The appellant was a tenant of premises owned by the respondents in a Western Sydney suburb. He commenced occupation of the premises on 15 January 2016. He later entered into a standard form Residential Tenancy Agreement dated 10 February 2017 for a fixed term ending on 8 February 2018. After that fixed period, it appears that the tenancy continued as a periodic agreement until the appellant vacated the premises on 3 September 2020.
The appellant lodged an application in the Tribunal claiming his bond of $1800 which the respondents had not repaid to him. The respondents claimed the appellant's bond on the basis that he breached the residential tenancy agreement causing the respondents to incur costs associated with cleaning and repairs to the premises after the appellant vacated.
While the application had been lodged by the appellant, it does not change the fact that the respondents bear the onus of satisfying the Tribunal on the balance of probabilities that the landlords are entitled to some or all of the tenant's bond, as the bond remains the property of the tenant despite being held by the Rental Bond Board.
In reasons delivered on 11 December 2020, the Tribunal ordered the appellant to pay the respondents the sum of $5,886.20.
The appellant seeks leave to appeal from the decision of the Tribunal.
We have allowed the appellant leave to appeal and have decided to uphold the appeal in part.
[2]
Decision of the Tribunal
The sum of $5,886.20 awarded by the Tribunal comprised amounts associated with the following:
1. tenant's contribution to cleaning: $440.
2. tenant's contribution to repaint the door frame and ceiling in the ensuite: $264;
3. tenant's contribution to a new vanity in bathroom: $475.20
4. tenant's contribution to repaint the hallway wall: $462
5. testing for methamphetamine: $295.00
6. decontamination due to methamphetamine: $3,950
The Tribunal directed the Rental Bond Board to pay the respondents the whole of the amount of the bond of $1,800 plus any interest and for that sum to be credited against the money order of $5,886.20.
The Tribunal noted that the respondents withdrew some claims at the hearing and the Tribunal disallowed some other claims because the respondents had not satisfied the "evidentiary onus" to make an order for compensation.
The decision of the Tribunal is silent on the reasoning by which it accepted those claims set out above. The reasons do not explain the basis on which the Tribunal awarded those specific amounts for each item of claim.
Neither party requested the Tribunal to provide written reasons for its decision. There was no transcript of the hearing provided by either party, although the appellant provided some very limited and selected extracts from the hearing in his evidence on the appeal.
[3]
Issues on Appeal
The issues raised on the appeal primarily concern the Tribunal's findings for the costs associated with repairs, testing and decontamination attributed to the alleged use of methamphetamine in the premises during the period of the tenancy.
For those matters, the Tribunal awarded $475.20 for a new vanity in the ensuite, $290 for testing for methamphetamine and $3,950 for decontamination costs. The appellant challenged those findings by the Tribunal.
The appellant contended that those findings by the Tribunal were against the weight of the evidence and that the Tribunal mistakenly accepted evidence that he described as "unreliable".
[4]
Provisions of the Residential Tenancy Act
The Tribunal's reasons do not refer to the provisions of the Residential Tenancy Act 2010 (NSW) (RTA) pursuant to which the orders for payment were made. However, it was not in dispute on the appeal that the Tribunal had apparently found the appellant to have breached s 51(3) of the RTA, that the payment and compensation orders were made under s 187 of the RTA and the direction for the payment of the rental bond and interest to the respondents was made pursuant to ss 166 (1) and 175 of that Act.
Those provisions of the RTA relevantly provide as follows:
51 Use of premises by tenant
(1) A tenant must not do any of the following -
(a) use the residential premises, or cause or permit the premises to be used, for any illegal purpose,
(b) cause or permit a nuisance,
(c) interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant,
(d) intentionally or negligently cause or permit any damage to the residential premises,
(e) cause or permit a number of persons to reside in the residential premises that exceeds any number specified in the residential tenancy agreement.
(2) A tenant must do the following -
(a) keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,
(b) notify the landlord of any damage to the residential premises as soon as practicable after becoming aware of the damage.
