Johnson v Nachar

Background

1. The following facts are uncontroversial. The parties entered into a written residential tenancy agreement dated 12 March 2022 for residential premises at Casula, New South Wales. The tenancy was for a fixed term of 12 months to end on 13 March 2023. Following the end of the fixed term the residential tenancy agreement continued on a periodic basis and was terminated when the tenant vacated the premises on 8 September 2023.
2. The tenant maintained that she noticed dampness and mould emanating from the ceiling in the lounge room from October 2022 and that part of the ceiling in the lounge room collapsed. She stopped using the bathroom because use of the bathroom shower caused a leak into the kitchen below. The tenant claims that repairs to the ceilings of the kitchen and lounge room were undertaken and completed on 19 April 2023, but separately and distinctly the leaks from the main bathroom were not repaired during the tenancy. The tenant claimed compensation because her use of the kitchen, lounge room and bathroom were restricted during different periods.
3. In summary the tenant claims 1. $30 per week rent reduction from 1 December 2022 to 19 April 2023 for loss of use of the kitchen; 2. $50 per week rent reduction from 1 November 2022 until 19 April 2023 for restricted use of the lounge room; 3. $50 per week rent reduction from 1 March 2023 to 8 September 2023 for loss of use of the main bathroom and shower.

Scope and nature of internal appeals

1. 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.
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 Sch 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).
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 Sch 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. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Rather, to succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).
6. In respect of a self-represented non legally trained appellant, in accordance with established appeal practice, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised (Prendergast at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13]). We note some of the tenant's grounds of appeal claim she was denied procedural fairness.
7. Accordingly, we have carefully reviewed the material and submissions put forward by the tenant and sought to give a beneficial construction to the grounds of appeal and submissions put forward. We have attempted where possible to distil the possible relevant contentions.

Submissions and evidence

1. In deciding the appeal, we have had regard to the following:

• The Notice of Appeal lodged on 5 December 2023 with attachments and the tenant's material filed on 24 January 2024.
• The Reply to Appeal lodged 27 December 2023 and the landlord's material filed on 21 February 2024.

Grounds of Appeal

1. The grounds of appeal were particularised by the tenant in the notice of appeal filed on 5 December 2023. We have set out the grounds of appeal as follows:
2. Ground 1: The member decided, against the weight of evidence, that the property manager was not aware of plumbing issues prior to February 2023.The member decided against the weight of evidence that the property manager was unaware of the kitchen leak.
3. Ground 2: Significant new evidence is now available, in the form of phone records and strata records that were not available at time of hearing.
4. Ground 3: Denial of procedural fairness because video evidence was not considered.

Reply to Appeal

1. In the reply to appeal the landlord submits that the decision was fair and reasonable and the appellant received procedural fairness. In respect of the application to file fresh evidence, the landlord states that the material the tenant seeks to rely on was available at the time of hearing and, in any event, would not advance the appellant's position. The landlord submits the video evidence was played during the hearing and the Member acknowledged it in the published written reasons for decision.

Extension of time to file the Appeal

1. The tenant filed her notice of appeal on 5 December 2023. The appeal against a decision made in residential tenancy proceedings is not brought in time.
2. The Notice of Appeal was filed one day 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 application was filed or processed on the 15th day.
3. The tenant did not seek an extension of time. She may have been under the impression that the notice of appeal was filed in time because it was signed on 4 December 2023 but the notice of appeal was not received by the appeal panel registry until 5 December 2023. However, not much turns on this and under s 41 of the NCAT Act the time period to lodge an appeal may be extended.
4. We consider that the necessary extension of time in which to file the notice of appeal should be granted in view of the very short delay, the fact that the appeal notice was in fact signed on 4 December 2023 and as the landlord has not provided any evidence or submission why such a short extension causes prejudice.

