Crowley v King

NCAT Appeal Panel|2022-08-18

Introduction

On 24 March 2022 the appellant (the landlord) made a claim against the $1,120 rental bond paid by the respondent (the tenant). The application alleged: Upon completing the vacate there was a large items (sic) left in the property which need to be removed: lounges, cupboards, dresses and rubbish. There is a final water usage which requires payment an invoice for the lawns to be mowed.
The landlord's claim was heard and determined by the Tribunal on 2 June 2022 by telephone.
In reasons for decision, the Tribunal Member noted that there had been prior proceedings between the parties. At paragraph 4 he wrote: It is not disputed that the prior application, RT 22/09788, was a claim lodged well prior to the termination of the tenancy and concerned water usage and possible rent reduction and compensation concerning delayed repairs.
With respect to the termination of the tenancy the Tribunal wrote: 18. The landlord concedes, and it is not disputed that the tenancy ended in the following circumstances: a. On 8/2/2022, the landlord served the tenant with a 30-day termination notice for vacant possession at the end of a fixed term (under s84 of the Residential Tenancies Act 201O ("the Act"): L2 p95. I note that such a notice was served within the fixed term period. b. On 4/3/2022, the tenant notified the landlord's agents that the laundry ceiling had fallen in: T3, p39. c. On 7/3/2022, the landlord's roofing contractor advised that the roof was unsafe. d. On 7/3/2022, the landlord issued a termination order with immediate effect on the grounds that the residential tenancy agreement had been frustrated because the premises uninhabitable: T3, pp50-51. e. On 7/3/2022, the landlord changed the locks to lock out the tenant, thereby effectively ending the tenancy. 19. I note that I have no evidence that any roofing problems arose for reasons other than breach of the landlord's obligations to properly maintain the roof. Indeed, there is evidence the landlord deliberately chose not to repair the premises because he was planning on knocking the residence down: T3, p34. I have no evidence that supports the landlord's claim that the residential tenancy agreement was frustrated in terms of s109 of the Act. 20. In any case, the landlord failed to follow the procedures set out in s109 in that the landlord did not get a Tribunal order before unilaterally ending the tenancy by lockout. …

The appeal hearings

The appeal was first listed for hearing before us in a virtual hearing room on 2 August 2022. On that occasion, the landlord was represented by Ms Collison, the landlord's agent. There was no appearance by the tenant. Attempts to contact her by telephone only reached her voice mail.
We proceeded to hear the appeal in the tenant's absence. We heard the landlord's submissions on the appeal and, with the landlord's consent, heard evidence from the landlord's agent as to the substantive issues, on the basis that if the appeal were to succeed a rehearing by the Appeal Panel may be necessary. At the conclusion of the hearing, we reserved our decision.
Subsequently, it emerged that the tenant had been given the wrong number for the virtual hearing room. She said she had connected on time to the number provided and had waited in vain for the hearing to commence. The Appeals Registry confirmed that the tenant had been given the wrong number for the hearing. As we had not determined the appeal, it was relisted for hearing before us on 18 August 2022, when both parties appeared. The landlord was again represented by Ms Collison and the tenant attended in person.

Notice of Appeal

The landlord appealed on the following grounds: 1. the hearing was "one-sided", 2. the proper determination of the application was "overridden by a previously closed hearing which wasn't relevant to the current one", and 3. the Member was very dismissive and referred to issues that he been decided previously.
The landlord also sought leave to appeal on the ground that he had suffered a substantial injustice because the hearing was not fair and equitable and was against the weight of the evidence: 1. as the Tribunal failed to have regard to material relied on by the landlord, 2. as the hearing was "one-sided", and 3. as the Member "unfairly used a previous hearing as part of the judgement."

