Kjoller v Tailford

Both appeals lodged out of time

1. The first issue is whether we should accept the appeals even though they were lodged out of time.
2. Because these proceedings are "residential proceedings", an appeal must be lodged within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision, whichever is the later: Civil and Administrative Tribunal Rules 2014 (NCAT Rules), r 25(4)(b). The Tribunal made the first decision on 24 April 2015 and reasons were given on 1 May 2015. The landlord says she received those reasons on 14 May 2015. Even if we accept that that is when she received notice of the reasons for the decision, the appeal should have been filed by 28 May 2015. It was not filed until 11 September 2015, 15 weeks late.
3. Ms Kjoller says she received the reasons for the second decision on 17 August 2016. If that is correct, the appeal should have been lodged by 7 September 2016. It was not lodged until 11 September 2015, 4 days late.
4. The Appeal Panel may extend the time in which to lodge an appeal even if the relevant period has expired: Civil and Administrative Tribunal Act 2013 (NSW), s 41. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel considered the principles which govern the granting of an extension of time to appeal. The Appeal Panel stated at [22]: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].

Length of the delay and reasons for the delay

1. In relation to the appeal against the first decision, a delay of 15 weeks is significant when the general rule is that an appeal should be lodged within 2 weeks. The reason Ms Kjoller gave for not lodging the appeal on time was that she could not afford legal advice and the paperwork was overwhelming. She made several telephone calls in an attempt to obtain advice but found the whole situation extremely distressing. Nevertheless, she had started preparing the paper work when the Tribunal made the second decision in relation to the bond on 11 August 2015. She attempted to lodge both appeals on 24 August 2015 but was told to pay an amount which was not the correct filing fee. Her appeals were finally accepted on 11 September 2015.
2. We accept Ms Kjoller's evidence as to the reasons for late lodgement and the attempts she made to file the appeal.
3. Despite the fact that the first appeal was lodged 4 months out of time, Ms Kjoller has given a reason for the delay in appealing. More significantly, the appeal has reasonable prospects of success. The second appeal was lodged only 4 days out of time and, given our conclusion in relation to the first appeal, it also has reasonable prospects of success. Apart from the risk of the Tribunal making an order that is less favourable to the tenant than the current order, there is no particular prejudice to the tenant if the appeals are accepted out of time.

Tribunal's jurisdiction and decision

1. The Tribunal described the first application as being a "bond dispute". In fact the application was a claim for damages, a claim for rent arrears and a claim for reimbursement for the water bill. We understand those applications to have been made pursuant to s 190 of the Residential Tenancies Act 2010 (NSW) although that section was not mentioned in the Tribunal's reasons for decision. That provision allows a landlord or a tenant to apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement.
2. Under s 51(3)(b), the tenant must "leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into."
3. The Tribunal has power under s 187(1)(c) to order that the tenant pay the landlord an "amount of money".
4. The Tribunal set out the background to the dispute and the evidence lodged by the landlord and the tenant. The Tribunal made the following findings in respect of the claim for damages, at 8.2: The ingoing condition report can be taken as clear evidence of the condition of the premises at the start of the tenancy. However establishing evidence for the condition of the premises at the end of a five-year tenancy is much less clear. No weight can be given to the condition report completed by the landlord on her own, unsigned and with no date. The photos provided by the landlord could be given some weight, but it is only the evidence of the landlord that these were taken on the days she says, and it is also her evidence that she was working on the property at the time undertaking repairs. The photographic evidence is disputed by the tenant, who also provided her own photos, showing a different version of events. It is therefore unclear the actual condition of the premises at the end of the tenancy. Without clear evidence, a claim for damages cannot succeed.
5. Under the heading "Reasons," the Tribunal came to the following conclusion: The onus of proof is on the landlord to establish a claim. There is no outgoing condition report. There is no clear evidence of the condition of the premises at the end of the tenancy. This is the responsibility of the landlord to provide in support of her claim for damages and it is absent. This is a breach of the Residential Tenancies Act 2010.
6. The Tribunal was referring to s 29(4) of the Residential Tenancies Act which provides that: At, or as soon as reasonably practicable after, the termination of a residential tenancy agreement, the landlord or landlord's agent and the tenant must complete the copy of the condition report retained by the landlord or the tenant under this section, in the presence of the other party.
7. The Tribunal also found that the landlord had failed to comply with s 29(5) of the Residential Tenancies Act which provides that: It is not a breach of subsection (4) for the condition report to be completed in the absence of the other party if the party completing the report has given the other party a reasonable opportunity to be present when it is completed.
8. The Tribunal then referred to the obligations of a landlord under s 165 of the Residential Tenancies Act, when making a claim for payment of a rental bond: (1) A landlord, landlord's agent or a person on behalf of a landlord who makes a claim for payment of a rental bond without the consent of the tenant must give the tenant: (a) a copy of a completed condition report about the residential premises at the end of the residential tenancy agreement, and (b) copies of any estimates, quotes, invoices or receipts for work for which the rental bond is claimed.
9. The Tribunal rejected the landlord's claim for the tenant to pay $183.82 in overdue water charges. The reason for rejecting that claim was that the landlord cannot charge for water consumption unless she has installed water-efficiency measures: Residential Tenancies Act, s 39(1)(b): (1) A tenant must pay the water usage charges for the residential premises, but only if: … (b) the premises contain water efficiency measures prescribed by the regulations for the purposes of this section, …
10. The water efficiency measures are prescribed in cl 11 of the Residential Tenancies Regulation.
11. The Tribunal also rejected the landlord's claim for $160 for four days in rental arrears from 13 - 16 December 2014. The Tribunal found that there was no outstanding rent due because the tenancy ended on 13 December 2014 and the landlord had effective possession from that date.

