Biskupic v Allen - [2019] NSWCATAP 102 - NSWCATAP 2018 case summary — Zoe

NSWNSWCATAP

Biskupic v Allen

[2019] NSWCATAP 102

NCAT Appeal Panel|2018-05-10

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Source facts

Court

NCAT Appeal Panel

Decision date

2018-05-10

Source

Original judgment source is linked above.

Judgment (40 paragraphs)

[1]

REASONS FOR DECISION

In these proceedings and in the proceedings at first instance the appellant was a tenant of residential premises and the respondent was her landlord, represented at all times by real estate agents engaged to manage the letting of the residential premises.
In proceedings RT 17/51211 the respondent applied for orders terminating the residential tenancy agreement and for the appellant to pay unpaid rent.
In proceedings RT 17/47910 the appellant applied for various orders including a rent reduction and $12,000.00 compensation for alleged 'bullying' from the respondent's agent and for her inability to use the car park to the premises by reason of the swipe card not working and the time it took for it to be replaced.
On 1 March 2018 the Consumer and Commercial Division of the Tribunal made orders terminating the Residential Tenancy Agreement between the parties on the basis that the appellant had frequently failed to pay rent owing for the residential premises. The Tribunal Member gave possession to the respondent suspended until 12 March 2018. In addition an order was made that the appellant was to pay $12,032.56 to the respondent for rent from 16 November 2017 to 1 March 2018.
The orders made by the Tribunal on 1 March 2018 indicate that the appellant had lodged an application for compensation and rent reduction, and argued that she did not believe that she was liable to pay rent as the amount claimed by her would exceed the rent owing. The Tribunal Member found that the appellant's argument was misguided and found that the appellant was under an obligation pay rent under the residential tenancy agreement and under the Residential Tenancies Act 2010 and such obligation was independent of any claim that she might have had.
The effect of the Tribunal's orders was to grant the respondent the relief he sought and to dismiss the appellant's application. Thus the Tribunal's orders disposed of RT 17/47910 and RT 17/51211.

[4]

Leave to Appeal

The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled.
The statutory regime referred to above has been considered and explained by an Appeal Panel in Collins v Urban [2014] NSWCATAP 17. The statutory regime involves a two stage process. First, has the appellant satisfied the Appeal Panel that she may have suffered a substantial miscarriage of justice because the decision at first instance was not fair and equitable, or against the weight of evidence, or because new evidence has arisen which was not reasonably available at the hearing? Only if so satisfied, the Appeal Panel may proceed to the second stage to determine whether it should exercise its discretion to grant leave and that discretion should be exercised in accordance with well established principle.
The relevant passages in Collins v Urban as regards the first stage are at [76] - [79] (we omit references made to authorities): 'Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 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 para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. As to the particular grounds in cl 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" … (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. 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. 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 cl 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, 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 …
As regards the second stage the Appeal Panel in Collins v Urban concluded at [84(2)] that: '(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.'
The parties produced the following documents in connection with this appeal: 1. Appellant's Notice of Appeal; 2. Appellant's 37 page submissions to the Tribunal at first instance; 3. Samples of evidence before the Tribunal at first instance; 4. Submissions filed in support of Notice of Appeal as amended on multiple occasions; 5. Bundles of documents filed by the appellant in support of her appeal; 6. Reply to Appeal; 7. Respondent's submissions in opposition to the appeal; and 8. The respondent's evidence in the first instance proceedings.
The appellant stated at the hearing that documents in her folder from 19 December to the end of April 2018 were not before the Tribunal Member. In addition the appellant referred to documents relating to asbestos which were not before the Tribunal Member. We have not taken these documents into account in arriving at our findings and orders.
We have not had regard to annotations on photographs produced by the appellant in the documents referred to above, notably the bundles of documents filed by her in support of her appeal. The annotations were not before the Tribunal Member. The appellant has submitted that because the Tribunal at the directions hearing stage did not advise her that annotation of photographs would assist her case, there was a failure to afford her procedural fairness. We reject that submission. In our view neither s38(5)(a) nor s38(6)(a) of the CAT Act imposes such a requirement upon the Tribunal.

