Dewey v McLachlan

Notice of Appeal

1. The Notice of Appeal identified the following orders which the landlord challenged on appeal: 1. The dismissal of his application for summary judgment of the tenant's application; 2. The dismissal of his application to order the tenant to pay his costs. 3. The order that the landlord pay compensation of $260.00 to the tenant for breach of quiet enjoyment. 4. The dismissal of landlord's application.
2. In an Annexure to the Notice of Appeal, of 17 pages in length, the appellant provided detailed submissions in support of the Appeal and in support of an application for leave to appeal. We deal with these issues below.
3. The Appellant submitted that the Appeal Panel should grant leave to appeal and allow the appeal, and make orders that: 1. The order that he pay the tenant the sum of $260.00 be set aside; 2. Extending the time for making application RT 16/49493 be extended to 11 November 2016; 3. The tenant pay the landlord $263.35 as compensation for damage to the north-west gate post; 4. The tenant pay the landlord $1,194.62 as compensation for damage and lack of maintenance of the rear lawn and the tenant's failure to prune vegetation within the swimming pool barrier Non-Climbable Zone.
4. Apart from the reference to the failure of the Tribunal to make an order that the tenant pay the landlord's costs in Part A of the Annexure to the Notice of Appeal, there was no further reference to this issue in the landlord's submissions, and it was not raised during the hearing.

Reply to the Appeal

1. The tenant was not represented by a legal practitioner at any time and it is evident that he and his wife experienced difficulty in dealing with the documentation required in their initial application and in replying to the Appeal. In the Reply, the tenant states that he supported the original orders as made by the Tribunal.

Nature of Appeal

1. The making of internal appeals in the Tribunal is addressed in s 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). If an appellant is able to identify an error involving a question of law, there may be an appeal as of right. Otherwise, leave to appeal is required: see s 80(2)(b). Leave may only be granted if the appellant can demonstrate that they may have suffered a substantial miscarriage of justice: see cl 12 of Sch 4 to the NCAT Act.
2. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right and noted 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.
3. There is nothing in the Notice of Appeal which suggests that the landlord has an arguable question of law. In our view, the landlord requires the leave of the Appeal Panel for the appeal to proceed.
4. An Appeal Panel may grant leave to appeal only if it is satisfied that the Appellant has suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable, or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
5. The principles applicable to the grant of leave were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. This decision states that in order to be granted leave to appeal, the appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there is a bona fide challenge to an issue of fact. Further, the Appeal Panel indicated that, ordinarily, it is appropriate to grant leave only if the matters involve: 1. Issues of principle; 2. Questions of public importance or matters of administration or policy which might have general application; 3. An injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent; 4. A factual error that was unreasonably arrived at and clearly mistaken, or 5. The Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

Grounds of Appeal

1. The Appellant raised wide ranging grounds of appeal, prefaced by the submission that the reasons of the Tribunal were in many respects "inadequate." The specific errors in the reasons to which the landlord referred were said to be: 1. The failure to summarily dismiss the tenant's application. 2. Allowing the tenant an extension of time to seek compensation for a breach of quiet enjoyment. 3. The findings in relation to the landlord's attendance at the premises. 4. Allowing $260.00 compensation to the tenant for a breach of quiet enjoyment. 5. The acceptance of the tenant's evidence as to the cause of the damage to a gate post. 6. The dismissal of the landlord's claim for repairs to the rear lawn. 7. The dismissal of the landlord's claim for pruning of trees.
2. The landlord sought leave to appeal on the basis that the decision was not fair and equitable and further was against the weight of the evidence
3. The landlord also sought to rely on "new" evidence including meteorological records. This evidence was clearly not new, in the sense that it was reasonably available at the time of the hearing at first instance, and the Appeal Panel did not accept that evidence on appeal.

Consideration

1. We note at the outset that in our view, the reasons given by the Tribunal contain findings of fact which were in accord with the weight of evidence as set out in those reasons. We do not consider that the findings were so against the evidence (in the sense that the evidence in its totality is strongly against the conclusion reached by the Tribunal) as to be a conclusion that no reasonable Tribunal member could reach: Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Maintek Services Pty Ltd v Stein Heurtey SA [2013] NSWSC 266 at [153], cited in Collins v Urban [2014] NSWCATAP 17 at [77]-[79]. The Tribunal came to a fair and equitable decision based on those findings. Save for the extension of time point discussed below, there is no basis for a grant of leave to challenge those matters of fact.
2. We will consider each of the landlord's arguments below.