(3) On giving vacant possession of the residential premises, the tenant must do the following -
(a) remove all the tenant's goods from the residential premises,
(b) leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into,
(c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,
(d) remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy,
(e) return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant.
(4) In this section -
residential premises includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant.
(5) This section is a term of every residential tenancy agreement.
187 Orders that may be made by Tribunal
(1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders -
(a) an order that restrains any action in breach of a residential tenancy agreement,
(b) an order that requires an action in performance of a residential tenancy agreement,
(c) an order for the payment of an amount of money,
(d) an order as to compensation,
(e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement,
(f) an order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined,
(g) an order that requires rent paid to the Tribunal to be paid towards the cost of remedying a breach of the residential tenancy agreement or towards the amount of any compensation,
(h) an order directing a landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations,
(i) a termination order or an order for the possession of premises,
(j) an order directing a landlord or landlord's agent to give a former tenant or person authorised by a former tenant access to residential premises for the purpose of recovering goods of the former tenant or fixtures that the former tenant is entitled to remove.
(2) Without limiting the Tribunal's power to make an order as to compensation, the Tribunal may order compensation to be paid for the following -
(a) loss of rent,
(b) any other breach of a residential tenancy agreement,
(c) loss or damage suffered by a person as a result of inaccurate, ambiguous or out-of-date information being listed about the person on a residential tenancy database.
(3) An order under subsection (1)(a) or (b) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available.
(4) The Tribunal must not make an order for -
(a) the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or
(b) the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section.
Note -
This Act also confers other order-making powers on the Tribunal, including other specific powers to make termination orders, to declare that premises have been abandoned, to make orders about holding fees and to make various orders about rental bonds.
166 Matters that may be subject of rental bond claim
(1) A landlord is entitled to claim from the rental bond for the residential tenancy agreement any of the following -
(a) the reasonable cost of repairs to, or the restoration of, the residential premises or goods leased with the premises, as a result of damage (other than fair wear and tear) caused by the tenant, an occupant or an invitee of the tenant,
(b) any rent or other charges owing and payable under the residential tenancy agreement or this Act,
(c) the reasonable cost of cleaning any part of the premises not left reasonably clean by the tenant, having regard to the condition of the premises at the commencement of the tenancy,
(d) the reasonable cost of replacing locks or other security devices altered, removed or added by the tenant without the consent of the landlord,
(e) any other amounts prescribed by the regulations.
[5]
Grounds of appeal
The appellant sought leave to appeal in his Notice of Appeal that was filed on 5 January 2021. The Notice of Appeal raised three grounds of appeal.
The first ground was limited to issues associated with the testing of methamphetamine levels in the premises and the Tribunal's reliance on the respondent's evidence comprising a Pest Control test report dated 7 September 2020 (Pest Control Report) and a decontamination report by the MKT Group dated 17 September 2020 (MTK Report).
The second ground alleged that the appellant was denied a fair hearing. This ground was not pressed on the appeal.
The third ground of appeal contended that the Tribunal failed to take into account "fair wear and tear of the premises" in the amounts it awarded to the respondents.
[6]
Reply to Appeal
The respondents filed their Reply to the Notice of Appeal on 15 January 2021. They sought to rely on the decision of the Tribunal and its original orders.
The respondents opposed the appellant's application for leave to appeal, stating that the yellow staining observed in the ensuite was caused by the use of methamphetamine and that the testing they had conducted returned a positive result.
[7]
Statutory basis of the appeal
An appellant may appeal from a Tribunal's decision as of right on any question of law or otherwise with the leave of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
As this is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal, the appeal grounds, other than those concerning a question of law, are also regulated by cl 12 of Sch 4 of the NCAT Act, which provides:
Clause 12 Schedule 4 of the CAT Act
(1) 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).
In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]:
• It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) [of the NCAT Act] provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
The appellant contended that the Tribunal's decision to award costs associated with the testing and decontamination due to the alleged presence of methamphetamine in the premises was made against the weight of the evidence so as to cause him a substantial miscarriage of justice warranting the granting of leave to appeal: cl 12 (1) (b) of Sch 4.
