Nguyen v Cisera

NCAT Appeal Panel|2019-09-04

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT ACT) against two decisions made in the Consumer and Commercial Division of the Tribunal on 9 May 2019.
For the reasons set out below, we have decided to refuse the application to extend the time in which to lodge the Notice of Appeal and to otherwise dismiss the appeal.
The Tribunal ordered the tenant to pay rent outstanding and released the bond to the landlord. The tenant's claim for compensation was dismissed.

Extension of time

The Notice of Appeal was filed on 7 June 2019, 15 days out of time. The Appeal Panel will therefore have to decide whether time should be extended pursuant to s41 of the Civil and Administrative Tribunal Act 2013 (the Act).

The decision of the Tribunal

In order to give context and background to these reasons for appeal the short reasons for decision published by the Tribunal are set out in full. On 26 February 2019, the tenant applied for orders that the landlord: (a) pay compensation under section 187(1) of the Residential Tenancies Act 2010 ("the Act") (b) return bond. 2 On 27 February 2019, the landlords applied for rent arrears and the bond. 3 Without objection from the landlords' representative, the tenant amended her claim to the following: (a) the bond be fully paid out to the tenant (b) compensation by way of rental reduction for withdrawal of clothes dryer (c) compensation for by way of rental reduction for failure to provide a garage with the premises (d) denial of permission to tenant to install a CCTV (e) $3,000 payment to tenant due to alleged landlord's interference with a sub-tenant tenancy agreement between the tenant and another person subject of earlier proceedings in the Tribunal, but not this proceeding. Evidence of the parties 4 The landlords' agent and the tenant gave oral evidence and were cross examined on it. The agent relied on an affidavit from one of the landlords. Under procedural directions made by the Tribunal on 19 March 2019 the parties provided documents to be relied on at hearing. All of that material has been considered in coming to this decision. Findings and determination The bond claim 5 In relation to the claim for rent arrears both parties provided their own versions of a ledger. The tenant's version showed less rent paid than that acknowledged in the landlords' ledger. The tenant said she had fallen behind in rent because the landlords would not allow her to sublet the premises. The evidence showed that the landlords only prevented the tenant from subletting the premises after they had received a formal notice from Council that action would be taken against them for allowing the property to be sublet on a short-term holiday basis. The Tribunal finds out that this reaction of the landlords was reasonable in the circumstances of the case. In any event, under the tenancy agreement the tenant is liable for all of the rent and her capacity to sub-let her premises is irrelevant to her obligation to pay rent under this agreement. 6 The tenancy began on 26 February 2018. The Tribunal finds it ended on 25 April 2019 when the tenant gave written notice to the landlord she had left the premises. The Tribunal accepts the landlords' ledger as it showed more rent paid than in the tenant ledger. The Tribunal awards the arrears of $5,361.15 as sought by the landlords. Clothes dryer 7 The tenant said that before she entered into the residential tenancy agreement subject of this dispute in November 2017 she arranged with the landlords to replace the clothes dryer in the premises with her own. The lease clearly indicated the clothes dryer was not an inclusion at the premises provided by the landlords. The evidence showed that the tenant took her clothes dryer at the end of her tenancy. The Tribunal finds that the clothes dryer was not part of the residential tenancy agreement. The landlords cannot have withdrawn goods that where not part of the agreement. That claim is dismissed. Garage / Parking Space 8 The tenant said when she entered into this residential tenancy agreement she was not informed of a parking space at the premises. However, the evidence showed that the tenant had been at the premises for a number of months before entering into this tenancy. No parking space or garage had been part of that prior tenancy. Secondly, she had some sub-tenants herself who had a vehicle and never parked it at the residential premises but instead chose to park it elsewhere and had to walk to it every time they used it. Thus a parking space had never been provided at the premises. The Tribunal also accepts the evidence in one landlord's affidavit that the landlords told the tenant on the day she signed the lease that they used the parking space and it had never been an inclusion of the residential tenancy agreement. The lease did not include a garage. Further, the act and the regulations do not mandate that information about parking space or garages is something that has to be included in disclosures by the landlord. The Tribunal finds the parking space was never an inclusion under the residential tenancy agreement and thus not a good capable of being withdrawn. This claim is not allowed. CCTV Permission 9 In relation to the claim the landlords refused the tenant permission to install a CCTV an email between the landlord's solicitor and the tenant in December 2018 was relied on as a denial of permission. However, examination of that email shows that at best the request by the tenant is a request to the landlords' solicitor for advice as to whether she should install a CCTV or not. The solicitor did not reply to this email as she was acting for the landlords. Secondly, the tenant said that the refusal to allow her to install a CCTV resulted in her sub-tenant punching her in early 2019. The Tribunal does not find any causal link that is sufficient to establish that a refusal to allow installation of a CCTV, which has not a found occurred in any event, would result in a sub-tenant taking some sought of violent action against the tenant or would have prevented such an action. The claim for compensation for refusal to allow installation of a CCTV is dismissed. Interference with sub-tenancy 10 The tenant also sought payment from the landlords because they permitted a lock-out of her sub-tenant from the premises. The evidence did not support this proposition whatsoever. In cross-examination, and on her own documentary evidence, the tenant asked the landlords to discontinue the access card for her sub-tenant to the premises. Landlords complied with her request out of concern for her safety. In the circumstances, this was a reasonable response by the landlords to a request of their tenant. 11 The tenant's application is dismissed. The claim for rent arrears is allowed.

