He v Zhang

1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 NSW (the NCAT Act) from a decision of the Tribunal in the Consumer and Commercial Division on 6 November 2024 involving a claim for the bond at the end of a residential tenancy agreement.
2. There were, in fact, two applications before the Tribunal at first instance, one by a landlord claiming the bond and an amount of compensation exceeding the bond. The bond amount was $3,040. The other application by the tenant was also a claim for the bond amount as well as for compensation in addition to the bond amount.
3. In such first instance proceedings, the Tribunal found that the bond amount should be paid to the tenant. In fact, that bond amount was held by the landlord, who had not deposited the bond amount with New South Wales Fair Trading or the Rental Bond Board.
4. In each proceeding, the Tribunal dismissed the landlord's and tenant's claims, respectively, for compensation. In this appeal, it is the appellant landlord who appeals the Tribunal's decision to award the bond amount to the tenant and to dismiss the landlord's claims for compensation over and above the bond amount. For convenience in this appeal decision, we will refer to the appellant as the landlord and to the respondents as the tenant.
5. At the conclusion of the appeal hearing on 26 March 2025, we refused leave to appeal and otherwise dismissed the landlord's appeal. We gave oral reasons for our decision. Pursuant to s 62(2) of the NCAT Act, the appellant has requested written reasons, which we now provide with the benefit of a transcript of the appeal hearing.

1. The landlord filed a Notice of Appeal on 19 November 2024, which was within the 14-day period required under the Civil and Administrative Tribunal Rules 2014 NSW (the NCAT rules) for appeals in relation to residential tenancy matters. Therefore, the appeal was lodged within the time required under the NCAT Rules.
2. As is the Appeal Panel's usual protocol, the landlord's appeal from the Tribunal's decision was listed for a call over before Principal Member G Blake, on 4 December 2024. On that occasion, orders and directions were made to have the appeal set down for a formal hearing. The landlord had also brought an application to stay the Tribunal's order of 6 November 2024 for the payment of the bond amount of $3,040, to the tenant. The Principal Member, on that occasion, dismissed the appellant's application for a stay of the Tribunal's order and gave oral reasons for refusing the stay.
3. In respect of the setting down for hearing of the appeal, the Principal Member made directions for the appellant to lodge with the Appeal Panel Registry, and with the respondent, by 8 January 2025, documents within four (4) distinct categories, and for the documents to be lodged in hard copy paginated bundles. The first category of documents was all evidence given to the Tribunal at first instance on which it is intended to rely for the appeal hearing. (In this regard, it is standard practice at Appeal Panel call overs for the presiding Appeal Panel Member to inform the parties that the Tribunal file is not automatically available to the Appeal Panel members who hear the appeal - hence, the direction made at the call over stage of an appeal proceeding, reflects the necessity for the parties to put within the appeal papers available to the Appeal Panel that hears the appeal, all documents that were before the Tribunal and further, for those documents to be in the same order and form as they were before the Tribunal Member at first instance).
4. The second category of documents required to be filed and served on or before 8 January 2025 by the appellant landlord, was any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely. (We will consider the 'leave to rely' requirements of such new or 'fresh' evidence later in these Reasons).

1. By way of background, this appeal relates to a residential tenancy agreement between the landlord and the tenants, which was made in early February of 2024 for residential premises in the Sydney suburb of Guildford. As indicated, there were two applications at first instance, by the landlord and the tenants and both parties also made claims for the bond amount. The tenants did not appeal the decision in relation to their application for compensation, in addition to the bond amount.
2. However, in the landlord's application, which is the subject of the appeal, the landlord did claim, in addition to the bond amount, the following end of tenancy charges:

(i) Repairs to the sliding door, $1650,

(ii) Replacement of bathroom mirror, $1320,

(iii) Replacement of turf, $2960,

(iv) Replacement of vertical blinds, $2141.70,

(v) Replacement of flyscreen door, $1210,

(vi) Sanding and polishing timber floor, $4950,

(vii) Garage repairs, $2200, and

(viii) Painting, $2530.

1. The landlord had indicated to the Member at first instance that she submitted to the jurisdictional limit of the Tribunal, being $15,000 for end of tenancy compensation.
2. In her Decision, which was delivered on 6 November 2024, the Member published reasons with her orders. As indicated, the essential order for the purposes of this appeal was an order for the bond amount to be paid to the tenant, with all other claims for compensation in both proceedings dismissed.
3. In making those orders, the Member stated the law in relation to end of tenancy claims and claims on the bond, referring to the relevant sections of the Residential Tenancies Act 2010 NSW_._ Her statement of principles is to be found at [8] - [18] of her written reasons. We have considered those written reasons, and we find no error in the way in which the Member expressed the applicable law, including references to 'fair wear and tear' and to the obligation of a landlord to provide an ingoing condition report.
4. At [21] - [27] of her Reasons, the Member found:

"21. The landlord did not provide the Tribunal with an ingoing inspection report in the prescribed format nor did the landlord provide an outgoing inspection report.

22. In relation to the condition of the property at the commencement of the tenancy, the evidence relied upon by the landlord is a series of photographs, some of which are undated, some are dated 21 January 2024 and some dated 6 February 2024.

