Hoger v Coria

Nature of an appeal

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the 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 grounds: s 80(2)(b).

A question of law

1. 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 a question of law giving rise to an appeal as of right. These include, but are not limited to: 1. whether there has been a failure to provide proper reasons where they are required; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (that is, 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 is so unreasonable that no reasonable decision-maker would make it.
2. In Prendergast, the Appeal Panel also stated at [12] 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 (subject to any considerations of procedural fairness to the respondent that might arise).
3. We have undertaken that exercise. As the landlord simply submits that the Tribunal did not apply legislation correctly to reach a conclusion on the facts as found, no question of law is raised.
4. There is no question of law in simply making a wrong finding of fact, unless there is no evidence to support that finding: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 341.
5. Secondly, it does not amount to an error on a question of law if the finding of fact, or the inference (or the refusal to make a finding of fact or draw an inference) is perverse, in the sense that it is contrary to the overwhelming weight of evidence: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, per Glass JA at 155.
6. Thirdly, it is not an error on a question of law even if the reasoning process by which the Court reaches its conclusion of fact is demonstrably unsound or illogical: R v District Court: Ex Parte White [1966] HCA 69; (1966) 116 CLR 644, per Menzies J at 654.

Leave to appeal

1. 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).
2. The principles to be applied by an Appeal Panel in determining whether 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 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.
3. Even if an appellant establishes that they 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 landlord's documents and submissions

1. The landlord filed a Notice of Appeal on 21 June 2023, to which was attached various attachments including submissions, email correspondence between the landlord and his agent and a copy of the Primary Decision.