Material relied on in the appeal

In support of the notice of appeal the landlord filed a 98 page a bundle of documents which was before the original Tribunal hearing. This included: 1. a tenancy agreement between the parties for a term of 16 weeks in commencing 27 October 2021 and ending 15 February 2022, 2. a 30-day termination notice at the end of the fixed term tenancy given by the landlord to the tenant and dated 8 February 2022, 3. unsigned and undated exit condition report with respect to the property, 4. invoices for the removal of furniture, rubbish, lawnmowing and cleaning totalling $1120, 5. a typed narrative statement of events, unsigned and unattributed, 6. an audio recording of the hearing, and 7. what purports to be a transcript of part of the hearing.
The last document contained quotes from the tribunal Member, followed by comments made, apparently on behalf of the landlord, about what the tribunal Member said, which were coloured red. Contrary to earlier directions made by the Appeal Panel, there was no indication as to where, in the audio recording, those quotes were to be found. The notes in red were written by the landlord's agent. It is sufficient to say they contained complaints in relation to the Member's conduct of the hearing.
The tenant relied on a bundle of documents containing 44 pages which included new evidence, being a statement from her brother. She did not take issue with the transcript provided by the landlord.

The audio recording of the proceedings

We listened to the audio of the telephone hearing. We were satisfied that the appellant had attempted to comply with the Tribunal's procedural directions regarding both audio and transcript. The original hearing was comparatively short to listen to (64 minutes).
During the hearing, the Tribunal was given evidence concerning two prior proceedings in the Tribunal, between the same parties, relating to the subject tenancy agreement.
The first application was RT 22/09788, which was the tenant's application regarding water usage charges, failure to repair and rent reduction. Neither party provided a copy the prior orders made by the Tribunal in these proceedings, although the tenant supplied a copy the application in her documents.
The second application was RT22/10209 which was determined on 14 March 2022 and the orders made on that occasion are quoted below.
When the Tribunal found that the tenant had been locked out and the tenancy agreement was thereby terminated on 7 March 2022, the landlord's agent submitted that the issue of how the tenancy had been terminated was decided by the Tribunal on 14 March 2022, when it made the consent orders. The agent submitted that the Tribunal should not determine the termination issue afresh because of that prior determination. The Tribunal rejected that submission and found that the Tribunal had not ruled whether the residential tenancy agreement had been frustrated.

The reply to this appeal

In her reply to this appeal, the tenant supported the decision reached by the Member. Her point of view is summed up in the following extract: The landlord breached the residential tenancy agreement by not doing urgent repairs, unlawful lockout and a frustrated lease that did not go through NCAT. Also, unlawful disposal of goods.
In addition, the tenant provided a 44-page bundle of documents which consisted of the materials she relied at the original hearing and some new evidence.

Nature of an appeal

Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law, or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

Appeal on a question of law

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right. The Appeal Panel explained, at [11] that in circumstances where appellants are not legally represented, it is apposite to approach the issue by looking at the grounds of appeal generally. In this case we have done that and have identified two questions of law which flow from the issue agitated by the landlord. These are: 1. whether the Tribunal Member correctly ruled that the consent orders made on 14 March 2022 were not binding on him, and 2. whether the Member's conduct of the proceedings gave rise to a reasonably held apprehension of bias on his part or displayed actual bias.

Leave to appeal

Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
Even if an appellant establishes that he may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
In this case the landlord seeks leave to appeal on the grounds he may have suffered a substantial injustice because the decision was not fair and equitable and was against the weight of evidence. The basis on which he makes those claims reflects the errors of law he alleges, namely the weight the Member gave to earlier proceedings and complaints as to the conduct of the hearing.

Whether the Tribunal correctly ruled that the consent orders made on 14 March 2022 were not binding on him

