Harvey v Beachcomber Drive Pty Ltd

NCAT Appeal Panel|2022-01-27

Introduction

The appellant Ms Harvey (the Tenant) appeals from two decisions of the Consumer and Commercial Division of the Tribunal (Tribunal) of 25 November 2021.
The first decision was in matter RT 21/24766. That was the respondent landlord's (the Landlord) application for termination of the residential tenancy agreement and possession of the premises (the Landlord's Claim). The landlord had given the Tenant a notice of termination based on the expiration of the fixed term of the tenancy.
The Tenant claimed that the notice was retaliatory in accordance with s 115 of Residential Tenancies Act 2010 (NSW) (RT Act).
The Tribunal rejected the Tenant's claim of retaliation and, after a hearing on 16 September 2021; on 4 November 2021 the Tribunal terminated the tenancy agreement immediately, but suspended its order that the Tenant give vacant possession of the premises until 11 November 2021.
The landlord took possession of the premises after the execution of a warrant on 16 December 2021.
The second decision was in matter RT 21/35758. That was the Tenant's application against the Landlord (the Tenant's Claim) seeking orders that:

the Landlord undertake repairs to the subject premises;
she be given a rent abatement;
she be awarded compensation of $15,000.

After a hearing on 16 September 2021, on 4 November the Tribunal:

refused the application for repairs;
awarded a rental rebate of 50% for the period 24 March to 7 July 2021 and a rebate of 100% for the period 28 June to 7 July 2021; and
ordered the landlord to pay her compensation of $1,500.

For the following reasons, in relation to both the Tenant's appeal in respect of both the Landlord's Claim and to the Tenant's Claim: 1. to the extent that the appeal raises errors of law, the appeal is dismissed; 2. to the extent that the appeal raises errors other than errors of law, leave to appeal refused.

Background

It is appropriate to set out a brief history of the matter. The Tenant lived in the subject premises pursuant to a series of residential tenancy agreements since 6 July 2018. The relevant residential tenancy agreement was signed on 28 February 2021. The term of the agreement was six months, and the weekly rent $425. The Tenant lived in the premises with her two young children.
On 24 March 2021, the Tenant advised the Landlord that she had found mould on the ceiling and that she thought there may be a leak in the roof.
Both parties subsequently commenced proceedings, and on 11 June 2021 the Tribunal issued work orders in relation to repairs of the roof and remediation of the mould.
A hearing of the Tenant's Claim and the Landlord's Claim was held on 16 September 2021.
As the Tribunal noted at [7] of the Decision: 8. The [Tenant] claim[s] for a rent reduction is from 24 March 2021 to the hearing date of 16 September 2021. … The [Tenant] claims that everything that she owns is in the property and is contaminated and that the [L]andlord did not comply with the orders made by the Tribunal of 11 June 2021. The [Tenant] occupied the property for 3 years and always paid the rent on time and since the leak happened in March 2021 and the requesting of repairs and the fixing of the roof that 30 days later a termination notice was issued. … 9. The [Tenant] told the Tribunal that the claim for [sic - was for] rent reduction and carpets of the property. The [Tenant]'s claim concerns compensation for mould that was in the rooms, cupboard and that mould had damaged items of the [Tenant]. She told the Tribunal that she had occupied the property for three years, she had moved from Sydney to Ballina, and paid her rent on time. The [Tenant] has a 10 years and 6 years old children. The roof had been in disrepair and the air-conditioner leaks causing the mould in the cupboard. On 28 June 2021 the [Tenant] and her children left the property and attended temporary accommodation and remains in that accommodation. She told the Tribunal that she is suffering financial hardship as she is paying "two rents" and is in arrears with her temporary accommodation. 10 She has left her personal items at the property as they have been contaminated by mould.

Notice of Appeal

The Tenant filed a Notice of Appeal on 10 November 2021. The grounds of appeal are stated as: Error of law, error of fact, omission, substancial evidence and witnesses not taken into consideration Misled by respondent Misinterperet evidence reports A failure to disclose evidence from the respondent that would of had a substancial impact on the outcome Mistaken facts, version of events, words and dates (spelling as in original)

Reply to Appeal

In its Reply to Appeal filed 22 November 2021, the Landlord, in summary, states that Tenant has not identified any error of law or errors of fact to which it is possible to reply. The Landlord says that each of the various grounds fail to identify what document or evidence has not been considered. The Landlord says that the appeal should be dismissed.

