Khan & Anor v Zaicos & Anor [2017] NSWCATAP 50 | Case summary

Reasons for decision

This is an appeal from a decision of the Tribunal in its Consumer and Commercial Division made on 27 October 2015. It was a residential tenancy matter. The appellants before the Appeal Panel were the respondents in the proceedings below and the tenants of the residential premises. The application had been brought by the landlords seeking an order for the payment of money pursuant to subsection 187 (1)(c) of the Residential Tenancies Act 2010 (the Act) for what might generally be described as cleaning, repairs and gardening expenses at the termination of the tenancy. The Member granted leave to extend the time for bringing the application and ordered that the appellants pay to the respondents the sum of $2972 within 21 days.
The appellants' Notice of Appeal appeals from both the order extending time and the order for the payment of money.
The Notice of Appeal makes clear that the appellants seek leave to appeal asserting that the appellants may have suffered a substantial miscarriage of justice. It is asserted that the decision was not fair and equitable and that it was against the weight of evidence.
The respondents filed a Reply to the appeal. They supported the orders made and opposed leave being granted to appeal.
In accordance with the Tribunal's directions made on 26 November 2015, both parties filed and served documents on which they relied at the hearing of the appeal.
We note that at the directions hearing on 26 November 2015 and application by the appellants to renew an earlier stay order was refused and the Deputy President conducting the directions hearing noted "that the Appellants will pay $2972 to the Respondents to be placed in the trust account of the managing agent by 3 December 2015."

Consideration

It seems to us that, although economically expressed, what the member concluded was that the applicant was given the detailed list of items repaired, she responded saying she was "happy" for the respondent to do the repairs and that she "will pay for it" and in reliance on that the respondent went ahead. In effect, he held it was too late to resile from her response after the work had been done. Although arguments were advanced to the member attempting to counter this conclusion, to the effect that the applicant was asking for further details, it seems to us that the member was entitled on the evidence to analyse the matter as he did with the effect that it was not necessary for him to turn to consider each of the twenty one "repairs" individually. Had he concluded that the applicant's response did not bind them, it would then have been necessary to weigh the evidence in respect of each of the separate items of repairs to determine the merits in each case; but that was not necessary given his conclusion on the exchange between the parties before the work was done.
Thus, we consider that in respect of the first "head of claim", Repairs to premises, the appeal ground is not made out. We are not able to discern that the appellants have made out that there may have been a substantial miscarriage of justice because the decision of the member below was not fair and equitable or against the weight of evidence and thus the statutory warrant for the exercise of the discretion to grant leave is not enlivened. The issue of the repairs was clearly raised, was the subject of extensive evidence from both parties, there was cross examination on it, the evidence was considered by the member, although not in the way or to the result that the appellants would have preferred, and the member reached a conclusion that in our opinion followed logically from his expressed consideration of the issues and evidence. There is no denial of procedural fairness demonstrated in our opinion, nor any other reason for concluding that the decision was not fair and equitable. In our opinion, there is no basis for concluding that the decision is against the weight of the evidence in the sense discussed by the Appeal Panel in Collins v Urban at [77], referring to the decision of the High Court of Australia in Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42.
Furthermore, we do not consider that an error of law is disclosed in the approach adopted by the member which we have discussed above; in particular, by relying on the evidence of the appellant's communication that she was "happy" for the respondents to proceed with the repairs and that she would "pay for it".
Although it is not apparent that the matter is raised by the appellants' Notice of Appeal, we allowed Mr Wasile to put a submission that the member's finding at paragraph 29 was erroneous in that he proceeded on the basis that the item referred to as "The carpet mats" was not opposed by the appellants whereas the appellants' contention was that it was opposed. This is an item in respect of which the member awarded the respondents the sum of $152.00. The member provided reasons for his decision in which he considered the evidence as well as cross examination on the issue and the considered the issue of fair wear and tear and depreciation. He applied an Australian Tax Office Ruling to reduce the amount claimed allowing for depreciation. He did not merely proceed to allow the claim on the basis that the item was not opposed.
We bear in mind subsection 36(4) of the Civil and Administrative Tribunal Act 2013. We consider the member's decision and reasons had regard to that subsection. If he was wrong in his observation that the item was not disputed, we nonetheless consider that the evidence justified his conclusion and it would have been no different whether disputed in the way referred to by Mr Wasile or not. We reject Mr Wasile's argument as a basis for upholding this appeal.
The appellants argued through Mr Wasile that the reasons disclosed in paragraph 32 of the member's decision are inadequate. Again, it is not immediately apparent that this arises as a ground of appeal in the appellant's Notice of Appeal but we allowed it to be argued. This aspect of the respondents' original claim related to "Garden maintenance. The appellants claimed $660.00 and the member allowed $585.00. The member set out the evidence that he considered, and in particular the photographs to which he had had regard. He referred to the evidence of both parties and the evidence giving rise to the deduction from the claim which he made. We consider his reason to be proportionate and adequate having regard to the complexity of the issue and the value of the amount in dispute. We consider that his reasoning is sufficiently explained for the appellants to understand it. We reject this argument as a basis for upholding the appeal.
The appellants raised a similar argument attacking the decision at paragraphs 35 - 37 in relation to the item described as "Driveway, footpath and wall cleaning". The same observations apply. We would add that as Mr Wasile developed the argument, it became apparent that what was really sought was a rehearing of the issue before us. He sought to invite us to consider photographs taken before the tenancy and after, which had been before the member, and arrive at a different conclusion. We observe that an appeal is not an occasion for a re-hearing. We refer again to the observations of the Appeal panel in Collins v Urban as to the nature of an internal appeal.
Finally, the appellants raised a similar argument in relation to the member's reasons at paragraphs 38 - 40 where he dealt with the item described as "Window screen replacement". After weighing the evidence, he allowed $319.00 in favour of the landlord/applicant before him. We would make the same observations with the same result. This is not an occasion for a re-hearing on the merits. We reject the argument.

Khan & Anor v Zaicos & Anor

At a glance

Court

Decision date

Source

Judgment (4 paragraphs)

Parties

Cases Cited (10)