Koellner v Cobb-Clark

The background

1. On 31 August 2018, the parties entered into a residential tenancy agreement in respect of premises at Lane Cove (the premises).
2. On 24 October 2020, the tenant gave vacant possession of the premises to the landlord.

The proceedings below

1. On 30 October 2020, the tenant and his wife commenced proceedings RT 20/45606 against the landlord and her husband by filing an application in which they sought payment of the rental bond.
2. On 16 December 2020, the Tribunal made orders removing the tenant's wife and the landlord's husband as parties to the proceedings, and procedural directions for the provision by the parties of the documents on which they were seeking to rely at the hearing.
3. On 11 March 2021, the Tribunal conducted the hearing. The hearing was conducted by telephone. The tenant appeared at the hearing. Mr Holpert, the landlord's husband, represented the landlord at the hearing. The documentary evidence of the landlord comprised: 1. the documents emailed to the Tribunal on 10 December 2020 which relevantly included Invoice No 111120 of Mr Nicholas S Jones dated 2 December 2020 for $572.00 to "Remove dishwasher panel, have re-sprayed and re-installed"; 2. the documents received by post by the Tribunal on 23 December 2020 which relevantly included: 1. the statements of the landlord and her husband each dated 20 December 2020 which are in identical terms and refer to "the front panel of the integrated dishwasher has paint chipped off (at [8]), "a damaged/scratched panel" (at [19]) and "the white spots of scraped off paint to the front panel" (at [25]); 2. a colour photograph of the panel with two areas with a white spot marked in handwriting by a circle, one at the bottom right hand side of the panel and the other at approximately the middle of the panel; 1. the documents delivered to the Tribunal on 9 March 2021 which relevantly included two colour photographs of the panel described as "Dishwasher panel/chipped paint" with two areas with a white spot marked in handwriting by a circle, one at the bottom right hand side of the panel and the other at approximately the middle of the panel, and one area marked in handwriting by a circle at the bottom left hand side of the panel.
4. At the hearing on 11 March 2021, the documentary evidence of the tenant comprised: 1. the folder of documents provided to the Tribunal on 13 November 2020 which relevantly included: 1. the statement of the tenant dated 13 November 2020 which refers to the repair of the dishwasher in February 2020 (at [9]-[12], the landlord and her husband pointing out some missing paint flecks on the panel during an inspection of the premises on 24 October 2020 which he had not previously noticed (at [22]-[23]) and his lack of recollection of any incident which would have caused "the chips to the paint on the exterior cover" (at [24]); 2. the statement of the tenant's wife dated 12 November 2020 which refers to the repair of the dishwasher in February 2020 (at [4]-[5], the landlord's husband pointing out some marks on the panel during an inspection of the premises with the landlord on 24 October 2020 which she had not previously noticed (at [9]-[11]) and her lack of recollection of any incident involving the dishwasher or the cover other than the repairs (at [12]); 3. the email of the landlord to the tenant sent on 30 October 2020 at 10.09am which refers to "significant damage to the dishwasher front panel"; 1. the documents delivered to the Tribunal on 13 January 2021.
5. On 12 March 2021, the Tribunal provided the reasons for its decision which relevantly: 1. after setting out the applicable statutory provisions and legal principles relating to the liability of a tenant for damage to residential premises summarised the position as follows: "Fair Wear and Tear is to be assessed objectively … and means damage or deterioration that arises from the reasonable use of the premises by the tenant for its intended purpose and or the ordinary operation of natural forces with 'fair' being an objective standard based on prevailing community standards. The landlord has the onus of establishing the claim. The Tribunal must consider whether the tenant has acted in a intentional or negligent manner or whether damage has come about through normal use of the property and should be classified as fair wear and tear. If the Tribunal finds that the tenants are responsible for damage then the Tribunal must determine the quantum of damage. In doing so the Tribunal will consider whether the landlord has mitigated their damage, whether the damages claimed are proportionate and what depreciation is to be taken into account (ATO Guidelines). 1. dismissed the claim of the landlord for damage to the dishwasher integrated panel as follows: "The tenant denies having intentionally or negligently causing damage to the integrated panel. The photographs provided by the landlord indicate three small marks where paint has chipped off the panel. The landlord surmises that the damage may have been caused by the tenant's cleaner. There is little evidence to support such an assertion. The Tribunal has carefully considered the photographs provided by the landlord in relation to the damage to the integrated panel. The Tribunal finds that any damage to the panel is fair wear and tear caused by natural forces and the usual use of the kitchen and dishwasher by the tenant. It is reasonable to find that after a two year tenancy that there may be some fair wear and tear marks to kitchen panels in the ordinary use of the kitchen area and particularly the dishwasher area which can be a high use area. The landlord has failed to satisfy the Tribunal that the tenant has intentionally or negligently caused damage to the panel. This part of the claim is dismissed."

