El-Mohamad v Lin

NCAT Appeal Panel|2024-06-19

Introduction

This is an appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal.
The application to the Tribunal was brought by Ms El-Mohamad, who is the appellant in this appeal, against her former landlords, who are the respondents. For convenience, we will refer to the appellant as "the tenant" and to the respondents as "the landlords".
The dispute concerns a residential tenancy agreement between the parties which came to an end in December 2023. In the Tribunal proceedings the tenant sought rent relief and compensation under the Residential Tenancies Act 2010 (NSW) (the RT Act) in respect of a range of issues she experienced at the rented premises.
The Tribunal found partially in favour of the tenant and made an order that the landlords pay the tenant $6,075.11. The tenant now appeals against that decision.
For the reasons set out below, we have decided to allow the appeal in part, and to substitute the order made by the Tribunal with an order that the landlords pay the tenant $8,982.25.
The parties confirmed to us at the hearing of the appeal that the landlords have already paid the tenant $6,075.11 in accordance with the order made by the Tribunal at first instance. Thus, the practical result is that the landlords will now be required to pay an additional $2,907.14 to the tenant.

Tribunal proceedings and decision

The application to the Tribunal was lodged on 13 October 2023 (at which time the tenancy was still on foot).
The tenant's application form lodged with the Tribunal stated, under the heading "Orders sought", Section 187(1)(e): an order that a party to an RTA perform such work or take such other steps as the order specifies to remedy a breach of the agreement, Section 187(1)(f), an order that requires payment of part of all of the rent payable under an RTA to the Tribunal until the whole or part of the RTA has been performed or any application for compensation has been determined, Section 187(1)(h), an order directing a landlord or agent or tenant to comply with a requirement of this Act or the regulations, Section 44(1)(b), an order that the rent payable is excessive due to the reduction or withdrawal of any goods, services or facilities provided with the Premises, Section 45, an order reducing the rent payable where the Premises are unusable or uninhabitable or destroyed, Section 47, an order for repayment of rent made by the tenant contrary to the Act or the RTA, Section 65(1)(a), an order that the landlord carry out repairs, and Section 65(5), an order that all or part of the rent payable be paid into the Tribunal until repairs are carried out.
At a conciliation hearing on 6 November 2023 the Tribunal made procedural directions and clarified the relief which the tenant was seeking. The notice of order issued by the Tribunal on that date stated: The tenant has amended the claim to claim the following:- (a) Compensation for accommodation from 8.8.23 to 24.8.23 in the sum of $4003.25 (b) Damage to property $1995.96 (c) Mould treatment $1500 (d) Reimbursement of mould report $650 (e) Wasted food $250 (f) Meals eaten out when property uninhabitable $960 (g) Water damaged items $50 (h) Loss of peace and quiet enjoyment $1500 (i) Rent reduction and rent abatement
The matter came before the Tribunal for a final hearing on 4 April 2024 and the Tribunal's decision was issued on 8 April 2024. It appears that at or before the final hearing the tenant further amended her claim as the Tribunal decision refers to various additional claims which were not recorded either in the application form or in the Tribunal's notice of order issued on 6 November 2023. The Tribunal decision does not explain whether or how the claim was amended.
In any event, the Tribunal found the tenant was entitled to the following monetary amounts: 1. Alternative accommodation costs $3,503.25 2. Damaged property $799.00 3. Damages under sink $46.00 4. Removalists $814.00 5. Loss of amenity (dishwasher, garage, oven) $770.00 6. Rent abatement for 8-23 August 2023 $1,942.86 7. Rent reduction for bedroom 1 due to mould $1,600.00
The Tribunal recorded "from this sub-total of $9,475.11 must be subtracted the sum of $3,400.00 which, as agreed, the Landlord allowed the Tenant as a rent-free sum at or around the time of the August flooding". The total amount awarded to the tenant was $6,075.11.
The Tribunal decision recorded that it was not allowing the tenant's claims for compensation in respect of sanitising costs, wasted foods, meals eaten out, breach of the covenant of quiet enjoyment and pet boarding costs. The Tribunal also refused the tenant's claim for excessive rent in respect of bedroom 2.
The Tribunal decision also recorded that the tenant had withdrawn her claims for reimbursement of the cost of a mould report, compensation in respect of ill-health caused by exposure to mould, and compensation for excessive electricity costs.

