Khanna v Baweja

Background

1. There were three applications before the Consumer and Commercial Division of the Tribunal (the Tribunal), each made under the Residential Tenancies Act 2010 (NSW) (the RT Act).
2. In application RT 16/25681 Ms Geeta Khanna and Mr Sanjeev Khanna applied for orders that a rent increase notified on 10 March 2016 was excessive (s 44(1)(a)), that Mr Khanna be recognised as a tenant (s 77), and that the landlord, Mr Jaskeerat Baweja, comply with his obligation to maintain the residential premises in a reasonable state of repair (s 187(1)(h)). In application RT 16/33565, Ms Khanna and Mr Khanna applied for orders that Mr Khanna be recognised as a tenant (s 77), that a notice of termination dated 27 June 2016 be declared a retaliatory notice (s 115), that the landlord pay compensation in the amount of $15,000 on unspecified grounds (s 187(1)(d)), and that the rent payable under the residential tenancy agreement be paid to the Tribunal until the claim for compensation was determined (s 187(1)(f)) of the RT Act. Those applications were referred to in the Tribunal's reasons, and are referred to in these reasons, as "the tenant's applications".
3. The third application, RT 16/44944, was an application made on 7 October 2016 by Mr Baweja for an order pursuant to s 85 of the RT Act terminating the residential tenancy agreement and giving vacant possession. That application was referred to in the Tribunal's reasons, and is also referred to in these reasons, as "the landlord's application".
4. Ms Geeta Khanna is identified as the tenant, and Mr Jaskeerat Baweja as the landlord, in a residential tenancy agreement signed and dated 4 and 5 March 2015, for a period of 12 months starting on 8 March 2015 and ending on 7 March 2016, in respect of premises identified as xxx Hambro Avenue Glenwood. The identity of both tenant and landlord was in dispute in the Tribunal proceedings and on appeal, as discussed below. In these reasons, for convenience Ms Khanna is referred to as "the tenant", and Mr Baweja as "the landlord". Mr Khanna is the husband of the tenant, and resides at the residential premises. He was joined as a party to the first instance proceedings, and as an appellant in the appeal.
5. The background to the tenancy was summarised by the Tribunal as being that the tenant first entered into a residential tenancy agreement with the then registered proprietor of the premises, Mr Gunesekara, on 8 January 2010, as a fixed term agreement for a period of 26 weeks from 11 January 2011, and that the tenancy had continued since then in the form of either fixed term agreements or a periodic tenancy. The landlord purchased the property in June 2013, and under the terms of an Exclusive Management Agency Agreement dated 14 January 2014 appointed Powerlist Pty Ltd trading as Response Real Estate managing agent for the residential premises.
6. The orders made by the Tribunal Member in his decision of 1 February 2017 included the grant of leave for Mr Khanna to be joined as a party and to represent the tenant, and to amend the tenant's applications to include a claim under s 77 of the RT Act that Mr Khanna be recognised as a tenant. The Tribunal Member refused leave to further amend the tenant's applications to include a claim for compensation equivalent to the whole of the rent they had paid on the basis that the residential premises had been uninhabitable since the commencement of the tenancy and/or because the landlord is not the registered proprietor of the premises and is therefore not entitled to collect rent in respect of them, finding (at [79]) that the claims were not arguable, and that allowing them to be pursued would add to the complexity and time and cost of bringing the proceedings to a finality. The Tribunal Member also refused leave to the tenant for the issue of a summons for production of a number of documents by the landlord (discussed below).
7. The final orders made on 1 February 2017 were as follows: 1. In the tenant's applications, the Tribunal Member: 1. refused Mr Khanna's application under s 77 of the RT Act to be recognised as a tenant; 2. dismissed the tenant's application for an order pursuant to s 44(1)(b) of the RT Act that the rent payable was excessive; 3. dismissed the tenant's application for an order pursuant to s 44(1)(a) of the RT Act for an order that the rent increase served by notice dated 16 March 2016 was excessive; 4. dismissed the tenant's application for an order pursuant to s 187(1)(d) of the RT Act for the landlord to pay the tenant compensation for damage and loss incurred as a result of the landlord's breach of the residential tenancy agreement in relation to the driveway of the premises; and 5. refused the tenant's application for an order pursuant to s 115 of the RT Act declaring that a Notice of Termination of the Residential Tenancy Agreement dated 27 June 2016 was of no effect on the basis that it is retaliatory; and 1. in the landlord's application, the Tribunal Member: 1. terminated the residential tenancy agreement in accordance with s 85 of the RT Act on the basis of service of a 90 day notice for termination of a periodic agreement; 2. suspended the order for possession until 27 February 2017; and 3. directed the tenant to pay the landlord a daily occupation fee at the rate of $72.85 per day from the day after the date of termination until the date vacant possession was given to the landlord, with an order enabling the landlord within 60 days of the date for possession to request relisting to determine the amount of the occupation fee owing.
8. The Notice of Appeal challenged all the orders made in the landlord's application, and the orders made in the tenant's applications to dismiss the tenant's application for orders pursuant to s 44(1)(a) and (b) of the RT Act, and the order for compensation pursuant to s 187(1)(d) of the RT Act. The Notice of Appeal was subsequently amended on 2 March 2017 to also appeal the Tribunal Member's decision not to recognise Mr Khanna as a tenant.
9. A stay was granted on 2 March 2017 in relation to the order for possession until determination of the appeal or further order of the Appeal Panel, conditional on the appellants paying all rent outstanding as at the date of termination namely 1 February 2017 and paying the occupation fee of $72.85 per day, weekly in advance, and the parties meeting to review the rent ledger and the appellants paying any arrears of occupation fee and rent by 6 March 2017. An application by the landlord to vary the stay order was dismissed on 8 May 2017.
10. The appellants seek to have the following orders made on the appeal: 1. RT 16/44944: 1. dismiss the landlord's application for termination of the residential tenancy on the grounds that: 1. the termination notice was not given in accordance with the RT Act; and 2. Jaskeerat Baweja is not identified as the property owner or the owners corporation of the address xxx Hambro Ave Glenwood; and 1. Cancel the landlord's agent's licence if Jaskeerat Baweja is not the title owner of xxx Hambro Avenue Glenwood; 1. RT 16/25681 and RT 16/33565: refund the monies collected by the agent as rent since 26 August 2013.
11. The appellants also sought an order for costs, being out of pocket expenses for consultation with a barrister ($3,000) and other costs of the appellants ($3,000).
12. As noted above, on 2 March 2017 leave was granted to amend the appeal to also seek an order that Mr Khanna be recognised as a tenant.
13. The Appeal Panel notes, and advised Mr Khanna during the hearing, that the order sought in (1)(b) above is not within the power of the Tribunal to make.

