Cook v Mintus Properties Pty Ltd

Submissions on appeal

1. Mrs Cook submitted that she should be given leave to appeal because new evidence had come to light since the Tribunal's decision, principally in relation to the issue of asbestos. Ms Cook stated that after she had received the orders of the Tribunal she commissioned a report by Environment & Natural Resource Solutions (ENRS). ENRS reported on 1 March 2019 that it had conducted a site inspection on 28 February 2019, which identified material forming the bathroom sub-floor and the ceiling of the ground floor garage to be of a fibrous nature characteristic of asbestos-containing material. The report stated that the area should be subject to an exclusion zone until a clearance certificate was issued. Ms Cook stated that she was advised by Singleton Shire Council on 10 April that its testing confirmed that the material contained asbestos and that the Council had issued a cease use order on the property.
2. Ms Cook submitted that the Tribunal should have adjourned the hearing so that further evidence in relation to the asbestos issue could be gathered.
3. Ms Cook submitted that since receiving the orders of the Tribunal further significant new evidence was that she had been told on 10 April 2019 that the Council had issued a rectification order for the veranda.
4. Ms Cook also submitted that she should be granted leave to appeal because the decision was not fair and equitable and was against the weight of evidence. In support of this submission, Ms Cook referred to evidence in the form of photographs, quotes from licensed builders and other tradesmen and emails which had been tendered in evidence before the Tribunal. In particular, Ms Cook referred to evidence in the form of photographs and quotes to repair the veranda which identified a safety risk.
5. Ms Cook submitted that the Tribunal should not have proceeded to determine the matter under section 63 of the Act but instead should have proceeded under section 44 of the Act. Ms Cook said that she had mistakenly referred to section 45 of the Act in her application but had meant to refer to section 44.
6. Mintus submitted that it had been given only just over 24 hours' notice of Ms Cook's application to amend to include an alleged asbestos claim prior to the Tribunal hearing and submitted that the Tribunal correctly refused to allow the amendment. Furthermore, Mintus pointed to a document establishing that Shoalhaven Council had in fact issued a draft stop order on 4 April 2019 in relation to the bathroom subfloor. Mintus also pointed to a report from Asbestos Reporting South Coast dated 23 April 2019 which stated that the bathroom subfloor was non-friable asbestos in the form of compressed fibro sheeting and that hazards and/or any airborne fibre would have been present when penetrations were made many decades ago. The report recommended that the exposed edges of the penetrations and delamination at the underside of the compressed fibro flooring should be sealed with PVA or paint.The report also stated that the mere presence of asbestos in the building did not mean that the health of the occupants was in danger. Mintus referred to a subsequent clearance certificate issued by Asbestos Reporting South Coast dated 8 May 2019 after the bathroom subfloor had been encapsulated with PVA as recommended by the report dated 23 April 2019.
7. Mintus submitted that the decision of the Tribunal was fair and equitable and that all of the findings were supported by evidence. Mintus also pointed out that it had agreed to release Ms Cook from the remainder of her fixed term lease which was due to end on 26 April 2019 and that Ms Cook had vacated the premises on 2 March 2019.