Scope and nature of internal appeals

An appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are constrained by cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (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).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In respect of a self-represented non-legally trained appellant, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [12]; Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13]).

Notice of Appeal

The Notice of Appeal was lodged on 22 April 2024, which is within the 14-day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules).

Grounds of Appeal

The tenant is not legally represented and the grounds of appeal are not clear from the Notice of Appeal. However, consistent with the principles expressed in Cominos and Prendergast, we have considered the tenant's materials as a whole, including her oral submissions made at the appeal hearing, with a view to identifying the grounds of appeal. We understand the grounds of appeal to be as follows: 1. That the Tribunal failed to properly exercise its discretion when it dismissed the tenant's claim that the rent was excessive due to the problems with bedroom 2. 2. That the Tribunal applied the wrong test when it dismissed the tenant's claim for compensation in respect of the breach of the covenant of quiet enjoyment. 3. That the Tribunal identified the wrong issue or asked the wrong question when it dismissed the tenant's claim for compensation in respect of pet boarding costs. 4. That the Tribunal erred by constructively failing to exercise jurisdiction in relation to: 1. the tenant's claim for compensation in respect of rent paid by her husband and son for alternative premises; 2. the decision not to make an excessive rent order for the periods 19 May 2024 and 3 to 7 August 2024; and 3. the tenant's claim for compensation in respect of the costs incurred for commissioning an independent mould report.
The above grounds of appeal all involve errors on a question of law for which leave to appeal is not required. However, we understand the tenant also seeks leave to appeal on the ground that she may have suffered a substantial miscarriage of justice because the following aspects of the decision were against the weight of evidence: 1. the decision not to award a rent reduction in respect of the mould in bedroom 1 for the entire duration of the tenancy; and 2. the decision not to award compensation for meals purchased outside the home whilst the premises were uninhabitable.

Ground 1 - did the Tribunal err in the exercise of its discretion?

