Dr Graeme Clark (the landlord) appeals against the decision in the Consumer and Commercial Division to order the landlord to pay Mr Mark Callil (the tenant) the sum of $400.00, being compensation for failure to repair or replace blinds in a timely manner, and to order that the rent payable be reduced to $350 per week for the period 18 May 2016 to 29 June 2016, and to $480 from 30 June 2016 to 8 September 2016.
The landlord and tenant were parties to a residential tenancy agreement dated 19 April 2016 for residential premises at Wentworth Point. The term of the residential tenancy was 22 April 2016 to 20 April 2018. In proceedings RT 17/19261, commenced on 28 April 2017, the tenant sought an order under s 187(1)(d) of the Residential Tenancies Act 2010 (the RT Act) for compensation in the amount of $14,226, and an order under s 45 of the RT Act for a reduction in the rent payable. The parties were unable to resolve the issues in dispute at the Conciliation and Hearing (Group List) on 17 May 2017 and directions were made for each party to provide documents to the other and to the Tribunal, the tenant by 7 June 2017 and the landlord by 28 June 2017.
[2]
Decision under Appeal
The landlord was represented at the hearing by his managing agent, Ms Loyzaga. The tenant appeared in person. The landlord had provided documents on 26 June 2017. The Member noted in her reasons for decision that the tenant had not provided documents in accordance with the directions of 17 May 2017, and that he had a copy of his documents with him. The Member inspected the documents and concluded that they were largely the same as the documents provided by the landlord. The landlord was given a copy of the documents, and the hearing proceeded.
The tenant's application for a reduction in rent was based on building rectification works, including to the balconies of the units in the building. The Member accepted the tenant's evidence that his use and amenity of the premises was affected for 6 weeks while the scaffolding was around the balcony and perimeter of the building and for a further 10 weeks after the works moved to the roof directly above the unit, including impacts on ventilation, privacy, and from building noise. The Member also accepted the tenant's evidence that in the course of repair of the skylights a hole was made in the bathroom. The Member referred to the agent's evidence that the tenant had some notice that rectification works would take place, prior to renting the property, and that the landlord was not aware of the scope of the works until a notice regarding the works was posted on 10 May 2016. The hole in the bathroom wall was patched and painted on 19 September 2016.
The tenant's claim for compensation for failure to make timely repairs included the blinds in the bedroom and lounge, and the tap spout. The tenant complained about the blinds in an email to the agent on 23 May 2016; the blinds had previously been repaired before the tenancy; and the repair of the blinds was agreed by the landlord on 14 November 2016. The Member referred to the agent's email of 6 October 2016 recording her observations of the blinds, which included the comment that the drawstring to open and close the blind "is almost broken", and that at that time "the blind cannot be used". In relation to the vertical blinds in the lounge room, the track had been installed too close to the door frame, and the blinds were unable to rotate.
The Member found that the building works had a serious impact on the tenant's use of the apartment. She referred to the provisions of s44(1)(b) and 44(5) of the RT Act, and concluded that the tenant did not have full use and enjoyment of the property during the 6 week period that the scaffolding surrounded the apartment and works were carried out, and that the works on the roof interfered with the normal use of the property (to a lesser extent) and the hole in the bathroom had an effect on amenity. The Member did not allow any compensation for the amounts claimed by the tenant for the hire of alternative premises as an office, on the basis that that damage was too remote to be claimed. The Member found that the blinds were in need of repair, a situation not rectified until after 14 November 2016; that the landlord was in breach of his obligation under s 63 of the RT Act to provide and maintain the premises in a reasonable state of repair; and that compensation of $400 should be awarded. The Member was not satisfied that the evidence established the tenant's claim about the tap spout.
[3]
The Appeal
The landlord seeks to have the orders made on 20 July 2017 reversed and the tenant's proceedings set aside. The grounds of appeal, in summary, are that the matter was not properly assessed by the Member because:
1. The landlord was disadvantaged because the tenant was able to review the landlord's documents and provide his evidence on the day of the hearing;
2. The full facts of the tenant proceeding with the tenancy knowing that the building was being repainted at the time of applying for tenancy were not taken into consideration;
3. The compensation ordered was excessive; and
4. The landlord was unfairly penalised by the tenant's inability to follow orders by the Tribunal.
The landlord seeks leave to appeal, stating that the landlord's evidence demonstrated the contradiction in the tenant's claim, and that significant new evidence is available, which the landlord had not had the opportunity to present because the tenant did not comply with the Tribunal orders. The landlord states that the decision was not fair and equitable, on the basis that the tenant had prior knowledge of the building works; the hole in the bathroom wall did not impinge on functionality; the claims that the blinds needed repair were false; and the tenant failed to provide his evidence as directed. The landlord claims that he was unfairly penalised by false testimony by the tenant, exaggerated claims for the need for blind repairs and disruption caused by bathroom repairs, and the tenant's failure to follow Tribunal orders.