We are of the view that the Tribunal erred in the weight it attributed to the Pest Control and MTK Reports and in doing so, there has been a substantial miscarriage of justice such that leave to appeal should be granted.
For the reasons set out below, we have upheld the appeal in relation to the Tribunal's finding that the appellant should pay the costs of testing and decontamination but we have not allowed his challenge to the Tribunal's finding that he pay a reduced sum for the replacement of the vanity in the ensuite.
[8]
Appellant's Submissions
In summary, the appellant submitted that the evidence relied upon by the Tribunal was "unreliable" in that:
1. The test samples were taken by an entity that was not accredited;
2. Testing was possibly contaminated when it was provided to MTK;
3. MTK, although accredited themselves, did not undertake their own testing and relied upon the samples collected by others;
4. The MTK report expressly stated that it was not intended for use as evidence in any legal proceeding;
5. The results of the two reports were conflicting and referred to different sampling locations;
6. No evidence was presented of testing prior to the tenancy commencing;
7. As a crane operator, the appellant is subject to random drug testing and has never failed a drug test.
The appellant also sought to rely upon some new evidence that was not before the Tribunal. We rejected his application to adduce the new evidence save for one document to which we refer below and which was a source document referenced in the decontamination report by the MTK Group Pty Ltd (MTK) that was relied upon by the respondents and for which the Tribunal allowed $3,950 for decontamination costs.
[9]
Respondents' Submissions
The respondents submitted that the entity that carried out the field testing was a "reputable company". They said that when the tenant vacated there was a large amount of yellow staining present in the ensuite. That prompted the respondents to get the premises tested for the use of illicit drugs.
They submitted that the Tribunal took into account fair wear and tear when awarding amounts for repairs and cleaning. The amounts claimed by the respondents were reduced for fair wear and tear to take into account the length of the tenancy.
[10]
Fresh Evidence
The appellant sought to rely upon fresh evidence on the appeal. We have rejected the fresh evidence contained at pages 1-3 and 79-85 of the appellant's documents filed on 18 February 2021. There was no explanation as to why this material was not put before the Tribunal and it is of limited significance to the issues which require our consideration on the appeal.
In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 may have been suffered where:
… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
We have allowed on the appeal the fresh evidence at pages 24-78 of the appellant's documents filed on 18 February 2021. That evidence comprises a publication by Environmental Health Australia Ltd entitled "Australian Voluntary Code of Practice - Assessment, remediation and validation: Former clandestine drug laboratories and other methamphetamine contaminated properties" dated November 2019 (Code of Practice).
The respondents did not make any objection to us receiving that document into evidence on the appeal.
We have allowed the document in part because it is cited as a "Guideline Reference" document in the MTK Report that was relied upon by the respondents both before the Tribunal and on the appeal. As such we can see no prejudice being occasioned to the respondents. Further, it would seem to be of obvious relevance and significance in understanding the evidence of the Pest Control Shop's testing for the presence of methamphetamine and the decontamination recommended in the MTK Report.
In our opinion, if the Tribunal had the benefit of the Code of Practice in the evidence before it and had due regard to its contents, 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. The conclusions reached by us in this appeal were made independently of the matters contained in the Code of Practice. However, those matters that we discuss below in the context of the two reports are also issues dealt with in the Code of Practice. So, if the Tribunal had the Code in evidence before it, then it follows that the Tribunal would have been more likely to have directed its attention to those matters. In doing so, there was a "significant possibility" or "chance which was fairly open" that it would have properly assessed the weight of that evidence in light of the Code and not made the findings it did based on the testing undertaken by the Pest Control Shop.
[11]
Respondent's Photographic and Documentary Evidence
The appellant initially occupied the premises from 15 January 2016 for a 26 week term under a standard form Residential Tenancy Agreement. After the end of that term on 14 July 2016, he then appears to have continued to occupy the premises under a periodic agreement until he entered into another standard form Residential Tenancy Agreement dated 10 February 2017 for a fixed term commencing on 10 February 2017 and ending on 8 February 2018. After that fixed period, it appears that the tenancy continued as a periodic agreement until the appellant vacated the premises on 3 September 2020.
