Akhtar v Chowdhury

NCAT Appeal Panel|2019-02-11

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) against orders made in proceedings RT17/31231 (proceedings) in the Consumer and Commercial Division of the Tribunal on 22 September 2017. The reasons for decision (reasons) were published on 10 November 2017.
Relevant background to the matter is set out in the reasons. The appellant was a tenant and the respondents were the Landlords of residential property the subject of two residential tenancy agreements in Lakemba, New South Wales. The first residential tenancy agreement was executed on 29 March 2014 for a term of 12 months. The appellant took up occupancy on that day. The tenancy continued after expiry of the term and the parties entered into a second residential tenancy agreement on 3 January 2017. The term of that agreement was 6 months. The appellant vacated the property on 8 July 2017.
The proceedings concerned what the Tribunal characterised as an application by the respondents against the appellant under the Residential Tenancies Act 2010 (RT Act) for compensation for damage to the property which exceeded fair wear and tear. The Tribunal made the following orders: "(1) The tenant, is to pay the Landlords, the sum of $13,277.14 on or before 27 October 2017. Failure to pay any instalment in this order by the due date will result in the whole of the balance being payable immediately. Reasons: • Rent Arrears $67.14 • Replacement of Carpets $1,000.00 • Repair/Replacement of Bathroom fixtures and cleaning bathroom $1,000.00 • Repair/Replacement of kitchen fixtures $10,000.00 • Painting and cleaning of walls $500.00 • Cleaning and repair of blinds $300.00 • Replace flyscreen $410.00 (2) The Rental Bond Services is directed to pay the landlord, the whole bond plus interest of Rental Bond number E812848-6. Any amount received is to be credited against the money order."

Tribunal proceedings and decision

By application filed on 14 July 2017, the respondents applied to the Tribunal seeking the following orders: "(1) Section 107 - an order that the tenant pay compensation for loss caused by the abandonment of the residential premises; (2) Section 187(1)(g) - an order that requires rent to be paid towards the costs of remedying a breach of the Residential Tenancy Agreement or towards the amount of any compensation; and (3) Section 175 - an order regarding the payment of a rental bond."
The application had been drafted by the respondents' agent, Ms Akter.
The proceedings came before the Tribunal on 4 August 2017 when they were adjourned and directions were made for the exchange of documents and for the matter to be listed for a formal hearing on 22 September 2017.
At the commencement of the hearing the Tribunal sought to clarify the orders actually sought by the respondents. It was determined that the respondents were actually seeking orders for compensation and an order for the payment of the rental bond, being claims pursuant to s 187(1)(d) and s 175 of the RT Act.
At the hearing, the Tribunal was satisfied that by reason of the parties having exchanged documents and having conducted settlement discussions before the hearing that the appellant understood the actual nature and extent of the respondents' claim and that no prejudice would flow to the appellant by the Tribunal proceeding as if the respondents had pleaded the appropriate sections of the RT Act in the application.
The Tribunal was of the view that in circumstances where there was no real ambiguity about the nature of the respondents' claim to adjourn the matter again would be contrary to the Tribunal's guiding principles to afford the parties a cost effective, fair and timely resolution of the dispute between them.
As ultimately articulated by the Tribunal, the respondents' claim in the proceedings was for compensation for damage to the property allegedly caused by the appellant which exceeded fair wear and tear. The parties did not contest this characterisation nor was it the subject of a ground of appeal.
In summary, the individual items claimed were: 1. replacement of all the carpet in the property - $6,500.00; 2. complete bathroom renovation - $15,000.00; 3. complete kitchen renovation - $25,000.00; 4. replacement of blinds throughout the entire property - $1,670.00; 5. replacement of flyscreens - $410.00; 6. replacement of light fittings - $1,600.00.
The quantum of the respondents' claim exceeded the jurisdictional limit of the Tribunal. At the hearing the respondents agreed to submit to the jurisdictional limit of the Tribunal.
In general terms the respondents' case was that the appellant had sublet the property without permission to a number of people concurrently and that the property was left in a very poor state at the conclusion of the tenancy. The respondents alleged that the appellant failed to leave the residential premises in a reasonable state of cleanliness and nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy. They claimed that as a result extensive renovations and repairs were required. The respondents led evidence that concern had been expressed about the condition in which the appellant was maintaining the property in 2015 which resulted in the issuing of a notice of termination seeking vacant possession on 1 January 2017. The respondents gave evidence that it was only on the basis of the appellant's undertaking to rectify identified concerns that a new Residential Tenancy Agreement between the parties was executed.
The appellant disputed the claim. He submitted that there were defects in the condition of the property when he moved in and that it was handed back to the respondents in much the same condition. He said that any subsequent damage to the property with the exception of one mark on the living room carpet was caused as a result of water leaking from the bathroom. He claimed that he had advised the respondents of the leak and submitted that he was not responsible for any damage arising from it.
We shall refer as necessary to the contested issues in the proceedings in more detail below.
The Tribunal made the orders to which we have referred above.

Procedural history of the appeal

In light of the appellant's application to tender evidence and his application to adjourn the hearing of the appeal to which we refer to below it is appropriate to set out the procedural history of the appeal.
A Notice of Appeal was filed on 6 October 2017. It was signed by a solicitor from Legal Aid NSW as the appellant's representative. The Notice of Appeal attached an authority dated 5 October 2017 to Legal Aid NSW to act as the appellant's solicitors on his behalf.
On 16 October 2017, the appellant filed an application for stay of original decision pending appeal. This application was also signed on his behalf by his legal representative.
On 18 October 2017 the following directions were made by Principal Member Harrowell: "1. Appeal to be listed for call over and hearing of the application for a stay on 2 November 2017 at 12.30 pm. 2. On or before 25 October 2017 the appellant is to file and serve any evidence and submissions in support of the stay application. 3. On or before 30 October 2017 the respondent is to file and serve any evidence and submissions in opposition to the stay application."
A further direction was made at that directions hearing that the evidence of the appellant was to include a statutory declaration setting out when he moved to Tasmania and proof of residence there.
By an email from Legal Aid NSW to the Tribunal on 25 October 2017 the appellant's application for a stay of the original decision was withdrawn.
At the directions hearing on 2 November 2017 Principal Member Harrowell made the following directions: "1. The appeal is adjourned for directions before President Wright J on 23 February 2018 at 9.30 am. 2. Leave is given to the appellant to file an amended Notice of Appeal by 23 November 2017."
On 22 November 2017, Legal Aid NSW advised that it no longer acted for the appellant in the matter.
An Amended Notice of Appeal was filed on 23 November 2017. This was unsigned.
On 22 February 2018, Mr Yudisthra Seomangal of YS Lawyers filed a Notice of Representation by a Legal Practitioner or Agent in the appeal on behalf of the appellant.
On 23 February 2018 the following directions were made by Principal Member Harrowell: "1. Leave is given to the Appellant to be legally represented. 2. Leave is given to the Respondents to be legally represented. 3. The Appellant is to lodge with the Tribunal and produce to the Respondents by 26 March 2018: (a) All the evidence provided to the Tribunal below on which it is intended to rely; (b) The Appellant's written submissions in support of the appeal; and (c) The sound recording or transcript of the hearing at first instance, if what happened at the hearing is being relied upon. 4. The Respondents are to lodge with the Tribunal and provide to the appellant by 6 April 2018: (a) All the evidence provided to the Tribunal below on which it is intended to rely; (b) The Respondents' written submissions in opposition to the appeal; and (c) The sound recording or transcript of the hearing at first instance, if that has not already been provided and the respondent is relying on what happened at the hearing. 5. The appellant is to lodge with the Tribunal and provide to the Respondents any written submissions in reply by 13 April 2018. 6. The appeal is listed for hearing on 19 April 2018 at 2.15 pm for ½ day. 7. The issue of whether the Appeal Panel should give leave to appeal on grounds other than a question of law is to be determined at the hearing of the appeal. 8. Liberty to apply if there is an appeal against the decision in Johnson vs Dibbins; Gatsby vs Gatsby [2018] NSWCATAP 45. Otherwise the parties raise no jurisdictional issue."
The directions were accompanied by a note: "(1) If a party does not lodge with the Tribunal and provide to the other parties documents, sound recordings and submissions as directed above, that party may not be allowed to rely on those documents, sound recordings and submissions at the hearing of the appeal. (2) [In appropriate cases] At the hearing the Appeal Panel may proceed, if appropriate, to deal with the appeal by way of a new hearing, under the Civil and Administrative Tribunal Act 2013 (NSW), section 80(3). The parties should be prepared to put before the Appeal Panel any fresh evidence as well as any evidence that before the Tribunal at first instance and make any submissions in relation to the original application that they want to make. (3) If a party wishes to rely on a sound recording of a hearing, the party must identify for the Appeal Panel which parts of the sound recording are relied in their written submissions."
On 9 March 2018 the Registrar wrote to the parties noting that the appeal involved a constitutional question concerning the jurisdiction of the Tribunal to hear the dispute. In light of an appeal having been lodged against the decision in Johnson v Dibbins; Gatsby vs Gatsby [2018] NSWCATAP 45 in the Court of Appeal of New South Wales which appeal had been listed for hearing on 12 April 2018 the Registrar requested the parties to indicate whether they consented to the appeal being adjourned for directions until 31 May 2018 pending a decision from the Court of Appeal. The parties were notified that the hearing date and directions previously made in the appeal would be vacated. The appeal was listed for directions on 13 March 2018 to consider what orders should be made.
On 13 March 2018, Principal Member Harrowell made the following directions: "1. The procedural directions for preparation for hearing (orders 3 to 5) made 23 February 2018 are vacated. 2. The hearing on 19 April 2018 is vacated. 3. The appeal is stood over for directions on 31 May 2018."
On 12 April 2018, Mr Seomangal gave notice that he had ceased to act for the appellant.
On 31 May 2018 Principal Member Harrowell made a direction adjourning the appeal to 31 August 2018 for directions.
On 31 August 2018 Principal Member Harrowell made the following directions: "1. The appeal is adjourned for directions to 6 December 2018 at 9.30 am. 2. In the event the Court of Appeal if New South Wales publishes reasons and a decision in the appeals of Johnson v Dibbins and Gatsby v Gatsby prior to 6 December 2018, the parties have liberty to apply to relist the appeal for directions prior to 6 December 2018. 3. Liberty to apply."
On 6 December 2018 Principal Member Harrowell made the following directions: "1. Leave is given to the Appellant to be legally represented. 2. Leave is given to the Respondent to be legally represented. 3. The Appellant is to lodge with the Tribunal and provide to the Respondents by 14 January 2019: (a) All the evidence provided to the Tribunal below on which it is intended to rely; (b) The Appellant's written submissions in support of the appeal; and (c) The sound recording of the hearing at first instance, and a typed copy of the relevant parts. 4. The Respondents are to lodge with the Tribunal and provide to the Appellant by 29 January 2019: (a) All the evidence provided to the Tribunal below on which it is intended to rely; (b) The Respondents' written submissions in opposition to the appeal; and (c) The sound recording of the hearing at first instance, if that has not already been provided and the Respondent is relying on what happened at the hearing and a typed copy of the relevant parts. 5. The Appeal is listed for hearing on 11 February 2019 at 2.15 pm for half day. 6. The Appeal Panel notes the appellant seeks an extension of time to appeal. 7. The issue of whether the Appeal Panel should: (a) extend the time for filing the Notice of Appeal; (b) give leave to appeal on grounds other than a question of law is to be determined at the hearing of the appeal. 8. The Appeal Panel notes: (1) The appellant (Mr Chaudhary Akhtar) advised the Appeal Panel of the following facts: a) He moved to Tasmania and became a resident there in December 2017. b) Prior to that time he was a resident in New South Wales travelling back and forward to Tasmania but did not live there. (2) The original application RT 17/31231, a decision in which is the subject of this appeal, was commenced on 14 July 2017, at which time the appellant was still a resident in New South Wales. (3) Accordingly, it would appear that the original proceedings, when commenced, involved a matter between residents of the State of New South Wales and no jurisdictional issue arises."
The directions were accompanied by a note: "(1) If a party does not lodge with the Tribunal and provide to the other parties documents, sound recordings and submissions as directed above, that party may not be allowed to rely on those documents, sound recordings and submissions at the hearing of the appeal. (2) At the hearing the Appeal Panel may proceed, if appropriate, to deal with the appeal by way of a new hearing, under the Civil and Administrative Tribunal Act 2013 (NSW), section 80(3). The parties should be prepared to put before the Appeal Panel any fresh evidence as well as any evidence that was before the Tribunal at first instance and make any submissions in relation to the original application that they want to make. (3) If a party wishes to rely on a sound recording of a hearing, the party must identity for the Appeal Panel which parts of the sound recording are relied in their written submissions."
The appeal proceeded to hearing on 11 February 2019.