Ground 1 - the main bathroom

1. For convenience we consider grounds one and two of the notice of appeal may be dealt with as one. The tenant submits that the Tribunal decision dated 16 March 2023 was "against the weight of evidence". It is her contention that the Tribunal's finding that the landlord had no knowledge of the plumbing issue until March 2023 was against the weight of evidence. We consider that the "plumbing issue" refers to the tenant's assumption that the waterproofing in the main bathroom had failed and that despite the fact that repairs to the kitchen and lounge room ceiling were completed on 19 April 2023, a waterproofing issue in the bathroom remained and the tenant was prevented from using the main bathroom and shower from 1 March 2022 because she feared the leaks would exacerbate.
2. The "plumbing issue" is referred to by the tenant with varying specificity. In her application form dated September 2023 she states "water leaking from failed waterproofing impacting… food preparation" and "we were also not able to use the main bathroom". The time line filed by the tenant on 24 January 2024 refers to "May 2023 - 3 emails sent from strata to agent to notify of scheduled repairs regarding the water proofing". In her summary filed in support of the appeal the tenant submits "in September [2022] I contacted [the agent] via telephone and I advised him of the markings on the lounge room ceiling … and what may be some type of leak coming from the bathroom … but I am not sure if it was connected."
3. We have considered the tenant's evidence filed in the proceedings below and in support of the appeal. We were unable to locate contemporaneous emails predating March 2023 from the tenant to the agent advising of water proofing failure in the main bathroom or any evidence alerting the agent of the fact that the tenant was prevented from using the main bathroom. Although the agent concedes that it was later established there was a leak in the shower tray, he denies ever being informed of the tenant's inability to use the bathroom before her departure in September 2023.
4. The decision refers to the tenant's claim in respect of the bathroom as follows: "14. The Tribunal finds that mid April 2023 is the appropriate date for the end of a rent reduction. Because the agent was not told that in fact the leak in the main bathroom had not been repaired and was still a potential cause of mould.... 15. …the agent stated that an inspection of the premises was carried out on 29 September 2022. At that time the tenant told the agent water was coming out of the shower onto the bathroom floor. The agent referred to page 60 of the landlord's documents showing a photograph taken of the drain next to the shower showing water lingering at that floor drain. The agent said that this was shown to a plumber who said that it would have no effect on any other part of the premises because of waterproofing of that floor. The agent said that this was not related to the issue with the shower in the main bathroom causing leaks to the kitchen and lounge room. 16. The tenant then refer to an inspection done on 11 November 2022... the agent said that this inspection related to a separate matter in an upstairs bedroom in the ceiling of that room for which work was done. He said that this was not related to the issue of the main bathroom leaking.
5. The tenant sought to rely on fresh evidence in the form of the strata manager's work sheets, collated through the strata manager's software program ASSM. The tenant obtained the evidence from the strata manager's website after the conclusion of the hearing on 15 November 2023. The strata software demonstrates that on 8 May 2023 an email was sent (it is unclear by whom to whom) and a number was created for "job 76501". The tenant submits this proves the landlord was at all relevant times aware of a bathroom leak. We have also considered the tenant's phone records, also advanced as fresh evidence, that demonstrate that the tenant contacted the landlord's agent on 20 September 2022.
6. The strata manager's software excerpts and the tenant's Vodafone records do not satisfy the criteria for fresh evidence under cl 12 of Sch 4 of the NCAT Act. An Appeal Panel may grant leave to rely on fresh evidence under s 80(2)(b) of the NCAT 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 the decision of the Tribunal under appeal was not fair and equitable, or the decision of the Tribunal under appeal was against the weight of evidence, or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
7. We are not satisfied that the evidence "was not reasonably available at the time the proceedings under appeal were being dealt with". We interpret cl 12(1)(c) of Sch 4 of the NCAT Act to mean that the new evidence must have been in existence at the time of the hearing and that leave to appeal may be granted if the appellant suffered a substantial miscarriage of justice because the new evidence was unavailable at the hearing because no person could have reasonably obtained the evidence.
8. Support for this construction is to be found in Chapman v McLaughlin [2016] NSWCATAP 212 at [37] in which an Appeal Panel stated: "… The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply." (Emphasis added)
9. The interpretation we stated at [32] and the effect of the authority of Chapman v McLaughlin results in us finding that the tenant is not entitled to rely on new evidence as both the strata and phone records were in existence and could reasonably have been obtained without great effort or expense prior to the first hearing. In addition we are not of the view that the fresh evidence advances the tenant's case. The fact that a strata record refers to an email of May 2023 does not establish that the tenant brought the bathroom leak to the landlord's attention. Nor do the phone records prove that the tenant spoke of waterproofing or bathroom leaks to the agent on 20 September 2022 as alleged. A quote dated 5 June 2023 advising of bathroom renovations addressed to the owners corporation was only provided to the landlord in the context of this appeal. For these reasons the appellant's application for leave to appeal to adduce fresh evidence based on cl 12(1)(c) of Sch 4 of the NCAT Act is refused.
10. For these reasons we are not satisfied that the finding at [14] that "… mid April 2023 is the appropriate date for the end of a rent reduction because the agent was not told that in fact the leak in the main bathroom had not been repaired" was against the weight of evidence. This ground of appeal is dismissed.

Ground 2 - Video evidence not viewed by the member

1. The tenant alleges that her video evidence was ignored and that the evidence establishes "the deterioration in a 2 week period" (see page 4 of the notice of appeal). The tenant submits that she was denied procedural fairness because "the video I submitted was not watched or taken into consideration". This ground of appeal raises a question of law, leave of the Appeal Panel is not required and the tenant proceeds as of right in respect of this ground.
2. However, we refer to the landlord's submissions on this point that "the video evidence does not advance the matter and is acknowledged by the member has having been played by the appellant at the hearing". We have had regard to the written reasons for decision. At [17] the Tribunal refers to the video: "17. The tenant claimed that there had been a previous water leak in the premises where leaks or mould had come through in the same spot as where the mould appeared in the kitchen. The tenant said that the landlord for that issue had merely just painted over it. Further in her evidence she showed a video on her laptop which she said showed the actual mould in the kitchen the subject of her complaint and what she said were marks on the ceiling showing where there had been a previous leak or mould problem painted over by the landlord. She referred to images in the landlord's documents which she claimed showed a patch where a leak had been (See in the landlord's documents page 51 image 14 and page 84 in the top right hand corner)."
3. We consider that the video evidence was taken into account and the evidence was clearly referred to. We have not been provided with transcript of the proceedings that would support the contention that video evidence was not watched "due to running out of time" or that the tenant was not afforded an opportunity to be heard in satisfaction of s 38 of the NCAT Act. No further submission in respect of the video was made during the oral hearing of the appeal and we are not satisfied that an error on the part of the Tribunal has been established. This ground of appeal is dismissed.
4. For these reasons we are not of the view that the tenant has established an error of law or an error for which the leave of the Appeal Panel may be required. Accordingly we would extend time for the filing of the notice of appeal but refuse leave and dismiss the appeal.

Orders

1. The orders of the Appeal Panel are: 1. Leave to extend time to file the Notice of Appeal to 5 December 2023. 2. Leave to appeal refused. 3. Appeal dismissed. 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

Amendments 10 July 2024 - Coversheet: Senior Member amended to Principal Member 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: 10 July 2024