This is an appeal by the appellant tenants in respect of proceedings regarding their residential tenancy agreement with the respondent landlords in the Tribunal's Consumer and Commercial Division.
On 9 February 2022, the Tribunal determined the tenants' application pursuant to s 175 the Residential Tenancies Act 2010 (NSW) for return of their bond from the landlords. The Tribunal gave lengthy reasons indicating that, in sum, it was satisfied that a comparison of the ingoing and outgoing condition report provided by the landlord's agent, together with contemporaneous photographs taken to support those reports identified in the landlords' agent's oral evidence, satisfied it that the premises were not returned to the landlord at the end of this lengthy tenancy in the state required, notwithstanding a proper allowance for fair wear and tear.
The landlords succeeded only to a limited extent, however. That extent was in respect of the following issues:
1. An allowance for an oven rack in the sum of $13.50. The Tribunal also noted that the appellants retain the oven rack and without making an order to this effect, that they should return it to the landlords, a point to which we will return;
2. Cleaning, after deduction for "fair wear and tear items", in the sum of $495 which was a partial allowance of the total claim of $580; and
3. Gardening in the sum of $170.
The tenants had sought the return of their entire bond in the sum of $2800, the landlord had sought $794.95 in total.
In the appeal, which was lodged in time, the appellants challenge the Tribunal's decision on 39 grounds, with an additional catchall indicating further grounds may be added later. Thankfully, none were.
Prolixity of grounds of appeal is of no assistance to the Appeal Panel, as an extravagant or unnecessary number of grounds of appeal fails to assist in resolution of the real issues in the appeal: Salmon v Osmond [2015] NSWCA 42 at [35]. Further, as Ipp JA stated in Ohlstein v E & T Lloyd [2006] NSWCA 226 at [61]:
"An extravagantly excessive number of causes of action, or grounds of appeal, or particulars of negligence, are often a sign of serious problems with the health of the case being advanced. At the very least, they demonstrate a lack of appropriate consideration in formulating the issues and are obstacles in the path of justice. Apart from causing unnecessary delay and costs, the scattergun approach obscures the true issues, camouflages the pleader's best points, and unnecessarily complicates the task of the judge."
If grounds of appeal are prolix, unnecessary, or repetitive, the grounds may be summarised by an appellant court (or the Appeal Panel) to condense the grounds into appropriate issues for consideration: Sze Tu v Lowe [2014] NSWCA 462 at [101]-[106].
To summarise the grounds, we are satisfied that they are encapsulated by the following:
1. An allegation that the Tribunal constructively failed to exercise jurisdiction or failed to provide adequate reasons because the Tribunal failed to engage with the appellants' case, including the evidence lodged by the appellants at first instance and in the appeal, consisting of over 400 pages;
2. That the Tribunal denied the appellants procedural fairness by refusing to allow them to properly participate in the hearing process; and
3. That the Tribunal erred by referring to questions of "damage", "repair" or "fair wear and tear" when considering the condition of the garden at the end of the tenancy, as well as issues such as cleaning;
4. That an invoice relied upon by the landlords for cleaning, and accepted by the Tribunal, was "fake". The appellants sought to rely on a print of a "Linked in" page, said to relate to the landlords' agent's husband, which indicates he is involved in a business which carries out "property maintenance and repair." The tenants say the Tribunal should have found, and we could find, that meant the cleaning invoice relied upon by the landlords from an apparently unrelated business was fraudulent, because it must have been created or influenced by the landlords' agent's husband. In submissions, Mr Hanna for the appellants seemed, at least tacitly, to acknowledge the significant reasoning gap that assertion entailed. He said that he could prove the connection if given more time. We were not minded to do so. The assertion is, on the material before us, baseless and should not have been made.
5. The appellants also sought leave on each of the bases set out in C 12 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), which we set out in full below.
[2]
Conduct of the appeal
In preparation for the appeal, the parties were directed to lodge and serve the material they relied upon. Specifically, the parties were directed to lodge the evidence they gave the Tribunal below; any fresh evidence they sought leave to rely upon; their written submissions in respect of the appeal and the sound recording and a partial transcript of the hearing first instance, if what occurred at the hearing was relied upon.
The appellants were directed to lodge and serve their material by 4 March 2022, the respondents to lodge their material by 18 March 2022, and there was provision for the appellants to make written submissions in reply 25 March 2022. The hearing was then listed for 2 May 2022.
The appellants did not comply with the directions. Indeed, it was only on 26 April 2022 that the Tribunal received the appellants' bundle of material, and it is apparent that the respondents received the documents at about the same time. Importantly, of what was a voluminous bundle, all but approximately 40 pages of the documents was the material before the Tribunal at first instance. This included hundreds of unreferenced, and undated photographs.
