Hall v Hawkins

The proceedings at first instance

1. The landlords' application was heard on 10 April 2015 and the Tribunal made the following orders on that day: 1. The tenant's application for an adjournment is dismissed. 2. The landlord's application is dismissed.
2. Written reasons for decision were given on 16 April 2015. In those reasons, the Tribunal recorded the landlords' heads of claim as formulated by Mr Hall at an earlier hearing on 2 March 2015 as follows: 1. Rent arrears - $2467.50 2. Further rent arrears - $860.00 3. Rent compensation - $860.00 4. Water usage - $147.31 5. Internal cleaning and window cleaning - $678.00 6. Garden beds and edging - $990.00 7. Repairs to timber floors - $3061.92 8. Water damage to laundry floor - $3280.00 9. General damage between $4700 and $6460, which the landlord more precisely identified at the hearing as $ 4700 10. Loss while repairs were done of 2 weeks rent - $1720 11. Replacement of door locks and keys - $586.69 (added more recently). Less the bond which has already been released to the landlord in the sum of $2800
3. On the first and second heads of claim, the Tribunal found that the landlords were entitled to a combined total of $2517.00, which was the amount by which the tenant was found to have been in arrears.
4. The third claim, for one week's rent from 30 December 2014 to 6 January 2015, was made on the basis that the tenant had not responded to the landlords' email request for an end of tenancy inspection and Mr Hall carried out the inspection on 6 January 2015. This claim was rejected by the Tribunal because the landlords had been aware since 12 December 2014 that the tenant would be vacating the premises by 30 December 2014 and the tenant had not breached the tenancy agreement by not responding to the email request for an inspection.
5. The Tribunal upheld the fourth head of claim and found that the landlords were entitled to $147.31 for water use by the tenant.
6. The Tribunal below rejected the fifth to ninth heads of claim, which covered: internal cleaning and window cleaning; garden beds and edging; repairs to timber floors; water damage to laundry floor; and general damage. To support these claims the landlords relied upon: 1. a form of condition report that was prepared by Mr Hall but not completed in the presence of, or signed by, the tenant and that was not "the copy of the condition report retained by the landlord or the tenant under [s 29 of the RT Act]"; 2. photographs of the premises; 3. a number of quotations as to the cost of repairs.
7. The tenant did not give adduce any documentary evidence on those topics.
8. In respect of these claims the Tribunal held: An outgoing condition report which records the condition of the property must be prepared in accordance with the Residential Tenancies Act. Although photos can be useful evidence, the most cogent evidence is a compliant condition report. Section 29(4) of the [Act] requires as soon as practicable after the termination of the tenancy agreement, that the landlord and tenant complete a copy of the condition report together. Section 29(5) says that it is not a breach of section 29 (4) for the report to be completed in the absence of one party (say the tenant) if the landlord has given the other party a reasonable opportunity to be present at the outgoing inspection. … Given the time of the year I am not satisfied that less than two days notice was a reasonable opportunity to attend the inspection. … Although photographs have been provided they are generally not as reliable as a compliant condition report. The effect of light, angles, zoom lenses, size of the photos detract from the reliability of photos as evidence. Absent a condition report prepared in accordance with the Act and in light of all items in dispute by the tenant, the Tribunal cannot be satisfied on the evidence that the tenant has breached his obligations under section 51(3) of the Act as claimed by the landlord. A further problem with the landlord's claims for cleaning, window cleaning, garden maintenance and general damages is that quotes have been provided for these items, but by entities who did not do the actual work. The landlord's evidence was that an agent had organised for all his work and a number of the repairs to be done, but the landlord did not have the invoices or receipts for that work, he did not know who had done which jobs, nor what they cost. Even if the landlord could succeed on the issue of liability, the claim on quantum would not succeed as there was insufficient evidence to prove the quantum of the actual loss. Another issue is fair wear and tear, which the tenant is not liable for. Some of the items claimed would fall into this category. For example the scratching on the floorboards appears to be from furniture moving on the same spot. This probably means that the floors have been damaged by normal day to day use. With respect to the buckled laundry floor, the floor was not compliant with modern standards and did not have a grate for water to escape. It is likely that there would have been water falling on the floor from time to time during normal day to day use. With nowhere to flow, the water may have damaged the floor.
9. The tenth head of claim was for the loss of two weeks' rent because of the time spent carrying out repairs. The Tribunal below rejected this claim on the basis that it was a claim for indirect loss which was dependent upon claims 5 to 9. As these claims had been rejected, claim 10 was dismissed as well.
10. The Tribunal rejected the eleventh head of claim, finding that it was not a breach of the tenancy agreement for the tenant to return non-original keys if the original keys are mislaid or no longer in existence and that there was no "legal requirement for a tenant to reimburse a landlord for the expense of a change of locks".
11. Finding that the total amount to which the landlords were entitled was $2,664.31 (under claims 1, 2 and 4) and that this amount was less than the bond of $2,800.00, which had already been released to the landlords, the Tribunal decided that it should dismiss the landlords' application.

