Jeyarajah v Evans

Jeyarajah v Evans - [2023] NSWCATAP 247 - NSWCATAP 2023 case summary — Zoe

[3]

Scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, with the "leave") of the Appeal Panel: s 80(2) of the NCAT Act.
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.
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 on the basis that: 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).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), 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.

[7]

Extension of time to file the Appeal

The landlords filed a Notice of Appeal on 5 April 2023. The appeal against a decision made in residential tenancy proceedings is not brought in time.
The Notice of Appeal was filed five days beyond the time limit in r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) ('NCAT Rules'), which stipulates that an internal appeal to the Appeal Panel from a decision made in residential proceedings must be filed within 14 days from the date the appellant was notified of the decision or given reasons for the decision (whichever is the latter), unless leave to extend time is granted under s 41 of the NCAT Act.
The appellant asks for the requisite extension of time. Under s 41 of the NCAT Act, the time period to lodge an appeal may be extended.
The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation 2014 NSWCATAP 22 at 22. In that case the Appeal Panel said that the time limit should generally be strictly enforced but that was not to say that exceptions should not be made where the interests of justice so require (at 21). The Appeal Panel added (at 22): The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (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.
We consider that the necessary extension of time in which to appeal should be granted in view of the short delay, the explanation provided, and as the respondent has not provided any evidence or submission why the short extension causes prejudice.

[9]

Ground 2

The appellants submit that the Tribunal of its own motion raised sections 50 and 63 of the RT Act during the hearing thereby aiding the tenant and surprising the landlords. The landlords submit this amounted to a denial of procedural fairness. We disagree. A court or tribunal referring to relevant sections of the enabling legislation does not raise issues of procedural fairness. Sections 50 and 63 of the RT Act merely set out the tenant's rights and the landlord's obligations pursuant to Divisions 3 and 4 of the RT Act.
For convenience we have set out sections 50 and 63 in full. Tenant's right to quiet enjoyment 50 TENANT'S RIGHT TO QUIET ENJOYMENT (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. : Maximum penalty--10 penalty units. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement. Landlord's general obligation 63 LANDLORD'S GENERAL OBLIGATION (1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. (2) A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises. (3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part. (4) This section is a term of every residential tenancy agreement.
Sections 50 and 63 respectively do not enable the Tribunal to make orders nor do the sections enliven causes of action or additional remedies to those pleaded and particularised by the tenant in her application form. We note that each section forms part of the residential tenancy agreement and as such the parties are presumed to be aware of the tenant's rights and the landlord's obligations. In terms of her claim for compensation, the tenant brought her claim, correctly, pursuant to sections 187 and 44 of the RT Act. Bringing sections 50 and 63 to the parties' attention during the course of a hearing is not procedurally unfair. Rather the Tribunal is obliged to apply the relevant law.
In Sydney RV Group Pty Ltd v Mark Anthony Vallender [2021] NSWCATAP 125, it was alleged that the Tribunal at first instance denied the appellant procedural fairness in that it failed to explain the nature of the proceedings to a self-represented litigant. This was said to be in breach of s 38(5)(a) of the NCAT Act. The Appeal Panel noted that there is no universal rule that can be crystallised that will explain the hearing process or ensure procedural fairness on a "one fits all basis". The Appeal Panel noted that what is required to be done to accord procedural fairness and ensure natural justice will depend upon the facts and circumstances of the particular case (see also Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 503-504). We consider that the Tribunal was obliged to bring the relevant sections of the RT Act to the parties' attention to ensure each understood the sections of the enabling legislation to be applied.
Finally, it is noted that the landlords did not appear at the hearing. The landlords were represented by an agent who conducted the hearing on their behalf. The appellants were directed at the appeal call over of 19 April 2023 to provide a typed transcript of the relevant parts of the hearing together with the sound recording of the entire hearing. No such transcript was provided. In an appeal it is the appellant who bears the onus to establish an error on a question of law, such as denial of procedural fairness that occurred during the hearing. In the absence of the evidence and a transcript we are not persuaded that simply by applying the relevant law, the Tribunal engaged in conduct that could reasonably deny procedural fairness. This ground of appeal must be dismissed.