[5]

Errors of law

The first error of law alleged by the appellant is that she was denied procedural fairness. We will consider the matters raised by the appellant in her Grounds of Appeal and also the matters raised in her leave application under the heading 'Decision not fair and equitable' which when read go to issues of procedural fairness.
The appellant states that she was not given sufficient time to cross examine.
We have been provided with a transcript of the proceedings before the Tribunal Member. The transcript indicates that the appellant's case was heard first. At page 618 of the respondent's documents the transcript indicates that the appellant was invited to ask questions of the landlord's agent which she proceeded to do. The transcript indicates at page 623 that the Tribunal Member indicated to the appellant that the time allocated for the hearing was drawing to an end. She stated: 'Look, I've got four minutes to finish this. I'm starting another hearing shortly, so can you get to the point?'
At page 625 the appellant stated: 'So at the beginning of the hearing you said that I was going to be allowed rebuttal after this. So, I've asked my questions, but now I have a rebuttal.'
The appellant then proceeded to address the Tribunal Member with what we would describe as her closing submissions.
Based on the transcript of the hearing before the Tribunal Member on 1 March 2018, and the appellant's clear statement that she had asked her questions, we reject her ground of appeal that she was denied procedural fairness because she was not given sufficient time to cross examine.
The appellant has also stated that she was not given sufficient time 'to provide evidence that would contradict the evidence provided by the landlord's agent'. This ground of appeal was not developed by the appellant. The Tribunal Member's Reasons for Decision indicate that both parties had filed documents to support their respective cases. She stated at [3]: 'Both parties filed and served documentary evidence in accordance with the Tribunal's previous directions. Both parties also filed additional documents and agreed that they could be referred to at the hearing. I have had regard to this evidence in making this decision, together with oral submissions.'
We have not been referred to any material that the appellant was not permitted to rely upon at the hearing. In addition the Tribunal Member's reasons indicate that orders had previously been made allowing the parties to file all material that they intended to rely on at the hearing and that the parties had complied with those orders. In addition it appears that the parties had filed additional documents which they were permitted to rely upon at the hearing.
We find that the appellant has not established that she was not given sufficient time to provide evidence that would contradict the evidence provided by the landlord's agent. To the contrary, the evidence indicates that she was not restricted in relying on the documents that she had prepared for the hearing. For these reasons this ground of appeal is rejected.
As referred to at [12] the appellant contended that the Tribunal Member erred in law by making a ruling under s.60 of the CAT Act when she had not applied for costs, but had applied for compensation under s187(d) of the Residential Tenancies Act .
The appellant's application clearly stated that she was claiming compensation of the sum of $12,000.00 under s187(d) of the Residential Tenancies Act.
In her reasons for decision the Tribunal Member set out various provisions of the Residential Tenancies Act under the heading 'Relevant Law'. Section 187(d) of the Residential Tenancies Act was not included in this section. Section 60 of the CAT Act was included.
Paragraphs [15] - [23] of the Reasons dealt with the appellant's case for compensation and indicate that her case for compensation had not been successful because she had not established that the respondent was in breach of s52(1) or s63(1) of the Residential Tenancies Act. At [35] the Tribunal Member plainly stated that the appellant's compensation case had not succeeded.
At [30] - [36] of her reasons the Tribunal Member embarked upon a consideration of 'Costs' under that heading. In that section of her Reasons, the Tribunal member dealt with the appellant's claims for: 1. $4,365.00 for economic loss; 2. $6,049.00 for moving expenses; 3. $180.00 for locksmith services; and 4. $20.00 per day for 112 days for takeaway meals.
As her Reasons make plain, the Tribunal Member considered these claims under s60 of the CAT Act. In our view she was clearly mistaken in doing so. Section 60 of the CAT Act deals with the costs a party may incur in relation to the proceedings as s60(2) makes clear by stating, so far as is relevant: 'The Tribunal may award costs in relation to proceedings before it'
The costs or more accurately the expenses the appellant was claiming were alleged losses relating to the residential tenancy which the appellant alleged she sustained by reason of the respondent's breaches of the Residential Tenancy Agreement or the Residential Tenancies Act, or both. Section 187(d) of the Residential Tenancies Act gave the Tribunal Member the necessary jurisdiction to make a compensatory order in the event that the appellant was successful in establishing that she had sustained loss or damage by reason of the respondent's breaches of the Residential Tenancy Agreement or the Residential Tenancies Act, or both.
The appellant's case as stated in her application was in the main, based on s44(1)(b) of the Residential Tenancies Act. Financial relief was sought under s187(1)(d) of that Act. In our view by considering the appellant's compensation case under s60 of the CAT Act the Tribunal Member erred in law by identifying the wrong issue or asking herself the wrong question regarding the statutory basis of the appellant's claim. John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [15].
Accordingly we accept this ground of Appeal. For the reasons which follow, we have allowed the appellant's appeal as it relates to her claim for excessive rent pursuant to s44(1)(b) of the Residential Tenancies Act in relation to specific issues. We have remitted that claim for reconsideration by the Consumer and Commercial Division of the Tribunal. As a result there is no need to make a separate order to reflect the appellant's success on this ground of appeal.

