Ballesfin v Jung & SJ Super Holdings Pty Ltd

Material considered on Appeal

1. In considering this appeal we had regard to the following materials provided by the parties, together with their oral submissions. 1. Notice of Internal Appeal filed 9 August 2021 with attachments number 1 to 15. 2. Document entitled "Appeal Summary" filed by the appellant on 28 August 2021. 3. Respondent's submissions received 9 September 2021 with attachments. 4. USB stick containing video's purporting to show incidents of stalking and harassment, and of efforts taken by the appellant to mitigate those behaviours. 5. the appellant's submissions received 21 September 2021 6. Copy of the appellant's original application to the Tribunal dated 4 December 2020.

Internal appeals - legal principles

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) states: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
2. Clause 12 of Schedule 4 to the NCAT Act states with respect to decisions made in the CCD that: An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
3. In the present appeal the appellant relies on errors of law. She also sought leave to appeal on the ground that the decision was not fair and equitable and was against the weight of the evidence.
4. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not having regard to a relevant consideration. This includes not making a finding on an element or central issue that is required to be made out in order to claim an entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
5. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel said that the following are specifically included: 1. whether the Tribunal provided adequate reasons, which explain the Tribunal's findings of fact and how the Tribunal's ultimate conclusion is based on those findings of fact and relevant legal principle; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
6. The Appeal Panel stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations in favour of the respondent: Prendergast at [12]. 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 (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.
7. The categories of errors of law that give rise to an appeal as of right, discussed in Prendergast are not all inclusive.
8. With respect to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]- [79] and [84(2)] as follows: 74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in clause 12(1)(a), (b) or (c) 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 paragraph (a) or (b) not occurred or if the fresh evidence under paragraph (c) had been before the Tribunal at first instance. 75 As to the particular grounds in clause 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in clause 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. … 84 The general principles derived from these cases can be summarised as follows: … (2) 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.
9. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.
10. Even if the appellant establishes that she may have suffered a substantial miscarriage of justice within clause 12 of Sch 4 to the CATA, the Appeal Panel has a discretion whether to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Appeal Panel's consideration of whether to exercise that discretion.

Grounds of Appeal

1. Having reviewed the materials before the Appeal Panel we have identified four questions of law relied on by the appellant: 1. First, the appellant submits the Tribunal applied the wrong law by finding that the BHA applied in the circumstances, rather than the RTA. 2. Secondly, the appellant submits that the Tribunal erred in the understanding of what constitutes quiet enjoyment as a matter of law when considering whether the alleged harassment and stalking of the appellant by the "Old Man" breached her quite enjoyment. 3. Thirdly, the appellant submits that the Tribunal took into account "irrelevant evidence" concerning the "Old Man's" good character when considering whether his conduct had led to breaches of her quiet enjoyment. 4. Fourthly, the appellant submits that the Tribunal wrongly dismissed the application against SJ as a proprietor of the building house because it was registered as such in the Register of Boarding Houses, and shown as such in a certificate issued by the Registrar that was before the Tribunal.
2. In identifying those questions of law we have rejected the appellant's contention that the Tribunal's was wrong in law when it rejected her evidence and found no evidence of stalking or harassment, or interference with her quite enjoyment by the "Old Man". This does not raise an issue of law and is a matter that goes to the merits. It requires leave to appeal which is considered below.
3. We have not considered the appellant's submission relating to the Tribunal's comments concerning whether or not compensation could be recovered for distress and disappointment. We have done so because the Tribunal found no entitlement to compensation on the appellant's part and did not assess damages. The issue is therefore not germane to the appeal.
4. The notice of appeal also seeks leave to appeal on the basis that may have suffered a substantial miscarriage of justice because the decision was not equitable and was against the weight of evidence.