Availability of appeal

1. By virtue of s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) the appellants may appeal against the decisions of the Tribunal as of right on a question of law or, with the leave of the Appeal Panel, on other grounds.
2. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act, leave to appeal may only be granted under s 80(2)(b): 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. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [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 . . . 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.
4. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
5. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.

Grounds of Appeal

1. The Grounds of Appeal are a 10 page annexure to the Notice of Appeal, headed "Appeal on P French Decision". While the appellants stated on the form that they are not seeking leave to appeal, they completed the relevant parts of the Notice of Appeal form to identify that they contend that the decision was not fair and equitable, that it was against the weight of evidence, and that there is significant new evidence now available.
2. The appellants are self represented. We have considered these documents, and the appellants' written submissions, to see whether a question of law is raised on the appeal, or whether any of the grounds requiring permission to appeal have been established. From those documents, we can identify the following grounds of challenge to the Member's decisions: 1. The Tribunal Member and earlier members who dealt with pre-hearing interlocutory matters had a prejudiced mind; 2. There was no power to collect rent or to terminate the tenancy agreement because: 1. Jaskeerat Baweja is not the registered proprietor of the residential premises; 2. the address on the residential tenancy agreement is a service address for the Owners Corporation which is not residential premises; and 3. the termination notice was given by the agent and not the landlord; 1. The decision was not fair and equitable because xxx Hambro Avenue is not residential premises, the residential tenancy agreement is void, and the termination notice was not given in accordance with the RT Act; 2. The decision was against the weight of evidence, because: 1. the appellants' evidence establishes that two different identities and addresses have been used and the dwelling did not hold approval certificates, and 2. the appellants have provided evidence that clarifies the wrong doings of the respondent in relation to the compensation claims; 1. There is additional evidence provided by the appellants, namely a Sydney Water bill, which states the address of the residential premises.

