Green v Brown

NCAT Appeal Panel|2022-09-23

REASONS FOR DECISION

This is an appeal by the landlord from a decision that was made by the Tribunal in the Consumer and Commercial Division on 20 June 2022, exercising powers under the Residential Tenancies Act 2010 (NSW). The Tribunal, after hearing from both parties, awarded the tenant the sum of $10,012.72 being for:

rent reduction for plumbing issues $1,300
rent reduction for mould $3,912.72
loss of peace and quiet enjoyment $500
compensation for mould on furniture and goods $4,300.

Under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party to a decision in the Tribunal has a right to appeal on any question of law and, otherwise, any error for which leave to appeal should be granted, limited by cl 12 of Sch 4 of the NCAT Act. Insofar as leave is required, the appellant landlord in this matter must first show that he may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or the decision was against the weight of the evidence or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Collins v Urban [2014] NSWCATAP 17 sets out the principles applicable to the granting of leave.
The onus is upon the appellant to demonstrate an error on a question of law or an error of a type for which leave to appeal should be granted. Mere disagreement or dissatisfaction with a decision is insufficient. Further, an appeal is not simply an opportunity for a party to re-argue its original case before the Tribunal: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39. Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl 12 of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal. The appellant must demonstrate something more than the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

Extension of time to appeal

Under r 25 of the Civil and Administrative Tribunal Rules 2014, the time to appeal in this matter was within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later). In this matter, notification occurred on 20 June 2022 when the landlord was present at the hearing and the orders were made. Reasons for the decision were provided on 27 June 2022 by email. The time to appeal can be extended under s 41 of the NCAT Act.
The appeal was filed on 25 July 2022. The appeal was therefore filed some 14 days out of time. The landlord did not seek an extension of time in his Notice of Appeal nor in any submissions lodged with the Appeal Panel prior to the hearing. Nor did he provide any reason for the delay.
At the appeal hearing the landlord's agent said that, following receipt of the Tribunal's decision, he had telephoned the Registry and been advised that he had 28 days to appeal. The tenant objected to any extension of time and noted that, as a professional senior property manager, the landlord's agent should have been aware of the timeframe. Furthermore, she submitted that the time to appeal was set out on the Notice of Order. We observe that the Notice directs a person to information contained on the Tribunal's website rather than detailing any appeal rights.
The principles relating to consideration of an application to extend time were set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [21]-[22].
An extension should only be granted where the appellant meets the onus of demonstrating that strict compliance with the timeframe would work an injustice upon him: Gallo v Dawson (1990) HCA 30; 93 ALR 479.
We decided to hear from the parties on all substantive issues, so that we may be better informed about the prospects of the appeal to guide our decision as to an extension of time. If the appeal's prospects are strong, that may indicate an extension is warranted. If fairly arguable, it may warrant more extensive and careful consideration of the other relevant factors such as the extent and reason for delay, and the prejudice to the other party if an extension is granted. If particularly weak or apparently bound to fail, the applicant may be unable to demonstrate that refusal of an extension will work an injustice: see, for example, Rizk v FA Constructions Australia Pty Ltd (No 2) [2016] NSWCA 203 at [7], per Basten JA with Sackville JA in agreement.
For the reasons which appear below, we have refused the application to extend time to lodge the Notice of Appeal.

