Patricia Panico v Carolyn Crompton and Rodney Jennings

Requirements for Leave to appeal

1. Schedule 4, cl 12 of the NCAT Act provides that an Appeal Panel may grant leave 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).
2. In Collins v Urban [2014] NSWCATAP 17 the requirements to establish a "substantial miscarriage of justice" were explained at [71], [79] and [84] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred."
3. If satisfied the appellant may have suffered a substantial miscarriage of justice the Appeal Panel still has a general discretion whether or not to grant leave. As was said in Urban at [84] and following: [84] The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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.

The Tribunal's decision and Ms Panico's submissions on appeal

1. The Tribunal's decision on this claim was as follows: The Front Door Area The landlord relied on the ingoing, interim and outgoing reports, photographs and quotes. The Tenants gave evidence that the male tenant, who is a carpenter, repaired the door in 2011, as due to increasing rain it became impossible to open the door. I accept the Tenants submission that the Landlord's quotes are not persuasive in establishing her case that the damage complained of is above fair wear and tear. The Landlord could not give me an approximate age of the dwelling but conceded that it was certainly not new when she purchased it thirteen years ago. Her own photographs support this. Further, the Tenant's evidence as to the necessary reason for the repairs they did to the door in 2011 was plausible when I asked questions. Further, their evidence as to the age and wear and tear of the door was supported by the pbm quote on which they relied and who tellingly is one of the contractors whom the landlord approached, although she did not seek to rely on its document at the hearing. The correspondence from Urban Construction also supports the tenant's case.
2. In essence, Ms Panico submits that she suffered a substantial miscarriage of justice because the decision made by the Tribunal not to award her compensation in respect of the front door was against the weight of the evidence before the Tribunal. In her notice of appeal Ms Panico said her evidence "established there was no water damage to the door and its surrounds and that the damage was caused by the tenants". Further, she said the tenants failed to notify her of any damage and thereby breached the residential tenancy agreement. She relies on the evidence to submit that the door and surrounds were damaged by excessive banging against the wall and door frame when being opened and closed. Consideration
3. The issue raised on appeal is whether the door and surrounds were damaged by the tenants, or was caused by water damage to the door, or deterioration to the wall finishes due to the age of the premises, or some other cause for which the tenants were not responsible.
4. There are two relevant provisions of the Residential Tenancies Act 2010 (RT Act) and the residential tenancy agreement.
5. First, the landlord has an obligation to maintain the premises in a reasonable state of repair: see s 63 of the RT Act. In this regard the tenant is obliged to notify matters requiring repair but is not obliged or entitled to carry out repairs. The tenant may do so in the case of urgent repairs, subject to various conditions: see ss 51(2)(b) and s 64 of the RT Act. However, the tenant is entitled to apply to the Tribunal for an order requiring the landlord to carry out repairs: see s 65 of the RT Act.
6. Secondly, the tenants, at the end of the residential tenancy, must leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into: s 51(3)(b) of the RT Act.
7. The Tribunal must assess the state of repair and general condition of the premises at the commencement and conclusion of the tenancy. Any condition report at the commencement and end of the residential tenancy will be relevant to this task.
8. The Tribunal may order that the tenant compensate a landlord if the premises are not in the same condition as they were at the commencement of the tenancy, fair wear and tear excepted.
9. The Tribunal must also consider whether at the time vacant possession is given by the tenants the condition of the residential premises and the need for repair arises from: 1. the failure of the landlord to carry out necessary repairs; or 2. the tenants' use of the premises and/or any breach of the tenants' obligations under Section 51(1) and (2) of the RT Act, including the tenants' obligations: 1. not to intentionally or negligently cause or permit any damage to the residential premises; and 2. to notify the landlord of any damage change arises from the tenants conduct, the tenants.
10. If the tenants have intentionally or negligently caused damage or the wear and tear is not "fair", the tenants are liable to compensate the landlord for the cost of repairs.
11. Fair wear and tear means damage or deterioration that arises from the reasonable use of the house by the tenant for its intended purpose and/or the ordinary operation of natural forces. This interpretation is consistent with the meaning given to "reasonable wear and tear by" the NSW Court of Appeal in Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd & Anor [2006] NSWCA 224) at [30] - [35].
12. Fair wear and tear is to be assessed objectively: see Adoncello v Sazdanoff [2006] NSWCTTT 577 where the Consumer Trader and Tenancy Tribunal referred with approval to the following statement in Fitzpatrick v Wu (RTT 01/16425): [The section] requires only that the tenants return the property in the state in which it was received minus fair wear and tear. It is the concept of "fair wear and tear " which causes the disputes in these matters and in particular whose standards determine whether wear and tear is fair" ... Given that the section is intended to have application to premises generally in NSW, Parliament could not have intended that the standard of "fair" wear and tear be the subjective standard of each individual landlord. Presumably Parliament had in mind something more objective in nature. In the absence of any guidance on the point from the Supreme Court and having regard to the apparent absence of consideration on the point in other decisions of the Tribunal, the present Tribunal takes the view that the requisite standard is that commonly prevailing among the tenants of comparative premises and that the issue should not be approached from the standpoint of the fastidious and obsessive landlord.
