Hu v Roggeveen

The scope and nature of internal appeals

1. By virtue of s 80(2) of the NCAT Act, internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 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 (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. 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 Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be 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).
4. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 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.
5. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
6. In Collins v Urban, the Appeal Panel stated at [84(2)] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.

Grounds of Appeal

1. The landlord's grounds of appeal, as set out in an attachment to her notice of appeal were as follows: 1) the Tribunal member did not consider my evidence: the tenant was dishonest, his testimony was a lie, and I had e-mail as evidence, but the Member did not consider it. When the plaintiff lies in his testimony, the court/Tribunal should not accept his evidence and testimony. 2) during the lease period, when I asked to discuss maintenance with the Respondent, the Respondent deliberately did not answer my phone calls, did not reply to text messages, and refused to cooperate with me to discuss and arrange repairs. They deliberately waited until they left the rental house and then to provide photos that could not be proved their trueness and authenticity to claim for compensation. This fact shows that the Respondent deliberately created the situation for their claim. 3) it is a breach of contract that the plaintiff does not propose a rent deduction during the lease period, but only after the execution of the entire lease and moving out. The photos he provided were false. He did not propose them to me at the time of the dispute, but only provided those photos when I could not witness the scene. There is absolutely no basis to prove that they are true and cannot be used as a basis for judgment. I do not accept this kind of false evidence deliberately created afterwards. If the evidence is for me to witness on the spot, it will be honest. 4) although some places do need maintenance, many requirements by the Respondent were rejected in the first week after tenant moved in, as I declared that I will not repair it because the rent is much lower than the normal market price. He had not requested a decrease of rent in the first week of the lease, but waited until the lease finished and they had moved out at the end of a year. Then they handed over unauthentic photos to claim compensation, which is a breach of integrity.
2. The landlord also sought leave to appeal on the bases that the decision was not fair and equitable, that the decision was against the weight of evidence and that there was significant new evidence now available that was not reasonably available at the time of the hearing.
3. The matters set out in the Notice of Appeal as being the bases for the landlord's application for leave to appeal on the basis that the decision was not fair and equitable and that the decision was against the weight of evidence essentially repeated the matters stated in the grounds of appeal.
4. The "significant new evidence" upon which the landlord sought to rely was described as "1) emails showing they have lied in the hearing 2) text message showing that I had tried hard to repair the stove and the pool and other thing but they deliberately ignored". The reason given for why the evidence had not been available at the time of the hearing was that the landlord was in China and, because Sydney was also in lockdown, she could not ask a friend to go to her home to collect her Australian phone to extract the text messages from it.
5. We note that this is not an explanation as to why the emails had not been available. In relation to the text message, the landlord did not explain why the lockdown prevented her from asking a friend to visit her home. She did not identify when she wished to recover her text messages or point to any Public Health Order which had prohibited such a visit.
6. In the course of the hearing of the appeal, the landlord acknowledged that she remained in China and that, when she had "realised the documents were important" after the delivery of the Tribunal's decision, she had been able to gain access to the documents in order to include them in her appeal documents. In our view, the landlord has not established that the documents sought to be relied upon as "significant new evidence" were not reasonably available at the time of the original hearing.
7. We further note that the text message included with the landlord's Notice of Appeal cannot in any event be considered to be "significant new evidence" in the context of this appeal. The text message is undated and commences "Hi Nicholas", presumably Mr Barr. It asks Nicholas to let the sender know a convenient time for a discussion "about the lease issue". The text concludes "Sorry for the trouble brought to you in the house."
8. We note that, as expressed in the attachment to the notice of appeal, the grounds stated by the landlord are mostly challenges to findings of fact. As the landlord was self-represented we have had regard to the principles set out by the Appeal Panel in Cominos v Di Rico [2016] NSWCATAP 5 in considering the landlord's stated grounds of appeal, to determine whether the landlord has established an error on a question of law.
9. In that case, the Appeal Panel said: 12 The Appeal Panel must give effect to the guiding principle when exercising functions under the CAT Act, which is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 36(1)). This is reinforced by s 38(4) which provides that the Tribunal is required to act with "as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." 13 It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."

