Dugtong v Affordable Housing Pty Ltd

Dugtong v Affordable Housing Pty Ltd - [2021] NSWCATAP 22 - NSWCATAP 2020 case summary — Zoe

[3]

The first hearing

The hearing of evidence and submissions on 9 April 2020 occupied about one and a half hours following which the Tribunal gave oral reasons over a period of about one hour.
On the appeal, the Tenant provided a transcript of parts of the hearing. However, because of the Tenant's complaints of bias and procedural fairness we have listened to the sound recording of the whole of the hearing.
The Tenant's complaint of bias is, principally, founded upon an exchange between the Tribunal and Ms Eveleigh near the end of the hearing during a short period when the Tenant's telephone connection to the hearing was lost.
The transcript extract supplied by the tenant reveals that this exchange in her absence took place between 02:16:00 and 02:18:12.
The sound recording reveals that this exchange occurred very near to the end of the Tribunal's oral reasons and pronouncement of orders. The giving of those oral reasons had commenced at about 01:26:00. The sound recording also reveals that before the exchange in the absence of the Tenant the Tribunal, in its oral reasons, had expressed the conclusion that it was not satisfied that the Landlord had acted in breach of the residential tenancy agreement, as a consequence, the Tenant was not entitled to compensation but it was satisfied it was appropriate to make an order to the effect that the Landlord comply with the lease and make reasonable endeavours to investigate and diagnose the noise problem and repair any defect that may be found (at about 02:12:00 to 02:16:00).
This overall conclusion followed separate conclusions expressed in the oral reasons, while both parties were present, that the Tribunal was not satisfied there had been a breach of the quiet enjoyment obligation (at about 02:05:00) or that there had been a breach of the fit for habitation obligation (at about 02:10:00) or that there had been a breach of the repair obligation (at about 02:11:00).
So far as the bias complaint is concerned, relevantly, the transcript reveals the following, commencing at 02:16:00 (we use the abbreviations of "T" for the Tribunal, "E" for Ms Eveleigh and "D" for the Tenant): T Now, I just watched my screen change, while I was doing that. Who is on the line? E I am. T Ah, Ms Dugtong is on the line, is she? Sorry, which Maria is on the line? E Maria Eveleigh, I do apologise. Maria Eveleigh. T Maria Eveleigh. T Ms Dugtong does not appear to be on the line any longer. E Oh, ok. T Ah, so. As I've.. basically I've reached the end of my reasons. It seems to me the appropriate thing to do is to enter an order requiring compliance with the lease on the landlord's part. E Uhm T Umm, and to, ahh, ahh, give the tenant the right to renew in respect of the repair issues, if they, ah.., no I would go through it last but the tenant will obviously have the right to bring a further action in respect of further breaches should she think that there are any. E Uhm T So, on that basis, uhm, Ms Eveleigh have you got any submissions to make in relation to how I might phrase that order? E Uhm, it's my first time like this but, yeah, in respect to the owner investigating further is that what you are referring to? T Yes. E Yeah, I mean, look we're happy to do that. We can keep looking into it but I just don't know how long do we.. how long does it.. We will continue looking into it.. maybe get in there on different times of the day.. and look at it further. Happy to do that 'coz we don't want any issue down there, but, yeah. T Just bear with me for a moment, I might just see if I can ring Ms Dugtong again on her mobile. E Sure. T Just bear with me for a moment. Phone rings D Hello. T Am I speaking to Ms Dugtong? D Yes, Mr Rose, I got disconnected when you were mentioning about the order. T I'm just reconnecting you now. D Thank you. T So, I've put you back on the line. Ah, now, the.. What I just come to is the conclusion. I don't think there's enough evidence to establish the breach. So, my information is therefore, my finding is therefore, dismiss the claim for compensation. However, I am comfortable that I ought to make an order that the landlord is to carry out further investigations and to repair whatever aspects of the building diagnosed in respect of the symptoms, if I can use that word, that you have complained of. What I would like some assistance with from both parties is how I might phrase that particular order.
The sound recording confirms what the extract from the transcript suggests, namely that the Tribunal did not inform the Tenant of the communication that had occurred in her absence.
The sound recording also reveals that there were no rulings by the Tribunal at the hearing preventing the Tenant from presenting such evidence and submissions as she wished.

[4]