The Appeal

1. The landlords lodged a notice of appeal form on 30 April 2015, having received a copy of the orders and reasons for decision on 22 April 2015. The notice of appeal form was incomplete. As we understand it, this was because Mr Hall was having difficulty completing the form as a result of receiving distressing medical advice concerning his wife on 30 April 2015. A further copy of the notice of appeal form was lodged on 12 May 2015 and this was complete and accompanied by 29 pages of attachments as well as a statutory declaration. The landlords sought an extension of time in which to lodge the appeal and provided a document headed "Extension of Time" dated 4 May 2015 in which Mr Hall explained what had occurred.
2. Under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW), an internal appeal in residential proceedings such as the present must be lodged within 14 days of the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), unless an extension of time is granted under s 41 of the Act. If the incomplete notice of appeal lodged on 30 April 2015 is not sufficient to satisfy the requirements of the rules, it will be necessary for the time to be extended under s 41. Otherwise, the appeal would be incompetent, being out of time.
3. The tenant lodged his reply to appeal on 23 June 2015 and in that reply indicated that, although he did not accept that the appeal had been lodged within time, he did not object to the Tribunal extending time for the making of the appeal.
4. In these circumstances and to the extent that it is necessary, the Appeal Panel grants an extension of time in which to lodge the appeal to 12 May 2015.

Orders Challenged and Grounds of Appeal

1. In their appeal documentation, the landlords identified the orders they wished to challenge as follows: 1. Rent Arrears 2. Rent Compensation 3. Keys 4. Internal Cleaning and window cleaning, garden beds and edging, repairs to timber floors, water damage to laundry floor and general repairs
2. Although these do not reflect the orders actually made by the Tribunal below, it is apparent that the landlords are seeking to challenge the Tribunal's orders in so far as they are based on the heads of claim as follows: 1. "Rent Arrears" refers to heads 1 and 2; 2. "Rent Compensation" refers to head 3; 3. "Keys" refer to head 11; and 4. "Internal Cleaning [etc]" refers to heads 5 to 9 (the repair claims).
3. The orders, to the extent that they are based on claims 4 and 10 and parts of claims 1 and 2, are not, as we understand it, being challenged.
4. The grounds of appeal, as set out in the notice of appeal, were identified as: 1. The Decision was not fair and equitable 2. The decision was against the weight of evidence 3. Significant new evidence has arisen that was not reasonably available at the time of the original hearing
5. Under s 80(2)(b) of the Act, an appeal against a final decision, such as the present, may be made: 1. as of right on a question of law; and, 2. with the leave of the Appeal Panel on any other ground.
6. Further, as the decision appealed against was made in the Consumer and Commercial Division, cl 12 of Sch 4 of the Act applies. That clause provides in part: (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a [Consumer and Commercial] Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
7. The landlords' material accompanying the notice of appeal and their submissions do not specify whether the grounds relied upon are said to raise questions of law, in respect of which leave is not required, or raise other grounds, for which leave to appeal is required. From the material provided, however, it is clear that the landlords were seeking leave to appeal to the extent that it was required.
8. The matters described as "grounds of appeal" in the landlords' notice of appeal only identify the matters which might give rise to a substantial miscarriage of justice so as to enliven the Appeal Panel's discretion to grant leave to appeal under cl 12 of Sch 4 to the Act. Nonetheless, we shall consider the substance of the arguments put by the landlords rather than adopting a narrow reading of the notice of appeal.
9. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered what would amount to an appeal on a question of law. Without attempting to be exhaustive, the Panel at [13] identified a number of issues which raised questions of law for the purposes s 80(2). Their list of examples of questions of law is as follows (excluding the authorities cited by the Appeal Panel in that case): 1. Whether there has been a failure to provide proper reasons for decision. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law has been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account relevant (mandatory) considerations. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision was so unreasonable that no reasonable decision-maker would have made it.
10. In addition, in Prendergast, the Appeal Panel at [12] held that in circumstances where an appellant is not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally and it is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.
11. Accordingly, we shall deal with each of the four areas of challenge to the orders made by the Tribunal below, which have been identified by the landlords, namely: rent arrears; rent compensation; keys; and internal cleaning etc. In doing so we shall determine whether a question of law has, in substance, been raised or whether leave to appeal is required and should be granted.