The Decision under Appeal

1. The Tribunal held that the landlord had reduced or withdrawn various services and facilities provided with the property and that, having regard to that reduction or withdrawal, the rent payable under the tenancy agreement was excessive. As we understand the landlord's grounds of appeal, the landlord challenged both of those conclusions and the Tribunal's assessment of the extent to which the rent should be reduced.
2. The landlord's challenge to the Tribunal's assessment of the extent to which the rent should be reduced was more explicitly spelled out in the landlord's written submissions. We are satisfied that it was fairly raised by the landlord and that the tenants were given a fair opportunity to respond to it.
3. It is convenient to reproduce in full the Tribunal's reasoning in relation to these issues.
4. In respect of the question whether the landlord had reduced or withdrawn services or facilities, the Tribunal held: 62 A landlord may reduce or withdraw goods services or facilities provided with premises by a positive or overt act. The landlord may also reduce or withdraw goods, services or facilities by failing to comply with the landlord's obligations under the tenancy agreement, which has an adverse effect on the tenant's amenity in using the premises. As stated by the Residential Tenancies Tribunal in Isles v Staikos and Castravinos (cited with approval in Skea v Bownam, supra): "Reduction or withdrawal must be by the owner... this may include an act of omission, e.g. where the landlord is notified that the stove is not working and neglects or refuses to repair or replace it. ... there must be some culpability on the part of the Landlord". 63 The most common case in which a reduction or withdrawal of service by the landlord occurs is where the landlord fails in his or her duty to carry out repairs to services or facilities (see the next heading), with the consequential loss of service or facility to the tenant. This can occur because the landlord provided the premises in a defective state at the commencement of the tenancy, or because the landlord has failed to repair a defect that arose during the tenancy: Cogan v King [1998] NSWRT 352; Phillips v Le and Wanlin Holdings Pty Limited [2019] NSWCATCD 87. 64 It should also be noted that one of the services or facilities provided by a landlord to a tenant is the amenity of the premises. This is recognised in subsection 44(5)(e) of the RT Act. Amenity or its plural - amenities - is not defined in the RT Act. As they are not terms of specific technical meaning, they take their normal English-language meaning. The Macquarie Concise Dictionary (4th edition) defines "amenity" and "amenities" (its plural) similarly: (1) agreeable features, circumstances, ways, etc; (2) feature, facilities or services of a house, estate, district, etc, which make for a comfortable and pleasant life; (3) the quality of being pleasant or agreeable in situation, prospect, disposition, etc; pleasantness: the amenity of the climate ... 65 The terms "reduction" and "withdrawal" are not defined in the RT Act, and so they take their ordinary English-language meaning. … 86 The evidence does not establish the age or the prospective life of the premises with any precision. Nevertheless, I am satisfied from the photographic evidence that the premises is about 40 years old and that it has many years of life left. The evidence that the premises were let to the tenants through a managing agent, and the comparative rental evidence produced by the tenants both satisfy me that the rent payable under the tenancy agreement was a market rent. Accordingly, those factors therefore do not limit or reduce the scope of the landlord's obligation to provide and maintain the premises in a reasonable state of repair. 87 As the facts described above indicate, the premises were adversely affected by several repair issues at the start of the tenancy agreement, including ducted air conditioning that did not work in the downstairs rumpus and media rooms, worn and damaged floor boards on the outside deck, lights in the house and in the garden that were not working, signs of mould in the rumpus and media rooms (at least one of which had been painted recently), and a spa and an automatic pool cleaner that did not appear to work. 88 The tenants wrote to the managing agents regularly through the tenancy agreement to seek to have those items fixed. Other items required fixing during the 12-month tenancy agreement, including the chlorinator for the swimming pool, a broken deck blind, leaking bathrooms and the induction cooktop unit. These were also raised with the managing agents. 89 Some of those items were repaired during the tenancy agreement, including at least some of the leaks in the bathrooms, but it appears that many others were not. By April 2021 there were still repair issues that needed to be fixed, including the pool cleaner, the pool chlorinator, the boards in the deck floor, leaks in the roof over the deck and the stove. 90 There is evidence that the landlord made various attempts to investigate issues raised by the tenants from time to time, including by sending various tradesmen to the premises or by requesting the dimensions of the cooktop so that she could source a replacement unit. However I am satisfied on the evidence that the landlord did not comply with her obligations under the tenancy agreement to provide or maintain the premises in a reasonable state of repair in many regards. They included: ducted air conditioning not working in the rumpus room and the media room, which was not repaired throughout the term of the tenancy agreement; doors from the rumpus room to the garden that did not lock properly (reported 15 May 2020; never fixed); leaking tap and pipe in the bathroom (reported 15 May 2020, only partially fixed in May 2020); bathrooms leaking into the sub-floors and kitchen (reported 11 July 2020; only partially fixed in early September 2020); indoor lights not working (reported 15 May 2020; never fixed); garden lights not working (reported 15 May 2020; never fixed); loose deck panels, nails sticking out, broken blinds, leaks on deck, etc (reported 15 May 2020; never fixed); various pool issues (reported 15 May 2020 and subsequently, partially fixed 23 June 2020); and stove top induction plate not working (reported 21 December 2020; never fixed). 91 The tenants' evidence on these matters has not been contradicted and I am persuaded by it. I am satisfied that the landlord's failure to repair these items. promptly after they were reported amounted to a reduction in or withdrawal of various services and facilities provided with the premises, including the repair service promised under the tenancy agreement and the tenants' ability to use and enjoy the amenity and amenities of the premises. 92 Accordingly, this issue is resolved in favour of the tenants.
