Pacorp Holdings Pty Ltd v Waller

Notice of Appeal

1. The Notice of Appeal was received by the Tribunal on 24 February 2017, outside the period of 14 days specified in rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the Rules) applicable to an internal appeal from a decision in residential proceedings. The landlord's application under s 41 of the NCAT Act to extend the time is considered below.
2. The Notice of Appeal was prepared by the landlord's managing agent, and did not clearly identify grounds of appeal other than to dispute the Member's findings as to the mould issue, contending that the factors causing mould were not due to the landlord's lack of care or attention but were a direct result of the tenant's actions, namely placement of two large fishtanks in the unit, and the tenant keeping windows and blinds closed. The landlord sought leave to appeal, referring to the evidence provided in the case and stating that the decision was against the weight of evidence. The landlord sought to rely on new evidence, being inspection reports showing the fishtanks.
3. The Notice of Appeal was supported by a statement from the managing agent, Ms Watkinson (who had represented the landlord at first instance), summarising the background to the dispute. That statement noted that Ms Waller had lived in the unit since January 2005, however had only complained of mould and mildew from October 2015, and there were no other units in the building that were affected by mould. The inspection reports in May and November 2015 noted the presence of mould, and that fishtanks had been installed. In April 2014 at Ms Waller's request bolts were installed on the windows allowing them to open to a 100mm gap, and after that time Ms Waller kept the windows and blinds closed, preventing proper ventilation of the unit. Ms Watkinson stated that the fishtanks had been removed before the inspection for the mould report, and the landlord did not have access to the report prior to the hearing; that the tenant had not provided adequate proof of the items damaged nor quantified their fair replacement value; and that the mould report was not independent or accurate.
4. On 10 April 2017 the landlord's agent lodged an amended Notice of Appeal stating that the orders sought on the appeal were to reverse the orders made in relation to rent reduction, compensation, and costs of the mould report. The landlord provided written submissions in support of its application for extension of time and on the appeal on 18 April 2017, and submissions in reply to the tenant's submissions on 23 May 2017. The submissions filed on 23 May 2017 included a running sheet for the hearings on 6 December and 20 December 2016, relating to the timing and the adequacy of the tenant's evidence.

Stay application

1. The orders made at the appeal directions hearing on 21 March 2017 noted that while the landlord had made submissions about a purported application for a stay of the decision under appeal, it appeared no written application for a stay had been made, and no order was made.
2. At the appeal hearing the landlord's representative stated that the landlord would pay the amounts ordered if the appeal is unsuccessful; and that it had not paid the amounts ordered other than the electricity overpayment of $1,001.00 because it believed that it had applied for a stay, and made no formal submission for a stay of the orders. The question of whether there should be a stay was not otherwise addressed at the appeal hearing.
3. The Tribunal file indicates that a written application for a stay was received by the Tribunal on 22 May 2017, in which the landlord's agent stated that a cheque for $1,001 in respect of the electricity overcharge had been sent to the tenant, and that it was requesting a stay of the order for payment of $10,566.25 for the rent refund and compensation claim, and the order for payment of $990 for the expert mould report. The request stated that if the landlord wins the appeal the tenant would be unable to repay funds paid to her, relying on evidence of rental arrears.
4. The stay application has now been overtaken by finalisation of the appeal and the making of the orders on the appeal, and is not further considered.

Reply to Appeal

1. The tenant supported the original orders made by the Tribunal.
2. In submissions filed on 16 May 2017 the tenant opposed the application for extension of time. The tenant responded to the grounds of appeal, providing a detailed chronology and written submissions with supporting documents.

Appeal hearing

1. Ms Waller appeared in person. The landlord was represented by Ms Jenny Chan, who stated that she is the daughter of the principal of the landlord's managing agent, Mr Christian Ryals. The landlord's documents include a copy of a managing agency agreement between the landlord and Ryals Real Estate Pty Ltd. Leave was granted for Ms Chan to represent the landlord.