Reply to Appeal

1. The respondent supported the Tribunal Member's decision, stating that the property is on the corner of Hambro Avenue and Dairy Court and is approved for occupation; there have been several hearings for the tenants to make their case and they are now delaying the vacation of the property; and every order that the tenants challenge has been dealt with by the Tribunal Member. In a supplementary statement the agent states that the tenant may have vacated the property, as water meter readings taken on 3 different occasions read the same, and that that this is causing the landlord stress and financial hardship.
2. The respondent opposed any order recognising Mr Khanna as a tenant.

The Hearing of the Appeal

1. In accordance with directions made on 2 March 2017, the parties provided documents to each other and to the Tribunal before the appeal hearing.
2. The appellants provided with the Notice of Appeal a folder of documents (117 pages), which included documents provided at first instance. On 24 February 2017 the appellants provided evidence and submissions in support of their application for a stay (63 pages). On 23 March 2017 the appellants provided further documents (67 pages), which included requests for additional orders, including an order that the residential premises not be sold or rented without certificates of approval, and appear to repeat much of the submissions and evidence provided earlier. To the extent that these documents raise matters either not claimed and considered at first instance, or matters not raised in the Notice of Appeal as amended on 2 March 2017, the Appeal Panel has not considered those additional matters. The appellants filed additional submissions on 3 April 2017.
3. The landlord provided documents (319 pages) with the Reply to Appeal on 1 March 2017, and a further 609 pages including photographs filed on 30 March 2017.
4. The reasons given by the Tribunal Member at first instance are detailed, and lengthy, and the extensive evidence summarised at [27] and [28] of his reasons. Not all of the matters on which the Tribunal Member made findings are the subject of the appeal, and the Appeal Panel has addressed only those aspects of the Tribunal Member's reasons which are the subject of specific grounds of appeal.