No explanation was provided by the appellants for the delay. Nor did they seek an extension of time to comply with the Tribunal's directions or an adjournment of the hearing.
Late in the week prior to the hearing, however, the respondents sought an extension of time and, whilst it was not specifically raised, such an extension would have necessitated an adjournment of the hearing.
The Tribunal indicated in correspondence that those issues would be considered at the outset of the hearing before us, and that the appellants would need to be able to explain their delay.
Clearly, it was not the respondents who primarily needed an extension of time, given the appellants' delay and the onus upon them to satisfy us that the appeal should succeed. It is the appellants who primarily required an extension.
We raised that with the appellants at the outset of the hearing. The explanation we were given for the delay in complying with the Tribunal's directions was that they had experienced health issues and technological difficulties.
Fortunately for the appellants, given an extension or adjournment were by no means otherwise certain, the respondents acknowledged they had the opportunity to review the appellants' material prior to the hearing, that there was nothing else they needed to lodge in response (having lodged some documents with their Reply to Appeal) and they could meet the appellants' submissions orally at the hearing. The hearing proceeded on that basis.
In respect of the nature of the appeal, we note that an appeal to the Appeal Panel does not automatically provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
To succeed in an appeal, the appellants must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act s 80(2). Leave is required to agitate any alleged error which is not an "error on a question of law": NCAT Act, s 80 (2)(b).
In Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, the Court summarised the principles relevant to a grant of leave at [28] (citations omitted):
Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general or public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
Where the appeal is from a decision made in the Consumer and Commercial Division (other than in respect of interlocutory decisions), there is a further qualification to the possible grant of leave in that we may only go on to consider a grant of leave in the broader sense if we are first satisfied that the elements of cl 12(1) of Sch 4 of the NCAT Act are made out, in that the appellant may have suffered a substantial miscarriage of justice on the basis that:
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).
[3]
Post hearing submissions
After we had reserved, the appellants submitted further written submissions, unbidden by us.
As Mason J noted in Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 at [29]:
The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.
To similar effect, see Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 per McHugh J at [29] (with whom Gleeson CJ agreed):
Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing - ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.
We also note the similar guidance of a unanimous Court of Appeal in Bale v Mills [2011] NSWCA 226 at [57] to [61] that not only is sending submissions without leave to the court (here the Appeal Panel) wrong, but also the court (here the Appeal Panel) may and generally will ignore what has been sent.
For these reasons we have paid no regard to the submissions of the appellants made after the hearing.
[4]
Grounds One to Three
In respect of the grounds of appeal, which we referred to earlier, we are satisfied grounds one to three raise questions of law, being whether the Tribunal properly engaged with the appellants case, gave adequate reasons, denied the appellants procedural fairness, or asked itself the wrong question. However, we are not satisfied any appellable error is demonstrated on the material lodged by the appellants.
The Tribunal was entitled to rely upon the evidence of the landlords in the form of the ingoing and outgoing condition reports together with the support of contemporaneous photographs, as well as the oral evidence it recorded as having been taken, to make the orders it did (save potentially in respect of the oven rack).
Whilst it is true that the Tribunal must engage with the appellants' case and provide reasons for determining the matter in a way contrary to the appellants' case as relevant, the way the matter was conducted at first instance is relevant to what the Tribunal was required to engage with and the reasons it needed to give: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728) per Samuels JA.
Despite being directed to provide the sound recording and a partial transcript if what occurred at the hearing at first instance was relied upon, the appellants have declined to do so. At paragraph 3 of their submissions, commencing at page 2 of their paginated bundle, the appellants make it clear that this was a conscious choice made by them having regard to the way they decided to conduct the appeal.
In the absence of such a recording and partial transcript, where one was directed and the appellants elected not to provide it, we cannot see how the appellants can establish the errors contended for.
The appellants assert that the Member acknowledged he had not viewed the relevant material. That allegation cannot be made out without the transcript. Even if it had been demonstrated, the time at which it was said, i.e., at the beginning of the hearing or immediately before the decision was made, would have been relevant.
It is not correct to say that the Tribunal made no reference to the appellants' material, as they allege. In the reasons, the Tribunal specifically refers to and accepts the appellants' evidence that their son-in law mowed and trimmed the garden before the appellants vacated the property: reasons at [4(13)]. So too did the Tribunal refer to and clearly accept that the appellants had professional cleaners in to clean the premises and arranged for it to be fumigated: reasons at [4(14)]. Relevantly, in a finding not directly challenged by contrary evidence, the Tribunal also found that the appellants' cleaner was unable to complete their work due to being booked to return whilst the fumigation was undertaken; reasons at [4(14)].