This ground of appeal relates to the Tribunal's decision to dismiss the tenant's claim for an excessive rent order due to the problems with bedroom 2.
The Tribunal decision records that the tenant sought a "25% reduction in Bedroom 2 until the floorboards which had been removed during plumbing issues when they had been flooded are replaced". The decision refers to the tenant's evidence that the floorboards in the bedroom were "warped and had to be removed, leaving a bare concrete floor which, together with the mould issues in that bedroom, rendered the bedroom unusable".
The decision goes on to conclude in relation to Bedroom 2: The Tribunal is not willing to allow a reduction in rent of Bedroom 2 because only two persons were inhabiting the Premises at this time.
It is not entirely clear from the Tribunal's decision or from the other materials before us whether this part of the claim was made or considered under s 44(1)(b) of the RT Act, or under s 45 of the RT Act.
Section 44 empowers the Tribunal to make an order that rent, or a rent increase, is excessive. It provides as follows: 44 Tenant's remedies for excessive rent (1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders - (a) an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount, (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount. (2) Time limit for excessive rent increase applications An application for an order that a rent increase is excessive must be made within the period prescribed by the regulations after notice of the increase is given. (3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement. (4) Determination of excessive rent For the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent. (5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive - (a) the general market level of rents for comparable premises in the locality or a similar locality, (b) the landlord's outgoings under the residential tenancy agreement or proposed agreement, (c) any fittings, appliances or other goods, services or facilities provided with the residential premises, (d) the state of repair of the residential premises, (e) the accommodation and amenities provided in the residential premises, (f) any work done to the residential premises by or on behalf of the tenant, (g) when the last increase occurred, (h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent). (6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent - (a) has effect for the period (of not more than 12 months) specified by the Tribunal, and (b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable.
Section 45 empowers the Tribunal to determine the amount of rent payable when rent has abated in certain circumstances. Section 45 must be read together with s 43(2). Section 43(2) states: (2) Premises unusable The rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are - (a) otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or (b) cease to be lawfully usable as a residence, or (c) appropriated or acquired by any authority by compulsory process.
Section 45 states: 45 Remedies for reduction of rent on frustration of residential tenancy agreement (1) The Tribunal may, on application by the landlord or tenant, make an order determining the amount of rent payable if the rent is abated under section 43(2). (2) The Tribunal may order that - (a) from a specified day, the rent for the residential premises must not exceed a specified amount, and (b) the landlord must repay to the tenant any rent paid by the tenant since the specified day that is in excess of the specified amount.
Both s 44(1)(b) and s 45 confer a discretion on the Tribunal to make an order, in certain circumstances, that the rent payable by a tenant should not exceed a specified amount from a specified day. Under s 44(1)(b) the Tribunal's discretion is enlivened if there is a reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises. Under s 45 the discretion is enlivened if the rent is abated under s 43(2). Rent abates under s 43(2) if, (relevantly in this case), the premises are destroyed or become wholly or partly uninhabitable "otherwise than as a result of a breach of an agreement": s 43(2)(a).
As we discuss later in these reasons, the Tribunal was satisfied that the problems with the premises occasioned by the August flooding event involved a breach by the landlords of the obligation to provide premises which were fit for habitation. Given that an abatement of rent under s 43(2)(a) can only occur if the premises became wholly or partly uninhabitable "otherwise than as a result of a breach of an agreement", s 43(2)(a) could not have applied because the Tribunal was satisfied that the problems with bedroom 2 resulted from a breach by the landlords. Therefore, the Tribunal's discretion under s 45 did not arise. For this reason, we understand that the Tribunal treated the tenant's claim for excessive rent in respect of Bedroom 2 as being made under s 44(1)(b).
We understand from reviewing the Tribunal's reasons as a whole that the Tribunal accepted the tenant's evidence that, even after she moved back into the premises, Bedroom 2 remained unusable because the flooring had been removed, and that this involved a reduction or withdrawal by the landlords of facilities provided with the premises (so that the Tribunal's discretion to make an order under s 44(1)(b) was enlivened).
However, the Tribunal decided, in the exercise of its discretion, not to award the tenant relief under s 44(1)(b).
In order for the tenant to establish that the Tribunal erred in the exercise of its discretion, the Appeal Panel needs to be satisfied that the Tribunal committed one of the errors listed in House v The King [1936] HCA 40; (1936) 55 CLR 499 (House v King) at 504-505. That is, we need to be satisfied by reference to the Tribunal's reasons and the evidence before the Tribunal that the Tribunal: 1. made an error of legal principle; 2. made a material error of fact; 3. took into account some irrelevant matter; 4. failed to take into account, or gave insufficient weight to, some relevant matter; or 5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
The last error listed above was explained in Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61 by Bathurst CJ and Leeming JA at [9]-[10] as resting on the premise that the reasons provided by the Tribunal did not explain the result achieved.
Here, the only reason given by the Tribunal for declining to make an order under s 44(1)(b) was that there were only two persons residing at the premises.
Section 44(5) sets out a list of factors to which the Tribunal may have regard when exercising its discretion to determine whether rent, or a rent increase, is excessive. Whilst the number of persons residing at the premises is not one of the listed factors, s 44(5) allows the Tribunal to take account of "any other matter [the Tribunal] considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent)". There may be situations where the number of persons residing at the premises is a relevant factor to consider when exercising the discretion conferred by s 44(1)(b). However, here, the Tribunal has failed to explain why it considered this factor to be relevant to the exercise of its discretion, or how it reached the decision to refuse the relief sought.
In our view this involves an error of the type referred to in House v King. Under the terms of the agreement the tenant was paying for, and was contractually entitled to, the full use and enjoyment of the entire premises. This included Bedroom 2. There was nothing in the agreement which purported to constrain the tenant's use and enjoyment of any part of the premises depending on the number of persons residing there. The Tribunal was satisfied that, for the relevant period, Bedroom 2 was unable to be used. Thus, the tenant was not receiving the benefit of something to which she was contractually entitled.
In such circumstances, the decision to refuse relief solely on the ground that two persons were residing at the premises, without further explanation, was neither logical nor reasonable and we cannot be satisfied that the decision was just.
Accordingly, we have inferred that there has been a failure by the Tribunal properly to exercise the discretion conferred on it.
We would add that had the tenant argued that the reasons were inadequate we would likely have upheld this part of the appeal on that ground. The Tribunal's reasons in relation to this issue do not satisfy the "minimum characteristics that a Tribunal's reasons must possess" of informing the parties of the relevant findings, the Tribunal's understanding of the applicable law and the reasoning process which led to its decision: New South Wales Housing Corporation v Orr [2019] NSWCA 231 at [71].
This ground of appeal is therefore upheld.

Ground 2 - did the Tribunal apply the incorrect test?

