Germaine v Plunkett

Joinder

1. The second appellant, Fiona Germaine, was a party to the proceedings before the Tribunal but was not named as a party to the appeal in the Notice of Appeal.
2. She is required to be a party to the appeal by r 29(b) of the Civil and Administrative Tribunal Rules 2014 (NSW). Accordingly, we ordered that she be joined to the appeal as the second defendant, having been informed by her husband, the first appellant, that he had the second appellant's authority to consent to her joinder and to appear on her behalf on the appeal.

Extension of Time

1. The appeal was lodged approximately two weeks after the time allowed for appeals in residential tenancy matters.
2. The Tenants' explanation was: "The appeal application was lodged under the assumption there were 28 days to lodge an appeal as this appears on multiple parts of the NCAT website as the general time period to appeal, however I do acknowledge it also states this is not the case for residential proceedings, but this was only discovered after the fact."
3. That explanation is not compelling and the Tenants' prospects of success on the appeal are poor, but there is no prejudice to the Landlords and the delay is short. In those circumstances we decided to extend the time to appeal.

Background

1. The Tenants and the Landlords (the respondents) entered into a residential tenancy agreement for premises situated at Kurrajong Heights, NSW. The agreement was for a period of 26 weeks commencing on 23 January 2020. The Tenants continued in occupation of the premises past the initial 26-week period.
2. The premises consisted of a four-bedroom home plus study, a double garage with two garage doors (set side by side) and was set on 7 acres of land. There was one main bathroom situated near 3 of the bedrooms, and one ensuite bathroom situated off the main bedroom.
3. This appeal is concerned with two matters of complaint: a faulty garage door; and a small section of floorboards which had to be removed due to water damage. It is convenient to describe the background to each complaint separately.

The Garage Door

1. At the commencement of the tenancy one of the garage doors would not fully open. The Landlord's agent told the Tenants that it would be repaired soon. Those repairs were caried out but not until some four months later.
2. The two garage doors were in a side-by-side configuration, and it was said that a car could not be parked inside that side of the garage which was immediately behind the faulty garage door whilst that garage door remained faulty. The Tribunal assumed that contention was correct for the purpose of its reasons.
3. The Tenants said that the failure to effect repairs to the garage door (for four months) amounted to a reduction or withdrawal of certain services or facilities provided with the residential premises, namely the ability to use one side of the garage for the parking of one of their cars.
4. In relation to the garage door, and in rejecting the Tenants' excessive rent claim for that item, the Tribunal reasoned as follows: "I will assume for the sake of the argument that it was not possible to park two vehicles in the garage if one of the doors was not working. … However that's not the end of the story and I find doing the best I can on the evidence provided by both parties including Mr Germaine saying today they that there was a gym set up, it's not a professional gym, it's the kind of place where you have got a bike using one those indoor trainer mechanisms and various other items and these I would assume are either domestic quality or they're the sorts of devices that can be moved but I still find that the tenants were using the garage as they wished and if they are using it as a gym rather than to put cars in then I don't believe they have lost any services and I am satisfied that they were using it as a gym in part, and that at the same time it would have been possible to park at least one of their vehicles inside the garage. The evidence is not particularly clear except that the garage door was not working, one of them, the rest of it depends on the submissions of the tenant. But on the basis of the fact the garage could be used even if not entirely as a two car garage and despite the tenants' statement that they entered the lease because they wanted a two car garage I find that they did not lose any services because one car at least could have been parked there and the rest of the space being used as a gym, therefore I dismiss that part of the claim of the tenants, because I am not satisfied that they've proved they lost the services of the garage.

