King v Dabcevic

The Facts

1. It is important to specify that the 'relevant period' the subject of the dispute fell between 25 May 2018 and 5 October 2018 when the tenancy ended. It is also important to specify that there were two independent reports on mould. One related to a time before the relevant period, and the other was produced after the decision below had been given.
2. The issues in this appeal will be able to be resolved by reference to the chronology of events.
3. The parties entered into a residential tenancy agreement on 21 November 2017. On 26 December 2017 the tenant gave notice to the landlord that there was mould and damp in the premises which required repair. The tenant was not satisfied with steps taken by the landlord to remedy the problem and brought proceedings in the Tribunal. The tenant sought a rent reduction and compensation for the cost of an expert report on mould.
4. Orders were made by the Tribunal in those proceedings on 24 May 2018 (the First Decision) reducing the rent by $400.00 per week from the date of the written notice given by the tenant to the landlord to 5 April 2018 which was the date a second "fogging" to kill mould spores occurred. The claim for compensation was dismissed.
5. On 11 May 2018 (before the First Decision) a mould inspector appointed by the NRMA, the tenant's insurers, inspected the premises.
6. The relevant period in this appeal began immediately after the First Decision. A verbal report was provided by the NRMA to the tenant on 28 May 2018. The tenant states she was told that there was mould on the landlord's property at the premises. On that day the tenant made a further mould complaint to the landlord's managing agent.
7. The managing agent arranged for the removal of certain of the landlord's goods from the premises which were claimed to be infected by mould.
8. In early June 2018 the tenant made a further complaint and was offered a mutual termination of the residential tenancy which was not accepted.
9. The tenant continued to make complaints and the managing agent arranged for more anti-mould fogging and treatment of surfaces. She lodged the application the subject of this appeal with the Tribunal on 7 August 2018. The managing agent inspected the premises in September 2018 with a builder and stated that no mould was visible and no mould smell detectable.
10. The tenant moved out on 5 October 2018. She arranged for toxicology samples to be taken by her expert on or around that date. Her toxicology expert provided a written report dated 13 November 2018, which does not disclose the date at which the latest samples were taken.
11. The decision under appeal was given on 19 October 2018 (i.e. before the toxicology report was produced) and therefore the written toxicology report was not in evidence before the Tribunal.
12. The state of the evidence before the Tribunal relating to the relevant period was:

• the tenant was complaining of mould;
• the managing agent did not explicitly accept that there was any but arranged further fogging and surface cleaning;
• the managing agent inspected the premises with the builder and found no visible mould or mould odours;
• the tenant had the NRMA inspector's report of the position before the relevant period commenced;
• that tenant obtained a written toxicology report after the decision under appeal was handed down.

Consideration

1. The Tribunal correctly identified that the onus of establishing that there was mould at the premises during the relevant period was on the applicant.
2. The tribunal correctly treated the NRMA inspector's report as unhelpful because it related to a date prior to the relevant period.
3. The toxicology report could not be taken into consideration because it was obtained by the tenant after the Tribunal decision had been given.
4. The Tribunal thus found that at the time it made the decision there was no independent evidence of mould being present in the premises during the relevant period. It dismissed the tenant's claim.
5. The appellants alleged errors of law do not stand up to scrutiny. There was no independent evidence of the presence of mould during the relevant period. There were simply claims by the tenant to this effect. The managing agent attempted to address the complaints by additional fogging and surface cleaning, and offered a mutual termination of the lease. We do not consider the tenant proved her case on the balance of probabilities.
6. The NRMA inspectors report was too early. The toxicology report was too late. There is no error of law in not considering a report that related to an earlier period, or one which was not available at the hearing.
7. The Tribunal made its decision on the tenant's failure to discharge the onus of proof concerning the presence of mould at the relevant time. Accordingly, it was unnecessary to go on to consider the claim for loss of amenity, as no basis for the claim had been established.
8. Turning now to the leave point. Section 80(2) of the CAT Act provides that internal appeals other than on a question of law require the leave of the Appeal Panel.
9. Where the first instance decision is made in the Consumer and Commercial Division of the Tribunal clause 12(1) of Schedule 4 of the CAT Act limits the ability of the Appeal Panel to grant leave to cases where the Appeal Panel is 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. there is significant new evidence which was not reasonably available at the time of the hearing.
10. In Collins v Urban [2014] NSWCATAP 17 at [76] it was said that a substantial miscarriage of justice 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.
11. In our view the decision below, on the state of the evidence it had before it was both fair and equitable. It was not against the weight of evidence.
12. In rejecting the NRMA inspector's report the tribunal acted fairly and equitably because it related to a time before the relevant period commenced. The point does not even arise in respect of the toxicology report as it was not before the Tribunal.
13. The Tribunal also acted correctly in not considering the claim for loss of amenity when the tenant was able unable to discharge her onus of establishing the basis of a claim.
14. The tenant also claims that the toxicology report is significant new evidence that is now available and was not reasonably available at the time of the hearing. The reason for this unavailability is stated to be that the report took time to be produced.
15. We would regard the toxicology evidence as being significant and new but only in the sense that it was obtained in written form after the decision had been made.
16. The tenant has not persuaded us that the toxicology report was not reasonably available at the time of the hearing in the sense that the report was unavailable because "no person could have reasonably obtained the evidence" (see Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]). As evidenced her earlier conduct, the tenant was aware of the need for expert evidence concerning the presence of mould in the premises, particularly in circumstances where the landlord disputed the ongoing presence of mould.
17. The toxicology expert was not called to give oral evidence at the hearing and, as we understand it, the tenant did not make the Tribunal aware that samples had been taken or that a report was pending. It appears that there were two weeks between the taking of samples and the hearing. No application was made for an adjournment and no submissions were made to us that the Tribunal should have granted an adjournment of its own motion. A party is bound by the manner in which it conducted its own case. There is nothing before us to suggest that the new evidence could not have been obtained at an earlier point in time. We find that the new evidence has both arisen since the hearing and was objectively available at the time of the hearing.
18. For these reasons, cl 12(1)(c) of Schedule 4 to the NCAT Act does not provide a basis upon which we may grant leave to appeal.
19. In all the circumstances we are unable to find that the tenant has suffered a substantial miscarriage of justice. There was no real possibility or fair chance of a different result on the state of the evidence before the Tribunal.
20. We refuse leave to appeal.
21. We find there was no error of law.

Order 1. Leave to appeal refused. 2. Appeal dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 July 2019