The procedural history of the Appeal Panel proceedings

1. On 26 March 2021, the landlord commenced proceedings 2021/00085468 against the tenant by filing a notice to appeal in which she seeks leave to appeal against the decision of the member dismissing the claim for damage to the dishwasher integrated panel, and in which she relevantly sets out: 1. the following grounds of appeal: "The Tribunal states: " The landlord cannot proof (sic) neglect ... " and furthermore: "Any damage to the panel is fair wear and tear... caused by natural forces... and the usual use of the kitchen and dishwasher by the tenant... "The landlord claims: The damagees (sic) sustained are beyond usual every day-to-day use and wear and tear. There are various deep dents and paint chipped off and not just worn off by using a door handle on this dishwasher front panel. The damages are mechanical sustained damages where a touch up job was not applicable and required a respray of the entire panel. It was the only damage on maybe 40 panels." 1. the following reasons why the decision was not fair and equitable: " … Various deep dentures and chipped off paint is an immediate instance due to neglect or Intend. The decision Is Incorrect regarding tie damages sustained to a dishwasher front panel. The term " wear and tear " is misinterpreted in this occasion. It is proven by the repair invoice that the panel needed a respray due to a loss of value in ifs appearance. How can I proof neglect as stated by the Member if the only person residing in the flat is the tenant. The witness statement by Olaf Holpert also stated "deep dentures" and paint chipped off on panel. This is the only damage throughout the unit's furnishings and so severe it appears as an Instant impact and not caused by "normal usage over time and handling. What else but carelessness/neglect could cause such a severe damage to a build-in? … There are various deep dents and paint chipped off in the middle of the door panel and not near to any normal "touching areas" and surely not just worn off by using a door handle on this dishwasher's front panel. There are 3 large dentures on the face of the panel and various smaller ones along the lower edge. The damages are mechanical sustained damages where a touch up job was not applicable and required a respray of the entire panel. It was the only damage on maybe 40 panels." 1. the following evidence that the Tribunal should have given more weight to: "- the nature of the damages - the wording considering the nature of the damages "wear-and-tear" is a term defined in the dictionary which is contrary to damages a long term occurrance (sic) over time and not an instant such as deep impact damage with an immediate visual representation to the event." 1. the following significant new evidence is now available that was not reasonably available at the time of the hearing: "I am providing a statement of the panel spray painter to the visual appearance to the damages. Due to Covid19 this person was not available in recent times."
2. On 12 April 2021, the Appeal Panel relevantly made the following orders" "2 The Appellant is to lodge with the Tribunal and give to the Respondent by 05 May 2021; … (b) Any evidence not provided to the Tribunal in making the decision under appeal, on which it is intended to seek leave to rely; (c) The Appellant's written submissions in support of the appeal and leave to appeal; and … 3 The Respondent is to lodge with the Tribunal and give to the Appellant by 12 May 2021: (a) The Respondent's written submissions in opposition to the Appeal Panel granting leave to appeal. 4 By consent, a hearing of the application for leave to appeal is dispensed with. 5 The issue of whether the Appeal Panel should: � give leave to appeal on grounds other than a question of law is to be determined on the papers after 12 May 2021."

The hearing on the papers

1. On 26 March 2021, the landlord filed a bundle of documents which comprised a selection of the documents relied upon before the Tribunal other than six photographs including three close up images of the dishwasher front panel under cover of a letter of that date which alleges the presence of "chips/dent(s)" on the dishwasher integrated panel.
2. The landlord has not lodged written submissions in support of leave to appeal being granted.
3. The tenant has lodged written submissions dated 5 May 2021 in opposition to leave to appeal being granted.
4. Before considering whether leave to appeal should be granted, it is appropriate to set out the statutory provisions and legal principles applicable to the granting of leave to appeal, and summarise the submissions of the tenant.

The statutory provisions and legal principles applicable to leave to appeal

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. An internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must establish an error of law has occurred; or otherwise an error of the type that it is appropriate to grant leave to appeal.
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be 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. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act 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."
5. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated 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" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act 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.
6. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
7. In Collins, the Appeal Panel at [84(2)] stated that 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."
8. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.

The submissions of the tenant

1. The tenant relevantly makes the following submissions: 1. the landlord's claim that the photographs provided by her show that the damage was not caused by fair wear and tear. This raises a question of fact; 2. the finding of the Tribunal member that the photographs showed "three small marks where paint has chipped off the panel [covering the dishwasher]" was an entirely accurate description of the photographs; 3. the finding of the Tribunal member "It is reasonable to find that after a two year tenancy that there maybe some fair wear and tear marks to kitchen panels in the ordinary use of the kitchen area and particularly the dishwasher area which can be a high use area" was clearly open on the evidence. 4. the member's decision was not against the weight of the evidence, in the sense of it being a decision where the totality of the evidence 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; 5. the landlord has foreshadowed putting forward a statement of the person who carried out the panel respray. That evidence was clearly available to her in the several months between her filing the application, and the application being heard. The landlord had every opportunity to put that evidence before the Tribunal at first instance, and did not. She should not be permitted to do so now; 6. none of the circumstances set out in Collins at [84(2)] in which leave might be granted are present in this case. This appeal is nothing more than a complaint about the outcome. It does not raise any issue of principle, or question of public importance or policy that might have general application. It does not identify any factual conclusion that was clearly arrived act because of a mistake. It makes no complaint about how the Tribunal went about the fact-finding process; 7. the sheer pettiness of this appeal and the de minimis nature of the amount in dispute is itself a ground for refusing to give leave, particularly given the disproportionate time cost and inconvenience that has been caused to him by this appeal, and by the disproportionate application of public resources that would result if the Tribunal were to hear it. Granting leave to appeal would not be consistent with s 36 of the NCAT Act.