5. In respect of the question whether the rent was excessive, the Tribunal held: 66 A decision on whether the rent is "excessive" having regard to a reduction or withdrawal by the landlord of goods, services or facilities requires the Tribunal to consider the appropriate level of rent for the premises with the reduced goods, services or facilities, having regard to a wide variety of factors, and to then compare that amount to the rent being paid by the tenant. The tenant has the onus of proving that the rent he or she is paying for the premises, with those goods, services or facilities withdrawn or reduced, is above the 'general level of rents for comparable properties' - i.e., other properties in that state: see Swinburne v Puco Pty Limited (1995) NSWRT 86, cited with approval in Roland Rosenbach v Stewart Harris [2014] NSWCATCD 233. … 93 As I have stated above, the residence at the premises is a 3-storey brick-and- tile building which is about 40 years old, on landscaped gardens that include an in-ground pool and a deck. The landlord's advertising for the premises states that the grounds are "large" and that the deck is "a perfect vantage point for the views", suggesting that the building has the advantage of height. There are also "multiple living areas" in the building, including formal rooms, the rumpus room and the media room. There is no evidence to address matters such as the relative location and attractiveness of the premises against other similar premises. 94 Turning to the factors referred to in subsection 44(5): (1) While both parties have produced evidence of particular properties in the suburbs surrounding the premises being marketed for renting. neither party has produced any evidence of the general market level of rents for comparable premises in the locality or in a similar locality. (2) There is no evidence of the landlord's outgoings under the tenancy agreement. (3) Save for the photographs that have been provided from the 2018 ICR [incoming condition report] [1] and the evidence concerning the stove at the premises, there is little to no evidence of the fittings, appliances or other goods, services or facilities that were provided with the premises. Those photographs show only the normal fittings or appliances that one would expect to be provided with rented premises, including kitchen and bathroom fittings, kitchen appliances (such as a stovetop and an oven) and a clothesline. (4) Save for the matters that the Applicants have raised to support this part of their application, I am satisfied that the premises were otherwise in a reasonable state of repair during the tenancy agreement. (5) The accommodation and amenities provided in the premises are as described or shown in the 2018 ICR and the subsequent photographs produced by the Applicant, as far as the evidence allows. (6) There is no evidence of any work done to the premises by or on behalf of the tenants. (7) There has been no rent increase since the start of the tenancy agreement. There is also no evidence of the prevailing level of rent that was charged to other tenants before that tenancy agreement began. 95 As I have noted above, the tenants' rent was $990 per week. I understand this to have been a market rent for the premises (assuming it was in a reasonable state of repair) at the start of the tenancy agreement. The tenancy agreement was negotiated through the intervention of a managing agent on arm's-length basis. There is no evidence of the tenants receiving any discount or subsidy on the market rent. 96 I am satisfied that the rent payable under the tenancy agreement was excessive having regard to the landlord's failure to repair the various items described in paragraph [90] above. Whilst the tenants were paying rent for premises that ought to have been kept in reasonable repair, those matters were not repaired for a substantial period after the tenant first complained about them. Accordingly, a reduction of rent is appropriate even though there has been little or no evidence of the market rent for a similar property in a similar condition to these premises.
6. In relation to the extent to which the rent should be reduced, the Tribunal held: 97 I have had regard to the tables of comparable verdicts set out at Anforth and Ors, Residential Tenancies Law and Practice New South Wales (The Federation Press, 7th edition, 2017) at paragraph [2.187.7]. Taking those verdicts into account and doing the best that I can on the available evidence, I am not satisfied that the rent was excessive by a factor of 40%, as claimed by the tenants. 98 Doing the best that I can on the evidence, and having regard to those comparable verdicts, I am satisfied that the fair and reasonable amount by which the rent was excessive because of the reduced or withdrawn services and facilities that the tenants were receiving from the landlord was: (1) a blended rate of 15% from 15 May 2020 to 20 December 2020, which is 219 days, or 31.29 weeks; and (2) a blended rate of 25% (or $247.50 per week) from 21 December 2020 (when the stove was reported as being broken) to 9 May 2021 (the end of the tenancy agreement), which is 139 days [2] , or 19.86 weeks.

