCAT Act prescribes the circumstances in which the Appeal Panel can grant leave to appeal against a decision of the Tribunal in the Consumer and Commercial division. That clause relevantly provides as follows: 12 Limitations on internal appeals against Division decisions An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the Appellant may have suffered a substantial miscarriage of justice because: The decision of the Tribunal under Appeal was not fair and equitable, or The decision of the Tribunal under Appeal was against the weight of evidence, or Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under Appeal were being dealt with). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal Appeal on any other grounds. …"
3. This provision has been interpreted by the appeal panel in Collins v Urban [2014] NSWCATAP 17 at [76] - [79].
4. However, for the reasons set out below, we are of the view that the appeal may be disposed of by reason of an error of law and that it is therefore not necessary to consider any alternative grounds requiring leave.

Substance of the Grounds of Appeal

1. The appellant submits that the Tribunal erred when it found that the appellant's evidence was incapable of establishing a nuisance.
2. In particular the appellant refers to findings and reasons of the Member: I am not satisfied the evidence provided by the Applicant is sufficient to establish the behaviour complained of, nor that it relates to most of the period of residence by the Applicant. I am surprised, if the behaviour was as bad as alleged, that more action was not taken and in particular the police were not called in. However, that is not the reason why I do not find the Applicant has proved his case: it is not missing evidence but the fact that the evidence that is provided does not, in my opinion, prove the case on the balance of probabilities. It follows, therefore, that I do not allow the claimed cost of advertising that room.
3. We have had particular regard to the evidence of assault on Mr Bishoy and the evidence of Ms Simonneau concerning unwanted sexual advances by the respondent. For the reasons that follow, we have come to the conclusion that the Tribunal erred in that he failed to set out the content of the multiple documents tendered by the applicant and that the reasons failed to disclose why, after much of the evidence corroborated the appellant's accounts, the evidence was insufficient to establish the behaviour complained of.
4. The Tribunal's reasons failed to analyse the evidence of the applicant, and particularly in the absence of any contest by the respondent, did not explain, why the evidence failed to prove the applicant's case on the balance of probabilities.
5. It is not in dispute that inadequacy of reasons and compliance with s 62 of the New South Wales Civil and Administrative Tribunal Act 2013 raises a question of law. Section 62 relevantly provides: 62 Tribunal to give notice of decision and provide written reasons on request (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.
6. The nature and extent of the obligation under the general law and pursuant to s 62 was discussed by the Appeal Panel in Donohue v Compass Housing Services. At [49] the decision refers to Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 in which Basten JA observed at [48] that the requirement to give reasons was "not universal in nature" and "is variable in content." His Honour further said: When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality.
7. In our view the reasons did not meet the minimum standard contemplated by Resource Pacific Pty Ltd v Wilkinson and by the Appeal Panel in Collins v Urban or comply with s 62(3) of the CAT Act. We find that the Tribunal did not explain its reasons for rejecting the evidence and that it failed to set out the relevant parts of the evidence that supported the appellant's case for a breach of the agreement.
8. The material findings of fact, the evidence on which those findings were based and the reasoning process that led the Tribunal to decide that the appellant had not discharged his onus of proof in respect of the respondent's behaviour is not apparent from the reasons. We accept the appellant had the onus to establish that the respondent's behaviour created a nuisance thereby constituting a breach of the agreement. What is not apparent from the reasons, is why the appellant's evidence from multiple witnesses was found to be "insufficient to establish the behaviour complained of".
9. In the absence of identifying the relevant parts of the evidence and without identifying how the Tribunal arrived at its reasoning dismissing the claim, the Tribunal had failed to provide adequate reasons. For the reasons outlined by the Appeal Panel in Khan v Kang [2014] NSWCATAP 48, this is a question of law and the appeal must therefore succeed.