Consideration

1. Although Ms Cook has sought leave to appeal, it is appropriate that we consider first her submission that the Tribunal proceeded to consider her claim under the wrong section of the Act. That is because if this submission is correct, this would amount to an error of law by the Tribunal in respect of which Ms Cook would not require leave to appeal.
2. In our opinion there was no error by the Tribunal in declining to consider Ms Cook's claim under section 45 of the Act, as she had nominated in her application, and instead considering Ms Cook's claim as one for breach of the landlord's duty to provide and maintain the premises in a reasonable state of repair under section 63 of the Act. On the contrary, Ms Cook was bound to fail in her claim under section 45 because that section only applies where the rent has abated in the circumstances set out in section 43 (2) of the Act. None of those circumstances were applicable to Ms Cook. Furthermore, there is no indication in the Tribunal's reasons that Ms Cook at any stage indicated that she was making an application under section 44 of the Act. An application under section 44 would also have almost inevitably failed as there was no evidence led by Ms Cook as to the general market level of rents for comparable premises in the locality. We consider that the Tribunal took the most favourable approach to Ms Cook by dealing with her claim as one to be considered under section 63 of the Act.
3. The remaining contentions made by Ms Cook in relation to the Tribunal's decision do require leave to appeal. In the case of an application for leave to appeal from a decision of the Consumer and Commercial Division of the Tribunal, under clause 12 (1) of Schedule 4 of the NCAT Act the Appeal Panel only has a discretion to grant leave to appeal if it is satisfied that 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).
4. In relation to the asbestos issue, in our opinion for the reasons given by the Tribunal in its decision, there was no miscarriage of justice in the Tribunal's decision to refuse the amendment raising this issue and to refuse to permit the tender of evidence relating to it. In our opinion, in the circumstances which existed at the time there was no unfairness in the Tribunal declining to adjourn the hearing at the last minute to enable the issue to be raised.
5. Furthermore, in our opinion the evidence which Ms Cook has now sought to advance on the asbestos issue was neither significant nor evidence which was not reasonably available at the time of the Tribunal hearing within the meaning of the established legal test.
6. In our opinion the evidence was not significant because it did not establish that any asbestos present at the premises was a safety risk. Indeed, the material referred to by Mintus satisfies us that there was no safety risk to Ms Cook by reason of asbestos.
7. In Al-Daouk v Mr Pine Pty Ltd [2015] NSWCATAP 111 at [23]-[25] the Appeal Panel explained that the test of whether evidence is reasonably available within the meaning of clause 12 (1)(c) 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 it. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused to leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons.
8. In our opinion the evidence which Ms Cook now points to concerning asbestos is evidence which could have been obtained with reasonable diligence prior to the hearing in the Tribunal and indeed at a time when raising the issue would not have disrupted the hearing.
9. In relation to the veranda, in our opinion the Tribunal was in error in concluding at [32] that there was no evidence of a danger and no sufficient evidence that the structure was unsafe. Ms Cook had tendered a quotation dated 9 November 2018 from Mr Anthony Norton of Wood & I which included the statement: "I highly recommend taking steps to repair these balconies as they are in poor condition and a safety risk to all concerned ".
10. Whilst the other repair quotations tendered in evidence did not identify a safety risk, there was no evidence contradicting the conclusion expressed by Mr Norton.
11. In these circumstances, in our opinion the conclusion by the Tribunal that there was no sufficient evidence that the veranda was unsafe was against the weight of evidence. Furthermore, in our opinion Ms Cook suffered a substantial miscarriage of justice because of the Tribunal's failure to take Mr Norton's uncontradicted opinion into account.
12. We consider that we are in a position to make an award of damages under section 63 of the Act in respect of the failure of the landlord to maintain the veranda in a reasonable state of repair. In our opinion it is relevant that the premises had ocean views from the front veranda, which was plainly an important component of Ms Cook's enjoyment of the premises. Ms Cook was a tenant at the premises for 18 weeks. Doing the best that we can, we assess that Ms Cook should be awarded damages of $900 for the landlord's failure to maintain the veranda in a reasonable state of repair so that Ms Cook was able to enjoy the use of the veranda whilst she was a tenant.
13. In our opinion, all the other complaints made by Ms Cook in relation to the state of the premises were not made out, for the reasons given by the Tribunal in its decision.

Orders

1. We make the following orders: 1. Grant leave to appeal; 2. Appeal allowed; 3. Order 1 made by the Tribunal on 21 February 2019 is discharged; 4. Order that the respondent Mintus Properties Pty Ltd is to pay the applicant Ms Heather Cook the sum of $1,000 within 28 days of the date of this order.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 17 July 2019