The respondent's evidence included a Residential Premises Condition Report recording the condition of the premises at the start of the tenancy on 15 January 2016. The report at page 7 described the ensuite as generally being in good condition generally and the vanity as comprising "a single white basin with mixer tap" and a "2x doors & 1x shelve [sic] white basin cabinet, good as new".
The notation on page 7 of that Condition Report after the appellant vacated on 3 September 2020 included the following comments in relation to that ensuite: "yellow stains; strong smell; filthy; vanity stained; exhaust filthy; grout dirty/yellow; toilet yellow; door yellow".
The "very strong smell" which allegedly caused the respondent to contact the police was not noted on the Condition Report.
The respondent's evidence also included some photographs taken at a routine inspection of the premises on 7 February 2017. Those photographs depict the ensuite, and the vanity in particular, without any yellowing or staining.
The photographs taken after the appellant vacated the premises show a dramatically different condition of the ensuite. However, the photographs taken on 7 February 2017 are all of a clarity and quality that is far superior to the photographs taken after the appellant vacated. The photographs for example at pages 165, 167, 177, 187 and 189 of the respondent's documents before the Tribunal and on the appeal, which we understand depict the ensuite, are all taken in what appears to be exceptionally poor lighting. The basin does appear discoloured. While there is a noticeable difference in the colour of the vanity basin to that of the cupboard below, the vanity cupboards and basin are obviously of different materials. The mere fact that overtime one discolours differently to the other does not of itself lead to the inference that the respondent seeks to establish as to the cause of that discolouration.
For the reasons we discuss below, there was an absence of any probative evidence to establish that the discolouration was in fact or was likely to have been caused by methamphetamine use. There was no quality controlled and accredited testing for the tests that returned positive results for the presence of methamphetamine in the ensuite. We therefore cannot be satisfied that the Tribunal was correct in finding the appellant liable for all of the costs it allowed for the methamphetamine testing and the decontamination of the premises.
[12]
Ground One
The Tribunal accepted the totality of the evidence adduced by the respondents comprising the Pest Control Report and the MKT Report. In doing so, the appellant contended that the Tribunal erred by failing to properly assess and consider the reliability and weight of that evidence. For the reasons that follow, we agree.
The Tribunal found that the appellant was liable for costs totalling $4,245 associated with:
1. the testing for methamphetamine: $295.00
2. for decontamination of the premises due to methamphetamine: $3,950
We are of the view for the reasons we set out below, that the Tribunal erred by accepting the respondents' evidence and making those two findings. The Tribunal failed to disclose its process of reasoning or to explain why it accepted that evidence over the appellant's submissions challenging that evidence.
We have not needed to consider all of the points raised by the appellant in his submissions to reach our conclusion that the Tribunal erred by affording too much weight to the testing and decontamination reports.
[13]
The Pest Control Report dated 7 September 2020
We make the following observations with respect to the Pest Report:
1. It is signed electronically by David Wilson under the names of both David and Linda Wilson. It is unknown if it was David Wilson or Linda Wilson or both of them or someone other than them who undertook the testing;
2. it does not identify the relevant (if any) qualifications of the person or persons who undertook the testing;
3. it does not establish any specialised knowledge for the testing of methamphetamines in a laboratory, in the field or by forensic inspections based on any training, study or experience in relation to the person who undertook the testing (or the Pest Control Shop more generally);
4. the respondents provided an extract of a search of the business name "Drug and Alcohol Testing" registered on 3 June 2020, identifying the holder of that name as David Wilson and having the same address as the Pest Control Shop. Registering a business name provides no basis to infer or establish that the holder of that business name has any expertise, experience, certification or accreditation for the testing of methamphetamine in premises.