Appeal on question of law

1. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel identified the following as examples of questions of law: 1. A failure to provide proper reasons; 2. The identification of the wrong issue or asking the wrong question; 3. The application of a wrong principle of law; 4. A failure to afford procedural fairness; 5. The failure to take into account relevant (i.e., mandatory) consideration; 6. The Tribunal taking into account an irrelevant consideration; and 7. There being no evidence to support a finding of fact; and 8. The decision being so unreasonable that no reasonable decision-maker would make it.
2. From the appellants' grounds of appeal, there may be grounds which raise questions of law, namely whether there was a denial of procedural fairness in the interlocutory determinations made and in the decision of the Tribunal Member; whether the Tribunal Member identified a wrong issue or applied a wrong principle of law on any of the issues he was required to determine; and whether the Tribunal made any findings on those issues for which there was no evidence.
3. The appellants' assertion that the Tribunal members who dealt with interlocutory matters had a prejudiced mind would appear to raise an allegation of bias, which would constitute a breach of procedural fairness and thus raise a question of law. A finding of actual bias, in the sense that the decision-maker's mind is closed to persuasion, is not made lightly, and a claim for actual bias must be distinctly made and clearly proved. There will be reasonable apprehension of bias if a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide. At its highest, Mr Khanna's written and oral submissions on the appeal expressed disagreement with some of the interlocutory decisions made by various Tribunal Members.
4. As recounted in detail in the Tribunal Member's reasons, the tenant's applications had been before different Tribunal members for procedural directions on three occasions. It is not the case that all those decisions were in favour of the respondent, for example the decisions joining Mr Khanna as a party, and allowing the tenant to amend her applications.
5. Mr Khanna took particular issue with the decision on 23 August 2016 to set aside summonses issued for production of documents to the landlord and the former landlord, and with the Tribunal Member's decision in his orders of 1 February 2017 to refuse a further request for the Registrar to issue an amended summons on the landlord for production of documents. The former decision was based on a finding that the documents they sought to have produced related to a foreshadowed personal injury claim in another jurisdiction against the landlord and were thus irrelevant to the claims pursued in the Tribunal. The second decision was based on the finding (at [98]) that, while some of the items identified had some apparent relevance to the claim for compensation for damage to their motor vehicle, the issue of the summons could not serve any legitimate forensic purpose as the information and documents were already sufficiently before the Tribunal.
6. The appellants' complaint appears to be that they disagree with those decisions, and it is not explained how the interlocutory decisions, including in particular the decisions relating to the issue of summonses, could be said to have been affected by bias. The submissions did not address how either actual, or apprehended bias, could be established in the making of any of those decisions. Further, to the extent that there is any claim for bias in the way the hearing, or the previous hearings, were conducted, there is no sound recording provided as directed on 2 March 2017, and therefore no basis on which the Appeal Panel could make a finding that the hearing was in some way conducted unfairly. This ground of appeal is not made out.