[10]

Ground 3

The appellants submit that the Tribunal erred in finding there was a reduction or withdrawal of facility under section 44 and awarding 50% rent reduction for 12 months and in addition the Tribunal's reasons at paragraph [8] do not provide reasons why the rent reduction is fair and reasonable.
We refer to paragraph 8 of the Tribunal's reasons 8. Based upon the ongoing continuing breach of Section 63 of the Act, the Tribunal finds that the landlord has reduced or withdrawn the services or facilities provided with the residential premises being the restriction that the tenant has had in using the lounge room, dining room, kitchen and both bedrooms because of the effects of the water ingress and resultant mould on those areas of the property. The Tribunal is satisfied that it should make a rent reduction order pursuant to Section 44 of the Act. Section 44(6)(a) states that any such order has effect for the period (of not more than 12 months) specified by the Tribunal. Therefore, based upon the ongoing breach basically since 2020 the Tribunal shall make a rent reduction order for the last 12 months up until the repairs are to be completed, that being from 1-Apr-2022 to 30-Mar-2023. Based upon the effect on the property and the impact on most of the internal areas - the lounge room, dining room, kitchen and both bedrooms, the Tribunal accepts that the rent reduction amount claimed by the tenant of 50% = $220.00 per week is a fair and reasonable amount. The Tribunal makes an order accordingly.
We have been provided with a copy of the tenant's evidence filed at first instance. The Tribunal makes the critical finding that the withdrawal of services or facilities restricted the tenant in the use of the lounge room, dining room kitchen and both bedrooms because of the effects of the water ingress and resultant mould on all areas of the property. The evidence was not contested. We have not been provided with a transcript of the hearing or with evidence of cross-examination of the tenant on these issues. The tenant provided statements and extensive evidence of the effect of the mould across the entire residential premises. In the absence of a challenge the Tribunal was entitled to accept the evidence and there was a preponderance of evidence that the breaches continued for a period of two years and affected the entire property. The landlords represented themselves in this appeal. The agent who represented the landlords in the hearing below did not appear. The appellants were unable to direct the Appeal Panel to evidence that contradicted the findings made at first instance. We have not been provided with any evidence that the submissions by the tenant were contradicted or opposed by the landlord's agent.
We have had regard to the appellants' evidence. Considering the evidence tendered by the landlords and in particular the Bay Building Services and the Chilli Hot Water and Plumbing report it cannot be said to be in dispute that the premises suffered from water leaks. It is further not in dispute that the tenant first complained of the leaks in 2020 and that the leaks were not repaired until November 2022. Based on this evidence it was open to the Tribunal to arrive at a finding that there had been a continuous breach of s63, a failure to repair and maintain.
In terms of the remedy sought under s44, it is an irrelevant consideration that the tenant had a flat mate. The breach alleged against the tenant, even if established, is not relevant to the withdrawal of services by the landlord, as found by the Tribunal in section [10] of the reasons for decision. This ground of appeal must be dismissed.

[12]

Ground 5

If we understand this ground correctly, the landlords contend that the claim for compensation in the sum of $5000 should have been dismissed as it was brought out of time. Clause 39 of the Residential Tenancy Regulation sets out time limits for applications seeking compensation under s 190(1), any applications for an order in relation to a breach of tenancy agreement must be brought within 3 months of becoming aware of the breach, but time for filing the application may be extended under s41 of the NCAT Act.
Whilst the appellants correctly state that the Tribunal found that the breach first occurred in 2020 when the roof leaks where identified, the Tribunal found the breach to have continued by the reason of the landlords' failure to remedy the breach.
It is not contentious that the agent retained contractors to repair the leaks but as at 17 June 2022 the work was still not completed. In an email tendered by the landlords (AP bundle page 5) the property manager advises that "roof repair is scheduled on 19th July, the contractor advised due to weather and workload general wait time will be 3 months. He [the contractor] advised the work will be completed between 18 - 22th July". In the application form the tenant claimed that the external roof was partially repaired in August 2022 and the contractor advised that significantly more work needed to be done and mould remained in the bedrooms. An insurance assessor retained by the owners described the roof as "shocking" and on 7 October 2022 the tenant sought a rent reduction of 50%. As the agent did not respond to the tenant's offer, the tenant commenced proceedings . Given the breach was not remedied as late as 7 October 2022 the application filed by 13 November 2022 was brought well within time. In those circumstances no extension of time was required and this ground of appeal must fail.
In any event, we consider that there was no time limitation issue raised by the appellants (represented by an agent) below. The landlords should not be permitted to rely on defences that that were not raised before the Tribunal. We refer to Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 - 646. To similar effect is Mamo v Surace (2014) 86 NSWLR 275 at 289 where McColl JA, with whom Ward JA and Tobias AJA agreed, held: '[75] A party is bound by the conduct of his or her case. It has long been the law that, except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him or her, to raise on appeal (even one by way of rehearing) a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so: Coulton v Holcombe (1986) 162 CLR 1 at 7-8 per Gibbs CJ, Wilson, Brennan and Dawson JJ; approving University of Wollongong v Metwally (No 2)(1985) 59 ALJR 481 at 483; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598.'
This principle has been consistently applied in the Tribunal. Refer, Oppidan Homes Pty Ltd v Baldwin and Granofsky [2016] NSWCATAP 109, Scarano v Palm Pools and Spas Pty Ltd [2019] NSWCATAP 79 and in Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2016] NSWCATAP 210 at [55].
This ground of appeal is dismissed.
Ground 6: this ground of appeal is withdrawn.

