Bondarek v NSW Land and Housing Corporation

NCAT Appeal Panel|2018-11-22

mmercial Division Citation: [2018] NSWCATCD Date of Decision: 14 August 2018 Before: J Smith, General Member File Number(s): SH 18/27702 (renewal of SH 18/22034)

Background to appeal; primary member's findings and orders

The appellant has been a tenant for 17 years of social housing in Waterloo NSW of which the respondent is landlord.
Founded on an application lodged by the tenant on 9 May 2018 in SH18/22034, a member made orders on 25 May 2018 that: the landlord complete repairs to the bathroom in the premises in a proper and workmanlike manner on or before 15 June 2018; the tenant pay no rent for the period 5 March to 27 May 2018; the tenant pay 50% rent for the period 28 May to 1 July 2018; the tenant have leave to renew the proceedings at any time before 31 August 2018 "in the event that the works are not finalised". All the orders were expressed to be by consent except for the 50% rent reduction order for the period 28 May to 1 July 2018. The original application did not specify a percentage for the rent reduction.
In SH 18/27702, the proceedings from which the tenant brings this appeal, the tenant complained that the landlord had breached the consent orders by not completing the works ordered in the time ordered or, in fact, as at 19 June 2018 when the proceedings were lodged.

Grounds of appeal

The Notice of Appeal by the tenant was lodged within time on 23 August 2018.
The grounds of appeal, in summary, were as follows: (1) The primary member ought to have found a continuance of the 100% rent reduction until the works were completed on the bases that the primary member erred in law, or in the alternative leave ought to be granted as the primary member erred in fact, in respect of the following: (a) the primary member did not give consideration to a relevant matter, namely, there was no material change in circumstances in the period from 25 May 2018 to when the works were practically completed on 27 July 2018 from the period in which the primary member ordered by consent a 100% rent reduction which was not challenged in the renewal application, and (b) the primary member took into account an irrelevant consideration, or one which should not have weighed so heavily, in attributing some value to the tenant from still being able to occupy the premises because he was able to use a bathroom in a tenancy on a different level of the building in which the residential premises were situated by grace and favour of a neighbour, or use a public toilet on the ground floor. (2) The primary member erred in law in dismissing the tenant's claim for compensation on the basis that there was no claim on foot for compensation as at the date of determination of the originating application (25 May 2018) and that accordingly CATA Sch 4 clause 8(4) precluded that claim on a renewal application as not open to the Tribunal at the time of the original orders.

Applicable legal principles on appeals

Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) 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."
Clause 12 of Schedule 4 to CATA states: 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).
A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel stated at [71], [74]-[75], [78]-[79] and [84] as follows in respect of grants of leave to appeal: 71 [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred… 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 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. 75 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" - 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 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 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: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (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 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 stated at [37] -[39]: 37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with 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.'
In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated: 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.
We should note that neither party sought to rely upon further evidence before us that was not before the primary member.
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 taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief or a finding in the absence of relevant evidence to support the finding: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356; 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; see also Kostas v HIA Insurance Services PL (2010) 241 CLR 390 at [91] and, in respect of having regard to a mandatory consideration, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41; in the Tribunal, see Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 2016 at [183]-[184]; Johnson v Lukeman [2016] NSWCATAP 272 at [8].
These categories are not exhaustive of errors of law. A failure to afford procedural fairness has already been mentioned. Since the Tribunal is under a statutory duty in CATA s 62 to provide reasons (Collins v Urban, above, at [43]-[64]), a failure to provide adequate reasons more generally raises a question of law: see, eg, Pollard v RRR Corporation PL [2009] NSWCA 110 at [56]; Qushair v Raffoul [2009] NSWCA 329 at [52] and following paragraphs.
An error of law may be apparent on the face of the reasoning, or may appear from the result reached on the facts found: Chapman v Taylor [2004] NSWCA 456 at [33].
CATA s 81 provides that, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal. The section sets out a list of available orders which is not exhaustive. That list includes: allowing the appeal, setting aside the primary decision and remitting the whole or any part of the case to the primary level of the Tribunal for reconsideration, either with or without further evidence and in accord with the Appeal Panel's directions, varying the primary decision, or quashing or setting aside the primary decision and substituting another decision. The words of s 81 make it clear throughout the provision that in making such orders as it considers appropriate the Tribunal may make any combination of orders it thinks appropriate to accord with its findings.