Notice of Appeal

1. The landlord states his grounds of appeal as follows: The tribunal did not apply to legislation correctly. Permission to enter property and on lease. Tennant [sic] operating business from residential premises as indicated by Australian Business Number in Maria Coria's name: Attachments B, B1, C, C1, C2 and D.
2. The landlord states that there should be no compensation paid to the tenant.
3. The landlord states that the Primary Decision was not fair and equitable because (paragraph numbers and paragraph breaks added for ease of understanding): [1] To pay compensation for no peace & quiet is not justified on the evidence of Australian Business Number in Maria Coria conducting, operating a business from a residential address and mobile phone calls, printers, clients attending, disturbance is caused by operating a business, not by the landlord. [2] To pay compensation for non use of property is not justified and the tenant was informed Dec 2018, why colour bond fence was installed to reduce size of lawn, less maintenance for a tenant. This was installed before Maria Coria took on the lease. [3] The tribunal did not apply the legislation correctly. [4] Paragraph 18, refers to paragraph 9, which is incorrect. [5] No lease was signed for 34 months (14 Oct 21020 to 13 Oct 2023. [6] No rent increase has ever been suggested, always $390 per week as per landlord's case, number 8, which is incorrect. [7] Page 1, number one, premises were let since 20189 [sic] is incorrect. [8] Page number 7, number 18, Blacktown Hospital, not Bankstown. [9] The email approving permission given for landlord to mow lawns was omitted by property manager, now submitted. [10] Page 10, number 19, no tenancy agreement made in 1978. (Typographical and other errors as in original)
4. In answer to the question in the Notice of Appeal, "What evidence did you give it to the Tribunal?", the landlord states: The tenant was in ill health asked for my help. With support from my wife, I attended to give help. The ambulance paramedic said, if the tenant was not taken to hospital immediately, could be fatal. For my help in getting the tenant to Blacktown Hospital, was given not [sic] weight by the tribunal as to my compassion, integrity, character, social expectations, honesty, I should have not helped. The fact that the rent has always been $390 per week since 2018, supplying washing machine, floor fans, microwave oven to help the tenant was overlooked. This goes to my compassion, sincerity to help. The tribunal made me be a monster.
5. It may be observed that that statement is not responsive to the question asked. Nor did the appellant actually appear at or, apparently, provide a written statement as evidence for, the hearing.
6. In answer to the question in the Notice of Appeal, "What evidence should the Tribunal has given more weight to? Why?", the landlord stated: No rent increases ever. The tenant being aware of non use of rental property. The property is located on the west side of Richmond railway line. The train timetable is the metropolitan. Trains, noise, all day and most of the night, Railway Road is a collector road, which allows trucks of 30 tons drive on it. Traffic noise is very loud and prolonged. There is no peace and quiet on Railway Road Marajong. It has never been recorded a Complaint from the tenant as confirmed by property manager, landlords case number 2.
7. Again, this appears to be an unresponsive answer.
8. In answer to the question in the Notice of Appeal, "What evidence do you now seek to produce to the Tribunal?", in the section headed "significant new evidence is now available that was not recently available at the time of the hearing", the landlord states: [B1] Email from property manager, Response Real Estate, proving permission to mow the lawns, [??] ground maintenance, at rental property …. As noted on the lease. The property manager, made a mistake in not furnishing this is evidence. Australian Business Number (ABN) Maria Coria … operating a business from residential rental property. With printers, mobile calls, clients visiting, Peace and Quiet cannot be supported. Why was this evidence (including documents) not available at the time of the hearing? Email from property manager, was oversight by the manager in not showing as evidence. The Australian Business Number for Maria Coria [XXX] was discovered on 18 June 2023, and hearing was 14 June 2023
9. Attached to the Notice of Appeal are attachments B, B1, C, C1, C2 and D. Attachments B, C and D, which we will treat as submissions, each bears the following words in their heading: evidence and arguments, I would have put to the tribunal, if not absent.
10. We pause to note that, while the landlord himself was not present at the Tribunal hearing, the real estate agent he had appointed to represent him was.
11. Attachment B states: Permission to mow lawns. The rental Property is 600m sq, front lawn, middle rear lawn, rear lawn, trees, bushes, scrubs. The ground maintenance can be too much if you are not prepared. Knowing this, being the landlord, to keep property in presentable condition, I elected to manage the ground maintenance on behalf of the tenant. When I have been ill, unavailable, a lawn mowing contractor would do the work. At no cost to the tenant. This agreement was noted on the lease, between Sharon Claxton, Property Manager, Hills Coatigan Real Estate and Maria Coria the tenant. This has been confirmed by email, with the current Property Manger Vanessa Turner, Response Real Estate Quakers Hill. Why this was not presented, by Vanessa Turner, when asked for evidence to prove this agreement, I don't know, but I am presenting this now. The tenant has always known that the ground maintenance was managed by the landlord, and permission to do this work with the acknowledgment.
12. Attachment B1 is an email from Vanessa Turner, the landlord's agent, dated 1 February 2023 to the landlord which relevantly states: After your call this morning we have thoroughly evaluated the requirements as per legislation and we can only give your tenant the 90 day Termination notice which I am happy to send off after receiving written permission from you. We have very strict legislation to follow and in such instances it is vital we adhere to the legislation. The lawnmowing should normally be completed by the tenant, however, we understand there is a note saying the landlord will maintain the lawns. Please send me an email as to your decision on whether you wish to terminate the tenant with the 90 day notice as we cannot give her a 14 day termination notice.
13. Attachment C states: From google search, Maria Coria Australian Business Number [XXX], conducted business from the residential rental property, [XXX], Marayong, NSW, 2148. This is the tenant claiming no peace or privacy while being a tenant. No knowledge of conducting a business from this residential address was known to me or Property managers. The Tenant was using the property to conduct a business, not living there as a resident. This business activity would have an Australian Tax Office audit trail. To claim, not all land was available to use as a resident, cannot be supported, when the tenant rented the property for business use. The decision to payback rent, I believe cannot be supported, when the property was being used to conduct a business as evidenced by the Australian Business Number. The decision to pay compensation for no peace or privacy, cannot be supported, when the property was being used to conduct business as evidenced by the Australian Business Number The decision to pay compensation for abuse, trespassing and intimidation, cannot be supported, when the property was being used to conduct business as evidenced by the Australian Business Number. The business attracted visitors to conduct business. No abuse, trespassing, intimidation, was ever communicated by me, the landlord.
14. Attachment C1 is an extract from the Australian Government Australian Business Register dated 18 June 2023 in respect of the tenant. We note that the Tribunal hearing was held on 14 June 2023.
15. Attachment C2 is another publicly available document which provides further information about the tenant having had an Australian Business Number.
16. Attachment D states: The backyard was fenced off into two halves, by colourbond fence and gate.

