Li v Bonestroo

NCAT Appeal Panel|2021-10-27

Introduction

This is an appeal filed by a landlord Ms Li. The respondent was the applicant below and he was the tenant and will be referred to as such.

Background

The parties entered a residential tenancy agreement on 18 March 2020 for a 12 month fixed period from 1 April 2020 to 31 March 2021. The tenant paid $1,500/ week for this property which he shared with his wife and children. There were many problems with the rental premises, one of which was the swimming pool could not be used. The landlord accepts she did breach the residential tenancy agreement which contains a clause to the same effect as s63 of the Residential Tenancies Act 2010 (the Act) which states that the landlord must provide and maintain rental premises in a reasonable state of repair, having regard to, among other things, the rent paid for the premises.
After months of correspondence with the landlord's real estate agent the tenant finally lodged an application with the Tribunal for $13,000 compensation as damages for breach of the residential tenancy agreement, a reduction in rent payable and for repairs to be done. This application was lodged on 4 January 2021. Two weeks later on 18 January 2021 the tenant sent an email to the agent giving the landlord notice that he would be moving out three weeks hence (that is, on 8 February 2021) and would proceed with the Tribunal application which was, as at the date of the email, for compensation, for orders that the rent was excessive due to the reduction or withdrawal of goods, services and facilities and for orders that that the landlord carry out repairs.

Evidence

The appellant relied on her Notice of Appeal which had submissions attached to it, as well as documents N, O, P and S in her Table of Contents, on page 4 of 63, that she filed on 16 September 2021. Documents N (ledger), O (signing lease) and P (residential tenancy agreement) were before the Member below. Document S was referred to by the parties in the proceedings below, and acknowledged orally as the parties appearing below were the recipient and sender of the email which is attachment S on page 63 of the landlord's documents. While it was not before the Member in writing it was before him orally, and its contents were agreed by the persons who sent and received that email and as those parties are now represented by different persons on the appeal, it is appropriate that the Appeal Panel have regard to the email.
The respondent relied upon all the documents which were before the Member below which he attached to his Reply to Appeal. He also provided, on 14 October 2021, written submissions, copies of orders made by the Tribunal below in the application now appealed, and a copy of a case.
Despite directions to do so, neither party filed with the Tribunal a sound recording of any of the hearings below or a transcript of what was said at any of the hearings below.

Representation

On 27 August the Appeal Panel granted leave to the parties to be represented but clearly made a typographical error in those orders. The Appeal Panel granted the landlord leave to be represented by Ms Pankhurst, when Ms Pankhurst represents the tenant, and granted leave to the respondent to be represented by R Chen when Mr Chen represents the landlord. Mr Chen, who is the landlord's son in law appeared for the appellant and Ms Pankhurst who is a tenant's advocate appeared for the respondent.

