Evans v Charlesworth

NCAT Appeal Panel|2023-07-10

Introduction

This is an appeal from the decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 11 April 2023 (the Decision).
The appellant (the Tenant) had brought five claims against the respondents (the Landlords).
The first claim was a claim for compensation for breach of the Tenant's reasonable peace, comfort and privacy of the subject premises when the electricity was disconnected on 17 November 2022. The Tenant sought compensation of $3,500.00. The Tribunal dismissed this claim.
The Tenant submits that the Tribunal made several errors of law and an error of fact in reaching this decision.
The second claim was a claim for compensation for breach of the Tenant's reasonable peace comfort and privacy of the subject premises when the electricity was disconnected for 6 hours on 23 November 2022. The Tenant sought compensation of $4,500.00. The Tribunal allowed $1,500.00.
The Tenant submits that there are four grounds of appeal.
The third claim was a claim for compensation in respect of the Landlords alleged breach of their obligation to provide and maintain the premises in a reasonable state of repair. The Tribunal dismissed this claim.
The Tenant submits that the Tribunal made three errors of law and one error of fact in reaching this decision.
The fourth claim was a claim for compensation on the basis that the Tenant did not receive notice for approximately five inspections of the premises over a 6 month period and sought compensation of $2,000.00. The Tribunal dismissed this claim.
The Tenant submits that the Tribunal made three errors of law in reaching this decision.
The fifth claim was a claim for compensation on the basis that the Tenant was left partly homeless due to the actions of the Landlords. The Tenant sought an award of $3,000.00. The Tribunal dismissed this claim.
The Tenant submits that the Tribunal made one error of law and one error of fact in reaching this decision.

Background Facts

From the Decision the following background facts are relevant: 1. 5 January 2016: the Tenant entered into a tenancy agreement with the Landlords' predecessor in title. The Tenant had resided in the premises since 2004 [6]. 2. 11 February 2020: the Tenant reported to Ray White (then agent for the previous landlord) that the premises had been flooded [127]. 3. 5 June 2020: routine inspection undertaken by Ray White reporting that cupboards are bowed and swollen, lino in kitchen is ripped and coming up [129]. 4. July 2020: the Landlords purchased the premises and became the Tenant's landlords [14]. 5. 5 August 2021: Ray White conducted routine inspection. Their report noted that the Tenant had experienced power surges. There was a recommendation that this be investigated [42]. 6. 23 March 2022: the Tenant alleged the Landlords conducted minor repairs but failed to repair or investigate other repairs [116]. 7. 8 April 2022: the Landlords' agent served the Tenant with a 90-day notice of termination (expiring 11 July 2022) [44]. 8. 20 October 2022: date of report of Austi Electrical (John Orr) [79]. 9. 8 November 2022: Ray White conducted routine inspection. Their report noted "very dangerous electricals have to be fixed" [46] and [80]. 10. 11 November 2022: Notice of Termination under s 109 of Residential Tenancies Act 2010 (NSW) (RT Act) [16] and [81]. 11. 17 November 2022: the Landlords disconnected electricity (the first disconnection) [17] and [18]. 12. 18 November 2022: Allman Electrical Service restored electricity [19] and [102]. 13. 21 November 2022: Tribunal interim order restraining interference with electricity supply [20]. 14. 23 November 2022: the Landlords disconnect electricity again (the second disconnection) [21]. 15. 23 November 2022: Endeavour Energy reconnect electricity [22]. Ray White ceased being manager for the Landlords [99]. 16. 21 December 2022: the Tenant left the premises, returning the key. 17. Throughout relevant period: rent was $175 per week [132].

Preliminary point

The Notice of Appeal was filed on 28 April 2023. It should have been filed on or before 25 April 2023.
The Tenant seeks leave to file the Notice of Appeal out of time and therefore requests an extension of time.
The issues for consideration when determining whether time should be extended were explained in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22. The factors there described include the length of the delay (in this case a few days), the reason for the delay, the Tenant's prospects of success and the extent of any prejudice suffered by the Landlords to the appeal.
Here, the reason for the delay is set out in the Notice of Appeal where it is stated that the Tenant was an inpatient at a mental health unit between the date of the decision and 20 April 2023. The Tenant lived in Nowra and cannot drive. His representatives were in Wollongong and it was difficult to give instructions. It is our view that these reasons favour granting an extension of time. In our view, there is no prejudice to the Landlords as the delay was relatively short. For reasons that are set out subsequently in this decision we are of the view that the Tenant's prospects of success, at least in relation to some aspects of the appeal, justify extending time as otherwise an injustice would ensue.
For the above reasons, we propose to extend time and give leave for the Notice of Appeal to have been filed out of time.