Extension of time

1. As noted above, the appeal was lodged on 24 February 2017, and an extension of time is required. The landlord submits that the agent mistakenly believed that it had 28 days to appeal, the delay was the result of genuine mistakes which were rectified as quickly as practicable, and the agents are not legal experts. The landlord submits that the length of delay (approximately 3 weeks) is not extensive; that there are prospects of success in that the Member incorrectly applied ss 52 and 63 of the RT Act, and erred in relying on the mould report; that there is no prejudice to the tenant; and that it would be unjust to enforce the deadline for the appeal when latitude had been shown to the tenant in the conduct of the proceedings at first instance.
2. The tenant opposed the extension, submitting that the landlord should not be able to rely on mistakes made by the managing agent, which had represented the landlord for 17 years and should be familiar with the law and Tribunal practice directions. The tenant states that she has suffered emotional distress and her work has suffered, and that she had had fishtanks in the unit since 2005 and the landlord's agent was aware of them.
3. The matters to be considered in determining whether to grant an extension of time are stated in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: (1)The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2)The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3)Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a)The length of the delay; (b)The reason for the delay; (c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d)The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4)It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
4. The length of the delay is not significant, and the tenant has not identified any particular prejudice suffered by reason of the delay in lodging the appeal, rather the fact that it has been lodged.
5. However, we are of the view that the reasons for the delay are less than satisfactory. The landlord's agent initially submitted the Notice of Appeal by email, and when subsequently lodging the document at the Tribunal paid the wrong fee. The Notice of Appeal was amended once the landlord became aware that the applicable time for lodging the appeal was 14 days, and not 28 days, to state that an extension of time was requested; however, even accepting that the agent was mistaken in thinking the time period was 28 days, the Notice of Appeal was lodged after that time. The landlord has been represented both at first instance and on the appeal by an agent who has, on the landlord's submissions, been managing the property for 17 years. It is not unreasonable to expect that a landlord's managing agent, as a licensed real estate agent, would familiarise themselves with requirements for proceedings in the Tribunal.
6. Notwithstanding that conclusion, the Appeal Panel is satisfied, for the reasons below, that the Member erred in his calculation of the rent reduction, and that the strength of the argument on that point is such that it is appropriate to grant an extension of time to lodge the appeal.

Availability of appeal

1. This is an internal appeal pursuant to s 80 of the NCAT Act. The appeal may be brought as of right on a question of law or, with the leave of the Appeal Panel, on other grounds. As this 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) of the NCAT Act: 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 requirements of cl 12(1) were stated in Collins v Urban [2014] NSWCATAP 17 as follows: 76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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. 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1)If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2)The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.
3. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
4. In Collins v Urban the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.

Grounds of Appeal

1. As noted above, the Notice of Appeal did not clearly identify grounds of appeal other than to dispute the Member's findings and conclusions. The landlord's written submissions filed on 18 April 2017, to which the tenant responded in her written submissions in reply on 16 May 2017, clarify the grounds of appeal. Having regard to that clarification, we understand that in summary, the landlord contends that the Member erred in: 1. his construction and application of ss 52 and 63 of the RT Act; 2. accepting the mould report provided by the tenant; 3. taking into account evidence that was provided late; 4. his calculation of the rent reduction amount; 5. his findings on mitigation of loss; and 6. his calculation of the value of the goods damaged or destroyed by mould.
2. The first ground raises a question of law, namely whether the Member applied a wrong principle of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. The second ground potentially raises a question of law. The other grounds challenge the Member's findings on the evidence, and leave is required.