The Tribunal's decision

1. The Tribunal found that from 20 December 2019 to 18 November 2020 the appellant was the resident of a single room at Star Court under the following agreements she made with Mr Jung, at [4]: (1) an initial verbal agreement for a term of three months entered into on or about 20 December 2019 (Verbal Agreement); followed by (2) a written Room Rental Agreement entered into on or about 15 May 2020 (Room Rental Agreement).
2. The Tribunal found that: 5. The applicant initially paid a weekly rent of $280, which was reduced to $220 from 18 June 2020. She paid a security deposit of $500, which she received in full when she returned the keys and vacated on 18 November 2020.
3. The Tribunal found the Mr Jung was the lessee of the Star Court, which is owned by SP, from whom he rented the premises. There is no dispute that the premises were let to Ms Jung under a commercial lease with SJ; not under a residential tenancy agreement.
4. The Tribunal then quoted s 13 of the RTA which defines a residential tenancy agreement and the definition of residential premises in s 4. It is worth setting them out in full. Section 13 provides: (1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence. (2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing. (3) An agreement may be a residential tenancy agreement for the purposes of this Act even though - (a) it does not grant a right of exclusive occupation, or (b) it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities. Note - See section 8 for agreements that are not covered by this Act. Section 7 sets out premises not covered by this Act. (4) For the purpose of determining whether an agreement is a residential tenancy agreement, it does not matter that the person granted the right of occupation is a corporation if the premises are used (or intended for use) as a residence by a natural person.
5. Residential premises is defined thus, in s 4: residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence.
6. The Tribunal then concluded "any agreement between the appellant and Mr Jung as head tenant can only be a subtenancy agreement."
7. As there was no written residential tenancy agreement that applied to the premises in the period 20 December 2019 to 15 May 2020, the Tribunal concluded that the appellant could not be treated as a tenant due to the provisions of s 10 of the RTA. That section provides: A person who occupies residential premises that are subject to a written residential tenancy agreement, is not named as a tenant in the agreement and who occupies the premises together with a named tenant is a tenant for the purposes of this Act only if - (a) a tenant under that agreement transfers the tenancy to the person or the person is recognised as a tenant (see Part 4), or (b) the person is a sub-tenant of a tenant under a written residential tenancy agreement with that tenant. Note - Boarders and lodgers are not covered by this Act (see section 8(1)(c)). An occupier may be recognised as a tenant (see sections 77 and 79)
8. Thus the RTA did not apply during the term of the oral agreement.
9. With respect to the period when there was a written Room Rental Agreement in place, from mid-May 2021 until the appellant left in November 2021, the Tribunal wrote: 23 The applicant … submits that the Room Rental Agreement is a residential tenancy agreement because: (1) She had exclusive possession and mastery over her unit and could lock the door and Mr Jung had never entered her room without her permission. (2) The room consisted of a sink, cook top and fridge and she did not receive meals, linen or cleaning services. (3) Mr Jung did not live at the Boarding House and thus did not exercise control over the occupants. 24 The Room Rental Agreement states its purpose is to "promote household harmony by clarifying the expectations and responsibilities of the house owner and tenant when they share the same home." The agreement is signed by the applicant and by Mr Jung in his capacity as "owner (Manager)". It sets out the house rules, which include cleaning the common area after use, own rooms to be vacuumed once a week and public bathrooms and toilet to be cleaned after use. The agreement refers to the payment of a two week security "deposit". It is not dated nor does it specify a start date or end date. However, it specifies rent is payable every two weeks in advance from 1 December 2019, i.e. it is backdated. The notice period is four weeks for non breach. 25 I find that the Room Rental Agreement is not a residential tenancy agreement and that consequently the provisions of the RTA do not apply. l find that the applicant is a boarder rather than a tenant as whilst she had exclusive access to her own room, she did not have the right to exclusive occupation to the Premises; Mr Jung as proprietor retained control. The bathroom was common and household rules were enforced. Further, she paid a two week security deposit as opposed to a four week rental bond. The notice period was four weeks for no-grounds, as opposed to 90 days for a periodic lease under the RTA.
10. The appellant says that the Tribunal made an error of law when classifying the agreement as one to which the BHA applied. She says that the RTA applied