Errors of law

It is our view that the primary member erred in law in relation to his decision on the amount of the rent reduction and in his decision that the Tribunal lacked jurisdiction to hear the tenant's claim for compensation on a renewal application.

Rent reduction

Dealing first with the rent reduction, the primary member essentially found in favour of the tenant's evidence entirely and based his findings of fact, his reasons from those facts and his orders on the tenant's evidence. There was no evidence that the landlord offered alternative accommodation. The landlord did not offer any evidence explaining non-compliance.
In finding a 25% rent reduction on top of the consent 50% rent reduction the primary member implicitly acknowledged that the tenant was not paying any rent up to 27 May 2018. The primary member went on to say that "At the time the consent orders were made on 25 May 2018 the tenant's agreement to 50% rent reduction was predicated on the assumption that the work would be completed promptly".
The primary member's reasons dealt with why the rent reduction to 50% by consent did not bind the tenant when the orders were not complied with, including for the period 28 May to 1 July 2018 mentioned in the consent orders. The primary member said he was satisfied that a "substantial reduction in rent is appropriate" for the period between 28 May 2018 and the agreed practical completion date of the bathroom works on 27 July 2018, set that at a further 25% above the agreed 50% and referred to the tenant's ability to continue to live in the premises which we explore further below.
However, the primary member did not address at all in his reasons why there was a distinction between the period when there was by consent a 100% rent reduction (5 March to 27 May 2018) and the period 28 May to completion of works when, throughout both periods, substantially the same facts that he had found existed (including the tenant's living in the premises because he could use, by grace and favour, the neighbour's bathroom upstairs, or a toilet downstairs), and there was no submission that the consent 100% reduction should be reconsidered on a contested basis in the renewal hearing. The only apparent contest was on the period from and including 28 May 2018 to completion of the bathroom works. This contained a powerful inference of continuity of the same entire rent reduction for the same period when the same factual basis was present.
Not addressing in reasons or orders based on those reasons what we consider to be a relevant consideration constitutes in our view an error of law.
In the alternative to the foregoing, and as an independent error of law, we consider that there was an error of law in taking into account an irrelevant consideration for the purposes of RTA s 44.
The factors that the Tribunal is to take into account in a tenant's rent reduction claim are all expressly focused on "the residential premises" or the tenancy agreement and its obligations, for those premises, except for s 44(5)(g) being any other matter the Tribunal considers relevant (other than the tenant's income or ability to afford a rent increase if such was the subject matter of proceedings).
It seems to us that the purpose of s 44 would not be achieved if matters extraneous to the residential premises the subject of the tenancy were taken into account unless those matters directly benefited or burdened the occupation of the residential premises in their required state for habitation under the residential tenancy agreement (including compliance with obligations of repair). An ability to get around not being able to use the tenancy bathroom by the grace and favour of a neighbour or going to a toilet downstairs does not fall within such direct benefit or burden.
If it did, many types of matters extraneous to the tenancy's intrinsic state compared with its required state under the residential tenancy agreement, some of them not under the tenant's ability to control, would become available to be taken into account. This would subvert one of the purposes of s 44, which is to sanction lack of compliance by the landlord with its obligations, including of repair and provision of essential facilities like a bathroom and to provide premises fit for habitation, under the lease: see ss 44(1)(b), (3), (5)(c), (d), (e), 52(1). It would also subvert the focus on amenity of the residential premises in s 44(5)(e). In effect, the tenant's choice to continue to live there, however uninhabitable and however much the "choice" was not a real choice, would work in the landlord's favour. The focus would be on whether or not the premises were unusable as opposed to uninhabitable even if usable in an extreme or minimalist sense of the word: cp Bremer v Jones Family Investment PL [2002] NSWCTTT 195. That appears to be against the purpose of the provision.
Finally, there was no evidence referred to by the member to support a finding of continuing value, which constitutes an additional error of law.
Having found an error of law, it seems to us that, if the irrelevant considerations of access to a neighbour's bathroom upstairs or to public toilets outside the building are removed from consideration, the inevitable irresistible conclusion from the balance of the primary member's findings was that the tenant simply could not have lived in the premises without a bathroom (even not taking into account the other amenity and health factors of smell and mould arising from the state of the bathroom that permeated the entire small bedsit premises) and ought to have a reduction of the entire rent until the bathroom in the premises was restored to its required state of amenity and operation under the residential tenancy agreement.