Amended Notice of Appeal

By an order made on 12 May 2023, the Tribunal gave leave for the Tenant to file and serve an Amended Notice of Appeal.
The Amended Notice of Appeal proposes that the Appeal Panel make the following orders: 1. The appeal is allowed. 2. The Decision is set aside and the following decision substituted in its place: The Landlords to pay to the Tenant the sum of $4,500 within 14 days. 1. The Tenant's application is remitted to the Consumer and Commercial Division before a differently constituted Tribunal to reconsider the issues in accordance with the Appeal Panel's reasons and in particular: 1. whether the first disconnection was a breach of the Residential Tenancy Agreement and, if so, what damages are appropriate; 2. whether the Landlords' inaction to investigate and failure to repair flooding damage and electrical issues was a breach of the Residential Tenancy Agreement and, if so, what damages are appropriate; 3. whether the Landlords had reduced or withdrawn any goods or services or facilities and, if so, what would be the appropriate reduction in rent under s 44(1)(b) of the RT Act; 4. whether the Landlords' failure to provide notices of intention to inspect was a breach of the Residential Tenancy Agreement and, if so, what damages are appropriate; 5. whether breaches of the Residential Tenancy Agreement by the Landlords and associated conduct are established as a cause of the homelessness of the Tenant and whether the loss is too remote to allow for compensation and, if not, what damages are appropriate; 6. if an extension of time is required in relation to any claims, whether one should be granted. 1. Leave is granted for the Tenant to rely on the evidence filed on 2nd February 2023.
The Amended Notice of Appeal goes on to say that the Tenant proposes that it is appropriate for the Appeal Panel to rehear the "second decision" of the Tribunal (ie. the decision concerning the second disconnection) as there is sufficient material to re-exercise the discretion of determining damages in two further respects. However, the other matters raised in the appeal should be reheard and that therefore the Appeal Panel should remit the balance of the dispute to the Tribunal for another hearing.
In addition, the Tenant sought leave to appeal on the basis that the Decision was not fair and equitable because: 1. The decision of the Tribunal to disregard evidence of the Landlords' relationship with the expert witness was not fair and equitable as it denied the Tenant an opportunity for a different decision that would have been obtained in consideration of the general rule that an expert witness must be independent. 2. The decision to disregard evidence of the Tenant's support worker was not fair and equitable because the evidence was relevant and the failure to have regard to it led to a real chance of a different decision being reached. 3. The Decision was inconsistent in that the Tribunal found that the property was dangerous when the electricity was turned off on the first occasion but was not dangerous when the electricity was turned off on the second occasion.
The Tenant also sought leave to appeal upon the basis that the Decision was against the weight of evidence. In particular, the Tribunal did not give weight to the Landlords' delay in undertaking repairs when determining if the repairs were urgent. The Tribunal did not give sufficient weight to the evidence with regard to the failure to repair when finding that it was reasonable to conclude that the repairs may have been done.

