NSW Land and Housing Corporation v Dungay

The appeal

1. The appeal may be brought as of right on a question of law or, with the leave of the Appeal Panel, on other grounds: s 80(2)(b) NCAT Act. As the appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act leave to appeal may only be granted under s 80(2)(b) 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).
2. The appeal challenges the orders made to require the Landlord to undertake two of the repairs specified, being: 1. Replacement of the timber windows; 2. Renovation of the bathroom, including the installation of a shower recess with a glass shower screen and the laying of a new tiled floor with suitable non-slip tiles, replacement of exhaust fan and repainting of the bathroom.
3. The Landlord seeks to have those orders set aside and the matter remitted for a new hearing on those specific items.
4. The sole ground of appeal is that the Member did not give adequate reasons for her conclusions that the Landlord was in breach of its obligations under s 63 of the RT Act to provide and maintain the premises in a reasonably state of repair and that an order under s 65 of the RT Act to repair the premises should be made. The Landlord does not seek leave to appeal.
5. Whether there has been a failure to give adequate reasons is a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69.
6. In the Reply to the appeal the Tenant contends that the reasons for decision meet the requirements of s 62 of the NCAT Act and Collins v Urban [2014] NSWCATAP 17: the findings of fact, the evidence on which those findings were based, and the application of the law, are all apparent in the decision.
7. The appeal was lodged within the period specified in rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014.

The decision under appeal

1. The Member noted that Ms Connors, an advocate from the Northern NSW Aboriginal Tenants Advice and Advocacy Service, appeared for the Tenant, and Ms Brown appeared on behalf of the Landlord. The Tenant had provided documents as directed on 29 May 2018, which were admitted in evidence. The Landlord had not filed any documents before the hearing, and was permitted to rely on an email from Mr J Allen, Programs Officer, NSW Land & Housing Corporation based on his inspection of the premises on 30May 2018, and 8 coloured photographs, provided at the hearing.
2. The Member recorded the submissions of the Tenant's representative that the premises were over 30 years old and no major works had been undertaken since they were built, and that the premises need a major renovation, including the bathroom, kitchen, repainting and floor coverings; the windows need replacing, there are plumbing and sewage issues, the back steps are uneven and the front door lock needs replacing, and there are tree branches above the power line. The Member recorded that assessments had been done by Broadspectrum (which had informed the Tenant that major renovations needed to be done), and by Mark Gobracht and Jeff Hicks (both from NSW Land & Housing). The documentary evidence included email correspondence between the parties and photographs of the premises.
3. The Member noted that the Landlord had not filed or served any evidentiary documents, and relied on the email from Mr Allen, which reported on an inspection he had undertaken on 30 May 2018. The Member summarised Mr Allen's findings at [29].
4. The Member satisfied herself that there was jurisdiction to hear and determine the application, and identified the relevant provision of the RT Act to be s 63, that the Landlord has an obligation to provide and maintain the premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. At [31] the Member stated "The landlord concedes that the following repairs are required at the residential premises:" and listed 9 items, being that repairs were needed to the rear timber steps, the rear concrete landing, the front door lock, the side gate; that there were broken towel rails in the bathroom, the carpet was aged and could be considered for inclusion in a quarterly work program, the timber windows were old and damaged and could be considered for replacement in a quarterly work program; that the tree in the front yard had grown through powerlines and may require removal, and that gauze was hanging from a number of flyscreens.
5. At [32] -[33] the Member found that the Landlord had failed to keep the premises in reasonable repair, having regard to the age of the premises, the prospective life of the premises and the amount of rent paid for the premises, and that the grounds required to make an order that the Landlord undertake specific repairs had been established.
6. The Member then stated at [34]-[39] and [43] that orders would be made for work to be undertaken on the back steps, the front door lock, the side gate and the gauze on the flyscreens; for the trimming of the tree; for replacement of the timber windows and carpet; for repair or replacement of the missing kitchen drawers and cupboard doors; for internal painting; for replacement of the kitchen/dining vinyl; and for a licensed plumber to investigate the Tenant's complaint of sewage problems including a terrible stench.
7. The Member stated in relation to the windows and carpet: 36. An order will also be made for the replacement of the timber windows and carpet, which were both noted by the landlord's contractor to be considered for a quarterly maintenance program.
8. The Member addressed the issue of the bathroom in the following terms: 40. On 1 February 2018, in matter SH 18/02018, the Tribunal ordered the landlord to repair the bathroom tiles in the residential premises. At the hearing on 6 July 2018, the landlord conceded that there were two additional broken towel rails in the bathroom that required removal followed by wall patching and repainting. 41. The tenant provided photographs of the bathroom, showing missing and broken floor and wall tiles. The bathroom appears to be at least 30 years old. It appears that it was probably installed in the 1970's. It also appears to be not up to modern safety standards. It is possible that the waterproofing membrane is no longer intact. The tenant stated that there is no water base throughout the bathroom. The exhaust fan in the bathroom does not work, contributing to the growth of mould in the premises. 42. The Tribunal is satisfied that the bathroom requires major repairs, including ensuring that the bathroom is properly waterproofed. The Tribunal is satisfied that the bathroom should be renovated, including the installation of a shower recess with a glass shower screen and the laying of a new tiled floor with suitable non-slip tiles. The exhaust fan should be replaced. The bathroom should be repainted.
9. The Member then turned to the application for compensation, referring to s 187 of the RT Act, and found that as a result of the Landlord's breach of the residential tenancy agreement, namely, failing to keep the premises in reasonable repair, the Tenant had suffered loss and damage, which included a significant reduction in the quiet enjoyment of her home from 23 November 2017. The Member explained that having regard to the rebated rent payable by the Tenant, and all the circumstances, the amount of $1,000 compensation was fair and reasonable, and was equivalent to $25.00 per week for 40 weeks.

