Jordan v Audet

The proceedings at first instance

1. The tenant commenced proceedings seeking damages for breach of the residential tenancy agreement by the landlord, in particular for the treatment or replacement of items of the tenant's property affected by mould in the residential premises.
2. The parties below tendered certain evidence to which reference will be made. The Notice of Appeal before us does not seek leave to adduce any new evidence.
3. The reasoning of the Tribunal below was essentially as follows: 1. Within a month of moving into the premises, up until its vacation, the tenants "consistently and repeatedly asked the landlord to remedy the significant mould issue in the property" - noting that it was not contested that the premises were "moderately to severely affected by mould". 2. There were only two attempts made by the landlord to remedy the problem according to the evidence before the Tribunal below, namely a "20 minute clean" of the ceilings in the bathrooms with Exit Mould on 9 June 2014 (the reference to 2015 is evidently a typographical error in the reasons), and a further inspection by a mould specialist shortly before the tenancy was terminated when a mould specialist came to clean the walls and the ceilings of the units by a process referred as "fogging" which involved spraying the walls and ceilings with chlorine.
4. The tenant said the mould had permeated the walls, ceilings and soft furnishings, and that there was consistent and regular complaint to the landlord in that regard. The landlord, in response, said that the mould arose due to the tenant's failure to ventilate the property, and thereby deny breaching the residential tenancy agreement.
5. On the basis of what the Tribunal described as "uncontested affirmed evidence" of regular complaint by the tenants and the two treatments already referred to, the Tribunal concluded that the landlord "failed to acknowledge and investigate the extensive mould" and that amounted to a breach of s 52(1) because that "persistent and recurring mould issue rendered the premises unclean" although not uninhabitable. Further, the failure to take steps to investigate and remedy the mould was a breach of the agreement.
6. Significantly, given the case now put before us, the Tribunal went on to say: I accept the tenant's evidence that she mitigated her losses by never using the dryer without a window open, and that she left wherever practicable, windows and doors open to cross-ventilate. It is not strictly necessary for the Tribunal to make a finding as to the cause of the mould. Having found the moderate mould present, it is the consistent failure of the landlord to investigate and remedy the mould that gives rise to the breach. However, it is likely that the most probable cause of the mould was lack of screen doors being installed on the townhouses, thus preventing effective air circulation. It is likely that a large overshadowing tree further limited air and sun circulation. The fact that steps were taken to install screen doors and remove the tree are supportive of this proposition.
7. We take that last quoted passage to be a finding that would at least preclude any conclusion that the state of disrepair, being the mould, was caused by a breach of the part of the Act by the tenant within the meaning of s 63(3), although that provision was not expressly mentioned.
8. The Tribunal finally below turned to the question of damages. There was uncontested evidence as to the loss, which was met only by submissions by the landlord that quotations were "ridiculous". There was no ground of appeal challenging the quantification of the damages. Although submissions were made by the applicant that the Tribunal should, because of "contributory negligence of the tenant", reduce the figure awarded in damages by 50%, it was, we think accepted by the applicant's legal representative, that there was no evidence before the Tribunal which would permit that to be done, even had there been a ground of appeal attacking the finding as to damages, which where there was not. For that reason, we say no more about the quantification of the damages below.