Relevant background

The background to the dispute concerns a residential tenancy agreement entered into between the landlord and the tenant on 20 March 2017. The rent was $475 per week. This amount was reduced to $420 per week from 22 June 2020 when the tenant lost her job due to COVID-19. The rent was not increased after the COVID-19 specific legislation came to an end. The tenant vacated the premises on 27 May 2022, having given the landlord notice of her intention to vacate on 13 April 2022.
From the material lodged with the Tribunal as set out in the reasons for decision of 27 June 2022, there appears to have been a history of issues concerning maintenance and repairs to the property. When the application was originally made to the Tribunal in March 2022 the tenant primarily sought repairs and a rent reduction. As the tenant had vacated the premises by the time of the final hearing, orders in relation to repairs were no longer sought. When the matter came before the Tribunal on 20 June 2022 the tenant claimed a loss of peace and quiet enjoyment of the property arising from the landlord's failure to repair in the sum of $5,000, a rent reduction of $5,000 and $5,000 in property damage arising from leaks and mould in the property.
In the Member's reasons for decision she states that many of the matters raised by the tenant in her application were out of time. The Member held that the tenant was within time for mould and leaking issues. In regard to other matters, the Member extended the time within which the application could be made.
The Member made findings in relation to the matters raised by the tenant as follows: 1. Noise issues: The Member was not satisfied there was a noise issue in the property; 2. Toilet: The Member found that there was an ongoing issue with a blocked toilet and failure by the landlord to repair it which remained unresolved until 22 April 2022, the date upon which the agent requested a plumber have access to the premises. The Member stated that, despite regular complaints by the tenant, there was no record of attendance by a plumber prior to the 22 April 2022 access request. She awarded the tenant the sum of $1,300 being a rent reduction for a period of 12 months of $25 per week arising from the failure to repair the toilet which resulted in the withdrawal of a properly functioning toilet. 3. Leaks and subsequent mould: The Member found that the tenant had complained of mould in the property commencing on 21 July 2021 with a further complaint on 16 August 2021. The Member noted that the landlord provided an invoice for cleaning of the property on 23 August 2021 but the tenant had advised the agent on 10 September 2021 it had not been done. There were inspections by the landlord but the tenant stated that nothing had been done and it seems a tradesperson failed to attend the property on 18 March 2022 in regard to mould. The tenant and her son moved out of the bedrooms in the property into the living room because of mould. On 22 March 2022, Peter Thornton inspected the property on behalf of the landlord and provided a report on 25 March 2022. Mr Thornton found extensive mould which he stated posed harmful and dangerous health risks to occupants if untreated. He noted it would be a significant undertaking to manage the mould issues in the property. On 11 April 2022 the landlord advised the tenant that issues, including mould and leaking would be attended to. The Member awarded the tenant: 1. a rent reduction of $100 per week for loss of the use of two bedrooms in the property due to mould from 21 July 2021 to when she vacated the premises on 27 May 2022. The total amount awarded was $3,912.72. 2. $4,300 compensation for goods damaged by mould; and 3. an amount of $500 for loss of peace and quiet enjoyment.
We now turn to consider each of the grounds of appeal.

Ground 1 - late service of documents

The landlord states that the tenant's evidence was only dropped off to the agent's office the day before the hearing on 20 June 2022. The landlord states that the tenant raised new matters at the hearing that were not raised in a previous hearing on 22 April 2022 and to which he was not given an opportunity to provide rebuttal evidence.
In essence the landlord submits that he was denied procedural fairness. This would amount to an error on a question of law, if made out.
At the hearing before us, the landlord said that he was disadvantaged by the late service of the tenant's evidence because he could have provided a condition report which demonstrated that, prior to 2021, the premises were free of mould.
The tenant states that her documents for the hearing were served on the landlord some two months before the final hearing. She states that an amended version was provided to the landlord the day before the hearing as she had vacated the property and was no longer seeking repairs. An extract from the transcript of the hearing shows that the landlord's agent stated that the additional information provided in the revised version was a medical certificate and a reference. The agent did not state that he was not on notice of the issues to be decided and did not seek an adjournment. The transcript shows that the Tribunal Member asked the agent on two occasions whether he was happy to proceed with the hearing and he stated on both occasions that he was and said that he could respond to all the tenant's claims.
We note that in an email of 13 April 2022 the tenant advised the landlord's agent that they were intending to vacate the property and were now seeking a backdated rent reduction and to be compensated for loss of property due to mould damage. The material provided by the tenant to the landlord and the Tribunal clearly indicated that the tenant was seeking compensation and not repairs as initially indicated in her application to the Tribunal. The transcript shows that the landlord did not raise with the Member at the hearing that he sought to provide a condition report in response to the issues put forward by the tenant.
We are satisfied that the landlord was on notice of the issues to be determined at the hearing. We are also satisfied that the landlord was given an opportunity to seek an adjournment but chose to proceed with the healing. At no point during the hearing did the landlord state that he was unable to address the evidence provided by the tenant. In those circumstances, we are not satisfied that the landlord has an arguable case that he was denied procedural fairness. This ground of appeal must fail.