The Main Decision

At the conclusion of the hearing on 9 April 2020, the Tribunal made the following orders: 1 The Tribunal orders that the respondent… must comply with the terms of the residential tenancy agreement and with the landlord's obligations under sections 50 (3) and 63 of the Residential Tenancies Act by undertaking the following work by itself, or causing the undertaking of the following work, in a proper and workmanlike manner on a before 29 May 2020: (a) use all reasonable efforts to investigate, diagnose and (if found) repair the source of the noises that have been the subject of the tenant's complaints in these proceedings; and (b) provide a report to the tenant within the above time, setting out the efforts it has made to investigate, diagnose and repair that source, and the results of those investigations, diagnosis and repairs. 2 The application is otherwise dismissed because, having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established. 3 The applicant may seek leave to renew these proceedings in the event that order 1 is not complied with by the landlord.
Subsequently, following a request by the Tenant, written reasons were provided by the Tribunal. (The reasons indicate that they were completed on 20 May 2020. It is uncontroversial that the Tenant did not receive these reasons until 29 June 2020).
The written reasons, relevantly, include the following: 1. The Tenant's claim was grounded on three allegations, namely, breach of the landlord's obligation in s 52 of the Residential Tenancies Act 1987 (NSW) (RTA) that it provide premises in a state that is fit for habitation, breach of the landlord's obligation in s 63 of the RTA and cl 18.3 of the residential tenancy agreement that it keep the premises in a reasonable state of repair, and breach of the quiet enjoyment obligation of the landlord, in s 50 of the RTA and cl 14.2 of the residential tenancy agreement, that the landlord not to interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. 2. The Landlord's response was that it had sought to identify the source of the noise but had been unable to find any noise that would constitute an interference with the right of quiet enjoyment or would make the premises unfit for habitation. 3. A summary of the evidence presented by each party: at [9] to [14]. For the Tenant, this included the Tenant giving sworn oral evidence in which she verified the events set out in chronology of events, the Tenant's spreadsheet noise diary and a sheet describing the five noise recordings she made of which two (those recorded on 14 January 2020) were played by the Tenant at the hearing. The Tribunal noted the reference on this sheet that an earphone was required to listen to the recordings. We note that Tenant did not raise this as a requirement when she played the two recordings at the hearing at first instance and there was no suggestion by any party or the Tribunal that there was any difficulty hearing what was recorded). For the Landlord, this included a one-page written statement that Ms Eveleigh prepared and verified, a short statement from Ms Pettenon, letters dated 20 and 27 March from the Landlord's plumber and Mr Thanos and an audio recording, referred to in Mr Thanos letter, which was played at the hearing. This letter referred to the recording as a video recording but the video was not supplied by the Landlord within the time required before the hearing. (Ms Eveleigh explained to the Tribunal that the video was received after the prescribed date for provision of evidence and she thought that, in those circumstances, it should not be provided). At the invitation of the Tribunal, the audio of the recording was played. 4. The Tribunal described (at [15]) the Tenant's noise recordings played the hearing as containing: "… What I can only described as a mild vibrating noise which seemed to come and go during the course of the recording." 1. The Tribunal referred to the Tenant's evidence that she made the recordings by using her mobile phone as she stood in the bathroom with the phone raised towards the ceiling of the bathroom and about one or 2 feet below the gyprock ceiling (at [15]). As to this, the Tribunal, later in the reasons said (at [22]): "The way that the tenant has given evidence about the method of her recording suggests to me that she has taken the best efforts that she could to record the noise and present to the Tribunal that evidence as loudly and as offensively as that noise might be. That evidence suggests that in order to capture the evidence that the Tribunal heard she had to go into the bathroom, hold the phone up above her head height, close to the ceiling, and record the noise. Yet the noise that the two recordings played produced did not appear to be particularly loud, and so a question arises as to whether or not noise of that nature is sufficiently offensive to constitute breaches of the obligations as to habitability and quiet enjoyment." 1. The Tribunal said there had been no attempt to discredit the diary and that there was no reason he should not accept the diary for what it said (at [19]). The Tribunal concluded that the diary was evidence of when observations were made but it did not provide any particularly probative evidence about the nature or extent of the noises that occurred on those dates beyond the generalised description that we have already set out in paragraph 7 above. 2. The Tribunal concluded that there was nothing in the evidence to suggest that there was any mechanical device that might be affecting the water flow in the roof cavity area above the bathroom (at [28]). It referred to evidence provided by the Landlord's tradesmen that suggested that the water pipes in the ceiling above the premises were, generally speaking, wrapped in noise insulation material to comply with the acoustic requirements of the Australian building code, and that all copper pipe work was secured to the concrete floor above in order to stop water hammer (at [28]). 3. The Tribunal concluded that it was satisfied that the Tenant had noticed noise in the premises over the period since she moved into the property but it was not satisfied that the noise was particularly loud or offensive. 4. The Tribunal referred to the Tenant's burden of proof to the civil standard and set out a passage from the decision of Justice Emmett (as he then was) in Warner v Hung, in the matter of Bellpac Pty LT D Ltd (receivers and managers appointed) (in liquidation) (No 2) [2011] FCA 1123; 297 ALR 56 at [48], including His Honour's reference to: "Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences." 1. The Tribunal then addressed, in turn, each of the alleged breaches. 2. As to the alleged breach of the quiet enjoyment obligation, the Tribunal said that authority established that more than a "mere inconvenience" was needed to establish such a breach (at [33]). In this regard it referred to the decision in McC v Director of Housing [2009] VCAT 2748. The Tribunal went on to say (at [34]): "It is clear that excessive noise may constitute a breach of the right of quiet enjoyment, and this is the question that I must ultimately determine. Is the noise that the tenant complains of excessive? The tenant has the burden of proof." 1. Next, as to the quiet enjoyment obligation, the Tribunal referred to the absence of evidence from a building expert or acoustic engineer (at [35]). The Tribunal then concluded (at [36]): "Unfortunately for the tenant I'm not persuaded to the standard referred to by Justice Emmett that what she complains of reaches that degree of excess referred to in the authorities that I have alluded to in relation to the noise that she has referred to. I therefore cannot be satisfied on the evidence that has been provided that what she complains of amounts to a breach of the obligation of quiet enjoyment." 1. As to the fit for habitation obligation, the Tribunal referred to various authorities, including that the test of uninhabitability was a difficult one to satisfy and should not be found lightly (at [37]-[41]). It concluded that it was not satisfied to the requisite standard that the level of noise complained of was so excessive as to render the premises uninhabitable (at [42]). 2. As to the repair obligation, the Tribunal said that the difficulty for the Tenant was that she had not been able to identify what was out of repair. It concluded that it was not satisfied "at this stage" that the Landlord was in breach of this obligation (at [46]). The Tribunal remarked that the Landlord's consultants had not been able to replicate the issues that the Tenant raised. It said that it was apparent during the course of the evidence that the playing of the two recordings by the Tenant was of assistance to the Landlord and that this might be able to prompt the Landlord to redouble its enquiries and efforts in order to diagnose and, if found, repair the premises but, at the moment, because there was no identified disrepair the Tribunal could not conclude there was a breach of that obligation (at [47]). 3. The Tribunal concluded that whilst it was not able to conclude that a breach of the residential tenancy agreement had been established and, therefore, award compensation, it would be appropriate, to make an order requiring the Landlord to comply with the obligations in the residential tenancy agreement and in that regard continue to use reasonable endeavours to search for, diagnose and repair the source of the noise. It said that it occurred to the Tribunal that this was the best way to resolve the matter (at [49]).
The Tribunal did not explain how it considered it was able to make the investigation work order (Order 1) in circumstances where it found there was no breach of the tenancy agreement. However, there was no appeal by the Landlord against that order.

