Corcoran v Far [2018] NSWCATAP 13 | Case summary

NCAT Appeal Panel|2017-08-22

Notice of Appeal

The appellant filed his Notice of Appeal on 8 June 2017. As he received notice of the Decision on 25 May 2017, the Notice of Appeal has been filed within the time allowed in the Civil and Administrative Tribunal Rules 2014.
The appellant identifies sixteen grounds of appeal. These are as follows: 1. Error of law by making findings of fact that (1) were not supported by any credible relevant evidence and/or (2) were based on facts that did not exist (3) were based on irrelevant material and/or (4) were so unreasonable that no reasonable fact-finder could so find, including assertions of "no evidence" when in fact substantial evidence was before the tribunal. 2. Error of law by failing to make findings of fact on several relevant events (including failure to exercise jurisdiction and failure to take into account relevant considerations). 3. Error outlaw by failing to make findings on the credibility of witnesses and failing to take into account same (i.e. failure to take into account relevant considerations). 4. Error of law by failing to admit relevant evidence tendered by the applicant to the tribunal. 5. Error of law by failing to consider and apply sections 52(1), 63(1) and 63(2) of the RTA. 6. Error of law by characterizing a reduction in services at the premises as a breach of quiet enjoyment under section 50 of the RTA. 7. Error of law by failing to consider and apply sections 21, 49(1), 81 (4), 85 and 219 of the RTA and common law principles regarding loss of bargain damages. . 8. Error outlaw by failing to award compensation after a compensable claim had been proven and accepted by the tribunal. 9. Error offal by characterizing the rock-out as a breach of quiet enjoyment rather than a breach of sections 52, 55, 59, 71, 81, 82 and 85 of the RTA. 10. Error of law failing to consider and apply sections 127, 130 and 132 of the RTA. 11. Error of law by deciding or assuming that section 90 of the RTA was relevant to the issues in the case. 12. Error of law by failing to consider and make an award of aggravated damages. 13. Error of law by misconstruing section 3B(1)(a) of the Civil Liability Act 2002 and failing to confine the limitations in Part 2 of that Act (regarding "personal injury damages") to cases of negligence. 14. Error of law by deciding that clause 23 of the Residential Tenancies Regulation 2010 sets a limit of $15,000 for compensation in a proceeding in which an order is made with respect to a bond. 15. Error of law by failing to consider and apply the terms of section 60 of the Civil and Administrative Tribunal Act 2013 and make an order for costs. 16. Failure to afford procedural fairness by admitting into evidence and relying on documents of the respondent which had not been delivered to the applicant prior to the hearing.
If these matters are in fact errors of law as claimed, the appellant can appeal as of right; otherwise they are errors for which the appellant requires leave of the Appeal Panel to pursue: (see s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act)).
The sixteenth ground is described as a failure to afford procedural fairness. If established, such a ground would be an error of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)].
At the hearing, the appellant confirmed that he was seeking orders that he be paid the amounts set out below in respect of the various heads of damages: 1. Compensation for breach of the covenant for quiet enjoyment, $8,000; 2. Compensation for a reduction in services (namely, the shower), $475; 3. Compensation for a reduction in services (namely, the internet), $66; 4. Loss of bargain damages, $400; 5. Compensation for property taken, $129; 6. Compensation for Property destroyed, $100; 7. Moving costs, $80; 8. Compensation for the costs of temporary accommodation, $345; 9. Aggravated damages for his illegal eviction, $30,000; 10. Costs pursuant to s 60 of the NCAT Act, $1,064 including photocopying and Tribunal filing fees.

