Barnes v Barot

Tribunal's Reasons

1. The factual findings and reasons of the Tribunal are summarised as follows:

Landlord's Claim

1. The tenant had returned the property at the end of the tenancy in a significantly unclean and damaged condition. The Tribunal referred to the photographic evidence provided by the landlord and the ingoing and outgoing inspection reports.
2. Other than the claim by the landlord for damages of $700 for the cost of replacing mirrored doors of a wardrobe, the Tribunal was satisfied that the evidence of the landlord in respect of invoices and quotes should be accepted as the reasonable cost of cleaning and repairing the premises.

Tenant's Claim

1. The Tribunal was not satisfied any works performed to the property for which the tenant had paid for were urgent repairs within s 65 (4) of the RT Act. Consequently, the landlord was not obliged to refund the tenant for expenses incurred by the tenant.
2. The items left of the premises at the end of the tenancy (including mattress and refrigerator) were in poor condition. The landlord had given a disposal notice under the Uncollected Goods Act 1995 (NSW) before disposing of the items to the tenant's father (who was his carer and next of kin). The landlord had complied with its obligations under the Uncollected Goods Act 1995 (NSW) and was entitled to dispose of the items. Further, there was no evidence by the tenant to identify the value of the items or the replacement cost.
3. The tenant had only provided "limited evidence" of what was the alleged breach of the landlord of s 63 of the RT Act. The tenant's claim for compensation under ss 187 and 190 of the RT Act for loss of amenity of the premises and general damages due to the landlord failing to keep the premises in a reasonable state of repair was significantly out of time, with the tenant being aware of the alleged breach in 2020. The relevant limitation period to bring the claim was 3 months from being aware of the breach (Reg. 39 (9) Residential Tenancies Regulation 2019 (NSW)). There was no basis established to extend time under s 41 of the NCAT Act.

GROUNDS OF APPEAL

1. The tenant filed the appeals on 2 November 2022. The appeals were filed within the applicable time period under Reg. 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) (which prescribes a time period of 14 days from the date of first being aware of the decision in appeals involving the RT Act, subject to extension under s 41 of the NCAT Act).

DOCUMENTS AND SUBMISSIONS ON APPEAL

1. Both parties filed and served documents in the appeal. The tenant filed a number of copious 'appeal bundles' that contained documents that were before the Tribunal at first instance; the transcript of the hearing and the decision; submissions; and fresh evidence the tenant sought to rely upon.
2. The landlord provided a copy of the documents it relied upon before the Tribunal. It did not provide any extensive written submissions, other than asserting that the decision did not contain any error and the appeal should fail.
3. The fresh evidence the tenant sought to rely upon was contained in a green folder containing 96 pages. The relevant documentary evidence involved invoices of items the tenant has purchased between August 2017 and September 2021; a delivery notice dated 20 August 2017; and bank records.
4. For the Appeal Panel to admit fresh evidence in the appeal under cl. 12 of sch 4 of the NCAT Act, it must be satisfied that the evidence is significant new evidence that was not reasonably available at the date of the hearing. Applicable principles are set out in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [19]-[26].
5. All of the documents sought to be relied upon by the tenant were documents that were reasonably available prior to the date of the hearing on 21 October 2021 and leave is refused to rely upon those documents.
6. The written submissions and grounds of appeal set out by the tenant's father in the written materials are prolix and repetitive. Some of the grounds of appeal relate to the professional conduct of the agent of the landlord and are matters that do not fall within the ambit of any error of law in the decision, or the conduct of the hearing by the Tribunal Member; nor are they matters that fall within the ambit of cl. 12 of sch. 4 of the NCAT Act. We do not propose to set out those matters, which are extraneous to the proper consideration and disposition of the appeal.
7. The grounds of appeal put forward by the tenant are summarised as follows: 1. Inadequate reasons. 2. Denial of procedural fairness. 3. The Member conducted a conciliation and then heard the proceedings. 4. The decisions in both the landlord's claim and the tenant's claim was not fair and equitable; or was against the weight of evidence.
8. The first three issues involve purported errors on a question of law. The last issue requires leave to appeal being granted under cl. 12 of sch 4 of the NCAT Act.

Scope and Nature of Appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80 (2) of the NCAT Act.
2. Internal appeals involve consideration of whether there has been any error of law; or any error other than an error of law sufficient to grant leave to appeal under Cl. 12 of Sch. 4 of the NCAT Act.
3. An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 (Ryan v BKB) at [10].
4. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) 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.
5. 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 sch. 4 of the NCAT 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).
6. 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 Sch. 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.
7. Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of Cl. 12 (1) of Sch. 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80 (2) (b) of the NCAT Act.
8. 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; (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. Even if the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80 (2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (Pholi v Wearne [2014] NSWCATAP 78 at [32]).
10. In respect of a self-represented non legally trained appellant, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised (Prendergast at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13]).