Materials before the Appeal Panel

A large amount of material was provided by the Tenant in support of her appeal. This included literally hundreds of pages of evidence which we understand were before the Tribunal, and bundles of materials filed respectively on 23 November 2021, 8 January 2022 and five bundles of material received on 27 January 2022, the day of the hearing. These materials included but were not limited to a report of AEML Pty Ltd based on mould samples collected on 10 November 2021 (that is after the hearing before the Tribunal), a quotation of Mould Men dated 18 November 2021 offering to remediate any mould present, photographs taken in the period 21 May 2021 to 19 November 2021 and annotated by the Tenant, a building report of Barling Constructions Pty Ltd dated 6 July 2021, an invoice of Big W dated 28 December 2021, various receipts and invoices (many dated well after the Tribunal hearing), statutory declarations 2021, a printout utilising publicly available software of the Tenants Union of NSW showing that the median weekly rent for tenancies for postcode 2478 (that is Ballina and Coolgardie NSW) in the period February to August 2021 is $420.
There were two difficulties with some of these materials. The first was that the various bundles of materials provided on the day of the hearing had been provided in breach of directions made by the Appeal Panel.
The greater difficulty was that parts of the materials were fresh evidence, had not been placed before the Tribunal and indeed post-dated the Tribunal hearing. And some of that material was not relevant to the appeal. For instance, photographs of the interior of the premises taken in December 2021 are not relevant to a Tribunal hearing conducted in September 2021 and determined in November 2021.
As the Appeal Panel held in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]: … the test of whether evidence is reasonably available 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 the evidence.
We are not persuaded that the evidence which the Tenant now seeks to rely upon was not reasonably available at the time of the hearing. The Tenant states in her Notice of Appeal that her ability to find all the documents she needed had been affected "due to the impacts of this case", and that she "couldn't get through a single day without breaking down from exhaustion and stress". She also said she sought an adjournment of the Tribunal hearing, which was refused, and requested that a summons be issued to the Landlord for the production of certain documents, which application was also refused (on the basis that it was in the nature of a "fishing expedition" and was oppressive in scope).
We do not accept these explanations for allowing this new material as part of the appal. In the first place, whatever impact the case may have had on the Tenant, this did not prevent her from filing literally hundreds of pages for the Tribunal hearing. Secondly, and more importantly, no persuasive reason was given as to why the Appeal Panel should accept materials which post-dated the Tribunal hearing.
As the Tribunal Guideline 1 dated November 2019, Internal Appeals, states: 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.
In the circumstances, we have had no regard to materials which were not before the Tribunal.

Nature of an appeal

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

A question of law

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. These include (but are not limited to):

whether there has been a failure by the Tribunal to provide proper reasons;
whether the Tribunal identified the wrong issue or asked the wrong question;
whether a wrong principle of law had been applied;
whether there was a failure to afford procedural fairness;
whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;
whether the Tribunal took into account an irrelevant consideration; and
whether there was no evidence to support a finding of fact.

Leave to appeal

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

The Tenant's appeal in relation to the Landlord's Claim

Preliminary

We raised with the Tenant the utility of her proceeding with her appeal in relation to the Landlord's Claim in circumstances where: 1. a warrant had been executed and she was no longer living in the premises; and 2. she told us that she was not seeking to return to the premises to live there.
The Tenant said that it was appropriate for the Appeal Panel to hear the appeal in relation to the Landlord's Claim because the orders of the Tribunal of 12 June 2021 had not been complied with. Those orders relevantly were that the Landlord, in a proper and workmanlike manner, was to: 1. repair the roof on or before 9 July 2021; and 2. on or before 23 July 2021, engage a professional mould removal company to remove and treat all mould in the residential premises, including treating the tenant's furniture and other goods.
The Landlord said that the orders had been complied with, noting that the Tribunal found at [22] of the Decision that preventive roof maintenance had been carried out on 6 July 2021 and that the premises were now fit for habitation: [22], [23].
We do not accept that the issues of roof repair and mould treatment have any relevance to the Tribunal's determination of the Landlord's Claim.
As noted, the Landlord had served a notice of termination based on the end of the fixed term of the tenancy. Unless the Tribunal found that the notice was invalid (which does not appear to have been in issue before the Tribunal) or was retaliatory (which was in issue, with the Tribunal finding that that notice was not retaliatory) then the Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice: RT Act, s 84(3).
As noted above, s 80 of the NCAT Act states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).
In Prendergast the Appeal Panel stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised.
We have undertaken that exercise, but we cannot identify any alleged error of law in the Notice of Appeal, or in the oral submissions made to us at the appeal hearing.
We see no error of law in the Tribunal terminating the residential tenancy agreement in those circumstances, nor in ordering the Tenant to give the Landlord vacant possession of the premises within seven days.
And, applying the principles in Collins v Urban , we are not satisfied that the Tenant has identified an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