The Landlord's submissions

1. As noted above, the Landlord appeals only that part of the work order made for replacement of the timber windows, and the renovation of the bathroom.
2. The Landlord submits that the Member set out the evidence of both parties and simply concluded that the Landlord had breached its duty and the ground to make an order for repairs was made out; preferred the evidence of the Tenant over that of the Landlord and failed to engage with the critical issues, namely the state of repair of the carpet, windows and bathroom; and did not explain why the evidence of the Landlord that the carpet and windows met necessary standards and that the premises were in a clean, safe, and habitable condition, was rejected and the evidence of the Tenant was accepted. The Landlord submits that the Member failed to consider the differences in the evidence between the Landlord and the Tenant when looking at the totality of that material, and the Appeal Panel is left speculating as to why the Member reached the conclusion she did when considering the conflicting evidence.
3. As to the bathroom, the Landlord submits that the Member did not explain why the evidence of the Landlord which addressed the state of the bathroom and summarised that the premises were in a safe and habitable condition, was rejected. The Member did not identify the evidence capable of supporting her conclusion that the "waterproofing membrane is no longer intact". As to the windows, the Landlord submits that the Member did not explain why she preferred the evidence of the Tenant over that of the Landlord. There was a clear contest between the evidence, and it was not correct to read the email of Mr Allen as a concession on behalf of the Landlord that the timber windows were damaged and therefore required immediate replacement. In oral submissions the Landlord submitted that Mr Allen's email should be read as a recommendation and not as a concession.

The Tenant's submissions

1. The Tenant submits that the reasons demonstrate that the Member considered the evidence of both parties and weighed it all in coming to her findings. It was unnecessary for the Member to refer to the relevant evidence in detail again because the structure of the reasons made it clear that the evidence had been considered.
2. The Tenant submits that the Member had in evidence as to the state of the bathroom the photographs showing broken and chipped tiles, a broken fan and a broken towel rail, and the Tenant's oral evidence that both she and her children had fallen out of the bathtub and slipped on the floor. The only evidence provided by the Landlord was two photographs of a broken towel rail and the statement by Mr Allen: "Broken Towel rails - bathroom. These appear to be additional towel rails to standard provision as there are 2 functional towel rails existing. Removal a patching of towel rail brackets and wall repairs as required is recommended".
3. The Tenant submits that the Member had in evidence as to the state of the windows the photographs showing broken fly screens, broken glass and timber frames in need of repair, and the Tenant's oral evidence that the windows barely open meaning the house is poorly ventilated, exacerbating the growth of mould. The evidence on which the Landlord relied was Mr Allen's email stating "Windows (timber) - old with mirror [?minor] damage due to age. Still meet standard, however, I would consider window replacement through a quarterly MPW program…", and some photographs showing open windows with broken fly screens and damage to the wooden frame. The Tenant submits that it was open to the Member to interpret Mr Allen's statement as a concession that the windows were damaged but that the Landlord did not intend to carry out the necessary work immediately, an interpretation supported by the photographs. Further, the Landlord did not contest the oral evidence of the Tenant at the hearing.