[7]

Extension of time in which to appeal

The Tenant needs, and has requested, an extension of time in which to lodge the appeal pursuant to the Tribunal's power in s 41 of the NCAT Act. The Landlord opposes the grant of an extension of time.
The original Notice of Appeal was stamped as lodged on 14 July 2020. Email correspondence shows that it was sent to the Tribunal on 13 July 2020, although it seems the fee for an appeal was not paid on that day.
There is, therefore, a lengthy delay beyond the time when the appeal from the main decision was required to be lodged, namely 14 days from 9 April 2020, and a short delay beyond the time when the appeal from the second decision was required to be lodged, namely 14 days from 22 June 2020: Regulation 25 (4) (b) of the Civil and Administrative Tribunal Regulation 2014. As to the main decision, this is because the period of 14 days prescribed in this regulation starts from 9 April 2020 because oral reasons were given by the Tribunal on that date: see Regulation 25 (4 A).
However, in our opinion, there are five matters that warrant the grant of an extension of time. First, although it is uncontroversial that the Tenant requested written reasons on 10 April 2020, such reasons were not supplied to her until 29 June 2020 (the Tenant was entitled to written reasons under s 62 (2) of the NCAT Act) and she then sent her Notice of Appeal to the Tribunal within 14 days of receiving the written reasons. Secondly, the Tenant was an unrepresented litigant and the reasons were lengthy and involved some legal and factual complexity making them difficult to absorb unless available in writing. Thirdly, the proceedings were not, finally, resolved against the Tenant until the second decision. Until then, as far as the parties were concerned, there remained the prospect that the Tenant's claim might be renewed. Fourthly, the appeal was not without any prospects of success. Fifthly, no specific prejudice to the Landlord was identified by the grant of an extension of time beyond the general prejudice to its interest in the timely resolution of the Tenant's claim.
In arriving at this conclusion we have adopted the approach to the question whether to grant an extension of time set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [21]-[22].
For these reasons, we consider that the necessary extension of time in which to lodge the appeal should be granted.

[10]