Grounds of appeal

1. The landlord has the right to appeal "on any question of law" but must obtain the Appeal Panel's permission (or 'leave') to appeal on any other ground: NCAT Act, s 80(2)(b).
2. In relation to appeals from the Consumer and Commercial Division leave to appeal on grounds other than questions of law can only be granted in the limited circumstances set out in Schedule 4, cl 12: (1) An Appeal Panel may grant leave under section 80 (2) (b) of this 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: (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. The meaning of "substantial miscarriage of justice" was summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [71] and [79]: [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 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 - ."
4. The Appeal Panel must remain impartial and ensure that all parties are given a reasonable opportunity to present their evidence and submissions and to respond to the evidence and submissions of the other parties. But we are also obliged to ensure that self-represented parties are not disadvantaged because they are self-represented. Within those limits, we can provide advice and assistance on the substantive law: Hamod v State of New South Wales [2011] NSWCA 375 at [309] - [316]; Tomasevic v Travaglini & Anor [2007] VSC 337 at [139] - [142]. In particular, we can identify applications or submissions which ought to be put: Re F [2001] FamCA (2001) 161 FLR 189 at [253]. We did so in this case.
5. We appreciate that it is difficult for a self-represented party to identify a question of law even if such a question arises from the text of the decision. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel held at [12] that in circumstances where an appellant is self-represented, the Appeal Panel may determine whether a question of law has in fact been raised, subject to any procedural fairness considerations.
6. The landlord did not appeal on a question of law. She sought leave to appeal on the following 'other' grounds: 1. The Tribunal has not taken into consideration that the tenant gave three weeks' notice of intent to vacate on 14 November 2014 then extended this a further week. The tenant had plenty of time to fulfil her obligation to repair damages but failed to do so. 2. The tenant was aware of damages to the property and did agree to have them repaired when I conducted an inspection of the property on 17 November 2014 with her present. 3. I did not take possession of the property to start making repairs until 18 December 2014. I could not contact the tenant so, on Monday, 15 December 2014 I went to the property to ascertain if any of the damages had been repaired. Whilst there I took carpet and door measurements and listed things I would need to organise. 4. I have provided the ingoing condition report to prove the condition of the property when the tenant moved in. The outgoing condition report and photos clearly shows the damages I am claiming for. 5. The landlord met the tenant at the property to discuss damages to be repaired on 13 December 2014. At this time the bathroom tiles and lounge room carpet were reviewed and discussed. The tenant claims that her partner did drop a bottle of port on the area damaged to the lounge room carpet and she attempt to clean this area. The tenant stated to the landlord to "take the bond." The list of damages was provided to the tenant. After this date the landlord was unable to make contact with the tenant, and did not have a forwarding address at this time. The claim was made to the rental bond board by the landlord and current phone number was provided for the tenant. I was unable to fulfil my obligation as a landlord to forward a copy of the outgoing condition report to the tenant as the tenant would not provide me with a forwarding address. My attempts to contact the tenant by phone were numerous. I could not make contact.
7. The first ground does not raise a question of law or any other question on which the appellant can rely. The fact that the tenant 'had plenty of time' to repair the property is irrelevant to the landlord's claim for damages. The second, third and fifth grounds are not questions of law or other questions that would justify leave being granted.
8. The fourth ground suggests that the Tribunal was wrong when it found that, "No weight can be given to the condition report completed by the landlord on her own, unsigned and with no date". In our view, that statement is not correct. Just because an outgoing condition report does not comply with s 29(4) of the Residential Tenancies Act, that does not mean that no weight can be attributed to it when a claim for damages is made. In Hall v Hawkins [2015] NSWCATAP 197 at [58] - [77] the Appeal Panel interpreted s 29 and 30 of the Residential Tenancies Act and discussed the evidentiary weight to be given to ingoing and outgoing condition reports. The Panel held at [61], that: Section 30, on its terms, does not require the Tribunal to disregard evidence of the condition of the premises other than a "compliant condition report" nor does it justify that other evidence being treated as irrelevant or unreliable.
9. Giving "no weight" to the condition report was an error of law. That evidence deserved some weight. The Tribunal also treated the "other evidence" as unreliable or unpersuasive partly on the basis that a compliant outgoing condition report had not been provided. The other evidence consisted of 31 documents including 50 photographs which Ms Kjoller had provided to the tenant and the Tribunal.
10. Rather than examining the photographic evidence, identifying any conflict between that evidence and the tenant's photographic evidence and then making findings of fact about the state of the premises at the end of the tenancy, the Tribunal made the following finding: The photos provided by the landlord could be given some weight, but it is only the evidence of the landlord that these were taken on the day she says, and it is also her evidence that she was working on the property at the time undertaking repairs. The photographic evidence is disputed by the tenant, who also provided her own photos, showing a different version of events. It is therefore unclear the actual condition of the premises at the end of the tenancy. Without clear evidence, claim damages cannot succeed.
11. In addition to the photographs, the landlord had provided documents included invoices, inspection reports, receipts and quotes. The Tribunal mentioned that evidence when reciting the landlord's evidence but did not refer to it when making its factual findings. As well as providing evidence as to the quantum of any damage, many of these documents were relevant to the issue of whether the tenant had not left the residential premises as nearly as possible in the same condition, fair wear and tear excepted. . . as when the agreement was entered into." The Tribunal did not take that evidence into account.
12. The Tribunal's statement that, "Without clear evidence, a claim for damages cannot succeed" is not correct. The evidence needs to be sufficient to persuade the Tribunal, on the balance of probabilities, that the tenant had not left the residential premises as nearly as possible in the same condition, fair wear and tear excepted … as when the agreement was entered into. In answering that question the Tribunal should have identified and evaluated all the evidence that had some probative value and given reasons for accepting or rejecting that evidence. The Tribunal did not explain the basis on which the tenant disputed the landlord's photographic evidence or outline the tenant's version of events. Instead of comparing the landlord's evidence and the tenant's evidence and providing reasons for preferring one party's evidence over the other party's evidence, the Tribunal dismissed the claim because the landlord had not provided "clear evidence".
13. We are satisfied that the landlord may have suffered a substantial miscarriage of justice because the decision was not fair and equitable. The Tribunal went about its fact finding process in "a way which (was) likely to produce an unfair result" and it is in "the interests of justice for it to be reviewed": K v K [2000] NSWSC 1052 at [15] per Young J.
14. In addition, the Tribunal's finding that the landlord had breached s 165 of the Residential Tenancies Act was not relevant. That provision applies to claims for the payment of a rental bond without the consent of the tenant. The landlord did not make such a claim in these proceedings. We also note that a breach of s 165 does not constitute an offence and no penalty applies: Residential Tenancies Act, s 203; Residential Tenancies Regulation, cl 24 and Sch 3.
15. The Tribunal was correct to reject the landlord's claim for the tenant to pay $183.82 in overdue water charges. The landlord cannot charge for water consumption unless she has installed water-efficiency measures: Residential Tenancies Act, s 39(1)(b). The landlord provided no evidence that she had done so.
16. The Tribunal was also correct to reject the landlord's claim for $160 for four days in rental arrears from 13 - 16 December 2014. The Tribunal found that there was no outstanding rent due because the tenancy ended on 13 December 2014 and the landlord had effective possession from that date.