Ground 2 - extension of time for tenant's application

The timeframe within which a claim for breach of a residential tenancy agreement is three months of the applicant becoming aware of the breach: s 190 of the Residential Tenancies Act and cl 22(9) of the Residential Tenancies Regulation 2010 (NSW). Many of the matters raised by the tenant were out of time, some having first been raised in 2018 or 2019. The Tribunal extended the time for the making of the application under s 41 of the NCAT Act. The landlord submits that time should not have been extended.
The landlord appears to quibble specifically with an extension of time in relation to the mould and leaking issues. In her reasons, the Member found that the breach was a continuing breach and stated that "the tenant would be within time for the mould and leaking issues regardless as it was not until she became aware of the extent of the problem and the health risk when the landlord's expert attended in March 2022 that she determined she should vacate the property and make a claim".
In his written submissions the landlord argues that the tenant was aware of the issues with mould by at least May 2021 when she consulted a doctor and asserted that the "severity of the mould would have been communicated by a health care professional at this time". At the appeal hearing he referred to photographs of mould which had been submitted by the tenant in the Tribunal proceedings showing mould on ceilings in July 2021. The landlord submitted that the claim was therefore clearly out of time.
On the other hand, at the appeal hearing, the landlord, although conceding there was some mould at the property, stated that the condition report (which he referred to in the previous ground) would have shown there was no mould in the property at the beginning of 2021 and, when the landlord visited the property in November 2021, mould was not an issue at that time. He therefore states that the tenant was awarded compensation for a longer period than was warranted.
Insofar as the landlord seeks to rely on a condition report which was not before the Member, our findings in relation to that issue as discussed above are relevant. In addition, if the landlord is seeking to rely on further evidence which was not before the Tribunal Member, as the Appeal Panel explained in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]-[25], the test of whether evidence is reasonably available within the meaning of cl 12, Sch 4 NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained it.
We are not persuaded that the evidence which the landlord now seeks to rely upon was not reasonably available at the time of the hearing and, indeed, he does not necessarily argue that it was not as it was within his possession at all times. The landlord simply did not think did not think it was necessary to put it before the Tribunal.
The landlord appears to assert that a factual error was made by the Tribunal with respect when the tenant became aware of the mould and leaking issues. While it is clear that the tenant was concerned about mould at an earlier time than March 2022, it was open to the Member on the basis of the evidence provided to determine that she became aware of the extent of the problem in March 2022, on receipt of the report of Peter Thornton. The landlord's assertion that the tenant's doctor would have made her aware of the seriousness of the issue sometime earlier is mere speculation. We see no error in the Tribunal Member's conclusion that this aspect of the claim was made within time.
In relation to other matters in relation to which an extension of time was granted, the Tribunal has a broad discretion concerning the grant of an extension of time. As noted above, Jackson v NSW Land and Housing Corporation sets out the principles relating to consideration of an application to extend time. The Tribunal Member referred to the relevant factors in her reasons for decision and ultimately exercised her discretion to extend time.
As set out in House v The King (1936) 55 CLR 499, an error of law in the exercise of a discretion will arise only if it is shown that a decision maker acts on a wrong principle, has regard to extraneous or irrelevant matters in the exercise of discretion, mistakes the facts or does not take into account some material consideration. Further, even if the error cannot be precisely identified, "if upon the facts it is unreasonable or plainly unjust" an appellate body may infer there has been a relevant failure to properly exercise the discretion because "a substantial wrong has in fact occurred". What must be shown by the landlord is that some error was made by the Tribunal in exercising the discretion to allow the extension of time.
The landlord has not in fact pointed to any error in the Member's decision with respect to these matters. We do not consider that the Member's decision to extend time was clearly unreasonable or plainly unjust or that she failed to exercise her discretion properly. This ground of appeal must fail.

Ground 3 - toilet repairs

The Tribunal awarded an amount of $1,300, being a rental reduction of $25 per week for a 12 month period which ended on 22 April 2022 when the landlord requested access for a plumber to attend. Complaints were first made about the toilet blocking in November 2019.
The landlord states that the period should be reduced as a plumber attended on 3 May 2021 and no further complaint was made by the tenant until 15 November 2021. The landlord relies on an invoice from a plumber dated 3 May 2021 which indicated a blockage was cleared that day.
The plumber's invoice was not before the Tribunal and it does not appear that there was any evidence to the effect that a plumber had attended. The Member's reasons state that there was no record of any attendance by a plumber despite numerous complaints made by the tenant. In essence the landlord seeks to rely on further evidence which was not before the Tribunal.
In accordance with the previously mentioned explanation of the Appeal Panel in Al-Daouk, we are not satisfied that the invoice meets the test of significant new evidence. In that regard, we are satisfied that the landlord was on notice of the plumbing issues concerning the toilet and was given ample opportunity to address the tenant's claims.
This ground of appeal must also fail.

Ground 4 - report by Peter Thornton

The landlord states that the Tribunal should not have accepted the evidence of Peter Thornton (a mould cleaner engaged by the landlord to provide a report/quote) as it "did not meet the threshold for expert evidence". We understand this ground to mean that, as there was no evidence provided from an "expert" as that term is generally understood, there was no evidence before the Tribunal upon which it could properly base its decision concerning mould in premises.
The landlord referred to an unpublished decision of the Tribunal in RT 22/01091 Hayashi & Vasile v Lu & Zhao on 21 March 2022, in which the Tribunal noted that reports before it, including one from Mr Thornton, did not meet the standard required for expert evidence as set out in the Tribunal's Procedural Direction on expert evidence. This seems to be the basis upon which the landlord submits the Tribunal in this matter should not have had regard to Mr Thornton's report.
We note that the Procedural Direction referred to applies in proceedings in the Consumer and Commercial Division involving claims under the Home Building Act 1989 (NSW) with a value greater than $30,000; some proceedings in the Occupational Division and other proceedings in which the Tribunal directs that the Procedural Direction is to apply. There is no evidence that any direction was made in this matter in relation to expert evidence and compliance with the Procedural Direction. We also note that the tribunal Member in RT 22/01091 accepted evidence that was not expert evidence and stated that it "had regard for the fact that this evidence was provided by qualified independent contractors in good faith".
There is no requirement that in all cases before the Tribunal it must only rely on expert evidence in accordance with the Procedural Direction. In many matters quotes from a professional may be sufficient and it is a matter for the Tribunal what weight is given to such evidence: Khan v Kang [2014] NSWCATAP 48.
We can see no error in the Member's approach to the evidence presented by the parties including, in particular, that the absence of any expert report was fatal to the tenant's claim.