5. there is no discussion or explanation of the method of testing. There is only a reference in the report to there having been four "Field Composite" tests undertaken. The relevant Pest Control Shop invoice dated 8 September 2020 also refers to "Meth Testing Report Field Composite." The words "Rapid test" appears on each of the four photographs of the test results. There was no explanation of the meaning of these terms or related procedures;
6. there is no mention of the guidelines, references or publications under which the testing was said to be undertaken and compliant with;
7. only one of the four tests returned a positive result. That was Test 2 for the ensuite. The report only provides a photograph of the result. There is no attempt to identify actual location of the testing in the ensuite. There is no table of the results or measurements recorded or even what the photograph depicts to indicate a positive result. It is impossible to understand what is shown in the photographs of any of the 4 test results and the report makes no attempt to explain it;
8. On its face, and in the absence of any explanation, it is unclear how a pest control shop has any expertise, experience or role in the ordinary course of its pest control business for testing for the use of (illegal) substances such as methamphetamine;
9. The report does not indicate any knowledge that it might be or was intended to be used by the respondents in proceedings in the Tribunal so the author(s) of the report were not afforded any opportunity to identify any relevant qualifications in the report;
10. The report was a preliminary report in that if there was sufficient evidence in the 4 "field composite" tests then it recommended a "Lab Composite" NIOSH 9111 report to be undertaken to establish "levels of contamination". NIOSH is a reference to the National Institute for Occupational Safety and Health. The report recommended a "Lab Composite NIOSH 9111 test for levels of contamination within the positive area [ie the ensuite] and other internal living areas. This will provide the levels of total contamination and support the delivery process of cleaning and sanitation". The respondents do not seem to have accepted that recommendation.
11. The recommendation raises doubt about the reliability of the positive result returned for the ensuite if further testing of that room and the levels of contamination was recommended. It also raises the question of why the respondents did not accept that recommendation when engaging MTK who appear to be recognised experts in this field.
[14]
Code of Practice
Further, and having regard to the voluntary Code of Practice admitted into evidence on the appeal, the Pest Control Report should not have been relied upon and afforded the weight given to it by the Tribunal. The Pest Control Report did not comply with many of the specific requirements of that Code, including by way of example:
Clause 4.1
A person who seeks to be considered suitably qualified to undertake or supervise the sampling, assessment, remediation and/or validation work on any property where methamphetamine, or other drug contamination is known or suspected… Must be capable of demonstrating they have appropriate qualifications and/or training and experience a vision to be accepted by a court of law note that such work is the potential for significant financial and health implications, and were carried out may be challenged in court.
…
It is noted that academic qualifications alone are not sufficient for demonstrating sufficient knowledge/experience to undertake the works required on these properties. All individuals undertaking these works must have appropriate training and experience, which they should be able to verify the training and experience must be specifically relevant to the assessment and remediation of methamphetamine contaminated properties.
Clause 6.3 of the Code refers to "Field Composite" testing, being the term used in the Pest Control Report. This is described in the Code as involving the collection of "a multi-wipe composite sample from a property" and:
This is where NIOSH compliant wipe sample is collected from each individual location, and all wipe samples (gauze materials) placed into the one sample container for laboratory analysis ... This method should only be used as a screening assessment ..."
The Code makes it clear that analysis of the sample results is not an average over the number of samples so that if only one sample location reports a mass present in 100cm2 of 0.5 micrograms, the total mass reported for all three samples would be 0.05 micrograms.
Therefore, it is not possible to know how the contamination is distributed over the areas sampled using this method. We interpolate here to note that there is no way of knowing whether NIOSH compliant wipe samples were used. The only reference to "wipes" is in the MTK report where that report tables the test results. The Pest Control report does not suggest that the rapid testing was NIOSH compliant. It may be that the reference to rapid tests is a reference to a presumptive screening test by using a sampling kit that is described in the Code at Section 8. The Code at Section 8.1 states:
"It is important that the results obtained in a screening assessment are appropriately evaluated and communicated".
We can only speculate in the absence of evidence as to whether there was sampling or screening testing undertaken for the purpose of the Pest Control Report.
Clause 8.3 (Screening Assessment) and clause 9.3 (Detailed Assessment) of the Code both provide:
Sampling locations need to be accurately recorded using one or a combination of the following methods:
• written description of sample location;
• offset measurements from a fixed point (for example, a doorway);
• photographs;
• a floor plan; or
• video recordings.