Compensation

CATA Sch 4 clause 8 relevantly provides as follows (with emphasis added): (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal: (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order.
The landlord's counsel referred us to decisions of the predecessor to the Tribunal which found, on what was said to be substantively equivalent wording, that a claim for compensation was required to have been mentioned in the original application if it was to be considered in renewal proceedings: Brooker v PJ & JA Worth PL [2014] NSWCATCD 114 at [5]-[10]; Saunders v AJ Jagoe PL [2013] NSWCTTT 121 at [9]; Patioman v Barbat [2005] NSWCTTT 725, and authority cited in the first two of those decisions. Here the compensation claim was not so mentioned.
The tenant sought to distinguish these decisions on the wording of the provisions, and on their context, and also to say that they were single instance, were wrong in principle and in construction of the provisions, were not required to be followed as having no precedential effect or out of comity, and ought to be distinguished, confined or not followed.
The tenant in particular referred to the change of heading under which the provision now appeared in CATA, namely, "Renewal of proceedings in respect of certain Division decisions" (emphasis supplied), compared with the heading and placement in the preceding legislation, being "Enforcement of certain Tribunal orders". The tenant also pointed to the addition of "a new" before "application" in ss (3).
Interpretation Act 1987 (NSW) s 35 relevantly provides that headings to "Parts … into which the Act … is divided" and "Schedules to the Act" shall be taken to be part of the Act. Clause 8 is in Sch 4 Part 5 headed "Special Practice and Procedure" which is distinctive from any narrow concept of enforcement. There is no modification in Sch 4 of CATA's enforcement provisions which are in CATA Part 5 ss 71-78. Enforcement is dealt with distinctly in CATA from practice and procedures; the latter are dealt with in CATA Part 2 Div 5 ss 25-26 and CATA Part 4 esp Div 1 ss 35-38.
We consider that "Parts" can be distributively applied to a "Part" in a Schedule, as here, all the more so when CATA is constructed in the form of general provisions modified for particular Divisions in different ways in different schedules that are given statutory recognition expressly in CATA s 17.
Irrespective of the consideration of that conclusion, the structure of CATA appears to us to be a distinctive and different treatment of the renewal provision that renders the interpretative reasoning in the cases relied upon by the landlord no longer apposite.
Interpretation Act s 35(2) provides, since the exceptions in s 35(3) and (4) do not apply, that the particular heading above clause 8 in Sch 4 Part 5 is not part of the Act. Section 35(5) provides that such does not limit the interpretative use of the heading as applied in s 34.
Interpretation Act s 34 relevantly provides that matters not forming part of the Act but which are in the official text, as the heading to clause 8 is, may be considered for purposes of interpretation in the following circumstances: it is capable of assisting in ascertaining the meaning of a statutory provision; it confirms the ordinary meaning of the provision, taking into account the provision's context, purpose and object; to determine the provision's meaning if it is ambiguous or obscure or if the ordinary meaning (taking into account context, purpose and object) leads to a result that is manifestly absurd or unreasonable.
In our view the heading to clause 8, in the context that the text it heads was substantially similar in a preceding statute with a different heading, is capable of assisting in ascertaining the meaning of a statutory provision and assists in determining the provision's ambiguous or obscure meaning (being the scope of the italicised words) or in confirming its ordinary meaning taking into account context, purpose and object. The change to heading in that context indicates at least that the words in clause 8 are not governed by the meaning given by case law to the equivalent words in the preceding statute.
If we had to find afresh on the basis of the words in clause 8 taken together with their appearance in a Part headed "Special practice and procedure" and interpreted with the assistance of a specific heading "Renewal of proceedings in respect of certain Division decisions", we would come to the view that there is nothing by way of limitation in clause 8 that restricts the Tribunal in a renewal application to the relief claimed in the originating application being renewed, whether or not there was existing evidence to support a new claim for relief already before the Tribunal in relation to the originating application.
This interpretative assistance reinforces the purpose, object and context of the renewal power. It is not simply an aid to enforce the Tribunal's existing orders as clause 4(a) makes clear in its reference to "make any other appropriate order". There is no restriction in the clause to the existing material before the Tribunal or its existing findings on that material.
Rather, it is to consider what to do next given a non-compliance, but not to rehear the substantive merits already determined, and to do that on the basis of material put forward by the parties relevant to the issue of what to do next. As was said in Akratos v Papadopoulos [2016] NSWCATAP 139 at 36: the purpose of the renewal proceedings was to consider, in light of the fact that the original order was not complied with, what other appropriate orders it could have made when the matter was originally determined and not to reconsider the substantive merits of the respondent's building claim.