The landlord's application

1. The grounds of appeal based on challenges to the determination to terminate the tenancy raise questions of law in two respects: 1. Whether the Tribunal Member erred in making his findings as to the existence and construction of the residential tenancy agreement; and 2. Whether the Tribunal Member erred in his interpretation or application of the provisions of the RT Act in the determination to terminate the residential tenancy agreement.
2. The Tribunal Member dealt with the issue of the residential tenancy agreement as a preliminary issue, noting (correctly) (at [42]) that the Tribunal's jurisdiction to hear and determine residential tenancy disputes arises from a residential tenancy agreement to which the RT Act applies, and that it is therefore essential that the parties to the residential tenancy agreement that subsists in relation to the residential premises that are the subject of the proceedings be properly identified.
3. The Tribunal Member found that there was a residential tenancy agreement which named the tenant and landlord as parties, signed on behalf of the landlord by his agent Ms Hase, and signed by the tenant (and witnessed by Mr Khanna), entered into as a fixed term agreement for the period 8 March 2015 to 7 March 2016, and that that continued as at the date of the hearing as a periodic agreement. The Member rejected the appellants' evidence as to a different residential tenancy agreement for the period 1 March 2015 to 20 February 2016 in which Mr Khanna was listed as a tenant (at [46]-[54]). The Member found that the Tribunal could recognise Mr Baweja as landlord even if he were not the registered proprietor of the property, he being identified as landlord under the residential tenancy agreement and there being no third party asserting a superior estate in the land that was in conflict with the estate under which Mr Baweja had granted a tenancy to the tenant. The Member was satisfied in any event that Mr Baweja was the registered proprietor of the land containing the residential premises (paragraphs [58]-[60]).
4. The Tribunal's findings were based on evidence to which the Tribunal Member referred, including copies of council rate notices. The Member gave reasons for his acceptance of that evidence, and for his rejection of the evidence on which the tenant relied. There is no error in either the Member's statement of the applicable legal principles for the existence of a residential tenancy agreement, or in his weighing of the evidence on which he based his findings as to who were the parties to that residential tenancy agreement.
5. A significant factor in the appellants' submissions on the appeal as to the invalidity of the residential tenancy agreement is the claim that the address on the residential tenancy agreement, xxx Hambro Avenue, is not in fact the address of residential premises, but is either a postal address or a service address for the Owners Corporation of the building, or the address of the common property of the strata scheme. It is not apparent from the material before the Tribunal Member or the earlier submissions (as provided to the Appeal Panel), or from the Member's reasons, whether that proposition was squarely raised before the Member at first instance. The appellants have not provided a copy of the sound recording which might establish the extent to which this issue was raised at the hearing. Whether or not this issue was put explicitly before the Member, the material provided by the landlord to the Tribunal below included documents which variously describe the premises as xxx Hambro Avenue, and xxx Diary Court, including successive bills from utility providers such as Sydney Water. The photographs provided by both parties to the Tribunal below show the property to be a duplex development on the corner of the two streets, and the tenant's photographs in support of her claim for compensation show internal parts of the premises clearly used for residential purposes. There was evidence on which the Member could properly find that the premises were residential premises, and no error has been demonstrated in his finding that it is.
6. A further argument in support of the appellants' claim that the premises could not be the subject of a residential tenancy agreement, and in relation to the claim that the rent was excessive (considered below), is the submission that the premises were not approved. The Tribunal Member had evidence before him relating to building permissions, approvals and certifications of the premises, which he summarised at [28] and [142.4], and found that there was no evidence that any building non-compliance notice or similar had ever been issued by any building approval or certification authority (paragraph [142.4]). The Member found (at [149]) that there was no evidence capable of supporting a finding that there was a legal impediment to the occupation of the residential premises at the time the tenant entered into the residential tenancy agreement or that the premises were not provided to the tenant in a state fit for habitation. That finding was open to the Member on the evidence, and no error of law has been established in the Member making that finding.