The grounds of appeal

The landlord relied on and argued the following nine grounds of appeal: 1. "Since the receipt of the Notice of Order, the landlord is under enormous distress. She suffered from anxiety and loss of sleep. After repeated thinking, she felt that it is crucial to appeal to NCAT to challenge the order. The landlord is in her 60's and in retirement. She relies on the net proceeds of the rent as the only income source to fund the daily living expenses. 2. The residential tenancy agreement between the parties was signed on 18/3/2020. See Attachment P for the agreement and Attachment O for the proof of electronic signing. The amendments to the Residential Tenancies Act did not come into effect until 22/3/2020 as such we refer to clause 54.2 in the lease agreement noting that the tenant must pay costs until the end of the fixed term in the agreement or a replacement tenant is found at the property. The amount owed by tenant is $12,991.14. 3. The agent/ landlord has used the best efforts to lease the property at the earliest opportunity to mitigate the loss towards the tenant. Refer to evidence provided on Page 4-14 in April 2021 submission by landlord. 4. Over the residential tenancy agreement period, the total income amounted to $66,825. The total expenditure is $19,310 over the same period. (see Attachment B) The net proceeds were only $47,515 or $32,515 after the compensation of $15,000. This is equivalent to $727 per week after compensation. The net proceeds after allowing for the compensation results in an extremely low gross rental yield of 0.8% only half of average house gross rental yield of 1.6% in Killara, cited at http://www.realestateinvestar.com.au/Property/killara. 5. The compensation amount of $15,000 ordered is disproportionately large compared to the net rent proceeds and significant compared to the daily living expense of a retiree. In addition, the landlord does not earn any other income besides the net rental proceeds. Her taxable income is $13,197 in the financial year ended 30 June 2020. See attachment K for Notice of Assessment. 6. The order unfairly noted that "satisfied that the landlord did not meet the obligation to maintain the residential premises in a reasonable state of repair". However, the total expenditure of the property is over $19,000 over the period of tenancy agreement. This, together with the low yield in paragraph 4, proves the amount of effort that landlord has put into the property. 7. The order unfairly noted the rent of $1,500 per week charged was at the upper end of rentals while the statements and supporting evidence provided by the tenant and the landlord both agree that the price is at best at the market average considering the location. In Killara, a fully renovated which [sic] minimal repairs are needed, rents at significantly higher price e.g. well above $2000 per week. 8. In addition, the landlord has shown her care to the tenant and allowed the tenants to move in 5 days earlier than the agreement starting date of 1/4/2020 without additional charge to settle in before the COVID outbreak. See Attachment L. The property was also fitted with new carpet prior to the moving in of the tenant without additional charge. See Attachment M for carpet invoice. 9. The waive of the break fee, together with the amount of compensation in the order results in a total amount of approximately $28,000 in favour of the tenant. Such compensation could be considered as a windfall gain for the tenant which sets precedence and puts landlords in the upper north shore area in an inferior position for the future."
The Appeal Panel explained to the landlord that this appeal was not a rehearing; that she could not run her case again. An appeal is to determine if there was an error of law made by the Member below, and if not an error of law, whether another error was made for which leave is required.
Purported grounds of appeal numbered 1, 3, 4, 5, 6, 8 and 9 are not grounds of appeal but rather submissions which may or may not have been relevant to make before the Member below. They are certainly not matters which amount to an error for which the Appeal Panel could grant leave to argue on this appeal.