Nature of the Appeal

The appellant provided some 30 pages of detailed written submissions in support of his appeal. He gives the following overview of the appeal in his submissions, relevantly as follows: This case is about a surprise lockout with violence and damage to property, following a two week period of harassment and intimidation of the tenant (the appellant). The facts are very serious and the respondent's behaviour outrageous. That behaviour has continued into the period of the tribunal's involvement, which has seen numerous false statements made in all kinds of antics in tribunal hearings. The decision of Member Charles on 8 May 2017 not to award compensation in respect of either the law. All the prior harassment is demonstrably out of line with past case decisions, and has the consenting quality providing encouragement to vigilante behaviour. The respondent was running a business renting rooms and offered the remedy question to the appellant the private bathroom adjacent, pricing the arrangement accordingly. The ultimate cause of the breakdown in relations between the 2 parties was the respondent's failure to repair the shower the appellant's bathroom which it undertaken to do within 2 weeks of commencement of the tenancy. This failure to repair the bathroom could it been remedied by the respondent that any time of the first tribunal hearing on 30 May 2016 [but that did not happen]. The respondent's case is that he was justified in looking at the appellate and, on that basis, a compensation is payable. No valid termination notice was ever given. The matter provides the appeal panel an opportunity to affirm that there was no legal justification for locking out a tenant. So much is clear from the terms of the Residential Tenancies Act 2010, which requires a Tribunal order to evict a tenant. The policy of the Act is to protect the sanctity of the home of the tenant, requiring proof to the satisfaction of the tribunal that an order is warranted, subject to the counterweight that the tenant must pay a full charge for the accommodation of the entire period of the occupation.… There is a community interest in ensuring that such gross violations of the tenancy legislation received the ji remedy are not encouraged by lax tribunal rulings. Given the seriousness of the events in question and the likelihood that a substantial award result, case also raises an important question of construction in relation to the monetary limit on the tribunal's jurisdiction to make orders of compensation. The appellant submissions that a global limit of $30,000 applies in this proceeding across all munching matters [save costs], including the bond.
The appellant says that there are three major issues in the appeal, namely: 1. Damages for breach of quiet enjoyment during the tenancy; 2. Damages for illegal lock out; 3. The application of the exclusion in s 38(1)(a) of the Civil Liability Act 2002.
In addition to the sixteen claimed errors of law referred to above, The appellant also states in the Notice of Appeal that he is also seeking leave to appeal. He seeks leave on two grounds, that the decision was not fair and equitable and also that it was against the weight of the evidence.
As to the decision not being fair and equitable, the appellant submits that the "major considerations" are that he was denied procedural fairness (in that he did not have a reasonable opportunity to consider the respondent's documents prior to the hearing); that the Tribunal did not consider certain evidence offered to it (being photographs and a sound recording); that the Tribunal failed to make findings on "key matters", including credibility; that the Member failed to have regard to specific provisions in the Residential Tenancies Act 2010 (RT Act); that a number of his submissions were not given appropriate consideration; that the Tribunal did not find that the respondent had breached his statutory obligation to repair (which the appellant says is "the root" of all the problems that arose between the parties), and that the Tribunal misinterpreted cl 23 of the Residential Tenancies Regulation 2010 (RT Regulation). Clause 23 provides that the monetary limit of jurisdiction of Tribunal under s 187 (4) (a) of Act is: 1. If the order is with respect to a rental bond, $30,000, or 2. In any other case, $15,000.
As to the decision being against the weight of the evidence, the appellant submits that the respondent's evidence lacked credibility; that the notice of termination was forged; that there was clear evidence of breaches of quiet enjoyment which the Tribunal disregarded; that the Tribunal overlooked, 1. that the shower had been disabled and was impossible to use 2. that the respondent was arranging and paying for the repairs himself and 3. that the question of the Tribunal's jurisdiction in light of s 10 of the RT Act had not been determined at the time of the lock out;
That insufficient weight was given to (a) the respondent's own advertisement which referred to "own bathroom" and (b) the market practice of requiring "minimum terms/duration"; that the treatment of the reduction in services (namely the shower and wi-fi) was against the weight of the evidence. The appellant also submits that there were "aggravating factors" in the respondent's conduct.
Finally, the appellant also seeks leave to appeal on the basis that evidence is now available that was not reasonably available at the time. He says that he is waiting for the police to respond to a summons to produce documents. This matter was not perused at the appeal hearing.

Reply to Appeal

The respondent did not file a Reply to Appeal.

MFI 1

There is one preliminary matter which can be disposed of immediately. During the course of the hearing, the respondent sought to tender a photograph marked as MFI1. The appellant said that this document was not before the Tribunal, and objected to the respondent being allowed to rely on it.
We sought submissions on this issue from the parties, and made directions that the respondent file and serve a typed copy of the transcript of the sound recording of the hearing which indicated that MFI1 was before the Tribunal. The respondent complied with that direction, but we are not satisfied from the transcript relied on that MFI1 was in fact before the Tribunal.
In the circumstances, we refuse the application to tender MFI1 at the appeal hearing, and we have paid no regard to it.

