Jeremiasse v Shaw

Background and primary decision under appeal

1. The landlord and tenants had entered into a written residential tenancy agreement dated 20 May 2019 for a fixed term starting 20 May 2019 and ending on 18 May 2020. Rent was $825pw. A bond of $3,300 was lodged. A further written residential tenancy agreement dated 8 July 2020 was made for eight months beginning on 13 July 2020 and ending on 12 March 2021 at a rent of $790pw. The tenants vacated on 20 March 2021.
2. The managing agent inspected on 22 March 2021 and the landlord said that she started work on the property in cleaning and gardening. The tenants returned to undertake further work and then contractors were brought in on 26 March 2021 prior to re-letting on 27 March 2021. The circumstances in that week between vacation and re-letting were in dispute.
3. On 3 June 2021 the Tribunal constituted by a Senior Member ordered that the landlord receive $2,648 out of the bond with the balance to the tenants. The Tribunal, among other items, allowed $525 out of the landlord's claim of $939.50 for gardening and $1,200 for replacement of the toilet.
4. At the commencement of the hearing the Tribunal telephoned and left voicemails for each tenant on their respective phone numbers provided to the Tribunal but the tenants did not participate in the hearing personally. The Senior Member said that she was satisfied that notice of hearing had been served under rule 35 of the Civil and Administrative Tribunal Rules 2014 (NSW) and proceeded with the hearing. The Senior Member nevertheless said that she had regard to the document bundle provided by the tenants. The landlord and a representative from her managing agent gave evidence on affirmation at the hearing.
5. The Senior Member referred to authority that the landlord bore the onus of proof in any claim for damages for breach of the tenancy agreement upon the rental bond which was otherwise the tenant's money: Russo v Black [2016] NSWCATAP 261. She set out authority that the measure of damage is to endeavour to put the aggrieved party in the same position as if the breach had not occurred: Atcheson v Knight [2018] NSWCATAP 117. She referred to the authority that, where there is some evidence of loss or damage, difficulty of assessment is not a bar to assessment and the Tribunal does the best it can with the available evidence: Gallagher v Masters Installation PL [2017] NSWCATAP 117; Pacorp Holdings PL v Walker [2017] NSWCATAP 167.
6. The Senior Member then considered each item of claim on the bond in light of the tenancy agreement, the incoming and outgoing photographs and condition reports, the emails exchanged between the parties on vacation by the tenants and the landlord's invoices.
7. For the reasons given the Senior Member ordered that $2,648 from the bond be paid to the landlord with the balance to the tenants. The items within the $2,648 were the bulk of the landlord's claim, being: general cleaning $300; carpet cleaning $300; gardening $525 out of the landlord's claim for $939.50; repair of lounge and dining room blinds (as distinct from curtains in those rooms) $198; replacement of two light bulbs $12; replacement of toilet (new two years before start of tenancy) $1,200.
8. Although it does not appear from the written material before us or from being recited in the subsequent decision under appeal on 10 August 2021, the fact there was a re-hearing, we assumed that it was from an application to the Tribunal under para 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) which permits set-aside and re-hearing to be granted to a party where the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. We confirmed at the appeal hearing that the set-aside decision was made prior to and not as part of the re-hearing.
9. On 10 August 2021 a differently-constituted Tribunal ordered that the landlord repay to the tenant, from the bond monies paid out under the order made 3 June 2020, $2,139.50, which was said to comprise $939.50 for gardening and $1,200 for the toilet replacement.
10. By consent a stay until further order on those orders was granted by the Appeal Panel on 17 September 2021. The notice of appeal filed by the landlord was filed one day out of time, on 25 August 2021.