As a minimum, the sample location records needs to include the type of area, the type of service sampled (such as tiles, coated or uncoated timber, concrete, painted plasterboard walls) and the location within the area where the sample was taken.
Clause 8.4
Only testing conducted in compliance with this Code should be considered appropriate for determining the presence, or otherwise, of methamphetamine contamination in a property.
Clause 8.5 provides in relation to screening reports respectively:
A detailed screening assessment report should include the following as a minimum -
• the date of the screening assessment;
• the address or description of the property or asset;
• the identity of the person who conducted the screening assessment, including qualifications, a declaration of any interest the screener sampler has in the property or asset, for example as the property owner, landlord, purchaser, tenant, vendor, or manager;
• a description of the property layout that describes the sampling locations;
• all information collected as part of the initial site visit or inspection, including observations and a copy of the Police report (where available);
• the method used to collect samples, including where any samples were collected that were from an area different to 100 cm²
• the methodology employed to analyse the samples;
• details of the locations selected for sampling;
• the limitations of the sampling and testing methodology employed, including but not limited to: areas not sampled and the rationale for this; and factors which may influence the outcome of the test result, such as prior cleaning or renovation of surfaces;
• the results of the sampling, including photographs of screening tests, or copies of any laboratory analytical report(s) (which need to be appended, if relied upon);
• quality control sample results and interpretation;
• a conclusion confirming the presence or absence of methamphetamine contamination at the property. The conclusions of the screening assessment should also make it clear what the screening results can be used for.
Similar although more extensive requirements are set out in clause 9.7 of the Code in the case of detailed assessment reports.
In clause 9.3, the Code requires site inspections and sampling records to include photographs and notes of any relevant observations such as:
1. stains
2. odours
3. ventilation systems and vents.
Given the evidence of the respondents as to what prompted them to engage the Pest Control Shop to undertake the testing, such an omission from the report only serves to cast further doubt on its reliability and the expertise of those undertaking the testing and report preparation.
Clause 11.2 of the Code provides:
When the agreed remediation work on a property … has been completed by the remediation contractor, the property should be further tested to determine the effectiveness of the remediation and a validation report prepared.
Validation sampling should be undertaken by an independent sampler…
We have set out the above to reinforce our earlier view and to further explain the relevance of the matters we identified as to why the Pest Control Report was unreliable and devoid of any probative value. Irrespective of the Code of Practice not being in evidence before the Tribunal, we are of the opinion that the Tribunal erred by affording any weight to the Pest Control Report. The Code of Practice that we admitted into evidence on the appeal serves to corroborate those matters and gives rise to the significant possibility that if it was in evidence before the the Tribunal, the appellant would have obtained a far more favourable outcome.
[15]
MTK Report dated 17 September 2020
The MTK Report was prepared on 17 September 2020. It is actually more in the nature of a quotation for a decontamination service to be undertaken at the premises. The document uses the terms "quote" and "report" interchangeably but it is clear that the document is a quotation for the cleaning and remediation of rooms tested to be above 0.5 micrograms per 100cm2 to bring it below that level. Rooms below that level did not require remediation as such lower levels were said by MTK to pose "little [or] no risk" to occupants. The invoice dated 18 September 2020 issued by MTK for the decontamination works at a quoted price of $3,950, required a 50% deposit and payment of the "balance on completion" of the work.
It is also made clear that at the date of the report "the parties to this quote have relied on a third party meth testing report ...". That is presumably a reference to the Pest Control Report test results. The tests referred to in the MTK report are identified as being undertaken on 7 September 2020, which is the date of the Pest Control Report. However, the MTK Report does not identify the person or company who undertook the testing or specifically refer to or reference the Pest Control Report.
It would appear that unlike the Pest Control Shop, MTK are a business dealing specifically with what it promotes as "Reliable and Cost-Effective National Meth Decontamination Solutions". In addition, the MTK Report states that MTK undertakes the training, testing and the supply of products for testing and decontamination with "a team of over 400 trained and certified contractors nationally ...".
In addition, MTK provided a certificate of currency issued by Lloyd's for insurance covering its business activities up to 24 June 2021 for methamphetamine "laboratory based screen testing", "field-based screening test(s); "forensic inspections" and "decontamination services".