Decision below

It is appropriate to commence with a summary of the Reasons.
For the period from 24 March 2016 to 30 May 2016, the appellant occupied residential premises at Chippendale. The respondent was his landlord.
The upper level of the premises contained a kitchen and dining area, as well as a third bedroom. The floor area of the third bedroom was formerly a living room with terrace and balcony areas. There was an area converted from a laundry into a bathroom containing toilet, vanity and shower. At all material times, the appellant used the third bedroom on the upper level.
Since the appellant left the premises on or about 30 May 2016, the parties have been in dispute with regard to the bond amount ($1,160.00) received by the respondent on or about 24 March 2016, as well as a claim for compensation by the appellant, including for non-economic loss, damage to personal property, loss of bargain damages, moving costs, temporary accommodation, and damages for breach of the appellant's quiet enjoyment of the premises. The appellant alleged that he was harassed and physically threatened by the respondent during his occupancy of the premises, that his privacy was disrupted by the respondent, that there was a reduction of service and facility at the premises (in particular, the appellant's use of a private shower and internet services), and that he was wrongfully locked-out of the premises on 30 May 2016.
The matter had a lengthy procedural hearing, which is set out in the Reasons: see pars [11] to [27].
The issues arising for determination by the Tribunal, and the Tribunal conclusions, were as follows.
First, whether the tenancy was for a fixed term of four months (i.e. ending on 23 July 2016). The Tribunal found that there was not a residential tenancy agreement between the parties for a fixed term of four months: par [42]. The Tribunal found that residential tenancy agreement between the appellant as sub-tenant and the respondent as head-tenant was a periodic tenancy: par [44].
Secondly, whether the tenancy included the facility of the upstairs bathroom for the appellant's own personal use. The Tribunal preferred the evidence of the respondent and found that the that the facility offered by the respondent to the appellant at the premises on 24 March 2016 and during the period of the appellant's occupancy of the premises up to 30 May 2016 did not include the use of his own bathroom: par [49].
Thirdly, whether the respondent breached the residential tenancy agreement by disturbance of the appellant's quiet enjoyment of the premises or any other interference with the appellant's peace comfort and privacy, while the appellant was a resident of the premises. This claim was based on allegations of harassment, threats, aggressive behaviour, invasion of privacy, and damage to the appellant's property (specifically, a mosquito net): see par [64]. Again, the Tribunal preferred the evidence of the respondent, which it found was supported by the other occupant of the premises. The Tribunal found that there had been no breach of the appellant's right to quiet enjoyment: pars [50] and [51].
Fourthly, whether the appellant was responsible for serious damage to the premises during the period of his tenancy. The Tribunal was satisfied that the appellant's action in using the leaking shower was in complete disregard of the respondent's direction that the appellant refrain from doing so and also that the appellant's action was causing serious damage to the walls of the premises and the 240 volt fluorescent light on the ceiling of the foyer in the level below: par [57].
Fifthly, whether the circumstances of the appellant's departure from the premises on or about 30 May 2016 amount to wrongful eviction by the respondent. Here the Tribunal stated: 54. Both parties agree that the police were called to the premises at about 10:00 PM on 30 May 2016. I am satisfied that there was some discussion with the police present including an offer of the respondent for the applicant to stay one night and then move out the following day. I am further satisfied that when the applicant refused the offer, referring to his (mistaken) belief that he had a fixed term tenancy with the respondent, the police asked the applicant to leave the premises. The evidence establishes that after the police left, the applicant decided to attempt to gain entry to the premises by using a deck chair to raise himself to the window of the upstairs bathroom. At about 11:00 PM, the respondent became aware of the applicant's attempt to enter through the window and there was a physical struggle between the applicant and the respondent. The applicant was not successful in gaining entry through the window. There is evidence that both parties sustained personal injuries during their struggle. The police arrived about 10 minutes later. The applicant admits that the police took the view that he was the one causing the trouble and told him to leave the premises immediately (see paragraph 19 of the applicant's affidavit sworn 15 July 2016). 55. The evidence does not support any allegation of assault or the use of unnecessary or unreasonable force on the respondent's part. The police took no action other than requiring the applicant to leave the premises on the evening of 30 May 2016. No criminal charges were laid.
Sixthly, whether the respondent had established an entitlement to retain the bond amount ($1,160.00) or any part thereof received by him on or about 24 March 2016. Here, the Tribunal found that the respondent had not advanced a case for him to retain the whole or any part of the bond amount: par [62].
Seventhly, whether and if so in what amounts the appellant had established claims for compensation (comprising economic loss and non-economic loss) by reason of breach of the appellant's quiet enjoyment, any reduction or withdrawal of facility, or in consequence of a wrongful eviction. The Tribunal rejected all of the appellant's claims for compensation, namely: 1. A claim for reduction in services, namely the loss of use of the upstairs shower ($475). As the Tribunal had found that the facility offered did not include the upstairs bathroom, this claim was not established: par [69]; 2. A claim for reduction in services, namely the loss of use of the internet for the period 19 to 30 May 2016 ($60). The appellant claimed that the respondent deliberately interfered with the 'wifi' internet router in the living room, and that from about 19 May 2016 he could not use the 'wifi' at the premises because the password had been changed. The Tribunal was not satisfied there was sufficient evidence to support the allegations of deliberate interference by the respondent or any failure on the respondent's part to address issues of maintenance of the internet connection in a timely manner. Again, the Tribunal accepted the respondent's evidence there was a problem with the router and that the respondent arranged a replacement from Telstra. Consequently, the Tribunal declined to make any order: pars [71]-[74]; 3. A claim of $400 for loss of bargain damages. As the Tribunal had found that there was not a residential tenancy agreement between the appellant as sub-tenant and the respondent as head-tenant for a fixed term of four (4) months, it disallowed the claim: par [67]; 4. A claim for compensation for property damaged or taken being food and a power adaptor ($129.00 claimed), and a mug and cutlery ($100.00 claimed). The Tribunal was not satisfied on the evidence that there was a causal connection between any loss of, and damage to, the appellant's personal property, on the one hand, and any act or omission by the respondent, on the other hand. There was no evidence of any inventories of personal property at the start of the tenancy. Any goods of the appellant left on the premises after he left were stored and the appellant notified. The Tribunal did not accept the appellant's case that the respondent acted with malice in the circumstances of the appellant's departure from the premises on the evening of 30 May 2016, and otherwise accepted the respondent's evidence: pars [78] - [81].
The appellant also claimed $12,000 for non-economic loss, general damages and aggravated for the alleged lockout. To the extent that this claim was based on a breach of the appellant's quiet enjoyment of the premises, the Tribunal was not satisfied that there was any such breach: par [84]. Otherwise, the Tribunal accepted that the appellant's eviction from the premises on 30 May 2016 was done without the respondent having served a valid notice under a residential tenancy agreement, and that no Tribunal orders for termination of the parties' residential tenancy agreement were made. Having referred to the decision of Sharon v Diamond Bay Construction Pty Ltd [2003] NSWCTTT 682, the Tribunal then rejected the appellant's claim for damages.
We note the reference to the withdrawal of the respondent's application, was a reference to proceedings RT 16/24568. Those proceedings were filed by the respondent on 25 May 2016. He sought orders against the appellant under s 90 (Termination of occupancy due to serious damage/injury) and s 187 (1) (d) of (compensation for rent arrears and damage to the premises) of the RT Act. After a directions hearing and conciliation on 30 May 2016, the respondent withdrew his application on 3 June 2016. Consequently, no termination order was then made.

