Aydogan v Coddington

(1) The Decision dealt with an issue concerning what evidence had been lodged by the tenant in support of the tenant's application and the Tribunal found at [9] that the only evidence the tenant had filed or served were "28 undated, unlocated, unattributed photos".

(2) At [10] the Tribunal found that the landlords claimed $344 rent arrears being seven days rent up to and including the 21 June 2024.

(3) At [11] the Tribunal recorded that the tenant conceded some unpaid rent but claimed that he had vacated on 20 June. The evidence of the landlords' agent was that the keys were made available for collection on 21 June. This fact was not disputed at the hearing of the appeal.

(4) At [13] the Tribunal found that there was an absence of evidence from the tenant challenging the agent's evidence and that therefore the landlords were entitled to the full amount claimed of unpaid rent, namely $340.

(5) At [14] the Decision dealt with the landlord's claim for $420 for cleaning costs, relying on clause 18 of the Residential Tenancy Agreement, the ingoing condition report and the outgoing condition report as well as an invoice for the amount incurred for cleaning. There was also correspondence between the parties referred to at [14].

(6) The Tribunal recorded at [15] that the tenant opposed the claim for cleaning costs and relied upon the 28 photographs referred to earlier. The agent objected to the tender of the tenant's photos due to their being "unattributed, unlocated and undated". The Tribunal allowed their tender but gave "very little weight to them due to their unidentified nature".

(7) The Tribunal recorded at [16] that the tenant submitted that the claim for $420 was excessive for cleaning "some stains off the sink". The Tribunal referred to the agent's correspondence which the Tribunal found referred to "33 outstanding cleaning/rectification items in six areas of the premises." At [17] the Tribunal found that there was a lack of any "effective challenging evidence from the tenant" and the Tribunal found that the landlords had proven an entitlement to $420 of the bond for cleaning costs.

(8) Accordingly, at [18] the Tribunal found that the landlords were entitled to $760 and the Tribunal made orders accordingly for the bond to be split so that the landlords receive $760 and the balance went to the tenant.

(9) Notice of Appeal

1. By the Notice of Appeal the tenant challenged the Tribunal's orders. Under the heading "grounds of appeal" the Notice of Appeal stated that:

(1) The tenant had advised the agent that he was leaving on 20 June.

(2) The house had been left "very clean (better than I received)" and drew attention to the "outgoing tenant photos just before departure".

1. In addition, the Notice of Appeal stated that the Tribunal should have given more weight to the photographs taken by the tenant just before departure on 20 June. Attached to the Notice of Appeal were hard copies of a number of photographs, each bearing the date "20 June 2024". Most bore the time of 3:43 pm but some bore the time of 3:44 or 3:45 pm.
2. Reply to Appeal
3. The landlords have filed a Reply to Appeal via the agent. The essence of the Reply is that the appeal is opposed.
4. Consideration
5. This is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal and accordingly the appeal is regulated by s 80 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and by cl 12 sch 4 of the NCAT Act. Essentially this means that the tenant has a right of appeal on a question of law and may appeal with the leave of the Appeal Panel if the Appeal Panel is satisfied that it should grant leave pursuant to the parameters set out in in cl 12 of sch 4.
6. In this case, no question of law was explicitly raised in the Notice of Appeal. So far as a ground requiring leave is concerned, the tenant included in the Notice of Appeal the contention that the tenant's outgoing photographs should have been given more weight and that the decision to exclude them was against the weight of evidence.
7. The photographs attached to the Notice of Appeal constituted fresh evidence insofar as they now contained a date and time stamp which the same photographs did not contain when considered by the member at first instance. The tenant provided an explanation as to why this had occurred. As we understood it the tenant submitted that the photographs submitted by him "online" contained dates and times, but the technology removed metadata (being relevantly in this case, the date and time of the photographs). The tenant submitted that the photos and data served on the landlords contained the date and times of the photos and that this was explained to the Tribunal at the hearing.
8. In our view, it is arguable that the tenant has suffered procedural unfairness in that the circumstances in which the photographs were taken (ie. date, time, and by whom) could have been the subject of brief oral evidence at the hearing and that therefore the decision to receive the photographs but to give them "very little weight" due to their "unidentified nature" denied the tenant an opportunity to rectify those omissions in his evidence.
9. However, it is also our view that had the Tribunal considered the tenant's photographs and compared those photographs with the outgoing condition report and the accompanying photographs, the Tribunal would have preferred the latter evidence, namely the outgoing condition report and the accompanying photographs. This is because the outgoing condition report is explicit in its identification of specific issues requiring cleanliness. For example, the report states blinds have mould present (page 8/120), mirror and cabinet is not clean, black hair is present inside the cabinet (9/120), cupboards and drawers are in need of a wipe down clean, brown marks are present (10/120).
10. In summary, we are of the opinion that member's possible error in giving very little weight to the tenant's photographs had no adverse consequences for the tenant's case because the tenant's evidence was sufficiently non-specific not to overcome the more specific and explicit evidence contained in the outgoing condition report.
11. Accordingly, the Tribunal's order that the Respondents should have $420 for cleaning costs is not the result of any error.
12. So far as the unpaid rent is concerned, the evidence is clear that the keys were made available for collection on 21 June 2024 and therefore the amount claimed by the landlords for unpaid rent was correct.
13. It follows from the above that the appeal should be dismissed and the orders made by the Tribunal affirmed.
14. The formal orders of the Tribunal are:

(1) Appeal dismissed.

(2) The orders made in proceedings 2024/00258655 are affirmed.

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.