This was done to reduce the tenant's responsibility to maintain the lawns.

This was in place before tenant Coria took up the lease 2018.

The tenant Coria was informed and understood what went with the rental property, and that part which was not included. This was conducted by Sharon Claxton, Property Manager, Costigan Hills Real Estate, Quakers Hill, which is now defunct. From discovery, the tenant Coria was conducting a business from a residential address. The Residential and Tenancy Act, does not cover or support business operating in a residential rental property the decision to pay compensation for not full use, cannot be supported, when the property was being used to conduct business as evidenced by the Australian Business Number The Australian Tax Office, requires a business statement every 3 months, when operating an Australian Business Number (ABN). To be employed, paid a wage, sick leave, holiday pay, superannuation, and operate an ABN, is not supported by the ATO. The tenant made a living from operating a business from residential rental property, [XXX] Marayong, NSW, 2148

1. As noted, Attachments B, C and D are submissions and relevant in so far as they relate to matters before the Tribunal.
2. As to Attachments B1, C1 and C2, the landlord told us that they were not included in the materials before the Tribunal. He further told us that, as he was not present at the Tribunal hearing, he did not know whether or not the issue of the tenant conducting a business from the premises had been raised at the Tribunal hearing. The landlord had been directed to lodge a copy of the sound recording and partial transcript if he relied on anything which occurred at the hearing. He did not do so. On the other hand, the tenant, who was present at the hearing, told us positively that that issue was not raised with at the Tribunal hearing. This is consistent with the reasons set out in the Primary Decision, in that no mention is made of this matter at all.

Reply to Appeal

1. The tenant's Reply to Appeal is not particularly responsive to the Notice of Appeal. Rather, in the Reply the tenant makes a range of pejorative remarks about the landlord's conduct.
2. The tenant denies the allegation of conducting a business from the residential premises.
3. The tenant states that the landlord has never provided a copy of the "lease agreement" supporting any of his allegations.

Submissions

1. In submissions filed 4 August 2023, the tenant filed, amongst other matters, some of the evidence she relied on before the Tribunal. This included photographs which appear to have been taken from an ingoing or outgoing condition report in respect of the premises and her statement (undated). But her materials also included some material that was not before the Tribunal.
2. The tenant amplified some of these matters in brief oral submissions. In summary, she considers that the Tribunal reached the correct conclusion on the basis of the materials before it, and correctly applied the relevant provisions of the RT Act to the relevant facts.