The hearing and the appellant's application for adjournment

The appellant appeared personally on the hearing. At his request an interpreter in the Urdu language was present and interpreted the proceedings. The respondents appeared personally with the assistance of Ms Sakina Akter of LJ Hooker Ingleburn, the managing agent for the property.
During the course of the hearing, the appellant sought to tender documents including photographs which were contained in the appellant's mobile telephone. He submitted that the photographs would establish that there was no damage to the kitchen the subject of the award of $10,000 by way of compensation. The appellant also submitted that there were quotations for repair indicating that the damage in the kitchen was not significant. He stated that the photographs submitted by the respondents at the hearing were in his words "all basically lies". He said there was no damage to the kitchen and that the photographs which he sought to tender established the condition of the kitchen as at the dates and times they were taken.
It transpired upon questioning by the Appeal Panel that the photographs were available to the appellant at the time of the original hearing. The appellant said that when he was presenting his case at the hearing and had sought to tender the photographs the Tribunal said that the Tribunal could, in the appellant's words, "consider the pictures on the next occasion". The appellant said that he informed the Tribunal that he would forward the documents to the Tribunal.
It was not clear to us that the photographs and other unspecified material sought to be tendered on the appeal had not already been put before the Tribunal on the issue of the alleged damage to the kitchen. In paragraph [74] of the reasons the Tribunal made reference to photographs tendered by the appellant which the Tribunal concluded did not reveal any damage to the kitchen. It appeared to us that the issue to which the tender of photographs was directed had been considered in the initial hearing. In doing so the Tribunal had regard to the evidence including photographs tendered by the appellant and his submissions. Additionally, the photographs were not new evidence but reasonably available at the time of hearing.
The appellant was present by telephone with an interpreter at directions hearings at which time timetables were set and leave granted for legal representation. He had been legally represented by Legal Aid and then another solicitor. There was no ground in the Amended Notice of Appeal which had apparently been prepared on legal advice that the Tribunal had erred by declining to accept a tender of photographic evidence at the initial hearing.
The appellant was also present by telephone at the directions hearing on 6 December 2018 with an interpreter at which directions were made that he lodge with the Tribunal and provide to the respondents by 14 January 2019 all evidence provided to the Tribunal below on which he intended to rely, his written submissions in support of the appeal, the sound recording of the appeal at first instance and a typed copy of any relevant parts on which he wished to rely. The record of the directions hearing forwarded by the Registry to the appellant on 7 December 2018 noted that if a party did not lodge and provide to other parties documents as directed the party may not be allowed to rely on the documents at the hearing of the appeal.
The appellant filed a document which we have taken to be submissions on 16 January 2019. He did not seek to introduce new evidence at that time. He did not provide a typed copy of relevant parts of the sound recording at first instance concerning his allegation that the tender of relevant photographs had been refused.
In circumstances in which the material sought to be tendered by the appellant was not new evidence, that it was available to the appellant at the hearing, that the Tribunal considered photographs tendered by the appellant going to the condition of the kitchen and the respondents' claim for damage to it, that the Amended Notice of Appeal was drawn on legal advice and did not contain any ground for appeal based upon the below Tribunal's refusal to accept the tender of documents, that the appellant being on notice of the directions made had not sought to introduce new evidence, that the appellant had had an adequate opportunity to prepare his case and be heard and that to receive the material without notice to the respondents could have the effect of unreasonably delaying the conclusion of the appeal, we declined to receive the photographs into evidence on the appeal. The appellant did not seek to tender any other material.
The appellant then made an application to adjourn the hearing of the appeal upon the basis that he was not sufficiently well prepared and needed more time. This was opposed by the respondents. For the reasons that the appellant had been legally represented by Legal Aid who had apparently prepared the Amended Notice of Appeal and then another solicitor, the seven directions hearings between 2 November 2017 and 6 December 2018 at which directions had been made for the preparation of the hearing of the appeal of which directions the appellant had notice, we considered that the appellant had been afforded a reasonable opportunity to be heard or otherwise have his submissions considered in accordance with s 38(5)(c) of the CAT Act and to identify any questions of law and prepare the appeal. In our view allowing an adjournment in all the circumstances would have been contrary to the objectives set out in s 3(d) of the CAT Act to resolve the real issues on the appeal justly, quickly, cheaply and with as little formality as possible. For these reasons we refused the application for adjournment.

Nature and scope of internal appeals

An appeal against an internally appealable decision may be made to an Appeal Panel: section 80(1) of the CAT Act. An internally appealable decision includes a general decision made by the Tribunal. A general decision is a decision made in the exercise of the Tribunal's general jurisdiction which is, in turn, ascertained by reference to the legislation other than the CAT Act.
Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel, on any other grounds: s 80(2) of the CAT Act.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. whether there has been a failure to provide proper reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision is so unreasonable that no reasonable decision-maker would make it.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the CAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered 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.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated at [84] that 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.
As to appeals by self-represented litigants, in Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: 13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
We have noted above that the Amended Notice of Appeal was filed the day after Legal Aid NSW ceased to act for the appellant in the proceedings. He was later represented by another solicitor. It was evident from the terms of both the Notice of Appeal and the Amended Notice of Appeal and the appearances to which we have referred that the appellant had received legal advice including on the grounds of appeal.

Material considered on the Appeal

In deciding the appeal, we have had regard to the following:
Notice of Orders dated 22 September 2017 and reasons for decision dated 10 November 2017.
Notice of Appeal lodged on 6 October 2017.
Amended Notice of Appeal lodged on 23 November 2017.
Respondents' bundle of documents lodged on 2 November 2017.
Appellant's submissions lodged on 16 January 2019.
We have also had regard to:
The directions made at call overs.
The oral submissions made during the appeal hearing.
The Tribunal applications.
We were not directed by either party to or provided with a typed copy of any part of the sound recording of the hearing said to be relevant to the determination of the appeal.

Whether to proceed by way of new hearing

Section 80 of the CAT Act provides at subparagraph 3 as follows: "(3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances."
Note (2) in the confirmation of directions made on 6 December 2018 forwarded to the parties gave notice that at the hearing of the appeal the Appeal Panel might if appropriate deal with the appeal by way of a new hearing and that the parties should be prepared to put before the Appeal Panel any fresh evidence as well as evidence before the Tribunal at first instance and make any submissions in relation to the original application that they want to make.
In the document filed by the appellant on 16 January 2019 by reference to final orders sought a request was made in the following terms: "f. I request honourable member to look into merits of matter again and please listen and see my evidences properly, I am not a lawyer or real estate person who can give law evidences, I am a student, kindly reduce cost." [sic]
We have taken this to be a submission in support of the making of the orders sought in the Amended Notice of Appeal, namely the remittal of the claim back to the Tribunal for rehearing rather than a request for a new hearing by the Appeal Panel.
Certain of the submissions contained in the document filed by the appellant included allegations apparently not raised in the proceedings including the age of the carpet, the date on which the property had been last painted and whether the property condition report was fabricated or inaccurate.
Neither party sought to adduce fresh evidence although each had the opportunity to do so. In particular the appellant had not made a request for the matter to proceed by way of a new hearing at any of the directions hearings prior to the appeal being set down for hearing. Despite directions for the parties to be in a position to introduce fresh evidence none was sought to be tendered. The appellant did not press any request for a new hearing during the course of the appeal. The respondents made no request for a new hearing.
In our opinion looking at the reasons as a whole it is apparent that the parties had the opportunity of adducing evidence and making submissions in respect of the respondents' claims in the proceedings and in the respects detailed in the reasons which follow the evidence and the submissions were considered. In all the circumstances we considered that the issues the subject of the dispute as articulated in the proceedings have been addressed by the parties. There was no question apparent to us about the adequacy of the evidence either at first instance or on the appeal in respect of which it would be appropriate for the appeal to be dealt with by way of a new hearing and the appeal did not proceed on that basis.

Notice of Appeal

The Notice of Appeal was lodged on 6 October 2017, which is within the 14 time period specified in cl 25(3) of the Civil and Administrative Tribunal Rules 2014 (the Rules).
At the directions hearing on 2 November 2017 before Principal Member Harrowell the appellant was granted leave to file an Amended Notice of Appeal by 23 November 2017. The Amended Notice of Appeal was filed on that day.
Accordingly, and not notwithstanding the direction made on 6 December 2018, no issue arose before us concerning the extension of time for filing of the Notice of Appeal.