Consideration

The grounds of appeal raise questions of law for which there is an appeal as of right and grounds for which leave to appeal is required.
Insofar as leave is required, Sch 4 cl 12 of the NCAT Act sets out the circumstances in which the Appeal Panel may grant leave in an appeal from a decision of the Consumer and Commercial Division. The principles applicable to the grant of leave were set out in Collins v Urban [2014] NSWCATAP 17.
In the present appeal the appellant says the decision of the Tribunal was against the weight or was not fair and equitable. These are the grounds identified in cl 12(a) and (b). Of these clauses, the Appeal Panel said in Collins at [77]-[79]: 77 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, 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] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55].
The appellant also said he sought to rely on fresh evidence, apparently being documents sought on summons from the police. Leave would be required to do so. However, this ground was not pursued in the appeal. Further and, in any event, any documents from the police should have been provided to the original hearing and would not ordinarily be permitted to be relied on as fresh evidence on appeal: see Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. Therefore it is not necessary to deal further with this ground.
The starting point to the resolution of this appeal is a consideration of the terms of the lease and the circumstances in which it was terminated.
The Tribunal, at [42], rejected the appellant's assertion that the residential tenancy agreement between the parties was for a fixed term of 4 months. Rather, at [44], the Tribunal found that "the residential tenancy agreement between the (appellant) as sub-tenant and the (respondent) as head-tenant was a periodic tenancy". The Tribunal preferred the evidence of the respondent because it was corroborated the contemporaneous documents been various text messages and because the respondent was in a position to offer a fixed term agreement of 4 months because his residential tenancy agreement with the owner of the property was then a periodic tenancy only.
Secondly, the Tribunal, at [48] rejected the appellant's assertion that the terms of the residential tenancy agreement included a term that the appellant would have his own bathroom. This assertion was based on an "Gumtree" advertisement tendered by the appellant dated 3 July 2016 (nearly 4 months after the residential tenancy agreement was entered into) and a conversation which the appellant said he had with the respondent. Rather, the Tribunal accepted the denial by the respondent that there had been any conversation by which the respondent offered to the appellant the use of his own bathroom and accepted the respondent's evidence that another bathroom in the premises was to be used by all occupants. Again, the basis for this conclusion was contemporaneous evidence in the form of photographs, namely that the bathroom said to have been offered for exclusive use was not, at the time the residential tenancy agreement was entered into, capable of being used due to broken tiles and other defects. The Tribunal accepted that the shower was leaking and that its use would constitute a serious safety issue to all occupants in the strata building. Lastly, the Tribunal accepted that rectification was the obligation of the owner of the property with whom the respondent had the head tenancy agreement. Consequently, it was improbable an offer for exclusive use of the bathroom was made.
The appellant sought to challenge those conclusions, inter alia because the appellant said that: 1. The Tribunal failed to make findings of credit; 2. The decision was so unreasonable, no reasonable decision maker could have made such a decision; 3. The conclusions were based on irrelevant material; and 4. The conclusions were based on facts that did not exist.
In our view, from a fair reading of the Reasons, including the passages to which we have referred, it is clear that the Tribunal identified evidence relevant to the question of the duration of the residential tenancy agreement and whether or not the particular bathroom was offered for the exclusive use of the appellant or at all. Cogent reasons were given as to why the evidence of the respondent and the submissions made by the respondent were preferred to those of the appellant. These were findings of fact which the Tribunal was entitled to make. It is clear from what the Tribunal said that an initial period of two weeks rent was paid as was a bond of $1,160.00: Reasons at [7]. An order for return of the bond was made by the Tribunal, a matter not in dispute in this appeal.
A review of these findings does not reveal any error of law the type of which the appellant has identified in his submissions. Further, having regard to the principles in Collins which we have set out above, it could not be said 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 tribunal member could reach" or that the appellant might have suffered a substantial miscarriage of justice in the circumstances of this case
While the facts identified by the Tribunal might support the view that the initial term of the residential tenancy agreement was for two weeks commencing 24 March 2016 (being the period for which rent was initially paid) and thereafter a periodic tenancy (as opposed to the tenancy being a periodic tenancy from the beginning), nothing turns on this point. After the two week period, including as at 30 May 2016, there was a periodic tenancy to which the RT Act applied.
Accordingly, these aspects of the appeal fail.
The next matter to consider is the circumstances in which the residential tenancy agreement came to an end.
Relevant to this dispute, s 81 of the RT Act provides: 81 Circumstances of termination of residential tenancies (1) Termination only as set out in Act A residential tenancy agreement terminates only in the circumstances set out in this Act. (2) Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises. (3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act. (4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs: … (d) the tenant abandons the residential premises, … (g) disclaimer occurs (such as when the tenant's repudiation of the tenancy is accepted by the landlord).
The Tribunal made the following findings at [54]-[56] and [84]-[86]: 54 However, I am not persuaded that there was any contumely for the Tribunal's process. Both parties agree that the police were called to the premises at about 10:00 PM on 30 May 2016. I am satisfied that there was some discussion with the police present including an offer of the respondent for the applicant to stay one night and then move out the following day. I am further satisfied that when the applicant refused the offer, referring to his (mistaken) belief that he had a fixed term tenancy with the respondent, the police asked the applicant to leave the premises. The evidence establishes that after the police left, the applicant decided to attempt to gain entry to the premises by using a deck chair to raise himself to the window of the upstairs bathroom. At about 11:00 PM, the respondent became aware of the applicant's attempt to enter through the window and there was a physical struggle between the applicant and the respondent. The applicant was not successful in gaining entry through the window. There is evidence that both parties sustained personal injuries during their struggle. The police arrived about 10 minutes later. The applicant admits that the police took the view that he was the one causing the trouble and told him to leave the premises immediately (see paragraph 19 of the applicant's affidavit sworn 15 July 2016). 55 The evidence does not support any allegation of assault or the use of unnecessary or unreasonable force on the respondent's part. The police took no action other than requiring the applicant to leave the premises on the evening of 30 May 2016. No criminal charges were laid. 56 I agree with the applicant's submission that the document bearing date 17 May 2016 given by the respondent to the applicant and purporting to terminate the residential tenancy agreement on 14 days' notice was not a Notice of Termination which complied with the RTA. A landlord has to serve a 90 day notice to terminate a periodic agreement where no breach is alleged: s 85 of the RTA. ………. 84 However, as referred to, I am not satisfied on the evidence that there was any disturbance of the applicant's quiet enjoyment of the premises up to the applicant leaving the premises on 30 May 2016. The applicant urged me to make an award of general damages for 'illegal' eviction having regard to an earlier decision of the Consumer Trader and Tenancy Tribunal, a predecessor to this Tribunal. In Sharon v Diamond Bay Construction Pty Ltd [2003] NSWCTTT 682 (17 September 2003) the Tribunal found that the applicant and her two year old son had been unlawfully evicted from residential tenancy premises and that she was entitled to non-economic loss compensation in the amount of $6,000.00. The member found that: "(the landlord) was in breach of the Residential Tenancies Act 1987. It acted without lawful authority. It completely ignored those provisions of the Act governing the termination of residential tenancy agreements. It failed to take even the most basic step of issuing a notice of termination to Ms Sharon." 