23. For the outgoing inspection report, the landlord relies on a series of photographs, also with varying dates, both during and after the tenancy.

24. The landlord has not proven the condition of the property at the commencement of the tenancy nor the condition of the property at the end of the tendency.

25. On the evidence before it, the Tribunal cannot determine whether there is any alteration to the property from the commencement of the tenancy to which the tenant would be liable.

26. The landlord has not met the burden of proof, and the Tribunal dismisses the landlord's claim for compensation as well as the landlord's claim against the bond.

27. Accordingly, the bond is to be returned to the tenant. It is noted that the bond was not lodged with the Rental Bond Board and the bond was retained by the landlord for the duration of the tenancy."

1. It may be helpful now to state briefly what are the principles that guide and inform the scope and nature of internal appeals from decisions of the Consumer and Commercial Division of the Tribunal to the Tribunal's Appeal Panel.
2. First and foremost, an appeal is not simply an opportunity for a dissatisfied or aggrieved party to reargue the case that was put at first instance ‑ see Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. This is an important consideration in the landlord's appeal because a vast proportion of the oral submissions that were made by the appellant for the appeal hearing, went to issues concerning evidence that was not before the Tribunal at first instance, and as to why the Tribunal's Decision was wrong, in the opinion of the appellant. The appellant was asking the Appeal Panel to effectively rehear the evidence and to make its own decision. This is simply inconsistent with what are the requirements for the Appeal Panel in hearing an internal appeal under the NCAT Act.
3. To succeed in an appeal, the appellant must demonstrate either an error on a question of law which is a ground of appeal that may be argued as of right, or, that permission, that is, leave to appeal, should be granted to bring the appeal. Such requirements are to be found in s 80(2) of the NCAT Act.
4. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division, are limited to those set out in cl 12(1) of sch 4 of the NCAT Act_._ In such cases, the Appeal Panel must be satisfied that an appellant may have suffered a substantial miscarriage of justice on the basis that:

(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 the 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.

1. In an often-quoted case, Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of sch 4 of the NCAT Act, may have been suffered where:

... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred, or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. Moreover, even if an appellant from a decision of the Consumer and Commercial Decision requiring leave to appeal has satisfied the requirements of cl 12(1) of sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. Pertinently, in Collins v Urban_,_ the Appeal Panel stated at [84] 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,

(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 unlikely to produce an unfair result so that it would be in the interest of justice for it to be reviewed.

1. The grounds of appeal in the notice of appeal are stated by the appellant in a narrative form. They refer to the appellant's disagreement with the findings of fact made by the Member. References are made to photographs, to an incorrect date of photographs, including photographs dated 21 January 2024, and there is disagreement with findings of the Tribunal which are said to have been made in relation to whether damages were not fair wear and tear.
2. Having read the decision of the Member at first instance, in our view, the Member correctly stated the principles that refer to 'fair wear and tear', although she made no such finding on the facts in this instance. Her finding was based upon the landlord not having discharged an onus of proof by adducing evidence of the condition of the residential tenancy property at the commencement of the tenancy and its condition at the end of the tenancy.
3. We understand that the appellant is not legally trained, and that she has not had the benefit of legal advice. The appropriate course is for us to read the material that was made available to us for the appeal, which we have identified earlier in these Reasons, and then to discern from that material whether there are any grounds of appeal on questions of law and otherwise in respect of other errors for which leave is required, and whether those errors are made out on the materials provided to the Appeal Panel: see Cominos v Di Rico [2016] NSWCATAP 5 at [13].
4. It seemed to us that the only grounds of appeal effectively are as follows. Firstly, that the landlord may have suffered a substantial miscarriage of justice because the Tribunal's decision was against the weight of the evidence. Secondly, that the Tribunal's decision was not fair and equitable. Thirdly, that there is significant new evidence which was not reasonably available at the time of the hearing which could have led to a different result in terms of the principles set out by the Appeal Panel in the decision of Collins v Urban.
5. None of those grounds of appeal involve an error on a question of law. Therefore, we proceeded on the basis that the landlord for this appeal requires leave, that is, permission, of the Appeal Panel to proceed with her appeal.

Ground 1 - Whether the Decision of the Member was against the weight of the evidence