Extension of time

1. Section 41 of the NCAT Act permits the Appeal Panel to extend the time for the lodgement of an appeal.
2. The matters to be considered in determining whether to grant an extension of time are stated in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
3. As we have noted above, the delay in filing the Notice of Appeal was either 11 or 30 days. We tend to the view that the relevant date for the purposes of filing a Notice of Appeal was the date of publication of the original decision. It is not apparent that the amendment of the reasons for decision involved any substantial change to the orders or the reasons. Nevertheless, we do not consider it necessary to determine this issue. In either event the delay is not insubstantial but not inordinate.
4. The landlord's reasons for not filing the notice of appeal in time, as set out in the Notice of Appeal were "my lawyer could not serve me when Sydney was locked down until recent days." At the hearing of the appeal the landlord explained that at the relevant time she had been trapped in China by reason of the pandemic and that her lawyer had not been able to return to the office. We note that the landlord provided no evidence from her lawyer to support or explain the justification she provided. We do not regard the landlord's explanation as entirely satisfactory.
5. The tenants did not suggest they had suffered prejudice by reason of the delay in filing the notice of appeal.
6. Consistently with the approach outlined by the Appeal Panel in Jackson, as the explanation for the delay is less than satisfactory, it is relevant to consider the merits of the appeal before determining whether to grant an extension of time.

Ground 1

1. The essence of this ground of appeal is that the Tribunal should have, but did not, reject the evidence of the tenants as not being truthful.
2. We note that the Tribunal recorded that neither party had given oral evidence at the hearing. In those circumstances it is not entirely clear from the landlord's submissions exactly what evidence is said not to have been truthful. The tenants included in their evidence a table listing the issues raised by the tenants, when they were said to have been raised, and when the items were repaired. The tenants' evidence also included emails between the tenants and the landlord's managing agent. We proceed on the basis that the landlord's challenge to the truthfulness of the tenants' evidence relates to the table and the content of the emails.
3. To the extent that the landlord's first ground of appeal suggests that the Tribunal failed to take into account compelling evidence of the falsity of the tenants' evidence, that may raise a question of law, on the basis that the Tribunal had failed adequately to explain why it had accepted the tenants' evidence in the face of contrary evidence tending to show it was false.
4. The ground refers to an email or emails as being the evidence which showed that the tenants' evidence was false. At the hearing before the Appeal Panel, the landlord was not able to identify the email or emails relied upon.
5. Without being directed to the email or emails which it is alleged show that the tenants' evidence was false, the Appeal Panel cannot find that there is any merit in the landlord's first ground of appeal. For the same reasons, we do not find that the landlord may have suffered a substantial miscarriage of justice on the basis outlined in ground 1.