The Floorboards

1. During the tenancy some water damage was occasioned to several floorboards in the hallway immediately outside the house's main bathroom. The area affected was about 1 m by 1 m in size.
2. If a person exited the main bathroom and turned left, that person would pass the doors to two bedrooms (which we shall call Bedrooms 2 and 3), the laundry and study before then entering the main living areas of the house, on the other side of which was the main bedroom.
3. If the person turned right after exiting the main bathroom, that person would pass the door to one bedroom (which we shall call Bedroom 1), and a door providing internal access to the garage.
4. In relation to the damaged floorboards the Tenants said, in their application to the Tribunal: "Buckled floorboards caused from a leaking shower membrane were removed by builders from the hallway outside the main bathroom. This left an exposed sub-floor of 1sqm that was water-soaked and covered in Black Mould. The issue took 3 months to rectify from the initial reporting. During this period we could not use the main bathroom, 1 bedroom or the internal access to the Garage."
5. The Landlords arranged for a temporary fix, being the placement of a piece of plyboard on top of that part of the floor where the floorboards were removed, until the floorboards were permanently repaired.
6. Mr Germaine claimed the Tenants were unable to use Bedroom 1 or to use the internal access to the garage because they could not walk over the temporary plyboard or extend their stride to get past the temporary plyboard without stepping on it. He said (in evidence, but not in the Application Form which commenced proceedings in the Tribunal) that the Tenants were unable to have friends or family stay over because anyone using Bedrooms 2 or 3 would need to use the main bathroom.
7. In addition, he said (in evidence, but not in the Application Form which commenced proceedings in the Tribunal) that that section of the house (which included Bedrooms 1 - 3 and the main bathroom) made up one zone for the house's heating system, and the Tenants' were advised by one of the builders who removed the damaged floorboards not to use that zone's heating (which included a period of time during winter) because there was black mould where the floorboards had been removed.
8. In relation to the floorboards, and in rejecting the Tenants' excessive rent claim for that item, the Tribunal reasoned as follows: "Can I say first of all that there is no doubt the floorboards were buckled. It doesn't matter but I find that they buckled because of water entering from the bathroom and so those floorboards were removed and they had to be replaced. I am aware of the difficulties everyone was having during 2020 with COVID, I'm not exactly sure why it would take so long to repair these particular floorboards, but I put the question to Mr Germaine and I'm not persuaded by his answer that this problem could have been largely overcome on a temporary basis by putting a piece of plyboard over the, over the bare area as it was and as actually occurred and maybe just for the sake of aesthetics and quiet and being a bit more solid putting a matt or a carpet or something over that plywood board and in that way there would be no loss of access to any part of the premises and I think that the argument of the tenants that because of those floor boards and their fear of falling through whatever was underneath the bare area, I think that is very much exaggerated and there is no reason why any builder or even a handyman in my opinion couldn't get a piece of plyboard covered with carpet and you'd still have internal access to the garage, full access to bedroom four, bedroom 3, bedroom 2 and the office and the laundry and although you would not be satisfied with that as a permanent repair it would certainly satisfy need and I find I make a finding that the home could go on being used without difficulty and without loss of services by using that temporary solution, it is again straining my credulity to suggest a temporary solution is meant to be signed off by an engineer I don't agree with that at all, an engineer might come and stamp on the floor and say yes its solid or not or the builder or handyman can do that and I am not satisfied that the tenants have lost anything in relation the floorboards being up for that extended period of time. … … however in this case I am not satisfied that the tenants have demonstrated that they have lost those services because of those floorboards being up. It would be a different situation no doubt if the whole hallway was pulled up or if there was an actual hole leading down to another room below or something like that but not in these circumstances."

The Hearing

1. At the hearing the Tenants complained they had not received the Landlord's evidence which the Tribunal had ordered the Landlords to serve upon the Tenants by hand delivery or post by 4 April 2021.
2. The Landlords' agent had served the Landlords' documents on the Tenants by sending them to an email address provided by the Tenants, but the Tenants had, at some earlier point and without apparently telling the agent, marked the agent's emails as junk and so, it seems more probable than not, the email with the Landlords' documents went to the Tenants' junk mail folder.
3. Most of the Landlords' documents related solely to a claim made by the Landlords against the Tenants which was dismissed by the Tribunal, but a couple of documents were tangentially relevant to the Tenants' claim (with which this appeal is concerned), being a plan of the layout of the house and some photographs.
4. The Tenants did not apply to the Tribunal for an adjournment when these documents were referred to in the hearing and did not express any difficulty with their matter proceeding or any difficulty in presenting their case. The Tribunal considered that the matter could proceed because the matters seemed straightforward.

Grounds of Appeal

1. The Tenants said they had three grounds of appeal: 1. The Tribunal erred in rejecting their claim for excessive rent in relation to the garage. 2. The Tribunal erred in rejecting their claim for excessive rent in relation to the floorboards. 3. The Tenants were denied procedural fairness in that they were not served with the Landlord's material prior to the hearing.
2. It is convenient to consider Ground 3 first as it raises a question of law.
3. Grounds 1 and 2 are not grounds of appeal as lawyers would understand them. They do not raise any question of law, and so may only be considered if leave to appeal is granted and if only if they contain a true ground of appeal. They will be considered together.

