Leung v Deng

(1) Order 1 the tenant is to pay the landlord a total amount of $938.98 by 19 September 2024 for cleaning of $500 and cost of fob and keys for $438.98, which makes the total of $938.98.

(2) Order 2 the tenant was to return to the landlord all security keys for the building that were provided at the commencement of the tenancy by 19 September 2024. We understand that this is an outstanding issue between the parties, but it is not the subject of this appeal so we make no further comment.

(3) At [8] the Tribunal found, applying the principle of res judicata, that the claim for rent arrears had been finally heard and determined on 16 January 2024 as an order for rent arrears in the sum of $4225.71 had been made in the earlier proceedings 2023/370352, being the First Application.

1. In effect the outcome of the Second Application was that the claim for rent arrears for the period 13 December 2023 to 22 January 2024 was dismissed.

1. By Notice of Appeal lodged on 23 September 2024 the landlord appealed the decision made in the Second Application (the Decision).
2. As the Appeal concerns a decision under the RT Act, the appeal was required to be filed within 14 days of the Decision being published and as such, the appeal has been filed within the prescribed 14 days - Cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW).
3. In Section A of the Notice of Appeal the landlord identifies the Order in relation to rent arrears as being the order challenged on appeal.
4. In Section B of the Notice of Appeal the landlord identifies the following grounds of appeal:

(1) Lack of evidence for return of keys;

(2) Fob access records indicated there was a continued occupancy by the tenant of the leased premises;

(3) Res judicata was an erroneous conclusion.

1. The landlord also seeks cost of the Appeal and compensation for inconvenience.
2. In Section C of the Notice of Appeal the landlord lists that the following orders ought be made by the Appeal Panel if the landlord is successful on the Appeal:

(1) Set aside the decisions made on 16 January 2024 and 19 September 2024;

(2) Reassess the rental arrears liability;

(3) Adjust the rent arrears amount up to the actual date of vacant possession;

(4) Costs of the appeal and administrative fees of $506;

(5) Order for compensation for inconvenience.

1. In the Notice of Appeal, the landlord also contends that the following grounds for leave to appeal apply:

(1) The Decision was not fair and equitable because of the reasons set out, which were:

(a) Lack of sufficient evidence;

(b) Contradictory evidence was not considered;

(c) Premature cessation of rent liability;

(d) Res judicata misapplied;

(e) Unfair burden on the landlord;

(2) The Decision was against the weight of evidence.

1. In the Notice of Appeal, the landlord does not seek leave to appeal on the grounds of significant new evidence, as she writes "no new evidence".

1. At a call over hearing on 16 October 2024 directions were made:

(1) The landlord to file documents by 13 November 2024;

(2) The tenant to file documents by 4 December 2024;

(3) The landlord to file documents in reply by 18 December 2024.

1. No further documents were filed by either party. The tenant has not filed a reply to the Appeal nor any other submissions.
2. Accordingly, the only documentation before the Appeal Panel is the Notice of Appeal, a copy of the Decision, the directions made at call over and the Second Application as filed on 19 February 2024.
3. Neither party has filed a copy of the full documentary evidence that was before the Tribunal for the hearing at first instance, nor a copy of the transcript of the proceedings, both of which were referred to in the directions made at the call over on 16 October 2024 if either party sought to rely on matters that happened at the hearing.

1. An appeal to the Appeal Panel does not provide an unsuccessful party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. There is a right of appeal on a question of law and otherwise with the leave of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are 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 any of the following bases:

(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).

1. The principles surrounding leave to appeal are set out in the Appeal Panel decision of Collins v Urban [2014] NSWCATAP 17. As leave is refused for the reasons below, we do not need to address that authority further in these reasons.
2. In respect of a self-represented non-legally trained appellant, grounds of appeal should be considered generally to determine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal Cominos v Di Rico [2016] NSWCATAP 5. We have followed that course in this Appeal and we are satisfied that the only ground based on a possible error of law is the ground identified by the landlord being whether the principle of res judicata had been applied correctly or not.

1. This is essentially an appeal to reassess the amount of rent arrears which was ordered to be paid in the First Application orders dated 16 January 2024. The landlord contends that in the Second Application an order should have been made upholding her claim for rent arrears for the further period of 13 December 2022 to 22 January 2024 being the total amount of $2996.67.
2. As the landlord had the legal right of possession from 16 January 2024, a claim for rent cannot be made after this date.
3. The Decision under appeal is the decision dated 12 September 2024 in the Second Application, not the First Application. In deciding the rent arrears issue in the Second Application the presiding member determined that she would not allow a further claim of rent arrears as it was determined in the First Application on 16 January 2024.
4. It is clear from paragraphs 11, 13 and 18 of the decision of the First Application dated 16 January 2024 that the presiding member considered a rent arrears claim from 23 October 2023 to the date of the hearing, being 16 January 2024. The member also provided reasons as to why rent was only allowed for the period from 23 October 2023 to 12 December 2023.
5. The landlord contends that she did not seek a rent arrears order at the hearing of the First Application. There was no transcript at the hearing of the Appeal to support this contention and we note at paragraph 11 the Tribunal states that "the landlord seeks an order for the rent arrears to date.". In any event, the First Application is not the subject of this Appeal.
6. Res judicata is the principle of law which prevents a party from bringing a further action in respect of a subject matter raised and determined in a prior final judgment before a competent tribunal between the same parties litigating in the same capacity. If made out, res judicata is a complete bar to the claim (see, eg. Gleeson v The Owners - Strata Plan No 48226 [2018] NSWCATAP 204 at [18]).
7. We are satisfied that the presiding member at the hearing of the Second Application on 12 September 2024 has correctly applied the principle of res judicata and was bound by the determination of the Tribunal in relation to rent arrears made on 16 January 2024. That decision determined the rent claim from 23 October 2023 to 16 January 2024. As such, we do not consider there has been any error on the part of the Tribunal in the Decision (in the Second Application) refusing to make a further order for rent arrears based on the principles of res judicata.
8. The decision of the Tribunal of 16 January 2024 was final and binding. If the appellant believes that there are grounds to appeal the decision of the First Application, then she may seek to appeal that decision (time limits apply).
9. In terms of the landlord's application for leave to appeal the Decision on the grounds that the Decision was not fair and equitable or that the Decision was against the weight of evidence, we dismiss an application for leave to appeal on these grounds as once the Tribunal was satisfied that the principles of res judicata applied, the Tribunal correctly refused to redetermine the merits of the rent arrears claim on the evidence provided at the hearing on 12 September 2024.
10. We also note that no transcript has been provided of the hearing on 12 September 2024 which would establish what the evidence was before the Tribunal for the hearing of the Second Application.
11. For these reasons, we refuse leave to appeal.
12. In terms of the application for costs, costs are governed by s 60 of the NCAT Act which provides that each party is to pay its own costs unless there are special circumstances. We dismiss the landlord's application for costs of the appeal as there are no special circumstances and also the landlord has been unsuccessful in the Appeal.
13. In terms of the landlord's claim for compensation raised in this Appeal, such a claim cannot be made in the Appeal as it does not form part of the Decision under Appeal.
14. The orders of the Appeal Panel are as follows:

(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.