The Decision

In order to understand the basis of the appeal it is necessary to summarise some aspects of the Decision as follows: 1. The first claim: with respect to the claim for breach of the obligation to provide the Tenant with quiet enjoyment of the premises arising from the first disconnection, the Tribunal accepted the Landlords' evidence that it was necessary to disconnect the electricity for urgent repairs as there was a dangerous electrical fault [73]. 2. The Decision referred to a report tendered by the Landlords from Austi Electrical dated 20 October 2022 in which the author, John Orr, stated that there was an electrical fault constituting a danger which was "potentially deadly" [79]. 3. At [84], the Tribunal found that, as at 17 November 2022, the electricity supply required urgent repair and that the conduct of the Landlords was reasonable [88]. Accordingly, at [91], the Tribunal found that it was not appropriate to award damages for the first disconnection. 4. The second claim: with respect to the second disconnection (23 November 2022), the Tribunal found that the Tribunal's interim ex parte order requiring the Landlords not to interfere with the supply of electricity was not enforceable because the Tenant had identified the name of the Landlords incorrectly. The name of the respondent was subsequently amended. At [104], the Tribunal rejected the Landlords' defence that the electricity was disconnected this time for the same reason as for the first disconnection. The Tribunal found that the circumstances were completely different. The Tribunal referred to the fact that on 18 November 2022, on the initiative of the Tenant, Allman Electrical Services attended the premises for the purposes of restoring the power (which was done). Their report stated that from a "safety point of view there was no reason for the wiring to be disconnected". Accordingly, the Tribunal found at [107] that it could not be satisfied that the Landlords' interference with the supply of electricity on 23 November was for the purposes of avoiding danger or to enable maintenance or repairs to be carried out. 5. At [111], the Tribunal found that the period of disruption was six hours. In assessing damages, the Tribunal found at [113] that there was no medical evidence linking the Landlords' actions directly to a worsening of the Tenant's health conditions. No medical reports were tendered. The evidence of a support worker was rejected on the basis that her evidence concerning the Tenant's medical conditions was "outside her field of expertise". Damages for non-economic loss for the Landlords' interference with the Tenant's reasonable peace, comfort and privacy were assessed at $1,500 [115]. 6. The third claim: from [116] the Tribunal dealt with the claim for the Landlords' failure to repair since flood damage in February 2020. This was put as a claim for compensation and, in the alternative, a claim for rent reduction. At [135], the Tribunal found that the evidence was not persuasive that the then landlord did not take steps to address the issue concerning the reported flooding. The Tribunal found that there was minimal evidence of any complaints made by the Tenant about the condition of the cupboards or lino after 5 June 2020 and that, therefore, it is reasonable to conclude from the lack of complaints or taking of other action that the issue may have been resolved. 7. At [136], the Tribunal found that it was not satisfied that the Tenant had discharged the onus of proof in establishing a breach of s 63 of the RT Act. 8. The Tribunal went on to consider whether the claim was subject to a limitation period and held that the claim for compensation was out of time and that there had been no application made to extend time. The Tribunal further held that the claim for reduction of rent failed because there was insufficient evidence from which the Tribunal could make "a factual finding there was a reduction or withdrawal of goods, services or facilities in respect of the kitchen cupboards or lino". 9. The fourth claim: this concerned the Tenant's claim for interference with his peace, comfort and privacy by a failure to provide prior notice of approximately five visits or inspections conducted by the Landlords over a six-month period. The Tribunal found that two of these visits had already been dealt with as they occurred on 17 and 23 November 2022. In respect of the other visits the Tribunal found that the Tenant failed to particularise the dates of the visits and that the evidence was insufficient to make factual findings necessary to award compensation [147]. The Tribunal also found that those claims "may be out of time" by reason of s 190(1) of the RT Act. This claim was dismissed. 10. The fifth claim: this concerned a claim for compensation by reason of the fact that the Tenant was allegedly left partly homeless due to the actions of the Landlords. The Tribunal found that the actions of the Landlords on 17 and 23 November 2022 did not result in the Tenant becoming homeless. The claim was dismissed. 11. The additional claim: this concerned the Tenant's submission that additional late evidence should have been considered by the Tribunal. In accordance with directions made by the Tribunal at the conclusion of the hearing to the effect that the parties may make written submissions, the Tenant made a written submission that evidence acquired post-hearing established that there was a relationship between the Landlords' electrician, Mr Orr, and the Landlords. The Decision records at [156] that the Landlords responded (via the first Landlord) to that evidence acknowledging the relationship but stating that the inference that the Tenant sought to draw was offensive. The Tribunal rejected consideration of the evidence upon the basis that the evidence establishing the relationship between Mr Orr and the Landlords was available for some time and was not produced in the "proper way".
We divert to refer to evidence concerning Mr Orr which is sourced from the transcript of the first instance hearing made available to us in the appeal.
The transcript reveals the following: 1. That the first Landlord (Mr Charlesworth) inspected the premises on 23 March 2022 and on that occasion he rang Mr Orr and "got him on video" via a phone. The Landlords' evidence is that Mr Orr inspected two power points and that Mr Orr advised to "turn it off and test the place before someone gets hurt". 2. The Landlords did not take steps to remedy the perceived deficiencies and dangers associated with the electricity connection until 17 November 2022: see pages 141 and 142. 3. Mr Cocks (for the Tenant) cross-examined the first Landlord about his relationship with Mr Orr. The first Landlord's evidence was that he "had a working relationship" with Mr Orr. In answer to specific questions put by Mr Cocks, the first Landlord said that Mr Orr was not his son-in-law and not related to him including by marriage. The Member queried the line of questioning and Mr Cocks said that if Mr Orr is related, the relationship might affect the evidence "as a matter of weight". The Member replied that Mr Orr was a "licensed electrician and as a licensed electrician whether he is related or not, I assume he does the right thing". 4. As stated above the Decision records that in the post-hearing written submissions filed on behalf of the Tenant, the Tenant included evidence intended to show that there was a relationship between Mr Orr and the first Landlord. The Tenant questioned the independence of Mr Orr. The Decision also records that the first Landlord objected to this evidence. The Landlords' submission includes the statement that Mr Orr has had a relationship with the Landlords' daughter. The submissions of the first Landlord state "I am proud to have a healthy relationship with John despite his relationship with my daughter coming to an end, especially when grandchildren are involved".
In the Decision, the Tribunal described the submissions of the Tenant attempting to show a relationship between Mr Orr and the Landlords' daughter as "highly inappropriate" and "extremely prejudicial" because it offends the rules of fairness. The Tribunal Member stated that he had not referred to that material in making his decision. He further described the material as having been available for some time and was an attempt to introduce further evidence "through the back door".

