Nguyen v Ryan

The Appeal

1. The landlord appeals against the Tribunal's decision. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) states: Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
2. Clause 12(1) of Schedule 4 to the NCAT Act states with respect to decisions made in the Consumer and Commercial Division that: An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied 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).
3. Obtaining leave to appeal is a two-stage process. At the first stage the landlord must persuade us that he may have suffered a substantial miscarriage of justice under clause 2 of Schedule 4, because of one or more of the matters referred to in the grounds of appeal. Should the landlord persuade us that he may have suffered a substantial miscarriage of justice he must then, at the second stage, persuade us that we should exercise our discretion to grant leave to appeal on one or more of those grounds. The principles applicable to the granting of leave were set out in Collins v Urban [2014] NSWCATAP 17 at [65] - [84].
4. A summary of the grounds of appeal as set out in the Notice of Appeal as we understand them is as follows: 1. The Tribunal failed to take into account evidence that the tenant was in breach of the tenancy agreement as she intentionally or negligently caused damage to the residential premises (as the blockages were caused by her actions); 2. The Tribunal was in error in concluding that the tenant gave the landlord notice of the need for repair and that the landlord was given a reasonable opportunity to make the repairs; 3. The landlord also states that new evidence is available to support his contention that the tenant was in breach of the tenancy agreement.
5. The landlord has described the first two grounds of appeal as involving errors of law. The landlord, however, disputes the factual findings made by the Tribunal. We understand that it can be difficult for parties to articulate precisely the grounds of appeal. As was explained by the Appeal Panel in Cominos v Di Rico [2016] NSWCATAP 5 at [13]: 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.
6. In this matter we discern the grounds of appeal are that the decision was not fair and equitable and was against the weight of the evidence. The landlord also submits that significant new evidence is now available that was not reasonably available at the time of the hearing. These matters all require leave to proceed.
7. In submissions filed 6 April 2022 the landlord raised additional grounds of appeal which had not been raised in the Notice of Appeal or in earlier submissions made by him. These grounds are that the Tribunal erred in applying the relevant provisions of the Residential Tenancies Act 2010 (the RTA) in: 1. finding that the tenant made a reasonable attempt to arrange for the person nominated in the residential tenancy agreement to carry out the repairs, and 2. concluding that the tenant had arranged for a licensed or otherwise properly qualified person to carry out the repairs.
8. The landlord did not seek leave to amend the grounds of appeal. The tenant, however, has made submissions in response and we also deal with these grounds below. We also note that, while these grounds were also described as errors of law, they raise similar issues to the other grounds of appeal and leave is required.
9. For the reasons which appear below we are not persuaded that the landlord has suffered a substantial miscarriage of justice.

Consideration

1. Both parties appeared before the Tribunal at the hearing and provided documentary and oral evidence. The Senior Member gave oral reasons for her decision and the parties have provided us with a transcript of those reasons.
2. We will deal with each of the grounds of appeal in turn as they relate to the particular items in dispute. At the outset we note that an appeal to the Appeal Panel does not simply provide a losing party with the opportunity to run their case again: Bowers v Karai [2021] NSWCATAP 316 at [11] and Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

Relevant provisions of the Residential Tenancies Act

1. Before proceeding, it is important to understand the relevant provisions of the RTA relating to repairs. A landlord is under a general obligation to provide and maintain the residential premises in a reasonable state of repair (s 63 RTA). A landlord is not, however, in breach of that obligation if the state of disrepair is caused by the tenant's breach of their obligations. The tenant's obligations include that they must not intentionally or negligently cause or permit any damage to the residential premises (s 51(1)(d)).
2. Section 64 of the RTA provides that a landlord is required to reimburse the tenant for the reasonable costs of making urgent repairs to the residential premises. Such reimbursement, however, is only required if: 1. the state of disrepair did not result from a breach of the residential tenancy agreement by the tenant, and 2. the tenant gave the landlord or the landlord's agent notice of the state of disrepair or made a reasonable attempt to do so, and 3. the tenant gave the landlord or landlord's agent a reasonable opportunity to make the repairs, if notice was given, and 4. the tenant has made a reasonable attempt to arrange for a licensed or otherwise properly qualified person nominated in the residential tenancy agreement to carry out the repairs, if such a person is so nominated, and 5. the repairs were carried out, if appropriate, by licensed or otherwise properly qualified persons, and 6. as soon as practicable after the repairs were carried out, the tenant gave the landlord or landlord's agent, or made a reasonable attempt to give the landlord or landlord's agent, a written notice setting out details of the repairs and the costs of the repairs, together with the receipts or copies of receipts for costs paid by the tenant.
3. The Tribunal is empowered under s 65 to order that a landlord reimburse a tenant an amount for urgent repairs carried out by the tenant if it is satisfied that the landlord has failed to reimburse the tenant for the costs in accordance with the relevant provisions set out above (s 65(4)).