Whether the Member erred in his application of ss 52 and 63 of the RT Act

1. The landlord contends that the Member erred in finding that the landlord had breached s 52 and s 63 of the RT Act, so as to justify a reduction in rent payable under s 44 of the RT Act for loss of facilities. The landlord submits that: 1. s 52 does not apply, as the obligation in s 52 to "provide the residential premises in a reasonable state of cleanliness and fit for habitation…" only arises at the beginning of the tenancy; 2. in finding that there was a breach of s63, the Member erred in not considering s 63(3), which provides that the landlord's obligation to "provide and maintain the residential premises in a reasonable state of repair…" is subject to the proviso that the landlord is not in breach "if the state of disrepair is caused by the tenant's breach…"; 3. there was no issue with the condition of the premises at the beginning of the tenancy; and 4. the tenant contributed to the mould issue due to her request to have the windows open no more than 10cm and by keeping two fishtanks in the unit.
2. The reasons of the Member include reference to both s 52 and 63, and to the decision in Bannister v Cheung [2014] NSWCATCD 105 in which the test for s 52 is discussed. That reference is part of a general outline in paragraphs [47]-[49] of the relevant legal principles, including the requirements of ss 44(3) and 187 of the RT Act.
3. It is arguable that s 52(1) of the RT Act applies only at the commencement of the tenancy. While the subsection does not state expressly that the obligation arises only at the outset, Bannister v Cheung proceeded on that assumption, which finds support in the Appeal Panel decision in Bhandari v Laming [2015] NSWCATAP 224 at [37]. Subsections 52(2) and (3) are continuing obligations. However, whether or not the obligation in s 52(1) for the landlord to provide residential premises in a reasonable state of cleanliness and "fit for habitation" by the tenant is limited to the commencement of the tenancy, and thus would not apply in these circumstances, the Member's findings support his conclusion that there was a breach of the landlord's general obligation in s 63.
4. The Member's findings leading to his conclusion that there was a reduction of facilities so as to base an order under s 44(1)(b) include findings as to the reduction in ventilation as a consequence of securing the windows to prevent external access to the unit, after problems with an intruder on the balcony; the reporting of the mould problems by the tenant; and the absence of a response by the landlord. While s 52 is referred to, including in his concluding paragraph [67], the Member's findings are based on a breach by the landlord of its obligation under s 63 of the RT Act, being the lack of ventilation and the landlord's reluctance to address the problem, including by reference to the various quotes and maintenance orders obtained by the landlord but not acted upon.
5. We are satisfied that when the Member's findings and reasons are read as a whole, it is clear that his conclusion as to the basis for his orders on both the rent reduction claim and the compensation claim was a finding of breach by the landlord of its obligations under s 63, and not s 52, of the RT Act.
6. It is not clear from the material before us whether the proviso in s 63(3) of the RT Act was squarely raised by the landlord, or what evidence the landlord relied on to support a finding that the mould was caused by a breach by the tenant. The Member's reasons record the landlord's position at the first instance hearing that it was the lack of ventilation and the tenant's failure to clean the unit with clove oil that caused the mould. The landlord conceded that the landlord's position on the appeal that it was the presence of the fishtanks, for which the tenant had not sought permission, which contributed to the mould was not put to the Member at the hearing. While the Member's reasons do not refer expressly to s 63(3) of the RT Act, his finding at paragraph [46] that the landlord's agent had expressed a total reluctance to address the question of the mould problem and required the tenant to do so instead, reflect a finding that there were was no breach by the tenant to which s 63(3) could apply.
7. No error on a question of law in the application of the applicable legislation has been established.

Whether the Member erred in taking into account the mould report

1. The landlord challenged the decision of the Member to rely on the report dated 14 November 2016 by David Singh of ProtectPlus, provided by the tenant. The landlord submits that the report did not comply with the Tribunal's guidelines for expert reports; was not impartial because it included a remediation quote; it was not served on the landlord before the first hearing date of 2 December 2016; it was inconclusive in that it did not adequately conclude what was the cause of the mould; and it did not mention the presence of the fishtanks.
2. The report of 14 November 2016 provided detailed observations based on an inspection on 11 November 2016 in five rooms; provided moisture readings; commented on three factors causing the presence of potential mould; and recommended specific remediation works. The report does not include the matters referred to in paragraph 16 of the Tribunal's Procedural Direction 3 Expert Witnesses, in that it does not include Mr Singh's qualifications as an expert on the issue the subject of the report, or an acknowledgement that the expert has read the experts' code of conduct and agrees to be bound by it, or details of the facts, and assumptions of fact, on which the opinions in the report are based, or Mr Singh's reasons for each opinion expressed. It does include a description of the tests or other investigations carried out.
3. However, the failure of Mr Singh to address the matters required in the Procedural Direction does not mean that the Member erred in accepting his report. Section 38(2) of the NCAT Act provides that the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. Procedural Direction 3 is a procedural direction made by the President of the Tribunal under s 26 of the NCAT Act, and these directions are binding on the Tribunal and the parties and their representatives by operation of s 26(4). Notwithstanding this, a failure to meet the requirements of the procedural direction does not mean that the report is inadmissible, but rather goes to the weight that it should be given. As discussed by the Appeal Panel in Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216 the question of the acceptability of expert evidence in the Tribunal is one of weight not admissibility; and the Tribunal is required to be satisfied that expert evidence provides a satisfactory basis upon which it can make its findings.
4. The landlord conceded at the appeal hearing that the objections it now raises were not put to the Member at the first instance hearing, and there was no application for an adjournment to enable it to obtain expert evidence to counter the report of Mr Singh. The Member had in evidence email correspondence from the tenant requesting assistance from the landlord to obtain a report, which was declined. There is no indication that any application was made by the landlord that it be allowed to obtain further evidence during the adjournment of the hearing after 6 December 2016.
5. In any event, the Member's reasons establish that he relied on the report for a limited purpose, being his finding that elevated and high mould levels were detected "indicative of recent active mould growth constituting a potential health hazard to the occupants of the property" (para [65]). It was not in dispute that there was mould. The report noted the presence of potential visible mould in the lounge, kitchen, bedroom, hallway and bathroom. The report provided quantification in the form of tests of moisture levels and the mould/fungi on surfaces in each room, together with photographs of mould on walls and ceilings, and on personal items. While the Member referred to the report in his conclusion that the mould problems arose as a result of breaches by the landlord, that conclusion was reached on the totality of the evidence before him, and not just on the report (para [67]).
6. The landlord has not established an error on a question of law in the admission of the mould report.