Error of law-Alleged Bias

We treat the matters referred to in paragraphs 1 and 2 of these contentions as raising an allegation bias. As appears below, we deal, separately, with Grounds 4, 9, 10, 11 and 13 referred to in paragraphs 3 and 4 of these contentions.
For the reasons we give below, on their own, or in any combination, in our opinion, the matters referred to in paragraphs 1 and 2 do not satisfy the requirements for a finding of bias (whether actual or apprehended bias).
In Re: JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 Gibbs CJ (at [4]) and Mason J (as he then was) outlined the importance that there be no private communication between a judge and any representative of a party in the absence of any of the other parties. Justice Mason said that the problem was governed by the principles concerning apprehended bias.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6], four members of the High Court affirmed that the test for disqualification for apprehended bias is that a fair-minded lay observer might reasonably apprehend that the judge (or other decision-maker) might not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide. That test has been accepted by the High Court in subsequent decisions (see, for example, Johnson v Johnson (2000) 201 CLR 488 at [11]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [104]).
The following matters are apparent from the context and terms of the exchange between the Tribunal and Ms Eveleigh whilst the Tenant was disconnected from the hearing. First, the communication occurred after the Tribunal had expressed its decision that the claim for compensation failed. Secondly, it occurred after the Tribunal had also expressed its decision, in favour of the Tenant, that there should be a work order made for further investigation, and it was against that background that there occurred a brief exchange in which the Tribunal sought Ms Eveleigh's assistance in framing the work order. It was not an exchange in which the Tribunal said anything which suggested it had not been impartial in arriving at the decision it had already reached or suggested it would not be impartial in framing the work order. Thirdly, despite the Tribunal's invitation, it was not an exchange in which Ms Eveleigh made any submission about the framing of the order which, as a consequence, needed to be disclosed to the Tenant. Fourthly, the Tribunal put the question again about the wording of a work order (see last sentence in para [24] above) to both parties after the Tenant had rejoined the hearing following the period of being disconnected.
To say the least, it was unwise of the Tribunal to conduct the communication which it did in the absence of the Tenant, and it was unwise of the Tribunal not to disclose the communication to the Tenant, but, given the matters we have just referred to, we do not accept that the test for apprehended bias was satisfied by what occurred.
Nor do the allegations of favouritism, either themselves, or in combination with the exchange that occurred in the absence of the Tenant, add any weight to the bias allegation.
In this regard, the Tenant relied upon two exchanges with Ms Eveleigh at the hearing. The first in time concerned a video that accompanied the audio recording played by Ms Eveleigh. The transcript reveals that when asked about the video Ms Eveleigh explained that the video had not been sent to the Tribunal because it had been received after the date for service of the Landlord's evidence. The following exchange then occurred: T I take it that if you would have played the video, it would be,ah, there is nothing, nothing's heard having regard to what he's written. E No, other than the voice that is talking this is the water going through, all he could hear was the water flowing through the pipe like that is actually inside, that is pretty much it. It doesn't go for very long, to be honest as well.
The Tribunal then asked a question which led to the audio being played and it followed the playing of the audio with a question about how the recording was made.
The Tribunal's reference to "what he's written" in the above exchange was, plainly, a reference to the statement in the letter from Mr Thanos, dated 27 March 2020, that: "As per the attached video of the ceiling space no audible sound could be heard."
The second exchange occurred shortly after the first exchange relied upon and concerned the quantum of the Tenant's claim for compensation. The transcript reveals the following: T Ok. Now, I asked Ms Dugtong about how she calculates the claim. Is there anything that you wanna say in relation to, assuming I was to find that there was a breach of a quiet enjoyment covenant or breach of covenant to repair,ah, is there anything that you wanna say in relation to how the value of the compensation might be calculated? E In all honesty, I wouldn't even know how to calculate only because we honestly don't believe there is a breach. And I'm pretty upfront usually if I believe there is like we have done something, we try to negotiate. But in conciliation just to keep the peace we did say to her, look we're happy to give her, you know, one week but it wasn't accepted. T Uh-hmm E But in all fairness now we had to put everything together, and we don't even believe there is an issue you know. I think it's excessive what she is asking. I don't believe that's a fair amount. T Ok. E If anything. T And, and basically because, if I understand you correctly, it's actually because you couldn't find anything, you can't assess it. E No absolutely not. T 55% based on floor space is too much. E Ah absolutely. And like I said, it's not room by room, it's actually it's one space and a bathroom that's what it consists of.
In the first exchange, the Tribunal was, in essence, exploring with the Landlord's representative whether the video did reveal what Mr Thanos had said in his letter, namely that there was no audible sound, which the Tribunal then proceeded to check by inviting the audio recording to be played. In the second exchange, the Tribunal sought to establish from Ms Eveleigh what the Landlord's position was about quantum of compensation. It was a sensible and desirable enquiry to make. In its responses to Ms Eveleigh's statements about quantum, the Tribunal was attempting to summarise the essence of what Ms Eveleigh had already said, namely that they did not know how to make an assessment of compensation in circumstances where they did not think there was a breach and that, in any event, they thought the amount of the claim was excessive.
Furthermore, these are the only exchanges of alleged favouritism relied upon by the Tenant in respect of a hearing that went for about one and a half hours in which the sound recording reveals a process in which the Tribunal made a number of enquiries of each party about their respective cases.
For these reasons, these two exchanges, on their own, or in combination, are not capable of satisfying the requirements for a finding of apprehended bias.
In view of what we have said about apprehended bias, there is no basis for a conclusion of actual bias, which, as is well established, is a grave finding requiring proof by cogent evidence.
We do not agree with the Tenant's contentions of bias.