[8]

Application for leave to appeal in RT 17/47910 on the basis that the decision was against the weight of evidence

The appellant has approached this appeal and her application for leave to appeal as an opportunity to re-run her case before us. As stated, it is neither permissible nor appropriate to allow that to occur as part of a case for leave to appeal based on the decision of the Tribunal being against the weight of evidence. In that regard we will only give consideration to whether the material findings of the Tribunal were against the weight of evidence.
Given the wide way in which the appellant presented her case at the hearing it is necessary in our view to bear in mind that the appellant's case at first instance was, in the main part, for an order that the rent payable was excessive due to the reduction or withdrawal of any goods, services or facilities provided with the residential premises. Such an order was based on s44(1)(b) of the Residential Tenancies Act .
An important part of the Tribunal decision dismissing the appellant's case for compensation and excessive rent was that the Tribunal Member at [19] stated that she did not 'believe that there is any need in this decision to deal with each item individually. Having considered the evidence from both parties, I am satisfied that that the following findings apply to all individual items of the tenant's claim.'
In our view in these proceedings, where there was extensive evidence and submissions before the Member, such an approach amounts to an error of law due to the Member's reasoning process being inadequate. In our view Getex Pty Limited v Reed Business Information Pty Limited and ors [2013] NSWSC 1161 supports that conclusion. In that case Bellew J stated at [71]: 'However, in a case where the documentary evidence was both voluminous and important, it was necessary for it to be dealt with in some satisfactory manner (see State Rail Authority (NSW) v Earthline Constructions Pty Limited (in liq) [1999] HCA 3; (1999) 73 ALJR 306 at [94] per Kirby J). It was not sufficient to make broad references to that evidence, and then make similarly broad conclusionary statements as to its effect (see Pollard (supra) at [64] per Ipp JA, citing Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; (2006) 66 NSWLR186 at [28]).'
The Tribunal Member's reasoning was contained in paragraphs [28] and [29] of her decision, namely: 'Most claims brought before the Tribunal under this section of the RT Act relate to situations where whole or parts of the premises have become unusable because the landlord has reduced or withdrawn goods, facilities or services. There is simply no evidence by the tenant to support this claim. Whilst it has been necessary during the tenancy for repairs to be carried out, such work was done with reasonable diligence. Any withdrawal of amenities or facilities attaching to the premises occurred as a result of the tenant's failure to respond to communications or allow access to the premises. Therefore any reduction or withdrawal of facilities has not been caused by the landlord, and does not warrant an order under this s44(1)(b). The tenant contends that the rent payable for the premises is excessive, but has not produced any evidence to support this claim. The landlord's agent has provided information in relation to comparative properties, which show that the rent for similar properties in the same area is higher than the rent payable for the subject premises. Further, the landlord's agent has produced a copy of the previous tenancy agreement for the premises, which showed that rent was payable at $5 per week more than current rent.' (Emphasis added)
