Lavoise v Bertsch

NCAT Appeal Panel|2024-11-14

REASONS FOR DECISION

This is an appeal from a decision of the Tribunal dated 1 August 2024 in proceedings under the Residential Tenancies Act 2010 (NSW) (RT Act).
Both parties appeared at the appeal hearing on 14 November 2024. The appellant appeared in person. The respondent appeared by audio-visual link as he now resides in the United States of America. A Russian interpreter was engaged for the benefit of the appellant, and interpreted at the appeal hearing.
Both parties indicated they were ready to proceed and were not seeking an adjournment of the appeal for any reason. At the appeal hearing, we indicated to both parties the documents and submissions of the parties that would be considered, and that very late additional documents (which were copious) filed by the landlord on 13 November 2024 would not be taken into account. To do so would not be procedurally fair to the tenant and inconsistent with prior orders of the Appeal Panel, when previous extensions of time sought by the landlord were refused.
The dispute involved an application by the respondent to the appeal for payment of a bond in the amount of $7,000.
In this decision, any reference to the landlord is a reference to the appellant, and any reference to the tenant is a reference to the respondent.

Scope and Nature of Appeals

An appeal to the Tribunal's Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run its case again, nor is it sufficient for an appellant to disagree with the outcome and to contend there should have been a different outcome: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]; Brahmbhatt v Osorio [2023] NSWCATAP 188 at [27]-[28].
To succeed in an appeal, an appellant must demonstrate either an error by the Tribunal below on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).
An appellant to an internal appeal brought under s 80(2)(b) of the NCAT Act must identify with precision a question of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. Whether a question is one of law must be approached as a matter of substance: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at 62, [94], [203]; Kudrynski v Orange City Council [2024] NSWCA 33 at [50]. Each question must be a pure question of law (Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 ("Orr v Cobar") at [44], [49]; and Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71]). In Orr v Cobar at [109] it was said by Bathurst CJ and Bell P (as the Chief Justice then was) with Garling, Johnson and Lonergan JJ agreeing: "Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law.' They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts. The construction accords with the cases we have referred to at [48] and [70] above."
Examples of pure questions of law include: 1. Denial of procedural fairness (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13); FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127 at [83]-[84]). 2. A constructive failure to exercise jurisdiction, which includes the failure to consider and address a material issue raised by a party in the proceedings that is within the jurisdiction of the Tribunal to determine (Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]-[12] and [413]). This category of error also includes a failure by the Tribunal to engage with a clearly articulated argument put to it. 3. Acting on the application of the wrong legal principle which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]-[53]). 4. No evidence to support a factual finding (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 at [91])
The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily it is appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 at [28]. As explained in Collins v Urban at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact.
Further, the circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division of this Tribunal under s 80(2)(b) of the NCAT Act 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: (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).
In Collins v Urban, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12 (1) of Sch 4 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."
The legal principles regarding error on a question of law and leave to appeal are set out in detail in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [28]-[44].

Consideration

No application to set-aside the Tribunal orders was made by the landlord under r 9(1)(b) of the Civil and Administrative Tribunal Regulations 2022 (NSW) (NCAT Regulation). Rather, the landlord filed an appeal under s 80 of the NCAT Act. The principles applicable to an appeal and a set aside application under r 9(1)(b) of the NCAT Regulation are different.
The mere failure of a party to appear at the hearing does not means the hearing is procedurally unfair (Merrick v Hines [2021] NSWCATAP 108; Nayar v Uren [2024] NSWCATAP 47).
It Is well established that a bond is the tenant's property, and a landlord is under the obligation to return the bond to the tenant at the end of the tenancy unless there is a proper legal basis for any of the bond amount to be withheld and retained by the landlord, such as rent arrears, or failure by the tenant to comply with their obligation to return the property in the same condition it was rented, less fair wear and tear, and in a reasonably clean condition, under s 51(3) of the RT Act.
Under s 51(3) of the RT Act, the tenant has obligations at the end of the tenancy, including returning the property in the same condition it was rented (fair wear and tear excepted). "Fair wear and tear" is the normal damage or deterioration of the premises through ordinary day to day use, rather than careless or negligent use of the premises by the tenant. The test is objective and not from the perspective of a "fastidious landlord" (Pancio v Crompton & Jennings [2015] NSWCATAP 110 at [24]; Choi v Khan [2022] NSWCATAP 76 at [20]; Macionis v Franklin [2021] NSWCATAP 367 at [45]-[46]; Carbery v Warringah Rugby Club Ltd [2021] NSWCATAP 153 at [34]-[35]; Vasales v Li [2021] NSWCATAP 295 at [29]-[31]).
There is nothing before us that satisfies us that the landlord was denied procedural fairness or that there is an error on a question of law in the Tribunal's decision. Nor is there a basis established for leave to appeal to be granted.
The grounds raised by the landlord, are in our view, a product of the landlord being dissatisfied with being ordered to pay the tenant $7,000, rather than any legal error in the decision. We are not satisfied that the landlord was not given a reasonable opportunity to be heard at the conciliation and group list (hearing) on 1 August 2024. In any event, the landlord has not provided any cogent argument or evidence to indicate the landlord had an arguable case to oppose the tenant being refunded the full bond amount.
To be granted leave to extend time to lodge the appeal under s 41 of the NCAT Act, the landlord has to satisfy us of the principles set out in Jackson. The principles are set out in [22] as follows: 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) 71 NSWLR 61at [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) 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].
In this matter, we are not satisfied the landlord has provided an adequate explanation for the delay in lodging the appeal. Even if an explanation that was adequate had been provided, there is clear prejudice or unfairness to the tenant in extending time because the tenant now resides in the United States of America.
Further, even if we extended time, there is nothing in the landlord's appeal that satisfies us that the landlord has a fairly arguable case that the landlord is not liable to refund the tenant the bond amount of $7,000.

ORDERS

Accordingly, we make the following orders: - 1. Previous stay orders of the Appeal Panel are lifted immediately. 2. Leave to extend time to file the appeal is refused. 3. Appeal 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: 22 November 2024

Civil and Administrative Tribunal Regulations 2022(NSW)

(2020) 103 NSWLR 479

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