First issue: the appeal is filed out of time

The Notice of Appeal was lodged on 26 July 2018, more than the 14 day period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules).
The appellant requires an extension of time.
The Appeal Panel may extend time in accordance with s41 of the Act. Principles relevant to the exercise of that discretion are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. Some of the factors to consider in an application for extension of time include: 1. The length of the delay 2. The reason for the delay 3. The appellant's prospects of success 4. The extent of any prejudice to the respondent
The Notice of Appeal states that the decision below was received by the appellant on the day it was given, 9 May 2019. Accordingly, any appeal should have been filed by 23 May 2018 and the appeal is filed 15 days out of time.
In submissions dated 24 July 2019 the appellant states that she was unable to file the appeal in time because she requested the sound recording on 14 May 2019 and was not provided with a copy until 27 May 2019 and "the application could not have been done without the sound recording of the hearing." The appellant is not legally represented and it was time-consuming for her to research the legislation. It is submitted that the health issues caused by the landlord's failure to install CCTV footage are also to blame for the late filing of the appeal. It is submitted that the Tribunal should allow an extension of time because the delay is relatively short and the prospects of success are high.
The respondent opposes the application to extend time, submitting there was no reasonable explanation for the delay and the appeal is "manifestly hopeless", raises no questions of law and raises no questions for which leave to appeal is required. The appellant apparently knew the time prescribed within which to appeal, and she only thought to file the appeal after the respondents took steps to enforce the money order made by the Tribunal at first instance.
It is submitted the appellant's explanation that an appeal could not have been filed in time without first obtaining a sound recording is not a proper basis to warrant leave for an extension of time to appeal and the appellant has not provided any proper basis for leave.
We are of the view that the length of the delay, the lack of any adequate explanation, and the fact the appellant knew of her right of appeal and took no action counts strongly against the grant of an extension of time.
As to the prospects of success, the grounds of appeal in the Notice of Appeal and the documents filed on 23 July and 2 September 2019 are not easily understood.
At the hearing of the appellant summarised her grounds of appeal as follows: 1. The Tribunal erred when it granted leave to the respondent to be legally represented at the hearing; 2. The Tribunal erred in its finding that the tenancy commenced 28 February 2018; 3. The Tribunal showed actual or apprehended bias; 4. The Tribunal erred when it awarded $5361 for rent owing; 5. The Tribunal erred when it ignored the appellant's oral submission and written submissions dated 16 April 2019; 6. The Tribunal erred when it dismissed the appellant's claims for compensation in respect three issues: 1. $650 for a non-functioning dryer; 2. $43,000 for health issues caused by the landlords' failure to allow the installation of closed circuit television (CCTV); 3. $3630 for loss and damage caused by the landlord's failure to disclose the existence of car parking facilities.
For the reasons that follow it is our view the appeal has no prospects of success, it being unlikely that leave to appeal would be granted in relation to any of the findings made. This conclusion counts against granting an extension of time.
Having regard to the above, we are not satisfied that the time to lodge the Notice of Appeal should be extended. The application to extend time should be refused and the appeal otherwise dismissed.

