This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 NSW (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 5 November 2020 (Decision).
The application was brought to the Tribunal by the appellant as the tenant under a residential tenancy agreement dated 20 October 2010 of premises at Ambarvale NSW (Agreement), against the respondents as the landlords under the Agreement.
In her application lodged with the Tribunal on 14 September 2020, the appellant as tenant sought orders under the Residential Tenancies Act 2010 NSW (RT Act); specifically:
1. the payment to the tenant of a portion ($320.00) of the rental bond amount ($1,280.00) - see s 175 of the RT Act; and
2. the payment to the tenant of compensation for breach of the Agreement by the landlords, which was expressed in the application as compensation by way of "back payment of rent" in respect of "maintenance not carried out and not having full use of premises and services"- see s 187(1)(d) and s 190 of the RT Act.
As regards the tenant's claim on the rental bond, the Tribunal ordered payment to the respondents as landlords of $1,023.50 out of the rental bond amount, with the balance payable to the tenant - see Decision, orders 1 and 4.
The Tribunal allowed some only of the landlords' claims for end of tenancy compensation, as follows:
Final water usage owing $105.00;
Compensation for damage to vanity $242.50;
Replace broken blind tracks $450.00;
Replace damaged power point $105.00; and
Plumbing repairs $121.00.
The order made in respect of compensation for damage to vanity of $242.50 represented a 50% reduction on the landlords' claim of $485.00.
The respondents' other claims referred to as "for compensation for tenant vacating charges", and consisting of carpet cleaning, flea spray, removal of weeds/lawn maintenance and replacement of broken tiles in the bathroom, were dismissed by the Tribunal - see Decision, order 2.
The appellant's claims for compensation against the respondents were dismissed - see Decision, order 3. The Tribunal gave written reasons for order 3, as follows:
1. The claims are well out of time and the Tribunal was not satisfied that there was any reasonable explanation for the delay in the tenant lodging the application. The Tribunal was not satisfied that time should be extended for the application to be made.
In our opinion, for the reasons set out below, the appeal must be dismissed. The appellant has not demonstrated any error in the Decision. Insofar as leave to appeal is sought, this is declined as we are not persuaded that the appellant has suffered a substantial miscarriage of justice.
[2]
Background
The appellant as tenant occupied the premises under the Agreement for a period just short of 10 years, vacating the premises on 28 August 2020.
The rent under the Agreement was initially $320.00 per week. At the end of the Agreement the rent paid by the tenant to the landlords was $380.00 per week.
The tenant's request in the application lodged on 14 September 2020 was for a return of a portion ($320.00) of the bond amount of $1,280.00. This is explained by the fact that the tenant paid $320.00 to the Rental Bond Board on or about the date she entered into the Agreement. The balance ($960.00) of the bond amount was paid in by NSW Land and Housing Corporation.
The amount of compensation sought by the appellant as the tenant in the proceeding at first instance was not specified in the application lodged on 14 September 2020. The tenant's case was that the landlords had breached the Agreement by not completing repairs and maintenance of the premises, including a hole in the wall, a hole in the roof and a bedroom fan not working. These issues had been reported to the landlords' agent as early as November 2018.
[3]
Scope and nature of internal appeals
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.
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 including that there was a failure to afford procedural fairness.
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 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).
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.
Therefore, obtaining leave to appeal is a two-stage process. At the first stage the tenant as the appellant must persuade us that she may have suffered a substantial miscarriage of justice under clause 12 (1) of Schedule 4, because of one or more of the matters referred to in her grounds of appeal. Should the tenant persuade us that she may have suffered a substantial miscarriage of justice she must then, at the second stage, persuade us that we should exercise our discretion to grant leave to appeal on one or more of those grounds
As to the position of self-represented litigants in appeals, 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.