The Primary Decision

1. It is appropriate to summarise the application before the Tribunal and the Primary Decision itself. We note by way of overview that the Primary Decision was detailed and considered, and its structure and reasoning process could not be criticised as being inadequate.
2. By application filed 2 March 2023, the tenant sought: 1. an order under s 115(1)(a) of the RT Act that the landlord's notice of termination was retaliatory; 2. an order under s 44(1)(a) of the RT Act that a rent increase was excessive; and 3. an order under s 47(5) of the RT Act for the repayment of overpaid electricity charges.
3. At [1] to [4], the Tribunal set out relevant background to the application.
4. At [5] and [6], the Tribunal summarised the relief sought.
5. At [7], the Tribunal noted the filing of the parties' respective documents.
6. At [9], the Tribunal noted that the parties had entered into a residential tenancy agreement (RTA) on 14 October 2020 for a term of 12 months commencing on 14 October 2020 and ending on 13 October 2023, at a weekly rental of $390.00.
7. We note that "2023" is a typographical error. The RTA ended on 13 October 2021, after which it continued as a periodic agreement as defined in the RT Act.
8. At [10], the Tribunal stated that the tenant had occupied the premises since 28 December 2018 pursuant to an earlier agreement, and that she returned possession of the premises to the landlord on 29 May 2023.
9. At [11] to [12], in some detail, the Tribunal summarised the tenant's case.
10. Similarly, at [13] and [14], over approximately 2 pages, the Tribunal summarised the landlord's case.
11. At [16] to 23] the Tribunal sets out its findings of fact and its consideration of the application, stating: 17 On the issues of whether the Landlord took over possession of parts of the Premises and frequently attended the Premises without reason to do so without giving notice to the Tenant, the Tribunal prefers the evidence of the Tenant referred to at paragraphs 11 and 12 above. The Tribunal, on the basis of that evidence, is satisfied that after November 2021, the Landlord did use a substantial part of the yards at the Premises to store his goods and conduct works for his own benefit and thereby denied the Tenant use of those areas. Moreover, the Landlord entered onto the Premises otherwise than permitted by Division 4 of Part 3 of the Act. 18 The Tribunal prefers the Tenant's evidence because, although the Landlord claimed that it was a term of the Agreement between the parties that he was permitted to enter upon the premises to mow lawns, he did not produce to the Tribunal an agreement that set that out. The written Agreement referred to in paragraph 9 above does not contain such a clause. Additionally, the Division last referred to tightly limits a landlord's ability to enter upon rented premises. No evidence corroborating the Landlord's claims that he had the Tenant's standing permission to enter upon the Premises was produced to the Tribunal. It is imprudent for a landlord to claim that such permission has been given without corroborating evidence. Moreover, although the Landlord claimed that the Tenant occupies all areas included in the Agreement: paragraph 14(2) above, he has [not] provided any evidence to corroborate the same. The written agreement referred to at paragraph 9 above does not provide that some parts of the Premises were not the subject of the Agreement, and their use were reserved for the Landlord's use. 19. Doing the best it can with the evidence before it, the Tribunal is satisfied that no later than from 1 December 2021 and for a period until 30 November 2012 [sic - 2022], a substantial area of the yard at the Premises was not available to the Tenant which constitutes a withdrawal or facilities pursuant to s 44(1)(b) of the [RT] Act and that the rent for that period should not have exceeded $260 per week. That is, there has been an overpayment of rent of $6778.57 of rent which needs to be returned by the Landlord to the Tenant. 20. Additionally, the Tribunal is satisfied that the Landlord's frequent, long term, unauthorised attendances at the Premises since the commencement of the Tenancy during 1978 is a breach of the Tenant's right to quiet enjoyment of the premises; section 50 of the [RT] Act, which is actionable pursuant to section 190 of the [RT] Act, justifying an award of $5000 in compensation in favour of the Tenant against the Landlord having regard to the breach occurring from a few days after the start of the tenancy during December 2018 until the police attendance at the Premises during January 2023. The Landlord has not pleaded a defence pursuant to clause 39(9) of the Regulation. 21 As: (1) the tenancy has ended, (2) the rent increases were not pressed by the Landlord, (3) there is no evidence to show that the Premises are unusable, (4) there is no evidence to corroborate and demonstrate the claim that the electricity charges for the premises were increased such as power bills; and, (5) no evidence was put forward that any pain and suffering of the Tenant is not adequately compensated, so far as a monetary amount can do so, by the awards otherwise made in this matter; no orders are made pursuant to sections 115, 44(1)(a), 45, 47(5) and 187(1)(d) of the [RT] Act as requested by the Tenant, in addition to those set out above. (emphasis added)