The Tenant's appeal in relation to the Tenant's Claim

Preliminary

As noted above, the Tribunal:

refused the application for repairs;
awarded a rental rebate of 50% for the period 24 March to 7 July 2021 and a rebate of 100% for the period 28 June to 7 July 2021;
ordered the landlord to pay her compensation of $1,500.

The Tenant appeals in relation to each of those matters which we now consider in turn.

Refusal of the application for repairs

The Tenant says that the Tribunal ought to have made a further work order to give effect to the earlier order of 11 June 2021 to repair the roof by 9 July 2021 and to engage a professional mould removal company to remove and treat all mould in the residential premises, including treating the tenant's furniture and other goods on or before 23 July 2021.
In the Decision, the Tribunal found that on 6 July 2021 Barling Constructions Pty Ltd had attended the premises and undertook preventative roof maintenance, and that the premises were fit for habitation from that date.
There are no findings in the Decision in relation to the engagement of a mould removal company. However, the Landlord submitted (and this was not disputed by the Tenant) that on 7 July 2021 it asked MOULD MEN to undertake a mould treatment of the Tenant's belongings. MOULD MEN would not do so and enquiries were made with a number of mould specialists and 9 July 2021 the Landlord's agent asked the Tenant to allow access to ADAM THE MOULD GUY to attend the premises on 10 July 2021 to carry out testing and to treat the Tenant's goods and furniture. However, the Tenant refused access. Various attempts were made by the Landlord's agent to arrange access for ADAM THE MOULD GUY. Access was not permitted until 19 August 2021, and a report prepared dated 31 August 2021 (the Mould Guy Report).
The Mould Guy Report was not before the Tribunal; it had been filed by the Landlord, but objection had been taken to its tender by the Tenant who said at the hearing that she had not enough time to read it and to respond to it. Accordingly, the Tribunal did not admit the Mould Guy Report.
We discussed this with the parties at the appeal hearing, who agreed to us reading the Mould Guy Report. Relevantly the report states that pre- and post-treatment samples were taken from the kitchen counter top, the timber bedframe one bedroom and a bedroom window sill. The Mould Guy Report does not describe the treatment that took place. The Mould Guy Report concludes: In summary; Air and surface sample testing shows mould within this [sic - these] premises was below concerning levels prior to treatment and reduced further to within or below normal mould ecology levels after treatment. Visual inspections showed no concerning mould issues throughout the premises with exception to the section of carpet tack-strip and recommended to be replaced. Taking into consideration the issue of highly elevated mould levels that are occurring naturally in the environment, this [sic - these] premises did not present hazardous or concerning mould issues similar to what we are currently finding in most situations throughout the Northern Rivers region. The cause of moisture in the carpet remains unknown as no evidence of structural or plumbing failure can be detected. Carpet and underlay require drying and monitoring for continued moisture, investigations pending.
No findings about this were made by Tribunal, understandably, as the Mould Guy Report had not been admitted into evidence.
The Tenant submitted that: It makes no sense that these orders made in JUNE have not been enforced or complied with considering they are the entire reason for this matter and orders are enforceable by Law. An urgent hearing for health and safety was granted quickly. If the application was lacking information an urgent hearing would not have been accepted. The orders have become irrelevant in reflection of the decisions made on the 4th of NOVEMBER 2021. The initial application explains the extent, losses, health affects, safety and worry for the integrity of the building over all. It clearly sets out losses - thoroughly. Including amounts and listed items. Despite this NO COMPENSATION FOR THE DAMAGES CAUSED BY THE LANDLORD. This list has continued to grow since MARCH nothing has been properly rectified. Leading to whole premises contamination to Toxic Mould forcing us into emergency accommodation that I cant afford. We have just had to suck it up and take the brunt as the owners fail their duty and the FAILURE to apply the law. … (emphasis and spelling as in original)
The Tenant then goes on to submit that: No Professional reports have been received from the respondent. A professional report upon completion of work orders is to inevitability prove the orders have been complied with-wholly, properly and professionally. Clearly they haven't been, as the respondent has failed to provide any professional or accurate report. There are reasons why these have not been provided. Especially considering the orders were made by the Tribunal. The non compliance from the respondent has been over looked by the member. No Law has been applied to this. No ramifications for the landlords and no compensation to the tenants including minors that were not considered. This is Allowing the landlords to be above the law, in which NCAT has a duty to apply. The same Law is applicable to EVERYONE. This miscarriage has severely impacted our lives further - every single day. (emphasis as in original)
While it is correct that the Landlord had not complied with the order to remediate the mould by 23 July 2021, it appears that the order was complied with by 19 August 2021, that is, it had been completed by the time of the Tribunal hearing on 16 September 2021. However, on the materials before us the reason for the delay was the lack of co-operation of the Tenant in providing access to the premises.
In the circumstances, it appears that the mould remediation had been undertaken, and we see no error in the Tribunal not ordering further remediation.
The submission of the Tenant that there was no professional report obtained by the Landlord is not correct. The Landlord had the Mould Guy Report (at least) and wished to rely on that report at the Tribunal hearing. The Tenant objected to the Tribunal receiving that report, which objection the Tribunal accepted.
In order to give finality to the proceedings, we have accepted the Tenant's further evidence on this issue. As was outlined in her submissions, the tenant did not agree that the work order had been complied with and submitted that her goods had not been treated. The Tenant sought to rely on the AEML Pty Ltd mould analysis that she obtained after the hearing. The Tenant's mould analysis was admitted into evidence on the appeal, as the Landlord's report had been admitted also. The AEML analysis states that a total spore count of 1440 (Master bedroom), 867 (Bedroom 1) had been detected on 11 November 2021. The control count, being taken outdoors, detected a 2533 total spore count. The AEML analysis was provided to MOULDMEN PTY LTD and MOULDMEN PTY LTD stated "we recommend remediation take place to lower the indoor spore count to a level lower than 1000 colony units".
Having regarded both the Landlord's and the Tenant's fresh evidence concerning the minor presence of mould in the master bedroom and bedroom 1, we are of the view that the evidence supports a conclusion that mould remediation had been undertaken, and we see no error in the Tribunal not ordering further remediation.