This ground involves whether the Tribunal applied the incorrect test for determining whether the landlords had breached the covenant of quiet enjoyment.
Section 50 of the RT Act states: 50 Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises.
This is a term of every residential tenancy agreement: RT Act s 50(4). Clause 15 of the agreement is in similar terms.
The applicable test was set out in Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264, where Austin J said at [111]: A breach of the covenant for quiet enjoyment occurs whenever the landlord causes substantial interference with the enjoyment of the demised premises through an act or omission that is either deliberate or negligent in the sense that its consequences were reasonably foreseeable: Martin's Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15; Kohua Pty Ltd v Tai Ping Trading Pty Ltd (1985) 3 BPR [97,240]; P Butt , Land Law (3rd ed 1996), p305-308.
The relevant part of the Tribunal's decision is at [42] where the Tribunal stated: [T]he Tenant also sought compensation for breach of her quiet enjoyment of the residential Premises brought about by the flooding circumstances. The Tribunal is hesitant to do this having regard to the above losses which it has awarded the Tenant. In particular, the type of conduct usually attributed to a landlord in support of a claim for breach of the right to quiet enjoyment is usually either deliberate or wrongful. That did not occur in this instance in which most of the Landlord's conduct appear to be inadvertent.
The test is not whether conduct was "deliberate or wrongful" but whether it was "deliberate or negligent". The Tribunal found there was no breach because the landlords' conduct was "inadvertent". However, conduct which is inadvertent may nonetheless involve a breach of the covenant of quiet enjoyment if it is negligent in the sense that its consequences were reasonably foreseeable.
The Tribunal has thus fallen into error by applying the incorrect test. This ground of appeal is therefore upheld.

Ground 3 - did the Tribunal identify the wrong issue or ask the wrong question?

This ground involves the Tribunal's decision to refuse the tenant's claim for compensation in respect of the costs paid for boarding her pet dog during the period that the premises were uninhabitable.
Although not clearly articulated in the decision, we have inferred from a reading of the decision as a whole that the Tribunal was satisfied that the problems brought about by the august flooding event involved a breach by the landlords of their obligations under the agreement because they had failed to provide premises with adequate plumbing and drainage. Clause 19.1 of the agreement states "[t]he landlord agrees to make sure that the residential premises are reasonably clean and fit to live in". This obligation is to be read together with s 52 of the RT Act which relevantly states: (1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. (1A) Without limiting the circumstances in which residential premises are not fit for habitation, residential premises are not fit for habitation unless the residential premises - … (e) have adequate plumbing and drainage.
Section 52 of the RT Act is a term of every residential tenancy agreement: s 52(4).
The Tribunal was satisfied that the tenant was entitled to be compensated for the reasonably foreseeable losses suffered by the tenant as a result of the landlords' breach, including the accommodation costs incurred during the period that the premises were uninhabitable. However, the Tribunal declined to award the costs incurred by the tenant to accommodate her dog in a pet boarding facility during that period. The reason given by the Tribunal was: The Tenant submitted that the dog was included in the RTA but on a closer inspection it was not listed as a tenant, rather simply that the tenant could have a dog at the premises.
The Tribunal has clearly identified the wrong issue or asked the wrong question. An animal cannot be a tenant as it cannot be a party to a contract. The question the Tribunal should have, but failed, to ask, was whether the cost incurred by the tenant in respect of alternative accommodation for her pet was a reasonably foreseeable consequence of the landlords' breach.
This ground of appeal is therefore upheld.

Ground 4 - Did the Tribunal fail to exercise jurisdiction?

