This is an internal appeal filed pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) from a decision of the Consumer and Commercial Division of the Tribunal dated 3 July 2024 (Decision).
The Decision was made under the Tribunal's jurisdiction in the Residential Tenancies Act 2010 (NSW) (the RT Act) in matters 2024/182874 and 2024/144204.
In these reasons, the appellant is referred to as the "landlord" and the respondents are referred to as the "tenants".
For the reasons set out below we dismiss the landlord's application for leave to appeal and accordingly we dismiss the appeal.
The Decision was in effect:
1. The amount of $1587.92 was to be paid by the tenants to the landlord from the bond;
2. The balance of the bond to be paid to the tenants.
The sum of $1587.92 was comprised as follows:
1. Rent arrears $110
2. Break fee $770
3. Breach of tenancy agreement by exceeding number of permitted occupants $100
4. Water usage $202.92
5. Cleaning and rubbish removal $205
6. Damage to benchtop $200.
Oral findings and reasons were given by the Tribunal member for the Decision.
The landlord stated in [5C] of the Notice of Appeal that she sought for the following orders to be made by the Appeal Panel:
1. Rent for 2 extra occupants from 20 November 2023 to 16 March 2024 at $250 per person = $8500
2. Burnt kitchen benchtop $1150 - $200 = $950
3. Damaged loungeroom wall $1095
4. Damage to mirror cabinet $645
5. Light damage $395
6. Cleaning $595 - $205 = $390
7. Air conditioner repair $225
The landlord further amended the proposed orders in her submission filed on 11 September 2024 as follows:
1. Rent for 2 extra occupants from 20 November 2023 to 16 April 2024 at $250 per person = $10,571.50
2. Burnt kitchen benchtop $1150 less $200 = $950
3. Damage walls in loungeroom and bedroom 1 and teenage (sic) $1095
4. Damage to mirror cabinet in bathroom $845
5. Globes and light change $395
6. Cleaning and rubbish removal $595 - $105 = $390
7. Air conditioner repair $225
The landlord also sought on the appeal 2 new claims - 1) the costs of a locksmith for $445 and 2) the cost of a call-out fee on 2 March 2024 because the tenants had "evicted the electrician" for $165. These 2 claims cannot be the subject of this appeal as they were not before the Tribunal and we decline to consider them.
The landlord also sought costs of the appeal in the total sum of $748 which included the filing fee, sound recording fee, travel costs and stationery costs. The application for costs is refused for two reasons. Firstly, the landlord has been unsuccessful with the appeal. Secondly, the applicable costs regime is section 60 of the NCAT Act which provides that each party is pay their own costs unless there are special circumstances. We do not consider that there are any such special circumstances to this appeal.
[2]
MATERIALS
The Notice of Appeal has been stamped showing that the landlord filed the appeal at the Liverpool Registry on 17 July 2024, which was subsequently received by the Appeal Panel Registry on 19 July 2024. We consider that the appeal has been filed within the prescribed 14 day period - cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
The tenants filed a Reply to the Appeal on 22 August 2024. The tenants oppose the orders sought on appeal.
Directions were made to prepare the appeal for hearing at a callover on 21 August 2024. Both parties have filed documents for the appeal hearing as follows.
The landlord relied on:
1. The Notice of Appeal;
2. Submissions filed 12 September 2024, 17 September 2024, 20 September 2024.
The tenants relied on:
1. Reply to Notice of Appeal
2. Submissions dated 27 September 2024.
The landlord has included in her submissions a CD of the hearing and extracts of the transcript which she has prepared. The tenants have also provided extracts of the transcript on their submissions which they have prepared.
