Liu v Gris

1. The parties entered into a residential tenancy agreement on or about August 2017.
2. The tenancy was managed by a real estate agent on behalf of the landlord.
3. The tenant vacated the premises on 2 September 2024.
4. On 13 August 2024 the tenant lodged an application with the Tribunal seeking a rent reduction due to the landlord's failure to repair the air conditioning.
5. The matter was first listed for a Conciliation Group List Hearing. On that occasion the managing agent appeared on the landlord's behalf, as did the tenant. Conciliation was not successful, and the application was adjourned for a final hearing.
6. The matter was heard on 21 January 2025. Neither the landlord nor her agent appeared. The tenant appeared.
7. The Tribunal made the following orders:

The Tribunal orders that the respondent Huancai Liu, is to pay the applicant Malak Gris, the sum of $1,080.00, on or before 04 February 2025.

1. Rent abatement $1,080.00 (20% of rent $450 per week from 1-Dec-2023 to 28- Feb-2024 - 12 weeks)

Landlord did not repair air conditioning that formed part of the residential tenancy agreement.

2 The respondent did not appear and the Tribunal considers it appropriate to deal with the matter in the absence of the respondent.

3 The Tribunal is satisfied the parties have been notified of today's hearing and had an opportunity to be heard.

1. The Tribunal gave oral reasons for the decision.

1. In deciding the appeal, we have had regard to the following:

(1) The Notice of Appeal lodged on 3 February 2025, with documents attached.

(2) The Reply to Appeal lodged by the appellant on 19 February 2025 which have we treated as submissions by the appellant.

(3) Notice of Appeal with documents lodged on 26 March 2025.

(4) Letter from the appellant received 14 April 2025.

(5) Documents lodged by the respondent on 18 February 2025.

(6) Respondent's submissions lodged 7 May 2025.

(7) Copy of the orders appealed against.

(8) Copy of the application appealed against.

(9) Orders of the Appeal Panel at callovers.

1. The Appeal Panel refused the landlord's application for an extension of time to rely on documents emailed to the Tribunal on 27 May 2025, based on the principles in Jackson v NSW Land and Housing Corporation [2014] NSW CATAP 22 at [22]. Oral reasons were given for this decision on the landlord's interlocutory application.
2. When questioned by the Appeal Panel, the landlord confirmed that she has not submitted a sound recording or transcript of the Tribunal proceedings on 21 January 2025, notwithstanding order 1(d) of 11 February 2025 and 28 February 2025.

1. The Notice of Appeal was lodged on 3 February 2025. Under cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the Rules) the application should have been lodged within 14 days of the landlord receiving the Tribunal's decision.
2. The Notice of Appeal states the landlord received the decision on 22 January 2025.
3. We are satisfied the appeal was lodged within time.

1. On 11 April 2025 the Appeal Panel granted the landlord leave to rely on the Notice of Appeal lodged on 26 March 2025.
2. The landlord challenges the order that she pay the tenant $1080.00 on or before 4 February 2025.
3. In the Notice of Appeal lodged on 26 March 2025 the landlord states the grounds of appeal as follows:

I disagree with the Tribunal order. I should not pay the applicant $1,080 because I was not aware of the Air-Con not working until Hunter's emailed me on 13/08/2024. I had not received anything in writing before that and I do not remember any phone-call about it from them. But Hunters Agency worked on the Air-Con when Malak Gris complained about it shown in the email of 13/08/2024 said they "sent a few people through to have a look" but Malak Gris "did want to mention is that the Air-Conditioner is still not working." (See the attachment the email). I started to use the Air-Con on 19 March 2025, it is working without any problems!

1. The Notice of Appeal does not state whether the landlord seeks leave to appeal and does not address any reasons the landlord should be granted such leave.
2. In the Notice of Appeal, the landlord said that, if successful in the appeal, the Appeal Panel should make the following orders:

No payment of $1,080 for the Air-Conditioner to Malak Gris!

I should not pay Malak Gris for the Air Conditioner. The Hunters Agency have worked on the Air-Conditioner during Malak Gris's rent. And the Air-Conditioner is still working without any problems up to today.

Also, Malak Gris should pay me $247.53 for his seven Water Usage Bills (see Water Bills from Jan 2023 to 20 September 2024).

He has done nothing to pay he owes in Water Usage Bills from Oct 2022 to Sep 2024. See Gris's Tenancy Ledger from Jan 2023 to Sep 2024, and my Income & Expenditures Summarys 2022-2023 and 2023-2024.

Please Tell me where the Air-Con remoter is because I cannot find it.

1. The basis upon which appeals from decisions of the Tribunal may be brought are identified in s 80 of the NCAT Act. Section 80 of the NCAT Act states that an appeal may be made 'as of right on any question of law, or with leave of the Appeal Panel, on any other grounds' (s 80(2)(b) of the NCAT Act).

1. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. A pure question of law does not depend on the facts found, and the question of law must be, self-evidently, a question of law and does not depend on the answer given to the question. A question of law is distinct from a mixed question of fact and law, for which leave to appeal is required. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and _Cusumano a_t [32]. However, the categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:

"What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.

For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly at [28]-[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A); see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]-[54], [109]-[114].

Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required."

1. We have engaged in the process of considering whether there is a question of law that has in fact been raised (see also Cominos v Di Rico [2016] NSWCATAP 5 at [13]).