In a residential tenancy context that may mean a termination. In a home building context that may mean substituting a money order for the original work order. The presence of such a broad power is more likely than a narrow reading to achieve the purpose or object of having the Tribunal's original orders complied with in a timely fashion. It also may facilitate a just, quick and cheap resolution, in accord with the guiding principles in CATA s 36, of any difficulty with performance of the original orders.
This conclusion is reinforced by the addition of "a new" before "application" in sub-clause (3). Even though there is a renewal, in effect it is treated as a new application.
Accordingly, we consider that, on the submissions before him, the primary member erred in law in declining jurisdiction to consider the compensation claim on the basis that it was not in the originating claim and that it was an order that was not "open to the Tribunal at the time of the original orders". The phrase just quoted does not paraphrase the correct meaning of the italicised words in clause 8. Those italicised words mean any order that the Tribunal had jurisdiction and power to make, whether or not such an order was expressly claimed at the time, and the applicable legal principles and evidence permitted it to make.
Our view of what the primary member ought to have concluded on the material put before him is confirmed by a decision of the Appeal Panel (sitting as a panel of three) on 26 April 2018 apparently not cited to him, being Blessed Sydney Constructions PL v Vasudevan [2018] NSWCATAP 98. Although arising in a home building context, the decision clearly was a general interpretation of clause 8, with reference to residential tenancies legislation by way of illustration at [48]. One member of this Appeal Panel sat as the primary member in Vasudevan. His decision was upheld by the Appeal Panel with a variation in some of the supporting reasoning. The Appeal Panel's reasoning is here referred to.
In Vasudevan the Appeal Panel at [27] said the renewal power was analogous to the power that "a Court with equitable jurisdiction has to make alternative orders, including awarding damages, where there has been non-compliance with an order for specific performance of a contract". See also at [41]-[42].
The Appeal Panel at [35] and [43] said: 35. In our view, to give the word "appropriate" a narrow construction, so that circumstances or events occurring after the matter was originally determined could not be taken into account, would be inconsistent with the purpose of a renewal application. If, on such an application, the Tribunal could not consider facts and circumstances occurring after the original determination, this might often lead to the conclusion that the Tribunal should refuse to make any other order than that originally made. A renewal application is, however, designed to deal with a situation where there has been non-compliance with the original order that the Tribunal thought was appropriate when the matter was first determined. The circumstances will inevitably have changed since that time, if for no other reasons than because there has been non-compliance with the order that had been made. What was appropriate originally may well not be appropriate at the time of the hearing of the renewal application. To limit the orders that could be made on renewal to those that would have been appropriate when the matter was originally determined would be likely to prevent the Tribunal from doing justice between the parties, having regard to the non-compliance with the original order and to any other circumstances that had changed materially since the proceedings were originally determined. This would render the right to renew proceedings ineffective in a significant number of cases. … 43. For these reasons, the text of cl 8(4)(a) and its context and purpose lead us to the view that "appropriate" in that clause should be construed as referring to an order that is suitable or fitting in light of: (1) the general law principles, whether legal or equitable, and statutory provisions applicable in respect of the type of relief claimed on the renewal application; (2) the fact that there has been non-compliance, within the time specified, with the order originally determined to be appropriate and a renewal application has been made; (3) all other relevant circumstances, whether occurring before or after the proceedings were originally determined.
The Appeal Panel in Vasudevan interpreted the italicised words in clause 8(4)(a), set out earlier in these reasons, as follows at [46]-[47]: 46. We are of the view that the homeowner's approach is to be preferred. The auxiliary verb "could" is the past tense of "can", which means "to be able to; to have the … authority to" (Macquarie Dictionary 3rd Ed Rev). The use of "could" in par (a) naturally directs attention to the orders that the Tribunal had authority to make when the matter was originally determined. Clause 8(4)(a) does not, by its terms, limit the orders available on renewal to those which the Tribunal could have made without falling into legal or other error when the matter was originally determined. We do not think it is necessary to read such a limitation into the clause in order to give it an effective operation. Indeed, if such a limitation were read in, it could inhibit the Tribunal's ability to do justice in the circumstances before it on renewal. It would prevent the Tribunal from making orders that it otherwise has authority to make and that are appropriate at the time of determining the renewal application. Just because those orders were not justified in the circumstances when the matter was originally determined is not a reason for preventing the Tribunal from making such orders on a renewal application. 47. Accordingly, in our view, orders "as [the Tribunal] could have made when the matter was originally determined" should be construed as referring to orders that the Tribunal had authority to make when the matter was originally determined, whether those orders were appropriate or not in the circumstances at that time. In the case of an application under the HB Act, such orders include all those in s48O.