Ground 2 - the break lease fee

Ordinarily a landlord is expected to lodge its own application for compensation, including the payment of a break lease fee, but in this case the landlord never lodged an application in the Tribunal at first instance.
Apparently the landlord raised set off, or what the Member below referred to as a 'defence' during one or more of the hearings on 29 April, 5 May or 28 July. The set off defence having been raised by the landlord, the Member allowed the parties to make submissions about it then dismissed it for the following reasons: "There is one matter which is a counter claim by the respondent which causes particular concern. S 219 of the Residential Tenancies Act NSW ] [sic] prohibits contracting out. The subject residential tenancy agreement has the break clause crossed out ad and another inserted, inconsistent with the standard break clause and which substitutes an [sic] more draconian form of penalty for early termination. S. 107 of the Act clearly makes a break fee a matter for the discretion of the Tribunal. S.19[d] of the Act prohibits a term making a tenant liable to pay all or part of the remaining rent. Any claim by the respondent for such damages is null and void. I note that with the deletion of the break fee and the effect of S.219, there is no break fee applicable to the property."
There was no error of law in the Member's finding that the tenant did not owe the landlord a break lease fee.
The reasoning of the Tribunal Member was that the residential tenancy agreement had the break lease clauses crossed out, clauses 41 and 42, with another break lease clause inserted, clause 52, which he found substituted a more draconian form of penalty for early termination. The Tribunal Member referred to ss 219, 107 and 19(d) of the Act in connection with clause 52 effectively finding that the clause which had been inserted breached ss 219 and 19(d).
The finding that the landlord's claim for a break lease fee was unsuccessful rested on three findings. First that s19(d) of the Act prohibited an outcome such as would be the result of the application of clause 52. Secondly with the deletion of clause 41 and 42 and the operation of s219, there was no break lease fee clause applicable. Thirdly, that s107 of the Act gave the Tribunal Member a discretion in connection with the break lease clause.
In the residential tenancy agreement clauses 41 and 42 had been deleted. Clause 54.2 remained. It stated, so far as is relevant: "if the tenant terminates this agreement before the expiry of the fixed term and if clauses 41 and 42 regarding break fee are deleted (and, therefore, do not apply) subject to the parties' obligations to mitigate their losses: (a) the tenant must: (i) reimburse the landlord for costs, fees and other charges and expenses in connection with such termination; and (ii) pay rent or compensation for an amount equivalent to rent until such time as the landlord finds suitable replacement tenant or until the date on which the fixed term of the agreement has expired (whichever occurs first) and the parties agree that this clause 54.2(a) does not apply if the tenant terminates the residential tenancy agreement early for a reason permitted under the Residential Tenancies Act 2010. … 54.3 the landlord is entitled to claim damages for loss of bargain in the event of a termination of this agreement on the grounds of a breach."
The Member cited s.19(2)(d) in the Decision. That section is: "19 Prohibited terms (1) A residential tenancy agreement must not contain a term of a kind set out in this section or prescribed by the regulations for the purposes of this section. (2) Terms having the following effects must not be included in a residential tenancy agreement - … (d) that, if the tenant breaches the agreement, the tenant is liable to pay all or any part of the remaining rent under the agreement, increased rent, a penalty or liquidated damages…"
In our view, the Tribunal Member fell into error in finding that clause 54 of the residential tenancy agreement was in breach of s 19(2)(d). That section prohibits a term which provides that, if the tenant breaches the agreement, the tenant is liable to pay all or any part of the remaining rent under the agreement, increased rent, a penalty or liquidated damages. Clause 54 does not have that effect. The clause provides that if the tenant terminates the agreement before the expiry of the term he must pay rent until the landlord finds a suitable replacement tenant, or until the date of the expiration of the term. In our view the fact that the clause limits the liability of the tenant to pay rent until a suitable replacement tenant can be found is enough to take it out of the reach of s 19(2)(d).
The Member found that with the deletion of clause 41 and 42 and the operation of s 219, there was no break lease fee clause applicable. Subsection s 219(1) of the Act states: "219 Contracting out prohibited (1) A term of any residential tenancy agreement, contract or other agreement is void to the extent that it purports to exclude, limit or modify the operation of this Act or the regulations or has the effect of excluding, limiting or modifying the operation of this Act or the regulations."
Section 15 of the Act states: "(1) Standard form may be prescribed The regulations may prescribe a standard form of residential tenancy agreement. (2) The regulations may provide for the following - (a) the terms of the agreement, (b) more than one standard form of residential tenancy agreement for use for different classes of residential premises, agreements or parties, (c) the addition of clauses to, or the omission or variation of terms contained in, a standard form of residential tenancy agreement in specified circumstances, (d) the application of terms of standard forms of residential tenancy agreement to agreements entered into before the regulations prescribing those standard forms took effect. (3) Terms to be consistent with Act A standard form of residential tenancy agreement must be consistent with this Act and the regulations. (4) Variation of standard form A residential tenancy agreement for which a standard form is prescribed may include additional terms, but only if - (a) the terms do not contravene this Act or the regulations or any other Act, and (b) the terms are not inconsistent with the terms set out in the standard form. (5) Residential tenancy agreement taken to include standard terms A residential tenancy agreement of a kind for which a standard form is prescribed is taken to include the terms of the standard form. (6) This section is subject to this Act."
Although the Member made no specific finding, it is implicit in his reasoning that clause 54 was in breach of s 15(3) because it was not consistent with the standard form of residential tenancy agreement that was prescribed by the regulations. We find that that the standard form of residential tenancy agreement as contained in Schedule 1 of the Residential Tenancies Regulation 2019 as in force between 16 December 2019 and 14 April 2020, did not contain a clause similar or identical to clause 54 of the residential tenancy agreement signed by the parties to this appeal. It is clear that clause 54 has the effect of excluding or modifying the standard break lease provisions as contained in clause 51 of the standard form of residential tenancy agreement. As a result we find that the Member was correct in finding that that the effect of s 219 of the Act was that there was no break lease fee applicable to the property. As a result, we reject the landlord's appeal based on an error of law in the Tribunal's rejection of the landlord's 'counter claim' namely its claim for a break lease fee.
As the tenant submitted in this appeal, the Member was correct when he said section 107 makes a break lease fee a matter of discretion for the Tribunal: Abdel-Messih v Marshall [2018] NSWSC 648. Even if the tenant did not terminate the residential tenancy agreement early for a reason permitted under the Act, the Member maintained a discretion under s.107 to choose not to award the landlord a break lease fee in the circumstances. Those circumstances included that the tenant had spent many months attempting to have the landlord maintain the residential premises in a reasonable state of repair in a number of respects, culminating in lodging an application for compensation and repairs in the Tribunal, then giving written notice by email on 18 January with three weeks' notice of termination, only seven weeks before the end of the fixed term, after the landlord had repeatedly breached s.63 of the Act. The Appeal Panel finds no error in the exercise of the Member's discretion in considering whether to order the tenant pay compensation to the landlord for any loss on abandonment, especially where the landlord did not make an application - probably a condition precedent of such an order - and whereby the property was not abandoned as defined in s.106 but rather vacated by the tenant after given three weeks' written notice.
It was open to the Tribunal to find the tenant had terminated the tenancy for a reason permitted under the Act, and accordingly that he did not owe the landlord any break lease fee as the tenancy was validly terminated: ss. 81, 82, 98. As this was not argued on the appeal no findings need be made about it.