"Rent Arrears" - heads 1 and 2

1. The landlords claimed $2,467.50 rent arrears as at 30 December 2014 and one week's "missing rent" of $860.00. As noted above, the tenant conceded that $2,517.00, being rent arrears and "a rent amount identified as being unpaid in the sum of $797.50 back in May 2014", was owing. The Tribunal at first instance held: The landlord acknowledged that he had not provided any receipts for rent during the tenancy. There were a number of documents which the landlord referred to in the hearing as rent ledgers. However, there was no rent record, ledger or statement in a format which clearly showed the period for which each rent payment was paid during the tenancy and the date up to which rent was paid. The landlord was unable to identify where the missing week of rent belonged in the timeline. He submitted that the tenant had altered one of the ledgers; and that due to erratic payments of the tenant it was hard to keep track and he had just kept this one week as a rolling amount. This is insufficient evidence to prove the missing rent payment.
2. In these circumstances, the Tribunal below concluded that the tenant was only liable to pay the amount conceded in respect of heads of claim 1 and 2, namely, $2,517.00.
3. The landlords submitted that they were not required to provide receipts where the rent was paid into the landlords' bank account, as result of the operation of cl 3 of the residential tenancy agreement, and that the rent record could be kept in any form, as provided in s 37 of the RT Act. Accordingly, it was argued in effect that the Tribunal below was in error when it held that these claims should be dismissed because there were no receipts and no rent record, ledger or statement in a format which clearly showed the period for which each rent payment was paid during the tenancy and the date up to which rent was paid as required by the RT Act or the residential tenancy agreement.
4. If this is indeed what had been held by the Tribunal below, it could be said to involve an error of law and thus leave to appeal would not be required.
5. We do not, however, accept that the Tribunal below held that the claim for rent arrears and the "missing rent" should be rejected because of a failure of the landlords to keep records as required by the RT Act or by the residential tenancy agreement. Rather, in our view the Tribunal below was dealing with the factual basis for the landlords' claims. On the material before the Tribunal at first instance, it was held that the landlords had not shown as a factual matter that the tenant was liable for any more than the amount of $2,517.00 conceded to be due.
6. Consequently, to the extent that the appeal was on this question of law, the Appeal Panel rejects the appeal in respect of heads of claim 1 and 2 because the Tribunal did not make the errors of law contended for by the landlords.
7. In so far as the landlords also argue that the Tribunal's factual finding was wrong on the material before it, this would amount to an appeal on a ground other than a question of law and leave to appeal would be required. Further, as explained above, leave could only be granted if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or was against the weight of the evidence or because there was significant new evidence that was not reasonably available at the time of the original hearing.
8. We do not accept that the decision in relation to these claims was affected by any conduct or omissions on the part of the Tribunal such that the decision was not fair and equitable. Nor was it suggested that there was significant new evidence in relation to heads of claim 1 and 2.
9. The gravamen of the landlords' submissions in this regard, as we understood them, was that the finding was against the weight of the evidence. The landlords submitted that: 1. the evidence supported the landlords' claims for rent arrears and the "missing rent"; 2. the tenant put no evidence in this issue to the Tribunal; and 3. the Tribunal below "placed NO weight on the difficulty of maintaining a rent record when the [tenant] was almost always in arrears, frequently paid different amount and never paid consistently. That it is complex is not of my doing and the [tenant] (not me) should have been held accountable for it".
10. As to the evidence of non-payment, in oral submissions, the landlords drew attention to, among other things, two spreadsheets, called attachments 10 and 11, which were said to show rent due and rent paid. Attachment 10 had been prepared by the landlords and attachment 11 was a version of attachment 10 apparently adjusted by the tenant. In oral submissions, the landlords could not, however, demonstrate why attachment 10 rather than attachment 11 should be accepted as the correct record of what occurred. Nor was it shown why the Tribunal below had been wrong to proceed on the basis of the tenant's concession. Indeed, in their written submissions, the landlords said in relation to part of attachment 11: "I quickly calculated … and confirmed his [the tenant's] assessment that he owed $797.50" and later "By early December [2014 as we understand it] the $797.50 still had not been paid." This suggests that the landlords accepted that the "missing rent" was $797.50, as conceded by the tenant, not $860 as claimed by the landlords.
11. In the circumstances, the Appeal Panel was not satisfied that the decision of the Tribunal below in relation to heads of claim 1 and 2 was against the weight of the evidence in the relevant sense: Collins v Urban [2014] NSWCATAP 17 at [77].
12. Accordingly, no question of whether the landlords might have suffered a miscarriage of justice on one of the three bases mentioned in cl 12 of Sch 4 to the Act arises. In these circumstances, the Appeal Panel is not in a position to grant leave to appeal in relation to this aspect of the appeal not based on a question of law.
13. For all of these reasons, the Appeal Panel is of the view that the landlords' appeal in relation to "Rent Arrears" should be dismissed.