Awarding of a rental rebate of 50% for the period 24 March to 7 July 2021 and a rebate of 100% for the period 28 June to 7 July 2021

The Tribunal's reasons for awarding this level of rental rebate (see [18] to [25] of the Decision) are logical, detailed and persuasive. We see no error of law, and no other error for which leave should be granted.

Compensation of $1,500

The Tribunal awarded the Tenant $1,500 as compensation for non-economic loss. The Tenant submits that this figure was far too low, and an amount much closer to the Tribunal's jurisdictional limit of $15,000 should have been awarded.
The Tenant submitted that: We suffered Severe health impacts from the mould-which is documented throughout ALL EVIDENCE PROVIDED. WE suffer with the ongoing homelessness from this miscarriage. My children have lost everything they own. Mentally injured that will proceed into their future. The detriment to their education has not even been looked at. We are homeless because of a leaking roof and the landlords failure to repair his property. Leaving it in an uninhabitable state, causing direct harm to the tenants including THE MINOR TENANTS. $1500 put on a ledger is a severe miscarriage. The breaches HAVE BEEN allowed to continue by the Tribunal-against the Law and NCATS procedure. A Residential Tenancy Agreement is a legally binding contract. I fail to comprehend why the Tribunal has allowed the landlords to be exempt from their obligations of the Agreement. They have failed to provide and maintain their property in a reasonable state of repair or meet the minimum requirements for Health & Safety. Mould is harmful to humans and structures/materials. The fact that the air conditioner leak was left leaking caused further damage. Even after the confirmation of the leak was diagnosed nothing was done or offered to replace anything we lost and that includes our health. The respondent was continuously notified of everything from the start up until now. Undeniably neglected the situation and Terminated to get out of their responsibilities. To Band-Aid the problem and the next tenant fall victim to a repaint with death on the other side of the walls/ceilings/carpets. It seems its been done before at this property prior to us moving in. … They have actively chosen to ignore the seriousness of this. No care has been shown from the respondent. As an example of inequality you will see l was unable to meet directions for a payment of money (that shouldn't exist in the first place) I could not afford to pay it due to real financial Hardship from this. However I was held accountable immediately-within just days. Non compliance for the respondent has existed since AUGUST. The suffering to our physical health, mental health, losing our home and everything we own is purely omitted in these decisions. Whilst I understand the amount of documentation is a lot and my preparation not the best, I was not coping with the circumstances of homelessness, my kids mental health deterioration- unable to help them and limited help and advice. Based on the complexity of the matter, special consideration especially of the circumstances should have been included in deliberation. The situation we have been put in is not our fault, yet we are the ones paying the price. I have seen no evidence of the landlords financial hardship as claimed by the respondent. They own investment properties- plural and have a successful family run business in Byron Bay rent paid to Packham Family Trust fund My children and I remain homeless AND SUFFERING still, because of this. The stress is making me sick and hurting my children every day. We have had to relocate several times. … Now on top the respondent wrongfully granted has executed the warrant for possession, changing the locks and threatening disposal of our possessions if I don't come and collect the damaged toxic mould infested possessions. The Whole house and everything in it is contaminated with toxic moulds. See the report and results I provided from Mould Men - note this is how a professional report should look like- photos, findings, results and recommendations. … My children remain without their toys, clothes and personal belongings. No willingness or cooperation from the respondent to resolve the matter or fulfil their obligations- despite my many attempts. No willingness to care or offer any help. Worth noting the member increased the compensation amount at the time of the hearing. The roof still leaks, no investigation on affected internal sides where significant, long term water ingress points (potential cover up from previously repaired section of wall) would like this investigated. All possessions contaminated and damaged by mould. No Mould has been removed at all. No Mould adequately treated at all. The respondent fails to understand the term 'Premises' set out in orders. (Emphasis and spelling as in original)