Nature of an appeal

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

A question of law

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right. These include, but are not limited to: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise). In this case such an exercise is unnecessary as the Tenant has had the assistance of Mr Cocks who informed the Appeal Panel that has studied law.

Leave to appeal

Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The principles to be applied by an appeal panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

Consideration of the Additional Claim

The question raised by the Tenant in relation to this claim is whether the Tribunal erred in ignoring evidence about the relationship of Mr Orr and the Landlords. The relationship was admitted by the first Respondent in his written submissions where it is clear that Mr Orr has had a relationship with the first Landlord's daughter, and we infer that there are children of that relationship who are grandchildren of the Landlords (or one of them). This throws up the question as to the independence of Mr Orr as an expert witness and the consequential reliability of his evidence. The first Landlord was asked questions at the hearing about the relationship and the transcript reveals that the familial relationship was not disclosed. In that sense the evidence of the first Landlord was misleading.
The issue of Mr Orr's relationship is important because it is well-established that opinion evidence given by an expert (in this case an electrician concerning the safety of electrical connections at the subject premises) should be given by a person with relevant expertise who is aware of their overriding duty to the Tribunal and who is independent of the parties. As the Tenant's submissions correctly state, the Tribunal has stated in Knight v Oztrack Pty Ltd [2015] NSWCATAP 119 at [15]-[16] that the role of an expert witness is to assist the Tribunal in understanding evidence or factual material which is more complex than a layperson can ordinarily understand without the expert's specialist knowledge and experience being brought to bear. The expert has an overriding duty to assist the Tribunal impartially and not to act as an advocate for a party. Where the conduct of the expert raises concern about their independence and/or impartiality, it is open to the Tribunal to determine what weight, if any, should be given to their opinion.
Here, the following matters were relevant in determining what weight should have been given to the evidence of Mr Orr: 1. Mr Orr's lack of independence and therefore questionable impartiality. In addition the fact that in cross examination the first Landlord did not fully disclose his relationship with Mr Orr raises a question as to the reliability of the evidence of both. 2. The fact that Mr Orr's opinion was formed in March 2022 when he inspected the premises by video via a phone rather than by physical inspection. 3. The fact that despite Mr Orr's opinion concerning the lack of safety of the electricals at the premises, the Landlords did nothing until November 2022. 4. The fact that Mr Orr's evidence is inconsistent with the evidence of Allman Electrical Services whose report was that there was no reason for the electrical wiring to be disconnected.
In the circumstances, it is our view that the Tribunal erred in its consideration of the additional evidence which the Tenant sought to put forward and that that failure caused the Tribunal to err in not considering all of the factors relevant as to whether Mr Orr's opinion was reliable. This failure can be described as a failure to provide procedural fairness to the Tenant and/or a decision that was legally unreasonable (namely the decision to exclude the evidence put forward by the Tenant). Such ground of appeal constitutes a question of law.
Section 81(2) of the NCAT Act provides that the Appeal Panel may exercise all of the functions that are conferred or imposed by the NCAT 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. Accordingly, we propose to exercise that power in respect of the Tenant's first claim. Our consideration of the first claim is dealt with below.

Introduction

As noted, the first claim was a claim for compensation for breach of the Tenant's reasonable peace comfort and privacy of the subject premises when the electricity was disconnected the day of 17 November 2022. The Tenant sought compensation of $3,000.00.
The Tribunal dismissed this claim.

Tenant's grounds of appeal

The Tenant advances several grounds of appeal in relation to the first claim. These grounds are developed in lengthy submissions prepared by the Tenant's Advocate.
The Tenant submits that the Tribunal's decision was against the weight of evidence and was not equitable.
The Tenant accepts that this ground of appeal requires a grant of leave.
The Tenant submits that the Tribunal made the following errors of law: 1. the Tribunal erred by failing to provide sufficient reasons and disregarded relevant (mandatory) considerations; 1. the Tribunal disregarded relevant and highly probative evidence and facts without providing reasons; 2. the Tribunal did not identify any legal basis for refusing to award compensation for the breach of the residential tenancy agreement; 1. the Tribunal erred by application of the incorrect test. The Tribunal applied a test of whether the Landlords' conduct was reasonable, however the relevant test was that of strict liability; 2. the Tribunal erred in its interpretation of the words 'urgent repair' under s 55 of the RT Act.

