Liem v Brenner and Dowell

Background to appeal

1. By Notice of Appeal filed on 30 November 2022 the appellant appealed a decision of the Tribunal received by the appellant on 8 November 2022 in proceedings arising under the Residential Tenancies Act 2010 (NSW) ("RT Act"). Pursuant to the orders of the Tribunal the appellant, as landlord, was under s 187(1)(a) of the RT act ordered to pay the respondents' (tenants) the amount of $6,942.86 on or before 16 November 2022 by way of compensation for damage to the tenants' goods and by way of rent reduction.
2. The appeal has been instituted out of time, since in proceedings arising under the RT Act an appeal must be lodged within 14 days of receipt of the decision unless such time is extended.
3. By standard form residential tenancy agreement made on 6 March 2019 the appellant as landlord leased to the respondents as tenants residential premises in metropolitan Sydney ("the premises"). The rental was fixed at $620 per week and the term of the tenancy was from 2 April 2019 to 1 April 2020. After commencing occupation of the premises, the tenants found that there were roof leaks and mould developed in the premises including on their assets.

Tribunal findings

1. The Tribunal found that the tenants lost the use of at least one of the rooms of the premises which was unusable from 7 March 2022 when the landlord was notified of roof leaks within the period that could be claimed for rent reduction under s 44 of the RT Act. The Tribunal accepted the landlord's agent's admission that there was no successful repair of the roof and little attempt to repair at all. When the tenants requested a rent reduction because of the reduction of facilities in the premises by reason of the roof and resulting leaks and damage, the landlord instead gave a "no-grounds" notice of termination under s 85 of the RT Act of what by this point was a periodic tenancy. The Tribunal also found that at the end of the tenancy the landlord exacerbated such breach by falsely claiming that the leak issues were due to the use of an air conditioner.
2. The Tribunal was satisfied that the tenants suffered a loss of at least 30% of use of the premises from 7 March 2022. The rent was $620 per week and the reduction was $186 per week or $26.57 per day. The tenants vacated on 12 June 2022 and accordingly the period of reduction was 98 days. Such compensation for rent reduction amounted to $2,603.86.
3. The Tribunal accepted that mould damage to the tenants' goods had occurred which was verified by photographs. Calculations were provided on the best available evidence for the replacement of such items. The Tribunal allowed the amount of $4,339 for such claims. The tenants also claimed non-economic loss which was not allowed since it would give double compensation with the rent reduction, citing in support Hill v Green [2022] NSWCATAP 256 at [46]-[48]. In total therefore, an order was made pursuant to s 187(1)(d) of the RT Act that the landlord pay the amount of $6,942.86 to the tenants on or before 16 November 2022.

The appeal

1. The Notice of Appeal filed 30 November 2022 raised three issues as follows: 1. that the landlord had done its best and that the "landlord should be given reasonable timeframe for repair" to effect the repairs; that a roofer would need a minimum of 2 to 3 weeks to order materials; that a roofer had installed a tarpaulin on 30 March 2022 and accordingly the rent reduction should not be allowed; 2. the landlord disagreed with the assessment of 30% of the premises being rendered unusable and asserted it should equate to only 10% since there were four bedrooms, living, dining and kitchen beside the bathrooms, laundry and rumpus room. The landlord asserted that the rent reduction should be only for eight days from 7 March to 30 March 2022, the latter date being the date when a tarpaulin was supplied, less 14 days pursuant to s 64 (1) of the RT Act which amounts to $70.88 rent reduction. 3. The appellant challenged the findings relating to the loss and damage to the tenants' goods from mould and asserted that the photographs did not show mould, that the items could have been cleaned rather than destroyed and that the landlord could not control the manner in which the tenants lived in the house. It was asserted that, had ventilation by opening windows occurred, it may have been reduced.

Extension of time and principles governing appeals

1. The appeal is an internal appeal under s 80 of the New South Wales Civil and Administrative Tribunal Act ("NCAT Act"). Pursuant to r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) ("the Rules"), unless the Tribunal grants an extension of time under s 41 of the NCAT Act, an external or internal appeal must be lodged, in respect of an appeal made in residential tenancy proceedings, within 14 days from the date on which the appellant was notified of the decision or given reasons for the decision (whichever is later): see r 25(4)(b). Accordingly, the landlord requires an extension of time in which to bring a valid appeal.
2. Rule 8 of the Rules provides that an application for an extension of time under s 41 of the NCAT Act must be made in writing unless the Tribunal dispenses with that requirement. No such application for dispensation has been made.
3. Further, the grant of an extension of time is not automatic. Section 41 of the NCAT Act states that "the Tribunal may…". It is an exercise of discretion as to whether to grant an extension of time. Principles governing the exercise of that discretion have been established in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22], namely: (1) is there proof that strict compliance with the rules will work an injustice on the applicant; (2) in the context of a pending appeal, the expiration of the period in which to appeal gives a vested right to retain the decision in question, with the consequence that the time for appealing will not be extended unless the proposed appeal has prospects of success; (3) it will usually be necessary to consider: (a) the length of the delay; (b) the reason(s) for the delay; (c) the applicant's prospects of success, that is, whether there is a fairly arguable case; (d) the extent of any prejudice suffered by the opponents if an extension was granted; (4) if the explanation for the delay is less than satisfactory and/or if the opponent has a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that the appeal is fairly arguable.