General principles applicable to the adequacy of reasons

Ground 4 in the Amended Notice of Appeal refers in terms to a claim that the Tribunal had erred in law in failing to set out adequate reasons for its decision. Ground 2 is that the Tribunal erred in law in making a finding in the absence of evidence. Ground 3 is that the Tribunal erred in law applying the wrong test in relation to the appellant's liability for replacement of the bathroom vanity and carpets. Although not expressed in terms Grounds 2 and 3 also involve an assessment of whether the Tribunal in its reasons adequately expressed its findings on some aspects of the evidence in Ground 2 and in enunciating the appropriate test upon its finding that the appellant's liability for replacement of the bathroom vanity and the carpet in Ground 3. It is appropriate to set out the relevant principles on the question of adequacy of reasons to which we have had regard in considering the grounds of appeal.
The authorities concerning the principles underpinning the obligation to give adequate reasons were recently summarised by the Appeal Panel in Stephanis v Oneview Construction Pty Limited [2019] NSWCATAP 218 at [56] - [58] as follows: "56. In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 (Resource Pacific Pty Ltd), Basten JA stated with Beazley JA agreeing: 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. [Emphasis added] 57. In Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 McColl JA, with whom Ipp JA and Bryson AJA agreed, identified the principles relevant to the issue of adequacy of reasons. Those observations were summarised as follows in Moussa Enterprises Pty Ltd v Stanford [2015] NSWCATAP 99 at [30]: (1) The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice. (2) The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. (3) While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties. (4) The reasons must do justice to the issues posed by the parties' cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted. (5) Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. 58. In Hernady v Raccani [2016] NSWCATAP 67 at [44] the Appeal Panel further considered the authorities concerning the extent of the requirement to give reasons for decision noting that: (1) the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56]; (2) the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46]; (3) not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]."
As the Appeal Panel noted in Stephanis at [55] reasons for decision are not required to be lengthy or elaborate. An express finding of that fact is not required in respect of every fact leading to or relevant to a final conclusion of fact: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 per Mahoney JA at [271]. The Appeal Panel noted in O'Brien v Twyman [2016] NSWCATAP 125 at [51] by reference to the decision in the Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 at [97] that it is well accepted that reasons for decision need not be highly detailed and that they should not be examined with an overly critical eye. In Barrett the Appeal Panel made reference to the remarks of Gleeson JA in Keith v Gal [2013] NSWCA 339 at [117]: "117 Thus, it is essential to expose the reasoning on a point critical to the contest between the parties. This proposition reflects one of the three fundamental elements to a statement of reasons identified by Meagher JA in Beale v GIO at 443-444: "Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.""
In the context of the Motor Compensation Act which contains a provision similar to subsection 62(3) of the CAT Act, Leeming JA in Zahed v IGA Limited t/as NRMA Insurance [2016] NSWCA 55 at [4] said at [6]: "… [The] question is whether the reasoning process can be discerned, reading the reasons as a whole and applying a "beneficial construction" to which the High Court referred in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. At least where a gap may be filled as a matter of necessary inference on a fair reading of the reasons, I would consider that the obligation to set out the reasons has been discharged."
Whilst the Appeal Panel's decision in this matter was reserved the New South Wales Court of Appeal delivered its decision in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231. The underlying proceedings concerned a decision by the Tribunal to exercise a discretion under s 91 of the RT Act to terminate a residential tenancy. The issues on appeal were: 1. whether the Tribunal had not considered a mandatory relevant consideration (namely hardship) such that the discretion miscarried; 2. whether the Tribunal failed to indicate that the process of valuation for the purposes of s 91 had been properly carried out such that the discretion miscarried; and 3. whether the Tribunal's reasons were inadequate for failing to indicate whether the errors in 1 and 2 occurred.
In light of the fact that the statement of relevant principles identified by the Court of Appeal was by reference to established authority at the time when the appeal in this matter was heard, it is convenient to refer to the decision on that issue. The parties to this appeal did not make substantive submissions in respect of the relevant principles to be considered upon assessment of the adequacy of the Tribunal's reasons. The relevant principles assembled by the Court of Appeal in Orr not having altered from the date of hearing we have not invited the parties to make any further submissions on the issue.
In Orr Bell P with whom Ward JA and McCallum JA (on that question) agreed said relevantly at [67] to [77]: "67. Whilst all decision makers, be they judges or tribunal members, should aspire to high quality decision making, an integral part of which is the formulation of clear reasons for decision (as Gleeson CJ explained extra-judicially in "Judicial Accountability" (1995) The Judicial Review 117 at 122), as Basten JA said in Resource Pacific at [48], "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality." His Honour's identification of separate parameters of quantity and quality is, with respect, a useful one. 68. In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). Thus even superior courts are not required to give reasons for every interlocutory decision: Wainohu at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]) and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 but cf. Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], Pollard at [65] and see the discussion in Resource Pacific at [48]−[58]. 69. An important question which is raised by the present case concerns the detail of reasons required of NCAT for a discretionary decision, particularly bearing in mind that there is no right of appeal from the Tribunal's decision other than on a question of law (although a broader appeal may be permitted with leave of the Appeal Panel): see [30] above. 70. As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court. 71. That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (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, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. 72. Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed. 73. In this context, in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187, Fitzgerald P said of the Queensland Retail Shop Leases Tribunal, adapting the language of Samuels JA in the unreported decision of this Court in Strbak v Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep) (Strbak), cited in Xuereb v Viola (1988) 18 NSWLR 453 at 469, that, while such a tribunal: "might not be required to 'submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...' or '... incorporate an extended intellectual dissertation upon the chain of reasoning ...', at least 'a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...' is necessary". It should be noted that Samuels JA inStrbak had been describing the duty of a District Court judge to give reasons as opposed to that of a tribunal member. 74. In Tatmar at 386, Mahoney JA (as he then was) observed in the context of the obligation to give reasons for a discretionary judgment that it was not necessary for a judge: "who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemi[s]e, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23rd September, 1976, unreported; Colacicco v Colacicco (Court of Appeal, 15th March, 1977, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824 at 826. But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it." 75. To like effect, in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46], Basten JA said: "Generally, the concept of 'reasons' requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have not been identified.)" (emphasis added) 76. What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzolanic at 287. 77. These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287,Wu Shu Liang at 272 and 291."
We have had regard to these statements of relevant principles when considering the adequacy of the reasons.
Ward JA and McCallum JA in Orr also raised but did not resolve the issue of whether any statutory or other duty arose to give reasons in circumstances where a statutory entitlement to request written reasons had not been exercised. In the circumstances of this appeal the respondents had pursuant to s 62(3) of the CAT Act sought the provision of reasons and the question does not arise.

