Hu v Pender

Background

1. The appellants are the landlords and the respondents the tenants of residential premises at Point Clare, New South Wales, under a written residential tenancy agreement dated 6 August 2016.The term of the agreement was two years at a rental initially of $860 per week rising to $870 per week on and from 6 August 2017. There was no question concerning the Tribunal's jurisdiction.
2. An ingoing condition report was prepared by the landlords' agent and returned by the tenants on 15 August 2017.
3. The tenants' application was filed on 3 November 2016, and concerned alleged failures to repair by the landlords. The tenants sought an order under s 65 of the Residential Tenancies Act 2010 (NSW) (RTA) that the landlord carry out specified repairs, and claims for rent reduction under s 44(3) and rent withholding from the landlord under RTA s 46.
4. The premises are a two-storey house with three bedrooms and include a private jetty and boat ramp. Photographs show a modern home with, it can be inferred and was not contested, a reasonable life span. There was no real contest that rent payable was in the upper range for the area. Some matters the subject of original complaint were attended to before the original hearing. Of those, some became the subject of complaint at hearing because of alleged inadequacy of attempted repair.

Filing of the Notice of Appeal

1. The appeal was required to be filed within 14 days from the day on which the appellants were notified of the decision and given reasons for it (being the same date in this case): Civil and Administrative Tribunal Rules 2014 (NSW) (CATA Rules) r 25(4)(b). In this case, the original notice of appeal was filed on 6 June 2017, one day out of time. Apart from listing what was in effect a challenge to all orders, it contained no other information about grounds of appeal, said that it was not appealing a decision of the Consumer and Commercial Division, said it was not seeking leave to appeal and said no extension of time was required. An attached document was referred to which appeared not to be attached. The document was in name only a notice of appeal and appears incompetent.
2. An amended notice of appeal was filed on 17 July 2017, some 6 weeks after the expiry of the filing period. It identified the orders challenged, sought extension of time (but did not correctly complete part of the form in that respect), corrected the Division appealed from, sought leave to appeal, nominated a solicitor as the landlords' representative and referred to a document titled "Outline of written submission for the applicants" which was not physically attached. There was a separate document with a typed name and date 17 July 2017 and designation "Solicitor for the Applicants" that contained the above title and was confirmed at hearing to be the relevant document. Leave for legal representation was sought by the landlords and refused on 14 July 2017.
3. Leave to extend time for filing the appeal under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) was opposed. The Tribunal was given no explanation as to why the appeal was filed late within the original notice of appeal.
4. The submissions outline document referred to the case law for the test for extension of time in par [5]. Three reasons (identified in pars [6] to [8]) were said to justify an extension of what was said to be (it seems wrongly) a delay of approximately five weeks.
5. The appellants were said to have difficulties from a language barrier and frequent residence overseas "which has rendered it difficult to liaise with an agent in Australia on their behalf". These difficulties were not spelled out. The reasons that such difficulties could not be overcome in a timely fashion - by use of interpretation services and email, for instance - were not referred to at all. One would have thought that assuring timely communication with an agent by landlords in these circumstances, of language and residence, would be a major concern to put in place appropriate procedures to avoid losing opportunities such as an appeal. Agents would be very familiar with the tight timetables for filing residential tenancy appeals. There was no application for a stay of the original orders.
6. The respondent tenants were said not to suffer unfair prejudice "as they have been given adequate and reasonable notice to respond to the evidence upon which the Applicant intends to rely in its appeal". That factor is but one to be considered within an overall test. The overall test places the burden on the appellants seeking the extension to establish that strict compliance with the rules will work an injustice on the appellants. The context is that the respondents have already obtained a decision in their favour and, once the appeal period has expired, can be thought of as having a "vested right" to retain the benefit of that decision. These are matters established in case law cited by the appellant landlords in par [5] of their written outline of submissions. Here, there was nothing said to deal with the obvious proposition that the respondent tenants were continuing to have an obligation to pay rent without receiving the full benefit of the decision in their favour. The landlords' agent during the hearing accepted that, while a set-off against rent had started to occur by action of the tenant, the repair orders had not yet been performed.
7. The final reason advanced was that "the Applicants have at least a fairly arguable case and thus favourable prospects of success", again citing orthodox authority. This test must be viewed in light of the limited appeal rights from residential tenancy decisions that are described below. In the present situation, for reasons described below, the appellant landlords fail to establish an arguable prospect of success as they would not be granted leave to appeal questions of fact and there were no questions of law sought to be appealed.
8. The Appeal Panel therefore refuses leave to extend time for filing of the notice of appeal.