Ground 2

1. Ground 2, as expressed in the attachment to the Notice of Appeal, does not raise any question of law. The ground makes assertions about the intentions and motivations of the tenants which, as far as we can ascertain, were not the subject of any evidence at the hearing. For that reason, we do not uphold ground 2, and, to the extent the same issue is raised as a ground for leave to appeal, we are not persuaded that the landlord may have suffered a substantial miscarriage of justice by reason of the matters referred to.
2. To the extent the ground raises a suggestion that the tenants were disqualified from making an application pursuant to section 44 because they did not actively seek a rent reduction during the currency of the lease, that proposition is raised separately by ground 3 and we will deal with it when considering ground 3.

Ground 3

1. Again, to the extent that ground 3, as expressed in the attachment to the Notice of Appeal, challenges the Tribunal's acceptance of the tenants' evidence (specifically photographs which the landlord asserted had not been provided to the landlord until after the tenants had vacated the premises), that does not raise any question of law.
2. The proposition that it was a breach of contract for the tenants to raise the suggestion of a rent reduction only at the conclusion of the tenancy, would, if it had any merit, raise a question of law. However, there is no merit in the submission. The landlord did not present any basis upon which she suggested that the contract between the parties required any application for a reduction of rent pursuant to section 44 of the Residential Tenancies Act to be made during the tenancy. The right of a tenant to seek a reduction of rent pursuant to section 44 is a statutory entitlement which the parties to a residential tenancy agreement cannot contract out of.
3. Section 44 of the Residential Tenancies Act provides that a tenant may only make an application for an order that the rent is excessive before the end of the tenancy. The Act does not otherwise limit the time within which such an application may be made. In this case, the tenants made their application the day before vacating the premises. In so doing, the tenants brought their application within the time permitted by the Act and, subject to establishing the necessary factual foundation for their application, were entitled to seek orders pursuant to the section: Prior v Al-Ali [2020] NSWCATAP 222 at [42] and NSW Roads and Traffic Authority v Swain [1997] NSWSC 181.

Ground 4

1. The essence of ground 4 appears to be that the Tribunal failed to recognise that the rent paid by the tenants was already reduced to take account of the decision of the landlord not to rectify certain items.
2. However, the Tribunal expressly found at paragraph 95 that the rent paid by the tenants was a "market rent (assuming it was in a reasonable state of repair) at the start of the tenancy agreement". The Tribunal noted that the tenancy agreement was negotiated through a managing agent "on arm's length basis". That was a finding of fact which has not been shown to be against the weight of evidence.
3. We note that the tenants pointed to evidence which showed that the property was advertised to them as having an inground pool, split system air-conditioning, and "a huge timber rear balcony, … a perfect vantage point for the views". To the extent that those facilities were not provided or were provided only to a limited extent, it is appropriate to conclude that the landlord withdrew or reduced those services or facilities. See Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at 124: "124 As to what constitutes a reduction, in our view this means the goods, services or facilities are of a qualitative or quantitative standard which is less than what a landlord is required to provide under a residential tenancy agreement. On the other hand, a withdrawal suggests there must be a removal or inability to use the particular goods, services or facilities. That is, the goods services or facilities or part of them are no longer available to a tenant."