Grounds of Appeal

It is convenient to consider with the grounds of appeal identified below in turn. "Ground 1: The Tribunal erred in law in making orders in this matter as it has no jurisdiction to determine matters between residents of different states - Burns v Corbett; Gaynor Burns [2017] NSWCA 3. The Appellant is and was at the time of the decision a resident of Tasmania. The Respondent is and was at all relevant times a resident of New South Wales. If, in the alternative, the Appeal Panel does not accept that the Tribunal did not have jurisdiction to hear the matter, the Appellant relies on the following grounds."
The Tribunal had found at [4] that it had jurisdiction to hear the claim by reason that at the time of filing of the respondents' application the appellant was resident in New South Wales. A finding of jurisdiction where there is none is an error of law and no leave to appeal is required.
The orders made by the New South Wales Court of Appeal in Burns v Corbett; Gaynor v Burns were appealed to the High Court of Australia and the subject of the decision of Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15 (18 April 2018). The relevant question the subject of the findings on appeal was whether the Commonwealth Constitution precludes the parliament of a state from conferring jurisdiction in respect of a matter between residents of different States within s 75(iv) of the Constitution on a Tribunal which is not one of the "courts of the States" referred to in s 77. The plurality found at [2] that a State law which purports to confer jurisdiction with respect to any of the matters listed in ss 75 and 76 of the Constitution on a tribunal that is not one of the Courts of the States is inconsistent with Chapter III of the Constitution and is therefore invalid.
On 6 November 2018, the New South Wales Court of Appeal delivered its decision in Attorney General for New South Wales v Gatsby [2018] NSWCA 254. It concerned two separate proceedings under the RT Act which had been commenced in the Tribunal between residents of different States. One proceeding concerned an application to the Tribunal for an order terminating a Residential Tenancy Agreement under s 87 of the RT Act and the other involved two applications for orders for various forms of compensation. The proceedings were the subject of internal appeals considered by the Appeal Panel in Johnson v Dibbins; Gatsby v Gatsby [2008] NSWCATAP 254.
Following appeals by the unsuccessful parties, the hearing of which were stood over pending the decision of the New South Wales Court of Appeal in Burns v Corbett, the Court of Appeal directed a separate hearing on two questions relating to the jurisdiction of the Tribunal to determine matters "between residents of different States". The first question was whether the Tribunal had been exercising judicial power in the making of orders sought under the RT Act. The Appeal Panel had determined that the making of such orders was an exercise of judicial power. The second question, if the Tribunal was exercising judicial power in the making of such orders, was whether the Tribunal was a "court of a State" within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution. This last matter had not been decided in Burns v Corbett although it was assumed. The Appeal Panel had determined in relation to the second question that the Tribunal was a "court of a State" within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution.
The issues on appeal to the Court of Appeal were: 1. Whether the Court had jurisdiction under s 83(1) of the CAT Act to determine the appeal. 2. Whether the Tribunal was exercising judicial power in making an order under s 87 of the RT Act terminating a Residential Tenancy Agreement. 3. Whether the Tribunal is a "court of a State" within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution.
Relevantly for present purposes the Court of Appeal found that the Tribunal was exercising judicial power in making an order under s 87 of the RT Act terminating a Residential Tenancy Agreement; per Bathurst CJ at [128]. The Court of Appeal found that the Tribunal was not a "court of a State" within the meaning of s 39(2) of the Judiciary Act 1903 (Cth) and s 77(iii) of the Constitution; per Bathurst CJ at [208].
Declarations were made that the Civil and Administrative Tribunal of New South Wales is not a "court of a State" for the purposes of Chapter 3(iii) of the Constitution and s 39 of the Judiciary Act 1903 and that the Civil and Administrative Tribunal had no jurisdiction to determine the relevant proceedings.
During the course of directions hearings for the preparation of this Appeal, it was stood over on several occasions to abide the determination of Gatsby by the Court of Appeal.
At the hearing of the appeal we were not advised that Ground 1 had been withdrawn. There was no issue that the appellant was a resident of New South Wales at the time of commencement of the proceedings. As we understood it, the question being enlivened in Ground 1 was whether in light of the determination of the Court of Appeal in Gatsby the Tribunal had jurisdiction to determine the matter the appellant being "at the time of the decision" a resident of Tasmania. Neither party made submissions concerning Ground 1 including the question of whether jurisdiction is lost to the Tribunal in proceedings which were commenced when both parties were resident in New South Wales but one party had become resident interstate before the proceedings were ultimately determined upon the making of orders.
The appellant bears the onus of satisfying the Appeal Panel that the proceedings were between residents of different states and accordingly that the Tribunal has no jurisdiction to determine them.
Despite it being a relevant matter for consideration of Ground 1 and despite the Note contained in the directions provided to the parties requiring any fresh evidence to be put before the Appeal Panel, the appellant did not file and serve any sworn statement going to the issue of residency and timing. An order had been made by Principal Member Harrowell at the directions hearing on 18 October 2017 and forwarded to the parties that at least insofar as it concerned the stay application (which was later abandoned) the evidence of the appellant was to include a statutory declaration setting out when he moved to Tasmania and proof of residence there. None was filed.
Additionally, there is on the appeal file a record of the directions hearing on 6 December 2018 to which we have referred in which the appellant advised the Principal Member that he moved to Tasmania and became a resident there in December 2017. The appellant was present at the directions hearing by telephone with an interpreter. If the appellant's residency in Tasmania did not commence until after the orders were made in the proceedings and the reasons published no question of jurisdiction on the basis of the parties being resident in different states at a relevant time would arise.
There was no evidence before us to enable a determination to be made as to whether the appellant was resident in another state at any relevant time. Ground 1 of the appeal should be dismissed.
Ground 2 of the Amended Notice of Appeal is in the following terms: "Ground 2: The Tribunal erred in law in making a finding in the absence of evidence. (1) Particulars The Tribunal made a finding in the absence of any evidence that the appellant was liable to pay the Respondents the sum of $10,000 for the repair/replacement of kitchen fixtures. (2) There was no evidence for the Tribunal to establish: (i) the tenant's liability for the replacement of the entire kitchen; (ii) a compensation amount of $10,000."
A finding of fact in the absence of evidence is an error of law; John Prendergast & Vanessa Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13.7]. No leave to appeal is required
As enunciated in the reasons at [11] and [16] the respondents' claim was for compensation for the appellant's failure to leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted.
By the terms of Ground 2 in his Amended Notice of Appeal the appellant submitted in effect that there was no evidence supporting a finding by the Tribunal that the appellant was liable to pay the respondents compensation for repair/replacement of kitchen fixtures and that such compensation should be assessed in the sum of $10,000.
The document filed by the appellant by way of submissions is more a restatement of asserted factual matters. These matters were either raised before and considered by the Tribunal in the reasons or not referred to in the reasons but not the subject of any application for a new hearing or fresh evidence. In respect of the kitchen these are in the following terms, (typographical errors included): "Kitchen: (i) At the commencement of the lease the kitchen was not clean. There was no fresh paint. (ii) The picture took by the landlord was taken way before the commencement of the lease. (iii) The kitchen drawer and tops were already damage. (iv) I informed number of times to landlord and real estate agents. (v) But they said me it's not a matter, we will deal with it. (vi) The property agent took pictures in such angle which did show damages and burns and other stuffs on the shelf tops drawers and other fixtures. (vii) I have proven that when I handover the property is was in normal condition, I got picture in my cell phone with date and time. When I took those. (viii) As per conversation the other party alleged that the pictures which I emailed them it was there."
The respondents made no submissions on this ground.
The first question raised in this ground is whether the finding made that the appellant was liable for damage exceeding fair wear and tear to the kitchen was in the absence of evidence.
The questions to be determined by the Tribunal upon assessing liability for damage to leased property exceeding fair wear and tear were considered by the Appeal Panel in Patricia Panico v Carolyn Crompton and Rodney Jennings [2015] NSWCATAP 110. In that appeal the issue raised was whether damage to a door and surrounds in the subject premises was caused by the tenants or caused by water damage to the door or deterioration to the wall finishes due to the age of the premises or some other cause for which the tenants were not responsible. The Appeal Panel said relevantly at [16] - [24]: "16. There are two relevant provisions of the Residential Tenancies Act 2010 (RT Act) and the residential tenancy agreement. 17. First, the landlord has an obligation to maintain the premises in a reasonable state of repair: see s 63 of the RT Act. In this regard the tenant is obliged to notify matters requiring repair but is not obliged or entitled to carry out repairs. The tenant may do so in the case of urgent repairs, subject to various conditions: see ss 51(2)(b) and s 64 of the RT Act. However, the tenant is entitled to apply to the Tribunal for an order requiring the landlord to carry out repairs: see s 65 of the RT Act. 18. Secondly, the tenants, at the end of the residential tenancy, must 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: s 51(3)(b) of the RT Act. 19. The Tribunal must assess the state of repair and general condition of the premises at the commencement and conclusion of the tenancy. Any condition report at the commencement and end of the residential tenancy will be relevant to this task. 20. The Tribunal may order that the tenant compensate a landlord if the premises are not in the same condition as they were at the commencement of the tenancy, fair wear and tear excepted. 21. The Tribunal must also consider whether at the time vacant possession is given by the tenants the condition of the residential premises and the need for repair arises from: (a) the failure of the landlord to carry out necessary repairs; or (b) the tenants' use of the premises and/or any breach of the tenants' obligations under Section 51(1) and (2) of the RT Act, including the tenants' obligations: (i) not to intentionally or negligently cause or permit any damage to the residential premises; and (ii) to notify the landlord of any damage change arises from the tenants conduct, the tenants. 22. If the tenants have intentionally or negligently caused damage or the wear and tear is not "fair", the tenants are liable to compensate the landlord for the cost of repairs. 23. Fair wear and tear means damage or deterioration that arises from the reasonable use of the house by the tenant for its intended purpose and/or the ordinary operation of natural forces. This interpretation is consistent with the meaning given to "reasonable wear and tear by" the NSW Court of Appeal in Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd & Anor [2006] NSWCA 224) at [30] - [35]. 24. Fair wear and tear is to be assessed objectively: see Adoncello v Sazdanoff [2006] NSWCTTT 577 where the Consumer Trader and Tenancy Tribunal referred with approval to the following statement in Fitzpatrick v Wu (RTT 01/16425): [The section] requires only that the tenants return the property in the state in which it was received minus fair wear and tear. It is the concept of "fair wear and tear" which causes the disputes in these matters and in particular whose standards determine whether wear and tear is fair" ... Given that the section is intended to have application to premises generally in NSW, Parliament could not have intended that the standard of "fair" wear and tear be the subjective standard of each individual landlord. Presumably Parliament had in mind something more objective in nature. In the absence of any guidance on the point from the Supreme Court and having regard to the apparent absence of consideration on the point in other decisions of the Tribunal, the present Tribunal takes the view that the requisite standard is that commonly prevailing among the tenants of comparative premises and that the issue should not be approached from the standpoint of the fastidious and obsessive landlord."
Although not expressed in terms the Tribunal in the reasons at [11], [16] and [21] plainly had regard in considering each of the respondents' claims to s 51(3)(b) of the RT Act and the statutory obligation on the appellant at the end of the tenancy to leave the residential premises in as nearly as possible the same condition, fair wear and tear excepted. This obligation is repeated as a contractual term in clause 17.2 of the underlying residential tenancy agreements in the evidence. In our view, it is evident from the reasons that the Tribunal made a determination of liability for the alleged damage by reference to the criteria set out in Panico although it was not expressed specifically in those terms.
Firstly, the Tribunal carried out an assessment of the state of repair and general condition of the kitchen at the commencement and conclusion of the tenancy.
The Tribunal at [70] referred to the condition report at the commencement of the tenancy, which was in evidence. This recorded that the kitchen was freshly painted. There was evidence before the Tribunal from the Applicant's agent that the cupboards had a polyurethane finish and photographs were produced to show that the kitchen was in good condition at the commencement of the tenancy. The reasons record at [71] a reference to the condition report at the end of the tenancy, which was in evidence, noting the damage to the window blind, what is described as extensive damage to the benchtop and cabinets and that the rangehood was dirty and damaged.
Paragraph [72] of the reasons records that photographs were tendered by the respondents which the Tribunal found depicted "obvious and extensive marks on the benchtop at the end of the tenancy". There were also in evidence photographs depicting what were described as "extremely damaged" cupboard doors in front of the sink. The Tribunal concluded that they had swollen as a result of water entering the cupboard door material. The Tribunal also noted that the shelving inside the cupboards appeared to be stained and damaged. The Tribunal Member inferred from the photographs that the cupboard doors could not be repaired.
In considering the evidence the Tribunal took into account the appellant's submission that the photographs taken at the commencement of the tenancy were misleading by reason that there was no evidence as to the condition of the inside of the cupboards at the commencement of the tenancy. The Tribunal noted however that the appellant did not produce evidence to suggest that the condition of the cupboards was anything other than expressed in the condition report at the time at [73].