The Landlord's submissions in reply

1. The Landlord submits that the remarks made by the Tenant could not be considered to be evidence, but were no more than statements from the bar table by the Tenant, who was represented at the hearing. The Landlord submits that if statements from the bar table are to be regarded as evidence, the opposing party should be given an opportunity to respond, and the party making the statements should be sworn to give such evidence. The statements made by the Tenant were not designed to proffer an explanation as to the evidence already filed in the proceedings, but rather to explain matters that were not in evidence and attempt to lead further evidence in chief.

Consideration

1. As noted above, there was one ground of appeal, failure to provide adequate reasons. There was no contention that the Member made findings for which there was no evidence, or that her findings were against the weight of the evidence, rather that the Member did not explain sufficiently her reasons for preferring the evidence provided by the Tenant to that of the Landlord, and for her conclusion that the Landlord had breached its obligations under ss 63 and 65 of the RT Act. In its reply submissions the Landlord submitted that the Member should not have had regard to what the Tenant said at the hearing from the bar table, because it was not sworn evidence.
2. The Appeal Panel has the documentary evidence provided by both parties to the Tribunal at first instance. Those documents include the Tenant's written statement provided with her application, the email from Mr Allen, and the photographs provided by both parties. The parties provided a transcript of the hearing.
3. The transcript shows that the Tenant's documents including photographs, and Mr Allen's email and photographs, were formally admitted into evidence. Most of that part of the hearing concerning the state of repair of the premises consisted of questions from the Member to the Tenant and her responses, with comments from the Landlord's representative. The statements by the Tenant about the state of repair of the bathroom, including that she and her children sometimes fall out of the bathtub when showering, and the tiles were slippery, were given in response to questions from the Member, starting with: "Ms Dungay, what is wrong with your bathroom?" The Member discussed with the Tenant each of the matters referred to in Mr Allen's email including the kitchen, the vinyl and carpet, the plumbing, the condition of the paint, the steps, and the tree, referring to the photographs. The Member asked "What do you think is causing the mould?", and the Tenant stated that there is no insulation in the walls and the windows can barely open. At no point did the Landlord's representative seek to question the Tenant.
4. The transcript does not show that the Tenant was asked to make an oath or affirmation. It may be inferred that she was seated with her representative at the bar table. The discussion and questioning by the Member was conducted in a relatively informal manner, in which the Member elicited information from the Tenant about the state of the premises, and obtained clarification of what was shown on the photographs which were formally in evidence.
5. A court may be required to act only on evidence given on oath by witnesses, documentary evidence tendered in the proceedings, agreed facts and any concessions made by a party: Crowe-Maxwell v Frost [2016] NSWCA 46 at [52]. However, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice, and is required to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s 38 NCAT Act. There is no formal requirement for a witness in Tribunal proceedings to give an oath or make an affirmation before giving evidence to the Tribunal. Section 71 of the NCAT Act makes it an offence for someone to provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading in a material respect.
6. It may be accepted that statements from the bar table may not be evidence: Griffiths v Sujecki (Tenancy) [2010] NSWCTTT 562. However on our reading of the transcript there is no basis on which it could be said that there was any blurring of the distinction between evidence and submission, such as is apparent in Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108. In that matter the Tribunal needed to explain to a self represented party the procedure of the hearing and the difference between evidence and submissions, and required the applicant to be sworn. In this proceeding, the transcript confirms that the Tenant was being asked to provide evidence by responding to the Member's questions, and the submissions relevant to establishing the basis for a work order and for compensation were made by her representative.
7. We are satisfied that the Member was entitled to have regard to the evidence given by the Tenant as to the state of repair of the premises, whether or not that evidence was sworn. The Landlord's representative had the opportunity to respond, and there was no denial of procedural fairness.