Relevant principles

1. We note that during the hearing, we explained to both parties a number of principles that are applied in appeals. These were as follows.
2. The first principle is that an appeal to the Appeal Panel does not 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]. And, as the Appeal Panel stated in Temple v AMR Motors Pty Limited [2017] NSWCATAP 221: 38. … Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so). 39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. Yet, that is, in effect, what the present Appellants seek to do by identifying what they contend are contestable findings of fact by the Member.
3. To put the matter another way, as indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website): … an appeal is not an opportunity to have a second go at a hearing.
4. The second principle is that an appellant is generally not permitted to raise matters on appeal which were not raised before the Tribunal (limited exceptions exist as to issues of jurisdiction or pure statutory or contractual interpretation). As the Appeal Panel stated in Kora v Ian's Roofing Pty Ltd [2023] NSWCATAP 42: 54. As the plurality of the High Court of Australia noted in Coulton v Holcombe (1986) 162 CLR 1 at 8; [1986] HCA 33: . . . in a recent decision of six Justices of this Court (University of Wollongong v. Metwally [No. 2] ) the Court said: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. (citations omitted) 55. See too Drivas v Burrows [2014] NSWCATAP 87 where the Appeal Panel observed: 32. The considerations favouring finality of litigation are at least as strong, and probably stronger, in the case of the Tribunal given the importance attached to the expeditious and inexpensive disposition of proceedings [under the] Civil and Administrative Tribunal Act (the Act). 33. Generally, a new point will not be allowed where the consequence would have to be a new trial because "evidence could have been given which by any possibility could have prevented the point from succeeding": Suttor v Gundowda [[1950] HCA 35; (1950) 81 CLR 418] at 438.3.
5. The third principle is that the applicable rule for presenting new evidence on appeal is that the materials sought to be relied was not reasonably available at the time of the Tribunal hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. As the Appeal Panel stated in Chapman v McLaughin [2016] NSWCATAP 212 at [37]: … The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.
6. To take Attachment C1 as an example, the extract is dated 18 June 2023. The hearing was held on was held on 14 June 2023. In the Notice of Appeal, the landlord states that the Australian Business Number for the tenant was "discovered" on 14 June 2023. The Australian Business Register is a publicly available resource. We see no reason why the landlord could have undertaken relevant searches before the hearing.
7. We will not have regard to any document filed by either party that was not before the Tribunal.
8. Clause 12(1)(c) of Sch 4 of the NCAT Act requires the Tribunal to consider if "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were dealt with)." As the Appeal Panel noted in Al-Daouk at [24], "something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c). The Appeal Panel concluded that the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.
9. In our view, it could not be said that Attachments B1, C1 and C2 were not reasonably available at the time of the Tribunal hearing.
10. Bearing in mind those principles, we now turn to the matters raised by appellant.
11. As noted above, we were not satisfied that any question of law was identified. What the landlord was simply claiming was that the Tribunal came to an outcome that he disagreed with.

Consideration

1. Each matter raised by the landlord requires a grant of leave.
2. As to the submission that the tenant was operating a business from the premises, we are not satisfied, in the absence of the evidence before the Tribunal and any sound recording or transcript of the Tribunal hearing, that this matter was ever raised before the Tribunal.
3. Similarly, as to the submission that the tenant was informed in December 2018 that a colour bond fence was installed to reduce size of lawn with resultant reduction in maintenance for the tenant, this was specifically rejected by the Tribunal. We discern no error in the Tribunal doing so.
4. As to the submission that par [18] of the Decision incorrectly refers to par [9], this submission is wrong. Even if correct, it would not establish any basis for a grant of leave to appeal, let alone allowing the appeal.
5. As to the submission that no lease was signed for 34 months, this submission appears completely misconceived. The Tribunal found that the totality of the tenancy was from October 2020 to May 2023, a period of approximately of 31 months. Even if the Tribunal was incorrect in these findings, this would not establish any basis for a grant of leave to appeal, let alone allowing the appeal.
6. As to the submission that no rent increase had ever been suggested, this may have some relevance in the context that the tenant was claiming that a rent increase was excessive, but was irrelevant to the actual outcome of the hearing, the Tribunal not making any orders in respect of this issue.
7. The submission that "Page 1, number one, premises were let since 20189 [sic] is incorrect" simply reflects a typographical error by the Tribunal. Any suggestion that this error had a material effect on the decision is incomprehensible.
8. The submission that the Tribunal incorrectly referred to Blacktown Hospital, rather than Bankstown Hospital is irrelevant.
9. As to the request to rely at the appeal hearing on an email stating that the landlord would mow the lawns, the email having been "omitted" by the property manager, that request is rejected. It is in any event not probative as to the agreement between the landlord and tenant had been made some years prior.
10. The submission that no tenancy agreement was made in 1978 is incomprehensible, and not supported by any probative evidence.
11. In summary, we are not satisfied that any of these matters involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its factfinding process in such an unorthodox manner that it is likely to have produced an unfair result.
12. In these circumstances, we will not grant leave to appeal in relation to any of these matters.

Orders

1. The Appeal Panel orders: 1. Leave to appeal is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 August 2023