Ground 5 - refusal of access

The landlord claims that the Tribunal made an error when it failed to take into account that the tenant had refused, in early April 2022, to provide access to the landlord's agent to assess the causes of mould. As we understand the argument, the landlord submits that any rent reduction should therefore have been calculated to a date earlier than 27 May 2022. To support his contention the landlord has provided an email from Matt Reardon, the Director of a business called Mould Buster to the landlord's agent on 13 April 2022. In the email Mr Reardon states "Sent her a text asking when she was available and response was: ask Richard to ask alex to check his emails". The tenant points out that the email from Mr Reardon was sent shortly after she had given notice she was vacating the property and that is why she had asked Mr Reardon to ask Alex (a property manager) to check his emails.
It is not clear whether the email from Mr Reardon was before the Tribunal when the Member made her decision. At the hearing before us the landlord said he had asked Mr Reardon to look at the mould to determine causation. In any event, the email does not state that the tenant denied access. There is no evidence that Alex checked his emails or what transpired thereafter. It is apparent, however, that mould was still an issue when the tenant vacated on 27 May 2022.
We are satisfied that it was reasonably open to the Member on the basis of the evidence before her to award a rent reduction to 27 May 2022.

Ground 6 - rent reduction

A rent reduction can be awarded by the Tribunal in circumstances where any goods, services or facilities provided with the premises are reduced or withdrawn: s 44(1)(b) Residential Tenancies Act. Sub-section 44(5) sets out factors to which the Tribunal may have regard in determining whether rent is excessive and thus warrants a reduction.
The landlord submits that, in calculating the rent reduction awarded to the tenant relating to the failure to repair leaks and subsequent mould, the Member should have taken into account that the rent had previously been reduced from $475 per week to $420 per week.
Rent for the premises was originally $475 per week at the start of the tenancy. As noted above the rent was reduced to $420 under arrangements applying in the initial stages applying during the COVID-19 pandemic. The landlord did not increase the rent after the relevant legislative provisions relating to COVID-19 ended. The landlord submits that the rent reduction of $100 per week should have been applied to the weekly rental of $475 and not the reduced rate of $420.
In her reasons for decision, the Member was clear that there was no evidence that the rent reduction to $420 per week remained in place because there was agreement between the landlord and tenant that the reduction applied in lieu of repairs. In assessing the amount of the reduction the Member also considered other factors, including rents for comparable properties, before making her decision.
We can see no apparent error in the Member's approach and we are not satisfied that her discretion miscarried in determining a reduction of $100 from the existing rent of $420 per week.

Ground 7 - loss of peace and quiet enjoyment

The landlords submits that the Member erred in awarding the tenant an amount of $500 for loss of peace and quiet enjoyment. Again, it seems that this ground is based upon an assertion that there was no evidence before the Member to support such an award.
In making the award, the Member stated: There is evidence of a number of times the landlord and his agent attended the property. I accept the tenant's evidence that she bought (sic) up these issues on those occasions but there was no attempt to make the requested repairs. Given the extent of the mould described by Mr Thornton and the supporting letter from the tenant's doctor I am satisfied the mould in the property had a significant effect on the tenant's peace and quiet enjoyment of the property. I am also satisfied on the tenant's oral evidence that her sleep was disrupted and the moving out of the bedrooms was particularly disruptive given her son was doing his HSC at the time.
In his submissions the landlord focusses on the Member's statement that there "is evidence of a number of times the landlord and his agent attended the property" and states that notice was given to the tenant on each occasion and that there was therefore no breach of peace and quiet enjoyment.
In our view, the landlord has misunderstood the Member's reasons set out above. It is clear that the award was made in respect of disturbance to the peace and quiet enjoyment arising out of the ongoing situation with mould that the landlord had failed to repair. It was not made on the basis of any breach arising out of visits or inspections by the landlord. It was open to the Member to award a modest amount based on the facts before her.
This ground of appeal must also fail.
None of the grounds of appeal are able to be established. There is therefore no utility in extending time to lodge the Notice of Appeal.

Orders

We make the following order: 1. An extension of time to lodge the Notice of Appeal is refused. 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: 09 December 2022

Residential Tenancies Regulation 2010(NSW)

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