The Tribunal considered and made a finding that to the extent that the respondents' evidence was contradicted by that of the appellant she preferred the respondents' evidence being supported by the evidence in the condition report and the photographs tendered; at [75].
The Tribunal found on the basis of the photographs that there was extensive damage caused to the cabinets and to the benchtop. She found on the basis of the condition of the kitchen identified in the photographs that the benchtop required complete replacement and that a large number if not all of the cabinets also required replacement; at [76].
In our opinion the relevant findings, namely that there was extensive damage to the cabinets and to the benchtop, that the benchtop required replacement and that a large number if not all the cabinets also required replacement was available to the Tribunal on the evidence. We are satisfied that the Tribunal had before it and had regard to relevant evidence concerning the damage to the kitchen. There was a logical connection between the material and the evidence and the conclusions drawn; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [124] - [125].
We are also satisfied that it was available to the Tribunal to make a finding which was implicit in paragraph [76] that such extensive damage was in breach of the applicant's obligation under s 51(3)(b) of the RT Act and the residential tenancy agreements by reason that the kitchen was not left in as nearly as possible in the same condition fair wear and tear excepted as at the commencement of the Lease.
It is plain from the reasons that the damage or deterioration which the Tribunal identified from the evidence exceeded that which would arise from the reasonable use of the house by the appellant for its intended purpose and/or the ordinary operation of natural forces. There is no indication from the reasons that the Tribunal was approaching the question of what was fair wear and tear by reference to the standpoint of the fastidious and obsessive landlord but rather the standard commonly prevailing amongst tenants of comparative premises.
In considering the evidence and submissions, the Tribunal took into account the appellant's assertion that he had cleaned the cupboards regularly and the photographs which he tendered taken on 8 July 2017, four days before the outgoing inspection report. The Tribunal considered at [74] that the appellant's photographs did not reveal any damage to the kitchen but noted that they had been taken from different angles and of different sections of the kitchen cabinets to those depicted in the respondents' photographs taken on 12 July 2017.
It was not alleged before the Tribunal that the landlord had failed to carry out necessary repairs. There was evidence to which we have referred by reference to the damage that it had, if not intentionally, been negligently caused or permitted by the appellant although no express finding was made. The appellant had occupation and control of the premises during the currency of the lease when the damage occurred.
Accordingly in our opinion, the reasons indicate that there was relevant credible evidence before the Tribunal which was in substance considered by reference to the criteria in Panico. In our opinion, the findings made by the Tribunal by reference to the elements of liability were available upon the evidence which it considered. Insofar as Ground 2 appeals against the order made by the Tribunal that the appellant was liable to pay compensation for the repair/replacement of kitchen fixtures on the basis of findings in the absence of evidence we find that no error of law has been established.
Ground 2 is also particularised in respect of an alleged finding that there was no evidence to establish the appellant's liability for the replacement of the entire kitchen. No such finding was made by the Tribunal. As we have indicated, the finding was in respect of compensation for expense or damage caused to the cabinets and the benchtop only. We have determined that there was sufficient evidence for that finding. We are satisfied that no error of law has been established in respect of this particular in Ground 2.
The third particular in Ground 2 is in respect of the assessment of compensation in the sum of $10,000 for the repair/replacement of kitchen fixtures.
As the Tribunal indicated at [69] the respondents' claim was for the cost of renovation of the entire kitchen. They claimed the sum of $25,000 for that item; at [69]. The Tribunal noted at [77] that the respondents were unable to provide any evidence of the age of the kitchen and they did not make submissions in relation to an appropriate amount for depreciation. The Tribunal determined that the claim for the replacement cost for a full kitchen renovation in the amount claimed was excessive in the circumstances and took into account the fact that the kitchen was not new. There was evidence contained in the quotations to which we shall refer supporting the Tribunal's finding that kitchen renovations are costly. The Tribunal assessed the amount of compensation in the sum of $10,000.
There were present in the bundle of documents tendered by the respondents at the hearing quotations for the cleaning, repair and replacement of certain items in the subject property. There was a quotation from Jeff Oliver Property Maintenance dated 11 August 2016 which includes replacement of the kitchen sink including tap for $550 plus GST. There was a quotation from Sydney Wide Handyman dated 11 September 2017 for a new polyurethane kitchen, rip out old and dispose, install new with appliances and tiling $25,000 plus GST. There is a quotation from Haoren referred to in an email dated 12 September 2017 from the respondents quoting the refurbishment of the kitchen without appliances such as smoking machine (sic), oven, stove, oven, dishwasher, refrigerator, wash basin for $15,000 plus GST. There is a quotation from VP Property Maintenance dated 12 September 2017 for replacing damaged kitchen cupboard $2,800 plus GST.
The parties did not seek to serve any fresh or further evidence going to the cost of repair of the items determined by the Tribunal to be the subject of the order for compensation in the kitchen of the premises. These items were the cabinets and the benchtops. It was available to them to do so.
It is clear that the Tribunal had before it evidence of the cost for renovations to the kitchen ranging from a complete replacement at $25,000 plus GST to a refurbishment in the sum of $15,000 plus GST to replacing a damaged kitchen cupboard in the sum of $2,800 plus GST. The damage the subject of the award determined by the Tribunal was in respect of the cabinets and the benchtop only. From the quotes in evidence the repair of more than one cabinet and the benchtop would exceed $2,800 plus GST but be less than a complete replacement or refurbishment. We are of the view that, doing the best the Tribunal could upon the available evidence, an assessment of damages in the sum of $10,000 was within the range of what compensation might properly be required to effect repairs to the cupboard doors and the benchtop taking into account the obvious age and condition of the premises identified in the condition reports and contemporaneous photographs even without direct evidence of depreciation. In our view there was sufficient evidence to enable the Tribunal to make the finding on quantum and we find that no error of law is disclosed.
Ground 3 is in the following terms: "Ground 3: The Tribunal erred in law applying the wrong test in relation to the tenant's liability for the replacement of the bathroom vanity and carpet. a. The Tribunal awarded $1,000 for repair/replacement of bathroom fixtures and cleaning the bathroom. The Tribunal also awarded $1,000 for replacement of carpets. b. In determining the appellant's liability for the damage, the Tribunal was required to consider: a) Whether on giving possession, the tenant failed to return the property in the same condition as at the start of the tenancy, fair wear and tear excluded; b) Whether damage claimed by the respondents, was intentionally or negligently caused or permitted by the appellant; c) The loss suffered by the respondents as a result of the tenant's breach; d) Any steps taken by the tenant to rectify any breaches. c. The Tribunal failed to apply these tests. For example: a) The condition report showed that the carpets were in very poor condition at the start of the tenancy; b) The damage to the carpet was caused by a bathroom leak that the Landlords were aware of but failed to repair; c) The damage to the vanity was fair wear and tear or due to the failure to repair the leak; d) The tenant paid for the replacement of the carpet in the bedroom with the Landlords' consent. e) The tenant paid for the replacement of the vanity with the Landlords' consent. f) The tenant paid $550 for professional cleaning on vacating."
The application of the wrong test in the sense of the Tribunal considering the wrong question would, if established, constitute an error of law; see Prendergast at [13]. No leave to appeal is required.
The appellant's submissions by reference to the particulars of Ground 3 are set out in the document filed on 16 January 2019 in the following terms: "Carpet & Bathroom: 1. The life expectancy of the carpet is 8-10 year (good quality carpet). After then carpet should be changed its responsibility of the landlord. a. As according to the landlord stated that mention in (paragraph 26), the landlord did not provide any evidence when carpet was installed. Nearly five years we stayed at the premises b. The landlord was failed to provide the age of carpet. c. He simply lied that he didn't know when the carpet was installed. d. As the age of property and carpet in mentioned in purchase contract and the time of buying. e. Landlord failed to produce a report, when he handed us property. He was relaying on the report which were taken before weeks when we entered the property. f. Condition report clearly is telling carpet is old and dirty. g. In last the carpet installed that was substandard and least bad quality. h. The instalment of the Muslim shower was before commencement of the lease. i. The landlord was requested number of times to repair it. j. Every time new plumber came and just check and go away, this drama was continued for months. k. As I asked property dealer and landlord, they said we are finding cheap plumber but explain in the emails different stories. l. I was living in the house, if they are not fixing problem, then what should I do, should stopped using toilet and go out in public toilet. m. In the condition report, there is no picture evidence by landlord which can prove the condition of inside of vanity drawers."
We have considered and will refer to the appellant's submissions concerning the findings on the damage to the bathroom and the carpets in turn. In large measure, these submissions refer to matters which are the subject of findings by the Tribunal including in the appellant's favour, were irrelevant or seek to refer to factual matters which are not argued before the Tribunal.
The respondents made no submissions on this ground in terms.
The particulars to Ground 3 state that in determining the appellant's liability for damage the Tribunal was required to consider: 1. Whether on giving possession, the tenant failed to return the property in the same condition as at the start of the tenancy, fair wear and tear excluded; 2. Whether the damage claimed by the respondents, was intentionally or negligently caused or permitted by the appellant; 3. The loss suffered by the respondents as a result of the tenant's breaches; 4. Any steps taken by the tenant to rectify the breaches.
We have referred above to the questions to be determined by the Tribunal upon assessing liability for damage to leased property exceeding fair wear and tear as set out in Panico; at [16] to [24]. They are in terms relevantly similar to the particulars of Ground 3 contained in the Amended Notice of Appeal.
We will consider the particulars to Ground 3 in turn by reference to Ground 3.
Particular 3(a) is in the following terms: "(a) The condition report showed that the carpets were in very poor condition at the start of the tenancy.
The reasons reflect that in line with the considerations identified in Panico at [19] the Tribunal made an assessment of the state of repair and general condition of the premises at the commencement and conclusion of the tenancy.
The claim by the respondents had been for the sum of $6,500 for the replacement of the entire carpet in the premises. The Tribunal noted the concession of the respondents that the condition report at the commencement of the tenancy indicated that the carpet was "old and dirty and marked". The Tribunal noted their claim that the carpet was still functional and in such a state that the property could be leased; at [24]. The Tribunal noted the respondents' claim that at the end of the lease the carpet was extremely damaged, unusable and "rotten". It noted that the respondents did not provide evidence to demonstrate when the carpet was installed and did not make submissions in relation to depreciation values; at [25] - [26].
The Tribunal made direct reference to the condition report at the commencement of the tenancy which indicated that the carpet was dirty and marked in the entrance hall, lounge room, dining room and bedroom one and two; at [27]. The Tribunal noted that at the end of the tenancy the records, which we understand to refer to the condition report, records that the carpet was "rotten" in the entrance hall and in a worse condition in the lounge room to the extent that it is no longer usable. The carpet in the dining room was reportedly dirty and damaged. The Tribunal noted that in the first bedroom it was recorded that the carpet had been "changed by a tenant" and in the second bedroom it was "dirty and marked"; at [28].
The Tribunal also had regard to photographs taken by the respondents' agent of the carpet on a number of occasions. The appellant did not dispute the dates of the photographs. The Tribunal noted that the photographs taken on 25 July 2016 showing the carpet in the hallway to be badly marked and mouldy to the extent that although originally beige in colour appeared to be black; at [30]. The Tribunal noted that photographs taken at the end of the tenancy depicted a similar scene; at [31]. The Tribunal noted at [32] that photographs in the living room also depicted "a large number of stains" that were not recorded on the condition report at the commencement of the tenancy. There was evidence from the respondents that the appellant had admitted to the spilling of beverages on the living room floor.
In our opinion the reasons indicate that the Tribunal undertook an assessment of and compared the state of repair and general condition of the premises at the commencement and the conclusion of the tenancy by reference to the evidence consistently with the elements of the relevant enquiry specified in Panico. In doing so and contrary to particular 3(a) it is evident that the Tribunal had regard to the old, dirty and stained condition of the carpet at the commencement of the lease. The particular 3(a) to Ground 3 is not made out.
Particular 3(b) is in the following terms: b) That damage to the carpet was caused by a bathroom leak that the landlords were aware of but failed to repair.
The Tribunal had regard to what appeared to be common ground between the parties that damage to the carpet had been caused by water flowing from the bathroom into the hallway. The Tribunal noted the appellant's submission that the damage had been caused by water leaking from a bathroom tap; [38]. The respondents' submission was that the damage had been caused by water flowing from the bathroom as a result of the washing practices of the appellant and others living at the premises; at [31] and [34].
The respondents submitted that although the Residential Tenancy Agreement permitted occupancy of only one person photographs taken during routine inspections revealed seven mattresses on the floor in the living room; at [33]. The reasons record that evidence was given on behalf of the respondents that the occupants did not use the shower to clean themselves for prayer but instead used a bucket and flexible shower hose fitted to the lip on the side of the toilet bowl and that this practice by a number of people caused large volumes of water to flow onto the carpet .
Evidence was given by the respondents that the appellant was directed to cease the practice and rectify the problem; at [34]. The reasons record at [35] evidence tendered on behalf of the respondents in the form of an email from the appellant dated 1 January 2017 which said: "I will fix those things which are my responsibility under fair trading law …".