Ground 3

1. The Tenants said they did not receive a copy of the Landlord's evidence, the hearing was not halted or postponed, the Tribunal Member used these documents in making his decision and they said that it was their "basic judicial right" to have received these before the hearing to prepare appropriately for the hearing. In substance, this amounts to an assertion that the Tenants were denied procedural fairness.
2. It is certainly true that parties should be given advance notice of the material on which any opposing party proposes to rely in contested civil litigation.
3. Both parties led some evidence on this issue on the appeal, and the evidence from the Landlords favours the view that the Tenants did in fact receive this material by email, although it was most probably received in their junk mail folder because, at an earlier point in time, the Tenants had classified all emails from the Landlords' agent to be treated as "junk".
4. Be that as it may, the Tribunal's pre-hearing orders were that this material had to be served on the Tenants by post or by hand, and neither had been done.
5. However, a denial of procedural fairness must effect a practical injustice in order to be actionable. That is, as Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."
6. What is fair, or what the rules of natural justice will require, will depend on the circumstances - see Lam at [48] per McHugh and Gummow JJ.
7. In the present case, although the Tenants were entitled to receive the Landlords' material before the hearing, the absence of that happening (at least in terms of being served by hand or by post) did not bring about any injustice because none of that material played any role of any significance in the presentation of their case, and in the rejection of their case by the Tribunal.
8. The Tenants' case on excessive rent in relation to the garage was rejected because, in substance, the Tribunal found that the Tenants were using the part of the garage which could not be accessed by a car as a gym. That is, although the Tenants could not use that part of the garage for the original purpose they expressed to the agent (as a garage and for only a few months) they did use it for another of their purposes (as a gym and for the period when the garage door was faulty), and thus, the Tribunal reasoned, no services or facilities had been reduced or withdrawn. This conclusion was reached without reliance upon any of the Landlord's material.
9. The Tenants' case on excessive rent in relation to the floorboards was rejected because, in substance, the Tribunal found that Mr Germaine's evidence that the Tenants could not walk over the plyboard temporarily placed over the 1 m by 1 m area was "very much exaggerated" and that the home could go on being used without difficulty and without loss of services, by using that temporary solution. In substance, the Tribunal's reasoning amounted to a simple rejection of the Tenants' evidence, and their case, and did not rely upon any of the Landlords' material in doing so.
10. The "documents" used by the Tribunal in deciding against the Tenants in their excessive rent claim were nothing more than a plan of the layout of the house, a plan which was explained by the Tribunal to Mr Germaine and which he told the Tribunal sounded "about right", and some photographs of the garage taken after the garage door was repaired. On this appeal, and having had those documents, Mr Germaine did not complain that they were in any way inaccurate.
11. The plan did not deviate from the Tenants' description of the layout of the house, which assisted the Tribunal in understanding the Tenants' case as to how the matters complained of allegedly affected their use of the house. The photographs showed gym equipment in the garage after the garage door was repaired, but the Tenants' acknowledged using the space behind the garage door when it was faulty, and it was that period which was relevant to their claim.
12. In our view, there was no unfairness arising out of the Tenants not having the Landlords' documents before the hearing and in relation to the Tenants' claim for excessive rent. That was a claim the Tenants had to prove, and the Tribunal was not satisfied that they had proved their case. That conclusion was reached irrespective of the Landlords' documents.
13. That conclusion is corroborated by Mr Germaine's lack of complaint about being able to properly present the Tenants' case when he appeared before the Tribunal.
14. Further, the Tenants did not demonstrate on this appeal how the Tribunal's conclusions may have changed had the Landlords' material been served on them prior to the hearing. They did not, with one exception, say that had they had the plan or photographs before the hearing then they would have led some particular evidence which they were not able to lead at the hearing.
15. The exception was an invoice for the gym equipment which demonstrated that the equipment had not been purchased until two months after the tenancy commenced, and thus proved that they did not use the relevant part of the garage for two months of the near-12 month tenancy term. But Mr Germaine gave evidence at the hearing, he knew when the gym equipment was purchased, and he could have given that evidence orally. Indeed, his oral evidence was to the effect that the Tenants had been using that part of the garage as a gym for the entirety of the tenancy.
16. In addition, and of particular importance, is that he did not inform the Tribunal that he was taken by surprise on this issue, could not adequately prepare his case and therefore required an adjournment.
17. Insofar as the Tenants complained on this appeal (belatedly) that the Tribunal said nothing about the black mould, it is self-evident that covering the area with plyboard and carpet (as the Tribunal said in its oral reasons) would, as a temporary measure, have allowed the Tenants to use the heating in that part of the house. Their hearsay evidence of being advised by someone not to use the heating in that area only extended to the situation where the area of the removed floorboards remained uncovered. There was no evidence from the Tenants, hearsay or otherwise, that a suitably qualified person advised against the use of the heating where temporary plyboard and carpet had been installed over the damaged area.
18. In the absence of any evidence, or any persuasive evidence, that the heating could not be used in that zone (when temporary plyboard and carpet were installed over the damaged area) the submission based on the absence of the mention of black mould in the Tribunal's oral reasons did not rise to the status of being a substantial argument or a significant issue such that the absence of it being mentioned in the Tribunal's reasons amounted to an error of law - see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59]; Baker v David [2015] NSWCA 235 per Meagher JA, with whom McColl JA and Sackville AJA agreed, at [24].