[11]

Error of law-alleged wrongful exclusion of evidence/evidence overlooked/inadequate reasons

Ground 13 referred to in paragraph 3 of the contentions set out in paragraph 43 above concerns the appeal from the renewal decision. We address this when we come to deal with the grounds of appeal from that decision.
Grounds 4, 9 and 11 concern the main decision. Ground 4 is that the Tribunal wrongfully excluded the Tenant's evidence against the credibility of Mr Thanos. Ground 9 is that the Tribunal wrongfully excluded the evidence contained in the invoice from Inline Plumbing & Electrical. Ground 11 is that the Tribunal wrongfully excluded the Tenant's oral evidence at the hearing about the Landlord's likely admission about the noise issue.
In her written submissions in support of these grounds the Tenant added the submission that these matters that were referred to by the Tenant whenever were never mentioned in the written reasons.
The short answer to the exclusion of evidence points in relation to the main decision is that there was no ruling by the Tribunal that any of the material presented by the Tenant should be excluded from its consideration.
Further as to Ground 9, the Tribunal received (at about 1:16:04) the Tenant's oral statement as to the findings and opinions set out in the invoice from Inline Plumbing & Electrical. It also received the statement in the letter from Mr Thanos, dated 27 March 2020, that Mr Thanos had received a "report" from Inline Plumbing & Electrical that: "The plumber… Found no issue at first. He could only find an issue when he turned the taps on in unit 109 above and described hearing a "water hammer noise".
The Tribunal did not have the invoice from Inline Plumbing & Electrical itself. It had not been included in the Tenant's bundle of documents (Exhibit T1). The Tribunal was told by the Tenant that the invoice had been separately sent to the Tribunal by an email in the week before the hearing. When the absence of the invoice was identified by the Tribunal, the deficiency was addressed by permitting the Tenant to read out the findings and opinions set out in the invoice at the hearing. In this regard, it is pertinent to note that the Tribunal is not bound by the rules of evidence and may inform itself as it sees fit, subject to the requirements of natural justice: s 38 (2) of the NCAT Act.
Further as to Ground 11, the Tenant gave evidence at the hearing that the Landlord had admitted there was a noise problem when it told her that it had decided not to offer her another unit in the building because there was the same pipework and the same issue would arise again. This was reflected in Ms Eveleigh's written statement presented at the hearing (page 1 on the letterhead of Richardson & Wrench, verified by Ms Eveleigh, contained in what became Exhibit L1) that: "The landlord has not agreed to the tenant's request to re-locate her within the same building. We understand that the same pipework is present throughout the building and it is reasonable assume that the same issue could arise again."
It is clear that this material was part of the evidence received by the Tribunal at the hearing.
Further, in relation to each of Grounds 4,9 and 11, we do not accept that there was error by the Tribunal in disregarding, or overlooking the material referred to, or in failing to refer to it in the reasons for decision (a complaint of inadequate reasons), on the basis that we treat the Tenant as having raised such points on the appeal.
As to the material referred to in Ground 4, this is because the decision was not based upon the strength of what was said by Mr Thanos in his letter dated 27 March 2020. As is apparent from our outline of the reasons for decision set out above, the decision was based upon the insufficiency of proof presented by the Tenant.
As to the material referred to in Ground 9, in our opinion, the findings and opinions referred to in the invoice from Inline Plumbing & Electrical did not advance the proof of a breach by the Landlord of the relevant provisions and terms. The degree of noise is not expressed in these statements and no defect in the premises or the building is identified (the opinion is that further investigation is required). Further, the description of the noise as a "water hammer type sound" tends, if anything, to detract from the evidence that the sound was a vibrating one.
As to the material referred to in Ground 11, in our opinion, that material did not advance the proof of breach by the Landlord. In the first place, the statement on behalf of the Landlord is unspecific as to the nature, extent and impact of the noise. Secondly, as was submitted by Ms Eveleigh at the hearing and on appeal, the statement is consistent with a concern by the Landlord that the Tenant's allegations lacked merit but might continue even if she went to a different unit.
In arriving at our conclusion that the absence of reference to these matters in the reasons did not make the reasons inadequate, we have borne in mind, as a useful starting point, the requirements concerning written reasons in s 62 (3) of the NCAT Act, namely: 62 Tribunal to give notice of decision and provide written reasons on request …. (3) A written statement of reasons for the purposes of this section must set out the following - (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.
We have also borne in mind that in assessing the adequacy of reasons our function is to determine "not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard": per Bell P in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [66] and that while the Tribunal: "might not be required to 'submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...' or '... incorporate an extended intellectual dissertation upon the chain of reasoning ...', at least 'a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...' is necessary".
(A passage set out in Orr by Bell P at [73] from the judgement of Fitzgerald P in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187, concerning the Queensland Retail Shop Leases Tribunal, adapting the language of Samuels JA in the unreported decision of New South Wales Court of Appeal in Strbak v Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep) (Strbak), cited in Xuereb v Viola (1988) 18 NSWLR 453 at 469).
In our opinion, for the reasons we have just given, the matters referred to in each of these grounds was not material evidence in support of a finding of breach.