Despite their apparent expertise in methamphetamine testing and the recommendation for further testing made in the Pest Control Report, MTK did not itself undertake any testing of the premises. There is no evidence from the respondents to explain why they did not accept the recommendation of the Pest Control Shop when engaging MTK. Further, the MTK Report refers to the "rapid testing" procedure having been undertaken to test the property and then states that "Lab results show there is contamination to all areas of the property". On our reading of the Pest Control Report, there was only a recommendation to undertake "a Lab Composite" report and there is no evidence of any such laboratory testing having been undertaken.
There is no evidence that the MTK quote was accepted. If decontamination was undertaken, there has been no completion report or validation report provided. There is no evidence of payment of the 50% deposit to which the MTK invoice of 18 September 2020 refers, no evidence of when that work might have occurred and no record of payment of the "balance on completion" of the remediation.
It is difficult to believe that if decontamination was required, as alleged, that the property was re-let or occupied without that work first being undertaken in accordance with the MTK quote to ensure there was "little" or "no risk" to any future occupants.
Further, the MTK Report specifically stated:
This report is private and confidential ... This Quote is not intended for use as evidential purpose [sic] in any legal proceedings as this document is for remediation."
Adding uncertainty to the evidence is the statement in the MTK Report by reference to the Pest Control Shop's test results that:
"The above [test results] report low level contamination through-out the property. However, only the lounge/dining area and hallway require decontamination ...".
That statement would appear to be at odds with the Pest Control Report's test results that only identified positive levels of methamphetamine in the ensuite. Also, the table of test results in the MTK Report identifies the ensuite (which returned a positive result in the Pest Shop Report) as 0.35 which is below the level of 0.5 micrograms. There has been no explanation as to why, if the Pest Control test results were accurate with respect to the ensuite, why the MTK Report identified - by reference to those same test results - a different result such that the only area requiring decontamination was the lounge/dining area and not the ensuite. MTK do not suggest that the test results were wrongly interpreted by the Pest Control Shop but this must be the case if the MTK report and its quote for decontamination in the lounge/dining room is to be accepted.
In our opinion, the Tribunal erred:
1. in affording weight to the test results undertaken by the Pest Control Shop, without any evidence as to the expertise or qualifications of those who performed the testing, without knowing the methods or standards applied for that testing and not having proper regard to the preliminary and inconclusive nature of that testing; and
2. by failing to have due regard to the limitations and qualifications of the MTK Report, the unexplained discrepancies between the Pest Control Report and the MTK Report and the absence of any certification or validation report upon completion of any of the remediation work.
[16]
Ground Three
The other remaining ground of appeal concerned whether the Tribunal properly took into account "fair wear and tear" in its assessments of quantum.
Although there is no process of reasoning disclosed in the Tribunal's decision, it is apparent that all amounts awarded - except for testing and decontamination for methamphetamine - were discounted from the full amounts claimed by the respondents. The respondents submitted at the hearing of the appeal that this was referrable to fair wear and tear for those amounts claimed in the invoice of the respondent's (unidentified) handyman dated 8 October 2020 and said that at the hearing before the Tribunal, the Member expressly acknowledged the need to allow for wear and tear on those claimed amounts, comprising:
1. repainting of the door frame and ceiling in the ensuite - reduced from $440 to $264;
2. the cost for new vanity in the ensuite - reduced from $792 to $475.20;
3. repainting was reduced from $770 to $462, allowing that sum for the hallway and disallowing amounts for the lounge-room and kitchen.
In addition, cleaning costs in the invoice from Jim's Cleaning dated 14 October 2020 were reduced by the Tribunal from $660 to $440.
We are satisfied that the Tribunal made the appropriate discretionary allowances for fair wear and tear in allowing the above amounts taking into account the length of the appellant's tenancy. There is no other apparent explanation for the Tribunal discounting the amounts claimed by the respondents.