The material facts found by the Tribunal Member in [51] above are: 1. There was no evidence by the appellant to support her claim that whole or parts of the premises had become unusable because the respondent had reduced or withdrawn goods, facilities or services; 2. Whilst it had been necessary during the tenancy for repairs to be carried out, such work was done with reasonable diligence; 3. Any withdrawal of amenities or facilities attaching to the premises occurred as a result of the appellant's failure to respond to communications or allow access to the premises; 4. any reduction or withdrawal of facilities had not been caused by the respondent; 5. The appellant had not produced any evidence to support her claim that the rent payable for the premises was excessive; and 6. The respondent's agent had produced evidence that showed that the rent was not excessive.
We will consider whether the Tribunal Member's findings as identified above were against the weight of evidence, as contended for by the applicant. A difficulty encountered by us was that although the appellant provided extensive submissions and supporting documents, they were, in the main, not cross referenced to the evidence. This led us to make the following orders on 15 May 2018: 'Within 14 days of the date of this order the appellant must file in the registry of the Appeal Panel and give a copy to the respondent, an aide memoir which refers by page number to all documents in her folder of documents in this appeal which support each of the items referred to in the Repair Register at page 514 of her folder of documents. Within 14 days of receipt of the document referred to in order 1 the respondent must file in the registry of the Appeal Panel and give a copy to the appellant, an aide memoir which refers by page number to all documents in his folder of documents in this appeal which support his position in connection with each of the items referred to in the appellant's Repair Register. Within 14 days of the date of this order the appellant must file in the registry of the Appeal Panel and give the respondent a copy of an affidavit or statutory declaration which explains the process by which she printed date and time details on the photographs at tab J of her folder of documents in this appeal.'
The parties complied with this order by providing submissions which were cross referenced to the documents filed in the appeal.
The facts in issue indicate that the appellant's complaints relate to the state of the premises and the respondent's alleged failure to repair and maintain the premises in a timely manner. In Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 an Appeal Panel stated at [123] - [124]: 'In Eliezer v Residential Tribunal and Ors [2001] NSWSC 1092 McClellan J considered what constituted goods, services and facilities in respect of a similar provision in the Residential Tenancies Act, 1987. His Honour said at [37]: With respect to s 47, I agree with the construction of the Residential Tribunal of the words "goods, services or facilities provided". In my opinion, s 47(1) is confined to the physical and other facilities, goods or services, provided within, or as part of, the tenanted property, and only if the landlord reduces or withdraws those facilities does an obligation arise. In circumstances where there has been a reduction in the quality of the amenity to be enjoyed in the tenanted premises by the actions of a third party, a complete stranger to the tenanted property, no breach of s 47(1) can occur. As to what constitutes a reduction, in our view this means the goods, services or facilities are of a qualitative or quantitative standard which is less than what a landlord is required to provide under a residential tenancy agreement. On the other hand, a withdrawal suggests there must be a removal or inability to use the particular goods, services or facilities. That is, the goods services or facilities or part of them are no longer available to a tenant.'
In our view the facts relating to these proceedings indicate that the appellant's case relates to a reduction of goods services and facilities, in the sense referred to above, namely that goods, services or facilities in the residential premises were of a qualitative standard which was less than what the respondent was required to provide under the residential tenancy agreement.

[9]

Was there a reduction or withdrawal of goods, facilities or services ?