[3]
BACKGROUND
We summarise the background between the parties as follows:
1. The parties entered into a written residential tenancy agreement on 21 November 2023 for a term of 5 months;
2. The rent was $770 per week;
3. The last date of the fixed term was 20 April 2024;
4. Three tenants were listed and named on the tenancy agreement;
5. No more than 3 persons were permitted under the tenancy agreement to ordinarily live at the premises;
6. A bond of $3080 was paid by the tenants and lodged at Rental Bond Services;
7. The tenants returned the keys early (prior to the end of the fixed term) on 9 April 2024 which terminated the tenancy and they paid a break fee of 1 week's rent;
8. The landlord claimed that there were 2 additional occupants living at the leased premises during the tenancy which were not approved by the landlord;
9. The landlord has claimed compensation for a number of end of tenancy issues, substantially relying on a quote from Khuong Group dated 17 April 2024;
10. Most repair items have not yet been attended to because the landlord says she does not have the funds for the repairs;
11. The landlord has relet the premises since the tenants vacated;
12. The landlord confirmed at the hearing of the appeal that the correct version of the ingoing and outgoing condition report was the document titled "Outgoing Condition Report" dated 10 April 2024 with a completed list of comments for the "Condition of the Premises at the START of the tenancy" and a completed list of comments for "Condition of Premises at END of tenancy".
[4]
SCOPE AND NATURE OF INTERNAL APPEALS
An appeal is not an opportunity for the party who was unsuccessful before the Tribunal to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. As stated in Guideline 1, Internal Appeals (which can be found on the NCAT website), "an appeal is not an opportunity to have a second go at a hearing".
Internal appeals may be made as of right on a question of law, but otherwise with leave of the Appeal Panel: s 80(2) NCAT Act.
In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]-[40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act. An appellant is required to identify a pure question of law which then becomes the subject matter of the appeal (Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan 7 Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12, [14]; Orr v Cobar Management Pty Ltd [202] NSWCCA 220).
Clause 12(1) of Schedule 4 of the NCAT Act, provides that the Appeal Panel to may grant leave to appeal from decisions made in the Consumer and Commercial Division, but it must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
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 which was not reasonably available at the time the proceedings under appeal were being dealt with.
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of clause 12(1) of Schedule 4 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.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). The principles of whether leave should be granted are considered in detail in Collins v Urban.
[5]
NOTICE OF APPEAL
In the Notice of Appeal, the landlord sought leave to appeal on the basis that she may have suffered a substantial miscarriage of justice on all 3 bases set out in Cl 12(1) of Schedule 4 of the NCAT Act.
Firstly, the landlord claims that the Decision was not fair or equitable because:
1. the Liverpool Registry failed to provide a full copy of the landlord's evidence to the presiding member who conducted the hearing at the Campbelltown hearing venue;
2. there were a number of double-sided documents of the landlord's bundle which were not properly scanned and the back pages of some documents were missing and not before the presiding member;
3. the presiding member rushed the hearing, ran out of time and made the decision without all the evidence because she should have found that there were 5 occupants of the premises not the 3 which were permitted under the terms of the tenancy agreement;
Secondly, the landlord claims that the Decision was against the weight of evidence because the presiding member should have given more weight to the landlord's evidence in particular - the ingoing condition report, outgoing condition report, photos, quotes, tax invoice, and independent witness statements to identify the condition of the house before and after the tenancy agreement.
Thirdly, the landlord claims there was significant new evidence now available for the appeal which was not available at the time of the hearing. That new evidence was in the form of enlarged photos and the missing documents from the Liverpool Registry.
[6]
CONSIDERATION
It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided on the appeal 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: see Cominos v Di Rico [2016] NSWCATAP 5 at [13]. We have followed that process in this case.
Having regard to the Notice of Appeal and the written submissions and oral submissions made by the landlord we consider that the landlord is in effect also seeking to appeal the Decision on a question of law. Specifically the landlord claimed that the presiding member did not have a complete copy of the landlord's evidence and rushed the hearing. These issues (if established) may fall within the ground of whether procedural fairness was afforded to the landlord as the landlord may not have been given a reasonable opportunity to be heard or to put her case in these circumstances.
We do not consider that the Notice of Appeal or submissions relied on by the landlord raise any other question of law.