The appellant submitted at the hearing that the appeal primarily concerned the issues associated with Tribunal's findings that concerned the alleged use of methamphetamine. We have addressed that ground of appeal concerning the testing and decontamination reports and associated costs. The cost of replacing the vanity which was said to have been stained by the alleged methamphetamine use in the premises would also presumably be the subject of challenge for the same reasons.
It was not entirely clear whether on this appeal we were concerned with the Tribunal's finding to allow the cost of a new vanity in the ensuite that was apparently due to staining attributed to the use of methamphetamine in the ensuite or whether it was limited to challenging whether there was any allowance for fair wear and tear in that sum of $475.20. It appears to be the latter given that this ground of appeal concerned fair wear and tear only.
We accept the Tribunal's allowance of $475.20 reduced from $792 for the appellant's contribution to the cost of replacing the vanity taking into account fair wear and tear and the length of the tenancy. We can discern no error in the exercise of the Tribunal's discretion in allowing fair wear and tear although the reasons or basis from which this was derived are not clear from the decision. The appellant did not suggest an alternative sum to the discount made by the Tribunal contend there was any error in reaching the amount it did.
In the event that the appellant was alternatively or separately contending that the Tribunal was wrong to allow any costs associated with replacing the vanity, we propose to deal with that also. We are satisfied that there was sufficient evidence for the Tribunal to make the finding it did with respect to the vanity needing to be replaced but not for the reasons for which it apparently made that finding. On this appeal, based on the evidence before us, we are unable to accept the appellant's contentions that the vanity in the ensuite did not require replacement.
In doing so, we make no finding that the ensuite required replacement due to staining or other reasons caused by the use of methamphetamine by the appellant or anyone else at the premises. We have had regard the photographic evidence and condition reports referred to above. We need not determine the cause of the vanity needing replacement beyond being satisfied that there was some evidence before the Tribunal to establish that the vanity needed replacement. That evidence was contained in the Condition Report referred to above.
We reject this ground of appeal.
[17]
Disposition of the appeal
We allow the appellant leave to appeal and we have upheld the appeal in part.
We allow the appeal in so far as it challenged the Tribunal's findings with respect to any allowance for the cost of the methamphetamine testing and costs associated with decontamination of the premises made in reliance on that testing.
We reject the other ground of appeal in relation to the appellant's contention that the Tribunal failed to allow for fair wear and tear in the other amounts it awarded.
The appellant confirmed during the appeal hearing that the bond had been paid to the respondents in full, that being $1,800. The appellant also confirmed that he had made eleven $100 weekly payments to the respondents as at the date of the appeal hearing, totalling $1,100. This means that the appellant has paid to the respondents at least $2,900 which is in excess of the $1,641.20 the Appeal Panel has determined the appellant owes the respondents. The respondents must therefore repay to the appellant any amount received by them in excess of $1,641.20.
[18]
Costs
On 27 January 2021, the Tribunal granted leave to the appellant to be legally represented and leave for the respondents to be represented by Ms Searle "on condition that no legal costs may be recovered by that party [ie the respondents] in the appeal".
We have therefore made provision for any application for costs in our orders.
In the event of any application for costs being made, the parties are encouraged to resolve any question of costs by consent.
[19]
Orders
We make the following orders:
1. Grant leave to appeal.
2. Allow the appeal in part.
3. Vary the money order (Order 1) made by the Tribunal on 11 December 2020 by ordering the appellant to pay the respondents the sum of $1,641.20.
4. Within 28 days, the respondents repay to the appellant any amounts received by them from the appellant and the Rental Bond Board in excess of $1,641.20.
5. Otherwise, affirm the orders of the Tribunal of 11 December 2020.
6. If the appellant seeks an order for costs, he is to file and serve an application for costs together with supporting submissions which are not to exceed 5 pages, within 28 days of the date of this decision, and to address whether a hearing on the question of costs should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.
7. If the respondents oppose any application for costs made by the appellant, they are to file and serve any submissions in response not to exceed 5 pages within 14 days of receipt of the appellant's submissions, and to address whether a hearing on the question of costs should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.
8. Any submissions in reply by the appellant are not to exceed 2 pages and are to be filed and served within 10 days of receipt of the respondents' submissions
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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: 05 May 2021