The Landlords' position

The Landlords support the Decision and the Tribunal's reasoning in coming to its decision that the Tenant's first claim should be dismissed.

Consideration of the first claim

We are of the opinion that the Landlords action in undertaking the first disconnection constituted a breach of the terms of the tenancy and of s 50 of the RT Act. Once the evidence of Mr Orr is considered unreliable having regard to the matters to which we referred above, and the evidence of Allman is taken into account, the Landlords have no evidence-based reason for the first disconnection. The consequence is that the Landlords are liable to pay compensation to the Tenant.
In our view, the amount of compensation must be assessed by reference to the period that the Tenant was without electricity (at the most two days being 17 and 18 November 2022) and the weekly rental of $175. The weekly rental calculates out at $25 per day and, in our view, it is appropriate to award the Tenant at least the sum of $50 for the maximum period during which the Tenant was without electricity. However, the Tenants submissions argue that regard must be had to the fact that the Tribunal may award damages for the distress and inconvenience arising from the breach of the obligation to provide the Tenant with quiet enjoyment of the premises (see Torpey v Stewart [2021] NSWCATAP 248). Particulars of the distress and inconvenience were sparse. The age and relative poor health of the Tenant is not contested. It is self-evident that there was some level of inconvenience arising from the lack of electricity. In the circumstances we assess damages arising out of the first disconnection at $100.

Introduction

As noted, the second claim was a claim for compensation for breach of the Tenant's reasonable peace comfort and privacy of the subject premises when the electricity was disconnected for 6 hours on 23 November 2022. The Tenant sought compensation of $4,500.00.
The Tribunal allowed $1,500.00.

Tenant's grounds of appeal

The Tenant's grounds of appeal are: 1. The Tribunal erred in "not aggravating the damage based on the active NCAT proceedings and orders (error of law)". 2. The Tribunal erred in holding that the "irregularity in the parties' names was sufficient to remove any aggravation despite the notice of intention to amend the application". 3. The Tribunal erred by "considering whether the Landlord had knowledge of the interim orders for which the Landlords had constructive/imputed knowledge". 4. The Tribunal erred "in disregarding relevant objective evidence as to the Tenant's mental health as distinct from medical opinion evidence (error of law)".

Tenant's submissions in support and our Consideration

The Tenant submitted that the Tribunal failed to consider that the Tribunal had made an interim order on 21 November 2022 restraining the Landlords from interfering with the electricity. This ground is rejected. At [95] and [96], the Tribunal specifically referred to the interim orders and held that the orders were not enforceable against the Landlords because they were not a party to the proceedings at the time. The named respondent in the proceedings and in the order was not either of the Landlords.
With respect to the second ground, the Tenant submitted that the irregularity in the name of the respondent in the interim orders was insufficient to enable the Tribunal to ignore the fact of the interim order. The Tenant submitted that the Landlords were on notice of the potential mistake in the name of the respondent from 21 November.
In our view, there was no evidence justifying a finding that the Landlords were aware of the interim order when the second disconnection occurred on 23 November. The first Landlord's own evidence was that he did not know of the Tribunal's interim order. Aggravated damages can be awarded where the party in breach has behaved in a manner which is in contempt of orders. In our view, the facts of this case do not permit a finding that the Landlords acted in contempt of the Tribunal's interim order. If the Landlords' agent knew of the interim order their knowledge cannot be imputed to the Landlords in the context of assessing whether aggravated damages should be awarded.
Accordingly, we see no error in the Decision insofar as the Decision did not take into account the fact of the interim orders when assessing the amount of compensation due to the Tenant.
With respect to the ground that the Tribunal erred in disregarding evidence as to the Tenant's mental health "as distinct from medical opinion evidence", the Tenant submits that the Tribunal erred in not taking into account the evidence of Ms Puckeridge about the effects of the breaches on the Tenant especially with regard to the Tenant's medically-related effects such as attendance at hospital and the distress experienced by the Tenant.
We disagree that this discloses an error of law. The Tribunal considered the evidence of Ms Puckeridge and rejected it at [114] upon the basis that evidence of the Tenant's medical conditions was outside her field of expertise. There is no error in the Tribunal's decision to not take account of her evidence. Even if the Tenant could persuade us that some regard should have been had to the evidence of Ms Puckeridge concerning the effect of the Landlords' actions on the Tenant, we would not be inclined to set aside the existing order. This is because we see no utility in doing so (ie setting aside the existing order). Were we to set aside the order we would consider whether the amount of compensation should not only be higher than the amount awarded ($1500) but also whether it should be less than $1500. We are of the view that taking into account the period of disruption to the electricity occasioned by the second disconnection we would, without more, be inclined to make an award of an amount similar to that which we propose for the first disconnection. Given that the amount in fact ordered to be paid is significantly greater than an order in the region of $100, we think it highly unlikely that any utility would be served by reassessing damages taking into account the evidence of Ms Puckeridge.
Had the Landlords lodged a cross-appeal with respect to the assessment of damages for the second disconnection, we would have been obliged to consider both the Tenant's submissions and the Landlords' submissions in some detail. However, the Landlord has not filed a cross-appeal and the question is whether any utility is to be served by taking into account Ms Puckeridge's evidence with a view to potentially increasing the award. In our view, that is not realistic and the appeal on this issue is inutile.