[12]

Error of law-alleged procedural unfairness

Both Grounds 6 and 10 set out contentions of failures of procedural fairness in respect of the main decision.
Ground 6 is that the Tribunal failed to provide the Tenant with an opportunity to adduce evidence and orally argue against the conclusion that the Tribunal reached that the noise was not particularly loud or particularly offensive: at [29] of the reasons for decision. The Tenant submits that the Tribunal never indicated, after hearing the noise recording, that he assessed the noise in the way set out in the reasons.
There is no doubt that in making a decision the Tribunal must comply with the requirements of procedural fairness. The duty derives from the common law, and is reinforced by s 38(2) and (5) of the NCAT Act: Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41.
The concern of procedural fairness is to "avoid practical injustice": per Gleeson CJ in Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1at [37]. In that case, Gleeson CJ concluded that there was no denial of procedural fairness where "no practical injustice had been shown": at [38]. The absence of practical injustice in Lam lay in the fact that "the applicant lost no opportunity to advance his case": at [38]; see per Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [57].
Section 38 (5) (c) of the NCAT Act, relevantly, provides: (5) The Tribunal is to take such measures as are reasonably practicable - …. (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
The Tenant was afforded a reasonable opportunity to present such evidence and submissions as she wished to rely upon to establish a breach by the Landlord. The central issue in the Tenant's application was whether she could establish that the noise she complained about was occurring in breach of the Landlord's obligations. Before the hearing directions were made for the provision of her evidence and at the hearing she was afforded an opportunity to present her evidence and her submissions. Before the Tribunal gave its decision, it was not incumbent upon the Tribunal, at the hearing, to raise any concern it had with the sufficiency of proof with the Tenant, or any reaction it had to the noise recording when it was played, which was adverse to the Tenant, and invite a response, including the possibility of the provision of better evidence.
Ground 10 is that the Tribunal failed to provide procedural fairness when it rejected the Tenant's suggestion that the order for further investigation should require such investigation to be carried out by a third-party plumbing expert and not by Mr Thanos. In support of this ground, the Tenant refers to her argument that Mr Thanos was unreliable.
We fail to see a lack of procedural fairness in this regard. What occurred was that the Tenant was given an opportunity to make submissions about the form of the investigation order. Those submissions were not fully accepted by the Tribunal, insofar as the order did not specify by whom the investigation was to be conducted, and exclude Mr Thanos.
We do not agree with the Tenant's contentions about procedural fairness.

[14]

Error of law-no evidence or no probative material for finding of fact

A contention that a finding of fact was made without any evidence or probative material to support the finding raises a question of law.
Ground 5 is that there was no probative evidence to support a finding by the Tribunal about the piping in the roof cavity above the Tenant's bathroom: at [27] of the reasons for decision.
As we have already mentioned, the Tribunal's decision was founded upon insufficient proof and not upon any weight that it attributed to material presented by the Landlord. Accordingly, any error concerning its finding about the piping in the roof cavity is not material.
In any event, we do not agree that it was not reasonably open to the Tribunal to make the finding it did about this piping.
The Tribunal's finding was somewhat tentative. It said that the "evidence suggested" that in the roof cavity there was to be seen, amongst other things, "noise insulation-wrapped waste-water pipes".
The evidence was not specified. However, it is uncontroversial that there was some material before the Tribunal about this. First, there was the unsigned letter from Mr Thanos dated 27 March 2020 which included the statement that all pipework had been acoustically insulated in accordance with the Australian Building Code. Next, there were 3 photographs of what appeared to be water pipes showing cover with what was, apparently, insulation wrapping. Then, there was a statement from Ms Eveleigh at the hearing that the photographs were taken from the ceiling cavity above the bathroom.
Despite the opportunity to do so (because the written material was served before the hearing), the Tenant did not present any evidence to contradict this material.
In these circumstances, and bearing in mind that the Tribunal is not bound by the rules of evidence, we think it was reasonably the open to the Tribunal to make the finding that it did.
Ground 8 is that the Tribunal's finding that the Tenant had not identified what was out of repair in relation to the alleged breach of the repair obligation was unsupported by any evidence. In this regard, the Tenant referred to the evidence in the Inline Plumbing & Electrical invoice, which she said indicated a plumbing system issue within the premises and to other possible causes of the plumbing system noise issue, based on her research on the Internet, which she referred to at the hearing [our emphasis].
However, it is plain from the statements in the invoice, and the Tenant's speculation as to the source of the problem, that none of this material undermines the Tribunal's finding.
We do not agree with the Tenant's contentions about the absence of evidence or probative material for the Tribunal's findings of fact.

[15]

Error of law-alleged application of the wrong tests

Ground 7 is that the Tribunal applied the wrong tests in determining the question whether there had been a breach of the quiet enjoyment obligation. In this regard, the Tenant made submissions that: 1. Instead of the standard of "reasonable peace, comfort or privacy" set out in s 50 (2) of the RTA, the Tribunal applied a test of whether the noise was "excessive". 2. The Tribunal did not define what it meant by "excessiveness" and did not identify the authorities that supported that standard. 3. The Tribunal did not define what was meant by "mere inconvenience". 4. A more relevant legal test for breach was the definition of "Offensive noise" in the Protection of the Environment Operations Act 1997 (NSW). 5. The Tribunal misapplied the standard of proof statements of Justice Emmett in the Warner case because the Tribunal made no reference to the three factors referred to as affecting the question whether the fact had been proved to the reasonable satisfaction of the judge, namely the seriousness of an allegation, the inherent unlikelihood of an occurrence of a given description and the gravity of the consequences flowing from a particular finding.
We do not agree that the Tribunal applied the wrong legal tests.
As to breach of the obligation of quiet enjoyment, plainly, the Tribunal had in mind that the standard to be considered was whether there was an interference with the reasonable peace, comfort and privacy of the Tenant: see the first sentence to [33] of the reasons. In doing so, the Tribunal, correctly, emphasised that it was the reasonable peace, comfort and privacy that had to be considered.
From that starting point the Tribunal went on to draw from case authority, first, the proposition that "mere inconvenience" was not enough to establish a breach and, secondly, by way of contrast to a "mere inconvenience", the proposition that excessive noise may constitute a breach. These standards require evaluative assessments but do not require further definition.
We can identify no error of law in this reasoning. We note also that these propositions are supported by the commentary to s 50 at 2.50.1 on page 132 of Residential Tenancies Law and Practice, New South Wales, Anforth, Christensen & Adkins,7th ed.
Whilst, the definition of "offensive noise", referred to by the Tenant, might, conceivably, be of some limited assistance in some cases, plainly, it would not be correct to apply that definition as the test whether there had been a breach of the obligation of quiet enjoyment.
Finally, as to the standard of proof considerations referred to in Warner, it seems to us the critical passage which the Tribunal had in mind was the reference to the rejection of proof by inexact proofs, indefinite testimony or indirect inferences. We see no need for the Tribunal to have applied the three factors affecting proof which were also set out in the passage referred to.