This ground of appeal relates to the tenant's claims for: 1. the cost of alternative accommodation for the tenant's husband and son; 2. the cost of commissioning an independent mould report; and 3. an order that the rent was excessive for the periods 19 May 2023 and 3 to 7 August 2023.
The tenant says that the Tribunal failed to consider these claims.
If a Tribunal Member does not deal with an issue that was before him or her for determination that will be an error on a question of law.
In Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [31]-[34] the Appeal Panel cited the following authorities in support of this proposition: 31 In Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority 24 NSWLR 156 at 186 Handley JA stated: 'The duty of a judicial officer to hear and determine a claim made in judicial proceedings conducted before that officer is also an incident of the judicial process. Since breaches of the duty to give proper reasons and to observe procedural fairness involved errors of law, there seems every reason to hold that a breach of the duty to hear and determine a claim made in judicial proceedings also gives rise to such an error. 32 In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Gaudron J in context of the Migration Act (Cth) discussed a constructive failure to exercise jurisdiction stating: 'It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act.' 33 In Fox v Australian Industrial Relations Commission [2007] FCAFC 150 Marshall and Tracey JJ stated at paragraph 38: 'In the present case the complaint is not that the full bench ignored the evidence but rather that it did not deal with an important ground raised by Mr Fox. This case is more akin to one where there is a failure by a Tribunal to deal with necessary issues. Such a failure constitutes a jurisdictional error.' 34 In Khan v Kang (supra) the Appeal Panel found that the Tribunal had made an error of law by failing to consider a claim made by Mr Khan. The Appeal Panel observed at [28] as follows: 'It is possible to characterise what occurred either as a failure to give reasons for the Tribunal's decision or a failure to exercise the jurisdiction conferred on the Tribunal and invoked by the appellant in relation to this claim in respect of excess timber - see Waterways Authority v Fitzgibbon [2005] HCA 57 at [129] - [130] and Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [42]. Whichever way it should be characterised, the Tribunal's failure to consider such a claim at all in its Reasons for Decision amounted to an error of law by the Tribunal below.'
With regard to the claim for the cost of the expert mould report, the tenant says that during the hearing she informed the Tribunal member that she was reducing this part of her claim from $650 to $150, and that a copy of the relevant report was provided at the hearing "however, it was not addressed".
In the Tribunal's reasons for decision the Tribunal said at [31]: During the hearing, the Tenant conceded that she had withdrawn, or did not seek compensation in respect of, items 4 and 5 in her list. Item 4 related to the cost of an independent report regarding mould at the Premises.
At [52] of the decision the Tribunal set out a table specifying the amounts claimed by the tenants for various items and the amounts awarded. In relation to item 4 (which the Tribunal identified as the tenant's claim for the mould expert costs) the decision said: "Withdrawn Nil".
Thus the Tribunal clearly dealt with this part of the claim because it recorded that the claim had been withdrawn by the tenant and that therefore no compensation was to be awarded. The tenant says that this did not accurately reflect what happened at the hearing and that she did not agree to withdraw this part of the claim. However, the tenant has not provided us with a copy of the sound recording of the hearing or a transcript of what was said at the hearing. In the absence of any evidence as to what occurred at the hearing, we cannot be satisfied that the Tribunal made any error when it recorded that this part of the claim had been withdrawn.
We turn now to the claim for compensation for the alternative accommodation costs of the tenant's husband and son. The tenant says this part of the claim was also not considered by the Tribunal.
There are several problems with this aspect of the appeal. Firstly, there is nothing in the materials before us to establish that this matter formed part of the claim which was before the Tribunal for determination.
While the Tribunal is not bound by the formality of pleadings, it is required to determine the claims actually made, not some different claim that could have been made. In this regard there is nothing in the documents available to us that would satisfy us that this claim was made by the tenant. The application to the Tribunal made on 13 October 2023 did not specify that the tenant was seeking compensation in respect of the alternative accommodation costs of the tenant's husband and son. Similarly, when the scope of the claim was clarified by the Tribunal on 6 November 2023, no reference was made to this claim. In addition, there is nothing in the materials provided to the Appeal Panel by the tenant, nor in the Tribunal's reasons for decision, which specifically refers to this claim. Furthermore, as we do not have a copy of the sound recording or transcript of what was said at the hearing, we do not know whether the tenant amended her application at the hearing to include this claim.
It is not enough that the materials which were before the Tribunal may have contained evidence which supported such a claim. The Tribunal is not required to sift through large volumes of material to identify possible claims or causes of action: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at [22]; University of New South Wales v McGuirk (No 1) (GD) [2005] NSWADTAP 65 at [25] citing Gamester Pty Ltd v Lockhart (1993) 112 ALR 623 at [626]. It is for the claimant in the proceedings to identify the claim being made and the evidence relied upon to support it.
We would add that even if the tenant had satisfied us that a claim for the accommodation costs of her husband and son was squarely before the Tribunal and that the Tribunal had failed to consider it, we would not have allowed the appeal on this ground in any event. This is because the materials do not include any evidence that these costs were incurred by the tenant, and because the tenant's husband and son were not parties to the agreement. The landlords cannot be held responsible for costs incurred by third parties who were not tenants under the agreement and to whom they owed no obligations either under the agreement or under the RT Act.
The same considerations apply to the claim for an excessive rent order due to the plumbing issues which occurred on 19 May 2023. There is nothing in the materials before us which satisfies us that this matter formed part of the claim which was before the Tribunal.
However, the situation is different with regard to the claim for an excessive rent order for the period 3 to 7 August 2023. The materials before us, including the Tribunal's reasons for decision, make it clear that the tenant's claim for an excessive rent order included the period 3 to 7 August 2023. The Tribunal made a finding that the premises were uninhabitable during that period, but failed to consider the tenant's claim for rent relief for that period, and gave no reasons for doing so.
Accordingly, applying the principles set out in the authorities referred to above, the Tribunal fell into error.
For these reasons we are partially upholding this ground of appeal.