Grounds of appeal

1. Three grounds of appeal were maintained, the fourth ground being abandoned by the applicant during the hearing. We set them out in full: (1) Reasons given by the member relating to the orders do not give fair weight to the evidence tendered by the respondent, nor efforts made to remediate the issue. The mould removal specialist was appointed to treat the premises for mould. Replacement of doors and windows and additional fly screens were installed to enable better ventilation to the property. The large tree overshadowing the premises was removed in order to provide for better air flow and increased light. It must be noted that these last two items require the consideration and approval of the Executive Committee - the time frame of which relies on the approval process employed by the body corporate and strata management. The mould issues with the premises were raised to attention at the annual general meeting held on 24 February 2015 by Bernadette Rainer, Principal of the Landlords Managing Agency. The statutory declaration completed by Bernadette Rainer (attached), attests to this fact.
2. Pausing there, we note that there was no ground of appeal asserting that there was new evidence, such as a new statutory declaration, that should now be admitted. There was no application at the hearing to adduce evidence in the form of that statutory declaration, and we therefore take no account of that part of ground 1. The other grounds were as follows: (2) Evidence tendered by the respondent included a mould observation and suggestion report supplied by mouldremoval.net.au, who were engaged to treat the mould issue at the premises which indicates the mould issue within the premises is mainly due to the use of the clothes dryer, as well as the lifestyle of the tenants (including allowing a dog to reside within the premises, which increases bacterial levels, therefore being more likely to promote the growth of mould within a home). (3) Evidence tendered by the applicant did not meet the burden of proof, without causation report as to the growth of the mould.
3. These grounds are essentially complaints as to the weight given or not given to the landlord's evidence. Although it was suggested in oral argument that the report of mouldremoval.net.au was not considered by the Tribunal below, we note that it was in evidence before the Tribunal below and that although it was not referred to in terms in the reasons, its contentions are alluded to sufficiently in the reasons below.

Leave to appeal

1. The decision of the Appeal Panel in Collins v Urban, a panel which included the President of the Tribunal, conveniently sets out the granting of leave to appeal. In this case, no question of law is identified. Rather, the applicant seeks leave to appeal on all grounds. Leave could be granted under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), relying on Clause 12 of Schedule 4 to the Act, which provides limitations on internal appeals against decisions as this one was, from the Consumer and Commercial Division of the Tribunal. Relevantly, Clause 12 provides that an internal appeal can only be granted if the Appeal Panel …is satisfied the appellant may have suffered a substantial miscarriage of justice because [relevantly]: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision under appeal was against the weight of evidence.
2. The Appeal Panel in Collins v Urban went on to consider the notions there set out at [76]-[84]: 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 wasfairly 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] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]. Leave to Appeal - General Principles on the Grant of Leave 80 If the Appeal Panel is satisfied that the applicant for leave to appeal from a decision of the Consumer and Commercial may have suffered a substantial miscarriage of justice on one of the grounds identified in cl 12(1)(a), (b) or (c), then the Panel "may" grant leave under s 80(2)(b) of the Act. 81 Thus, even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12 of Schedule 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). 82 The principles which govern the granting of leave to appeal by the Appeal Panel under s 80(2)(b) should generally be consistent with those which are applied by Courts when considering the question of leave to appeal. These have recently been summarised by the Court of Appeal in BHP Billiton Ltd v Dunning [2013] NSWCA 421. In addition, the Supreme Court has considered the principles which apply when granting leave to appeal to the Court from a decision of the Guardianship Tribunal in a number of cases including SAB v SEM [2013] NSWSC 253. The Guardianship Tribunal has now been absorbed into the Tribunal as the Guardianship Division. As there are alternate rights of appeal from decisions of the Guardianship Division to the Supreme Court or the Appeal Panel (see cll 12 to 14 of Schedule 6 to the Act) both by leave in the case of interlocutory decisions or on grounds other than a question of law, the same principles should apply in deciding whether to grant leave to appeal to the Court or to the Appeal Panel. 83 Further, the Appeal Panel has addressed the relevant principles to be applied when deciding whether to grant leave to extend an appeal to the merits of the decision (under s 113(2) ofAdministrative Decisions Tribunal Act 1997 (NSW)) in Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10. These principles may be applied by analogy when considering whether to grant leave to appeal under s 80(2)(b) of the Act. 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."
3. We agree with the approach in Collins v Urban, and now proceed to apply it.
4. The key report upon which the applicant bases much of its case relevantly says in its summary: "there is a condensation/mould issue in this unit and it is mainly due to the use of the clothes dryer, lifestyle, external vegetation overshadowing an aspect rather than a structural issue". The evidence in the report is consistent with that summary. That report, as we have earlier indicated, was before the Tribunal below, and considered by the Tribunal. It can be seen that the quoted sentence does not attribute the cause of the mould entirely to the tenant. There are references to "clothes dryer" and "lifestyle", being a reference no doubt to activity attributable to the tenant, but also to "external overshadowing", which is a matter for the landlord, albeit that it was in a strata scheme so that the landlord needed permission from the strata scheme to take action.
5. It follows from that, applying Collins v Urban, that the decision was not "against the weight of evidence" in the sense that the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal, that it can be said it was not one a reasonable Tribunal member could reach. Although the fair and equitable ground was also relied on, it did not appear that this sought to take things much further than the "against the weight of evidence" point.
6. Further, applying Collins v Urban, it was not clear to the Appeal Panel that the party had been deprived of a significant possibility, or a chance that was fairly open of achieving a different and more favourable result. That is to say, the Appeal Panel is not satisfied that there has been substantial miscarriage of justice. Even if we are wrong on this point, we would be disinclined to grant leave, bearing in mind the general principles set out in Collins v Urban. Rather, this appears to be a case where, at best, the applicant has contended that the decision-maker was arguably wrong in the conclusion reached. Certainly, there are no issues of principle or wider importance. The fact finding was not unorthodox, nor were facts unreasonably arrived at or clearly mistaken.
7. For all of those reasons, we would decline to grant leave to appeal in relation to the three remaining grounds of appeal. Accordingly, leave is refused, and the application is otherwise dismissed.
8. Application after the hearing
9. Well after the hearing concluded the Registry received the following email from the tenant: 1. "I would like to request that my name is withheld when the decision is published. As a tenant with a young family, I am very frightened that if my name is published this would adversely affect my ability to lease a home in the future. With the competitive nature of the Sydney property market and the difficulty in finding accommodation already with a young family, I believe that having my name published would be detrimental to my family."
10. Although not put in such terms, this would appear to be, and we will treat it as, an application under s 64 of the Civil and Administrative Tribunal Act 2013 for a non-disclosure order over the identity, including the name, of the respondent. We are not aware of any detailed consideration of this provision in other matters, but we do not consider it necessary to embark on such a consideration in this matter, beyond noting that such consideration would potentially raise large questions including the significance of the different language used in: 1. s 64 compared to, say, section 35, especially s 35(5) of the Administrative Appeals Tribunal Act (Cth), or 2. the Court Suppression and Non-Publication Orders Act 2010 and its federal analogues, see, eg Rinehart v Welker [2011] NSWCA 403 and the cases there cited.
11. Section 64(1) states