Introduction

The third claim was a claim for compensation in respect of the Landlords' alleged breach of their obligation to provide and maintain the premises in a reasonable state of repair.
The Tribunal dismissed this claim. The Tribunal dealt with this claim from [116]. The Tribunal referred to evidence of damage to the bedroom, kitchen and loungeroom occasioned by flooding. This included reference to evidence of an inspection by the Landlords' agent on 5 June 2020 in which the cupboards are recorded as "bowed and swollen" and that the "lino" in the kitchen is ripped and coming up. The Tribunal noted that there was no subsequent reference to the "problem with the cupboards and lino" [113]. The Tribunal referred to the Tenant's evidence (in the form of a statutory declaration dated 23 November 2022) which did not mention the kitchen cupboards or the lino. At [135] the Tribunal said that there was "minimal evidence" of any complaints made by the Tenant after 5 June 2020 and that it was "reasonable to conclude from the lack of complaints or taking of other action that the issue may have been resolved". The Tribunal's conclusion is contained at [136] where the Tribunal finds that the Tenant, having the onus of proof, has not satisfied the Tribunal that the Landlords have breached their obligations.
At [141] the Tribunal considered the Tenant's claim on the basis that the Tenant sought a reduction in rent under s 44 of the RT Act and concluded that there was insufficient evidence enabling the Tribunal to make a factual finding that there was a reduction or withdrawal of goods, services or facilities in respect of the kitchen cupboards or lino.

Tenant's grounds of appeal

The Tenant submits the following grounds of appeal: 1. The Tribunal erred in failing to "decide the issue of whether the failure to repair electricals in the residential premises were a breach of the residential tenancy agreement that also have rise [sic] to a breach of reasonable peace, comfort or privacy". 2. The Tribunal erred in its finding that the flood issues were rectified and further erred by considering a case put by neither party. 3. The Tribunal erred in its determination that a failure to repair was not a continuing breach of the residential tenancy agreement. 4. The Tribunal erred by making a decision that was against the weight of evidence.

Tenant's submissions in support

The Tenant submitted that the Tribunal failed to take account of relevant evidence. This included evidence given at the hearing by the first Landlord to the effect that when he visited the premises on 23 March 2022 he observed that the premises were in an extremely poor condition. The Tenant also submitted that his own evidence was not taken into account by the Tribunal. This included evidence at the hearing that repairs had never been done, that the kitchen cupboards were falling apart and the lino and carpet required replacement. The Tenant also submitted that the Tribunal erred in giving no consideration as to whether the failure to repair the electricals was relevant to the Tenant's claim that the Landlords had failed to repair and maintain.
The Tenant's submission included criticism of the fact that the Tribunal found that the lack of complaints by the Tenant may have been due to the fact that the issues had been resolved and that that issue was not raised at the hearing by either party or by the Tribunal.