The reasons also record that the appellant denied that the damage to the carpet was caused by him and his submission that he stayed in the property for 3 years and that the carpet was already dirty at the beginning of the tenancy; at [37].
The reasons record the appellant's evidence that as a practising Muslim he is required to clean himself before prayer and that he used the flexible hand shower which is affixed to the toilet for that process; at [39].
The Tribunal questioned the appellant as to the use of the flexible hand shower. The reasons record that the appellant denied that it was use of the hand shower that caused water to flow from the bathroom into the hallway and maintained that the water flowing to the hallway was entirely caused by a leak in the vanity unit; at [41].
The reasons also made reference to the dispute between the parties about whether the flexible hand shower was affixed to the toilet bowl at the commencement of the tenancy or whether the appellant had installed it himself without permission. By reference to the photographs at the commencement of the tenancy the Tribunal was satisfied that the appellant had not affixed the flexible hand shower without the respondents' consent and that it was there at the commencement of the tenancy; at [40].
The appellant gave evidence that he advised the respondents of the leak and asked them to send plumbers to effect the repair and that it took 2 or 3 months for this to occur; at [38]. An email to the respondents' agent dated 28 November 2016 was tendered to corroborate the fact that the appellant had requested that a plumber attend the premises. Evidence was given by the respondents that they did arrange for a plumber to attend when they were informed of the leaking tap and that the plumber having attended advised them that no leak was discernible. There was evidence that the bathroom had been used by people washing and showering on the bathroom floor rather than in the bathtub or shower installed; at [43].
The reasons record the appellant's concession in respect of the carpet in the living room that he had dropped a beverage on the floor causing damage to the carpet and that he was responsible for that damage.
The Tribunal expressly considered the cause of the water flow. It considered at [48] the appellant's evidence that the damage was caused by a leaking tap. The Tribunal noted that there was no evidence that the appellant took any independent steps to call a plumber by reference to contact details provided in the original Residential Tenancy Agreement and surmised that this would have been expected if the leak was of such a magnitude to cause the damage depicted in the photographs. The Tribunal noted that there was no contest by the appellant to the respondents' evidence that the plumber who did attend did not discover a leak. The Tribunal noted that it was conceded by the appellant that the bathroom was used a number of people for the purposes of cleaning before prayer and this did not occur in the bathtub or shower cubicle.
The Tribunal found at [51] on the basis of the evidence which it had reviewed that the water leaking onto the carpet was caused by the use of the flexible hose affixed to the toilet bowl. There was no evidence that the appellant took any steps to prevent water leaking from the bathroom onto the carpet in the hallway adjacent to the bathroom. The finding in relation to the cause of the bathroom leak was in our view open to the Tribunal on the basis of the evidence to which it was referred and which it considered and submissions made at the hearing. In our view particular 3(b) of Ground 3 is not made out.
It is appropriate at this point to consider the appellant's separate submissions concerning the carpet. His initial submission that the life expectancy of a carpet is 8 to 10 years and that the carpet should be changed as the responsibility of the landlord was neither the subject of any legal or contractual justification nor apparently argued before the Tribunal as a relevant consideration or the subject of any finding.
More particularly the submission stated: "a. As according to the landlord stated that mention in (paragraph 26), the landlord did not provide any evidence when carpet was installed. Nearly five years we stayed at the premises."
The fact that the respondents gave no evidence about when the carpet was installed was the subject of a finding by the Tribunal at paragraph [26] of the reasons. It was not a determinative fact for the Tribunal's consideration. The Tribunal was able to undertake an assessment of the state of repair and general condition of the premises at the commencement and conclusion of the tenancy by reference to the condition reports and photographic evidence.
Submission (b) stated: "b. The landlord was failed to provide the age of carpet."
The alleged failure by the respondents to identify the age of the carpet was not a determinative consideration for the Tribunal upon the comparison of condition.
Submission (c) stated: "c. He simply lied that he didn't know when the carpet was installed."
There was no evidence that the respondents lied that they did not know when the carpet was installed nor is it a determinative consideration upon the comparison of condition. The question was not the subject of a finding. The respondents did not seek to lead evidence to demonstrate when the carpet was installed.
Submission (d) stated: "d. As the age of property and carpet in mentioned in purchase contract and the time of buying."
The age of property and carpet referred to in the Purchase Contract is apparently a reference to the date of installation. As we have indicated the age of the carpet is not a determinative matter.
Submission (e) stated: "e. Landlord failed to produce a report, when he handed us property. He was relaying on the report which were taken before weeks when we entered the property."
It is not apparent from the reasons that the contents of the report were put into question before the Tribunal or any evidence lead as to a basis for rejecting it. The appellant did not seek to adduce new evidence about that matter.
Submission (f) stated: "f. Condition report clearly is telling carpet is old and dirty."
This was accepted by the Tribunal which made a finding that the condition of the carpet at the commencement of the tenancy was dirty and marked in the respects identified, at [27].
Submission (g) stated: "g. In last the carpet installed that was substandard and least bad quality."
There was no evidence before the Tribunal nor any finding made that the carpet was "substandard and least bad quality". No new evidence was sought to be tendered by the appellant going to that issue.
Submission (h) stated: "h. The instalment of the Muslim shower was before commencement of the lease."
The Tribunal found that the installation of the Muslim shower predated the commencement of the lease; at [40].
Submission (i) stated: "i. The landlord was requested number of times to repair it."
The Tribunal considered the evidence of the appellant that the respondents were advised of the bathroom leak and requested to send a plumber to repair the defect; at [38] and that a plumber did attend the premises; at [43]. There was no evidence that this occurred on a number of occasions.
Submission (j) stated: "j. Every time new plumber came and just check and go away, this drama was continued for months."
As far as we can ascertain from the reasons there was no evidence before the Tribunal that over a series of months plumbers were called to check the leak in the bathroom. The appellant did not refer us to such evidence. There was evidence which the Tribunal accepted that a plumber attended the premises. The appellant did not dispute this.
Submission (k) stated: "k. As I asked property dealer and landlord, they said we are finding cheap plumber but explain in the emails different stories."
The appellant directed us to no evidence that the leasing agent and the respondents were attempting to find a cheap plumber. The uncontested evidence from the respondents was that a plumber did attend.
Submission (l) stated: "l. I was living in the house, if they are not fixing problem, then what should I do, should stopped using toilet and go out in public toilet."
The appellant submits that the leak was not fixed, particularly in the toilet. There was no question before the Tribunal that the leak emanated from the toilet rather than the use of the hand shower. The appellant had argued that in respect of the vanity the damage was caused by a leak in the s-bend. The Tribunal found that this was not consistent with the extensive damage and that there was uncontested evidence that the plumber who was called discovered no leak; at [65].
Particular 3(c) to Ground 3 in respect of the vanity was in the following terms: "c) The damage to the vanity was fair wear and tear or due to the failure to repair the leak;"
The vanity was considered in the context of the respondents' claim for the costs of a full bathroom renovation.
The reasons indicate that the Tribunal undertook a comparison of the state of repair and general condition of the bathroom at the commencement and conclusion of the tenancy. At [57] reference was made to the condition report which stated that the bathroom was a new bathroom with tiles and freshly painted. There was evidence from the respondents that they did not install the bathroom and were uncertain as to its age. The Tribunal inferred that the bathroom was in an acceptable condition at the commencement of the tenancy. The Tribunal had regard to photographs taken at the commencement of the tenancy corroborating that it was in good condition; at [57].
The Tribunal also had regard to the condition report at the end of the tenancy recording that the bathroom door was damaged, the bathroom was mouldy and dirty and the toilet was damaged and marked; at [58]. The Tribunal referred to photographs of the bathroom taken at the end of the tenancy which also revealed that the toilet seat was very dirty and stained and that the flush mechanism from the top of the cistern was damaged or missing: at [62]. The photographs also revealed evidence of mould throughout the room (at [63]) and that the vanity unit had been replaced.
With particular reference to the vanity, the Tribunal considered photographs tendered by the respondents taken during the tenancy showing that the original vanity unit had become covered in extensive black mould and become swollen and damaged, which the Tribunal inferred arose because of water damage to the extent that it was no longer functional. The door to the vanity had also been removed; at [60].
There was evidence that the respondents requested the appellant to replace the vanity because of damage and that the appellant agreed to and did so; at [ 60] - [61].
The Tribunal had regard to photographs of the replacement vanity unit and concluded that it was not of a similar standard to the vanity unit that was present at the commencement of the tenancy. The photographs showed a unit which appeared to be second hand. There was no shelving in the unit and it was apparent that off-cuts of timber had been used to raise the height of or prop up the vanity. The off-cuts of timber are visible. Holes were drilled inside the vanity to allow for plumbing fixtures; at [59].
The Tribunal found that the replacement vanity purchased in a store by the appellant could not be considered as nearly as possible in the same condition as the vanity unit that was installed at the commencement of the tenancy. It found that the vanity was not of an acceptable standard because it did not contain shelving and the drawers did not shut: at [64].
As to whether the appellant had intentionally or negligently caused damage or wear and tear, the appellant said that leaking from the s-bend caused the vanity damage. The Tribunal did not accept this, noting the extensive damage depicted in the photographs. The Tribunal noted that even if this was the case, the appellant had an obligation to take reasonable measures to prevent that damage from occurring and there was no evidence that the appellant undertook such preventative measures. It was noted that there was uncontested evidence that a plumber had attended the premises and discovered no leak: at [65].
The finding that the damage to the vanity exceeded fair wear and tear was undertaken upon a comparison of the vanity between the commencement and conclusion of the tenancy. The reasons reflect that the Tribunal conducted an objective assessment of whether the damage arose from the reasonable use of the property by the appellant for its intended purpose. In our opinion the finding that the replacement vanity was substantially inferior to that which had been in place at the commencement of the tenancy were available to the Tribunal on the evidence to which we have referred and the submissions made. As for the failure to repair the leak, it was available to the Tribunal to find on the uncontested evidence of the respondents that a plumber had attended the premises and discovered no leak. This particular of Ground 3 is not made out in our opinion.
Particular 3(d) to Ground 3 was in the following terms: "d) The tenant paid for the replacement of the carpet in the bedroom with the Landlords' consent."
The Tribunal had regard to the condition report at the end of the tenancy dated 10 July 2017 in which it was recorded that the carpet in the first bedroom had been "changed by tenant". The appellant directed us to no evidence which had been before the Tribunal going to the condition of the replacement carpet; at [28]. The condition report at the commencement of the tenancy indicated that the carpet was dirty and marked in bedroom one and elsewhere; at [27]. There was evidence in the final condition report and photographs upon the basis of which the Tribunal found that the damage to the carpet did not exist at the commencement of the tenancy and exceeded that which would reasonably be considered to be fair wear and tear. In our opinion that finding was available to the Tribunal on the evidence to which we have referred. The finding was made in respect of the entirety of the carpet including that in the first bedroom which had been replaced by the appellant. There was no evidence before the Tribunal or us which would support a submission that the finding should not have been made in respect of the first bedroom. In our opinion Ground 3 is not made out in respect of this particular.
Particular 3(e) to Ground 3 was in the following terms: "e) The tenant paid for the replacement of the vanity with the Landlords' consent."
We have considered this particular in the context of particular 3(c) above. There was no contest that the appellant at the respondents' request had paid for the replacement of the vanity. The Tribunal found on available evidence that the replacement vanity could not be considered in the same condition as the vanity unit that had been installed at the commencement of the tenancy fair wear and tear excepted and that it was not of an acceptable standard for the reasons specified. Ground 3 in respect of this particular is not made out.
At clause 1(m) of the appellant's separate submission in respect of the vanity he says that there is no photographic evidence from the respondents which could prove the condition of the inside of the vanity drawers. There was attached to the Tenancy Inspection Report a details update on inspection on 3 July 2015 attaching photographs of the bathroom vanity indicating what appears to be substantial mould on the inside of the vanity drawers. This evidence was before the Tribunal.
Particular 3(f) to Ground 3 was in the following terms: "f) The tenant paid $550 for professional cleaning on vacating."
This particular asserted that the appellant paid $500 for professional cleaning on vacating the premises. The Tribunal referred at [66] to evidence from the appellant that the property had been cleaned. However, it found that the respondents' photographs taken after vacating the premises, which were in evidence, did not support the assertion that cleaning had been carried out to an acceptable standard. The Tribunal was satisfied on the basis of the photographs that extensive cleaning was still required and that fixtures required replacement, including the toilet seat, the toilet flushing mechanism and the vanity unit.
Accordingly, the reasons reflect that the Tribunal received evidence, considered and made a determination in respect of the steps taken by the appellant to rectify the breaches. The finding was available on the evidence. Ground 3 is not made out in respect of particular 3(f) in our opinion.