Damage caused by tenant's breach

1. The landlord submits that the Tribunal failed to take into account evidence submitted by the landlord which showed that the tenant was responsible for any blockages in the toilet. At the outset we note that the landlord confirmed at the appeal hearing that there were blockages in the toilet. What is disputed is the cause of those blockages. The Senior Member stated in her reasons that there was no evidence to support the landlord's claim that the toilet was blocked on 15 November 2021 as a result of malicious damage by the tenant or that it was otherwise the tenant's fault. She accepted the evidence of the tenant given under affirmation that the toilet is only used for human waste and toilet paper.
2. The landlord accepts that there is no evidence to prove that the tenant intentionally caused the toilet blockages but contends that the tenant must have negligently flushed objects other than human waste and toilet paper and this must have caused the blockages.
3. The landlord points to a report dated 12 December 2021 from Rykol & Sons Pty Ltd who were the plumbers who attended the premises on 15, 20 and 23 October 2021. That report states that on each occasion after clearing any blockage the toilet was tested and was operating normally. The landlord also relied at the hearing on a report from One Tap Plumbing who attended the premises on 21 November 2021. That report states that at the time there were no sign of any blockages or anything potentially able to cause any blockage within the pipes. The report further stated that "Blockages only can be from flushing other objects other than toilet paper and human waste". The landlord also gave evidence to the Tribunal that the two previous tenants of the unit had not reported any plumbing problems.
4. The landlord also seeks to rely on a statement submitted by the tenant to the Tribunal as part of her evidence. This statement was that she had been advised by the plumber who attended on 16 November 2021 that "until the toilet was fixed, to mitigate any more potential blockages, [she] should use one or two ply toilet paper". He also advised her to not let the toilet's contents build up, to flush after use and then flush small amounts of toilet paper separately as many times as needed. The landlord states that this is "new evidence" which supports his contention that the blockages were caused by the tenant and suggested at the appeal hearing that the blockage was caused by the fact that she was using the wrong toilet paper. This is not, however, new evidence as it formed part of the tenant submissions and evidence provided prior to the Tribunal hearing and was evidence that was before the Tribunal when it made its decision. In any event, it is difficult to understand how this statement goes any way to confirming that the tenant was responsible for the cause of the blockages. Indeed, the statement seems to indicate that there is a problem with the general working of the toilet as normal use is not permitted.
5. The landlord also seeks to argue that, because no further problems were experienced between 18 November 2021 and when the tenant left the premises on 20 December 2021, it must be concluded that it was the manner in which the tenant was using the toilet that was causing the blockages. The tenant's evidence, however, was that she followed the advice of the plumber as set out above and did not experience further blockages. As noted above, the fact that normal use was prevented does not indicate that the tenant was at fault. In addition, the attendance at the site by One Tap Plumbing occurred after the plumber arranged by the tenant had cleared the blockage. It is therefore of little utility in confirming the cause of the blockage.
6. In essence, the landlord argues that the decision was against the weight of the evidence and his evidence should have been given more weight than that of the tenant. The expression "against the weight of evidence" in the Tribunal means that the evidence in its totality preponderates so strongly against the conclusion favoured by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23 at [153], followed in Collins v Urban at [77].
7. We are satisfied that the Tribunal, doing the best it could on the basis of the evidence before it, made no error in determining that there was no evidence that any blockage was caused by the tenant's breach. It was clearly open to it to accept the tenant's oral evidence that she did not flush any foreign objects down the toilet. Indeed, none of the plumbers' reports identify any foreign objects as having been flushed. We do not therefore agree that its finding was against the weight of evidence or not fair and equitable. This ground of appeal is not made out.