85 In my view the facts of Sharon's case are distinguishable from the facts of this case. I accept that the applicant's eviction from the premises on 30 May 2016 was done without the respondent having served a valid Notice under the RTA. It is also the fact that no Tribunal orders for termination of the parties' residential tenancy agreement were made, whether on the grounds contained in s 90 of the RTA (as asked in the respondent's application for File No RT 16/24568), or on any other grounds which do not require the giving of a Notice of Termination. Nonetheless, I find it is the case in the events which occurred, that the respondent withdrew his application in the genuine belief the Tribunal did not have jurisdiction to hear and determine his application. Unlike the circumstances of Sharon's case, the applicant did not act with blatant disregard for the requirements of the applicable residential tenancies legislation. Nor can it be said that the respondent acted without advertence to the legal process necessary for an application to the Tribunal to terminate a residential tenancy. 86 I have a discretion to award compensation under s 187(1)(d) for breach of quiet enjoyment. In the exercise of that discretion in the particular circumstances of this case, I decline to award any general damages for non-economic loss (whether in the amount claimed of $12,000.00 or any lesser amount) or any damages for temporary accommodation and food or moving costs.
It is clear from these findings: 1. That no order was made terminating the residential tenancy agreement; 2. Having initially left the premises following a direction from the police at about 10 PM on 30 May 2016, the appellant sought to gain re-entry to the residential premises through a window; 3. The respondent prevented that entry and thereafter the appellant left the premises.
It is also clear that after this date the appellant did not seek any order of the Tribunal in his favour requiring the respondent to redeliver possession of the residential premises to the appellant. Rather, the appellant left the residential premises, resided at a youth hostel for a short period of time (2 June 2016 until 5 June 2016: see invoice for $115.00 in the appellant's bundle) and then found alternative accommodation at $290 per week, being the same weekly rental as applied to the premises the subject of this dispute: see par [21] of the appellant's statement dated 15 July 2016.
As is evident from the Reasons, the Tribunal concluded that the tenancy had not been validly terminated by the respondent because no notice to terminate a periodic tenancy had been served as required by s 85 of the RT Act and no order for termination had otherwise been made by the Tribunal. Implicitly, the Tribunal appears to have accepted that the conduct of the respondent in excluding the appellant on 30 May 2016 was unlawful and constituted a breach of the residential tenancy agreement. However, the Tribunal declined to make any award in favour of the appellant in consequence of this breach.
The appellant submitted this constitutes an error and that he was entitled to damages arising from wrongful eviction.
In order to resolve this matter it is necessary to determine the circumstances in which the residential tenancy agreement came to an end.
We raised the issue of how the tenancy came to an end with the parties during the hearing of the appeal. We noted that the Tribunal had made no express findings on this issue. The issue has some significance, as the relief claimable by the appellant may depend on whether the residential agreement was abandoned by both parties, the premises were abandoned by the appellant or the respondent repudiated the residential agreement which the appellant accepted.
In our view, it could not be suggested that the appellant abandoned the premises or the agreement.
To the contrary, the evidence establishes that he was wrongly excluded from the premises by the respondent's conduct on 30 May 2016 in preventing the appellant returning to the premises after the police left the first time. This conduct amounted to a repudiation of the residential tenancy agreement which gave rise to an entitlement in the appellant to accept the repudiation and terminate the residential tenancy agreement or, alternatively, elect to affirm the residential tenancy agreement and seek appropriate orders from the Tribunal. In addition, the party not in default is entitled to claim damages: McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457 at 476-477.
Where there is repudiation, the party not in default must make an election. In Majik Markets Pty Ltd v Motor Repairs Pty Ltd (No 1) (1987) 10 NSWLR 49 Young J (as he then was) said: "When a party commits a breach going to the heart of the contract or repudiate his obligations then the situation arises under which the so-called innocent party has to elect whether or not to put an end to the contract. The time for making an election will not arise until a reasonable time has elapsed for the matter to be properly considered… After that time the innocent party must do one of two things, either elect to affirm the contract or to put an end to it. That election can be made by an intentional statement or by action or by conduct. That election must be communicated and is not complete until it is communicated.… All that is meant by "communication" is that the fact of election must come to the repudiating party's attention. It matters not whether the communication came from the innocent party or from a third party."
It is clear from the facts which we have outlined above that the appellant elected to accept the repudiation, terminate the residential tenancy agreement and not return to the premises. This occurred on 30 May 2016 or shortly thereafter consequent upon the appellant being prevented from entering the residential premises through the window and thereafter moving to alternative accommodation. It can be inferred from the conduct of the parties including the fact the appellant did not seek to return to the residential premises and from the respondent disposing or placing into storage some of the appellant's goods and personal effects that the appellant's election to terminate was communicated to the respondent at about that time.
It follows that the tenancy terminated for this legal reason in accordance with s 81(4)(d) and no termination order was required.
As explained above, in addition to his right to terminate the residential tenancy agreement, the appellant was also entitled to claim damages. The Tribunal appears to have recognised this at [86]. However the Tribunal declined to make any order in favour of the appellant. It did so on the basis that it purported to exercise a discretion not to award compensation, that discretion said to arise under s 187(1)(d) of the RT Act.
For the following reasons, in our view the failure to determine what loss was suffered in consequence of the repudiatory conduct and to decline to make any order in favour of the appellant for damage suffered in consequence of the breach of the residential tenancy agreement constitutes an error of law.
In Draybi Bros Pty Ltd v Bede Diab, John Maklouf, Jihad Dib, Mohammad Chahrouk Draybi Bros Pty Ltd v Bede Diab, John Maklouf, Jihad Dib [2014] NSWCATCD 67 the Tribunal said at [106]: The Tribunal is required to determine issues before it according to law. As indicated by Hope JA, when referring to an earlier decision of Yeldham J in Fairey Australasia Pty Ltd v Joyce [1981] 2 NSWLR 314 at 321, the Court of Appeal accepted that the Tribunal "is not concerned with "palm tree justice"" and "the Tribunal must act in accordance with and must apply the general law in determining the claim which has been made to it": see Hope JA in State Rail Authority at page 477. ….
While this case dealt with an application made to the Consumer Trader and Tenancy Tribunal, finally determined by this Tribunal on establishment in 2014, the requirement to determine claims according to law are equally applicable to the present application. Cases such as Curtis v Potter & Co Pty Ltd t/as The Africa Safari Co [2016] NSWCATAP 196 at [68] are to like effect.
In Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186, when referring to the provisions of the Consumer Claims Act 1998 and the requirement in s 13(1) to "make such orders as, in its opinion, will be fair and equitable to all the parties to the claim, the Appeal Panel said at [136] and following: 136 If the terms of s 13(1) were thought to require the Tribunal to apply its own notions of fairness and equity when making orders rather than making orders in accordance with the applicable law, that would be an error. The Court of Appeal considered the operation of s 13 in O'Farell v Allianz Australia Insurance Ltd [2015] NSWCA 48 and rejected, at [16], the notion that s 13 of the CC Act required the Tribunal to act otherwise than in accordance with law. 137 Some additional assistance in understanding how the CC Act, and in particular s 13, operated can be gained from the decision of the Court of Appeal in State Rail Authority v Consumer Claims Tribunal (1988) 14 NSWLR 473 (the State Rail Authority Case). In that case, the Court considered the operation of the Consumer Claims Tribunals Act 1987 (NSW), and in particular s 23(1) and (2) of that Act, which were effectively re-enacted as ss 8 and 13 of the CC Act in 1998. 138 The Parliamentary intention to continue the substance of s 23(1) and (2) in ss 8 and 13 of the CC Act can be seen from the terms of those sections and from the Second Reading speech in respect of the Consumer Claims Bill 1998. In that speech, the Minister noted (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 October 1998 at 8626) that: "The Consumer Claims Bill preserves the remedies available to consumers in relation to disputes arising from the supply of goods or services currently established by the Consumer Claims Tribunal Act 1987 and confers jurisdiction to deal with these disputes upon the [then] Fair Trading Tribunal." 139 In the State Rail Authority Case, the remedial provisions of the legislation that was the predecessor of the CC Act were explained by Hope JA (with whom Samuels and Clarke JJA agreed) as follows, at 478 - 9: "the [Consumer Claims Tribunal] exercises judicial powers. It has to resolve whether the claimant has made out a right to relief according to the general law, and if he has, then the court [sic] has to decide, in some cases, what order it considers is fair and equitable to make. In other cases (including where the claim is to be dismissed) its orders must be in accordance with the general law. Its discretion would seem to be limited to deciding, in appropriate cases, whether to order the payment of a sum of money to a claimant or to order work to be performed or steps taken to rectify a defect in goods or services, or to make orders combining all of these matters. This does not seem to be different in kind from the type of jurisdiction that many "ordinary" courts have to decide, as a matter of discretion, what form of alternative possible forms of relief they should grant. …Whether a relevant right exists must be determined by the tribunal in accordance with the general law; which of the orders which the Act authorises it to make it decides to make is, in some cases, to be determined in accordance with its opinion as to what is fair and equitable. But I do not think that this discretion in any way affects the nature of its decision as to the existence or absence of the claimant's right. The claimant does not simply seek relief: he seeks relief upon the basis of a right legally arising out of a contract. … … the tribunal must resolve issues which are in dispute, and must keep a record of those issues as well as a record of its decision upon them. Despite the power given to the tribunal to decide to make orders which are fair and equitable, including orders other than for the payment of money (although in due course the claimant may be forced back to such an order), the tribunal cannot fix the amounts of the payments or determine the nature of the other acts to be performed otherwise than on the basis of the evidence before it and the contractual rights and obligations of the parties; the tribunal does not exercise "palm-tree justice". It is a court exercising judicial power, with the duties upon it and the consequences to the parties that such a power and the exercise of it involves. It is a jurisdiction which can, within its prescribed limits, be regarded as a jurisdiction of a court to resolve issues arising under contracts for the supply of goods or services.
Similarly, any discretion provided by s 187(1)(d) does not allow withholding all remedies where loss and damage has been suffered in consequence of a breach. Rather, the discretion in this regard may allow a particular type of remedy to be granted where alternatives are available- for example rent reduction as opposed to an award of monetary compensation.
In the present case, the Tribunal was required to determine whether the residential tenancy agreement had been breached by the respondent and whether it had been terminated by the appellant consequent upon the breach. If so, the Tribunal was also required to determine what loss or damage had been suffered by the appellant in consequence of what occurred. It was at this point that any relevant discretion as to the form of remedy to be granted might arise for consideration.
It follows that in so far as the Tribunal sought to exercise any discretion and make no award in favour of the appellant, the discretion miscarried: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5
The heads of damage claimed by the appellant that relate to the issue of what compensation should be awarded are the following: 1. Compensation for breach of the covenant for quiet enjoyment, $8,000; 2. Moving costs, $80; 3. Compensation for the costs of temporary accommodation, $345; 4. Aggravated damages for his illegal eviction, $30,000;
In relation to the costs for temporary accommodation, as recorded above, the evidence shows an amount of $115.00 was paid for accommodation to a youth hostel until 5 June 2016. Thereafter, alternative accommodation was found at a cost not more than the rent payable under the residential tenancy agreement. The evidence does not suggest rent remained unpaid for the corresponding period. Consequently, this amount should be allowed as damages.
The appellant also claimed aggravated damages. As Windeyer J said of aggravated and exemplary damages in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 149: The formal distinction is, I take it, that aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment - moral retribution or deterrence.
In relation to the claim for aggravated damages, the findings of fact do not support such an award. While there was a "lockout", there was no assault or other such inappropriate conduct found by the Tribunal and there is no reason to displace this finding of fact on appeal.
As to the other losses claimed, in our view in addition to the direct economic loss we have identified, there should be an award of general damages.
The appellant relied on the decision in Sharon [2003] NSWCTTT 682. There the Consumer Trader and Tenancy Tribunal (CTTT) made an award of $7,540.00. This consisted of economic loss of $1,540 and non-economic loss of $6,000.00 including for stress. Part of this award related to stress.
In reaching this decision the CTTT said at [34]-[35]: 34 At the time of the final hearing on 15 August 2003, Ms Sharon and her two-year-old son Matan were still living in temporary accommodation. Ms Sharon was sleeping on a floor. Her possessions were still in storage. Her son's toys, and his other belongings, remained in storage. 35 Ms Sharon presented written evidence of the impact of the breach by Diamond Bay Construction Pty Ltd on herself and her child. That written evidence, from a child care centre, a family support worker, and a consultant psychiatrist, is very significant. The evidence describes Ms Sharon as being in an "absolute crisis", and her son as having become more aggressive, demanding and challenging.
At first instance, the Tribunal in the present case concluded non-economic loss for personal injury could not be awarded. It was correct to do so: see eg Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [77] and following. That is, in so far as a claim for damages for non-economic loss relates to compensation for personal injury, no award can be made in the present application.
However, the decisions to which the appellant refers provide some guidance as to an award for general damages.
In our view, in addition to the amount of the cost of the youth hostel temporary accommodation, an award for general damages of $500.00 should be made. This amount includes an allowance for any moving and ancillary costs and the inconvenience arising from the need to move early. It takes account of the fact that, unlike Sharon's case, the disruption and consequence arising from the breach was short in duration because alternative accommodation was available shortly after the eviction.
It follows that an order should be made that the respondent pays to the appellant the sum of $615.00 as damage for breach arising from repudiation.
In our view, the balance of the appellant's claims should be dismissed. For convenience and completeness we will provide brief reasons against each head of damage identified by the appellant at the hearing of the appeal.