Consideration

1. We are not satisfied that the landlord may have suffered a substantial miscarriage of justice within the meaning of cl 12(1) of Sch 4 of the NCAT Act on any of the following bases: 1. the decision of the Tribunal under appeal was not fair and equitable; 2. the decision of the Tribunal under appeal was against the weight of evidence; 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. Having regard to the principles in Cominos, we have not discerned from the orders challenged on appeal and the grounds of appeal in the notice of appeal, the material provided by the landlord, and the Tribunal decision, any basis for contending that the decision of the Tribunal under appeal was not fair and equitable. There is no indication that there was a denial of procedural fairness to the landlord.
3. The Tribunal member made the following two key factual findings: 1. there are three small marks where paint has chipped off the panel; 2. this damage any damage to the panel is fair wear and tear caused by natural forces and the usual use of the kitchen and dishwasher by the tenant.
4. The first of these factual findings was justified by the whole of the evidence including the photographs tendered by the landlord. There was no indication in the evidence including the photographs that there were "deep dentures" or "3 large dentures on the face of the panel and various smaller ones along the lower edge". Further, the statement of the landlord's husband did not include any statement about "deep dentures".
5. The second of these factual findings was justified by the whole of the evidence including the photographs tendered by the landlord. Two of the three marks were at the bottom of the panel and were likely to have happened by a foot of a person accidentally coming into contact with this area of the panel. The other mark which was in the middle of the panel could easily have been caused by accidental contact by a kitchen implement in the course of usual usage of a kitchen. There was evidence of the tenant and the tenant's wife about their lack of knowledge of these marks. Further, the landlord adduced no evidence as to the cause of the three marks on the panel.
6. In these circumstances, the evidence in its totality did not preponderate so strongly against these two factual findings of the Tribunal that it can be said that these conclusions were not ones that a reasonable Tribunal member could reach.
7. Notwithstanding order 2(b) of the Appeal Panel made on 12 April 2021, the landlord has not adduced the foreshadowed new evidence of the panel spray painter.
8. So far as the six photographs including three close up images of the dishwasher front panel, there is no reason advanced by the landlord as to why they could not have been available at the time of the hearing. In any event, we are not satisfied that they depict dents in the front panel.
9. If, contrary to our decision, we had been satisfied that the landlord may have suffered a substantial miscarriage of justice within the meaning of cl 12(1) of Sch 4 of the NCAT Act, then we would not exercised the discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act because this appeal does not involve any of the factors in Collins at [84(2)].
10. If any of the factors in Collins at [84(2)] had been present in this appeal, we would not have refused leave to appeal because of the small amount of money involved.
11. For the sake of completeness, we also consider whether the member made an error of law in respect of the correct legal principles to apply to "fair wear and tear" under s 51(3)(b) of the Residential Tenancies Act 2010 (NSW) (RT Act'), because in the notice of appeal the landlord asserts that her "understanding" of "wear and tear" is different to the test applied by the Tribunal.
12. Section 51(3)(b) of the RT Act provides: 51 Use of premises by tenant (3) On giving vacant possession of the residential premises, the tenant must do the following - … (b) 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,, …
13. The member in her reasons set out in detail the legal principles that apply to the consideration of whether damage to residential tenancy premises assessed by comparison of the condition of the premises at the commencement of the tenancy and the end of the tenancy is, or is not, fair wear and tear. The member accurately and concisely set out the applicable principles and pertinent authorites: Elhassan v Ayoub [2018] NSWCATAP 110; Panico v Crompton and Jennings [2015] NSWCATAP 110; and Adoncello v Sazdanoff [2006] NSWCTTT 577).
14. The reasons of the Member clearly set out the correct legal principles and how the Member applied such principles to the facts. No error of law is established.

Orders

1. Having regard to the principles in Cominos, we have not discerned from the orders challenged on appeal and the grounds of appeal in the notice of appeal, the material provided by the landlord, and the Tribunal decision, any basis for contending that the Tribunal made an error of law. It follows that we can dispose of the appeal.
2. We make the following orders: 1. leave to appeal is refused; 2. the appeal is dismissed.

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: 16 June 2021