Leave to appeal

1. The notice of appeal does not raise any question of law. Rather, it seeks to challenge the factual findings of the Tribunal and the exercise of the discretion by the Tribunal in assessing the percentage of the rental that reflected the reduction of facilities.
2. In these circumstances, pursuant to s 80(2)(b) of the NCAT Act leave is required to bring the appeal, irrespective of any time limitations. In the present type of appeal from the Consumer and Commercial Division, the Appeal Panel is limited by the provisions of Pt 6 of Sch 4 to the NCAT Act. This provides in para 12 that an Appeal Panel may grant leave under s 80(2)(b) for an internal appeal only if the Appeal Panel is satisfied that 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). A substantial miscarriage of justice occurs where there is a "significant possibility" that a different, more favourable result would have been achieved: Collins v Urban [2014] NSWCATAP 17 at [78].
3. In Collins v Urban [2014] NSWCATAP 17 at [84] the Appeal Panel further concluded that it was appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administrative 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 was likely to produce an unfair result so that it will be in the interests of justice for it to be reviewed.

Consideration and conclusion

1. Essentially the present appeal asserts that the decision of the Tribunal was against the weight of evidence and is not fair and equitable.
2. The Tribunal found as follows: "[14] The Tribunal is satisfied the tenant suffered a loss of at least 30% of use of the premises as a claim from 7 March 2022…", ; "[15] The tenant [sic-Tribunal] accepts the evidence of the tenants as to mould damage to goods. … The evidence was supported by photos and efforts to calculate the loss based on the best evidence available such as online costing of items such as the bed".
3. Such findings were made having heard evidence of the impact of the ingress of water to the premises which included flooding from roof leaks. On the evidence before it, the Tribunal found that a 30% reduction in the use and enjoyment of the premises was appropriate. Further, in respect of the existence of mould, the Tribunal had before it evidence of the cost of the items. The decision, which was both carefully reasoned and detailed, recorded the evidence which was available and relied upon in respect of each issue.
4. Both findings of the Tribunal under challenge are factual. They involved an exercise of discretion based on the facts supporting those findings in which the intervention on appeal is limited: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505.
5. Significantly, the Tribunal did not find that 30% of the floor space of the premises was affected by flooding and roof leaks but, rather, that the loss of the use and enjoyment was at least 30% of the premises, which is a different consideration, and one not related only to floor space.The loss of use and enjoyment cannot be equated with a calculation of floor space only, as the landlord submitted.
6. The allowance for rent reduction was based upon material before the Tribunal and the allowance made for the loss and damage to goods was based upon the best evidence before the Tribunal. The landlord did not attend the Tribunal hearing but was represented by her managing agent. The landlord could not provide the Appeal Panel with any material to show that the Tribunal erred in its fact-finding. The landlord did not provide a transcript of the hearing nor a sound recording.

New evidence

1. The landlord referred to a floor plan of the premises upon which the landlord relied to show that the rumpus room comprised only 10% and not 30% of the premises; to an email concerning the provision of a tarpaulin to cover the leaking roof of the premises; and some articles published by the New South Wales Government relating to mould.
2. The email had been part of the material considered by the Tribunal. The floor plan and the published articles were claimed by the landlord to be "new evidence". However, both the floorplan and the articles, which appear to have been published in March 2022, could have been provided to the Tribunal, but the landlord by her agent did not do so.
3. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37]-[39]: "[37] In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard." [38] In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40]: "The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23]-[24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' [39] As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'"
4. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."
5. The "new" evidence relied upon by the landlord does not satisfy the criteria to be taken into account.

Extension of time

1. The reasons for failing to file the appeal in time are stated by the landlord to be that she was "shocked and overwhelmed by the decision and was not sure what to do". However, she consulted with her managing agent and others and thereafter undertook her own research. By the time she found out what to do, the 14 day appeal period had expired and she filed eight days late.
2. Taking into consideration that the landlord was represented at the primary hearing by a managing agent, the Tribunal does not accept that such an agent would not be familiar with the requirements, including time limits, in respect of residential tenancy proceedings in the Tribunal. No adequate explanation has been provided for the failure to bring the appeal within the required time limits.
3. The Appeal Panel does not consider that there is any demonstrable error in the decision under review within the principles already set out. The appellant would have very low prospects of success. The Appeal Panel also considers that, even if an extension of time was granted, leave would be refused under s 80(2)(b) of the NCAT act because the Appeal Panel is not satisfied that the appellant may have suffered a substantial miscarriage of justice.
4. Accordingly, leave to extend time to appeal is refused. There is accordingly no valid appeal and the current proceedings should be dismissed as not filed in time.

Orders

1. We make the following orders: 1. 1. Leave to extend time to appeal is refused. 2. 2. The present proceedings are dismissed as not filed in time.

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: 28 February 2023