[13]

Ground 7

The appellant contends that the tenant was doubly compensated and that the amount awarded by the Tribunal "overlaps" the claim for rent reduction and the claim for compensation. We refer to the Appeal Panel decision of Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 as authority for the proposition that an award for compensation under s 190 and an award for rent reduction for withdrawal of services is not mutually exclusive. As was stated by the learned Appeal Panel at [86]: That is not to suggest that a claim for damages for loss of quiet enjoyment and an order for the reduction of rent are mutually exclusive forms of relief. Depending on the claims made, there may be facts common to both types of claim which would need to be taken into account in order to avoid double compensation. For example if the premises (or part thereof) cannot be used in the manner intended or its use is in some way impaired by reason of a landlord's breach, it may be inappropriate to both reduce the rent and make an award of damages for loss of use.
It was found by his Honour Justice Basten in Makowska v St George Community Housing Ltd [2021] NSWSC 287 that it is of course possible that conduct of a landlord may constitute a breach of the tenant's right to quiet enjoyment and a reduction or withdrawal of facilities. It is clear from the documents and submissions of the parties at the hearing that the tenant suffered significantly from lack of quiet enjoyment whilst the roof leaks continued. This is separate from her inability to use all rooms in the residential premises. The award made for loss of quiet enjoyment was clearly distinguished from the award made for the rent reduction: the Tribunal found at [6] that the ineffective attempts by the landlord to remedy the breach caused mould and continued to effect the tenant on an ongoing basis since 2020. In addition, after the roof was finally repaired, the landlord failed to remediate the mould contamination which damaged the tenants belongings and the breach damaged the tenant's belongings "thereby the Tribunal finds these continuous leaks and resultant mould issues have also breached the tenant's right to quiet enjoyment of the property throughout the period - Section 50 of the Act". It is clear that the Tribunal distinguished purposefully between breaches of quiet enjoyment and the withdrawal of services by reason of the restriction "that the tenant has had in using the lounge room, dining room, kitchen and both bedrooms because of the effects of water ingress and resultant mould" [8].
We refer to the recent decision of the Tribunal differently constituted in Parker v Lowe [2022] NSWCATCD183. The Tribunal ordered both a rent reduction and compensation for non-economic loss. At [33] the Tribunal stated An order under s 44(1)(b) is referrable to the rent paid by the tenant. It therefore involves a form of economic loss suffered by the tenant, being the loss of consideration of possession of the premises relative to the rent paid. Distress and disappointment are distinct heads of non-economic loss that are not duplicative of the remedy provided by s 44(1)(b): Makowska v St George Community Housing Ltd [2021] NSWSC 287 at [46].
We are satisfied that the reasons provided by the Tribunal distinguish sufficiently between the two remedies and that no error on a question of law has been established nor a ground for which the leave of the Appeal Panel is required.
Ground 8. This ground of appeal is withdrawn
In the disposition of the appeal, we are not satisfied that the grounds of appeal have been established or that leave should be granted as the findings were against the weight of evidence.
A decision is "against the weight of evidence" when 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 (Collins v Urban at [77]).
We are not satisfied the landlord has established the decision was against the weight of evidence such that a substantial miscarriage of justice occurred. The Member's reasons clearly set out why the Member was satisfied the landlord had proved breach of s 63 and 50 of the RT Act. The Member's reasons are logical and orthodox.
Further, the Member's finding that the landlord breached s 63 of the RT Act was based upon the finding that the breach had been ongoing for years and the leak and the mould issues had not been rectified. The Tribunal was justifiably critical of the lack of adequate repairs carried out by the landlord in respect of mould, cleaning and repairs. The Tribunal was entitled to place significantly weight upon the tenant's evidence of ongoing breach.
We are not satisfied the decision was against the weight of evidence. We are also not satisfied the decision was not fair and equitable. No basis for leave to appeal under cl. 12 of Sch. 4 of the NCAT Act has been established by the landlord, and we do not grant leave to appeal in accordance with the principles set out in Collins v Urban.

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