The BHA

1. The objects of the BHA are set out in s 3: The object of this Act is to establish an appropriate regulatory framework for the delivery of quality services to residents of registrable boarding houses, and for the promotion and protection of the wellbeing of such residents, by: (a) providing for a registration system for registrable boarding houses, and (b) providing for certain occupancy principles to be observed with respect to the provision of accommodation to residents of registrable boarding houses and for appropriate mechanisms for the enforcement of those principles, and (c) providing for the licensing and regulation of assisted boarding houses and their staff (including providing for service and accommodation standards at such boarding houses), and (d) promoting the sustainability of, and continuous improvements in, the provision of services at registrable boarding houses.
2. Part 2 makes provision for the Registration of boarding houses. It provides a Register of Boarding Houses to be kept, and for proprietors to notify specified particulars to the Commissioner of Fair Trading of all registerable boarding houses (see the definition in s 5). Star Court is a registerable boarding house.
3. Proprietors is defined in s 4 to mean: proprietor, in relation to premises, means: (a) in the case of premises that are leased - a tenant or sub-tenant who is entitled to immediate possession of the premises, or (b) in any other case - an owner of the premises.
4. Section 15 contains evidential provision relating to the Register. It provides: (1) The Register is evidence of any particulars or information recorded in it. (2) A certificate signed or purporting to be signed by the Commissioner, or an employee of the Department of Finance, Services and Innovation authorised in writing by the Commissioner, and stating: (a) that the premises named in the certificate were or were not registered at a specified time, or (b) that the premises named in the certificate were or were not registered as a general or regulated assisted boarding house at a specified time, or (c) any other particulars or information recorded in the Register at a specified time, is admissible in any legal proceedings and is evidence of the matters stated in the certificate.
5. Part 3 is concerned with occupancy agreements and principles applicable to registerable boarding houses.
6. Section 27 is an interpretive provisions which contains the following definitions that are germane to this case: (1) In this Part and Schedule 1: occupancy agreement, in relation to a registrable boarding house, means a written or unwritten agreement: (a) that is between a proprietor of the boarding house (or a person acting on behalf of the proprietor) and a resident of the house (or a person acting as an authorised representative of the resident), and (b) under which the resident is granted the right to occupy, for a fee or reward, one or more rooms in the boarding house as a resident of the house, but does not include a rental agreement between a proprietor and resident of a registrable boarding house (or any persons acting on their behalf). occupancy fee means an amount payable by or for a resident of a registrable boarding house for the right to occupy one or more rooms in the boarding house as a resident of the house during the term of an occupancy agreement. rental agreement means: (a) a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010, or (b) a lease to which the Landlord and Tenant (Amendment) Act 1948 applies.
7. Section 30 makes provision with respect to occupancy principles. It provides: (1) The occupancy principles in relation to registrable boarding houses are the principles set out in Schedule 1. (2) The occupancy principles apply for the purposes of this Division only in relation to residents of registrable boarding houses under occupancy agreements. Note - The definition of occupancy agreement in section 27 (1) excludes any rental agreement between a proprietor and resident of a registrable boarding house (or any persons acting on their behalf). Accordingly, the occupancy principles do not apply in relation to a person who is entitled to reside in a registrable boarding house under a rental agreement. (3) The regulations may make provision for or with respect to: (a) what constitutes, or what does not constitute, compliance with the occupancy principles for the purposes of this Part, and (b) the issuing of guidelines for that purpose.
8. There are 12 occupancy principles set out in Schedule 1, the first five of which provide: 1 State of premises A resident is entitled to live in premises that are: (a) reasonably clean, and (b) in a reasonable state of repair, and (c) reasonably secure. 2 Rules of registrable boarding house A resident is entitled to know the rules of the registrable boarding house before moving into the boarding house. 3 Penalties for breaches of agreement or house rules prohibited A resident may not be required to pay a penalty for a breach of the occupancy agreement or the rules of the registrable boarding house. 4 Quiet enjoyment of premises A resident is entitled to quiet enjoyment of the premises. 5 Inspections and repairs A proprietor is entitled to enter the premises at a reasonable time on reasonable grounds to carry out inspections or repairs and for other reasonable purposes.
9. Occupancy principle 8 is concerned with security deposits which are not to exceed two weeks occupancy fee.