Whether leave to appeal should be granted

1. The landlord challenges the Member's findings and reasoning on both the making of a rent reduction order under s 44 of the RT Act, and his assessment of compensation payable for damage to personal goods.
2. In relation to the rent reduction, the landlord submits: 1. that insufficient weight was given to evidence that the windows were fixed shut at the tenant's request, that the roof was in good condition, that the mould was created by the fishtanks, and there were repeated requests that the tenant properly ventilate the unit; and 2. that the Member erred in his calculation of the rent reduction amount, as the date from which the tenant was without the use of the bedroom was October 2016 and not 2015 as recorded at paragraph [54].
3. In relation to the assessment of compensation, the landlord submits: 1. the evidence did not support a conclusion that 30% of the amount claimed should be awarded, as the tenant had failed to substantiate the costs of the goods she claimed to have been damaged; and 2. the tenant had failed to mitigate her loss, by keeping two fishtanks in the unit which caused excess condensation, failing to properly ventilate the unit, and failing to clean the mould with clove oil
4. At the hearing of the appeal the landlord raised a further complaint that the Member had had regard to evidence in the form of photographs filed late.

Whether the decision was against the weight of the evidence

1. In considering whether it could be said that the decision was against the weight of the evidence, the approach to be adopted is that stated in Collins v Urban at [76], namely, whether it can be said that the evidence "in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach".
2. Considering first the landlord's submission that the Member referred in his reasons to evidence which had been submitted late, the Appeal Panel notes that at the directions hearing on 21 March 2017 the landlord was directed to provide the sound recording of the first instance hearing, if what happened at the hearing was relied upon, together with a running sheet listing the part(s) of the hearing relied upon or a transcript of the part. Both parties provided a copy of the sound recording for 20 December 2016. On 23 May 2017 the landlord provided the sound recording for 6 December 2016, and a running sheet for the hearings on 6 and 20 December 2016. The running sheet for 6 December 2016 includes comments made by the Member about the late provision of documents by the tenant. The Appeal Panel has listened to the relevant parts of the sound recording identified in the running sheet for 6 December 2016, and it is clear that the Member was concerned that neither party had properly complied with the directions for document exchange before the hearing. There is no clear ruling excluding specific parts of the evidence relied upon by the tenant. Further, as the running sheet for 20 December 2016 records, the Member on that occasion confirmed that the photographs submitted by the tenant on 6 December 2016 were accepted. On that basis, there can be no error in the Member's reliance on the tenant's photographs to base his findings that personal goods belonging to the tenant had been damaged by mould.
3. In relation to the complaint that the tenant had failed to substantiate the cost of the goods she claimed were damaged, the sound recording confirms that while the Member was critical of some aspects of the tenant's presentation of her documentary evidence, he was equally critical of the landlord's presentation of its evidence. The discussion during the hearing, and the Member's reasons, indicate that he advised both parties of his concerns as to the shortcomings in their evidence, and provided them with an opportunity to respond.
4. On the issue of quantification of the amount of compensation to be awarded, the Member's reasons indicate that he approached that issue in an orthodox way. As discussed by the Appeal Panel in Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117, provided that some evidence of loss or damage has been produced, difficulty of assessment is not a bar to the assessment of damages, and where precise evidence is not available, the court or tribunal must do the best it can. The tenant had the onus of proving that the amount she claimed represented the losses suffered by her. While she did not substantiate the age or purchase costs of the items, the tenant had produced evidence in the form of photographs of items damaged by mould. In those circumstances the Member was entitled to estimate the value of the damaged items. His conclusion that the tenant should be allowed 30% of the amount claimed was open to him.