Consideration of the third claim

In our view, the essential reason that the Tenant's third claim failed was articulated by the Tribunal in [136] of the Decision. The Tribunal found that it was not satisfied, on the basis of the evidence, that the Tenant had discharged the obligation to prove his case. The Tribunal inferred that damage caused by flooding may have been resolved based upon the fact that the Tenant did not make complaints about the condition of the cupboard or lino after June 2020 and did not in his statutory declaration of 23 November 2022 make reference to the state of the cupboards or lino. The Tribunal's inference does not constitute a firm finding that the Landlords (or their predecessor) had conducted any repairs or maintenance but rather is a finding that there was insufficient evidence taken as a whole to conclude that the Landlords had breached their obligations with respect to the maintenance of cupboards, lino or carpet.
In our view the Tribunal's reasoning does not display any error of law as that conclusion was open on the evidence.
The Tenant's submission that there was a failure to decide the issue by having regard to the state of the electricals is rejected. There was mixed evidence concerning the state of the electricals. The Tenant's own evidence (via Allman Electricals) was to the effect that the electricals were not unsafe. It does appear to us that the Tenant has been approbating and reprobating in that, on the one hand, the Tenant contends that the Landlords' actions in disconnecting the electricals were unjustified because the electricals were in fact safe and, on the other hand, the Tenant submits that the electricals were in a poor state of repair and condition which should be taken into account in considering whether the Landlords breached their obligations to repair and maintain.
A further reason given by the Tribunal for rejecting this claim was that the claim was brought out of time (insofar as it concerned a claim for compensation under s 190(1) of the RT Act). The Tenant submits that the Landlords' failure to repair and maintain was a continuing breach which would, if correct, have resulted in the claim being brought within time. We take a contrary view. The relevant time frame under s 190 is three months after the Tenant becomes aware of the breach: see cl22(9) of Residential Tenancies Regulation 2021 (NSW). The trigger is when the Tenant becomes aware of the breach. In our view, the Tenant's submissions concerning the contention that the breach was continuing (and thus the claim was brought within time) misconceives the operation of s 190.
The Tenant also took issue with the conclusion made by the Tribunal at [141] of the Decision. There the Tribunal considered that the claim may have been brought under s 44 as a claim for reduction of rent by reason of "reduction or withdrawal" of "goods, services or facilities provided with the residential premises". The Tribunal found that there was insufficient evidence from which the Tribunal could make a factual finding that there was such a reduction or withdrawal. In our view, the conclusion reached by the Tribunal was open to it. In particular, there does not appear to have been evidence that the state of the kitchen cupboards limited their availability to the Tenant or that the state of the lino reduced the Tenant's ability to use the room on which the lino had been laid.
There was evidence from the first Landlord that the premises were in a very poor state of repair when he visited in March 2022.The Landlords' general obligation to provide and maintain the premises is set out in s 63 of the RT Act. The obligation is to provide and maintain the premises in a reasonable state of repair having regard to the age of, rent payable and prospective life of the premises.
The Decision reveals that the Tribunal took these matters into account [132]. In our view the conclusion of the Tribunal that the Tenant had not satisfied the onus of proof to prove the breach was open on the evidence. The Tribunal did not err in this conclusion, nor in its conclusion that the limitation period in s190 had not been met.
The appeal in respect of the third claim is dismissed.

The Tenant's fourth claim

As noted, the fourth claim was a claim for compensation on the basis that the Tenant did not receive notice for approximately five inspections over a 6 month period (particularly those on 23 March 2022 and 8 November 2022) and sought compensation of $2,000.00. The Tribunal dismissed this claim.

Tenant's grounds of appeal

This ground was that there was no evidence to draw the conclusion that the Tribunal did not provide evidence of dates or times when the alleged visits took place or what occurred [146] in circumstances where the Tenant alleged four dates: 23 March 2022, 8 November 2022, 17 November 2022 and 23 November 2022. The Tribunal erred in paying significant attention to legal form as to whether the breaches were particularised instead of considering whether the breaches had instead been established on the evidence before it. The Tribunal erred in failing to provide reasons as to whether the Tribunal should draw inferences that the documents (i.e. the notices of the intended visits) did not exist where they have not been provided by the Landlords.

Tenant's Submissions

The Tenant's submissions begin with the visit on 8 November 2022 and contain the acknowledgement that the Landlords' agent informed the Tenant that notice of the proposed inspection had been given (but the Tenant denied receiving such notice): see [319] of the Tenant's submissions. The Tenant's submissions also concerned the attendance by the first Landlord and the Landlords' agent on 23 March 2022. The balance of the submissions expand upon the grounds referred to above.