The assessment of the extent to which the rent should be reduced

1. At [94] of the decision (extracted above), the Tribunal addressed the factors set out in section 44(5) as matters which the Tribunal may have regard to in determining whether the rent was excessive.
2. The Tribunal found that there was no reason to conclude that the rent paid by the tenants under the residential tenancy agreement was less than a market rent.
3. At [66], the Tribunal recognised, in our view correctly, that the Tribunal was required to ascertain "the appropriate level of rent for the premises with the reduced goods, services or facilities, having regard to a wide variety of factors, and to then compare that amount to the rent being paid by the tenant".
4. However, in our view, it is not apparent that the Tribunal did undertake that task.
5. For the reasons which follow, we do not consider that the decision adequately discloses the reasoning by which the Tribunal assessed the extent to which the rent should be reduced. The Tribunal's conclusions with respect to that issue are set out in paragraphs [66], [97] and [98] of the decision, which we have set out above
6. In Jamaican Coffee Kitchen Pty Ltd trading as Dushan & Shelby Trust v M20 Pty Ltd [2022] NSWCATAP 203 at [40] to [42] the Appeal Panel stated: 40 The New South Wales Court of Appeal has expressly recognised the appropriateness of abbreviated oral judgments in busy trial courts whilst, at the same time, emphasising the requirement that, as a minimum, reasons be adequate for the exercise of a facility of appeal: see, for example, Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (Soulemezis) at 260 per Kirby P. In the end the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal: see, for example, Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (Beale) at 444 per Meagher JA. 41 In NSW Land and Housing Corporation v Orr [2019] 100 NSWLR 578; [2019] NSWCA 231 (Orr) Bell P at [66], [68], [70], [71] and [77] set out the following principles with respect to the adequacy of reasons of the Tribunal (with Ward JA at [109] agreeing): "[66] In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley)." "[68] In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). Thus even superior courts are not required to give reasons for every interlocutory decision: Wainohu at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]) and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 but cf. Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], Pollard at [65] and see the discussion in Resource Pacific at [48]−[58]." (emphasis in original) "[70] As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court." (emphasis in original) [71] That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. [77] These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [14] (Gleeson CJ); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Pozzolanic at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291." 42 The observations in Orr at [66], [71] and [77] have been recently applied by the Appeal Panel: Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 (Origin) at [20]-[23]; P8 Auto Ltd t/as European Automotive Ballina v Dolling (P8) [2022] NSWCATAP 41 at [18].
7. In our view, the Tribunal in this case failed to set out the reasoning processes that led it to the conclusions it made concerning the appropriate level of rent reduction and thereby failed to achieve the "minimum acceptable standard" of reasons for that decision.
8. At [97] the Tribunal stated that it had had regard to the "Table of Comparative Verdicts" in Anforth and others, Residential Tenancies Law and Practice New South Wales, 7th edition 2017, at [2.187.7] (the Table) and had "tak[en] those verdicts into account".
9. The Table includes references both to awards of compensation for non-economic loss for breach of the covenants to maintain and repair premises or for quiet enjoyment and to reductions in rent by reason of the withdrawal or reduction of services or facilities. Although there is some overlap between these measures, they are not identical: Roberts v New South Wales Aboriginal Housing Office at [86]; Makowska v St George Community Housing Limited [2021] NSWSC 287 at [46].
10. The focus of the assessment of the appropriate level of rent reduction is the rental value of the premises after the reduction or withdrawal of the services or facilities. An award of damages for non-economic loss for breach of the covenants to repair and maintain premises or for quiet enjoyment is concerned with the diminution in amenity, that is the loss of enjoyment of the premises, physical inconvenience and discomfort, and consequential mental suffering, distress and anxiety: Baltic Shipping Company v Dillon [1993] HCA 4; (1993) 176 CLR 344, at 364; Fawzi El-Saiedy v NSW Land and Housing Corporation [2011] NSWSC 820 at [74] - [93].
11. The Table incorporates a list of cases dealing with "Loss of use of part of the facilities", which extends over 17 pages. Almost all of the decisions predate the establishment of the NSW Civil and Administrative Tribunal.
12. The Table lists 13 cases under the sub-heading "Inadequate air-conditioning". The amounts allowed either as compensation or reduction in rent for the loss of the use of air-conditioning range from $12.50 per week (in 2008) to $134 per week (in 2010). In other cases, percentage rent reductions of 10% and 15% (both in 2006) were awarded in respect of defective air-conditioning.