Primary decision under appeal

1. The 10 August 2021 decision under appeal said as follows in its six paragraphs: 1. The parties' material had been considered but would not be recited. 2. There was no obligation set by law which required active garden work to be performed by or on behalf of a tenant in order to keep outdoor gardens such as the present one "up to a certain level which may be clear of weeds and with branches pruned". 3. The claim for toilet repair was not adequately supported on the evidence: "the quote is somewhat vague, the premises have been re-let and there is in adequate support for the claim that damage was caused due to breach of the terms of the agreement". 4. The available evidence did not support the claim for blind repair: damage was noted at the ingoing stage and there is insufficient evidence to base any further claim for cost of repair". 5. The additional cleaning charge was supported on the evidence. 6. The landlord had taken the bond and the appropriate order was a refund tenant consistent with the above reasons.
2. The landlord ordered the sound recording and received it after some delay. It was missing the first part due to a malfunction. The landlord's transcript included the missing part based on the recollection of the landlord and the representative from her managing agent who were both on the telephone hearing. The tenants disputed the accuracy of that part of the transcript.
3. On the transcript the hearing lasted 33 minutes and 50 seconds on the undisputed part. The disputed part, by comparison of length, may have lasted about 5-10 minutes. It noted that the Member was running about 30 minutes late for the scheduled hearing time. After the Member identified the tenants and the managing agent, the landlord also said she was on the call. When queried why, she identified as the landlord and that she had pertinent evidence to give. The Member was then recorded as saying "No No you will not allowed to talk during today's proceedings I am only going to talk to the Tenant and your Agent".
4. The landlord responded that the Senior Member had allowed her to give evidence and participate and that she had important evidence that the agent did not possess. The Member was then recalled as responding "I don't care this is my court room and I make the rules Do you understand? You will sit in silence and I will only be talking to [the tenant and the agent] Do you understand?"
5. The Member, in the transcript from the part where there was an audio recording, did explain that he would identify the subjects of claim and the response and that he would give a party a brief opportunity to reply at the appropriate point.
6. The Member then went through the items claimed. He declined the managing agent's invitation to be taken to page numbers including express mention of the comparison between incoming and outgoing condition reports. He said he would go through that when he reserved. In reply the managing agent expressly drew attention to the difference between the curtains and the blinds when responding to the tenants' statements. The managing agent also referred to the incoming and outgoing condition reports for the state of the garden.
7. At no point did either party have the opportunity to attest to their factual material and be asked questions on it by the other party.

Extension of time to appeal

1. Section 41 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) provides: "The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation."
2. In Jackson v Land and Housing Corporation [2014] NSWCATAP 22, the Tribunal at [22] stated that the relevant considerations on exercise of discretion to grant an extension of time were: the length of the delay; the reason for the delay; the appellant's prospects of success, that is, whether there is a fairly arguable case; and the extent of any prejudice suffered by the respondent to the appeal.
3. Here there was no clear explanation for the one day delay but no specific prejudice suffered by that slight delay was (or could in our view) be pointed to and, as will be seen below, there are serious grounds raised by the appeal.
4. We grant the extension of time for filing the appeal to and including 25 August 2021.

Principles governing internal appeals

1. CATA s 80 provides as follows: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) 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."
2. Clause 12 of Schedule 4 to CATA states: "An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of 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)."
3. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
4. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
5. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel set out the following as specifically included within errors of law: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
6. In relation to adequacy of reasons, it is essential to expose the reasons for resolving a point critical to the contest between the parties but the manner in which that obligation is discharged varies according to the nature of the jurisdiction being exercised, the court or tribunal exercising it and the subject matter being determined: Soulemezis v Dudley (Holdings) PL (1987) 10 NSWLR 247 (CA) at 259, 270-272, 280-281; Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at [40]; Wainohu v NSW (2011) 243 CLR 181 at [58]; NSW Land and Housing Corp v Orr (2019) 100 NSWLR 578, [2019] NSWCA 231 at [65]-[77]; CATA s 62(3).
7. A failure to deal with evidence critical to a contested issue that is decided may be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence or a failure to give adequate reasons: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
8. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated as follows: "76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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. 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. … 81 … even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12 of Sch 4 to the Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) [which uses the word "may" grant leave]. 84 The general principles derived from these cases can be summarised as follows: … (2) 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."
9. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 an Appeal Panel stated: "In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent."

Grounds of appeal

1. We discern the following grounds of appeal, which we confirmed represented the substance of what the landlord wished to raise: 1. Error of law in providing inadequate reasons. 2. Error of law in failing to take into account relevant considerations such as the incoming and outgoing condition reports and photographs and an express clause in the tenancy agreement on gardening maintenance. 3. Errors of fact justifying a grant of leave to appeal because they resulted in a decision against the weight of evidence, that was not fair and equitable, were sufficiently serious and raised the significant possibility of a different outcome if corrected such as to constitute a substantial miscarriage of justice. 4. Alleged absence of procedural fairness in not being allowed to give oral evidence as at the original hearing.

Tenants' response

1. The tenants said that the Member conducted a fair hearing, properly treated the material before him and sought to uphold the result. They pointed in detail to the contest on the factual material between the parties, in particular on the photographs that each party put forward.