Consideration

1. It can be seen that there are fine distinctions between what constitutes a residential tenancy agreement under the RTA and an occupancy agreement under the BHA. What is clear from the definition of occupancy agreement is that that it does not include a residential tenancy agreement within the meaning of the RTA. Whether an agreement falls within either of those definitions is matter of judgement in the light of the circumstances, which includes the terms of the agreement. While the conclusion as to which applies is one of law, it may well involve questions of fact that have to be decided before a legal conclusion can be reached.
2. In this case the Appeal Panel considers that there is no error of law in the Tribunal's conclusion that the agreement between the appellant and Mr Jung is an occupancy agreement.
3. When the nature of the agreements, the nature of premises which are the subject of the agreements, the absence of a right to exclusive possession, the amount and frequency of rent payable, the amount of the security deposit, and the shared nature of bathroom and toilet facilities (and of their cleaning) are considered, we agree that the weight of applicable criteria points to the agreement being an occupancy agreement. We are reinforced in that conclusion (as was the Tribunal) by the fact that the first six months of the appellant's occupancy under was under an unwritten agreement. This resulted in a set of circumstances in which s 10 provides that the appellant could not be treated as a tenant under the RTA.
4. The agreement was clearly an unwritten occupancy agreement as defined in s 27 of the BHA.
5. Further, while in May 2021 the appellant and Mr Jung entered into a written agreement, nothing about the arrangement between them concerning the appellant's occupancy of the premises changed. The situation was as it was since she first moved in under an occupancy agreement. The terms and features of the new agreement were consistent with a continuing occupancy agreement.
6. The Tribunal was correct to treat the application as one to which its jurisdiction under the BHA applied.