The onus is on the landlord to establish that there was an error on a question of law, and/or that leave to appeal should be granted because she may have suffered a substantial miscarriage of justice due to any one (or more) of the bases set out in cl 12(1) of Schedule 4 of the NCAT Act (as noted above) and that the Appeal Panel ought exercise its discretion to grant leave in accordance with the principles of Collins v Urban.
We will deal with each of the grounds as follows.
[7]
Question of law - procedural fairness
The directions at the callover on 21 August 2024 clearly provided that if either party relied on what happened at the hearing at first instance, then a typed transcript of the relevant parts of the hearing together with the sound recording of the entire hearing had to be provided as part of the appeal (unless provided by the other party).
The landlord submitted that the Liverpool Registry had not properly scanned the documents to the presiding member so a number of double-pages were missing and that the landlord informed the member at the hearing that that she was looking at an incomplete set of documents. The landlord said at the hearing of the appeal that she did not offer to provide the presiding member a complete hard copy of her documents as the presiding member did not ask for them.
The landlord said at the hearing of the appeal that the presiding member had admitted during the hearing that documents were missing. The tenants denied this and submitted that the presiding member had a full copy of the landlord's documents in electronic format. We repeatedly asked the landlord to identify the extracts of the transcript where the presiding member referred to or acknowledged missing pages from the landlord's evidence. The landlord submitted that there were 2 such passages as follows.
Firstly, the landlord referred to transcript line 107 in relation to the claim for the globes, which states:
Member:
I can't see the evidence to rely on. Unless you show me. Unfortunately, 218 pages are not printed out for me.
Landlord:
You don't have hard copy there. They didn't scan my file properly.
This exchange is not an acknowledgement by the presiding member that she did not have a complete copy of the landlord's evidence. It also establishes that the presiding member did ask for a hard copy to be provided by the landlord, which is inconsistent with what the landlord said at the appeal hearing which was that presiding member did not ask for a copy.
The landlord referred to transcript line 88 in relation to the claim regarding extra occupants:
Member:
You found Mr Kabir? Any evidence?
In our view, these parts of the transcript do not establish an acknowledgement that the presiding member "admitted" (as submitted by the landlord) that the documentary evidence of the landlord which had been provided by the Registry was incomplete.
There is no other reliable material before us to establish that the hearing proceeded with an incomplete copy of the landlord's evidence. But even if any document was incomplete, the landlord was given an opportunity by the presiding member to provide a hard copy of the evidence but as confirmed by the landlord at the appeal hearing, the landlord did not provide such documents.
The landlord also submitted that the presiding member rushed the hearing and did not let her speak. The landlord was unable to establish this claim from the extracts of the transcripts which had been provided on the appeal. We have reviewed the extracts provided by the landlord and the tenants and we cannot identify where the presiding member may have rushed the hearing as claimed by the landlord.
On the material before us, we consider that the landlord has not established that the presiding member failed to afford procedural fairness to the landlord and therefore the landlord has not established an error on a question of law.
[8]
Leave to appeal
As there is no error on a question of law, the landlord requires leave to appeal pursuant to any one of the bases set out in Cl 12(1) of Schedule 4 of the Civil and Administrative Tribunal Rules.
[9]
Decision of the Tribunal was not fair or equitable
The landlord stated in [Bi] of the Notice of Appeal that the Tribunal's decision was not fair or equitable because the presiding member did not have a full copy of the landlord's documents. A decision may not be fair or equitable if there has been a failure to afford procedural fairness. As we have reasoned above, we are not satisfied that there has been a failure to afford procedural fairness as there is insufficient evidence to establish that the presiding member had incomplete documents.
The landlord also stated in [Bi] that the presiding member ran out of time and made the decision in a rush without the landlord's evidence. As reasoned above, we do not consider that there is any evidence from the transcript that she rushed the hearing.
In [Bi] the landlord also stated that the member "strongly requested me to go to appeal for revision of her orders". There is no evidence from the transcript extracts before us to establish that the presiding member said words to this effect.