Consideration and conclusion

1. We agree with the landlord's submissions in support of her grounds of appeal concerning inadequacy of reasons and no articulation that showed relevant considerations had been taken into account. To emphasise what is said in the authorities already cited on this topic earlier, it is essential that a decision-maker state clearly the reasons which are relied upon to justify the Tribunal's findings. In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at (46] Basten JA said that a "pragmatic and functional approach" is to be applied in determining whether the obligation to give reasons has been satisfied. At [48] His Honour stated that the function of the appellate court is: "to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power."
2. Similarly, in Carlson v King (1947) 64 WN (NSW) 65 Jordan CJ at page 66 said that a decision-maker must make "a note of everything necessary to enable the case to be laid properly and sufficiently before the Appellate Court if there should be an appeal."
3. The Appeal Panel does not consider the Tribunal's reasons meet this threshold test. Whilst the obligation does not require the spelling out of every detail of the process of reasoning, the reasons must resolve critical problems in contest and facilitate appellate review: Kendirjian v Ayoub [2008] NSWCA 194 at [169] per McColl JA. There is very little evidence referred to in the Tribunal's decision, and virtually no reference to the detailed evidence relied upon by the appellant. Whilst the transcript records that the Tribunal repeatedly stated that it would look at the evidence, it is not apparent that the evidence of the appellant was in fact considered. The failure to refer to the evidence in detail does not provide the Appeal Panel the necessary confidence that the evidence has been adequately considered.
4. Since these are errors of law we do not need to consider the remaining grounds of appeal.
5. We do however note concern that, if the proceedings were conducted as the (contested) description of the opening part reads (which we have set out earlier), then there appears to be a marked absence of procedural fairness.
6. We also note concern that, on the uncontested part of the transcript, no party was given the opportunity to attest to their factual material and be tested on it by questions from the other party. While the Tribunal governs its own procedure under CATA s 38 and under s 36(4) should implement practice and procedure so as to facilitate the resolution of issues in such a way that the cost is proportionate to the importance and complexity of the subject-matter, this must be within the overriding requirement of procedural fairness expressly referred to in s 38(2).
7. Here the parties were in deep factual conflict on the alleged breaches of tenancy agreement. The landlord expressly asked to give evidence and could have been tested on that evidence with that process also afforded to the tenants. The process could have been tailored to the time constraints which usually allow at least 1.5 hours for this type of special fixture final hearing on a contested bond.
8. The following matters support in our view the errors of law we expressly find.
9. First, the primary reasons completely missed that the original reasons had given only $525 out of the $939.50 claimed for gardening and thereby ordered an excessive return.
10. Secondly, the reasons completely failed to deal with the fact that the original reasons had removed from the gardening claim an amount for pruning which the second reasons said was not within the obligation of a tenant.
11. Thirdly, the reasons did not deal with the express provision in each tenancy agreement that on one view required weeding by the tenants, yet found that weeding was not an obligation set by law. While the characterisation of that obligation and its scope may be controversial and may have changed on the wording in each tenancy agreement (or may not), there was no consideration in the expressed reasons of this central issue and how it contributed to the conclusion.
12. Fourthly, there was no indication in the reasons of how the primary member assessed the comparison between the position shown in the incoming condition report and photographs and the position at the end of the tenancy in relation to the blinds and the toilet, and how that assessment factored into the conclusion reached. Allied to this consideration is the fact that the Tribunal made no reference to the fact that photographs which the respondent relied upon which he stated were taken immediately after his re-location from the premises were in fact, as proved by the dating on the photographs, several days later and only after the appellant had undertaken work on the premises. Accordingly, photographs provided an impression favourable to the respondent.
13. Fifthly, the reasons were not reflected in the orders in relation to the blind repairs. These were said not to be supported by the available evidence (without exposing by reference to the evidence why that was said) but the $113.60 was not part of the ordered refund.
14. By reason of the foregoing we allow the appeal and set aside order 1 made by the Tribunal on 10 August 2020. The current stay of that order will expire with the extinction of the order to which it related.

Appropriate relief on appeal

1. CATA s 81 provides as follows: "(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."
2. The errors of law that we have identified necessitate detailed reconsideration of the comprehensive and conflicting evidence put forward by the parties, with targeted oral evidence and the opportunity for cross-examination.
3. It is not appropriate that the Appeal Panel itself engage in the primary fact-finding: it may not have all the evidence even though it appears to; it would require the parties to give oral evidence before it and to be cross-examined; it has not heard the parties' full submissions on those matters; to hear and determine the matter would deny the parties the first level of appeal.
4. In the circumstances where the primary decision has been completely set aside, now twice, we think it appropriate that such new hearing should be before a Tribunal differently constituted from that on earlier final hearings, in order to avoid any suggestion of pre-judgment: cp Walker Corporation v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 at [121] (5) and (7).

Costs of appeal

1. Neither party sought leave for legal representation on the appeal. We discern no special circumstances in the appeal, as required by s 60 of the Civil and Administrative Tribunal Act 2013 (NSW), to justify a costs order given the amounts involved in the proceedings appealed from: rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW).

Orders

1. We make the following orders: 1. Time for filing of notice of appeal is extended from 24 to and including 25 August 2021. 2. Leave to appeal is granted, to the extent that leave is required. 3. The appeal is allowed. 4. Set aside order 1 made by the Tribunal on 10 August 2020. 5. Remit the matter to the Consumer and Commercial Division for re-hearing before a Member who did not conduct the hearing on 3 June 2021 and the hearing on 10 August 2021.

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: 06 December 2021