7. The appellants claim that they are entitled to an order that all the monies collected as rent from 26 August 2013 should be refunded. That was not a claim in terms made in the first instance proceedings, and as noted above at paragraph [7], leave was refused by the Tribunal Member to further amend the applications to add that claim. To the extent that the claim is raised in the appeal, it appears to be based on the appellants' contention that there was no valid residential tenancy agreement. Even if it were appropriate to permit the appellants to raise this claim on the appeal, the Appeal Panel finds that there is no basis for it, being satisfied, for the reasons given above, that there is no error in law demonstrated in the Member's determination that there was a valid residential tenancy agreement between the tenant and the landlord in respect of the residential premises.
8. To the extent that that claim relates to the appellants' challenge to the Tribunal's decision to dismiss the tenant's applications under s 44(1)(a) and (b) of the RT Act, the Appeal Panel is satisfied, for the reasons given below, that there is no error of law in the Tribunal Member's consideration and determination of those applications.
9. In considering the landlord's application for termination of the residential tenancy agreement the Tribunal Member considered first, whether there should be an order under s 115 of the RT Act that the termination notice served on 27 June 2016 under s 85 of the RT Act was of no effect on the basis that it was retaliatory, and secondly, whether the termination notice complied with s 85 of the RT Act.
10. On the first issue, the Member outlined the material facts, which he summarised (at [167]) as commencing with the notification on 10 March 2016 of a rent increase, and including the making of the tenant's applications to the Tribunal, communication between the appellants and the landlord's agent about various requested repairs and issues with flooding, the service of the termination notice on 27 June 2016, and issues with the carrying out of requested repairs. The Member considered the criteria specified in s 115 of the RT Act, and found that while there was some evidence suggestive that the termination notice was issued in retaliation against the appellants for instituting their first application to the Tribunal, he was not comfortably satisfied to the civil standard of proof that the termination notice was a retaliatory notice, and concluded that the tenant was not entitled to an order under s 115. Having examined the reasons given by the Member, the Appeal Panel is satisfied that no error is demonstrated in either the Member's identification and application of the applicable legal principles, or in his consideration and weighing of the evidence before him in his findings of fact.
11. The Tribunal Member found that the termination notice complied with the requirements of ss 82 and 85 of the RT Act. In reaching that finding, the Member identified the applicable provisions of the RT Act relating to the requirements for a termination notice (s 82), service of that notice (s 223), the making of an application to the Tribunal for a termination order (s 83), and the time for that application to be made (s 85(3)). The Member addressed the evidence by reference to those provisions (at [194]-[199]), giving reasons as to why he was satisfied on each of the applicable requirements. The Member addressed an issue raised specifically on appeal, namely that the termination notice was signed by the landlord's agent, finding at paragraph [194] that the notice was signed by an authorised representative of the landlord's managing agent. The Member had in evidence the managing agency agreement which authorised the agent to do all things necessary to commence and complete proceedings for the recovery of possession from a tenant, and the finding that the agent was authorised to sign the termination notice and commence proceedings in the Tribunal, was therefore open to the Member. There is no error in the Member's statement of his understanding of the relevant law, or in his reasoning on the evidence leading to the factual findings which he was required to make in order to reach his conclusion that the termination notice was given in accordance with s 85 and complied with the other requirements of Part 5 of the RT Act, and that the Tribunal had no discretion and was required by s 85 to make the termination order.
12. In reaching his conclusion that the order for possession should be suspended under s 114 of the RT Act, the Tribunal Member considered (at [205]-[211]) the competing submissions of the parties and the evidence, including the evidence of the appellants as to their ill health and capacity to find alternative accommodation, which he accepted, and the timing of the hearing of the application over the Christmas and New Year period, and the factors to be balanced in the exercise of the discretion conferred by s 114. There is no error in the Member's statement of the applicable principles, or in his weighing of the evidence and exercise of the discretion.