13. Under the sub-heading "Withdrawal of appliances", the Table lists 12 cases where a specific value was allocated to the loss of use of a stove or part of a stove. The allowances range from $5 per week for loss of use of an entire stove top (in 2007) to $1,000 for not having a stove for a month (also in 2007). In one case (in 2007), $5 per day (ie $35 per week) was allowed for the loss of the use of one element of a stove. In another case, a rent reduction of 8.3% was allowed for "a defective cooker".
14. Under the sub-heading "Loss of use of backyard or pool", the Table lists 19 cases involving awards in respect of the loss of use of a pool ranging from $5 per day (ie $35 per week) in 1999, and $40 per week in 2004 and 2012, to a decision from 2007 recorded as having involved an award of $10,000 "for the loss of enjoyment of the pool for a summer".
15. We note that that decision, Murphy and Gilmour v Blue Haven Pools and Spas Pty Ltd [2007] NSWCTTT 626, is not accurately characterised in the Table. In that case, which involved a claim for breach of a contract for the construction of a pool, $10,000 was awarded not just for the loss of the use of the pool but also for "the inconvenience suffered because other renovations to the premises were delayed pending the completion of the swimming pool" (at [21]).
16. Under the sub-heading "Mould and water penetration" the Table lists 78 cases which disclose a similarly broad range of awards, such as a 10% rent reduction (in 2009) for the loss of use of the master bedroom and 50% reduction in rent (in 2005) for the loss of use of the lounge room.
17. It will be apparent from the forgoing analysis that the Tribunal's statement "I have had regard to the tables of comparable verdicts set out in Anforth and Ors, Residential Tenancies Law and Practice New South Wales … at paragraph [2.187.7]" provides no information whatsoever concerning the reasoning process which led the Tribunal to make the award it did.
18. While it may be accepted that the Table of comparative verdicts in Anforth is a useful resource for Tribunal members seeking to assess appropriate levels of rent reduction, the requirement that the Tribunal disclose the reasoning processes that lead to its decisions cannot be satisfied by a general reference to the Table.
19. While we accept that the assessment of the appropriate level of rent reduction is an exercise in judgment and that in many cases the Tribunal will be left to "do the best it can" on the available evidence, some elucidation of the basis for selecting a particular level of rent reduction must be provided.
20. We consider that this is particularly the case in respect of the increase in the rent reduction from 15% to 25% for the period from 21 December 2020 to 9 May 2021. The only additional service or facility withdrawn or reduced during that period was one of the induction elements on the stove top. It was not disputed that there remained three elements which were functioning.
21. In our view, a further rent reduction of 10% from 10 December 2020, which equates to $99 per week, could not rationally be warranted on the basis of the loss of one of four elements in a cooktop. Even allowing for inflation, that far exceeds the most generous precedent in the Table of comparative verdicts.
22. By reason of our conclusion that the reasons for the rent reduction awarded by the Tribunal were not adequate we conclude that the merits of the appeal warrant the extension of time for the filing of the appeal and that the appeal must be allowed.
23. Section 81 of the NCAT Act provides: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
24. In light of the amount in issue in the proceedings, we consider that we should not remit the proceedings to the Tribunal for re-hearing. Although we have not been provided with a transcript or recording of the hearing at first instance, the Tribunal's reasons for decision record that neither party gave oral evidence at the hearing. We do, as we understand it, have the documentary evidence which was placed before the Tribunal. We further note that the landlord stated in the course of the hearing that she conceded that the tenants were entitled to a reduction in rent and that she would accept an order for the payment of $5,000 by way of reimbursement of excess rent.
25. For the following reasons we consider that, whatever the appropriate measure of rent reduction, it could not exceed $5,000 and that, accordingly, the appropriate course is to allow a total reduction amounting to $5,000.
26. As recorded in the Tribunal's decision, the property in question had 10 rooms plus entrance hallway, kitchen, three bathrooms and a separate toilet, two garages, a deck and a swimming pool.
27. The Tribunal's conclusions regarding the extent to which the landlord reduced or withdrew services or facilities were set out in the decision at [90] which we have extracted above.
28. It is apparent from that list that the Tribunal did not determine that the mould issues of which the tenants complained were such as to constitute the withdrawal or reduction of services or facilities. The Tribunal's conclusion in relation to the tenants' complaints regarding mould were: 79 In any event, I am not satisfied on the facts and evidence before the Tribunal that the alleged mould damage to the tent and the swag arose from any breach by the landlord of the tenancy agreement, and particularly the obligation to provide or maintain the premises in reasonable repair. In particular, I am not satisfied that the tenant would have used the air-conditioning in the rumpus and media rooms, had it been working, to condition the air in those rooms so as to prevent mould from growing on those items.