1. Clause 12 of Sch 4 of the NCAT Act provides that the Appeal Panel may grant leave to appeal a decision from the Consumer and Commercial division (CCD) pursuant to section 80(2)(b) of the NCAT Act, only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(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 Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of sch 4 of the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76] stating that a substantial miscarriage of justice 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.

1. The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban the Appeal Panel concluded at [84] that:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal, only in matters that involve:

(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; or

(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.

1. It is important to note that an appeal is not an opportunity for the losing party to rerun their case (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]).

1. In written and oral submissions the landlord says:

(1) Throughout the entire tenancy, her agent had always managed the residential premises, including the tenant's complaints about the air conditioning, leading to a contractor attending the premises and discovering a PVC hose was split;

(2) She should not pay the tenant $1,080.00 because she 'started to learn what had happened' regarding the air conditioner on or about 13 August 2024;

(3) The landlord moved into the premises in November 2024 and at that time the air conditioner was working;

(4) She does not agree with the amount of the money order because the air conditioner was not broken. The tenant may not have operated it correctly;

(5) The tenant should pay the landlord outstanding water usage;

(6) The tenant did not pay the increased rent of $530.00 per week upon the commencement of the new contract on 9 February 2024;

(7) The tenant caused damage to the residential premises and the air conditioner remote control and instruction book were missing at the end of the tenancy;

(8) She asserted that she was not aware of the hearing on 21 January 2025 as she was 'quite busy and missed a lot of information.'

(9) The Tribunal 'did not listen to me' and it 'made its decision without my statement.'

1. In written and oral submissions the tenant says:

(1) The landlord's claims of rent and water arrears are irrelevant to this appeal;

(2) He did pay the required rent and water;

(3) During the tenancy he did not communicate with Ms Liu directly, but always through her managing agent;

(4) He had ongoing problems with the air conditioning during the tenancy and pointed to text messages between himself and the agent;

(5) An email from the agent to the landlord of 13 August 2024 states relevantly: 'The tenant did want to mention that the air conditioner is still not working' (emphasis added), suggesting that the landlord and agent were aware that there were ongoing problems;

(6) If the agent failed to inform Ms Liu of the repair notifications, that is an issue between the landlord and agent;

(7) The agent conducted an outgoing inspection of the property and did not identify any damaged or missing items. The bond was therefore released in full to the tenant.

1. In his written submissions lodged on 7 May 2025, the tenant requests a rent reduction of 20% for 12 months, rather than the 3 months he was awarded. Because this appeal was brought by the landlord, we have not considered the tenant's request.

1. The landlord asserted that the Tribunal 'did not listen to me'. If established, this would involve a lack of procedural fairness and would be an error on a question of law.
2. However, when questioned by the Appeal Panel, the landlord stated that she was not present at the hearing on 21 January 2025, nor was her agent. Further, she did not submit any evidence to the Tribunal prior to that hearing.
3. The Tribunal made a finding that it was satisfied the landlord had been served with the Notice of Hearing and had had an opportunity to be heard.
4. Therefore, we do not consider that the landlord has raised a question of law, either in the Notice of Appeal, or in her oral submissions.
5. The only evidence before the Tribunal on 21 January 2025 was the evidence submitted by the tenant which shows that there were ongoing problems with the air conditioning which had been brought to the attention of the agent who at all times acted on behalf of the landlord.
6. The evidence the landlord sought to rely on to contest the tenant's claims was reasonably available to her as at 21 January 2025.
7. The landlord otherwise made unsupported assertions about the tenant's alleged misuse of the air conditioning which were not meritorious in circumstances where the managing agent did not provide any evidence on the issue.
8. The landlord has not provided us with a transcript or sound recording of the hearing. That is an important aspect of an appeal particularly where the Tribunal gave oral reasons.
9. An Appeal Panel must know what the Tribunal's reasons for decision were in order to determine whether there was some error in those reasons.
10. The landlord was directed by order 1(d) made by the Appeal Panel on 28 February 2025 to lodge with the Tribunal and serve on the respondent 'a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing' by 28 March 2025.
11. In the absence of the landlord lodging the sound recording or transcript, we are not able to determine whether the Tribunal's decision was not fair and equitable or whether the orders were inconsistent with the evidence or the weight of the evidence.
12. The Appeal Panel has adopted this approach in circumstances where the sound recording or transcript of the hearing at first instance has not been supplied on an appeal: Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [22]- [26]; Geracitano v Cloughessy [2021] NSWCATAP 329 at [23]- [27]; Lazaris v Kale [2022] NSWCATAP 36 at [23]- [28].
13. For these reasons we are not persuaded that the landlord may have suffered a substantial miscarriage of justice.
14. A focus of the landlord's submissions related to her claims of rent and water arrears and damage to the premises.
15. The appeal, however, is against the Tribunal's decision regarding the tenant's application for a rent reduction. The decision appealed against did not address the landlord's application for rent and water arrears, nor for compensation for damage to the premises, because the landlord did not make such an application.
16. Further, the tenant's right to a functioning air conditioning provided as part of the residential premises is independent of the landlord's rights under the tenancy agreement.
17. In other words, even if the tenant did owe the landlord rent and water (and we make no finding in that regard), such arrears could not be offset against any rent reduction awarded to the tenant.
18. The landlord's claims for water and rent arrears and damage to the premises are therefore irrelevant to this appeal.

(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.