[4]
Submissions and evidence
In deciding the appeal, we have had regard to the following:
The Notice of Appeal lodged on 10 November 2020;
An Application for Stay of Original Decision Pending Appeal (lodged with the Notice of Appeal);
The Reply to Appeal lodged on 25 November 2020;
The appellant's written submissions and supporting documents (including photocopies of photographs) received by the Appeal Panel Registry on 21 December 2020;
The respondents' written submissions including Statements by Agent and Landlord, Original Hearing Documents and Reply to Appeal Documents, received by the Appeal Panel Registry on 19 January 2021;
The Appeal Panel orders and directions of 17 November 2020, 30 November 2020and 16 December 2020;
The application in the proceedings at first instance lodged on 14 September 2020; and
The order and reasons for the Decision of 5 November 2020.
[5]
Notice of Appeal
The Notice of Appeal was lodged on 10 November 2020 which is within the 14 day period prescribed in r 25(3) of the Civil and Administrative Tribunal Rules 2014 NSW.
We are satisfied that the appeal was brought within time.
In her Notice of Appeal and subsequent submissions the appellant made statements as to why she challenged the Tribunal's orders in respect of the water usage account, the power point, the plumbing invoice, the blinds' tracks and the tenant's claim for compensation. The appellant did not challenge the order in respect of compensation for damage to the vanity ($242.50). However, the appellant did not articulate clear grounds of appeal.
In respect of the tenant's claim for compensation, the Notice of Appeal stated:
The Tribunal Member did not allow me ample time to communicate all of my claim for compensation in regards to outstanding repairs/maintenance. He said initially we had 15 minutes and to me I felt rushed by the entire process. He and the agent said that it was me stalling by making the claim. The fact remains I was paying for a fan I couldn't use, an unusable power point, and had been inconvenienced (and) not had use of other parts of the home.
The Application for Stay of Original Decision Pending Appeal further stated:
If pressed for time (the Tribunal Member) should have adjourned the hearing to give me a fair opportunity to cover all my points.
In respect of the landlords' claims on the rental bond amount, for the four (4) challenged items, the notice of appeal stated that the Decision made was unfair as to calculation of the water usage amount, and in respect of the other challenged items, that the Tribunal Member did not take into account fair wear and tear and depreciation.
We discern, therefore, the grounds of appeal to be that the appellant was denied procedural fairness, a question of law, and that the Decision was otherwise not fair and equitable and/or was against the weight of the evidence, for which leave is required.
[6]
Consideration
As to the issue of whether the appellant was deprived of the opportunity to reasonably present her case to the Tribunal, s 38(2) of the NCAT Act expressly establishes that the Tribunal must observe the rules of natural justice. That subsection also provides that the Tribunal: "is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
General law principles of procedural fairness which encompass the natural justice hearing rule are set out in s 38(5) of the NCAT Act, which relevantly provides:
"The Tribunal is to take such measures as are reasonably practicable:
…
(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings."
The natural justice hearing rule, as s 38(5) of the NCAT Act provides, is not an absolute rule. The Tribunal is only required to take "reasonably practicable" measures to ensure that a party has a "reasonable opportunity" to be heard.
Also relevant is proportionality, as stated in s 36(4) of the NCAT Act:
In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
At the Tribunal hearing on 5 November 2020, there was a fundamental issue as to whether the tenant had brought her application for relief under s 187(1)(d) and s 190 of the RT Act within time. The alleged breaches of the landlords' obligations under the Agreement and under the RT Act (in s 63 and s 65) being the obligations to provide and maintain the residential premises in a reasonable state of repair, dated back to November 2018. Accordingly, subject to any extension of time under s 41 of the NCAT Act, the tenant's claim for compensation arising from the alleged breaches was time barred. The prescribed period for the tenant's claim for compensation was within three (3) months after the tenant becomes aware of any breaches: see cl 39((9) of the Residential Tenancies Regulation 2019 NSW (NCAT Regulation).
On the available evidence for the hearing at first instance, it was open to the Tribunal to find that the tenant's application for relief under s 190 of the RT Act was out of time.