8. There was no dispute between the parties as to the general principles applicable to consideration of the adequacy of reasons. Section 62(3) of the NCAT Act requires that a written statement of reasons provided in accordance with that section must set out the findings on material questions of fact, referring to the evidence on which those findings were based; the Tribunal's understanding of the applicable law; and the reasoning processes that lead the Tribunal to the conclusions it made. The Appeal Panel in Collins v Urban [2014] NSWCATAP 17 discussed the circumstances in which reasons are required, and noted that one reason why reasons are required is so that the findings of fact and legal reasoning of the decision maker at first instance are available to an appellate body by way of written reasons, and that not having findings of fact and legal reasoning explicitly available may render effectively worthless any appeal right.
9. The required content and detail of reasons will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision: Wainohu v New South Wales (2011) 243 CLR 181. The administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46] per Basten JA. The fundamental requirement is that the essential ground or grounds upon which the decision rests should be articulated: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. Reasons must be adequate for the exercise of any appeal right, and an appellate body "should not be left to speculate from collateral observations as to the basis of a particular finding": Soulemezis at 280 per McHugh JA, cited in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56] by McColl JA (with whom Ipp JA and Bryson AJA agreed). While the decision-maker must refer to the evidence which is important or critical to the proper determination of the matter, that does not require that the decision-maker refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered: Pollard at [62].
10. In the reasons for decision the Member clearly acknowledged the evidence of both the Tenant (at [16]-[25]) and the Landlord (at [26]-[29]), as she was required to do: Pollard at [62]. The difficulty for the Landlord is that the only evidence it provided to counter that of the Tenant was the email of Mr Allen, which reported on some defects and on the need for repair of some of the items in his list. In relation to the matters the subject of the appeal, Mr Allen commented that while the timber windows "still meet standard", he would consider window replacement throughout in a quarterly MPW program. His only comment in relation to the bathroom was to note broken towel rails, and to recommend removal of a patching of towel rail brackets and wall repairs as required. His email provided comment on all the matters raised by the Tenant, stating where he considered no action was required and where it was.
11. The specific references to the windows and the broken towel rails as summarised in [31] of the reasons, described by the Member as matters that the Landlord conceded as required repairs, are in terms consistent with Mr Allen's email. The issue with the carpet and windows appears to be with whether the repairs could wait for a quarterly work program, or should be addressed in a Tribunal order. That was a matter for the Tribunal to determine based on the totality of the evidence. While the reference to the bathroom in Mr Allen's email was limited, the bathroom had already been the subject of the consent orders of February 2018. Again, the extent of the work required and the timing was a matter for the Tribunal to determine based on the totality of the evidence.
12. The Landlord takes particular issue with what it describes as findings that the bathroom "is not adequately waterproofed", and that the timber windows and carpet "required immediate replacement". The Member did not make findings in those terms. The Member's conclusion as to the appropriate orders in relation to the bathroom at [42] needs to be read together with the preceding paragraphs [40] and [41], which included the statement that given the age of the premises "it is possible that the waterproofing membrane is no longer intact".
13. We are satisfied that when read as a whole the Member's reasons adequately explain how she evaluated the evidence of both parties and reached her conclusions, both as to the specific items, and to the underlying finding required by s 63(1) of the RT Act that the Landlord had failed to provide and maintain the premises in a reasonable state of repair. Having made that finding, the power to make orders under s 65 of the RT Act was enlivened. It appears there was no issue as to whether the Tenant had contributed to the state of disrepair, as Mr Allen's concluding comment in his email that the property was "well kept by the tenant" was not challenged. The Landlord's dispute as to the Member's findings and reasoning reflects a disagreement with the outcome, rather than indicating a failure properly to evaluate the evidence and explain the reasoning.
14. The Landlord has not established that the Member failed to provide proper reasons. That being the only ground of appeal, the appeal should be dismissed.

Orders

1. The Appeal Panel orders: 1. 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. 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: 26 February 2019