[4]
Reply to Appeal
The tenant supports the orders made on 20 July 2017, stating that:
1. He was not made fully aware of the major rectification works;
2. The landlord and agent had an opportunity to provide evidence at the hearing on 20 July 2017;
3. He had provided his documents to the agent on 3 April 2017;
4. He had fulfilled his obligations as a tenant in notifying the landlord via the agent of the bathroom leak and hole in the wall, and did not hinder the process of repair; and
5. He had reported the defective blinds to the agent via the condition report and by subsequent emails.
[5]
The Appeal
The landlord provided written submissions in support of the appeal dated 17 and 19 September 2017, which included documents not provided to the Member at first instance, being an email dated 30 August 2017 from the building manager and a photograph of a notice said to have been posted in the building lifts on 14 April 2016; and an email dated 24 August 2017 with notes from a meeting between the tenant and agents. The landlord requested leave to provide additional evidence, in the form of an email statement dated 21 August 2017 by Chris Yinfoo, the former agent, and an invoice dated 12 April 2016 for repair of vertical slats and tracks in the amount of $120.00.
The tenant provided written submissions dated 20 September 2017.
The landlord and tenant appeared in person at the appeal hearing. Each confirmed by reference to the RT 17/19261 file, the contents of the documents they had provided at first instance, namely the landlord's document filed on 26 June 2017, and the tenant's documents provided at the hearing. The landlord stated that his managing agent had prepared the documents filed on his behalf, and that she had had the tenant's documents when she did so. He did not attend the first instance hearing.
The parties were directed at the appeal call over on 29 August 2017 to provide a copy of the sound recording of the first instance hearing if what happened at the hearing was being relied upon. The landlord subsequently advised the Tribunal that he did not propose to provide or rely on the sound recording. On 28 September 2017 the Tribunal confirmed receipt of that advice, and advised the landlord that in the absence of the sound recording the Appeal Panel may determine that a challenge to any factual conclusion or a challenge based on what happened at the original hearing may not be allowed.
[6]
Availability of Appeal
This is an internal appeal pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). The appeal may be brought as of right on a question of law or, with the leave of the Appeal Panel, on other grounds. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act leave to appeal may only be granted under s 80(2)(b) if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
1. the decision of the Tribunal under appeal was not fair and equitable, or
2. the decision of the Tribunal under appeal was against the weight of evidence, or
3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarised at [71] and [79] as follows:
[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. . .
[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 . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). As explained in Collins v Urban at [84], ordinarily it is appropriate to grant leave to appeal only in matters that involve:
1. issues of principle;
2. questions of public importance or matters of administration or policy which might have general application;
3. 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;
4. a factual error that was unreasonably arrived at and clearly mistaken; or
5. 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.
[7]
Whether there was an error of law
Subject to the issue of fairness to the respondent, where the Appeal Panel determines that an error of law is raised in the material before it, even if not identified by an unrepresented appellant in the Notice of Appeal, it ought to deal with that identified error on the appeal: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12].
The landlord's claim that he was disadvantaged by the tenant's failure to provide his documents until the day of the hearing potentially raises a claim of denial of procedural fairness. That would constitute an error of law: Prendergast at 13; Italiano v Carbone [2005] NSWCA 177.
The directions made on 17 May 2017 were in the standard form, and included the direction to both parties that failure to provide documents in accordance with the Tribunal orders may result in a party not being able to rely on the documents at the hearing, unless leave was granted to do so. The Member's reasons confirm that she inspected the tenant's documents and satisfied herself that they were in substance incorporated in the landlord's documents. At the appeal the landlord accepted that the tenant had provided them beforehand to his managing agent, and that they had been taken into consideration in preparation of the landlord's documents. The disadvantage he claims is that in not knowing that those were the documents on which the tenant would be relying, there was not an opportunity to collect evidence to dispute the tenant's version of events.
It is clear from the Member's reasons that she considered whether it was appropriate to proceed with the hearing, in circumstances where the tenant had provided his documents only at the hearing. She satisfied herself that the documents were largely the same as those provided by the agent, and while not expressly stated, her decision to proceed with the hearing indicates that she concluded that there would be no disadvantage to the landlord in proceeding. At the appeal the tenant stated that if anything he was disadvantaged by the hearing proceeding, as had he known he would not be able to pursue his claim for the cost of renting alternative office space, he would have been able to obtain further evidence to support that part of his claim.
We are unable to identify any breach of procedural fairness in the Member's decision to grant leave and allow the tenant's documents in, and to proceed with the hearing. The directions made on 17 May 2017 enabled the Member to grant leave for the tenant to rely on evidence provided otherwise than in compliance with those directions. The landlord was not able to point to any specific disadvantage in the hearing proceeding, notwithstanding the late provision of the tenant's documents. The landlord accepted that his managing agent, who had represented him at the hearing, had access to the documents when she was preparing his documents in reply. The landlord's agent was accordingly on notice of the factual assertions made by the tenant as to his knowledge of the building work and the other issues raised in his claims. The landlord's agent had the opportunity to, and did, counter those assertions in the documents filed on 26 June 2017. The Appeal Panel is not persuaded that the landlord was deprived of a reasonable opportunity to present his case in response to that put by the tenant.