Rent

In respect of the appeal against the award in the landlord's favour, in our opinion there was no error of law made by the Tribunal concerning the issue of rent arrears. There was evidence in the form of a rent ledger to support the finding by the Tribunal that the tenant had failed to pay rent in accordance with the residential tenancy agreement. The parties had reached agreement that rent would abate from $860 to $500 from 20 December 2018 to 25 February 2019, being the date the landlord sought vacant possession in accordance with a notice of termination to vacate the premises at the end of the fixed term. The tenant did not dispute the findings of fact made by the Tribunal at [6], namely that there was rent owing as demonstrated by the rental ledger tendered by the landlord; that the tenant did not vacate the premises until 25 April 2019; and that the arrears at that stage were $5,361.15.
The acceptance of the rental ledger favourable to the tenant was a critical step in the conclusion that rent in the sum of $5,361.15 was owing. Secondly, there was clear evidence that the landlord's rental ledger had accounted for the agreement between the parties that rent would abate from $860 to $500 for the reason that the tenant had considerable difficulty evicting Mr Miriani, a sub-tenant, from the premises. However, it was also made clear in the email correspondence between the appellant and the landlord's solicitor that the rent abatement was only offered until the end of the fixed term. We are satisfied that the findings of fact as to rent arrears are readily supported by the evidence and disclose no error.
We reject the grounds of appeal challenging the findings by the Tribunal that the tenant was in arrears in the sum of $5361 when she vacated the premises some two months after the end of the fixed term.

The dryer

The appellant submits that the Member made wrong findings of fact and erred in dismissing her claim for compensation in the amount of $650 for withdrawal of services. It is submitted the premises were advertised with a dryer but the dryer was not working for about one week sometime between May and November 2017. The tenant submits she had no choice but to purchase a dryer. The landlord agreed to reimburse the tenant. The appellant claims the landlord failed to reimburse her for the cost of the dryer, and she removed the dryer when she vacated the premises.
We reject the appellant's grounds of appeal in respect of damages for withdrawal of services. We have had regard to the submissions made at paragraph 6B of the appellant's submissions: "the landlord was aware of the dryer not working and subsequent to my contacting them the dryer was purchased and delivered to the property in November 2017 after I had moved in and taken on the responsibility and the flatmates".
We are not of the view that the Notice of Appeal and or the submissions dated 18 July 2019 disclose any error on the part of the Member's reasons. On the evidence before him, the Member was entitled to make findings of fact at [7] that the residential tenancy agreement did not include a dryer; and that the tenant did not suffer loss by reason of the fact that a dryer that was purchased by the appellant was removed by her at the end of the tenancy. The appellant does not dispute the findings of fact made by the Member, in particular the finding that the residential tenancy agreement did not include a dryer or that the inspection report specifically excluded it. Oral submissions to the effect that the tenant was coerced into signing a false inspection report were not raised with the Member at first instance and the appellant would require leave to rely on new evidence that was not reasonably available at the time of the hearing to support an additional ground. No such evidence was available to us.
For these reasons we are of the view that this ground of appeal is unlikely to succeed.

CCTV

The appellant alleges that the Member erred in dismissing her claim for compensation for damages for poor health, an increase in TAFE costs and mental distress. The appellant submits that by reasons of the landlords' failure to give permission to install CCTV she was assaulted by her sub-tenant. This part of the appellant's claim was dismissed in [8] above as the Tribunal found the tenant had not established causation. We are not of the view that this ground of appeal raises an issue of law, or any other ground for which leave may be required. The appellant submits that the findings of fact by the Tribunal are against the weight of the evidence "presented at the hearing on 16 April 2019." We have had regard to the submissions filed on 16 April 2019. The relevant submission concerning CCTV cameras states as follows: In November 2018 I requested owners' approval (sic) (Annex 10) for installing CCTV camera in the hallway next to the kitchen in the unit but no response was forthcoming. I had verbally offered to pay for the installation of the CCTV camera. The AVO incident occurred on 30 December 2018 at the spot in the hallway where the CCTV camera should have been installed.
The evidence and submissions dated 16 April 2019 do not elaborate how a failure by the landlord to allow a CCTV camera to be installed is causative of the appellant's loss and damage in respect of "major and negative change in health in affecting TAFE study" and resultant damages for cost of psychiatric treatment. We are not of the view that the appellant has established that the Tribunal erred when it dismissed this part of the appellant's claim for lack of causation.
Accordingly, we are of the opinion that this ground of appeal is also likely to fail.