The Appeal Panel summarised its conclusions on the proper construction of clause 8(4)(a) of Sch 4 to CATA as follows at [52]-[53]: 52. (1) On a renewal application, the Tribunal can make an order that is materially different from the order made when the proceedings were originally determined. (2) Such an order must be suitable or fitting in light of the general law principles, whether legal or equitable, and statutory provisions applicable to the type of relief claimed on the renewal application as well as all other relevant circumstances, whether occurring before or after the proceedings were originally determined, including the fact that the order originally made has not been complied with within the time specified in the order and that a renewal application has been made. (3) Such an order must be one that the Tribunal has authority to make under the NCAT Act or the relevant enabling legislation. (4) Such an order must be one that the Tribunal had authority to make when the proceedings were originally determined, having regard to the specific legislative provisions under which the original application was made, but the order does not have to be an order that would have been appropriate in the circumstances when the proceedings were originally determined. 53. In the light of this construction, we do not accept that the Tribunal on the renewal application did not have authority to make an order for the payment of money by way of damages. The orders that the Tribunal can make on a renewal application are not limited only to those which would have been appropriate in the circumstances as they were when the proceedings were originally determined.
Vasudevan illustrates the width of clause 8 in a context where certain remedies are as a matter of case law not available while the building contract is still on foot. In this context, the Appeal Panel illustrated at [58]-[73] that the relief available, and necessarily the evidence to support it, on a renewal application was not restricted to the relief appropriate at the time that the original application was determined and the supporting evidence for that relief. The renewal application to seek monetary compensation to replace a work order itself put an end to the building contract if no earlier act of either party to the contract had done so. Ending the contract was the basis on which a claim for damages for defects could be made that could not previously be made while the contract was alive (damages being restricted to the contract to damages for delay while the contract was on foot).
Thus, in the context illustrated in Vasudevan, It was not legally possible for a damages claim for defects to succeed while the contract was on foot. If the landlord's restrictive interpretation of clause 8 was correct, every home building application while the building contract remained on foot would be required to include a claim for damages for defects that was bound to fail, simply to preserve the right to claim damages if the proceedings had to be renewed.
It could be objected that the same hopelessness did not accompany a claim for compensation by the tenant in the present case; it was simply an additional claim. That does not appear to us to detract from the width of the interpretation given to the italicised words and to "appropriate" in Vasudevan that we have already set out. It also would not contribute to the purpose of the provision, and the overriding principle in CATA s 36 for just, quick and cheap procedures and resolution of the real issues in the proceedings, to require the applicant for renewal to begin separate proceedings with further filing fee, costs and delay of separate hearing, the prospect of a different decision-maker and competing findings or of attempting to determine issue estoppels, or a combined hearing of the renewal application and the fresh proceedings that may consequentially be delayed.
If however that was seen as a point of distinction, the interpretation matters we have raised prior to the consideration of the impact of Vasudevan would support the ability to raise in renewal proceedings a claim that could have been raised in the originating application but was not at the time, and to support it with further evidence.
We note for completeness that an order for compensation under RTA s 187(1)(d) may be made "on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act" (emphasis supplied). Whether or not the second alternative gives a discretion to the Tribunal of its own motion (but subject to procedural fairness and any other relevant requirements) to make an order in one of the categories in s 187 including a compensation order, it clearly contemplates a broad range of circumstances ("in any proceedings under this Act") in which such orders can be made. Renewal proceedings are "any proceedings under [the RTA]" as the statutory source of jurisdiction for the original and renewal proceedings. That appears to us to provide a further basis for being able to bring in renewal proceedings a compensation claim which was not, for whatever reason, included in the originating application. RTA s 188(a) may reinforce that analysis.