Other matters the subject of the appellant's submissions

The grounds of appeal made specific reference to the findings in respect of the repair/replacement of kitchen fixtures (Ground 2) and repair/replacement of bathroom fixtures and cleaning the bathroom and replacement of carpet (Ground 3). Although not referred to expressly in the Grounds and the Amended Notice of Appeal, in his submissions the appellant referred to other items the subject of the orders made. We deal with these in turn.
The appellant submitted in relation to the paint as follows (typographical errors included): "Paint: 1. As per law it is requirement of landlord to paint house after 7 to 10 year. 2. Landlord failed to produce the evidence when he painted the house last time. 3. It more the ten years ago. 4. As there was mould erected paint on the walls."
The respondents had claimed the costs of painting the entire property in the sum of $8,500. The Tribunal had regard to the condition report at the commencement of the tenancy which recorded that the property was freshly painted throughout at that time: at [80]. The Tribunal also had regard to the respondents' photographs tendered in evidence revealing marks on the walls of bedroom 1. However, there was no evidence to satisfy the Tribunal that the marks could not be cleaned or that they were caused by anything other than fair wear and tear: at [81]. Photographs of the walls outside the bathroom revealed extensive damage from mould. The Tribunal concluded that this damage was more than fair wear and tear: at [82].
The Tribunal noted the appellant's submission that the marks were present at the commencement of the tenancy. However, the Tribunal found that this was contradicted by the condition report and that the appellant had not produced any evidence to contradict the information contained in that report. In that respect the Tribunal preferred the evidence of the respondents : at [83]. The Tribunal found that with the exception of the condition of the wall outside the bathroom, the majority of the marks recorded on the walls constituted fair wear and tear and could be dealt with by adequate cleaning. The Tribunal relied upon the evidence and findings which it had made in relation to the damage to the carpet in the same area as the mould on the wall outside the bathroom. On the basis of the evidence and the conclusions which it had drawn the Tribunal was satisfied that the respondents were entitled to compensation for the painting of the section of the wall outside the bathroom but not for repainting the entire property. The Tribunal allowed the respondents the sum of $500 for the cleaning and painting of the walls.
By reference to the submissions now made by the appellant, there was no evidence before the Tribunal as to any requirement to repaint residential property every 7 to 10 years. The relevant inquiry as we have indicated on the question of fair wear and tear is for the Tribunal to undertake a comparison between the condition of the premises at commencement and vacation. The Tribunal undertook this exercise. Evidence of when the house was last painted is not determinative of the outcome of such an exercise. The appellant's assertion that, as we understand it, there was mould on the walls at the commencement of the tenancy was found by the Tribunal to be contradicted by the condition report about which the appellant had not offered any evidence.
The Tribunal's award in respect of the repair of the blinds is not the subject of the appeal.
The appellant's submission states in respect of the Flyscreen: "Flyscreen: a. It was already damaged at the time of lease and I called to real estate agent and they told me that no worries, they know about it.
The respondents claimed the cost of $410 for replacement of the flyscreen in the entrance door. In the submissions the appellant stated that the flyscreen had already been damaged at the time of the lease and he had called the Real Estate Agent and was told that they knew about it. In the reasons the Tribunal had regard to the condition report at the commencement of Tribunal referred to evidence from the respondents including photographs that clearly depicted damage to the flyscreen at the end of the tenancy. Damage was also recorded in the condition report at the end of the tenancy; at [94].
The appellant had given evidence that the screen was already damaged at the commencement of the tenancy. The Tribunal found that it preferred the respondents' evidence comprised in the condition report and the photographs in circumstances in which the appellant had not produced evidence to support his claim. It was noted that the appellant had submitted that the screen was undamaged at the end of the tenancy by reference to a photograph of the screen. The Tribunal found that the photograph was not of the same section of the flyscreen as the damage depicted in the respondents' photograph and preferred the respondents' evidence in relation to that issue. The respondents produced a quotation for replacement of the flyscreen in the sum of $410. There was no evidence to the contrary. The respondents' claim was allowed in the sum of $410 for the replacement of the flyscreen; at [97].
The appellant's contention that the flyscreen was already damaged was the subject of consideration by the Tribunal at the hearing. In our view, the reasons indicate that the Tribunal gave consideration to the extent of the damage by reference to the condition report and photographs, that the appellant's submissions were considered and that the respondents' evidence was preferred. The findings made were in our opinion available to the Tribunal upon the evidence to which it refers in the reasons.
The respondents claimed the sum of $67.14 for one day's rent arrears. Evidence was given before the Tribunal indicating that the appellant was paid up to 7 July 2017 and vacated the property on 8 July 2017. The reasons reflect that the appellant did not dispute the claim and the Tribunal allowed the sum of $67.14 for rent arrears from 7 July 2017 to 8 July 2017.
The appellant's claim that the landlord's agent informed him that he might return the key one day later could have been made during the Tribunal hearing. The appellant did not do so and the Tribunal made a finding on the basis of the evidence which was available. The appellant did not seek to introduce new evidence to establish what he had been told by the landlord's agent. He was on notice that he had the opportunity to do so. In our opinion, the findings by the Tribunal were available to be made upon the evidence before it.
The appellant also raised additional submissions concerning, it was said, the "Final Order to sought" which we consider individually below. "a. In the end I want to say that the tribunal member took some decision on the base of assumption such in kitchen, pain and carpet scenario, while there was no picture from other part on the base of fabricated property reports."
As we have indicated, this appeal is not being conducted by way of a new hearing. The reasons do not reflect that the issue of fabricated property reports was raised at the hearing or the subject of any evidence. Nor is the failure to take into account evidence going to the question of fabricated property reports raised as a ground of appeal. The reasons to which we have referred indicate that the Tribunal had regard to photographs tendered by both parties and gave reasons for preferring the evidence of one over the other including in respect of the kitchen that the photographs tendered by the appellant not revealing any damage to the kitchen were of different sections of the kitchen cabinets to those depicted in the respondents' photograph(at [74]) and were of a different section of the flyscreen to that in which the damage was depicted in the respondents' photographs: at [96]. In some instances there was no evidence adduced by the appellant on the issue of whether the condition of the property at the commencement of the tenancy was anything other than expressed in the condition report at the time, for example in respect of the condition of the kitchen cupboards at the commencement; at [73]. There is no error of law disclosed.
The additional submissions continued: "b. When the real estate and property agents conducted routine inspection after that they issue me a report if something needed to be fix (Damages, cleaning etc). c. I fix that and they come for re -inspection, after they pass that. I kept living there. If the house condition, were so much deteriorating please ask them to have, they issue me any warning evacuation notice. d. If the warning were issued did, I mitigate the issue or not. Please ask them about re- inspection reports after routine inspections.
These submissions appear to suggest that all elements requiring fixing or cleaning were notified to the appellant by the landlord's agent and were fixed and accordingly that there was no damage to the property in excess of fair wear and tear properly the subject of an order for compensation at the end of the tenancy. This submission was not the subject of a finding in the reasons and was apparently not raised before the Tribunal. Nor is it the subject of a ground of appeal. Nor did the appellant seek to introduce new evidence in relation to the matter or apply for a new hearing. There is no error of law disclosed on the face of the reasons in respect of this matter which was not raised.
Paragraph (e) of the additional submissions states: "e. While Durning real estate has contact me thorugh different sources and ask me to settle out of tribunal, he offered me to settle on $ 8000, $ 3,000 cash while reaming on instalment."
Settlement discussions between the parties were neither the subject of the proceedings or evidence or a finding or a ground of appeal and the submission is not relevant to the matters for determination on the appeal.
Paragraph (f) to the additional submissions states: "f. I request honourable member to look into merits of matter again and please listen and see my evidences properly, I am not a lawyer or real estate person who can give law evidences, I am a student, kindly reduce cost."
We have considered this request in the context of the appellant's claimed relief on appeal, namely that the appeal be allowed, the decision of the Tribunal be set aside and remittal of the proceedings for rehearing.
Paragraph (g) to the additional submissions states: "g. The Claimant submit of claim more then $15,000. NSCAT doesn't have any jurisdiction to hear this claim. As it is cited on the website of NSCAT."
The reasons indicate that consideration was given by the Tribunal and the parties to jurisdiction and that the respondents submitted to the jurisdictional limit of the Tribunal; at [18].
At the conclusion of the appellant's submissions there was contained a note in the following terms: "Note: a. I have attached all evidences with numbers and past my submission."
We have reviewed the attachments to the submission contained on the appeal file. So far as we can tell they are all dated prior to the hearing in the Tribunal and were either available to be introduced as or in fact were the subject of evidence before the Tribunal. We were not directed to any particular document to which the appellant says the Tribunal did not have regard.
Having considered the particulars to Ground 3 and the submissions made by the appellant, we are satisfied that the Tribunal in substance applied the correct test in relation to the appellant's liability for the replacement of the bathroom vanity and the carpet by reference to the elements identified in Panico to which we have referred. An assessment was undertaken in each instance by reference to the condition report at the commencement and conclusion of the tenancy and available photographs of the condition of the premises. Evidence and the submissions of the parties were considered on the issue of whether any damage exceeded fair wear and tear and the cause or such damage. Where it was raised by the parties the Tribunal also considered whether such damage arose from a failure of the respondents to carry out necessary repairs, whether the appellant notified the respondents of any damage and ultimately whether the appellant permitted damage to occur during the course of occupation. It is clear from the reasons that the Tribunal considered evidence before it on the issue whether damage or deterioration arose from reasonable use of the house or from the ordinary operation of natural forces. It is clear from the reasons that whether such damage or deterioration exceeded fair wear and tear was assessed objectively. From the reasons it is plain that the requisite standard was approached from that commonly prevailing among tenants of comparative premises and not from the stand point of a fastidious or excessive landlord.