Quiet enjoyment

1. In her submissions on appeal the appellant has assumed that the RTA applies. We have found this not to be the case as the agreement is one under the BHA.
2. The Tribunal identified the appellant's complaints as alleging breaches of the following occupancy principles: 13 There (sic) relevant Occupancy Principles are: (1) Occupancy Principle 1 which provides that a resident is entitled to live in premises that are, inter alia, reasonably secure; and (2) Occupancy Principle 4 which provides that a resident is entitled to quiet enjoyment of the premises.
3. And the appellant submitted that: Quiet enjoyment is "peace, comfort and privacy"; freedom from interruptions. Harassment is ongoing pattern of behaviour, single act or verbal abuse. Stalking includes following a person about 'intending' tenant to cause fear or physical or mental harm. Tribunal wrongly asked the question: were there verbal or physical threats to determinative breaches present?
4. What the Tribunal actually found was: 68 Having considered all of the evidence, including viewing the videos, I do not find that Occupancy Principles 1 and 4 have been breached by Mr Jung to the extent that the Premises were not secure or that the applicant's quiet enjoyment was breached. I could detect no verbal or physical threat from the videos. There is no police report attesting to any stalking or harassment of the applicant by [the "Old Man"]. I accept the evidence of the five other occupants that [the "Old Man"] was a good and helpful resident. I accept the evidence of Mr Jung that [the "Old Man"] was not threatening to the applicant. 69 Given I have found no evidence of harassment and stalking, it follows that I find there has been no failure by Mr Jung to ensure that [the "Old Man"] did not interfere with the applicant's reasonable peace, comfort or privacy in her use of the Premises.
5. It can be seen that the Tribunal was satisfied that there was no breach of the appellant's quiet enjoyment and that the premises were reasonably secure as a matter of fact. As already noted, the appellant seeks leave to challenge those findings on the merits.
6. The BHA does not contain provisions such as s 50(2) and (3) of the RTA which cast a statutory obligation on a proprietor of a registerable boarding house to take all reasonable steps to ensure a resident's peace, comfort and privacy is not interfered with by either the proprietor or other residents. The Tribunal adopted that language in its consideration of the appellant's claim, but nonetheless found no breach of her quiet enjoyment. Occupancy Principle 4 simply provides that a resident is entitled to quiet enjoyment of the premises. In the absence of provisions akin to s 50(2) and (3) of the RTA, quiet possession for the purposes of Occupancy Principle 4 must be construed in the context of the BHA and the nature of the occupancy.
7. The quiet enjoyment that the appellant is entitled to is necessarily modified by: 1. the nature of the boarding house itself and the fact that bathroom and laundry facilities are shared among residents, along with other common property; 2. Occupancy Principle 5, which allows a proprietor to enter premises (including the appellant's room) at a reasonable time for the purpose of undertaking repairs or other reasonable purposes. 3. the terms of the occupancy agreement, which includes terms aimed at ensuring harmony among residents of the boarding house and allocating responsibility for the cleaning of the common areas and bathroom. These necessarily envisage a degree of contact among residents.
8. The degree of quiet enjoyment and of interference one can reasonably expect from other residents in a boarding house context necessarily differs from that when living in separate dwellings. So too does the level of contact and interference one can reasonably expect from fellow residents in one's own room in a boarding house and in the common areas. A boarding house proprietor's potential liability for the acts of one resident interfering with the quiet possession of another resident, must necessarily be considered in the context of the boarding house concerned.
9. The appellant's submissions are based on the expectation that that the law developed concerning a landlord's liability for the conduct of fellow tenants under s 50 of the RTA, or a similar provisions applies. It does not.
10. The appellant submits that the Tribunal applied the wrong test when it found that it could not detect any verbal or physical threats from the videos. Whether or not the "Old Man" made physical or verbal threats was relevant to the Tribunal's assessment of whether he harassed or stalked the appellant and thereby interfered with her quiet enjoyment, as she claimed. The test propounded by the appellant in her submissions is not that which applies under the BHA.
11. The suggestion by the appellant that a single act may constitute harassment is rejected. The Macquarie Dictionary Online defines harass thus: verb (t) 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment.
12. We are satisfied that, based on its findings, the Tribunal made no error in finding no breach of the appellant's quiet enjoyment of the premises.

Evidence of the "Old Man's" reputation

1. The appellant argues that the statements from fellow residents of the boarding house attesting to the "Old Man's" "kind and friendly" nature were irrelevant and should not have been taken into account by the Tribunal.
2. It needs to be remembered that the "Old Man" was not a party to the proceedings before the Tribunal. His behaviour and conduct in the boarding house was nonetheless central to the claims made by the appellant that the "Old Man's" behaviour had disturbed her quiet enjoyment and that the proprietor had failed to do anything to control it.
3. It is apparent from the Tribunal's reasons for decision that the statements from fellow residents were taken into account in concluding that the "Old Man" had not disturbed the appellant's quiet enjoyment. It is also apparent that those statements were not the major determining factor in reaching that conclusion, but that the Tribunal considered that they supported the Tribunal's findings based on the appellant's own videos and the absence of police reports evidencing stalking or harassment.
4. The statements from fellow residents are not among the material that the appellant has placed before us. Based on the Tribunal's description of them, and given that a central issue in the proceedings was the "Old Man's" behaviour in the boarding house, we reject the contention that the observations of fellow residents in a closely confined boarding house were irrelevant to the issues before the Tribunal and were not logically probative. The statements supported but were not the major factors that led to the Tribunal's conclusion. No one else living in the boarding house verified the conduct complained of, but, to the contrary, their observations and experience of the "Old Man" in the boarding house environment were at odds with the appellant's claims.

