Peter and Amanda Pty Ltd atf The Ryder Superfund v Johnson

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. These included (at [13]):

1. These matters were expanded by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 where the Appeal Panel stated (references omitted):

1. Where a party is a self-represented non-legally trained appellant, such as the landlords, the grounds of appeal should be considered generally by the Appeal Panel (subject to procedural fairness considerations) to determine whether a question of law has been raised: Simjanovska v Dogan [2023] NSWCATAP 69 at [78]; Prendergast at [12]).
2. We shall return to this matter below.

1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that:

1. Even if an appellant establishes that the appellant may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

1. The first matter is that the approach of the Tribunal in such matters (that is, where the landlord is making a claim on the tenant's bond) was explained by the Appeal Panel in Carbery v Warringah Rugby Club Ltd [2021] NSWCATAP 153. The Appeal Panel stated:

33 Pursuant to ... the residential tenancy entered into between the parties, when giving vacant possession to [the landlord], the obligation of the [tenant] was, relevantly, to leave the premises as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy: cl 17.1. Such an obligation is also reflected in s 51(3)(b) of the Residential Tenancies Act 2010 (NSW) (the RT Act).

34 This obligation means that the tenant, for the term of the residential tenancy agreement, is bound to keep the premises in a satisfactory condition, but is not liable for damage or deterioration of condition due to fair wear and tear. If any want of repair is alleged and proved in fact, it lies on the tenant to show that it comes within the exception. Fair wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces: Regis Property Co Ltd v Dudley [1959] AC 370 (referred to with approval by the NSW Court of Appeal in Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd & Anor [2006] NSWCA 224).

35 In Pancio v Crompton & Jennings [2015] NSWCATAP 110 the Appeal Panel at [24] applied the principles set out in Adoncello v Sazdanoff [2006] NSWCTTT 577 where the Tribunal referred with approval to the following statement in Fitzpatrick v Wu (RTT 01/16425):

36 The first task for the Tribunal was to determine the condition of the premises at the commencement of the tenancy. This is done through evidence which should be constituted by an ingoing condition report (ICR), preferably signed by both parties, which sets out the condition including the cleanliness of each room of the premises and the external areas. Absence of an ingoing inspection report does not preclude a landlord bringing a claim for compensation due to the condition of the premises at the end of the residential tenancy, but the absence of an ISR goes to the weight of evidence: Hall v Hawkins [2015] NSWCATAP 197 at [59]- [66].

37 These days, contemporaneous photographs and even videos form part of an ICR. ...

39 The next step to be undertaken by the Tribunal is to identify the condition of the premises at the conclusion of the tenancy. Similarly, this is done by the completion of an outgoing condition report (OCR), preferably completed at the conclusion of the tenancy in the presence of both parties at a final inspection.

(emphasis added)

1. The second matter of principle is that, in any proceedings, a court or tribunal is informed and persuaded only by the presentation of probative evidence. As the Appeal Panel stated in Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [18]:

1. Thus, the uncorroborated say so of a party that work has been undertaken poorly or that a loss has been suffered in a particular amount is rarely, if ever, sufficient proof of the poor work or the loss being suffered: Pate v Chan [2010] NSWCTTT 221; Buckland v Goodwin [2009] NSWCTTT 685.
2. The third matter of principle, which is relevant to these reasons and the Primary Decision, is that the authorities state that it is not necessary to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443. This was expressly noted in Carbery where the Appeal Panel was considering over 300 pages of materials filed by the appellant. A similar amount of materials has been provided to us by the landlords in this appeal.

1. The landlords told the Tribunal that the drapes were 3 years old. They presented to the Tribunal an invoice for cleaning of the media room "curtains" which we assume are the "drapes" referred to, in the sum of $346.50, and a quotation for the "curtains" in bedrooms 2, 3, and 4 in the total amount of $1,331.
2. There was no comment on the OCR re bedrooms 3 and 4, so those claims for $242 for cleaning must fail.
3. As to the claims for bedroom 1 ($330) and bedroom 2 ($99), the photographs relied on by the landlords do not identify which bedroom's drapes are depicted and are very poor quality images from which it is impossible to derive any assurance that there was mould on the drapes in those bedrooms.
4. As the Appeal Panel noted in X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181 at [96], in Goode v Angland [2017] NSWCA 311; (2017) 96 NSWLR 503 Beazley P, with whom Meagher and Leeming JJA agreed, said:

In Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72, which concerned a motor accident, the appellant contended that the primary judge had failed to give adequate weight to video footage taken from a camera in a vehicle travelling behind the vehicles involved in the accident. Sackville AJA, Ward JA and Garling J agreeing, said, at [42]:

1. We reject that submission. The landlords did receive the bond in that it was paid to their agent, who held the bond monies on trust for them, not for any other person such as the tenants.
2. We see no substance in any of the submissions just recited. Matters (1), (2) and (3) indicate a fundamental misunderstanding about the law of agency.
3. As to matter (4), this is a non-sequitur. Just because the bond had not been received by the landlord, that does not mean that they were unable to comply with the Tribunal's order to pay $4,400 to the tenant. In any event, the agent's receipt was constructively the landlords' receipt in the circumstances.
4. Secondly, the Tribunal not amending the OCR.
5. We were given no reference in the transcript to the landlords having asked the Tribunal to do so, and there is no evidence before us that such a claim was included in the landlords' application to the Tribunal. It goes against principle to allow an appellant to raise on appeal a matter which had not been raised at first instance, subject to limited exceptions that have not been shown to apply in the present climate of disputed fact. As the Appeal Panel stated in Abdallah v Paco Nominees Pty Ltd [2024] NSWCATAP 259:

153 The respondent submitted that considerations preventing new points being raised on appeal should be applied to the appellant's arguments: Hudson v Arp 1 (NSW) Pty Ltd (2014] NSWCATAP 61; Drivas v Burrows [2014] NSWCATAP 87.

154 To these authorities could be added Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, which has been regularly applied by the Appeal Panel, most recently in Independent Liquor & Gaming Authority v Hurlstone Park Operations Pty Ltd [2024] NSWCATAP 232 (15 November 2024) and Unique Commercial Group Pty Ltd v Cusumano (16 October 2024).

155 As the Appeal Panel stated in Chahrouk v Bardouh [2024] NSWCATAP 181 and in Bartel v Ryan [2018] NSWCATAP 231 at [25], the High Court of Australia said in Coulton v Holcombe [1986] HCA 33 at [9] that it is elementary that a party is bound by the conduct of their case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against them, to raise a new argument which, whether deliberately or by inadvertence, the party failed to put during the hearing when they had an opportunity to do so: Palm Homes Pty Ltd v Kav's Constructions Pty Ltd [2015] NSWCATAP 113 at [27].

(1997) 48 NSWLR 430

(2017) 96 NSWLR 503

(1986) 162 CLR 1