Consideration of the Tenant's Fourth Claim

Although the Tribunal may have been in error in stating that the Tenant failed to particularise the dates of visits (other than those on 17 and 23 November 2022) and therefore failed to identify the complaint concerning the visit of 8 November 2022, the Tenant's own submissions with respect to that visit disclose that there was evidence acknowledged by the Tenant that the Landlord's agent stated that notice had been given. Accordingly, albeit for the wrong reasons, the Tribunal was correct in its conclusion at [147] that the evidence is insufficient to enable Tribunal to make "factual findings necessary to award the Tenant compensation."
The Tenant submits that the Tribunal erred by not taking into account that the Landlords should have been able to tender evidence of the notice of intention to visit having been served and that the failure to tender such evidence should have enabled the Tribunal to have drawn the inference that a notice was not served. This submission does not help the claim concerning the visit on 23rd March 2022 (because it was out of time: see below). Whether an inference should have been drawn that the visit on 8 November 2022 was not accompanied by a prior notice is problematic. It is possible that a notice was given and the fact that the Landlords did not tender documentary evidence in support may have been due to the fact that the Landlords did not have such evidence (such as a copy of the notice). We do not think that the omission of the Tribunal to draw an inference as argued for by the Tenant constituted an error.
With respect to the visit on 23 March 2022 again the Tribunal may have erred in not being aware that this visit had been particularised by the Tenant. Nevertheless, the Tribunal was correct in stating that a claim for compensation for a breach by the Landlord of this kind is required by s 190(1) of the RT Act to have been brought within three months of the Tenant becoming aware of the breach. Accordingly, the claim in respect of that visit was appropriately dismissed.
Paragraph 359 of the Tenant's submissions states that we (the Appeal Panel) are not able to conclude that a redetermination of the claim with respect to the visit on 23 March 2022 would be futile on the basis that that claim was brought out of time because the Tribunal, at first instance, did not consider whether to extend time. The submissions cite Renda v Wu [2016] NSWCATAP 238 at [73] for the proposition that the Tribunal has an obligation to advise a party that they should make an application to extend time so that the issue of the extension of time may be properly considered. The decision in that case was concerned with a self-represented party and the Appeal Panel's comments were specifically directed towards assisting a self-represented party to understand Tribunal procedures. In this case, the Tenant was represented by a Legal Centre and, in particular, by an advocate whose knowledge of the law is apparent from the extensive submissions.
In our view, the claim for the 23 March 2022 visit was out of time and there was no obligation on the Tribunal to suggest to the Tenant's Advocate that an application to extend time should be made.
The other visits the subject of the Tenant's claims were on 17 and 23 November 2022. The events on those two occasions have already been the subject of compensation at first instance (with respect to the 23 November claim), and in this decision (with respect to the 17 November claim). The Tenant is not entitled to further compensation on top of that already provided.

Introduction

As noted, the fifth claim was for compensation on the basis that the Tenant was left partly homeless due to the actions of the Landlord. The Tenant sought an award of $3,000.00. The Tribunal dismissed this claim.

Tenant's grounds of appeal

The Tenant's grounds of appeal are that the Tribunal erred in considering that $1,500 ( for the second disconnection) based upon the short duration of the lack of electricity was sufficient to compensate for any subsequent homelessness. In doing so the Tribunal failed to give reasons as to the legal tests for remoteness and causation.

Tenant's submissions in support

The Tenant's submissions drew attention to the fact that the Tenant left the premises on 21 December 2022 and moved into a friend's converted garage on a temporary basis. The submissions go on to state that the Tenant left "partly due to the actions of [the Landlords]" but that that there was also a threat by the Landlords' neighbouring tenant. The submissions state that the Tenant would not have left but for the Landlords' breaches.
Further, the submissions state that the Landlords' breaches of the residential tenancy agreement and "clear intention to remove the Tenant" render the Tenant's belief that the Landlords would not comply with s 50(3) of the RT Act to protect the tenant, reasonable. The submissions go onto state that the Landlords' acts were still "operating on the Tenant".

Consideration of the Tenant's Fifth Claim

In our view, the fifth claim lacks merit. The thrust of the Tenant's submission is that he left the premises on 21 December 2022 partly because of the conduct of the neighbouring tenant and partly because of the prior actions of the Landlord. We were not taken to evidence of conduct by the neighbour or by the Landlords in the period from 23 November 2022 until a date nearly a month later when the Tenant left.
In any event, the Tenant's claim for compensation is not for any direct loss occasioned by leaving the subject premises and moving to less salubrious premises, nor for any additional costs payable with respect to the new premises into which the Tenant moved. Rather, the claim is for compensation for "homelessness". The term "homelessness" is referred at [358] of the Tenant's submissions to also mean "reduced quality of home" which the submissions describe as an "additional appreciable loss".
In our view, the Tribunal did not err in concluding at [152] that the compensation awarded in respect of 23 November 2022 was "sufficient" and nor did it err in stating that a "further award of compensation would amount to double-compensation". We would add that there is insufficient evidence to conclude that the Tenant's state of accommodation from 21 December 2022 onwards was such as to make it appropriate to award compensation against the Landlords. For example, we were not taken to evidence comparing the new premises with the former premises or the amount of rent payable for the new premises.

Orders

In light of the conclusions reached above, the appropriate order is to require the Landlords to pay an additional $100. We understand that the amount previously ordered to be paid has been paid. Therefore, the appropriate orders in these circumstances are as follows: 1. Time for lodgment of the appeal is extended to the date of lodgment. 2. The appeal is upheld for the limited purpose of increasing the amount of compensation to be paid by the Respondents to the Appellant by $100 and is otherwise dismissed. 3. The Respondents are to pay the Appellant the sum of $100 within 21 days of the date hereof. 4. The Appeal Panel notes that the order for payment of $1,500 at first instance has been complied with. 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: 23 August 2023

Residential Tenancies Regulation 2021(NSW)

At a glance

Court

Decision date

Source

Judgment (29 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (7)