Basis for grant of leave to appeal on questions of fact

If we were wrong in our conclusion that there were errors of law in relation to the rent reduction, we would nevertheless grant leave to appeal on what are errors of fact and determine the facts in favour of the tenant having an entire rent reduction for the relevant period from 28 May 2018 to practical completion of the bathroom works on 27 July 2018.
It seems to us that the unexplained absence of consideration of the continuity of circumstances in the period of 100% rent reduction, unchallenged on contest, and the period of 50% rent reduction challenged on contest was so against the weight of evidence and not fair and equitable that it constitutes a substantial miscarriage of justice on the tests we have earlier set out. This is reinforced by the primary member's findings about the very serious loss of amenity in occupying the premises at all: "The tenant has lived in very smelly accommodation, has been unable to have guests, the bathroom was without electricity and had a leaking roof". There was no explanation of what "value" in those circumstances was obtained by the tenant's mere ability to occupy. There was no evidence to support a calculated finding of value. One of the persons unable to visit, due to a need for immediately-adjacent bathroom facilities, was the tenant's 93 year old mother.
Further, if the primary member was able to take into account use by grace and favour of a neighbour's upstairs bathroom and public toilets, then the finding of amenity was against the weight of evidence referred to by the member and already quoted, and not fair and equitable, in light of the loss of amenity from bare occupation, so as to constitute a substantial miscarriage of justice to let the findings stand.
We deal below with what we would do on a grant of leave to challenge errors of fact.

Outcome of substantive appeal and form of orders

The appeal accordingly succeeds on all its substantive grounds. We set out our orders below.
Supporting those orders, it is our view, exercising our powers under CATA s 81, that the appropriate form of orders in this appeal is a mixture of relief.
We are satisfied that there is no need to put the parties to further time and expense in relation to the rent reduction issue. We have the complete material that the parties have and it appears could have relied upon on that issue. If we are correct that the primary member erred in law in not simply continuing the same rent reduction as ordered for a period where the same underlying facts justifying that order were found to be continuing, there is nothing further to do but to continue that order.
Alternatively, if we are correct to treat this as a matter on which to grant leave to correct an error of fact, then we have the material on which to make the relevant finding of fact. On the basis we have set out above the relevant finding of continuity of relevant factual circumstances justifies the continuance of the same order for 100% rent reduction as for the earlier period. We also find that the overwhelming loss of amenity and habitability as well as usability referred to in the findings of the primary member meant that mere occupation did not give any value that justified a rent reduction less than 100% while the loss of amenity continued
On the compensation issue, we are not convinced that the Tribunal has all the material that the parties would wish to put before it on this point. The tenant may have further material justifying the figure of $7,000. The landlord will need to respond to existing and any further evidence, and the tenant may wish to reply to the landlord's evidence. We accordingly remit the matter for further hearing on the compensation issue (unless it can be resolved, which we urge the parties to attempt), which can be before the primary member or any other member as the primary member has made no findings of fact on this issue. There should be directions made in the Division for any further evidence.