Leave to appeal

The tenant also seeks leave to appeal on the ground that she may have suffered a substantial miscarriage of justice because the following aspects of the decision were against the weight of evidence: 1. the decision not to make an excessive rent order for the entire period of the tenancy due to the mould in Bedroom 1; and 2. the decision not to award compensation for meals eaten out whilst the premises were uninhabitable.
With regard to the first item, the Tribunal was satisfied that due to the mould in Bedroom 1, the rent was excessive in the amount of $100 per week for a 16-week period after the major flooding incident in August 2023. The Tribunal said it was not satisfied that prior to that incident the tenant was aware of the degree or impact of the mould and therefore declined to make an order that the rent was excessive from an earlier date.
The tenant says the Tribunal should have placed more weight on the ingoing condition report prepared at the commencement of the tenancy which identified mould in Bedroom 1 and to the "numerous emails and texts to the agent". The tenant says this evidence established that the problems with Bedroom 1 dated from the beginning of the tenancy and that therefore the excessive rent order of $100 per week should have been applied for the entire period of the tenancy.
With regard to the claim for compensation for meal costs, the tenant claimed $1,136.18 for costs incurred on meals purchased in restaurants and take away outlets during the period she temporarily resided outside the premises. The Tribunal refused this part of the claim on the basis that the various accommodations in which the tenant stayed during this period for the most part had cooking facilities, and because it was not satisfied that the amount claimed exceeded the cost the tenant would have incurred if she had been self-catering during that period.
The tenant says the Tribunal should have placed more weight on the evidence that "most" of the temporary accommodation in which she resided whilst the premises were uninhabitable had no cooking facilities or fridge.
A decision under appeal can be said to be against the weight of evidence 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: Collins v Urban at [77].
We have reviewed the documents which we understand were before the Tribunal in relation to these claims (noting that as we do not have the benefit of the sound recording or transcript we are unaware of what oral evidence was given in relation to these matters).
The ingoing condition report records in respect of Bedroom 1 that the curtains were not clean. The word "mold" is typed in the box next to the word "curtains". In addition, under the heading "Landlord's promise to undertake work" the report states "main house: mould removal". However, the landlords say this work was done prior to the tenant moving into the premises. We do not know what evidence was provided by the landlords to this effect at the hearing but we observe that the landlords' position is consistent with the written materials which have been made available to us. Those materials contain no evidence of the tenant having notified the landlords' agent of a mould problem in Bedroom 1 prior to the flooding event in August 2023.
The evidence in respect of meal costs includes invoices and receipts from five different accommodation providers over the relevant period. Three of those invoices refer to accommodation in what is described as "entire home/apt". It was reasonable for the Tribunal to find that accommodation described as an "entire home/apt" included cooking facilities. The other two invoices do not specify the nature of the accommodation provided. As explained, we do not know what, if any, oral evidence was given in relation to this issue at the hearing.
In addition, the materials which were before the Tribunal do not include any evidence as to what the tenant would ordinarily spend on self-catering expenses over a 16-day period.
On the basis of the materials which are available to us we cannot be satisfied that the findings of the Tribunal in relation to either the mould in Bedroom 1, or the cost of meals, were not reasonably open to it. We are not satisfied that the evidence in its totality preponderates so strongly against the conclusions found by the Tribunal in relation to these issues that it can be said that a reasonable Tribunal Member could not reach them.
Therefore, we are not satisfied that the tenant may have suffered a substantial miscarriage of justice on the basis that these parts of the decision were against the weight of evidence, and our discretion to grant leave on this ground is not enlivened.