Compensation for breach of the covenant for quiet enjoyment, $8,000

The appellant submitted that there were breaches of his right to quiet enjoyment arising from the fact he could not use the shower, the unavailability of the Internet service and the lockout which occurred on 30 May 2016.
As explained below, the claims in respect of the shower in the Internet service fail. In respect of the claim arising from the lockout, this has been dealt with above as part of an award for damages arising from the repudiation of the residential tenancy agreement by the respondent and subsequent termination by the appellant.

Compensation for a reduction in services (namely, the shower), $475

Having determined that the residential tenancy agreement did not include a term of the type propounded by the appellant and having regard to there being other bathroom facilities available in the tenancy, no error is shown in the Tribunal rejecting this claim. It is clear from the evidence that the shower, which the Tribunal found the appellant had used and caused damage by use, was not in an operational state and was not part of the services offered. Rather, the Tribunal accepted that this facility was in need of repair and was not available for use as part of the residential tenancy agreement, at least until the owner of the property, the landlord of the respondent, had completed these repairs. On this basis no relevant breach of the residential tenancy agreement or RT Act is established.

Compensation for a reduction in services (namely, the internet), $66

The Tribunal dealt with the issue of Internet services in its Reasons at [71]-[74] and made findings of fact. The Tribunal accepted the evidence of the respondent that there was a problem with the router through which the Internet services were provided and that a replacement was being arranged through Telstra, it service provider. Our comments above regarding the principles in Collins are equally applicable to this issue. Leave is required to appeal these findings of fact and we are not satisfied there has been a substantial miscarriage of justice. Further, and in any event, we are not satisfied that the Internet services form part of the residential tenancy agreement. While Internet services may have in fact been available in the residential premises, the appellant has not pointed to any material that made the supply of these services part of the obligations upon the respondent under the residential tenancy agreement.
It follows that this claim fails.