5. The landlord submits that the Member gave insufficient weight to evidence that the windows were fixed shut at the tenant's request, that the roof was in good condition, that the mould was created by the fishtanks, and there were repeated requests that the tenant properly ventilate the unit, and that the tenant had failed to mitigate her loss, by keeping two fishtanks in the unit which caused excess condensation, failing to properly ventilate the unit, and failing to clean the mould with clove oil. That is in essence a complaint as to the outcome, and that the Member preferred some evidence over other evidence. It is not clear how the Member could be said to have erred in his findings as to the fixing of the windows which was, on the evidence before him, done by the landlord in response to a request by a tenant concerned for her safety. The Member had regard to the maintenance orders and other quotes obtained by the landlord, and to the email correspondence between the parties. As noted above, the landlord did not put to the Member its position now raised on appeal that it was the presence of the fishtanks that caused the problem. In any event, it is difficult to reconcile that position with the landlord's position that it should be able to rely on evidence of the presence of the fishtanks well before the mould problems commenced. Having regard to the totality of the evidence, we are satisfied that the findings of the Member were open to him, and we are not satisfied that the decision can be said to be against the weight of the evidence.
6. The only issue on which it can be said that the decision was against the weight of the evidence relates to the Member's calculation of the rent reduction. The landlord's submission that the tenant notified it that she could no longer use the bedroom on 3 November 2016 is supported by the email correspondence in evidence before the Member, and consistent with his recording of the tenant's evidence at paragraph [19] of his reasons. In oral submissions on the appeal the tenant pointed to her concerns that the toilet had not been working, and that she felt victimised, including when she was notified of a rent increase; she could not recall the date when she could no longer use the bedroom.
7. The Appeal Panel is of the view that the statement at paragraph [54] that it was October 2015 perhaps reflects a typographical error. We agree with the landlord that in calculating the amount from October 2015 the Member erred, as on the evidence the relevant start date from which the tenant was without the use of her bedroom was October 2016. We agree that the correct calculation, based on a rent of $430 per week from September 2016, was to allow 10 weeks at $107.50 per week, a total of $1075.

Whether significant new evidence has arisen

1. The landlord's Notice of Appeal stated that there is significant new evidence that was not reasonably available at the time of the hearing, namely routine inspections during the tenancy showing 2 large fishtanks in the lounge area. The written submissions of 18 April 2017 identify the new evidence on which the landlord seeks to rely: 1. correspondence between Fair Trading and Christian Ryals in 2016; 2. a photograph of aquarium tank dated 10 November 2015 from the routine condition report of 15 November 2015, attached to that correspondence; and 3. routine condition reports of 13 December 2013, 21 May 2015, 10 November 2015, and 26 May 2016.
2. The landlord submits that the earlier correspondence is needed to put the tenant's correspondence with Fair Trading in February 2016 (which was in evidence at the original hearing) into context, and that the routine condition reports are also needed to ascertain the history of the presence of the fishtanks.
3. Clause 12(1)(c) requires that the new evidence is significant, and that it was not reasonably available at the time the proceedings below were being heard. That is an objective test, and requires that the evidence be unavailable because no person could reasonably have obtained it; a party's incapacity to procure that evidence is not sufficient: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111; Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11.
4. The material identified in the written submissions of 18 April 2017 is all material that was generated by, and therefore would routinely be held by, the landlord's agent as part of its records. There is nothing to suggest that it was not available at the time of the original hearing. The failure of the landlord at the original hearing to put its position that the presence of the fishtanks caused the mould, and to provide whatever evidence it had in support of that position, does not provide a basis on which we could conclude that the landlord may have suffered a substantial miscarriage of justice because significant new evidence has arisen so as to warrant consideration of granting leave to appeal.
5. Other than on the calculation of the rent reduction period, the landlord has not established that it may have suffered a substantial miscarriage of justice because of any of the reasons specified in cl 12(1) of Sch 4 to the NCAT Act.