Costs of appeal

Rule 38A of the Civil and Administrative Tribunal 2013 (NSW) (Rules) applies the same costs rules as applied in the Division when there is a departure under the Division rules (such as under Rule 38) from CATA s 60.
The amount claimed or in dispute in the proceedings did not exceed $30,000 so as to invoke CATA Rule 38. Accordingly, Rule 38A has no work to do and CATA s 60 applies to costs of the appeal. CATA s 60(3) requires special circumstances to be established for an award of costs and sets out examples of what may constitute special circumstances.
As we have said, the matter was skilfully argued on somewhat difficult points of law. The jurisdictional point was resolved on a final basis in the Appeal Panel only after the parties had argued it before the primary member. The rent reduction analysis also had aspects of novelty and difficulty. The Tribunal's consideration of those matters benefited from the presence of legal representation on both sides.
It seems to us that the difficulty and partial novelty of the points of law constitute special circumstances within CATA s 60(3)(d) and (g) to apply usual costs principles.
The appellant has succeeded on both points of law and, in the alternative, in obtaining leave to correct an error of fact on one of the issues in dispute relating to rent reduction.
The starting point for exercise of costs discretion on the usual principles is that costs follow the event. "The event" is usually the overall outcome of the proceedings - did the successful party have to go to the Tribunal (in this case) to get what it achieved, rather than being offered at least that relief. If there are distinct issues on which the party seeking relief did not succeed, that may be taken into account in the exercise of costs discretion. Some recent Appeal Panel decisions have made no order as to costs (to the intent that each party paid its or their own costs) where there has been a measure of success on both sides: Johnson t/as One Tree Constructions v Lukeman [2017] NSWCATAP 45 at [25]-[29]; applied in Oppidan Homes PL v Yang [2017] NSWCATAP 67.
Here the appellant succeeded on both issues on appeal and ought to have succeeded on one issue completely and the other hearing on the jurisdiction objection (with the merits still to be heard) at the primary hearing. The exceptions to the starting point therefore do not seem to us to apply to costs of either hearing.
Accordingly, the appellant ought to have his costs of the primary (renewal) hearing and the appeal on the ordinary basis as agreed or assessed.

Orders

The orders we accordingly make are as follows: 1. To the extent necessary, grant leave to appeal. 2. Appeal allowed. 3. Vary order 1 made on 9 August 2018 and substitute the following orders: "1. Pursuant to s 44 of the Residential Tenancies Act 2010 (NSW), order that the tenant is not obliged to pay any of the rent for the period 28 May 2018 to 27 July 2018. 2. Pursuant to s 187(1)(c) of the Residential Tenancies Act 2010 (NSW), order that the respondent landlord repay or recredit to the tenant any rent paid by the tenant to the landlord for the period in order 1." 4. Set aside order 2 made on 9 August 2018. 5. Remit the matter to the Consumer and Commercial Division for hearing before any member of the tenant's application for compensation under Residential Tenancies Act 2010 (NSW) s 187(1)(d), with directions for any further evidence and submissions in addition to the existing evidence and submissions that the parties lodge and serve in accord with such directions. 6. Order that the respondent pay the appellant's costs of the renewal application and of this appeal on the ordinary basis as agreed or assessed.

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

Amendments 03 May 2019 - Representation inserted on coversheet 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: 03 May 2019

Residential Tenancies Regulation 2010(NSW)

Residential Tenancies Act 2010(NSW)s 187(1)(d), with

[2016] NSWCATAP 2016

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