The landlord also stated in [Bi] of the Notice of Appeal, that the presiding member's decision was in breach of the tenancy agreement because the tenancy agreement expressly provided in a condition called "Number of Occupants" that the tenants agreed that there was an additional amount of $250 per week payable by the tenants for each extra occupant (the "Number of Occupants Clause"). However, the presiding member who found there had been an extra occupant, only allowed compensation in the sum of $100.
We do not consider the Number of Occupants Clause to be a valid and enforceable clause of the tenancy agreement. The landlord said at the hearing that the requirement that the tenants pay an additional $250 per week per extra occupant was a "rent payment". The rent which is payable under the tenancy agreement is set out in a separate rent clause headed "Rent" on page 3 of the tenancy agreement. The additional charge of $250 per week per additional occupant as a separate condition could only be more accurately characterised as a compensation clause to be applied in circumstances where the tenants are in breach of the tenancy agreement by having additional occupants above the approved number.
If there is such a breach in relation to number of occupants the remedy for the landlord under the RT Act is a compensation claim under s 190 based on a breach of s 51(1)(e) of the RT Act and for the Tribunal to assesses the appropriate amount of compensation if satisfied that there was a breach which caused loss to the landlord. We consider that the Number of Occupants Clause is inconsistent with the provisions of the RT Act and as such is not an enforceable term (s 21 of the RT Act).
We are satisfied that the presiding member has correctly considered the claim as a compensation claim for a breach of the approved number of occupants and awarded a nominal amount of $100 because she was not satisfied that there had been much damage from the extra occupant.
The landlord also stated in [Bi] of the Notice of Appeal that the presiding member did not give the landlord sufficient time to put her claims to the presiding member. The extracts of the hearing as providing by the landlord and the tenants do not establish such a claim. The extracts provided by the tenants establish that the presiding member has considered the evidence of both parties and given reasons at the hearing for her determination.
[10]
Decision of the Tribunal was against the weight of evidence
The landlord stated in [Biii] of the Notice of Appeal that the Tribunal's decision was against the weight of evidence because the presiding member should have given more weight to the landlord's documents being the ingoing condition report, outgoing condition report, photos, quotes, tax voice and independent witness statements.
In terms of the compensation order for the additional occupant, from the tenants' transcript extracts it is clear to the appeal panel that the presiding member has made a finding as to how many additional unauthorised occupants were living at the premises and she has given reasons why she has allowed only $100 in compensation. We are satisfied that these findings and the assessment of compensation for the additional occupant at $100 was reasonably open to the presiding member on the evidence.
In relation to the other claims:
1. The kitchen benchtop;
2. Bathroom mirror cabinet;
3. Globes and light changes,
4. Cleaning and rubbish
5. Air conditioning,
6. Lounge room wall damage,
we are satisfied from the extracts of the transcript in the tenants' appeal submissions that for all of these claims the presiding member has considered the evidence before her and given reasons for her determinations based on that evidence, which included photographs, the ingoing and outgoing condition report and oral evidence. The presiding member has referred to the condition reports and clearly satisfied herself about the ingoing condition compared to the outgoing condition. She has determined that the landlord did not have sufficient evidence to prove a number of these claims that the tenants did the additional damage during the tenancy.
We are not satisfied that any part of the Decision was against the weight of evidence before the Tribunal.
[11]
Significant new evidence that was not available at the time of the hearing.
In [Biv] of the Notice of Appeal the landlord refers to enlarged photos for better vision which were from the agent's system and missing files from the Liverpool Registry not scanning complete copies by way of electronic transfer to the Campbelltown Registry.
We do not accept either of these matters as a basis for leave to appeal. The photos would have been reasonably available at the time of the hearing and should have been provided at the time. Nor are we satisfied that the presiding member did not have the full copy of the landlord's documents, for the reasons set out above.
Leave to appeal is refused on the 3 bases set out in Cl 12(1) Schedule 4 of the NCAT Act.
[12]
ORDERS
The Orders of the Appeal Panel are:
1. Leave to appeal is refused.
2. Appeal dismissed.
3. The appellant's application for costs is dismissed.
[13]
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
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Decision last updated: 13 November 2024