Cost of the mould report

1. The landlord submits that there were no special circumstances that would warrant the exercise of the Tribunal's discretion to award costs. The report was part of the tenant's evidence, without which it would have been impossible to establish her case; each party is responsible for the costs of preparing its own evidence; and there are no special circumstances. Further, the landlord should not be ordered to pay for the cost of a report which is not professional.
2. The tenant submitted that she had been informed that the mould experts would provide a free report only with a maintenance order; she asked the managing agent to do this, however that was refused. The report was submitted in time, however she needed an extension for the test results which were coming from the laboratory.
3. Section 60(2) of the NCAT Act provides that the Tribunal may award costs in relation to proceedings only if satisfied that there are special circumstances warranting an award of costs. Section 60(3) lists the matters to which the Tribunal may have regard in determining whether there are special circumstances. As noted by the Appeal Panel in Fox v Vaucluse Bowling Club Ltd [2017] NSWCATAP 160 at [52], "special circumstances" are circumstances that are out of the ordinary, however they do not have to be extraordinary or exceptional.
4. In the present proceedings the Member was satisfied that there were special circumstances, based on the need for the report and the landlord's refusal to contribute to the costs of such a report.
5. While the mould report did not, as stated by the Member at paragraph [67], clearly establish that the mould was caused by the landlord's breach of its obligations under the RT Act, it did provide support for his finding that elevated and high mould levels were detected throughout the unit, and provided quantification of moisture levels and the mould/fungi on surfaces in each room. The email correspondence in evidence before the Member confirmed that the landlord's agent refused the tenant's request to assist with obtaining a mould report, before she commissioned it. In that context, we are not satisfied that the landlord has established that the Member erred in his discretionary judgment that there were special circumstances warranting an order that the landlord pay for the cost of the report, $999.00. We note that the formal orders include in Order 2 an order for payment of $990.00. That is an error, as the invoice in evidence confirms, and should be corrected.

Conclusion

1. The landlord has not established an error of law. Other than in relation to the calculation of the rent reduction amount under s 44(1)(b) of the RT Act, the Appeal Panel is not satisfied that the landlord has established that there was a failure in the way the matter was conducted or decided which deprived it of a chance that was fairly open of achieving a better outcome than occurred, such that there may have been a substantial miscarriage of justice under cl 12(1) of Sch 4 to the NCAT Act.
2. The error in calculating the rent reduction amount is a factual error that was clearly mistaken, and leave to appeal on that issue should be granted.
3. Section 81 of the NCAT Act provides that in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including under s 81(1)(b) to vary the decision under appeal.
4. Order 1 should be varied so that instead of $11,567.25 the total amount payable by the landlord is $6,627.71, being $4551.71 for the damage to goods, $1075.00 for the rent reduction, and $1,001.00 for the electricity refund. Order 2 should be varied to correct the error as to the cost of the mould report, so that the landlord is to pay $999.00. Taking into account the payment already made by the landlord for the electricity refund, the total amount now payable by the landlord to the tenant is $6,625.71.
5. The orders of the Appeal Panel are: 1. 1. Time in which to lodge the appeal is extended to 24 February 2017; 2. 2. Leave to appeal is granted in respect of the calculation of the reduction under s 44(1)(b) of the Residential Tenancies Act 2010 of rent payable; 3. 3. Pursuant to s 81(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) Order 1 made on 24 January 2017 is varied to be: "Pacorp Holdings Pty Ltd is to pay April Waller the sum of $6,627.71"; 1. 4. Pursuant to s 81(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) Order 2 made on 24 January 2017 is varied to be: "Pacorp Holdings Pty Ltd is to pay April Waller costs in the sum of $999.00 being the cost of an expert report relating to mould in the premises"; 1. 5. The amount of $1,001.00 already paid by the appellant to the respondent is to be credited to the amount payable under Order 1, so that the total amount to be paid by the appellant to the respondent under Orders 1 and 2 is $6,625.71, payable within 30 days from the date of these orders. 2. 4. The appeal is otherwise dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 07 August 2017