The tenant's applications

1. The tenant's claim pursuant to s 44(1)(b) of the RT Act that the rent payable under the residential tenancy agreement was excessive was based on the claim that they did not have effective use and benefit of the stove, a security door, and the garage after it was flooded, for substantial periods of time in the course of the tenancy. The Member considered the material facts and referred to the evidence on each of those issues in turn in paragraph [102.1]-[102.57]; identified the applicable law in [103]-[105]; identified the issues to be considered at [106]; and explained his reasons at [107]-[136] for his findings that the appellants had not made out any reduction in their use of the garage over the course of the tenancy that would warrant an order reducing the rent payable; that the appellants had not established that non-working oven light and range hood had any tangible impact on their use of the stove or oven or that there had been any loss of use of the stove/oven due to an electrical fault; and that the appellants had not established any serious impact on the tenancy arising from the repairs required to the security door other than for a limited period during the tenancy. The Member's reasons are detailed and reflect a considered balancing of the evidence. The appellants' challenge is essentially a disagreement as to the Member's findings of fact. There is no error in the Member's understanding or application of the law to the facts which he found on the evidence before him.
2. In determining the tenant's claim pursuant to s 44(1)(a) of the RT Act that the rent increase notified by letter dated 10 March 2016 was excessive, the Tribunal Member identified the relevant requirements in ss 41 and 223 of the RT Act for the giving and service of notice, and found (at [159]) that the landlord's agent had complied with those requirements. In considering the tenant's application for an order declaring the rent increase to be excessive, the Member referred to the evidence before him as to the factors identified in s 44(5) of the RT Act, and concluded that he was not satisfied having considered those factors that the rent increase was excessive. The Member noted (at [161]) that the tenant's attention had been specifically drawn to those factors at the directions hearing on 23 June 2016. There is no error demonstrated in the Member's identification of the relevant legislative requirements or in his evaluation of the available evidence on which he based his findings that the rent increase was not excessive, and that even with that increase and taking into account limitations of the residential premises, the rent remained below the median and average weekly rent for similar residential premises in the locality.
3. The appellants challenge the order dismissing the tenant's claim pursuant to s 187(1)(d) of the RT Act for compensation for damage and loss incurred as a result of the breach by the landlord of the residential tenancy agreement. The Grounds of Appeal do not address this issue. The documents filed on 23 March 2017 include copies of documents "that clarifies wrong doings of respondent" relating to the stove/oven, the garage, security locks, and mowing. That list is repeated in the submissions of 3 April 2017. The claim in relation to failure to mow was not raised at first instance, and cannot be raised on the appeal. The Grounds of Appeal and submissions do not identify the basis on which the appellants are challenging the Tribunal Member's refusal of the claim for compensation, other than their disagreement with the outcome.
4. The Tribunal Member dealt with the evidence relating to the stove/oven, security door and flooding in the garage in the course of his consideration of the claim under s 44(1)(b) of the RT Act that the rent was excessive, having regard to the reduction or withdrawal by the landlord of services or facilities provided with the residential premises. In the course of addressing the evidence the Member made findings as to repairs carried out on behalf of the landlord, and that the appellants had refused access for contractors so that they could carry out other repairs. The Member specifically addressed the claim for compensation for damage alleged to have been caused to the appellants' motor vehicle because they were unable to garage the motor vehicle in the garage and because of the gradient of the driveway. The Member correctly identified the relevant provisions of the RT Act relating to the landlord's obligations, and considered each of the tenant's arguments including the contention that there was any legal impediment to the occupation of the residential premises, in his evaluation of the evidence to reach the conclusion that the tenant had not succeeded in establishing any breach of the residential tenancy agreement that could give rise to a claim for compensation. There is no error demonstrated in the Tribunal Member's application of the law to the factual findings made on the evidence before him.
5. On 2 March 2017, the appellants were given leave to amend the Notice of Appeal to also appeal the decision not to recognise Mr Khanna as a tenant. The appellants' written and oral submissions did not address that issue, and the Appeal Panel is therefore not clear as to whether this decision is challenged on a question of law, or is a ground for which leave to appeal is sought. The Tribunal Member dealt with that aspect of the tenant's claims at paragraphs [61]-[63], referring to the procedural history. Applying s 77(2) of the RT Act, which specifies the two grounds on which the Tribunal may make an order recognising a person who is occupying residential premises as a tenant under a residential tenancy agreement, the Member found that the evidence was clear that the sole tenant under the residential tenancy agreement, Ms Khanna, remains alive and continues to live at the residential premises, and dismissed that application. Mr Khanna has provided no evidence to establish either that the Member erred in law in reaching that conclusion, or that there is a factual basis on which that conclusion can be challenged.
6. The Appeal Panel is not satisfied that the Tribunal Member erred in law in his identification of the relevant requirements in the RT Act; in his identification of the factual and legal issues that required consideration and resolution for each of the tenants' and landlord's claims; or in his evaluation of the evidence on which he based his findings of fact. There is no error on a question of law demonstrated.

Whether leave to appeal should be granted

1. The appellants also sought leave to appeal on the grounds stated in s 80(2)(b) of the NCAT Act. The appellants' submissions on the first ground, that the decision was not fair and equitable, take issue with the Tribunal Member's finding that there was a valid residential tenancy agreement, and that there was thus no barrier to the making of a termination order. For the reasons above, the Appeal Panel is satisfied that the Tribunal Member's reasons explain why he reached the conclusion that there was a valid tenancy agreement and a valid termination notice, and that under s 85 of the RT Act there was no discretion as to termination of the residential tenancy agreement.
2. The submissions in support of the argument that the decision was against the weight of evidence recount the evidence presented by both parties, and appear to be based on the proposition that the tenant had provided more documents than the landlord. For the reasons above, the Appeal Panel is not satisfied that there was any error in the careful way in which the Member considered all the available evidence and expressed his findings as to why he preferred the evidence of the landlord to that of the tenant where that evidence differed, and his ultimate conclusions. In both instances, the appellants' case is in essence a disagreement with the Member's conclusion and the outcome.
3. As to the third ground, the appellants submit that there is significant new evidence in the form of a Sydney Water bill identifying the premises as xxx Dairy Court, not xxx Hambro Avenue. That bill covers usage for the period 2 August 2016 - 2 November 2016, and there is no date of issue or date for payment specified. The appellants assert it is new evidence because it "state[s] clearly address of the residential premises". Even if this document is evidence that is new in the sense that it was not reasonably available at the time the proceedings were being heard, the Appeal Panel is not satisfied that it constitutes significant evidence. As noted above, the documents provided by the landlord's agent also show that address in some documents, and the Hambro Avenue address in others. The use of the alternate street addresses was considered by the Member, and there is no reason why the provision of further evidence as to that could have made a difference as to his finding that there was a valid residential tenancy agreement for residential premises.
4. The Appeal Panel concludes that the appellants have not established a ground under cl 12(1) of Sch 4 to the NCAT Act on which leave to appeal could be granted under s 80(2)(b) of the NCAT Act. The Appeal Panel has therefore not considered whether the appellants could be said to have suffered a substantial miscarriage of justice, or whether that being so, leave should be granted in the exercise of discretion. Leave to appeal is refused.