The Tribunal also clearly considered both parties' photographs: reasons at [5]. It specifically addressed the difficulty caused by neither party having, prior to the hearing, clearly identified when those photographs were taken, or what they depicted: again at [5] of the reasons under the heading "use of photographs":
5. The parties rely on many photographs for the start and end of the Agreement OCR condition, which suffer from defects: there is no statement, sworn or otherwise, setting out matters which explain them and give evidentiary weight, including, by whom they were taken, when they were taken, where they were taken, and what each photograph shows. Ms Flanagan clarified at the hearing which of the photographs in Exhibit 1 were the ICR photos and which were the OCR photos. With that assistance I have done my best to understand the photographs, and relevantly, I can see in the OCR photographs that the front lawn has died back and there are weeds in the lawn and gardens, and the garden is overgrown. It would have been helpful if there had been a narrative from Ms Flanagan identifying which photos were ICR and OCR and what they relevantly showed.
Again, without the transcript, we cannot identify error in the Tribunal's finding.
Nor can we be satisfied that the appellants sought to, but were denied the opportunity to explain their photographs, or that the hearing at first instance was otherwise conducted in a way which denied the appellants procedural fairness, as alleged.
The reasons of the Tribunal, spanning over seven pages, address the relevant evidence of the parties and make necessary factual findings, identify the law to be applied, and apply it in a rational and explained way to reach a conclusion on the application before it. They are more than adequate in the circumstances. Certainly, they have proved adequate to determine the appeal: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (at 260) per Kirby P; (at 268 - 269) per Mahoney JA; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 444) per Meagher JA.
Without the transcript, we are not able to discern whether any specific challenge in respect of the reasons is made out on the basis that an issue was advanced for determination at the hearing and was not, or was insufficiently, dealt with.
As to the suggestion that the Tribunal asked itself the wrong question, by its references to "damage", "(dis)repair", and "fair wear and tear" in respect of various issues, we do not think that allegation of error is made out or had any material effect on the decision. It may be inapt, we think, to refer to those terms in respect of such matters as cleaning and gardening. There is a separate obligation on the tenant as to cleanliness in the RTA: s 51(2)(a). Maintaining the lawn and gardens would relate to the tenants' obligation to leave the premises in the same relative condition as they took it in: RTA s 51(3)(b).
However, the reasons of the Tribunal should be read as a whole and not "to parse and analyse them with an eye to error": Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30]. We are particularly mindful that these reasons were prepared in the Tribunal's Consumer and Commercial Division's busy residential tenancies list and provided to the parties on the day of the hearing.
It is apparent from a fair reading of the reasons that the Tribunal considered the photographs relied on by both parties, assisted by the evidence of the respondents' agent and the ingoing and outgoing condition reports and then did its best on the evidence before it to resolve the dispute by determining the extent to which the tenants had failed to meet their obligations under the RTA and their agreement with the landlords. It then determined what orders were appropriate. That the Tribunal carefully assessed the respondents' evidence as to quantum, and appropriately discounted it where warranted, also demonstrates a genuine consideration of the evidence, and claims before it.
These grounds are not made out.
[5]
Leave to appeal
In respect of the other allegations of error, they require leave to appeal.
In that regard, the quantum of the claim and decision at first instance is a relevant consideration, due to the requirement on us to implement the practice and procedure of the Tribunal to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: NCAT Act s 38(4).
The Court of Appeal held in Gibson v Drumm [2016] NSWCA 206, at [20]:
Another consideration in determining whether to grant leave is the sum in issue in the proposed appeal: Dunn v Ross Lamb Motors (1978) 1 NSWLR 26. Although there is no minimum amount specified in the rules of court below which leave will not be granted, the Court has refused leave in matters because of the small amount involved, such as where it was considered the grant of leave was not warranted having regard to the appropriate allocation of court resources and the disproportionate costs to the parties: see Wilson v Tetley [2003] NSWCA 124; Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284. Accordingly, whilst the mere fact that a small amount is in issue will not necessarily disentitle a person to a grant of leave, having regard to the case management principles enshrined in the Civil Procedure Act, it will nonetheless be a relevant factor and in an appropriate case may be decisive.
In our view, whilst the Civil Procedure Act does not apply in this Tribunal, those comments are still apt to a proper consideration of a grant of leave in the Appeal Panel. The requirements of ss 36 and 38 of the NCAT Act encapsulate similar considerations.
We acknowledge that the Tribunal ordered that the respondents be compensated for the oven rack and suggested that it be returned. This had the potential to work an injustice (however minor). However, the respondents submit, and the appellants did not disagree, that the oven rack has not in fact been returned. Nor was there any suggestion it will be. There is no injustice in these circumstances.
Similarly, for the reasons outlined above, there is no issue of general or public importance or error reasonably clear on the face of the record warranting leave, particularly over such a small claim.
On that basis, the appellants should be refused leave.
Our orders, then, are as follows:
1. Leave to appeal is refused; and
2. The appeal is dismissed..
[6]
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: 20 May 2022