13. It is in this context the Appeal Panel must consider the evidence referred to and the decision of the Tribunal.
14. As noted above the Tribunal referred to ingoing, interim and outgoing "reports", presumably a reference to condition reports. With the exception of the "interim" reports, the condition reports were not in evidence before the Appeal Panel. Accordingly we are not in a position to assess whether the Tribunal's consideration of these documents was correct or appropriate. This poses a considerable difficulty for a party who is seeking to set aside a decision of the Tribunal such as in the present circumstances. However, we will assume in Ms Panico's favour, as the Tribunal considered the various reports, that the Tribunal found that the premises were in a worse condition at the conclusion of the tenancy. This is the case in relation to the relaying of turf, repairs to the bathroom and replacement of a remote control of an air conditioning unit, as, in these matters, the Tribunal awarded compensation. Further, in relation to the front door and the surrounds, the Tribunal considered and referred to some of quotes before it, which quotes address the issue of whether the damage to the door and the surrounds was caused by the improper actions of the tenants, or whether there was some other mechanism at work, such as water penetration.
15. It is common ground that the following quotations were before the Tribunal at the hearing. 1. a document described as a "quotation" of Mr Graham Kelso dated 24 July 2014 in the sum of $1,350.00. There is handwriting on this document stating "This quote does not include the replacing of the door or the painting"; 2. A "quote" of Mr Tony Taddio of A T Constructions (NSW) Pty Ltd, which is undated; 3. A document described as "inspection report", prepared by Mr Anthony Cosco of Urban Constructions Pty Ltd in the sum of $800 excluding GST. This report is undated but refers to a date of inspection of 16 June 2014; 4. A letter from Pellegrino Building Maintenance (PBM) dated 23 September 2014 in the sum of $2,695.00 including GST. 5. A "quote" of Pinnacle Constructions and Design dated 2 July 2014 in the sum of $4,991.14.
16. The first document was the "quotation" of Mr Graham Kelso dated 24 July 2014. Relevantly this document stated that: "the damage both the door and the surrounds has not been caused by building movement and could only have occurred through excessive force being applied".
17. Mr Kelso quoted $1,350 including GST for the removal and repair of the door and surrounds. This amount does not include an allowance for the replacement of the door or for painting. This document is relied on by Ms Panico. Mr Jennings submitted that Mr Kelso was only a handyman (which is what his letterhead discloses), and that the matters referred to in the quotation were not within his expertise.
18. The second document was the undated "quote" of Mr Tony Taddio of A T Constructions (NSW) Pty Ltd. Relevantly this document stated that: In the best of my knowledge the above damage (here a reference to delamination of the front door, a loose architrave, lose and cracked rendering on the inside of the right side of the front door) [has] been part of the front door slamming numerous times after times, which cause[d] the door frame to get loose . . . In my knowledge the damage [h]as been create[d] by a disregard of the place from the persons [that were] living there.
19. Mr Taddio quoted $2,916 including GST for the repair work. This document is relied on by Ms Panico.
20. The third document was the "inspection report", prepared by Mr Anthony Cosco of Urban Constructions Pty Ltd (licence number 209160C). This report is undated but refers to a date of inspection of 16 June 2014. The report records: "continually wet[ting] the door during rainfall", "lime mortar seem[ing] to have been eroded somewhat overtime suggesting water damage", "severe leak from the shower which is located on the other side of the wall where the main damage as occurred. The weakening of the lime mortar is a direct result of the observed water damage and normal wear and tear".
21. Mr Cosco quoted $880 including GST for the repair work. This document is relied on by Ms Crompton and Mr Jennings.
22. Ms Panico submits that no reliance should be placed on this document as a licence check undertaken by her on 8 October 2014, which was before the Tribunal, indicates that licence number 209160C and the licence name Urban Constructions Pty Ltd were not registered. On the other hand, the evidence before the Tribunal included a statement of Mr Cosco dated 25 November 2014. In that statement Mr Cosco stated that he was a qualified builder and held a current contractor's licence.
23. The fourth document was the PBM letter dated 23 September 2014, which quoted $2,695 including GST for the repair work. That letter stated: Upon inspection found that wall surrounding door was loose, with lime render becoming drummy. It is of my opinion that, movement to building, creating the front door to stick against the frame, and with contuse use of the door can contrib. to apply stress to frame around door and is possible to loosen. It was visible to see that tenanted who is a carpenter, did attempted to shave door, for it to open and close with ease.
24. The fifth document was the "quote" of Pinnacle Constructions and Design (Pinnacle) dated 2 July 2014. Inspected front door and frame on 25/06/14 and found door frame loose and coming away from brickwork and brickwork in some places was also loose. The door seems to of been rubbing on the striker plate for a while due to door expanding from weather as door has been affected by moisture. . . . The door frame is very loose due to the tenant constantly pulling on door when it jammed but hard to confirm as we do no know how long this door was jamming on lock.