"Rent Compensation" - head 3

1. The appeal relating to compensation for one week's rent for the period between 30 December 2014 and 6 January 2015, because the outgoing inspection was not carried out until 6 January, was not the subject of specific attention in the landlords' written submissions or at the hearing before the Appeal Panel.
2. The Appeal Panel notes that the Tribunal below found that the landlords had been aware since 12 December 2014 that the tenant would be vacating the premises by 30 December 2014. In addition, it has not been established that the Tribunal below was wrong in holding that the tenant had not breached the tenancy agreement by not responding to the email request for an inspection. Accordingly, the Appeal Panel is not satisfied that there was any error of law by the Tribunal below in refusing to award compensation of $860 for a breach of the tenancy agreement in this regard.
3. The landlords did not submit that there were factual or other non-legal errors in relation to this claim for "rent compensation" and, in any event, the Appeal Panel is not satisfied that the requirements of cl 12 of Sch 4 to the Act have been satisfied in this case.
4. As a consequence, the Appeal Panel concludes that the appeal in respect of "Rent Compensation" should be dismissed.

"Keys" - head 11

1. The appeal against the Tribunal's rejection of the eleventh head of claim for the cost of changing the locks as a consequence of the tenant returning failing to return the original keys to the premises was also not specifically dealt in the landlords' written material, apart from being identified as one of the "Orders Challenged or Appealed" by them. Nor was it the subject of oral submissions.
2. The Tribunal below in its reasons for decision held in relation to this head of claim: The landlord has replaced all external door locks with new barrels and keys. The reason for this was because the keys that were returned were not the same as the ones issued.
3. These findings of fact were not challenged on the appeal. Under cl 34 of the residential tenancy agreement, the tenant agreed "upon termination, to promptly and peacefully deliver up vacant possession of the premises, which shall include the handing over of all keys …".
4. The Appeal Panel is of the view that there is no error of law in the Tribunal's reasoning that, if the original keys were mislaid or no longer in existence, the failure to return the original keys was not in breach of the tenancy agreement where the replacement keys were handed over. Further, we also accept that there was no "legal requirement for a tenant to reimburse a landlord for the expense of a change of locks". Finally, the landlords have not established that there are any grounds for granting leave to appeal on any grounds other than a question of law in relation to the Tribunal's decision on head of claim 11.
5. Accordingly, the Appeal Panel proposes to dismiss the landlords' appeal in relation to "Keys".