64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

1. We decline to make such an order for the following reasons. Because of that decision we did not need to hear from the opponent.
2. First, we are not convinced that the name of the respondent in relation to these proceedings is confidential. After all, there was no non-disclosure application made during the hearing of the appeal, nor was there any application that the hearing proceed in private under s 49 of the Civil and Administrative Tribunal Act. In consequence, the landlord has been free at all relevant times to disclose the name of the tenant should he have wished to do so, further any member of the public could have attended the hearing. However we do not need to base our decision on that aspect of the matter.
3. Second, (and this is dispositive) we are not satisfied that it is desirable to make such an order: 1. We see the scheme of the Civil and Administrative Tribunal Act as providing a presumption in favour of open hearings (and thus open reporting of the result of hearings) in this type of matter. 2. There needs to be persuasive evidence to rebut that presumption. 3. Here there is no evidence provided to justify the fears asserted by the respondent. There is only an assertion, which, while no doubt genuine is not rational. While this decision will be made available in the usual fashion on the internet, there is nothing in this decision which reflects adversely upon the tenant, nor is there any rational reason to consider that a landlord would be less likely to rent premises to the tenant based on those facts: the facts do not relate to the tenant having a young family, rather they are quite specific to the mould problems which arose in a particular property.
4. We therefore decline to make the order sought. In order that the tenant has a reasonable opportunity to contest that decision we direct the Registrar not to publish these reasons on the internet until 5 days have passed from the parties receiving their copies of the reasons. 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: 28 January 2016