Failure to order Summary Dismissal

1. The application for summary dismissal of the proceedings was made in writing at the commencement of the hearing. The Tribunal gave the following reasons for declining the application for summary judgement: 3. The landlord sought an order …..for summary dismissal of the tenant's application on several bases, including that the tenant had not properly particularised the basis for the application. The landlord's submission to that effect ran to some 37 pages. It was apparent from the landlord's submission that he had identified a number of alternative bases on which the tenant's application may have been based, and he addressed each of them. In these circumstances the Tribunal was not satisfied that the landlord had been unable to discern the nature of the application, and declined to dismiss it summarily.
2. The material prepared by the landlord for the hearing before the Tribunal was extensive and included 37 pages of submissions and the landlord's 24 page affidavit (together with 50 pages of attachments), which were referred to by the Tribunal.
3. The Appeal Panel has carefully reviewed the above documents, in particular the 37 pages of submissions referred to by the Tribunal, (the submission). At pp 7 to 9 of the submission the landlord identified that "the real issues appear to relate to": the claim for return of the rental bond based on delay in the repair of the swimming pool and the "landlord's attendance" while work was undertaken. As it transpired, the tenant was unsuccessful in the former claim but successful to a small amount in the latter claim. At pp 10 to 14 of the submission the landlord addressed in detail the tenant's claim for return of the rental bond. The relationship between the tenant's unsuccessful claim in this respect and the objection to the rent increase was apparent. The submission at pp 14 to 17 makes it clear that the landlord understood that the claim for loss of quiet enjoyment was based on attendance by the landlord and contractors for the conduct of repairs. The tenant's claim for breach of cl 23.6 was referred to in detail at pp 18 to 19 of the submission. Further the tenant's claim based upon the prolonged period required to complete the repairs to the swimming pool were addressed at pp 19 to 22 of the submission. At pp 28 and 29 a table prepared by the landlord listed "possible tenant orders and defects in the tenants case".
4. We consider that the Tribunal was justified in the finding that the landlord clearly understood the case being pursued by the tenant, notwithstanding that the documentation prepared by the tenant was not as extensive and detailed as the landlord's documents.
5. In addressing this ground of appeal, the Appeal Panel considers that it is appropriate to recognise that, apart from there being an allowance to the tenant of a modest amount for loss of quiet enjoyment, the tenant's application was otherwise unsuccessful. The landlord has not demonstrated any basis for leave to appeal to be granted in relation to this ground.
6. The Appeal Panel also concludes that the abbreviated explanation by the Tribunal of the reasons for dismissal of the application for summary judgment exhibits an appropriate application of the guiding principle in s 36 of the NCAT Act, namely that the "guiding principle" for the Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
7. The tenant's claim for compensation for the loss of quiet enjoyment was strongly contested by the landlord in the proceedings before the Tribunal and in the course of this Appeal. The Appeal Panel concludes that the landlord clearly understood the nature of the tenant's claim on this issue. In some respects, the issues as to the landlord's conduct, and the extent and nature of his attendance at the premises, seem to have been a significant aspect in contest in the proceedings below. We address this particular aspect of the Appeal separately below.
8. The Appeal Panel does not accept that the Tribunal fell into error when dismissing the landlord's application for summary dismissal.

Allowing the tenant an extension of time to seek compensation for a breach of quiet enjoyment