25. Pinnacle quoted $4,991.14 for the repair work. This was a letter relied on by Ms Panico at the Tribunal hearing. Ms Panico said that she was not relying on the document at the appeal hearing because she was trying to be "reasonable".
26. Broadly, it could be considered that the first and second documents were supportive of Ms Panico's position, in that the documents suggested that the damage to the front door was caused by actions of the tenants. On the other hand, again broadly speaking, it could be considered that the third and fourth were not supportive of Ms Panico's position. The fifth document refers to the door being affected by moisture, but also refers to "the tenant constantly pulling on door".
27. Ms Panico submitted that the Tribunal should have relied on the evidence from those witnesses who suggested the tenants had mistreated or banged the door against the wall and door frame.
28. There was other evidence before the Tribunal which Ms Crompton and Mr Jennings' submit is supportive of their position. This evidence consisted of: 1. An email from Ms Panico to "Michael" at Laing and Simmons dated 10 June 2014. 2. An email from Ms Marg Filby to Mr Crompton (Ms Crompton's brother) dated 25 November 2014. 3. A statutory declaration of Mr Damien Maughan dated 25 November 2014. 4. An email from Ms Panico's former agent Vera Nicholl to Mr Crompton (Ms Crompton's brother) dated 26 November 2014. 5. Photographs depicting damage which Ms Crompton and Mr Jennings submit are consistent with water ingress. 6. Photographs depicting damage which Ms Crompton and Mr Jennings submit are consistent with movement of the building.
29. Ms Panico's email dated 10 June 2014 records her belief that "the front door of the house has been used full force twice a day, seven days a week for minimum 10 months". However, the email also refers to "movement with the frame" as being "very dangerous", and to the house as being "very old" with walls that are "fragile and easy to crack". The email concludes with the suggestion "to tell the tenant to use the back door till we get all this soughted", and otherwise gives instructions to the agent for the carrying out of repairs to the front door and surrounds.
30. Ms Filby was the office manager of Laing and Simmons Drummoyne, the property managers for the property. In her email dated 25 November 2014 she relevantly stated: I do remember [Ms Panico] saying to [Mr Jennings] to use the back door if they couldn't use the front door as it was not her problem as she didn't believe it was her responsibility to fix it. . . . James, our trademan could also verify the condition of the door as I think he saw it too. Check with Vera if you haven't already. . . . Eddy and I both went to say to [Ms Panico] that that was not acceptable and that the door had to be fixed.
31. Mr Michael Maughan has given sworn evidence that he is a carpenter. In his short statutory declaration of 25 November 2014 he states: On the 19th of July 2014 while helping Rodney Jennings move out of [the premises] I inspected the front door frame in question. The frame was inadequately fixed to bricks that were free standing and not engaged into [the] main wall of [the] house. In my opinion the frame was very poorly fixed and it was only a matter of time before the frame became loose. If I had installed the frame I would tooth in bricks to main walls and fix frame securely. I also noticed cracks in plaster and in cornices which would suggest foundation movement. And in regards to Rodney Jennings his knowledge of building + carpentry is as comprehensive as you will find.
32. The email of Ms Nicholl of 26 November 2014 relevantly stated: 6. On 24 July 2014 [Ms Panico] called & requested that the tenants pay $300 towards repairing the damage around the front door. [Mr Jennings] refused. . . . 8. The tenants have been great tenants and were always co-operative and Rodney has done some minor repairs himself eg replaced the rangehood over the stove. 9. Maintenance were reported & pointed out to the owner at inspections and were not carried out. . . . 11. There would have been about 4 or 5 quotes obtained for repairs to the front door area and prices ranged from $2,695.00 - $4,991.14. 12. Repairs were carried out to the front door area by the owner prior to our office ceasing management of the property.
33. We note that at the hearing this email was the subject of objection from Ms Panico, who submitted that Ms Nicholl may be disgruntled. However, the Tribunal noted in its decision that the email "provided a reasoned, neutral account of matters", and that it was very relevant. Accordingly, the Tribunal gave the email "considerable weight".
34. From a review of the above documents it is clear there was evidence from which the Tribunal we conclude as follows. 1. The landlord was aware that repairs were required to the front door of which the landlord had notice: (see Ms Panico's email of 14 June 2014). 2. There was water damage to the front door, and deterioration of the door surrounds and interior walls, caused by water and old age of the building: see eg the Urban Construction report, the letter of PBM and the statement of Mr Maughan.
35. The photographic evidence shows a front door area in poor condition with substantial cracking of internal wall finishes and deterioration of mortar, including on the wall opposite the wall onto which the door opens. This section of the damage on the opposite wall is inconsistent with Ms Panico's claim of the door banging against the wall.
36. The evidence referred to above provides a proper basis for the Tribunal to conclude that the damage was not caused by the door being slammed or by other actions of the tenants. The conclusion of the Tribunal to dismiss this claim is therefore not shown to be in error.
37. Accordingly, the Appeal Panel is not satisfied the decision of the Tribunal was not fair and equitable or against the weight of evidence.
38. In these circumstances leave to appeal should be refused and the appeal dismissed. Orders 1. Leave to appeal is refused. 2. The appeal is otherwise dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2015