The question of compensation was considered by reference to quotations for repair and other relevant evidence in each instance. Steps taken by the appellant to rectify the breaches were also the subject of evidence and submissions and considered.
For the reasons identified above, we do not consider that the Tribunal erred in law by applying the wrong test in relation to the appellant's liability for replacement of the bathroom vanity and the carpet. We find that Ground 3 as particularised is not made out.
Ground 4 is in the following terms: "Ground 4: The Tribunal erred in law in failing to set out adequate reasons for its decision. In its reasons, the Tribunal found the appellant liable for $13,277.14. Other than a very minimal breakdown of the compensation amounts, the Tribunal failed to give reasons for its decision to find the appellant liable. The Tribunal failed to refer to any sources of evidence or how it related to any material question of fact. The Tribunal failed to set out its understanding of the applicable law. The Tribunal failed to set out the reasoning process that lead the Tribunal to the conclusions made. The reasons failed to meet the standards set out in section 62(3) Civil and Administrative Tribunal Act 2013 and Collins v Urban [2014] NSWCATAP 17."
Neither party made submissions concerning this ground in its terms.
Section 62 of the CAT Act is in the following terms: "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."
The appellant had made a request for written reasons pursuant to s 62(3) of the CAT Act.
We have set out above the principles underpinning the obligation to give adequate reasons as summarised in the authorities most recently by the Court of Appeal in Orr. The minimum characteristics that a Tribunal's reasons must possess were identified by Bell P in Orr at [71] by reference to those matters in s 62(3) of the CAT Act. These have been repeated in Ground 4 with an additional ground that the Tribunal failed to give reasons for its decision to find the appellant liable.
In considering the particulars in Ground 4 and whether s 62(3) of the CAT Act has been satisfied, we have had particular regard to the discussion in paragraphs [72] to [77] of the decision in Orr concerning the quality and detail of the reasoning process which must be exposed. Read as a whole, the reasons in our view enunciate a basic explanation of the fundamental reasons which lead to the Tribunal's conclusions by reference to the authorities referred to in Orr at [73]. They are sufficient to indicate why the decision was made in each instance and allow the parties, in this case the appellant, to exercise his rights of appeal in respect of them; see Orr at [74] referring to the observations of Mahoney JA (as he then was) in Tatmar at [386] in respect of the obligations to give reasons for a discretionary judgment. We have also had regard to the application of a beneficial construction to the reasons and the filling of gaps as a matter of necessary inference on a fair reading of the reasons consistently with the observation of Leeming JA in Zahed to which we have referred at [6].
In our opinion it is clear from the reasons that the respondents' claim in the proceedings was determined by reference to the operation of the RT Act. The Tribunal had regard to s 187 of the RT Act which while not referred to in terms was identified as affording a wide range of powers including the powers to make orders for payment of an amount of money and/or an order for compensation; at [2]. The Tribunal also had regard to s 175 of the RT Act giving the Tribunal power to make orders for the payment of a rental bond on the application of a party who has an interest in the payment of the bond; at [3].
As we have indicated the proceedings as initially drawn by the respondents' agent sought an order under s 107 of the RT Act for the payment of compensation for loss caused by abandonment of the residential premises in s 187(1)(g) of the RT Act being an order requiring rent to be paid to the Tribunal towards the cost of remedying a breach of the residential tenancy agreement. The reasons reflect an inquiry by the Tribunal as to the operative provisions of the Act which should have been pleaded being s 187(1)(d) and s 175. Section 187(1)(d) provides that the Tribunal in proceedings under the RT Act might make an order as to compensation. Section 187(2)(b) provides that the power to award compensation for loss of rent or any other breach of a residential tenancy agreement.
Accordingly, it is plain from the reasons that the Tribunal identified and had regard to the relevant sections of the RT Act for the purposes of determining the respondents' claim.
It is also clear from the reasons that in respect of the claim for compensation for breach of the residential tenancy agreement the relevant obligations the subject of consideration were those which the Tribunal identified at para [21] being: "(a) To 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; and (b) To leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy."
As we have indicated this is a reference in terms to the obligations in ss 51(3)(b) and (c) of the RT Act the subject of contractual obligations in clauses 17.2 and 17.3 of the residential tenancy agreements which were in evidence.
The reasons then turn to consider the respective claims by the respondents for replacement of the carpet, bathroom, kitchen, blinds, flyscreens and light fittings.
The grounds of appeal were restricted to findings in relation to repair and replacement of kitchen fixtures, repair and replacement of bathroom fixtures, cleaning the bathroom and replacement of carpets. In respect of the Tribunal's consideration of these matters it is clear to us from the reasons that whilst not referring in terms to the Appeal Panel's decision in Panico in substance the Tribunal had regard to the necessary elements of each claim and to determine whether any damage exceeded fair wear and tear undertook by reference to those elements an assessment of the state of repair and general condition of the premises at the commencement and conclusion of the tenancy including by reference to the condition reports, photographs and other evidence. The Tribunal had regard to any evidence concerning the failure of the landlord to carry out necessary repairs and whether the appellant had notified the respondents of any damage and action taken including in respect of the alleged leak in the bathroom.
Having considered those matters and in the absence of evidence to the contrary in our view there was a proper basis for the Tribunal to attribute liability for damage exceeding fair wear and tear to the appellant who had control and occupation of the premises in the sense contemplated under s 51(1) of the RT Act and the obligation not to permit any damage to the residential premises.
The reasons in their terms indicate that the Tribunal conducted an assessment by reference to legal principle of the question of whether damage exceeded fair wear and tear. The Tribunal in each instance by reference to the evidence and submissions formed the conclusion that the damage or deterioration exceeded reasonable use of the premises. It is clear from the reasons that the assessment of fair wear and tear was objective and by reference to standard commonly prevailing amongst tenants of comparative premises not from the standpoint of a fastidious or excessive landlord.
In our view the reasons identified in substance the applicable law to be considered upon the application including the jurisdiction of the Tribunal and its powers in respect of the claim, the relevant provisions of the RT Act and the subject leases. In our opinion there was no failure by the Tribunal to set out the reasoning process which lead to its conclusions. The reasoning process was exposed in the respects we have identified.
In our opinion it is also evident from the reasons that on material questions of fact the Tribunal set out and considered the sources of evidence. Competing evidence was weighed and submissions considered and reasons were given for preferring one party's evidence over that of another.
In particular, in relation to the assessment of compensation the Tribunal had regard to quotations provided by the respondents to which we have referred and the evidence and submissions of the parties. In most instances it awarded less than the full the amount of the claim taking into account the fact that there was no evidence of depreciation and the more limited damage exceeding fair wear and tear referable to each claim.
The respondents had claimed the costs of replacement of carpets in the sum of $6,500. It was allowed by the Tribunal at $1,000 the Tribunal being satisfied that it was so badly damaged that it would be impossible for it to be restored to any semblance of an acceptable standard and that any residual functional life of the carpet notwithstanding its age was extinguished by the appellant's action; at [53] - [54]. The respondents had claimed a full bathroom renovation in an amount of $15,000. The Tribunal was not satisfied that such an extensive renovation was required. It allowed $1,000 for replacement of the vanity unit, toilet seat and flushing mechanism and for extensive cleaning to bring it to an acceptable standard; at [68]. We have considered the costs of the repair of certain kitchen fixtures allowed at $1,000 above. The respondents' claim for painting was in the sum of $8,500. The Tribunal was satisfied that they were entitled to compensation for a section of the wall outside the bathroom but not repainting the entire property and allowed $500 for cleaning and painting of the walls; at [84] - [86]. The replacement of the blinds was claimed at $1,670. The respondents had not provided evidence to demonstrate why the blinds could not be cleaned and one blind repaired to return the blinds to an acceptable standard. The costs of replacing all the blinds was not allowed. The Tribunal allowed $300 for the cleaning of four blinds and the repair of one broken blind; at [91] - [92]. The appellant did not contest this amount on appeal. The cost of the flyscreen had been claimed at $410 which was allowed on the basis of the quotation admitted into evidence and in the absence of evidence to the contrary; at [97].
In considering the question of adequacy of reasons we have had regard to the fact that the litigants at hearing and on appeal were self-represented, that English is not their first language and indeed the appellant appeared with an interpreter. They are not legally qualified. Precise evidence on quantum was not addressed in each instance by the respondents in respect of the damage found by the Tribunal. The findings on quantum to which we have referred had been the subject of evidence of replacement costs and discounted by reference to the actual damage found. Although not the subject of precise evidence in respect of the ultimate findings on damages in each instance, we are of the view that the amounts awarded were within the range to compensate the respondents for the damage exceeding fair wear and tear which was found. In undertaking that process we find that the Tribunal did not fail to give adequate reasons as to its determinations on quantum.
The Tribunal also took into account actions by the appellant in respect of replacement of the vanity, cleaning and the replacement of carpet in bedroom one when making the finding of ultimate damage exceeding fair wear and tear and the amount payable by way of compensation in the respects we have identified.
Taking into account the authorities to which we have referred including those summarised in Orr, we are not satisfied that the reasons read fairly and as a whole were inadequate by reference to the requirements of s 62(3) of the CAT Act. We find that Ground 4 should be dismissed,
There was no express finding in the reasons in relation to the second order that the respondents pay the whole bond plus interest. This order was notionally the subject of the Amended Notice of Appeal although no ground or submission was directed to it. It is not clear whether it was the subject of submissions before the Tribunal. The Tribunal did have regard at [3] to the operation of s 175 of the Act which provided power to make an order for payment of the bond. The order was within power and appropriate upon the making of compensation orders. In our view no error of law is disclosed.

Costs

Section 60 of the CAT Act provides that each party in the Tribunal is to pay their own costs. It is only where the Tribunal is satisfied that there are special circumstances warranting an award of costs that costs might awarded; s 60(2). Neither party made submissions concerning any special circumstances which would ground an award of costs upon them being successful in the appeal. It is noted that the parties are self-represented. There should be no order as to costs.

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 October 2019

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