1. A decision under appeal can be said to be against the weight of evidence where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: see Collins v Urban at [77].
2. The difficulty that the appellant landlord has in this appeal, is that she relies upon a bundle of documents, that is, the bundle we referred to as the 6 January 2025 documents of 54 pages, which was not in that form or order before the Tribunal at first instance. There are within that bundle of documents some additional documents which constitute new or fresh evidence. We will consider later in these Reasons in the context of whether leave to appeal should be granted (i.e., Ground 3) whether such new or fresh evidence is significant new evidence that was not reasonably available at the time of the hearing.
3. However, in respect of the 6 January 2025 documents, being a bundle in the appeal papers comprising some written submissions, some photographs, and some witness statements, we are not satisfied that within this material is, as was required by direction 1a made by the Appeal Panel on 4 December 2024, all the evidence given to the Tribunal at first instance. Further, to the extent there may be included in the appeal papers some of the material, which was before the Member at first instance, we are not satisfied that such material is in the correct form and order in which it came before the Member at first instance.
4. We find that the Member at first instance identified, correctly, that there was no ingoing condition report and that there was no outgoing condition report. The Member considered various photographs which was the principal evidence that was relied upon by the landlord at first instance; but was not satisfied that those photographs indicated what the condition of the premises was at the commencement of the tenancy and what the condition of the premises was at the end of the tenancy. This became for the Member a matter of whether the landlord had discharged the onus of proof, which undoubtedly rested upon the landlord in this instance.
5. We have carefully considered the Member's Reasons, in the light of the materials that have been put before us for the appeal hearing, and in the light of the oral submissions that have been made by the landlord herself at the appeal hearing, and we are not satisfied that the Member fell into appealable error in making her findings. We are satisfied that the Member's decision was not against the weight of the evidence.

Ground 2 - Whether the Decision of the Member was not fair or equitable

1. For similar reasons (as referred to in respect of Ground 1), we are not satisfied that the decision of the Member was not fair and equitable. Whether a decision is not fair and equitable will involve a consideration of whether there has been an unfairness in the way the proceedings have been conducted.
2. We have not been provided with, in the form that the Appeal Panel's directions of 4 December 2024 required, all the documents that were before the Member at first instance. When we asked questions of the appellant during the appeal hearing as to the format of the documents to be relied upon in the appeal, especially having regard to the bundle of documents which are the 6 January 2025 documents, we ascertained that those documents were not in that form before the Member, and that where particular photographs are now relied upon in the appeal, those photographs were put in a different way, that is, in a smaller form, or without the captions, that now appear in the appeal bundle of documents.
3. In those circumstances, we accept that there were issues which the Member referred to in her Reasons as regards the reliability of the photographs before her (which was the available evidence in the absence of ingoing and outgoing condition reports), and as to whether such photographs represented an accurate depiction of what was the condition of the premises at the commencement of the tenancy, and what was the condition of the premises at the conclusion of the tenancy.
4. For those reasons, Ground 2 of the appeal must fail.

Ground 3 - Whether there is significant new evidence which was not reasonably available at the time the proceedings under appeal were being dealt with (i.e., the 'fresh' evidence ground of appeal)

1. We have also considered the further ground of appeal; that is, that there is significant new evidence which has arisen and was not reasonably available at the time of the hearing on 6 November 2024, including the witness statements at tabs [53] and [54] of the 6 January 2025 documents, entitled 'Condition of the Property' and 'Skirting Boards'.
2. The test concerning the availability of evidence in the context of cl 12(1)(c) of sch 4 of the NCAT Act, is an objective one: see, for example, Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 11 at [19], a statement with which we agree, and which we apply to the circumstances before us on this appeal.
3. In our view, the appellant landlord has failed to demonstrate to us, objectively, that the 'fresh evidence' now relied upon in the appeal, especially the witness statements referred to above, but also other documents in the 6 January 2025 documents, such as an outgoing condition report for an earlier residential tenancy with other tenants, was not reasonably available at the time of the hearing on 6 November 2024. It is a mistake to suppose that 'fresh evidence' within the meaning of cl 12(1)(c) of sch 4 of the NCAT Act, means or includes evidence which could have been called, but which was not in fact, adduced at the original hearing: see Lauron v Michael [2021] NSWCATAP 120 at [26].
4. In any event, we are not persuaded that these documents are significant new evidence. For instance, in the case of the witness statements, there are issues as regards the independence of the said witnesses, who appear to be persons related to the landlord. The said statements are also signed with first given names only, and not with that person's surname, in addition to the first given name.
5. It is uncertain as to what weight can be given to the 'fresh evidence' now relied upon by the appellant, such that even if we were satisfied that the 'fresh evidence' was not reasonably available at the time of the hearing on 6 November 2024 (which we are not for the reasons already given), we are not persuaded that this is an instance where we could exercise the Appeal Panel's discretion and grant leave to appeal based on such 'fresh evidence'.

1. Accordingly, we exercise our discretion and do not grant leave to appeal on any of the 3 grounds of appeal. We are not satisfied that there was any miscarriage of justice. Further, we are not satisfied that the findings of the Tribunal on 6 November 2024 were against the weight of the evidence before the Member; nor are we persuaded that the Member's decision was not fair and equitable, or that there is significant new evidence which was not reasonably available at the time the proceedings under appeal were being dealt with.
2. On that basis, we find that the landlord has not been deprived of a "significant possibility" or of "a chance which was fairly open" within the meaning of what was said by the Appeal Panel in Collins v Urban.
3. Further, even if the considerations in cl 12(1) of sch 4 of the NCAT Act had been satisfied, we would not have been inclined to grant leave pursuant to s 80(2) of the NCAT Act, because in our view, there is no issue of principle, no question of public importance, and no reasonably clear injustice.
4. Materially, there is nothing before us to suggest that the Tribunal has 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 interest of justice for it to be reviewed.

1. For the foregoing reasons, the orders of the Appeal Panel are:

(1) Leave to appeal is refused.

(2) Appeal dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.