Whether costs should be awarded

1. As the appeal was filed after 1 January 2016, by virtue of rule 38A of the Civil and Administrative Tribunal Rules 2014, the costs provisions applicable at first instance are applicable on the appeal. Section 60(1) of the NCAT Act provides that each party to proceedings in the Tribunal is to pay the party's own costs. Subsection 60(2) provides that the Tribunal may award costs only if satisfied that there are special circumstances warranting an award of costs. Special circumstances for the purposes of s 60(2) are those which are out of the ordinary, but they do not have to be extraordinary or exceptional: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25. Section 60(3) of the NCAT Act provides a non-exhaustive list of matters that may be taken into account in determining whether there are special circumstances.
2. Mr Khanna stated that his claim for costs for $3,000 relates to consulting a barrister or solicitor. He has no receipts because the advice was given on a discount basis. The additional $3,000 claim is for costs for taxis, and coming and going. He submits there are special circumstances because he had to borrow money from this friend, son and daughter and he has not much left over after paying the rent, and none of this would have happened if he had been told that the property was not approved.
3. The appellants have been unsuccessful in their challenge to the decisions made by the Tribunal Member on 1 February 2017. There is no basis on which it could be said that there are special circumstances such as to depart from the usual provision in s 60(1) that each party pay their own costs.

Conclusion

1. For the above reasons, leave to appeal is refused and the appeal is dismissed. The Appeal Panel is satisfied that in the exercise of the powers conferred by s 81 of the NCAT Act the appropriate course is to confirm the orders made on 1 February 2017, other than order 15 to suspend the order for possession until 27 February 2017. If there remains a dispute as to rent arrears and the amount of occupation fee owing, that can be determined should the landlord exercise the right conferred by order 17.
2. On 2 March 2017 order 15 was stayed subject to conditions. At the appeal hearing, Mr Khanna stated in response to the landlord's submission that he may have moved out, that he is still living in the premises, that he has partly shifted things out, and he sometimes sleeps there. He requested that if the appeal was unsuccessful, any order for possession be stayed for 2-3 months, as he and his wife are not well and he would need time to move his possessions. A stay of that duration was opposed by the landlord's agent. A factor in the Tribunal Member's decision to suspend the order for possession for 3 weeks was his acceptance of the difficulty that the appellants might face finding alternative accommodation over the Christmas and New Year period. That is no longer the case. Having regard to appellants' ill health, accepted by the Tribunal Member, which would make it appropriate that they have some time in which to find alternative accommodation, and that Mr Khanna has already commenced removing his possessions, the Appeal Panel is satisfied that it is appropriate to vary Order 15 so that the order for vacant possession is suspended for a period of 2 weeks from the date of the Appeal Panel's reasons.
3. The orders of the Appeal Panel are:
4. Leave to appeal is refused.
5. The appeal is dismissed.
6. The stay granted on 2 March 2017 is lifted.
7. Order 15 made on 1 February 2017 is varied such that the order for possession is suspended until 14 days after the date of these reasons.
8. The orders made on 1 February 2017 are otherwise confirmed.

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: 17 May 2017