Whether landlord given notice and reasonable opportunity to repair

1. In regard to notice, it is not in dispute that under the lease the tenant was directed to contact Energy Australia in relation urgent plumbing repairs. This was an error and the usual practice was to contact the agent in relation to urgent repairs. The requirement in s 64(2)(b) is that the tenant must give the landlord or the landlord's agent notice of the disrepair or make a reasonable attempt to do so.
2. The evidence that was before the Tribunal was that the tenant sent a text message to the landlord's agent at 8:33 pm on 15 November 2021 advising that the toilet was blocked and that she would follow up with an email. An email was sent to the agent at 8:55 pm in which the tenant advised of the blockage, noted that she had sent a text message to the agent as he was the emergency plumbing contact and stated that, if she did not hear from the agent by 9:00 am the next day, she would call a plumber to rectify the matter. The evidence of the tenant was that she heard nothing from the agent and after three attempts she found a plumber who was able to attend and he arrived at 3:30 pm on 16 November 2021 to carry out repairs.
3. The landlord's evidence was that the text message was never received and that the agent had no access to emails outside business hours. The agent states that the tenant should have contacted him by telephone as she had done in the past. It was clear from the evidence submitted by the landlord, however, that the agent was aware of the email request by about 9:30 am the following morning. The tenant's evidence was that she had previously communicated with the agent by email and the agent made no attempt to contact her prior to the attendance of the plumber at 3:30 pm. That is not contradicted by any evidence presented by the landlord. The Tribunal accepted that the tenant had given notice by email on 15 November 2021.
4. We agree with the Tribunal's conclusion that the tenant gave notice of the urgent repair and find no error.
5. Turning now to whether the Tribunal erred in finding that the landlord was given a reasonable opportunity to repair, the landlord argues that the Tribunal did not take into account that by contacting the landlord's agent by email after hours and stating that a plumber would be arranged by the tenant after 9:00 am the next day if there was no response, the landlord was not given a reasonable opportunity to undertake the repair. The landlord also argues that the tenant should have followed up with a phone call the morning after she sent the email.
6. The RTA does not provide any guidance as to what might be considered "a reasonable opportunity to make the repairs". What is reasonable will depend on the circumstances of each case. The tenant points out that this was the only toilet in the premises and that she was working from home as a result of the COVID-19 lockdown. Her evidence was that the landlord had ample time the morning after she had sent email to contact her to make arrangements for a repairer to attend but failed to do so. The evidence before the Tribunal also showed that, following a previous blockage, the landlord had sent an email to the tenant saying that she would have to pay for any future repairs.
7. We find no error in the Tribunal's conclusion that, in light of the circumstances, the landlord was given a reasonable opportunity to make the repairs.

Reasonable attempt to arrange for landlord's nominated repairer to carry out repairs

1. In its oral reasons the Tribunal found that, in accordance with s 64(2)(d) of the RTA, the tenant made a reasonable attempt to arrange for the licence plumber or otherwise properly qualified person nominated in the residential tenancy agreement to carry out the repairs. The Senior Member noted that under the residential tenancy agreement, Energy Australia was nominated as the repairer and that on the first occasion there was a blockage with the toilet, Energy Australia advised the tenant that it was not the appropriate repairer.
2. The landlord submits that the Tribunal made an error in finding that the tenant made a reasonable attempt to arrange for his licensed repairer to attend. The landlord's submissions, however, do not expand upon this point or indicate the basis upon which this ground of appeal is formulated or point to any evidence that was before the Tribunal which would lead to a contrary view. This ground of appeal can be taken no further. In any event, we are of the view that, as Energy Australia was not in fact the nominated plumber (having previously advised the tenant of that fact) the tenant was within her rights under the residential tenancy agreement to refer the matter to the landlord's agent.

Repairs carried out by a licenced or otherwise properly qualified person

1. The Tribunal found that the repairs organised by the tenant were carried out by a licensed or otherwise properly qualified person as required by s 64(2)(e) of the RTA. The landlord submits that the report by Ferguson's Plumbing Group provided by the tenant does not identify the actual plumber who carried out the work and/or their experience, qualifications, time in the trade etc. The landlord further submits that it is not a report that complies with the Tribunal's procedural direction on expert evidence.
2. It is not clear whether this matter was in fact raised by the landlord during the Tribunal hearing. In any event, the landlord does not explain why the document which is titled "Contractor Report" is relevant to the Tribunal's assessment of whether the repairs were carried out by a licensed or otherwise properly qualified person. The relevant document would appear to be the tax invoice provided to the tenant for which reimbursement was sought. That invoice clearly identified Ferguson's Plumbing Group and contained a licence number. The member was clearly entitled to rely upon that document as establishing that the repairs had been carried out by a licensed person. Again, we can find no error in the Tribunal's decision.

Conclusions

1. The landlord has not established that the decision was not fair and equitable or against the weight of the evidence or that the Tribunal made any other error. In all the circumstances we are unable to find that the landlord has suffered a substantial miscarriage of justice. There was no real possibility or fair chance of a different result on the state of the evidence before the Tribunal.
2. None of the grounds of appeal have been established. Leave to appeal is therefore refused and the appeal is dismissed.

Orders

1. We make the following orders: 1. Leave to appeal refused. 2. Appeal 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: 03 May 2022