Conclusion in relation to grounds of appeal

For the reasons explained we are upholding the appeal only insofar as it relates to the dismissal of the tenant's claims for: 1. rent relief in relation to Bedroom 2; 2. rent relief for the period 3 to 7 August 2023; 3. compensation for breach of the covenant of quiet enjoyment; and 4. compensation for the cost of alternative accommodation for the tenant's pet dog during the period 8 to 23 August 2023.
We are otherwise dismissing the appeal.

Disposition of the appeal

The next question to determine is whether the matter should be remitted to the Tribunal for reconsideration, or whether the Appeal Panel should substitute its own decision.
Section 81(1)(d) allows the Appeal Panel to quash or set aside the Tribunal's decision and to substitute another decision for it.
Under section 81(2) the Appeal Panel may exercise all the functions that are conferred or imposed by the Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
We are mindful that under s 36(1) of the NCAT Act, the Tribunal's guiding principle is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings".
Remitting the application to the Tribunal would involve considerable further delays for the parties. Taking this into account, as well as the relatively small size of the claims for which the appeal has been upheld, the fact that the documentary evidence which was before the Tribunal in relation to those claims is available to us, and that the factual matters relevant to those claims are largely not in dispute, we are of the view that it is consistent with the Tribunal's guiding principle that we substitute our own decision for that of the Tribunal.

Pet boarding costs

The tenant's claim was that during the period she was unable to reside at the premises between 8 to 23 August 2023, she incurred accommodation costs for her pet dog.
She relied on invoices which establish expenses of $500 paid to "Glebe Kennels" for that period.
As discussed above, the Tribunal was satisfied that the landlords had breached the agreement by failing to provide premises that were fit for habitation and that this resulted in the premises became uninhabitable during the period 8 to 23 August 2023. This part of the decision was not challenged on appeal.
The tenant is thus entitled to her reasonably foreseeable losses incurred as a result of the landlords' breach. The English decision in Hadley v Baxendale (1854) 9 Exch 341 established two tests for the recovery of damages when there has been a breach of contract: damages which may fairly and reasonably be considered to arise naturally (first limb) or damages which may reasonably be supposed to have been in the contemplation of both parties (second limb).
Clause 53 of the agreement is entitled "Additional Term - Pets" and states "The landlord agrees that the tenant may keep the following animal on the residential premises: 1 Dog".
In such circumstances, we are satisfied that the pet accommodation costs incurred by the tenant when the premises became uninhabitable are losses which comfortably satisfy the second test in Hadley v Baxendale.
For these reasons we are satisfied that the tenant is entitled to compensation of $500 in respect of this part of her claim.

Rent relief for 3 to 7 August 2023

The tenant seeks an order that the rent was excessive for the period 3 to 7 August 2023, and that the rent should be reduced to zero for that period.
As discussed, the Tribunal was satisfied that the premises were uninhabitable for the period 3 to 23 August 2023. This part of the decision was not challenged in the appeal.
In such circumstances we agree that the rent was excessive for the period 3 to 7 August 2023 and should be reduced to zero.
We are cognisant that whilst the tenancy was on foot the landlords granted the tenant a rental credit of $3400 (equivalent to four weeks' rent) which presumably was intended to include the period 3 to 7 August 2023. However, as the Tribunal deducted that $3400 from the total amount it found to be owing to the tenant, the rent relief which the landlords intended to afford the tenant for that period was effectively nullified by the Tribunal's order.
As the tenancy has now ended, and there is no suggestion that the tenant owes any rent to the landlords, we consider that, rather than making an order under s 44(1)(b) for the period 3 to 7 August 2023, it is more appropriate that we order the landlords to repay to the tenant the overpaid rent for that five-day period (totalling $607.14). We are satisfied that the Tribunal is empowered to make such an order under s 47(5) of the RT Act which provides that the Tribunal "may order that rent or any other amount be repaid to the tenant if it finds that the rent or amount was not required to be paid by the tenant under this Act or the residential tenancy agreement".