Leave to appeal

The tenant also seeks leave to appeal on the basis that the decision was not fair and equitable, the decision was against the weight of evidence and that significant new evidence is now available that was not reasonably available at the time of the hearing.
In considering the leave application we will have regard to the approach referred to in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 as stated at [12], namely: "In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent."
Such an approach was confirmed in Cominos v Di Rico [2016] NSWCATAP 5 where an Appeal Panel stated at [13]: "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 Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.""

Decision not fair and equitable

In Collins v Urban [2014] NSWCATAP 17 at [77] the Appeal Panel stated in connection with this ground for leave: "As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]."
The above passage indicates that a decision can be said not to be fair and equitable if there was some deficiency in the way that the hearing was conducted, rather than a subjective view by an appellant that the outcome was not fair and equitable.
We have reviewed section 6(B)(i) of the Notice of Appeal which sets out the grounds upon which the appellant submits that the decision was not fair and equitable. At 1(a), the Notice of Appeal stated: "The residential tenancy agreement between the parties signed and 18/3/2020. (Attachment P). The amendments to the Residential Tenancies Act did not come into effect until 22/3/2020 as such we refer to clause 54.2 in the lease agreement noting that the tenant must pay costs until the end of the fixed term in the agreement or a replacement tenant is found at the property. The fee payable is not at the discretion of the tribunal member as per section 107 of the Act."
In accordance with the approach adopted in Prendergast and Cominos, we will treat this ground as raising an error of law since the Tribunal member did refer to s107 of the Act in his reasons and this ground also raises the standard form of the residential tenancy agreement that was prescribed by the regulations at the date the parties signed the residential tenancy agreement the subject of these proceedings.
We reject the above ground of appeal. As we have explained the Tribunal Member was correct in finding that clause 54 of the agreement was void by the operation of s.219. Additionally , the amendments to the Act on or about 22 March 2020 did not remove the discretion of the Tribunal in making an order for a tenant to pay compensation to the landlord for any loss (including loss of rent) caused by the abandonment of the residential premises by the tenant.
The other grounds referred to in [1], [2], [3], [4], [5], [7], [8], [9], [10], [11] and [12] of Section 6(B)(i) are in our view either submissions, references to evidence, new evidence or an attempt to treat the appeal as a new hearing and in effect re-litigate the first instance proceedings.
At [6] the appellant stated: 'The amount of compensation is not fair and equitable because (a) the breakdown of the $15,000 amount was not provided in the order. It remains unclear how the order arrived at this figure. (b) the compensation represents a disproportionately large amount compare to the net rent proceeds received. (c) the landlord relies on the net rent proceeds of the only income source to fund her daily living expenses in retirement. Large amount of compensation will have a material impact on the ongoing living standards of the retiree. (d) the 15,000 compensation to tenant is equivalent to 10 weeks of rent. It is unfair that the house is free for over 10 weeks while the tenant still lived in the subject property with five bedrooms and two bathrooms in Killara. (e) the waive of break fee together with the amount of compensation in the order results in a total amount of approximately $28,000 in favour of the tenant. Such a compensation could be considered as a windfall gain for the tenant which sets precedence and puts landlords in the upper north shore area in an inferior position for future.'
At [13] in Prendergast the Appeal Panel gave examples of errors of law being whether: "(1) there has been a failure to provide proper reasons (2) the Tribunal identified the wrong issue or asked the wrong question: (3) a wrong principle of law had been applied: (4) there was a failure to afford procedural fairness: (5) the Tribunal failed to take into account relevant (i.e., mandatory) considerations:. (6) the Tribunal took into account an irrelevant consideration, as explained in Peko-Wallsend (7) there was no evidence to support a finding of fact: (8) the decision is so unreasonable that no reasonable decision-maker would make it"
We have reviewed the grounds for leave at [6] at 6(B)(i) of the Notice of Appeal to discern if any matters have been raised that may be characterised as an error of law. The decision by the Tribunal Member to award damages was an exercise of discretion by him pursuant to s 187 of the Act. We are of the view that grounds (c) and (e) are submissions and should not be considered as grounds upon which to consider whether leave should be granted, or which may be considered as raising an error of law. We consider that grounds (a), (b), and (d) relate to the way in which the discretion was exercised. These grounds may be considered as errors of law in two possible ways.