The evidence that the appellant referred to in her 'aide memoir' served in accordance with our 15 May 2018 orders was in support of her submission that the following matters constituted a reduction or withdrawal of goods, facilities or services by the respondent: 1. Latch for balcony door; 2. kitchen ceiling leak; 3. kitchen ceiling water damage and mould; 4. water damage ceiling and wall near window; 5. non-working stove; 6. non-working oven; 7. kitchen sink leak; 8. kitchen tap leak; 9. mould on blinds; 10. bathroom sink runs slowly; 11. no kitchen sink plug; 12. shower seal - water leaks from shower; 13. PowerPoint in ensuite; 14. toilet roll holder ensuite; 15. main bathroom toilet leaks; 16. ensuite bathroom toilet leaks; 17. exhaust fan in ensuite does not work; 18. exhaust fan in main bathroom does not work; 19. floorboards lifting; 20. front door broken and not secure; 21. sliding door doesn't lock and falls of tracks; 22. light in bathroom/laundry falling out of ceiling; 23. light in kitchen, lounge and hallway; 24. ensuite bathroom sink run slowly; 25. Kitchen window doesn't open; 26. kitchen cupboard is damaged; 27. () pest and vermin issues; 28. () mould in apartment; 29. () mould and corrosion in bathroom fittings; 30. () latch outside front door; 31. () front door intercom; and 32. () swipe card for garage access.
While some of the items referred to by the appellant may be considered trivial, namely a toilet roll holder falling out of the wall, the evidence to which we have been referred in support of the above issues demonstrates that, contrary to the Tribunal Member's finding, there was ample evidence to support the appellant's case that there was a reduction or withdrawal of goods, facilities or services by the respondent. We consider this evidence in the following paragraphs.
We have referred to the parties documents provided to us in accordance with our orders dated 15 May 2018 which helpfully refer to the evidence in support of their competing contentions. There are however failures by the appellant to refer to evidence, and where that occurs the appellant's case is based on the content of her submissions.
We will deal with the discrete issues that the appellant has alleged in support of her case that there was a reduction or withdrawal of goods, services or facilities.

[12]

Ceiling repair

It is common ground that the kitchen ceiling leak required a section of the kitchen ceiling to be repaired. The evidence is that the plumber who attended to the repair of the leak did not include for plaster repairs or painting.
The evidence discloses that on 11 April 2017 the appellant informed the respondent's agent that the ceiling would need to be repaired after the permanent plumbing repair referred to above had been carried out. The respondent's submissions concede that a separate work order for this item was not raised by them until much later than 11 April 2017. The necessary work was carried out on 20 and 21 November 2017.
There are two separate periods of time to consider in connection with this issue. First, we find that there is evidence which suggests that the respondent's agent took no action in connection with this issue until 2 August 2017. In our view there was evidence before the Tribunal Member which supported a submission by the appellant, that by his failure to attend to the ceiling repair in the period between 11 April and 2 August 2017 there was a reduction or withdrawal of goods, services or facilities by the respondent.
Secondly, the evidence relating to the period 2 August 2017 to 20 and 21 November 2017 establishes that the repair to the ceiling was delayed by a number of factors some of which may, as found by the Tribunal Member, have related to the appellant's conduct which may have been a cause of the delay in the completion of the repair.
We conclude our consideration of this item by finding that there was evidence before the Tribunal Member to support a submission that the delay to the kitchen ceiling was a reduction in goods, services or facilities. The evidence that a separate work order was not raised for this work until 1 August 2017, despite the appellant raising the issue of ceiling repair on 11 April and 1 August 2017 together with the fact that the respondent does not assert that the appellant prevented access in the period before 1 August 2017, would support a submission that the appellant did not fail to respond to communications or allow access in connection with the ceiling repair in the period between 11 April and 2 August 2017.
We grant the appellant leave to appeal on this aspect of her claim.

[21]

Main bathroom toilet leaks

The appellant has referred us to an email from the respondent's agent dated 11 April 2017 which states that they will book a plumber for the plumbing issues noted by the appellant to be resolved. There was no specific reference to main bathroom toilet leaks in that email or the appellant's email of the same date which raised plumbing issues, among others.
The first specific piece of evidence that we have been referred to regarding toilets is an email from the respondent's agent dated 10 November 2017 enquiring what is wrong with the appellant's toilet. The appellant replied on 13 November 2017 stating that she had made earlier written complaints (which have not been referred to and so far as we can find, are not in evidence) and there was a conversation in July about the main bathroom toilet not working.
The appellant has also referred to evidence from the plumber to the respondent's agent on 13 November 2017 which stated that toilet problems were minor and that the toilets were 'flushing o.k.'
There is evidence from the plumber that the toilets being the main bathroom toilet and the en -suite toilet were in working order, however they did leak and delays in repairing them after August 2017 were due to problems in communicating with the appellant. There is also evidence in the form of an email from the respondent's agent dated 15 August 2017 that a delay to plumbing repairs was due to supplier's providing prices.
The evidence that we have referred to, primarily that from the plumber engaged by the respondent's agent establishes that there were minor problems with the leaks in the toilets in the main bathroom and the en -suite which are described as a small leak of clean water between the pan and cistern. The plumber's evidence was that despite these leaks the toilets were in working order. The evidence also establishes that because replacement parts were not available, the main bathroom and the en -suite toilets were replaced.
Having regard to this evidence, we refuse to grant leave to appeal as we are not satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was against the weight of evidence. We reject the appellant's submission that the Tribunal Member's findings so far as they relate to these issues was against the weight of evidence in connection with this claim concerning the main bathroom toilet leaks.