Rent relief for Bedroom 2

The tenant says she is entitled to a rent reduction of $100 per week for the 21-week period from 3 August 2023 until the tenancy ended on 29 December 2023, because Bedroom 2 was uninhabitable during that period.
The Tribunal was satisfied that there had been a reduction in facilities provided with the premises even after the tenants moved back into the premises on 23 August 2023 because the floorboards had been removed, leaving a bare concrete sub-floor. This part of the decision was not challenged on appeal. Thus, the only question for us to consider is whether to make an order that the rent was excessive having regard to that reduction in facilities.
Having regard to the number of bedrooms at the premises (four), the other facilities provided with the premises (including two bathrooms, two kitchens and a garage) and the rent payable by the tenant ($1700 per fortnight), we agree that rent for the relevant period was excessive having regard to the loss of use (or at the least a reduction in use) of Bedroom 2, and that a rent reduction of $100 per week is appropriate.
With regard to the period from which the excessive rent order should apply, the tenant has received a rent-free period from 3 August to 23 August 2023. Thus, to avoid double compensation, any further order for rent relief under s 44(1)(b) should apply for the period from 24 August 2023 until the tenancy ended on 29 December 2023 (ie 18 weeks).
For these reasons we are satisfied that from 24 August 2023 until 29 December 2023 the rent payable was excessive, and that the tenant is entitled to a further rent reduction of $100 per week for that 18-week period.
For the same reasons as are explained above, rather than make an order that the rent not exceed a specified amount for the applicable period, we are making an order requiring the landlords to repay to the tenant the overpaid rent (totalling $1800).

Covenant of quiet enjoyment

The tenant says she is entitled to compensation in the sum of $1500 because the landlords breached the covenant of quiet enjoyment.
In her submissions to the Appeal Panel the tenant refers to numerous instances of conduct of the landlords throughout the term of the tenancy which she says breached the obligation in s 50 of the RT Act of quiet enjoyment.
However, the Tribunal's reasons for decision suggest that this part of the tenant's claim was significantly narrower than the tenant now asserts. The Tribunal's reasons record that the tenant "sought compensation for breach of her quiet enjoyment of the residential Premises brought about by the flooding circumstances".
Having reviewed the materials provided to the Appeal Panel we are not satisfied that this part of the claim involved anything other than the flooding event which occurred during the period 3 to 23 August 2023. That is, the tenant alleged that the flooding circumstances which occurred in August 2023 involved a breach by the landlords of the covenant of quiet enjoyment, and that the tenant was entitled to be compensated for her losses arising out of that breach.
It is not necessary for us to decide whether or not the landlords did in fact breach the obligation in s 50 because, even if they did, we are not satisfied that the tenant has suffered any loss beyond that for which she has already been compensated.
The tenant has received rent relief for the period that the premises were affected by the August flooding event. She has also been compensated for the financial losses (including the additional accommodation costs) which she incurred during that period. The tenant has not identified any other losses for which she should be separately compensated as a result of the inconvenience and reduction in amenity. In this regard, whilst we note that that the tenant has loosely referred in her written submissions to "emotional heartache" and "disruption to the family unit", she has not pointed us to any evidence which establishes that the tenant suffered any compensable loss beyond that for which she has already been compensated.
As the Appeal Panel said in Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 (Roberts), in a passage approved by Basten JA in Makowska v St George Community Housing Ltd [2021] NSWSC 287 at [46] (a decision from which leave to appeal was refused), at [86]: That is not to suggest that a claim for damages for loss of quiet enjoyment and an order for the reduction of rent are mutually exclusive forms of relief. Depending on the claims made, there may be facts common to both types of claim which would need to be taken into account in order to avoid double compensation. For example if the premises (or part thereof) cannot be used in the manner intended or its use is in some way impaired by reason of a landlord's breach, it may be inappropriate to both reduce the rent and make an award of damages for loss of use.
We are of the view that this is a case where, to award separate compensation for breach of the covenant of quiet enjoyment, would involve double compensation of the type alluded to in Roberts.
For these reasons we are refusing to grant the relief sought.

Conclusion and orders

For the reasons above we are allowing the appeal in part and are setting aside the order made by the Tribunal requiring the landlords to pay the tenant $6,075.11. We are substituting it with an order that the landlords pay the tenant $8,982.25 (to take account of the additional amounts of $607.14, $1,800 and $500 which we have found are owed to the tenant).
We make the following orders: 1. Appeal allowed in part. 2. Order 1 made by the Tribunal on 8 April 2023 in 2023/00371801 is set aside and in substitution thereof the following order is made: YC Lin and H Xiao are to pay the applicant, Irini El-Mohamad, the sum of $8,982.25 within 14 days of the date of publication of these orders. 1. The appeal is otherwise dismissed.

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: 19 July 2024

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (3)

Cases Cited (18)

Cited By (5)