Parties' Submissions

1. The appeal in respect of heads of claim 5 to 9, the repairs claims, was the main focus of the landlords' attention both in their written and oral submissions.
2. Although the challenge to the rejection of the repairs claims was formulated in various ways by the landlords, the heart of their appeal was that the Tribunal below fell into error by disregarding the evidence as to the state of repair of the premises at the end of the tenancy compared to their state at the commencement because the Tribunal: 1. Rejected as evidence, and consequently failed to have regard to, Mr Hall's record of what he observed when he inspected the premises on 6 January 2015, on the basis that his record was not a "compliant condition report"; and 2. Failed to consider what was shown in the photographs supplied by the landlords, on the basis that "photographs … are generally not as reliable as a compliant condition report" and "the effect of light, angles, zoom lenses, size of the photos detract from the reliability of photos as evidence".
3. It was then submitted, in effect, that this led the Tribunal wrongly to conclude that it could not "be satisfied on the evidence that the tenant has breached his obligations under section 51(3) of the [RT] Act as claimed by the landlord".
4. In the light of the conclusion we have reached, it is not necessary to set them out in more detail the landlords' submissions in relation to the repair claims. In particular, the question of whether or not the tenant was given "a reasonable opportunity to be present when [the condition report was] completed", within s 29(5) of the RT Act, is not determinative of whether the presumption under s 30(1) arises for the reason given below. Accordingly, the submissions on that issue on this appeal do not need to be recorded in detail here. In addition, the landlords made submissions concerning the laundry floor and the age of the premises and the appropriate conclusions to be drawn on those and other aspects of the repair claims. As these are to be remitted for determination by the Consumer and Commercial Division, it is inappropriate to comment on those matters further.
5. The tenant submitted in effect that the decision of the Tribunal below was correct both in law and in fact and the Member canvassed the breadth of the evidence thoroughly. The decision was also said to be consistent with the weight of the evidence and that the evidence relied upon by the landlords had little or no probative value. Nor was there any significant new evidence.