[26]

Front door broken and not secure

The evidence that we have been referred to establishes that the respondent's agent received a quote to replace the entry door of the residential premises on 21 February 2017.
The evidence also establishes that deficiencies with the front door of the residential premises were noted in the pre-inspection report which was completed by the appellant on 21 March 2017.
The residential lease commenced on 1 March 2017. There is no evidence that we have been referred to that establishes that the entry door of the premises was replaced before the commencement of the lease. To the contrary the pre-inspection report states that the door needed to be replaced, as the respondent's locksmith noted to the respondent's agent on 21 February 2017.
The appellant submits that the door was replaced in 17 March 2017 without referring to evidence to support that submission. We find this curious since the appellant stated on 21 March 2017 in the incoming condition report that the security door was broken and cracked and needed to be replaced. Nonetheless, evidence from the respondent establishes that on 15 March 2017 the respondent's agent wrote to the appellant stating that a locksmith would contact her to supply a new door in that week.
The appellant also claims that the deadlock on the door did not function properly and required repair.
There is evidence that the appellant complained about the lock in the door in July 2017 as there is an email from the respondent's agent to the strata manager on 24 July 2017 requesting rectification. On 10 November 2017 the appellant raised the issue of the lock of the door jamming with the respondent's agent. The evidence is then that the respondent's agent instructed the locksmith to rectify the lock mechanism on 13 November 2017.
The evidence establishes that at 30 November 2017 the repair had not been carried out because the locksmith was having difficulty accessing the premises.
The appellant submits that the door lock was rectified on 12 December 2017. The respondent's submissions indicate that the locksmith obtained access to the premises on that date to carry out the repair.
We find that there was evidence before the Tribunal Member to support a submission that the delay to the replacement of the front door and the rectification to the door lock of the door was a reduction in goods, services or facilities. We also find that the evidence we have seen would support a submission that the appellant did not fail in any substantial way to respond to communications or allow access in connection with the replacement of the entry door of the premises. Nor is there a submission by the respondent asserting such a failure. For the period July to 13 November 2017, we find that the evidence we have seen would support a submission that the appellant did not fail in any substantial way to respond to communications or allow access in connection with the repair of the lock in the entry door. There was no attempt by the respondent's agent to repair the lock in that period. So far as the appellant's failure to respond to communications is concerned, the evidence to which we have been referred, namely the locksmith's email of 29 November 2017, and the respondent's agent's email of 30 November 2017 indicates such a failure occurred in the period 13 November - 12 December 2017.
We grant the appellant leave to appeal on this aspect of her claim.

[27]

Sliding Door falls off tracks

It is common ground between the parties that there was an agreement that the sliding door would be rectified before the commencement date of the residential tenancy.
The respondent has referred us to evidence which establishes that in February 2017 rectification work was performed and the sliding door was adjusted to open and shut smoothly. In addition the respondent has referred us to evidence that on 20 June 2017, a hold open latch was installed on the balcony door. We have dealt with that issue at [61] - [64] above.
On 10 November 2017 the appellant wrote to the respondent's agent complaining of, among other things, the balcony sliding door stating that it does not work and cannot be locked, stating that the entire door needed to be replaced.
On 18 November 2017 the appellant again wrote to the respondent's agent concerning the sliding door stating the same issues as were stated on 10 November 2017 and that the door falls out of its tracks. On the same day the respondent's agent sent a work order to the strata manager instructing it to repair the sliding door in the bedroom.
On 20 December the strata manager asked a repair contractor who was instructed to repair the kitchen window to enquire whether the sliding door to the bedroom required servicing.
It is not clear on the evidence whether the sliding door was ever rectified or needed rectification and the extent to which the appellant refused access to rectification contractors.
We find that there was some evidence before the Tribunal Member, namely the appellant's complaints of 10 and 18 November 2017 to support a submission that the delay to the repair of the bedroom sliding door was a reduction in goods, services or facilities. We have not been referred to any evidence to support a finding in connection with this item that the appellant failed to respond to communications or allow access in connection with the sliding door issues raised by the appellant.
We grant the appellant leave to appeal on this aspect of her claim.