In his decision the Member referred to RT 22/09788 which was an application bought by the tenant with respect to water usage, possible rent reduction, and compensation concerning delayed repairs. From the recording of proceedings, it is clear the Tribunal also had regard to what the Member was told about the outcome of RT22/10209, in which the consent termination orders were made.
Apart from stating that those proceedings had occurred between the parties, the Member, in his reasons for decision, made no reference to the outcome of RT22/10209. He did not take the consent termination orders into account when deciding how the tenancy agreement was terminated, or when considering whether he should allow the landlord to recover any of his claims against the bond. The Member expressly stated that the orders made in RT22/10209 were not binding on him.
The outcome of earlier proceedings is often a relevant consideration for the Tribunal when considering subsequent applications. Earlier orders made by the Tribunal may be - and often are - relevant to the issues that arise in subsequent cases between the parties. In this case, the issue is whether the consent orders made by the Tribunal on 14 March 2022, which terminated the tenancy agreement, bound the parties, and thus prevented the later Tribunal from finding that the lockout on 7 March 2022 terminated the tenancy agreement.
Courts and Tribunals take the view that the same issue cannot be raised more than once otherwise litigation would never be finalised. In everyday language, that principle could be summarised by saying "you cannot have two bites of a cherry". There are four ways in which this principle can be said to operate.
First, the Latin phrase res judicata is a term used to indicate that a claim has already been decided by another court (or Tribunal) and between the same parties. It arises from a prior decision made by a court or Tribunal. Secondly, estoppel is a rule which prohibits a person from contradicting what was determined in earlier proceedings. It arises from the conduct of the parties.
Thirdly, the term issue estoppel goes beyond the outcome as it is used to indicate that a party is prevented from revisiting an issue that has been decided in earlier proceedings. The fourth concept is usually referred to as Anshun estoppel, because the authoritative decision on that point is that of the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, which provides a barrier to raising in subsequent proceedings a matter that could and should have been raised in earlier proceedings.
For example, in Shaw v Hartman [2019] NSWCATAP 290 the parties had consented to orders made by an Appeal Panel - including compensation totalling $920.00 - with respect to an excessive rent issue. The tenant then sought to appeal parts of the original decision again. The Appeal Panel found that the tenant could not do so, and said: To now seek to appeal on these issues and thus have awarded to her a sum greater than $920 would be to subvert that agreement and the orders made by the Tribunal on the Landlord's Appeal, which orders were made with the tenant's consent. The tenant is bound by her agreement to the orders made in the Landlords' Application and the Landlords' Appeal. Not only is there no reason why the tenant should not be held to the orders to which she consented, to entertain this appeal would open the possibility of conflicting decisions (orders) between the consent orders made in the Landlords' Appeal and Landlords' Application, a result to be avoided - Port of Melbourne Authority v Anshun Pty Ltd (19810 147 CLR 589; [1981] HCA 45. In that case the majority of the High Court said: "It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment."
Consent orders can give rise to a res judicata or issue estoppel, even though the Court or Tribunal may not have decided the case on the merits. The authors of Cross on Evidence explain at para [5025], (citations omitted): The operation of consent orders as working estoppels is an exception to the principle that there must be a decision on the merits. Consent orders absolve the court from the duty to make a decision on the merits and convert an agreement into a judicial decision. Their efficacy depends on the capacity of the parties to consent and the jurisdiction of the court to make a consent order. Any issue recognised by the parties as the subject of the litigation and fundamental to the judgment or order fairly and reasonably interpreted will be conclusively determined. However, if there are no materials to determine what those issues are, neither party is estopped from disputing anything but the actual judgment or order.
In van Brugge v Foresto [2022] NSWATAP 10 the Appeal Panel explained at [67]-[68]: It is an abuse of process to bring a proceeding in order to make a collateral attack upon an unappealed decision of a court, or upon a decision which, having been appealed, has been affirmed: Smits v Loel [2014] FCA 1341 at [67]; Smits v Loel (No 3) [2015] FCA 77 at [23(b)]; McLean v Power [2013] NSWSC 193 at [14]-[15]. The Appeal Panel has recognised that the common law principle of estoppel that operates to preclude the raising of an issue of fact or law (or the assertion of a right or obligation) applies to decisions of the Tribunal: see, for example, Ravenscroft v Skinner [2016] NSWCATAP 107 at [8]-[14]; Mae v Ho and Ors [2021] NSWCATAP 5 at [72]; Bauer v Farm Cove Investments Pty Ltd [2022] NSWCATAP 14 at [58]-[59].
We have obtained a copy of the consent orders made by the Tribunal on 14 March 2022. The orders made on 14 March 2022 were: 1. By consent, the Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 2. By consent, the order for possession is suspended until 22-March-2022. 3. By consent, the tenant consents to the landlord's roof plumber attending the premises for the purpose of undertaking an inspection to ascertain the safety of the premises, after the ceiling collapsed in the external laundry during the heavy rain 4. The landlord is to ensure the roof plumber locks up the premises after he has undertaken the inspection. 5. The tenant is to notify the landlord's agent when her possessions have been removed by her removalist.
In our view these consent orders were binding on the parties with respect to when the tenancy terminated. The parties were estopped from denying them and the Tribunal should have proceeded on the basis that the parties were bound by them. In those circumstances, it was not open to the Tribunal to conclude that the tenancy agreement was effectively terminated on 7 March 2022 or to make determinations based on that finding.
That was an error of law on the Tribunal's part.