[16]

Alleged error of fact-the main decision

Ground 1 is that the Tribunal's finding that the noise complained about did not amount to a breach of quiet enjoyment "relied on unsupported facts".
The first answer to this contention is that it misconceives the basis of the decision, which was that the claim failed because of insufficient proof by the Tenant and not because of any weight that the Tribunal gave to any material presented by the Landlord.
To the extent that it was part of this submission that the Tribunal relied upon material of no probative value, namely the audio played by Ms Eveleigh and Mr Thanos statement in his letter about the pipework, the second answer is that we have already dealt with these aspects above: see in relation to Grounds 2 and 3.
Thirdly, we have considered this ground of appeal on the basis that it is a contention that the Tribunal's conclusion was against the weight of the evidence.
In Section B ii of the amended Notice of Appeal, leave to appeal is sought on the basis that the decision was against the weight of the evidence. In that section, the Tenant sets out a summary of the evidence she gave at the hearing, namely her noise diary, the two sound recordings she played and her oral evidence of the findings by Inline Plumbing & Electrical. After summarising the evidence presented by the Landlord (as the Notice of Appeal form requested), the Tenant set out the following in response to the question about what evidence the Tribunal should have given more weight to: My noise diary because it showed the description and the dates and time of the occurrence of the noise issue. The diary showed about 120 occurrences of the noise over several days, during the day and especially in the middle of the night when the tenant is expected to sleep. The diary was not discredited by Ms Eveleigh and was accepted by the Tribunal… My noise recordings because they showed the annoying nature of the noise that it starts and stops, sometimes continuous for over four hours and vibrating and fluctuating in volume. These characteristics satisfy the "offensive noise" test from EPA discussed [above], which can be used as test for breach of "reasonable comfort" within the meaning of s 50 (2) and s 50 (3) of the Act. The noise recordings were not discredited by Ms Eveleigh.
In her written submissions concerning Ground 1, the Tenant also referred to information she presented orally at the hearing that the building's cleaner heard the noise during a fire alarm inspection on 27 March 2020 and measured it on his mobile at about 65 decibels.
In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel said, relevantly, at [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 … 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].
Applying this standard, we do not accept that the conclusion that there was no breach of the obligation of quiet enjoyment was not one that a reasonable Tribunal member could reach. On the contrary, we think the conclusion was reasonably open to the Tribunal. In this regard, we note the following: 1. The Tenant did not challenge the reasonableness of the Tribunal's description of the noise heard from the two recordings played at the hearing as a "mild vibrating noise which seemed to come and go during the course of the recording" [our emphasis] at [15]. 2. We do not disagree with that assessment from our own listening of the recordings. 3. The Tenant did not challenge the Tribunal's findings as to how the recordings were made (at [15] and [22]), as summarised above. The fact that the recordings were made in this way and were not recordings made in the bedroom/living area of the unit, which would have, potentially, provided the best objective evidence, detracted, significantly, from the strength of the Tenant's case. 4. The noise diary listed the occasions when the Tenant experienced the noise but otherwise contained a general, subjective, description of the nature of the noise that was not supported by the recordings as to its loudness. 5. Whilst aware of the potential to support her case with expert evidence, the Tenant did not present any such evidence.
For all these reasons, we do not agree with Ground 1 of the appeal.
Furthermore, to the extent that leave to appeal was required in respect of Ground 1, in our opinion, there was no plain error of fact such as to warrant the grant of leave to appeal in accordance with the approach to the grant of leave referred to in Collins v Urban, as set out in paragraph 34 above.