29. The substantial issues which the Tribunal found substantiated were: 1. The air-conditioning was not working in 2 out of 10 rooms (the rumpus room and media room). 2. Two screen doors opening to the outside from the rumpus room were not locking properly, which had the consequence that the tenants could not leave the door open to ventilate that room. 3. There was some leaking from the bathrooms. The extent to which this caused inconvenience or loss of use of the premises does not appear to have been explored in the evidence. 4. Some lights, both indoors and in the garden, were not working. Again, the extent to which this caused inconvenience or loss of use of the premises does not appear to have been explored in the evidence, although there is an email from the tenants which suggested that the tenants undertook to replace the internal lights themselves. 5. There were "a few loose panels in the deck and nails sticking out". Again, an email from the tenants in May 2020 suggested that they would fix that issue themselves. The extent to which the tenants did so and the extent to which the tenants were denied the use of the deck were not explored in the evidence. 6. A blind was broken. 7. There were leaks in the roof over the deck. 8. There were various issues in relation to the pool including the automatic pool cleaner and the chlorinator not working. Although there is correspondence from the tenant suggesting that the pool had "turned green" on more than one occasion, the evidence does not suggest that the tenants were entirely deprived of the use of the pool. Rather the tenants complained that it was difficult to maintain the pool 9. One element of the induction cook-top ceased to work from 21 December 2020. An email from the tenants indicates that it was "the largest one that we use the most".
30. Unquestionably the accumulation of these items warranted a reduction in rent, but a reduction of 15% was in our view clearly not warranted.
31. The tenants did not provide detailed evidence concerning the extent to which their capacity to utilise the property was affected from time to time or generally. Rather, they relied upon their email communications with the landlord's agent and a table which was said to list the issues relied upon, when they were raised, and when they were repaired. In the absence of evidence from the tenants in relation to the extent to which their enjoyment of the premises was affected, the Tribunal could not have made an award of compensation for any loss of amenity or enjoyment of the premises arising from breach of the tenancy agreement, even if the tenants had pursued such a claim. The tenants' claim, at first instance and on the appeal, is limited to reduction in rent pursuant to s 44 of the Residential Tenancies Act.
32. In our view it must be recognised that the tenants did not establish that any part of the house or the pool was unusable throughout the term of the tenancy. Rather the tenants' evidence suggested that they were unable to use two of the ten rooms in the house for some of the time and that the burden of maintaining the pool was excessive.
33. The amount which the landlord has conceded would be appropriate is marginally less than 10% of the full amount of rent paid by the tenants during the whole term of the tenancy. We consider that there is no basis upon which it could be said that the reduction in rent warranted by reference to the services and facilities withdrawn or reduced as found by the Tribunal should exceed that figure.
34. In those circumstances, there is no reason to distinguish between the periods before and after the cooktop element failed. A total rent reduction of $5,000 spread over 359 days (15 May 2021 to 9 May 2022) is $13.92 per day or $97.44 per week. Accordingly, we will allow the appeal and vary the orders of the Tribunal to order that the rent paid by the tenants from 15 May 2020 to 9 May 2021 should not exceed $892.56 per week, that is a reduction of $97.44 per week, and to vary the amount the landlord is ordered to repay to the tenants to $5,000.
35. We note that on 17 March 2022, a differently constituted appeal panel adjourned the hearing of the appeal and noted by consent that the landlord would pay $5,000 to the tenants on the basis that the payment was without prejudice. We assume that the landlord has not paid the balance of the judgment to the tenants and that, accordingly, there is no need to make any orders for restitution of any overpayment to the landlord. If our assumption is not correct, the parties may approach the Tribunal for appropriate orders.
36. Our orders are: 1. Extend the time for the filing of the appeal to 10 December 2021. 2. Allow the appeal. 3. Vary the orders made in the Consumer and Commercial Division of the Tribunal in proceedings RT 21/20148 on 27 October 2021 (as amended on 15 November 2021) so that: 1. Order (1)(b) shall read "the rent under the residential tenancy agreement shall not exceed the sum of $892.56 per week from 15 May 2020 to 9 May 2021." and 2. Order 2 shall be varied by substituting the sum of $5,000 for the sum of $9,561.92.

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. Registrar

Endnotes

1. It is not clear why the Tribunal referred to the "2018 ICR". As far as we can ascertain, the only incoming condition report in evidence was the report completed by the landlord's agent and the tenants in May 2020. We presume that it was that report to which the Tribunal intended to refer.
2. We note that this period is actually 140 days, but nothing turns on that. 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 September 2022