Whether the Member's conduct of the proceedings gave rise to a reasonably held apprehension of bias on his part or displayed actual bias

The principles applicable to allegations of apprehended bias were discussed by the High Court in Charisteas v Charisteas [2021] HCA 29 at [11]; (2021) 95 ALJR 824 as follows (citations omitted): …The apprehension of bias principle is that 'a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide'. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial Tribunal. Its application requires two steps: first, 'it requires the identification of what it is said might lead a judge… to decide a case other than on its legal and factual merits'; and, second, there must be articulated a 'logical connection' between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
The landlord alleges that the Tribunal was one-sided and conducted the hearing in a manner that clearly preferred the tenant's position to that of the landlord. Part of the landlord's complaint was that the Member identified, heard, and determined issues, one after the other. Since s 38(1) of the NCAT Act provides that the Tribunal may determine its own procedure, the approach taken by the Member cannot be said to be incorrect.
It is understandable that the landlord or the landlord's representative may have perceived the operation of that approach to be one-sided or unfair but that is not the test, it being well-established that the test is to be assessed by reference to the position of a fair-minded lay observer.
However, it is not necessary to consider this issue by reason an error of law having already been identified.

Leave to appeal

Given that we have found there was an error of law, it is unnecessary to consider the leave grounds relied on by the landlord.

Disposition of the appeal

We indicated to the parties that we would be reserving our decision on the appeal. We noted that there were three possible outcomes: 1. the appeal could be dismissed, 2. the appeal could be allowed and remitted for rehearing, or 3. we could allow the appeal and rehear the matter ourselves.
During the final hearing we sought the views of both parties as to what course they favoured in the event we considered the appeal should be allowed. The landlord's agent asked us to redetermine the matter if the appeal was successful, as did the tenant.
As the documents provided to use for the appeal included fresh evidence, we indicated that we proposed to consider that evidence and hear submissions so that, if the appeal was allowed, the time and cost of a rehearing would be avoided, since that was the quickest, fairest, and cheapest way of proceeding, as required by the guiding principle set out in s 36 of the NCAT Act.
Accordingly, both parties agreed that, if we allowed the appeal, we would then proceed to redetermine the original application for payment of the bond to the landlord and would allow both the landlord and the tenant to rely on the fresh evidence they had filed. Having decided to allow the appeal, we set out below or reasons in relation to the rehearing of the claims made by the landlord against the rental bond.

The rehearing

The claims made by the landlord were: 1. moving the lawns - $120.00, 2. removal of furniture and rubbish - $650, and 3. cleaning - $370.00.
We will consider each sequentially below. We understand that the bond has been paid to the tenant and therefore any claim by the landlord that we allow will result in a compensation order under s 187(1)(d) of the Residential Tenancies Act 2010 (NSW) (the RTA).