Substitution of decision

1. On balance we consider it appropriate, that the decision should be quashed and that another decision concerning liability should be substituted for it in accordance with s 81(1)(d).
2. The appellant submits in his Notice of Appeal that the respondent's behaviour constituted a breach of clause 15 of a standard form residential tenancy agreement. The Appeal Panel notes that the appellant has not tendered a written agreement entered into between the appellant and the respondent but it appears not to be in dispute that a residential tenancy existed, based on the email correspondence from the respondent. An email tendered by the appellant shows that the respondent requested a written agreement but none has been tendered. It is of little consequence whether a written agreement was entered into as the clause allegedly breached is a statutory requirement and s 51(5) prescribes that section 51 forms part of every residential tenancy agreement 51 Use of premises by tenant (1) A tenant must not do any of the following: (a) use the residential premises, or cause or permit the premises to be used, for any illegal purpose, (b) cause or permit a nuisance, (c) interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant, (d) intentionally or negligently cause or permit any damage to the residential premises, (e) cause or permit a number of persons to reside in the residential premises that exceeds any number specified in the residential tenancy agreement. (2) A tenant must do the following: (a) keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy, (b) notify the landlord of any damage to the residential premises as soon as practicable after becoming aware of the damage. (3) On giving vacant possession of the residential premises, the tenant must do the following: (a) remove all the tenant's goods from the residential premises, (b) leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into, (c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy, (d) remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy, (e) return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant. (4) In this section: "residential premises" includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant. (5) This section is a term of every residential tenancy agreement.
3. We have considered the whole of the evidence tendered by the appellant, in particular the evidence of Ms Simonneau and Mr Varela is compelling. Ms Simonneau states that she did not feel comfortable in the respondent's presence and chose to leave. This is corroborated by the managing agent Mr Troy Hoang. In his report of 2 August 2015 he confirms that due to the "seriousness of the allegations" he permitted Ms Simonneau to terminate the residential tenancy agreement and returned her bond.
4. The allegations of the respondent's erratic behaviour is further supported by the sworn evidence of Mr Lesther Varela in his affidavit of 16 June 2015 and the affidavit of Ms Maaike Harperink dated 5 August 2015. Ms Harpering's declaration confirms that the respondent was making unwanted sexual advances and that she declined to stay in the premises even one night.
5. The Appeal Panel considers that the sworn evidence of Mr Varela and Ms Harperink carries considerable weight.
6. In addition, it must be considered that the respondent has failed to appear and has neither tendered any evidence at the hearing at first instance nor has he filed a reply to the appeal.
7. We have noted an email received by the Registry on 29 December 2015. The respondent indicates that he has no intention of appearing at the Appeal hearing as he now resides overseas and denies the content of the statutory declarations. While we have read the email, we have afforded it no evidentiary weight. The respondent has not obtained the leave of the Appeal Panel to appear by telephone, which was a course open to him, if he wished to participate in the hearing. Nor has he taken the opportunity to file and serve documentary evidence or submissions although he was clearly aware of the hearing time and date.
8. In the absence of any evidence or submission to the contrary, the Appeal Panel considers, based on the evidence provided at first instance and again on appeal, that the respondent behaved in a manner that interfered, or caused or permitted interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant (see s 51(1)(b) of the RT Act). We consider that the word "neighbours" in this context is to be given a broad interpretation and includes co-tenants who reside in neighbouring rooms. Further and in the alternative we have considered that the alleged behaviour as described by Ms Simonneau and Harperink is capable of amounting to a nuisance within the meaning of s 51(1)(b) of the Act and we find that a breach of the residential tenancy agreement is established.

Conclusions

1. The appeal papers did provide a summary document setting out the appellant's calculation of rent allegedly lost by reason of the respondent's conduct. The Appeal Panel is not in a position to adjudicate on matters of quantum. The evidence tendered in support of quantum requires a further hearing on the issue of causation and loss and whether the damages alleged flow from the breach.
2. Accordingly, we order: 1. Leave is granted to Appeal out of time and the time for filing the Appeal is extended to 3 December 2015. 2. The Appeal is allowed. 3. The decision below is set aside. 4. The Appeal Panel orders the matter be remitted for consideration by a Tribunal differently constituted and in accordance with the findings of the Appeal Panel either with or without further evidence as directed by the Tribunal

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: 02 May 2016