1. The Tribunal addressed the various aspects of the tenant's claim in the following terms: 18. The tenant complains that the landlord breached his quiet enjoyment of the premises, by failing to give notice for inspections and when attending to the premises to carry out repairs. The landlord denies breaching the agreement. He says that gave appropriate notice unless he was attending to carry out repairs requested by the tenant, in which case he argued that he had the tenants' implied consent to access the property. 19. The Act and regulations provide that a claim which arises from a breach of the agreement is to be filed within 3 months after the applicant becomes aware of the breach, (Reg 22(9)). The tenant provides copies of emails dated 27 May 2016, 31 May 2016, 3 June 2016, 23 June 2016, 20 July 2016 and 15 August 2016, complaining about the landlord's attendance at the premises. The time for commencing proceedings in respect of these breaches was between 27 August 2016 and 15 November 2016. This application was filed on 4 October 2016. However it sought an order under s 115, to declare that a termination notice was a retaliatory notice. It was not until the application was amended on 15 November 2016 that it was apparent that the application made reference to breaches of the agreement in respect of access. Accordingly, the tenant requires an extension of time to bring the application in respect of the alleged breach. 20. The principles to be applied in considering whether to extend time are those set out in Jackson v NSW Land and Housing Corporation [2014] NSWCAT 22. [The Decision then sets out the principles there stated and continues] 21. The delay in this matter is relatively short. Whilst no reason is given as to why the proceedings were not brought earlier, the Tribunal accepts that the tenant was not represented and may have been unaware of the time limit. This does not in itself excuse the delay. However the Tribunal will extend time, because the Tribunal is satisfied that the respondent does not suffer any prejudice as a result of the delay, whereas, if the extension is not granted, the tenant's claim is barred.
2. The landlord challenges the decision of the Tribunal to extend time and contends that this was an error of legal principle. We accept that there is substance in the landlord's submission that r 8 of the Civil and Administrative Tribunal Rules was not complied with. That rule provides that an application for an extension of time made under s 41 of the Act must be made in writing unless the Tribunal dispenses with that requirement. We assume, but do not know, that the Tribunal must have dispensed with the requirement. We consider therefore that the appropriate course is to grant leave to appeal in relation to the Tribunal's decision to grant an extension of time, and for the Appeal Panel to proceed to deal with the internal appeal on this narrow issue, by way of a new hearing pursuant to s 80(3)(a) of the NCAT Act.
3. The tenant included in their bundle of documents a copy of an email message from the real estate agent who managed the tenancy up till 1 July 2016. We are uncertain whether this email was in evidence before the Tribunal, but the Appeal Panel is entitled to permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal: s 80(3)(b). This provides some independent evidence as to the circumstances associated with the landlord's attendance at the premises, upon which the tenant's application was based. The email is addressed "To whom it may concern" and states. I confirm that Sharon and her husband were tenants of ours at (the premises) until the time we handed the management back as of July 1 this year. During the course of their tenancy Sharon and Andrew were excellent tenants. The property had several issues that took a long time to repair and they were highly accommodating and patient. We never had any concerns with their rent or the condition they kept the property in. One of the challenges faced during the tenancy related to maintenance issues. One in particular was the repairs required to the swimming pool. These repairs were overseen by the landlord and there were many instances where the landlord would attend the property without notice. We were also made aware of several instances where he was asked to leave but would not. Further to this we had contacted the owner and advised of their obligations under the lease, the owner refuted this and continued attending. It was one of the key actions that led to the decision to terminate our agreement with him. The last key issue related to the repair of the pool and a requested rental increase. The rental increase was due to take effect 3 June however was held off pending the repairs to the pool. The owner advised the pool was repaired on the 16 June. The tenant claims this was not the case. Given the instruction from the owner the increase took effect from the 16 June and when we handed the property over the tenant was paid to the 1July including the rental increase. Overall I always found the tenants to be co-operative and adhering to their agreement.
4. The Tribunal also made the following findings which are relevant to the Appeal Panel's consideration as follows: 22. The Tribunal finds that the landlord did on occasions attend the premises without obtaining the tenant's consent. In his affidavit at pp 20/21 he records three occasions when he attended at the tenant's request. The Tribunal does not accept the landlord's submission that, where a tenant requests that a repair be carried out, that amounts to an implied consent for access without further negotiation as to the time and date for that access. . . . 25 The Tribunal is satisfied that particularly during the period 11 May 2016 and 1 August 2016 the tenant's use and enjoyment of the premises was compromised. In May, according to the landlord's own evidence, there were 5 occasions on which the landlord or the landlord's tradesmen attended the premises, 6 times in June and 5 times in July. On some of those days it appears that work continued throughout the day.
5. The landlord objects to a reference by the Tribunal to the purpose of the landlord's activities included the preparation of the premises for sale. The Appeal Panel notes the apology by the tenant for the informality of the introduction of this proposition, but concludes that in the light of the findings of fact in par [25] of the Decision, that this objection is redundant. The landlord's motivation for attendance is irrelevant. The Tribunal only has to assess the extent to which the attendance compromised the tenant's right to quiet enjoyment of the premises.
6. The power of the Tribunal extend time is contained in s 41 of the NCAT Act: Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
7. A frequently cited authority as to the principles to be applied when an extension of time is sought or being considered by the Tribunal is Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, being the decision relied upon by the Tribunal. It is accepted that an important matter when considering whether or not to extend time is an assessment of the prospects of success of the appeal or claim, see Hawkins v Papandrea [2015] NSWCATAP 44 and Liberant v Brisbane Water (NSW) Legacy Club [2017] NSWCATAP 132.
8. On the basis of the findings by the Tribunal as to the facts concerning the attendance by the landlord and the finding that compromise thereby resulted to the tenant's enjoyment of the premises, along with the corroboration of the tenants evidence in the email from the managing agent, the Appeal Panel concludes that the prospects of success of a claim for loss on quiet enjoyment were strong and having regard to the other factors identified in Jackson, an extension of time should be granted.
9. Further, the Appeal Panel concludes, as a fact, that having regard to Tribunal's findings at par [25] of the Decision, and the corroboration of the actions of the landlord by the managing agent, see [32], the tenant was entitled to compensation for the resulting loss of amenity and quiet enjoyment. The amount assessed by the Tribunal is modest, and could, in the opinion of the Appeal Panel, have been for a greater amount based on the findings of fact as to the extent of the impact of the landlord's conduct. To the extent that the landlord challenges the assessment of compensation, the appeal should be rejected.