The dismissal of the appellant's case against SJ

1. A search of the Register of Registrable Boarding Houses relied on by the appellant before the Tribunal shows SJ as the proprietor of the boarding house, not Mr Jung. The appellant submits that the Tribunal should not have dismissed her claim against SJ because SJ was jointly liable with Mr Jung for any compensation she recovered for breach of her quiet enjoyment of the premises. In doing so she relied on the definition of proprietor in section 4. That definition provides that in the case of premises that are leased - which the Tribunal was satisfied was the case - then the tenant who is entitled to immediate possession of the premises (Mr Jung) is the proprietor, or, in any other case, the owner is the proprietor.
2. In the context of this case where Mr Jung leased the boarding house from SJ under a commercial lease, the definition provides that Mr Jung was the proprietor. The definition does not include the owner as a proprietor in those circumstances.
3. Section 9 of the BHA requires proprietors to notify the Commissioner of specified information for inclusion in the Register - including their personal details - within 28 days of becoming a proprietor. The penalty for not doing so is a fine. It would appear that information concerning Mr Jung becoming proprietor of the boarding house had not reached the Register.
4. Section 15(c) (quoted at par 35 above) provides that a certificate setting out particulars of information recorded in the Register is admissible as evidence of "the matters stated in the certificate." It is important to note that a certificate is evidence, but not conclusive evidence, of the matters stated in it. Insofar as the appellant relied on the certificate she produced to the Tribunal, to show that SJ was the proprietor, that evidence was a rebuttable by other evidence, such as the commercial lease, which showed that SJ had leased the boarding house to Mr Jung. In this case we can see no error in the Tribunal's conclusion that SJ was not a proprietor of the boarding house and the consequential dismissal of her application against SJ.

Was the decision against the weight of the evidence?

1. In addition to the matters outlined above the appellant argued that the Tribunal's conclusions with respect to the video and her complaints to Police about the "Old Man" were wrong and contrary to the evidence.
2. We have watched all the videos relied on by the appellant and viewed by the Tribunal. We can find no error in the Tribunal's conclusions that there is no evidence of the "Old Man" threatening the appellant or disturbing her quiet enjoyment. Indeed, the "Old Man" does not appear in every video. In one, taken from the laundry, a figure can be seen walking away. Others are taken from the stairs looking down into the ground floor hallways and out into the street. They do not show anyone. In one, a male figure notices that he is being filmed by the appellant standing on the stairs connecting the levels while he walks along the ground floor corridor. The male figure swears and addresses the appellant as a "crazy woman". Three videos, obviously taken surreptitiously through an open window, all on the same day in June 2020, show a figure working in the garden on the same side of the building as the appellant's room with a hose and some sort of tool. Occasionally a male voice can be heard. It is not obviously directed to the appellant. The conclusion reached by the Tribunal was clearly open to it on the basis of the video evidence.
3. The appellant also relies on a notebook entry from a Police notebook dated 1 June 2020. It records that the appellant made a complaint that she was being stalked and followed and that she had documented this. She argues that this is evidence of stalking and harassment by the "Old Man". The Tribunal found that this was not the case, correctly noting that there was no Police evidence "attesting to any stalking harassment." This conclusion was clearly open to the Tribunal on the evidence before it.
4. We are not persuaded that the decision was against the weight of the evidence.

Was the decision not fair and equitable?

1. The appellant relies on a combination of all matters related and discussed above to argue that the decision made by the Tribunal was not fair and equitable.
2. In our view this is really an expression of the appellant's unhappiness that her claims were dismissed. In our view the conclusions of fact reached by the Tribunal were reasonably open to it on the evidence. The member applied the correct law and dismissed the appellant's claim in circumstances where she had not demonstrated a breach of the occupancy principles providing that she has quiet enjoyment of the Premises and for them to be reasonably secure. The appellant has not identified an arguable injustice.

Conclusion

1. As a result the Appeal Panel makes the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2022