First, in Jones v Bradley [2003] NSWCA 81 which concerned, among other things, whether the Trial Judge's discretion in assessing damages miscarried, Santow JA, with whom Meagher and Beazley JJA agreed stated at [116] and [117]: 'Thus it is clear that for the Appellant to succeed it is necessary that the Appellant demonstrate more than that there were alternate findings (which this Court may or may not prefer) available. The appellant must demonstrate, positively, that the Trial Judge in making the findings that he did was wrong. Thus in the analysis of the grounds of appeal and the arguments put in support, it is important to bear in mind the need for the Appellant to establish error warranting appellate intervention and not merely that there was evidence which may support alternate findings. Moreover it is important to emphasise that such a damages appeal is an appeal from an exercise of discretion by a judge, whose wrongful exercise must be shown, in accordance with well established principle in House v the King [1936] HCA 40; (1936) 55 CLR 499 at 504-5, Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145; 13 ALR 387; Wilson v Peisley (1975) 7 ALR 571; 50 ALJR 207; Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190; Wilkes v Bradford Kendall Ltd (1962) 79 WN (NSW) 850 at 853; Moran v McMahon (1985) 3 NSWLR 700 at 716-21. Though Kirby P in Fuller v Galvin Incorporated, SCNSWCA, 7 April 1995, sought to qualify the latitude thereby afforded to the Trial Judge's assessment of damages as merely akin to the review of an exercise of judicial discretion, his minority view was not reflected by either Mahoney JA or Powell JA. Indeed the latter emphasised: "That such value judgments are involved to my mind dictates the approach which one must adopt to a case such as this, for, in making of such judgments, there is room for a great variation of approach, and the fact that one may differ from the judgment under appeal does not demonstrate error - error will only be demonstrated if the judgment under appeal is shown to contain one or other of the features referred to in the well-known Judgment of Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-5 "'
In House v The King [1936] HCA 40; (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ stated at 504 - 505: 'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.'
Secondly, on the ground that the decision is so unreasonable that no reasonable decision-maker would make it. Such a ground was explained by an Appeal Panel in Rathchime Pty Ltd v Willat [2017] NSWCATAP 87 at [19] - [21] as follows: "For us to find that the Tribunal Member's decision was so unreasonable that no reasonable decision maker would make it would require, as Lord Greene MR stated in Associated Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230, 'something overwhelming'. In Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 145, Tobias JA referred to the Wednesbury formulation in the following terms at [104] - [106]: 'Finally, as her Honour noted at [115], in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 Spigelman CJ, with whom Beazley JA and myself agreed, stated at [129]: "Perhaps the most appropriate formulation [of Wednesbury unreasonableness] is whether the decision is 'illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds". This formulation was adopted by myself in Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [71]. It was also adopted and applied by myself, with the agreement of Mason P and Hodgson JA, in Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [122]. In Notaras I cited (at [124]) [31] of the judgment of Biscoe J in Save Our Streets Inc v Settree [2006] NSWLEC 570; (2006) 149 LGERA 30 where His Honour drew a distinction between a decision which the court considers is unreasonable and a decision which the court considers is so unreasonable that no reasonable body could have come to it. The latter required "something overwhelming": Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [44]. In Wednesbury itself, Lord Greene MR at [229] referred to the relevant unreasonableness as "something so absurd that no sensible person could ever dream that it lay within the power of the authority". In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at [821], Lord Diplock defined Wednesbury unreasonable decisions as those which "looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them". In Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] 1 AC 484 at 518, Lord Brightman said that the unreasonableness must be "verging on an absurdity". In Aavelaid v J.A. Hayek t/as Laing & Simmons [2015] NSWCATAP 130 the Appeal Panel stated at [57] in connection with Wednesbury principles: Further, courts have repeatedly found that where there might be "mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions, this is not a sufficient reason for overturning a judicial decision on review", see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 48.'"
The Member had regard to a range of factors in arriving at an award of $15,000.00. These included the rent payable by the tenant, the landlord's breaches of the obligation to maintain the premises in a reasonable state of affairs, such as the pool, the ceiling, the utilities supply and a variety of other events such as non-functioning windows, a deadfall hitting and injuring a child and a steady stream of tradespeople attending for the purposes of repair or rectification. The Member found that these matters caused a continuous source of discomfort and nuisance such that the tenant's compensation claim was made out.
The matters raised by the appellant at 6(a), (b), and (d) of the Notice of Appeal do not establish in our view that there was a wrongful exercise of discretion by Tribunal Member in the way that was described in House v the King, namely that the Member followed a wrong principle, or allowed extraneous or irrelevant matters to guide or affect him, or that he mistook the facts, or he did not take into account some material consideration. On the second basis that the Member's award of $15,000.00 damages was so unreasonable that no reasonable decision-maker would make it, in our view the issues raised by the appellant cannot be said to point to a decision that was illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds, or so unreasonable that no reasonable body could have come to it. The grounds may more accurately be described as a preference for a different result, when the question is one on which reasonable minds may come to different conclusions.
We therefore find that while the matters raised 6(a), (b), and (d) of the Notice of Appeal may raise questions of law, the appellant has not been successful on the matters raised and the appeals on those questions should be dismissed.