Grounds 1 and 2

1. The Tenants did not identify any error of law or any other ground of appeal in their submissions, and none is apparent to us. Their submissions were a re-agitation of the issues for a Tribunal to determine at a first instance hearing and were not apt for an appeal. We appreciate the Tenants are not lawyers, but nevertheless the NCAT Act requires us to decide appeals on the basis of grounds of appeal (if they exist) and appeals are not re-runs of the issues decided by the Tribunal.
2. In addition, the Tenants sought to lead evidence on the appeal which had not been provided to the Tribunal which heard their case, but which was reasonably available to the Tenants at the time of that hearing. We are required to disregard that evidence.
3. The points we have just made are set out in the NCAT's "Guideline 1: Internal Appeals" (available on the NCAT's website and expressly referred to at the top of page one of the NCAT's Notice of Appeal with the advice that it should be read before proceeding with an appeal). Relevantly, that Guideline says: "3. On an internal appeal from a final decision, the Appeal Panel can consider whether the Tribunal which originally heard the proceedings made an error of law. The Appeal Panel may also consider, if it gives permission or 'leave', whether any other error was made in reaching the original decision. If there has been an error of law or the Appeal Panel gives leave and finds that there has been any other error, orders are made to correct the position. 4. Generally, an appeal is not an opportunity to have a second go at a hearing. 5. Parties to an appeal are not usually allowed to rely on evidence that was not given to the Tribunal at the original hearing."
4. Those provisions of the Guideline reflect the terms of s 80(2)(b) and cl 12 of Schedule 4 of the NCAT Act.
5. The Tribunal's rejection of the Tenants' excessive rent case was essentially factual. That is, taking into consideration the evidence presented to it the Tribunal was not persuaded that, in fact, any services or facilities provided as part of the tenancy had been reduced or withdrawn, at least to any non-negligible extent.
6. The ability to challenge those evaluative, fact-based conclusions on an appeal is limited. The Tenants have not identified any ground of appeal for which leave to appeal might be sought. Nor are any grounds of appeal apparent to us.
7. In terms of leave, the requirements for the granting of leave are set out in the NCAT Act and are further explained in Collins v Urban [2014] NSWCATAP 17 at [65]-[84].
8. Having read the material provided on the appeal, we are not persuaded - per Collins and cl 12 of Sch 4 of the NCAT Act - that the Tenants may have suffered any 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 had arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
9. There was no significant new evidence that had not been reasonably available to the Tenants at the time of the hearing.
10. The evidence did not, in its totality, preponderate so strongly against the conclusion found by the Tribunal that it could be said that the conclusion was not one that a reasonable Tribunal member could reach.
11. The decision was not unfair or inequitable in any way which is apparent to us. The Tenants claimed that areas of the house were unable to be used at all, or unable to be used for a particular purpose. The Tribunal found, as matters of fact, that the areas were able to be used and were able to be used for other purposes of the Tenants. No errors in arriving at those factual conclusions was identified by the Tenants and no errors are apparent to us. In those circumstances, the decision of the Tribunal could not be said to be either unfair or inequitable.

Orders

1. We make the following orders: 1. Fiona Germaine is joined to the appeal as the second appellant. 2. Time to appeal is extended up to and including 7 June 2021. 3. The application for leave to appeal is dismissed. 4. The appeal is 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: 17 September 2021