Parking

The appellant submits the Tribunal erred in dismissing her claim for damages for lack of parking. The appellant refers to her submissions dated 2 September 2019 and in particular Regulation 7 of the Residential Tenancy Regulations 2010 which states that a landlord must disclose to a potential tenant that because of the zoning of the land the tenant will not be able to obtain a residential parking permit in an area where only paid parking is provided. It is unclear to us how this regulation gives rise to a claim for compensation. The Notice of Appeal and submissions do not raise an error of law, or any other ground of appeal for which leave may be required. In considering the residential tenancy agreement it was open to the Tribunal at [8] to arrive at a finding that the residential tenancy agreement did not include a carspace and that there was no legislative requirement on the owner of residential premises.
We do not consider that this ground of appeal has any merit.
Bias
It is unclear from the appellant's submissions if she is alleging actual or apprehended bias. She did, however, submit that her allegations were contained in her submissions dated 2 September 2019 at Paras [8] to [9(f)].
In considering this ground, we are guided by the definition of actual bias in Judicial Review of Administrative Action and Government Liability (6th ed 2017, Thomson Reuters at [9,40]: A claim of actual bias requires cogent evidence that the decision-maker was in fact biased. Actual bias will not be made out by suspicions, possibilities or other equivocal evidence. In the absence of an admission of guilty from the decision-maker, or, more likely, a clear and public statement of bias, this requirement is difficult to satisfy.
In relation to apprehended bias, we are guided by the High Court in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [31]; It has been established by a series of decisions in this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. …
We have examined the appellant's submissions but can find no clear basis for an allegation of actual or apprehended bias.
This ground is unlikely to succeed.

Late evidence

The appellant submits the late tender of Mr Cisera's affidavit dated 29 April 2019 gave rise to a denial of procedural fairness because the appellant was denied an opportunity to tender evidence in response. For this ground to succeed the appellant would have to establish that the facts deposed to in the affidavit gave rise to material findings of fact, in the absence of which, her claim for compensation would have succeeded. We have had regard to the affidavit. It was not referred to in the reasons for decision, other than in paragraph [8]. However, the admission of the evidence is not, in our view, relevant to the material findings of fact. Even in the absence of the affidavit evidence tendered by the landlord, the Member was entitled to arrive at a finding that the residential tenancy did not include a car space. The appellant does not dispute the material findings that she lived in the premises for a period of approximately 2 years prior to 28 February 2018, being the date when the current tenancy commenced; or that she had no access to a car space at any time during the tenancy. We are not of the view that admission of the affidavit of 29 April 2019 gave rise to a denial of procedural fairness. In any event, the appellant would require leave for this ground of appeal to succeed.
A grant of leave in accordance with cl 12 of Sch 4 would require the Appeal Panel to be satisfied that that an appellant may have suffered a substantial miscarriage of justice, which, as discussed in Collins v Urban [2014] NSWCATAP 22, refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred.
The approach adopted by the appellant in the appeal is in substance to express disagreement with the Member's findings. That is not a basis on which the Appeal Panel could grant leave. As observed by the Appeal Panel in Temple v AMR Motors Pty Limited [2017] NSWCATAP 221: 38. … Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so). 39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. …
On any reading of the Member's reasons, there is no error in how he identified the relevant issues, evaluated the evidence, or reasoned the findings. The Member received sworn evidence from both parties, and gave reasons for his findings based on the documentary and oral evidence. The Member concluded that the appellant had not satisfied the onus of establishing her claim for compensation, particularly in relation to the alleged failure to allow CCTV cameras to be installed.
Finally we turn to whether there is any prejudice to the respondent. The Appeal Panel notes that the respondent is a private landlord who states that he has suffered significant financial loss by reason of the fact that the tenant was in arrears well in excess of $5000. To allow an extension of time in circumstances where the reasons for an extension are not persuasive and the merits of the appeal are questionable must weigh against extending the time for appeal.
As can be seen from the reasons set out above, the grounds of appeal articulated by the appellant do not identify questions of law and the appeal has no prospects of success. It is unlikely that leave to appeal would be granted in relation to any of the findings made. For these reasons we are not minded to grant an extension of time.
Having regard to the above, we are not satisfied that the time to lodge the Notice of Appeal should be extended. In our view, the application to extend time should be refused and the appeal otherwise dismissed.

Orders

The orders which we make are as follows: 1. The application to extend the time in which to file the Notice of Appeal is refused. 2. Leave to appeal is refused and the appeal is otherwise 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: 25 September 2019

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)