Condition Reports under the RT Act

1. The Tribunal below referred to a "compliant condition report" and "a condition report prepared in accordance with the [RT] Act" and appeared to rely on the absence of such a report as a reason for finding that the landlords had not established any breach by the tenant of s 51(3). In these circumstances, it is necessary to consider the sections of the RT Act which deal with condition reports.
2. The RT Act makes provision for condition reports in ss 29 and 30 as follows: 29 Condition reports (1) A condition report relating to the condition of residential premises on a day specified in the report must be completed by or on behalf of a landlord before or when the residential tenancy agreement is given to the tenant for signing. (2) Two copies of the condition report must be given by the landlord or landlord's agent to the tenant before or when the tenant signs the residential tenancy agreement. (3) The tenant must complete and give one copy of the condition report to the landlord or landlord's agent not later than 7 days after receiving it and both the landlord and the tenant must retain a copy of the report. (4) At, or as soon as reasonably practicable after, the termination of a residential tenancy agreement, the landlord or landlord's agent and the tenant must complete the copy of the condition report retained by the landlord or the tenant under this section, in the presence of the other party. (5) It is not a breach of subsection (4) for the condition report to be completed in the absence of the other party if the party completing the report has given the other party a reasonable opportunity to be present when it is completed. (6) A condition report is to be in the form prescribed by the regulations and may be included in a prescribed standard form of residential tenancy agreement. 30 Condition report evidence of condition of premises (1) A condition report that is signed by both the landlord and the tenant is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the day specified in the report. (2) This section does not apply: (a) to any matter that could not have reasonably been discovered on a reasonable inspection of the premises, or (b) to any statement in the report about which the tenant makes a written dissenting comment on the copy of the report completed by the tenant and retained by the landlord.
3. It can be seen that s 29 of the RT Act establishes a regime for the preparation of reports on the condition of premises the subject of residential tenancy agreements under the RT Act. These are known as "condition reports" and, as provided in subs (6), their form is prescribed by cl 6 and Sch 2 of the Residential Tenancies Regulation 2010 (NSW). The first part of the report is to be completed by both parties at the beginning of the tenancy: subss (1), (2) and (3). Copies of the report are to be kept by both the landlord and the tenant: subs (3). The second part of the report is to be completed at the end of the tenancy by each party on the other party's copy in the presence of the other party: subs (4). To take account of the situation where, on termination, one party fails to fulfil its obligations to complete the condition report in the presence of the other party, subs (5) provides it is not a breach of the subs (4) if the party who is present has given the other party a reasonable opportunity to be present when the condition report is completed.
4. Section 30(1) contains a rebuttable evidentiary presumption concerning condition reports. If a condition report is signed by both landlord and tenant it is presumed to be a correct statement of the state of repair or general condition of the residential premises on the day specified in the report, in the absence of evidence to the contrary.
5. At least three significant features of this presumption flow from the terms of s 30(1). First, the presumption only arises if the condition report "is signed by both the landlord and the tenant". If it is not signed by both parties, the fact that the other party was given a reasonable opportunity to be present when the report was completed under s 29(5) is irrelevant. In other words, giving the other party a reasonable opportunity, in accordance with s 29(5), to be present at a termination inspection and the completion of the condition report does not attract the operation of the presumption in respect of that report. For this reason, the discussion by the Tribunal below of whether the tenant was given a reasonable opportunity to be present at the inspection on 6 January 2015 was not relevant to the question of whether the condition report was presumed to be correct.
6. Secondly, s 30(1) establishes only a rebuttable evidentiary presumption that certain information is correct. This follows from the inclusion of the qualifying words "in the absence of evidence to the contrary" in the subsection. Section 30(1) does not render a condition report completed by only one party and not signed by the other party inadmissible, or unable to be relied upon, to establish the condition of the premises at the relevant time. In so far as a party uses a form similar to a condition report to record that party's observations as to the state of the premises at the relevant time, it can be relied upon and the Tribunal should treat it as it would any other record of observations by a witness.
7. Thirdly, s 30(1) does not deprive evidence, other than a condition report signed by both parties, of cogency or reliability. The statement made by the Tribunal below that "[a]lthough photos can be useful evidence, the most cogent evidence is a compliant condition report" may be true in a particular case, but that will depend on all of the evidence considered in the particular circumstances of the case. Such a statement is not correct as a proposition to be applied in all cases or even as a general rule to be applied without regard to all of the evidence. Section 30(1) does not provide a basis for rejecting or ignoring photographic or other evidence as to the state of the premises at the relevant time, where that evidence happens not to be contained in a condition report signed by both the landlord and the tenant.
8. In the present case, it appears to the Appeal Panel that, in the passage from its reasons for decision quoted above at [12], either: 1. The Tribunal applied s 30 of the RT Act to conclude that, in the absence of a condition report signed by both parties, the Tribunal was justified in not considering and assessing the other evidence including photographs and the observations by Mr Hall recorded in a form like a condition report; or 2. if it did consider and assess that evidence, the Tribunal failed to give any, or any adequate, explanation in its reasons why it concluded that the photographs and the observations by Mr Hall were insufficient in this case to establish that the tenant had breached his obligations under s 53(1).
9. In so far as the Tribunal was of the view that s 30 of the RT Act justified the Tribunal's not considering or assessing the other evidence, this was an error of law. It involved a misunderstanding of the operation of ss 29 and 30, which is explained above. Section 30, on its terms, does not require the Tribunal to disregard evidence of the condition of the premises other than a "compliant condition report" nor does it justify that other evidence being treated as irrelevant or unreliable. Furthermore, the presumption of correctness of a condition report which can arise under s 30(1) depends on whether the condition report was signed by both parties not on whether a party was given a reasonable opportunity to be present at the inspection.
10. To the extent that the Tribunal did consider and assess the photographic and other evidence relied upon by the landlords, the Tribunal's reasons for decision are inadequate to satisfy the duty of the Tribunal to give proper reasons. The Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [43] to [64] explained how that duty arises and the nature and content of the duty. In the present case, the Tribunal did not refer to the evidence and material as to the state of the premises at the end of the tenancy and then make findings of fact based upon that evidence. The reasoning of the Tribunal such as that found in the following paragraph demonstrates the inadequacy: Although photographs have been provided they are generally not as reliable as a compliant condition report. The effect of light, angles, zoom lenses, size of the photos detract from the reliability of photos as evidence. Absent a condition report prepared in accordance with the Act and in light of all items in dispute by the tenant, the Tribunal cannot be satisfied on the evidence that the tenant has breached his obligations under section 51(3) of the Act as claimed by the landlord.
11. The photographs were not specifically considered at this point. The general unreliability of photographs is merely asserted. It is true that later, in what appears to be an alternative basis for rejecting the claim in relation to damage to the floorboards, the Tribunal does consider some of the photographs and concludes that this probably means that the floors have been damaged by normal day to day use. The unreliability of photographs is not mentioned in the later context. This later, partial consideration of the photographs does not remedy the failure to give proper reasons for the decision as a whole. The consideration of scratching is unclear as to what particular scratching is being considered and whether it applies to all the scratching claimed or only part.
12. Next, in the Tribunal's reasons, the absence of an end of tenancy condition report signed by both parties is noted but no mention is made of the observations of Mr Hall recorded on a form similar to a condition report. The evidence is not identified with any degree of specificity and no explanation is given as to why findings of fact have not been able to be made. The conclusion that the Tribunal cannot be satisfied that the tenant has breached his obligations is then just asserted.
13. These reasons are inadequate. The evidence is not specifically referred to. The findings of fact are not set out nor is there any explanation of how they were arrived at based upon the evidence. In so far as findings of fact could not be made there was no explanation by reference to the evidence as to why findings could not be made.
14. These deficiencies are not corrected by the later reference to the floor scratching, referred to above, or the buckled laundry floor. In relation to the laundry floor, the claim for the buckled laundry floor was rejected on the alternate basis of fair wear and tear given the age and nature of the floor and the fact of water falling on the floor from time to time during normal day to day use. The conclusion that "the water may have damaged the floor" does not necessarily follow from the findings of fact made. Once again the reasons do not adequately set out the evidence and properly explain how any findings of fact were arrived at.
15. Applying a wrong principle of law and the failure to give proper or adequate reasons for a decision both involve errors of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]. Consequently, in the present case, the landlords do not require leave to appeal on these grounds which were effectively raised in the landlords' submissions.
16. The Appeal Panel is of the view that the Tribunal below made one or other or possibly both of the errors of law identified above in respect of the repairs claims, being those made in heads of claim 5 to 9.
17. Accordingly, the appeal should be allowed in respect of those claims.
18. The Appeal Panel notes that the claim for repairs to timber floors (head of claim 7) and the claim for water damage to laundry floor (head of claim 8) have been given separate consideration by the Tribunal. Nonetheless, given the Tribunal's flawed approach in relation to the general unreliability of photographs and the erroneous reliance on s 30(1) as a basis for the apparent rejection of the Mr Halls observations concerning the state of the premises on 6 January 2015, there is a significant risk that the Tribunal's alternative, fair wear and tear conclusions in relation to claims 7 and 8 were also infected by those errors. Accordingly in our view, justice requires that those claims 7 and 8 should be remitted to the Consumer and Commercial Division to be considered, together with claims 5, 6 and 9, afresh and in their entirety, that is, both as to liability and quantum.
19. In order to ensure that there is no unfairness to either party when these claims are reconsidered, the Appeal Panel is of the view that it would be appropriate to allow the parties to rely not only on the evidence already filed but also to permit them to rely on such evidence in addition to or in substitution for that evidence as they wish. That evidence should be strictly limited, however, to matters relevant to heads of claim 5 to 9.
20. In these circumstances, it is not necessary for us to consider the other arguments raised by the landlords in respect of the repair claims.