The Tenant's submissions continue for a number of pages. They are generalised and discursive. In addition, they refer to matters occurring long after the Tribunal made its Decision.
The Tribunal's reasons for decision on compensation are set out [45] to [53] of the Decision. They are logical, detailed and persuasive.
In our view the Tenant has not identified any error of law; the Tenant has not submitted, nor identified, any incorrect principle of law applied by the Tribunal. Nor has the Tenant submitted that the Tribunal's discretion miscarried in any way.
Nor are we satisfied that the Tenant has identified an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result warranting a grant of leave.

Other - credibility

One of the other matters raised by the Tenant was the finding by the Tribunal that she was not a credible witness. Understandably she was upset by this finding.
The finding was based on an admission by the Tenant that she had scanned the signature of Dr Ross Wylie and "FRACGP" on to a document of the Family Medical Centre at Ballina dated 8 July 2021. The Landlord claimed at the Tribunal hearing that this document was not authentic, although did not claim that the document was fraudulent. The Tribunal formed the view that it appeared that the signature of Dr Wylie had been scanned on to the document (Decision, at [27]), and that "there was no concession by the [T]enant concerning the document until the end of the hearing where the [T]enant admitted she had made a mistake and that she added "FRACGP" to the doctor's report and scanned the signature" (Decision, at [27]).
The Tenant says that the claim of the Landlord that she was providing "false doctors certificates" was a "false statement", that has caused defamation to [her] character", and that that defamation has caused "further significant, loss, stress, further homelessness to [her] and [her] children" with severe impacts on her health. The Tenant says that "this misleading fiction was believed true by the member", resulting in a "complete miscarriage of justice and an unfair and an un equitable decision" by the Tribunal.
The Tenant filed in her appeal materials a letter of Dr Wylie dated 9 November 20221. Relevantly, he states that it has been his "privilege" to be the general practitioner for the Tenant and her children since December 2018. He says that while he understands that the Tenant has been accused on "making fake medical certificates", he does not believe this to be the case. He then gives further evidence about the health of the Tenant and her children.
We accept that the Tenant is concerned that the Tribunal found that she was not a credible witness. However, we do not read the Decision itself as concluding the Landlord's Claim was established, or that the Tenant's Claim was not established, because of her lack of credibility. Most relevantly, the Tribunal did not dismiss the Tenant's Claim that the Landlord's issuance of the notice of termination was retaliatory because of her credibility. Rather, the Tribunal found: 41 … as at 30 April 2021 when the termination notice was issued the tenant had not advised the landlord that she had taken or proposed to take any action concerning the mould issue in the property for a breach of the residential tenancy agreement. 42 That is, no notice that was sent to the landlord they were in breach of the residential tenancy and that the tenant intended applying to the Tribunal for repairs or termination of the tenancy. … Having extended time, I am not satisfied however, that the termination notice was retaliatory as the tenant has not proved to the civil standard that she proposed to take action pursuant to the residential tenancy agreement as at 30 April 2021. | am not satisfied to the civil standard that the termination notice was motivated in whole or partly in accordance with Section 115 (2) of the Residential Tenancies Act, 2010. This claim is dismissed.
In other words, the Tenant's credit did not come into question in the Tribunal determining this issue.
And nor did it in relation to the Tenant's Claim. While the Tenant was not satisfied with the Tribunal's findings and conclusions in relation to rent abatement and compensation, the Tribunal did make findings in the Tenant's favour on both matters.