Second appeal - claim by tenant for refund of bond

1. The second appeal relates to a decision made by the Tribunal on 11 August 2015. The Tribunal granted the tenant's application for the landlord to repay the bond of $1,040.64 because the landlord had not proved that she was entitled to retain any of the bond money. In particular, the landlord had not provided the tenant with "copies of any estimates, quotes, invoices or receipts for work for which the rental bond is claimed" as required by s 165(1)(b) of the Residential Tenancies Act. The Tribunal rejected the landlord's claim that she could not serve the tenant with the relevant documents because she did not provide a forwarding address. The Tribunal did not accept that assertion because the Member found that the landlord was not aware of the requirement to serve the tenant with details of the claim. In addition the Tribunal found that there was no requirement under the legislation for a tenant to provide a forwarding address for service.
2. In the reasons for decision the Tribunal stated that the bond claim needs to read in conjunction with the reasons in relation to the landlord's claim for damages. The Tribunal concluded that: There were no grounds within the Residential Tenancies Act 2010 for the landlord to claim the sum of compensation that she was claiming in the matter before the tribunal previously, and in that matter her application was dismissed. It now follows that she was not entitled to have claimed the bond from the Rental Bond Board, which is money belonging to the tenant, and this needs to be returned to the tenant.
3. The decision about the tenant's bond claim was premised on the correctness of the decision in the landlord's damages claim. Because we have decided that the landlord's damages claim should be set aside and remitted to the Tribunal for reconsideration, it follows that we should also remit the tenant's bond claim.

Orders

1. The Appeal Panel makes the following orders: AP 15/51869 1. The time for lodging the appeal is extended to 11 September 2015. 2. Leave is granted for the appellant to appeal on grounds other than a question of law. 3. The decision of the Tribunal to dismiss the application is set aside but only in relation to the appellant's claim for damages. 4. The appellant's claim for damages is to be reconsidered by the Tribunal without further evidence in accordance with these reasons. AP 15/51894 1. The time for lodging the appeal is extended to 11 September 2015. 2. The decision of the Tribunal that: "The respondent is directed to pay the applicant the sum of $1,040.64 immediately" is set aside. 3. The case is to be reconsidered by the Tribunal without further evidence, in accordance with these 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: 05 January 2016