Loss of bargain damages, $400

This claim was based on the appellant's assertion that he had a residential tenancy agreement for a fixed term of four months. As set out above, the Tribunal rejected this claim and the appellant failed on his appeal against this decision. Accordingly, no amount should be allowed.

Compensation for property taken, $129 and Compensation for Property destroyed, $100

It is convenient to deal with these two claims together. They relate to food, a power adapter, a mug and to cutlery.
The Tribunal accepted the respondent's evidence that goods left on the premises were stored by the respondent and available for collection by the appellant. The Tribunal was not satisfied the appellant had established the particular personal property was on the premises nor was the Tribunal satisfied there was any evidence to show loss and damage was caused by the respondent. Accordingly, the Tribunal rejected the appellant's claims.
Again these findings were findings of fact for which leave to appeal is required. They were findings open to the Tribunal on the evidence before it. There is no obvious error in the Tribunal's conclusions and we are not satisfied the appellant may have suffered a substantial miscarriage of justice.
We should note one final matter. That is, insofar as food was left on the premises, following termination of the residential tenancy agreement the respondent was entitled to remove this food: s 128 RT Act. There is no evidence to which we have been referred suggesting the appellant attempted to collect this food. Consequently, if any food was thrown out, such action is not shown to be a breach of the residential tenancy agreement.
Accordingly, the appeal in relation to this claim fails.

Moving costs, $80

This issue is dealt with as part of damages for damages in consequence of the repudiation and subsequent termination.

Compensation for the costs of temporary accommodation, $345;

This issue is dealt with as part of the claim for damages in consequence of the repudiation and subsequent termination.

Aggravated damages for his illegal eviction, $30,000

This issue is dealt with as part of the claim for damages in consequence of the repudiation and subsequent termination.

Costs pursuant to s 60 of the Act, $1,064 including photocopying and Tribunal filing fees

The Tribunal found that there was no justification for an award for costs. The award by the Tribunal was for a total of $1,160.00 being an order for return of the bond.
There was no dispute raised in this appeal that s 60 of the NCAT Act regulates costs in the proceedings at first instance and on this appeal. Section 60(1) provides that each party is to pay their own costs unless special circumstances exist. Special circumstances means out of the ordinary but not necessarily extraordinary or exceptional: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120
The Tribunal did not accept there were special circumstances and rejected the appellant's claim for costs.
Sub-section 60(3) sets out factors relevant to determining if special circumstances exist. This sub-section provides: (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
The appellant's submissions on this topic on appeal are that the Tribunal's Reasons were inadequate in that the Tribunal did not identify the criteria set out in s 60(3) relevant to determining whether or not special circumstances existed. In this appeal, the appellant made the following submission (at p25 of his written submissions): Given the extreme nature of events occurring in the life of this case, there are very strong arguments favouring an award for costs. See the respondent's written submissions, page 8. Key facts are the respondent's statement "try your luck at the Tribunal", is repeated lying and deceit (which misled the decision-makers and prolonged resolution of the dispute), and his lack of cooperation with the Tribunal in relation to attendance and documents. Even after the passing of more than 9 months, the respondent failed to produce any evidence of costs he incurred which might be properly chargeable against the bond. There was therefore never any doubt that the Tribunal would order the bond to be returned in full. Likewise, the respondent's opposition to an order for compensation had no tenable basis in fact or law, as he admitted to locking out the tenant and to the altercation at the window. His whole case is that he was justified in his actions, but the Act operate on a strict liability basis and recognises no justification or excuse. The quantum claimed is now $1064, taking into account the costs of this appeal (see photo copy of NCAT receipts, totalling $486, plus printing/copying $14.
In relation to the general assertions of the conduct of the respondent, particularly the assertions that the respondent lied and was deceitful, as we have explained above, findings were made to the contrary by the Tribunal who preferred the evidence of the respondent to that of the appellant in a number of important aspects in this case. Otherwise, the submissions supporting the claim for costs essentially relate to the relative strength of the parties cases.
On this second aspect, the appellant made a number of claims in which he failed at first instance and on appeal. These claims included assertions made by the appellant concerning the respondent and his conduct during the course of the tenancy. However, there is nothing out of the ordinary in the present case.
Accordingly, in our view the Tribunal was correct in rejecting the claim for costs. This position remains unaffected by the success which the appellant has had on appeal.
Consequently, we are not satisfied that any special circumstances exist warranting an award for costs in the appeal. The claim for costs of the appeal should also be dismissed.
Further, and in any event, we would decline to make an order for costs in first instance and on appeal even if we had been satisfied that special circumstances existed. This is because the appellant has made a number of claims which have taken up considerable time to resolve about which he has been unsuccessful.
Finally, we note that the appellant raised an issue concerning the jurisdiction of the Tribunal when considering claims for compensation under the RT Act and the effect cl 23 of the RT Regulation. Having regard to the conclusions we have reached it is unnecessary to resolve this aspect of the appeal.

Orders

The Appeal Panel makes the following orders: 1. The appeal is allowed in part. 2. Order 2 made 23 May 2017 is set aside and in lieu thereof the following order is made: The respondent Peter Far is to pay the applicant Aaron Corcoran the sum of $615.00 as damages immediately. 1. Save as provided in order 2, the appeal is otherwise dismissed. 2. Each party is to pay their own costs of the appeal and the proceedings at first instance.

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: 08 January 2018

Consumer Claims Tribunals Act 1987(NSW)

Corcoran v Far

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