Having made an application out of time, the tenant needed to persuade the Tribunal that in the exercise of its discretion under s 41 of the NCAT the Tribunal should extend time for the making of the application for compensation. Matters relevant to the exercise of the discretion under s 41 include the reasons for the delay, prejudice to the applicant if the extension is not granted, prejudice to the respondent if an extension is granted and the applicant's prospects of success if leave is granted.
We do not consider that the tenant was denied a reasonable opportunity to present her case on 5 November 2020 whether for an adjournment to allow her further time to cover all of her points, or to support a case for an extension of time. We are satisfied that the Tribunal Member afforded the tenant with an opportunity to explain why the application had not been brought earlier. Relevantly, in the tenant's written submissions for the appeal, the tenant confirmed as her reasons for the delay in bringing the application:
In terms of seeking compensation earlier (it) was an added stress that I was not wanting to go through at the time due to other personal factors I was dealing with. But since the landlord has decided to claim my bond unreasonably then I have no choice but to submit a counter claim.
The Tribunal found that there was no reasonable explanation for the delay in lodging an application seeking an order for compensation. We do not consider that the Tribunal erred in any respects in refusing to exercise its discretion to extend time.
We turn now to the grounds for which leave to appeal is being sought.
In our view, the findings made by the Member to allow the landlords' claims for compensation and to make an order in respect of the bond amount were reasonably available on the evidence put forward by both parties at the hearing. The Member did not allow four (4) of the landlords' claims which meant that part of the bond amount was not paid to the landlords. The landlords as respondents to this appeal do not seek to disturb the Tribunal's findings as to their claims for compensation at the end of the tenancy.
The tenant alleged that the water usage amount allowed ($105.00) was not a fair calculation. We disagree. We are satisfied that the Member had regard to the principle of proportionality (NCAT Act, s 36(4)) and allowed a reduction on the amount claimed by the landlords of $1.00 per day for the five (5) days the tenant was not in the premises. In this regard, the landlords had claimed $110.16 relying upon a water usage invoice which included the period from 28 August 2020 (i.e. when the tenant vacated) to 3 September 2020 (i.e. when the water meter was read). We find that it was fair and reasonable for the Member to apply an average of $1.296 per day (i.e. based upon the usage of kilolitres in the invoice) over an 81 day period for a total usage of $104.976 rounded up to $105.00.
The claim for the cost of the plumber ($121.00) related to clearing a sink blockage. The Member awarded that cost as compensation to the landlords at the end of the tenancy because he was satisfied that the blockage occurred due to a build-up of hair for which the tenant was responsible and that it was reasonable in those circumstances for the tenant to bear the plumber's cost of fixing the obstruction to the drainage flow. These findings were open to the Member on the available evidence for the hearing on 5 November 2020. No claim or award of damages was made by the Tribunal on account of a broken waste plug.
As to the cost of replacing the damaged power point ($105.00), the Member found that the power point had not been broken due to age, but had been accidently damaged by the tenant. We are satisfied the Tribunal Member's finding that there was damage to the power point beyond fair wear and tear, was fair and equitable and that it was not against the weight of the evidence.
In respect of the cost of the broken blind tracks, we are satisfied that the Member did not err in his finding that the cost ($450.00) was the tenant's responsibility because the tracks had been damaged by the tenant's cleaners. The Member was not required to address any issue of depreciation or fair wear and tear. A finding that the landlords would not have been required to replace the tracks if the tenant's cleaners had not broken them was entirely open to the Tribunal Member on the available evidence.
We are satisfied that the findings of the Tribunal at first instance were not against the weight of the evidence, nor were they not fair and equitable, and there is no significant new evidence which was not reasonably available at the time of the hearing on 5 November 2020. In all the circumstances, we are unable to find that the tenant has suffered a substantial miscarriage of justice. There was no real possibility or fair chance of a different result on the state of the evidence before the Tribunal.
Our conclusion is that none of the grounds of appeal have been established. Leave to appeal on a ground other than in relation to an error of law is therefore refused and the appeal is dismissed.
[7]
Orders
We make the following orders:
1. Leave to appeal refused.
2. Appeal dismissed.
[8]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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
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Decision last updated: 23 April 2021