Inadequate Reasons

1. The principles applicable to inadequate reasons were summarised by the Appeal Panel in Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at [58] (adopting the principles set out by Bell P in NSW Land and Housing Corporation v Orr [2019] NSWCA 231) at [58] as follows: The NSW Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (per Bell P) helpfully set out the principles relevant to adequacy of reasons at [66] - [77]. They are summarised as follows: (1) The function of the appeal court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard. (2) 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 or tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided. (3) As to 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 is appropriate than may be the case when an appellate court is hearing an appeal from another court. (4) Even in the less formal setting of a tribunal there are certain minimum characteristics that a Tribunal's reasons must possess. These are supplied, in relation to the Tribunal, by s 62(3) of the NCAT Act which, 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. (5) At least a basic explanation of the fundamental reasons which led the Tribunal to its conclusion is necessary. (6) It is not necessary for a judge to detail each factor which he or she has found to be relevant or irrelevant. 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. (7) Reasons need not be elaborate. (8) Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. (9) The court should not read passages from the reasons for decision in isolation from others to which they may be related. (10) The reasons must be read fairly and as a whole. (11) The reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error. (12) 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.
2. Having viewed the transcript of the hearing, we accept that the reasons were expressed economically. That is, to an extent, understandable (and commendable) in the context of the workload of the Consumer and Commercial Division of the Tribunal; the relatively narrow compass of the factual and legal issues for consideration; and the benefit to the parties of delivering a decision and reasons efficiently, even if this means the reasons do not cover every factual or legal issue in copious detail.
3. We are satisfied the reasons are sufficient to meet the minimum standard of adequate reasons. They sufficiently set out the evidence; the factual findings and the legal principles applied.
4. Further, having viewed the documentary evidence the parties were relying upon at first instance, there is nothing illogical or irrational or clearly unreasonable about the findings. The photographic evidence of the premises taken at the outgoing inspection considered with the evidence contained in the ingoing and outgoing inspection reports clearly showed the premises were in a very significantly unclean and damaged condition. It was clearly open to the Tribunal to find that the items left by the tenant at the premises were in poor condition and many of the items were rubbish that required removal.
5. The landlord had a compelling case for damages for breach of the tenant's obligations under s 51 (3) of the RT Act. Further, the tenant did not have a strong case regarding its claims against the landlord, and the Tribunal's reasons adequately explain why the tenant's claim was dismissed.

Denial of Procedural Fairness

1. Procedural fairness is not abstract. As Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 said at [37] in respect of procedural fairness: ...Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
2. Basten JA addressed the same issue in Italiano v Carbone & Ors [2005] NSWCA 177 at [88]: An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment," as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]: "A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." at [37].
3. Although the tenant disagrees with the decision, that is not enough to constitute a denial of procedural fairness.
4. Having reviewed the transcript of the hearing we are not satisfied that there was any denial of procedural fairness in the manner the hearing was conducted.

Conciliation Then Member Conducting a Hearing

1. The only specific ground of denial of procedural fairness clearly identified was that the Member conciliated between the parties, and then heard the proceedings.
2. A Tribunal Member who conducts a conciliation (where parties make offers and concessions) and then goes on to hear and determine the dispute may have denied procedural fairness if the Member did not clearly delineate the difference between conciliation and hearing and obtain the prior consent of the parties to firstly conciliate, and then if the conciliation is unsuccessful, hear the proceedings (Prenc v Stojcevski [2016] NSWCATAP 244 at [79]-[87]).
3. However, having reviewed the transcript, we are not satisfied that the Tribunal Member denied procedural fairness to the tenant. The parties had a settlement discussion prior to the commencement of the hearing in the presence of the Member, with the Member identifying to the parties the benefits of resolving disputes. However, in our view, the Tribunal Member sufficiently delineated between the initial interaction where the parties were encouraged to resolve the dispute, and the formal hearing of the proceedings.
4. No denial of procedural fairness is established in the conduct of the hearing.

Leave to Appeal

1. The tenant submits that the decision was not fair and equitable and was against the weight of evidence such that the Tribunal should grant leave to appeal under cl. 12 of sch. 4 of the NCAT Act.
2. We do not accept this submission. A strongly held belief that the decision is wrong and the outcome should have been different is insufficient to grant leave to appeal, applying the principles set out in Collins v Urban. The tenant's submissions on this issue go no higher than a dissatisfied or aggrieved litigant seeking to re-argue the case they lost at first instance. As the Appeal Panel held in Ryan v BKB, that is not a ground to grant leave to appeal.

Conclusion

1. No error of law or error of a type of leave to appeal should be granted has been established.

ORDERS 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. Previous stay orders of the Appeal Panel are lifted immediately.

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: 20 July 2023