Oral evidence

Ms Collier, speaking on behalf of the landlord, confirmed several matters in giving evidence on the rehearing, namely that there was evidence before the initial hearing: 1. The tenant had been given a termination notice requiring her to vacate at the end of the tenancy by 10 March 2022. 2. The tenant had been locked out of the property on 8 March 2022, following service of a notice of termination due to frustration (the property being uninhabitable due to rain damage) on 7 March 2022, 3. Keys had been left to enable the tenant to access the property on 9 March 2022 to remove her goods on the understanding the property was not fit to be lived in and she was entering at her own risk. 4. At that the time, the tenant had been looking for a new property in Northern NSW.
In addition, the landlord's agent said that: 1. The tenant left the lawns in need of mowing. While the ingoing tenancy agreement showed the lawns had in need of mowing, this was because it had been too wet to mow at the time, and the landlord had paid for the lawn to be mowed two weeks later. 2. The house had been in an untidy condition when the tenant returned the keys on 21 March 2022 having had from 9 March 2022 to enter, clean and remove rubbish. 3. The tenant's brother had removed furniture worth saving but had left old, decrepit, and valueless items at the property. Two days extra time had been offered to remove items and clean. 4. The tenant had enough time to clean the property but chose not to do so. The landlord should not have to pay for cleaning. 5. At the time the events in issue occurred it was the understanding of the landlord's agents, passed on to the tenant, that upon termination the landlord intended to demolish the property. Only later did the landlord change his mind and engage a different real estate agent.
Ms King, the tenant, told us that: 1. In late February 2022, the ceiling in the external laundry collapsed after heavy rain, while she was in the laundry. This led her to file and application for repairs and rent reduction. The rain did not affect the rest of the house. 2. She does not drive and was living in her new home, some four hours away, when most of these events occurred. 3. Despite being given access to the key to the property on 9 March 2022, she was not allowed to live there from that date onward. She was given access for the purpose of cleaning the house out, on the understanding that she entered at her own risk. There was not time to remove all furniture. 4. The lawns had last been mowed on 22 February 2022. 5. She did not dispute that the house needed cleaning, but she did not have a real opportunity to do so. She was reliant on others, namely family members, to clean and remove goods since, practically, she could not do so herself. 6. The fact that she understood the house was due for demolition did not play a part in her thinking.

Material considered on the rehearing

In deciding the rehearing, we had regards to new evidence relied on by the landlord which consisted of: 1. An invoice for mowing the lawns at the premises on 17 May 2021 for $100.00. 2. A letter dated 7 July 2022 from Xtreme Cleaning and Maintenance setting out the furniture and rubbish removed from the premises. 3. A statutory declaration from Fiona Scanlon dated 8 July 2022.
The tenant relied on a handwritten statement from her brother that was new.
We also had regard to all the material that the parties relied on before the initial tribunal hearing. This included: 1. the tenancy agreement, 2. an unsigned and undated outgoing condition report, and 3. undated photographs, taken of the property after the tenant retuned the keys on 21 March 2022.
A tenant's obligation on giving vacant possession of a property are set out in s 51 of the RTA: On giving vacant possession of the residential premises, the tenant must do the following - (a) remove all the tenant's goods from the residential premises, (b) leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into, (c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy, (d) remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy, (e) return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant.
If not for the fact that the tenant was a party to and is bound by the consent orders made on 14 March 2022, it could be argued that the landlord re-took possession of the premises when the locks were changed on 7 March 2022. However, the effect of the consent orders prevents the tenant from asserting that the landlord took possession 7 March 2022. Rather, the tenancy then continued in accordance with the consent orders. There is agreement that the keys were returned to the landlord's agent on 21 March 2022. That is when the tenant gave vacant possession for the purposes of s 51.