Additional Matter

1. There is one additional matter raised by the landlords in their appeal which deserves comment. It was submitted that the Tribunal fell into error when it effectively excluded the quotations tendered by the landlords as relevant evidence holding that they were "insufficient evidence to prove the quantum of the actual loss".
2. Quotations are not necessarily insufficient evidence to prove quantum of loss. It will depend on, among other things, the nature of the work to be done, the nature and content of the quotation, the circumstances in which it was prepared, the genuineness of the quotation and the expertise or experience of the person who prepared it. Each case should be considered on its own facts. There is no general rule that quotations cannot be relied upon to establish quantum of loss or damage.

Conclusion

1. For these reasons, we propose to uphold the appeal in respect of heads of claim 5 to 9 but we shall otherwise dismiss the appeal.

Orders

1. Accordingly, the Appeal Panel orders: 1. Time in which to lodge the appeal is extended to 12 May 2015. 2. The appeal is allowed in respect of the following claims: 5. Internal cleaning and window cleaning - $678.00 6. Garden beds and edging - $990.00 7. Repairs to timber floors - $3061.92 8. Water damage to laundry floor - $3280.00 9. General damage - $4700.00. 1. The proceedings are remitted to the Consumer and Commercial Division for determination of the claims referred to in the preceding order. 2. Otherwise, the appeal is dismissed.
2. To facilitate the preparation of the remitted part of the proceedings for hearing, the Appeal Panel directs that: 1. The appellants are to file and serve any further evidence in addition to or in substitution for the evidence that was before the Tribunal below in proceedings RT 15/04632 and any written submissions on or before 30 September 2015; 2. The respondent is to file and serve any further evidence in addition to or in substitution for the evidence that was before the Tribunal below in proceedings RT 15/04632 and any written submissions on or before 14 October 2015; 3. The appellants are to file and serve any evidence or submissions in reply on or before 21 October 2015.

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

Amendments 16 September 2015 - Corrected paragraph reference to authority at [41] 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: 16 September 2015