The appeal

1. The appeal concerned only challenges to findings of fact or questions of fact, for which leave to appeal is required under CATA s 80(2)(b). In relation to appeals against decisions made within the Commercial and Consumer Division, CATA Sch 4 cl 12(1) provides that the Appeal Panel may grant leave only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because: (a) the decision under appeal was not fair and equitable; or (b) the decision under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. Nothing in the appellant landlords' material is in the nature of fresh rather than further evidence. Accordingly, par (c) is not satisfied. The landlords did not seek to put forward further evidence on appeal.
3. In our view, the reasons given by the Senior Member who made the original decision contain findings of fact which were in accord with the weight of evidence as set out in those reasons and as we have reviewed. Certainly those findings were not so against the evidence (in the sense that the evidence in its totality is strongly against the conclusion reached by the Tribunal) as to be a conclusion that no reasonable Tribunal member could reach: Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Maintek Services Pty Ltd v Stein Heurtey SA [2013] NSWSC 266 at [153], cited in Collins v Urban [2014] NSWCATAP 17 at [77]-[79]. The Senior Member came to a fair and equitable decision based on those findings. There is no basis for a grant of leave to challenge those matters of fact.
4. Under CATA s 80(3)(b), the Appeal Panel may permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. No proper basis was established by either party for the exercise of this discretion. As already stated, the landlord did not seek to put forward further evidence on appeal, nor any fresh evidence.
5. The tenant sought to introduce, by material filed one day after the directed date and in addition to the material it relied upon below and its submissions on appeal, some reports and documents which dealt with alleged ongoing defects in the jetty which was part of the premises and which sought to respond to written submissions on appeal by the appellant. The documents are identified on the transcript by reference to appendix number and title.
6. The Tribunal is not in a position to deal with the ongoing defects which are beyond the original subject matter of the proceedings below. The other material is not necessary to admit into evidence because the matters to which it responded were not part of the original proceedings and the appellants' submissions on those matters were not founded in the evidence so go nowhere.
7. Accordingly, no leave is granted to rely on the fresh and further evidence sought to be introduced by the tenants. Time is extended (without complaint) by one day in respect of the tenants' filing of their submissions and the material relied upon below. Some of that material overlapped with the landlords' material.
8. The Appeal Panel concludes that the effect intended by the Senior Member's reference at [24]-[26] of her reasons to a rent reduction (to be applied as a direct payment or, with the tenants' consent, as a credit against future rent) was as a means of expressing damages to compensate for loss of direct enjoyment for a substantial period of part of the premises (the jetty) and other disturbance to quiet enjoyment, not by way of direct invocation of RTA ss 44 or 46; see the Tribunal's power in proceedings before it in respect of compensation for breach of lease obligations under s 187(1)(d) and (2)(b). Indeed, the Senior Member said at [24] that she was not satisfied that s 46 applied. Compensation is not limited in time (as s 44 is) by those provisions but, rather, is also a question of fact. It is also not limited by the period in which reasonable repairs would be undertaken if, as appears from the findings to be the case, the issues requiring repair were present at the start of the lease, as is implicitly recognised in the authority cited by the appellant landlords, Anthony v Mao [2014] NSWCATAP 101 at [46].
9. In the course of the hearing, the tenants said they agreed with the landlords' contentions that there were two accidental errors in the original reasons and orders. First, the rent increase of $10 per week from 6 August 2017 to 23 January 2018 provided for in the lease was not taken into account in what was ordered; secondly, that the arithmetic was wrong by $5 in one place. These will be corrected by consent in the orders we make.
10. The landlords' complaint that the Tribunal had a duty under CATA s38(6)(a) to prompt the parties to bring evidence on the age of the home, when that was integral to the parties' cases and there was photographic evidence, is a misreading of that provision. The Tribunal in the Commercial and Consumer Division does not operate, and could not operate, as an inquisitorial body or as an adviser upon evidence to the parties before it. Rather, the provision requires and empowers the Tribunal to obtain information on matters relevant to its duty to give proper reasons for findings based on the cases brought forward by the parties, not to vary or fix up those cases. In any event, there were photos of the home in evidence from which its age could be inferred, as the Senior Member found.
11. We accordingly dismiss the appeal except for the making of the corrections to the original orders which are by consent.

Orders 27 For the above reasons the Appeal Panel orders that: (1) The application to extend the time for the filing of the notice of appeal is refused. (2) Leave to appeal is refused. (3) Appeal dismissed except for the following corrections, made by consent pursuant to Civil and Administrative Tribunal Act 2013 (NSW) ss 63 and 81, to the original orders: 1. in the second sub-paragraph of order (3), vary the figure $680 to $685; 2. in the third sub-paragraph of order (3), vary the order so that it reads "It is ordered that the rent shall not exceed the sum of $835 per week as from 24 January 2017 to 5 August 2017 and $845 per week from 6 August 2017 to 23 January 2018 or until the repairs are effected, whichever comes first."

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

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: 22 August 2017