[36]

The evidence in its totality

Where we have granted the appellant leave to appeal on discrete items of her claim, we find that the appellant may have suffered a substantial miscarriage of justice because the Tribunal Member's finding that there was no evidence by her to support her claim that whole or parts of the premises had become unusable because the respondent had reduced or withdrawn goods, facilities or services was against the weight of the evidence. In those instances we are of the view that the evidence in its totality preponderated so strongly against the finding referred to that we are able to say that such finding was not one that a reasonable Tribunal Member could reach. We also find that the substantial miscarriage of justice that we have referred to arises because there was a 'significant possibility' or a 'chance that was fairly open' that the appellant may have achieved a different and more favourable result had the finding not been against the weight of evidence.
We would add that in our view this outcome arises in part as a result of the Tribunal Member's finding at [19] that she did not believe that that there was a need to deal with each item individually. While such an approach may be appropriate in a case where there are relatively few issues involved, in our view that approach is not appropriate in a case such as the one with which we are concerned where the tenant raises multiple and separate assertions of a reduction in goods, facilities or services by the landlord. The decision in Getex Pty Limited v Reed Business Information Pty Limited and ors is authority that broad references to evidence and broad conclusionary statements as to the effect of the evidence is unsatisfactory.
At [16] we referred to the two stage process referred to in Collins v Urban. Based on our finding that the Tribunal Member's decision was against the weight of evidence, as stated at [169], we are satisfied that the appellant may have suffered a substantial miscarriage of justice. We have concluded that we should grant leave to appeal because in our view the Tribunal Member clearly erred in finding that there was simply no evidence by the appellant to support her claim that there had been a reduction or withdrawal by the respondent of goods services or facilities provided with the residential premises and that such an error was central and not merely peripheral to her decision and that it would be unjust to let her error stand. In addition we are of the view that the Tribunal Member's finding that there was no evidence to support the appellant's claim as we have referred to, was a factual error that was unreasonably arrived at and clearly mistaken.

[37]

Significant new evidence now available

The appellant seeks leave to appeal on the basis that significant new evidence is now available that was not reasonably available at the time of the hearing.
In support of this ground of appeal, the appellant refers to the facts that she was required to provide her evidence by 22 December 2017 and that the hearing was on 1 March 2018.
Essentially the appellant claims that she was unable to give evidence in reply or evidence of a change in the residential premises in the period from 22 December 2017 to 1 March 2018.
The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel referred to the relevant authorities at [37] -[39]: '37. In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard. 38. In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: 23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39. As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'
The evidence that the appellant refers to as significant new evidence which has arisen that was not reasonably available at the time of the hearing is we find evidence that was clearly available at the time of the hearing.
The fact that this evidence was not tendered at the hearing was not because it was not available, or that it arose subsequent to the hearing, but because the Tribunal orders did not allow for it, or perhaps because the appellant did not apply for leave to present it at the hearing.
The appellant was given the opportunity to file all evidence upon which she relied in support of her case as it was articulated in her application lodged 10 November 2017. She was ordered to do that by 22 December 2017. Allowing for the Christmas/New Year break and time for the respondent to file its evidence, we do not see that there was any undue delay given that the proceedings before the Tribunal Member were heard on 1 March 2018.
Having regard to the authorities referred to above, we are not persuaded that significant new evidence has arisen that was not reasonably available at the time of the hearing. As a result leave to appeal on this ground is refused.