The decision was against the weight of evidence

In Collins v Urban this ground was discussed at [77(2) ] where the Appeal Panel stated: 'The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) 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 - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].'
The appellant explained this 'ground of appeal' under 6(B)(ii) attached to her Notice of Appeal. Most of the explanation for this ground of appeal was the same as the appellant's nine grounds of appeal already set out above.
The first explanation under the heading "What evidence should the Tribunal have given more weight to?" was: The Tribunal should have given more weight to the fact that The residential tenancy agreement was entered into on 18/3/2020, prior to the change in the Residential Tenancies Act becoming effective on 23/3/2020. Therefore, the break fee in clause 54.2 is payable.
The change to s.107(4) of the Act has no bearing on this case.
The agreement between the parties was entered on 18 March 2020. On that date s.107(4) of the Act was: "(4) The break fee for a fixed term agreement for a fixed term of not more than 3 years is - (a) an amount equal to 6 weeks rent if less than half of the fixed term had expired when the premises were abandoned, or (b) an amount equal to 4 weeks rent in any other case."
On 23 March 2020 s.107 was amended and s.107(4) became: "(4) The break fee for a fixed term agreement for a fixed term of not more than 3 years is - (a) if less than 25% of the fixed term had expired when the premises were abandoned - an amount equal to 4 weeks rent, or (b) if 25% or more but less than 50% of the fixed term had expired when the premises were abandoned - an amount equal to 3 weeks rent, or (c) if 50% or more but less than 75% of the fixed term had expired when the premises were abandoned - an amount equal to 2 weeks rent, or (d) if 75% or more of the fixed term had expired when the premises were abandoned - an amount equal to 1 week's rent."
For the reasons already given, the appellant was not able to rely on clause 54 of the residential tenancy agreement. The appellant did not rely on s.107 as the basis for the break lease fee she sought from her former tenant. Therefore the change to s.107 has no bearing on this case.
The other matters referred to under this ground of appeal have been dealt with elsewhere in these reasons. They do not demonstrate an error of law or other error made by the Member. The Decision was not against the weight of evidence and in any event the Appeal Panel is not of the view appellant may have suffered a miscarriage of justice because the Decision was against the weight of evidence.
No leave is granted for the landlord to argue this ground of appeal.

Significant new evidence is now available that was not reasonably available at the time of the hearing

The only evidence before the Appeal Panel which was not before the Member below was the email from the tenant to the landlord sent 18 January 2021 in which the tenant gave notice he was terminating the tenancy and vacating.
This email was already taken into account by the Member as he was given oral evidence about the email by both parties at the hearing below.
The landlord described this ground of appeal as follows (under hearing 6(B)(iv)): The landlord has assigned a new representative for the appeal and therefore reviewed the case thoroughly and included critical supporting information that is not available to/or missed by the previous representative, the landlord's agent.
This ground of appeal is misconceived; there is no fresh or significant new evidence available that was not reasonably available at the time of the hearing. The fact that the landlord, with her new representative have reconsidered the case is not a valid ground of appeal.
The Appeal Panel refuses to grant leave to appeal from the Decision.

Costs

The tenant did not apply for his costs, which is in accordance with s.60 of the Civil and Administrative Act 2013 which provides that each party is to pay their own costs.

Orders

The Orders of the Appeal Panel are as follows: 1. Leave to appeal against the Decision is not granted. 2. The Appeal is dismissed. 3. No order as to costs. 4. The Registry of the Appeal Panel of the Tribunal is directed to immediately pay Tijmen Johannes Bonestroo $15,000 from NCAT's trust account.

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: 11 January 2022

(2007) 161 LGERA 230

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (34)

Cited By (2)