There was no breach of procedural fairness, and no error of law.
[8]
Whether leave to appeal should be granted
The landlord requires leave to appeal. As noted recently by the Appeal Panel in Temple v AMR Motors Pty Limited [2017] NSWCATAP 221:
38…. Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so).
39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel.
In seeking leave to appeal the landlord submits that the decision was not fair and equitable. His primary contention is that the tenant was fully aware of the building rectification works before the tenancy and the rent had already been reduced below market rate, and that the Member did not take into consideration the fact that the tenant proceeded with the tenancy in full knowledge of the planned works. In written submissions the landlord frames this contention in terms of the Member accepting the tenant's version of events for which there was no evidence and ignoring the landlord's version of events for which there was strong evidence.
Whether the submission is based on cl 12(1)(a) or (b), Collins v Urban states that the issue is whether the appellant has been deprived of a significant possibility or a chance that was fairly open that a different and more favourable result would have been achieved. For a decision to be said to be against the weight of evidence, the Appeal Panel would need to be satisfied that 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 member could reach.
The Member recorded the tenant's evidence that he inspected the apartment in the Monaco building on or about 10 April 2016, and saw a notice in a neighbouring building of the complex which referred to building rectification works; that the agent Mr Yinfoo did not know specifically if building works were to occur in the Monaco building; and that the strata manager would not give him any further information. The Member recorded the evidence that a notice about the building works was placed on the common property on 10 May 2016. A copy of that notice, which includes apartment 411 in the list of apartments affected and specifies the extent of the building works to be undertaken, was in evidence at first instance.
The Member found that the tenant was not informed of the serious building works which commenced shortly after the tenancy commenced. In challenging this finding, the landlord seeks to rely in the appeal on a copy of a notice placed in the lifts on 14 April 2016, included in his submissions on the appeal. Even if it were appropriate to permit the landlord to rely on this evidence, it would not assist the landlord as the notice does not refer to apartment 411, the apartment the subject of the residential tenancy agreement. There was evidence to support the Member's finding that the tenant was not aware of the actual building works proposed, and no error has been demonstrated in her evaluation of the evidence as to the extent of the works actually undertaken after the tenant moved in. The landlord's disagreement with her conclusion that the impacts on amenity were serious does not demonstrate that there was a likelihood of a substantial miscarriage of justice in the terms required by Collins v Urban.
The landlord challenges the Member's findings on the blinds, submitting that the compensation awarded was unwarranted as the blinds were not dysfunctional and repairs were made to the blinds before the tenant moved in. The landlord is seeking to rely on new evidence to establish the latter proposition. The Member's reasons confirm that in relation to the former, her findings as to the need for repair were based on the managing agent's evidence as well as that of the tenant. The landlord seeks to revisit the findings of fact, and has not demonstrated that the finding was made against the weight of evidence as discussed in Collins v Urban.
The landlord's Notice of Appeal also challenges the Member's additional rent reduction based on the hole in the bathroom wall. The landlord's submissions take issue with the Member's findings as to the extent of impact on the tenant's enjoyment of the premises. Those findings were based on the Member's evaluation of the evidence, and her reasons explain why she reached her conclusion that the impacts on the tenant's amenity were serious. The landlord has not established that there was a failure in the way the matter was decided that deprived him of a chance that was fairly open of achieving a better outcome than occurred such that there may have been a substantial miscarriage of justice.
The landlord also seeks to rely on new evidence, being a statement by Mr Yinfoo and an invoice dated 12 April 2016 for repair of the blinds. Clause 12(1)(c) requires that the new evidence be significant new evidence which has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). The landlord submits that this evidence would have been provided at the initial hearing had the tenant's evidence been available for review before the hearing.
The test under cl 12(1)(c) is an objective test, and requires that the evidence be unavailable because no person could reasonably have obtained it; a party's incapacity to procure that evidence is not sufficient: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111; Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11. That has not been established. Further, as made clear in the Member's reasons, and accepted at the appeal, the landlord's agent had seen the tenant's evidence, and had had access to it when preparing the landlord's reply. The Appeal Panel is not satisfied that any substantial miscarriage of justice may have occurred on this ground.
The landlord has not established that there was a failure in the way the matter was conducted or decided which deprived him of a chance that was fairly open of achieving a better outcome than occurred such that there may have been a substantial miscarriage of justice under any of the grounds in cl 12(1) of Sch 4 to the NCAT Act. That conclusion means that it is not necessary to consider whether, in the exercise of discretion, leave to appeal should be granted.
[9]
Orders
The orders of the Appeal Panel are:
1. Leave to appeal refused.
2. Appeal dismissed.
[10]
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: 13 December 2017