[38]

Did the appellant produce any evidence to support her claim that the rent payable for the premises was excessive

As stated above the Tribunal Member found that the appellant had not produced any evidence to support her claim that the rent payable for the premises was excessive and that the respondent's agent had produced evidence that showed that the rent was not excessive.
At paragraph 8.3 of her submissions before the Tribunal Member at first instance the appellant referred to the rental of other apartments in the area renting at around $695 to $720 per week which were submitted to be in a better state of repair than the premises the subject of the proceedings which were rented at $795.00 per week. Her submissions refer to an appendix O, Property Information Sheets. We cannot be sure of precisely what appendix O contained, since pages 483 - 512 of the documents provided to us by the appellant indicate that they were printed on 12 April 2018, after the Tribunal Member's decision and after filing the Notice of Appeal. We conclude that those documents were not before the Tribunal Member
However based on paragraph 8.3 of her submissions before the Tribunal Member and her reference to appendix O of her submissions, we find that the Tribunal Member's finding at [29] that the appellant had not produced any evidence to support her claim that the rent payable for the premises was excessive, was against the weight of evidence.
S44(5) of the Residential Tenancies Act states that the Tribunal may have regard to a range of factors in determining whether rent is excessive. The section provides: 'The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive: (a) the general market level of rents for comparable premises in the locality or a similar locality, (b) the landlord's outgoings under the residential tenancy agreement or proposed agreement, (c) any fittings, appliances or other goods, services or facilities provided with the residential premises, (d) the state of repair of the residential premises, (e) the accommodation and amenities provided in the residential premises, (f) any work done to the residential premises by or on behalf of the tenant, (g) when the last increase occurred, (h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent).'
In our view, having regard to the word 'may' in the first line of s44(5) of the Residential Tenancies Act a finding of whether rent is excessive for the purposes of s44(1)(b) of the Residential Tenancies Act does not necessarily require evidence of rent of comparable premises. In that sense such evidence of a comparable rental may be difficult to obtain having regard to what goods services or facilities it is alleged has been reduced or withdrawn from the premises the subject of the application. We are of the view that the totality of the evidence provided by the parties was sufficient for the Tribunal Member to have made a finding of whether the rent was excessive in the event that she found that the respondent had reduced or withdrawn any goods services or facilities provided with the residential premises. In context of the facts relating to these proceedings we are of the view that s44(5)(d) was more likely to be relevant to the determination of excessive rent than s44(5)(a) It follows that we find that the Tribunal Member's decision which infers that it was necessary for the appellant to adduce evidence of rent of comparable premises was an error of law.

[40]

Orders

As a result we will make the following orders: 1. Leave to appeal against the Tribunal decision in RT 17/51211 is refused. 2. The appeal is dismissed. 3. Leave to appeal against the Tribunal decision in RT 17/47910 is granted for those items of the appellant's claims that are referred to in order 4. 4. The appeal in R17/47910 is allowed insofar as it relates to the appellant's claims for excessive rent pursuant to s44 (1) (b) of the Residential Tenancies Act 2010 in relation to the following subject matters: latch for balcony door; kitchen ceiling leak; ceiling repair, kitchen sink leak, kitchen tap leak, mould on blinds, bathroom sink runs slowly, shower seal, power point in ensuite, floorboards lifting, front door broken and not secure, sliding door falling off tracks, light in bathroom/laundry falling out of ceiling, kitchen cupboard is damaged, pest and vermin issues, mould in apartment, front door intercom and swipe card for garage access. 5. Leave to appeal in respect of the balance of the appellant's claims for excessive rent is refused and the appeal in relation to those claims is dismissed. 6. Pursuant to s81(1)(c) of the Civil and Administrative Tribunal Act 2013, the appellant's claims for excessive rent which have been allowed by order 4 are remitted for reconsideration by the Consumer and Commercial Division of the Tribunal on the same evidence as filed by both parties in the original proceedings. 7. The Tribunal Member in the remitted proceedings may direct the parties to paginate documents previously filed and to provide him/her with such written submissions as the Tribunal Member considers necessary, including submissions in which the parties must cross refer the evidence to their submissions. 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: 26 April 2019

Biskupic v Allen

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Judgment (40 paragraphs)

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Cases Cited (15)

Cited By (1)