[17]

Alleged error-the second decision

The Tenant raised two grounds of appeal in respect of that part of the second decision (on 22 June 2020) which was concerned with compliance with the Tribunal's order for investigation work to be carried out.
Ground 12 advances two grounds of appeal both of which raise questions of law. First, it is said that there was no evidence for the Tribunal's finding that that the landlord and its investigative plumbers used all reasonable efforts to investigate the problem and, hence, complied with Order 1 (a) of the orders made on 9 April 2020. Second, that the Tribunal did not provide adequate reasons for this finding.
Ground 13 is that the Tribunal wrongfully excluded aspects of the Tenant's evidence concerning the alleged failure to use all reasonable efforts to investigate the problem. In support of this ground, the Tenant pointed to various matters that she had told the Tribunal about at the second hearing (and in the renewal application itself), namely that the landlord's tradespeople did exactly the same thing is during the two previous failed attempts, but without any evidence that they had really done so and hearing no noise, concluded there is no plumbing system noise issue , that there was no report on the valves, water pressure or possible trapped air or sediment build up in the water pipes, or hot water system, in Unit 109.
As we have already mentioned, following the decision on 9 April 2020, a report, dated 21 April 2020, signed by Mr Thanos, Mr Devane (a plumber) and Mr Boyce (the Building Manager), addressed to "The Presiding Member" of the Tribunal, was provided in respect of that work order made on 9 April 2020. It was this report that was criticised by the Tenant leading to her renewal proceedings on the basis that Order 1 (a) had not been complied with.
The report focused on the findings and opinions in the Inline Plumbing & Electrical invoice. It gave an account of an inspection of the Tenant's unit by the signatories to the report on 15 April 2020. It referred to an unsuccessful attempt to hear the noise in the company of the Tenant. It described an investigation of the noise problem by accessing Unit 109 and turning the water on at various places in that unit-an apparent attempt to replicate the work described in the invoice. It addressed the possible sources of the "Water hammer" noise referred to in the invoice, namely a circulation pump/reticulated lines and unclipped pipework and explained why these were not sources of the noise referred to. It recounted a conversation with the plumber from Inline Plumbing & Electrical (Mark) in which, amongst other things, Mark was claimed to have said to Mr Thanos that the noise he heard was "very quiet". It recounted that Mr Boyce (one of the signatories to the report) had said that since May 2014 there had been four previous tenants of the Tenant's unit and that no tenant, past or present, had made a complaint to him personally or through the managing agent regarding any noisy plumbing or any other unidentified noise.
The Tenant presented no evidence at the hearing of her renewal application: 1. That the inspection work described in the report dated 21 April 2020 had not, in fact, been carried out. 2. To contradict the evidence in the report about the conversation with Mark. 3. To contradict what Mr Boyce said about noise complaints from other tenants.
In the second decision the Tribunal: 1. Referred to the Tenant's application which had attached the orders made on 9 April 2020, the report dated 21 April 2020 and the Inline Plumbing & Electrical invoice. (According to the Tenant's Notice of Appeal lodged on 14 July 2020, these were the only documents presented to the Tribunal at the second hearing). 2. Referred to the Tenant's submission that the Inline Plumbing & Electrical invoice established that the work order had not been complied with. 3. Stated that it had carefully reviewed the documents that the Tenant had provided and it had heard what the Tenant had said in respect of her application. 4. Concluded that the Inline Plumbing & Electrical invoice was not relevant to establishing that the work order had not been complied with because it pre-dated that order. 5. Concluded that on reading the report dated 21 April 2020 it was satisfied that the work order had been carried out-that is, the landlord and investigative plumbers had in a proper and workmanlike manner used all reasonable efforts to investigate, diagnose and (if found) repair the source of the noises. 6. Concluded that the pre-condition for a right to renew the proceedings in accordance with cl 8 of Schedule 4 of the NCAT Act had not been met, namely that a work order had not been complied within the period specified by the Tribunal. 7. Concluded that, accordingly, the renewal application should be dismissed.
As to the first aspect of Ground 12, it is clear that there was evidence in support of a conclusion that the work order had been complied with, namely the report dated 21 April 2020.
More pertinently, the Tenant did not point to any evidence, in contrast to her assertions, that the order had not been complied with. The onus was on the Tenant to establish non-compliance. As already mentioned, in her submissions concerning Ground 13 the Tenant refers to some matters she raised about valves and other matters, but these points rise no further than assertions by the Tenant as to what reasonable efforts, or proper and workmanlike conduct, required. There was, for example, no support for such specific steps in the Inline Plumbing & Electrical invoice.
As to the adequacy of reasons, whilst brief, we do not accept they were inadequate in the particular circumstances, where it appears that the Tenant's case was founded only upon the Inline Plumbing & Electrical invoice, the report dated 21 April 2020 itself, her assertions (only) as to what should have been done, and where she presented no evidence of the nature we have just referred to (in paragraph 125). In this context, it seems to us that a basic explanation for the fundamental reasons for dismissing the application is sufficiently apparent.
In any event, even if we had decided that the reasons were inadequate, we would not have upheld the appeal because, as we have already said, it is clear, that the Tenant had not established that the work order had not been complied with.
For these reasons, we do not agree with what is set out in Ground 12.
As to Ground 13, the short answer is that the Tribunal made no ruling excluding anything the Tenant wished to say or present. Furthermore, whilst the Tribunal did not refer in any specific way to the Tenant's assertions, the Tenant has not shown that the Tribunal overlooked or disregarded any material evidence.
Accordingly, we do not agree with Ground 13.

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (18)

Cited By (2)