Acceptance of tenant's evidence as to cause of damage to gate post

1. The landlord challenges the finding of fact by the Tribunal as to the initial cause of the damage to a gate post. The landlord's contentions are based solely on an assertion that the tenant's evidence that the damage was initiated during a storm event is improbable. There was ample evidence of the severity, and property damage caused by, the storm event, the occurrence of which is beyond doubt. The Tribunal dealt with this issue as follows: 38. The landlord claims that the gate post was damaged by the tenant. He provides two photographs of the gate which he says shows that it was not damaged on 19 May 2016, and was damaged on 27 June 2016. The tenant denies damaging the gate post. He says the fence was damaged in the April 2015 storm, and the damage to the gate post has happened over time since then because of the delay in repairs. 39. The landlord has the onus of proving that the tenant damaged the gate post. It is not for the tenant to prove that he did not do so. The Tribunal has carefully examined the photos provided but is not satisfied that they support the landlord's claim. The claim is dismissed.
2. The landlord has not identified evidence which was before the Tribunal which proved his claim to the standard of proof required. He merely asserts that the evidence of initial damage during the storm and progressive damage by wind is improbable.
3. The landlord has not satisfied the Appeal Panel that the Tribunal made a finding which was against the weight of the evidence or involved an error of principle.

Dismissal of Landlord's claim for repairs to lawn

1. As with the claim in relation to the gate post, the landlord contends that the Tribunal was in error in not accepting his claim that he was required to spend money repairing damage to the rear lawn by reason of some breach by the tenant. The mere fact that the condition of the lawn disclosed deterioration does not lead to a conclusion that the tenant did, or failed to do, something which he was obliged to do, and which caused the deterioration or damage which required rectification.
2. The landlord's claim failed because he had not produced evidence which disclosed, or proved, some breach by the tenant.
3. There is no basis upon which the Appeal Panel could conclude that the Tribunal's findings involved an error of law, were against the weight of the evidence or involved some error of principle.

Dismissal of Landlord's claim for pruning of trees

1. The Tribunal, at par [43] of the Decision, noted that the landlord proceeded with the pruning of trees and then contended that the pruning was required by reason of some obligation of the tenant to remove growth which allowed access to the swimming pool in breach of swimming pool legislation and regulation.
2. There was no evidence provided by the landlord that identified which vegetation needed pruning simply to prevent access to the swimming pool as opposed to the pruning of large trees on the boundary. There was evidence before the Tribunal about the substantial trees, on or near the boundary of the property, which were pruned by the landlord, or his contractors, which works do not appear to be referrable to the restriction of access to the swimming pool. For the Tribunal to be in a position to make a finding as to the possible recovery, as claimed, there would need to be clear evidence of what was necessary and why. In the absence of such evidence the claim is merely for the pruning of trees without a proven basis for liability

Conclusion

1. The landlord has not identified evidence which establishes that the Tribunal made an error of law, principle or a finding which was contrary to or against the evidence.
2. For the above reasons, the Appeal Panel: 1. Grants leave to the landlord to appeal in relation to the Tribunal's allowance of an extension of time to bring the claim for compensation for the tenant's loss of quiet enjoyment, but dismisses that ground of appeal. 2. Otherwise dismisses the appeal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2017