Mowing the lawns

The ingoing and outgoing condition reports show the lawns as not having been mowed. The ingoing condition report was competed and signed by both parties. The outgoing condition report is not signed or dated. The landlord seeks to rely on an invoice dated 17 May 2021 for $120 for mowing the lawns shortly after the tenancy agreement commenced to argue that the tenant should have mowed the lawn before she left.
The tenant says the lawns were last mowed on 26 February 2022. The photos show a neat and tidy lawn that has grown and is due for mowing. We think the photographs likely to have been taken around four weeks after the lawn was last mowed.
Section 30 of the RTA provides: (1) A condition report that is signed by both the landlord and the tenant is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the day specified in the report. (2) This section does not apply - (a) to any matter that could not have reasonably been discovered on a reasonable inspection of the premises, or (b) to any statement in the report about which the tenant makes a written dissenting comment on the copy of the report completed by the tenant and retained by the landlord.
An unreceipted invoice for mowing lawns after the tenancy commenced is not "evidence to the contrary" that displaces the notation in the ingoing condition report that the lawns required mowing. That notation is presumed to be correct. The outgoing condition report is of no assistance as it is undated and unsigned.
The claim for the costs of mowing the lawn is rejected.

Cleaning

The landlord claims $350 for cleaning based on a "draft quote." There is no receipt, although the landlord's agent said the bill had been paid. This amount is claimed with respect to a house which was unfit for full-time occupation: the tenant was locked out prior to the termination date on 7 March 2022, and the next day allowed back in at her own risk, with the house soon being found to be unfit for overnight habitation.
The evidence indicates that the roof of the external laundry had earlier fallen in while the tenant was in the laundry, yet the quote claims for the costs of wiping over the laundry tub. Indeed, the quote claims for detailed cleaning (e.g. curtain rails) which no reasonable person would contemplate when the building is to be demolished. We doubt the "draft quote" is a considered one and give it little weight.
The lockout occurred in circumstances whereby both the tenant and the landlord's agents understood that the building would be demolished at the end of the tenancy. The purpose of the extended possession date was to allow the tenant back into the premises to remove her possession and not to live there.
In addition, the ingoing condition did not accept that the house was in a thoroughly clean state at the start.
For all these reasons we are not persuaded that this is an appropriate or proper case in which to make an order for the costs of cleaning premises. The claim for cleaning costs is dismissed.

Removal of furniture and rubbish

The letter from Xtreme Cleaning and Maintenance lists the items removed from the property at the costs of $650. It includes old and broken furniture and a list of household minutiae, much of which can be classified as rubbish. The furniture included, "an old with sagging leather in poor condition". The author of the report suggested that everything removed, "was ready to be thrown out".
This is to be contrasted from the description of the goods left behind provided in a letter from the tenant's brother which indicates they were less damaged.
We note that the invoice for this work gives a cost of $409.09 for labour, plus tip fees and GST. It gives no indication of how much time was spent removing this rubbish, or how many people were involved. It says a quantity of "1" was supplied at a cost of $409.09. The letter from the cleaner indicates the rubbish was removed over two days by one person but gives no idea of time spent.
The tenant was given access to the premises to remove her uncollected goods in what were undoubtedly difficult circumstances for her. She could not stay at the house to undertake the work and was then living 4 hours away. She does not drive. The fact that the property was not safe for 24 hour a day occupation due to the condition of the roof, was a decision made by the landlord and imposed on her. The practical difficulties she confronted in attending the property herself in those circumstances were significant. She was however, given access to the property to remove her goods. She relied on her brother to do so, but less valuable items and rubbish were left. They had to be disposed of at a cost to the landlord.
The difficulties which the tenant confronted in accessing the property to remove her goods were due to restrictions imposed on her access to the property by the landlord. We consider those restrictions should be taken into account when exercising the Tribunal's discretion to award compensation under s 187(1)(d) of the RTA. In the exercise of that discretion, we propose to award the landlord compensation equal to half of the removal costs claimed, in recognition of the practical restriction confronting the tenant, resulting from the safety concerns and limited access, but acknowledging that items were left behind.
This means that the outcome of the rehearing is that an order should be made for the tenant to pay the landlord compensation of $325.

Orders

The Appeal Panel makes the following orders: 1. Appeal allowed. 2. Orders made by the Tribunal on 2 June 2022 in RT22/12983 on 2 June 2022 are set aside. 3. In lieu thereof, order the respondent to pay the appellant the sum of $325 within seven 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 Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 12 October 2022 - Typographical errors amended. 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: 12 October 2022

At a glance

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Decision date

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Judgment (22 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (13)