Other - the Tenant's possessions

One of the other matters raised on appeal were references to the contamination of the Tenant's personal possessions and that of her children. This included but was not limited to mattresses, pillows, blankets, sheets, toys, beds and kitchen chairs.
As the Tribunal noted at [55]: The claim for damages of person [sic - personal] property is set out in Exhibit A1 [50]. The claim is for Chloe $565-$780,Chase $578 -$728,and the tenant $864.00. This sets out a list of the items. There are some photographs in Exhibit A1 104], [105], [106], [158], and [159]. There is an estimated cost for the items, however, there are no quotes or tax invoices or internet prices that support the amount sought, and the prices are simply estimated without any reference to any price guide or any prices. In my view, the Tribunal has to be provided with some evidence of the prices of the items in order to make a proper assessment of damages. As there is no evidence that supports the estimation, the claim is dismissed.
We see no error of law, or any other error, in the Tribunal's reasoning. The legal authorities say that provided that if some evidence of loss or damage has been produced, difficulty of assessment is not a bar to the assessment of damages: Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117; Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167.
However, this appears to be one of those cases where no basis for a rational assessment had been provided in the evidence, and damages should not be awarded (assuming the alleged breach of the RTA): Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 16 ALR 23, Newark Engineering (NZ) Ltd v Jenkin [1980] 1 NZLR 504; referred to in Troulis v Vamvoukakis [1998] NSWCA 237.
In Troulis, Gleeson CJ (with whom Mason P and Stein JA agreed) noted that Deane J observed in The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 118-119 that limitations of the curial process or the nature of the subject matter in question often meant that the task of assessing damages involves a pragmatic exercise of a kind traditionally left to the good sense of a jury. Where, however, there was an absence of the raw material to which good sense may be applied "[j]ustice does not dictate that, in such a case, a figure should be plucked out of the air".
There is one final matter in relation to the Tenant's possessions. It is common ground that they remain at the premises, notwithstanding that the Tenant and her children no longer reside there. The Tenant told us that she would need 14 days to remove her possessions. The Landlord said that the Tenant should be ordered to remove them within seven days.
We discussed at the appeal hearing what order should be made, and whether or not the Tenant's goods should be further treated. For the reasons set out above, we have decided there should not be a further order for treatment of the Tenant's goods.
Accordingly, we order that the Tenant remove her goods within 10 days' of the publication of this Decision. If she does not do so, the Landlord can pursue its options under the Uncollected Goods Act 1995 (NSW).

Orders

The Appeal Panel orders: 1. In respect of matter RT 21/24766: 1. to the extent that the appeal raises errors of law, the appeal is dismissed. 2. to the extent that the appeal raises errors other than errors of law, leave to appeal refused. 1. In respect of matter RT 21/35758: 1. to the extent that the appeal raises errors of law, the appeal is dismissed. 2. to the extent that the appeal raises errors other than errors of law, leave to appeal 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 February 2022

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (9)