The dispute arises from a standard form residential tenancy agreement made on 1 November 2013 in respect of a residential premises. The agreement was for 52 weeks commencing on the 1 November 2013, with the fixed term ending on 30 October 2014. The rent payable under the agreement was $1700 per fortnight, with the first payment payable on the 1 November 2013. The rental bond was lodged with the Rental Bond Services in the amount of $3400. The rental bond and interest, in the amount of $3400.96, was paid to the landlord on 5 September 2022.
The landlord has included in their documents an ingoing report that was completed by the landlord's agent at the time, and the tenants, dated 1 November 2013, and photographs accompany the ingoing condition report. The landlord has provided and outgoing condition report dated 8 August 2022, photographs that are undated are supplied with that exit condition report in their evidence bundle. The landlord has supplied statements from the landlord and others, quotes to rectify the damages claimed and correspondence between the parties, including the notice of vacate from the tenant dated 8 March 2022 that indicates the tenant had vacated the premises. The landlord has provided a copy of the residential tenancy agreement.
The parties agree that vacant possession occurred on 3 August 2022.
The tenant did not attend the exit condition inspection on 8 August 2022.
The tenant has provided documents including statements, photographs, invoices and correspondence between the parties and with others in their evidence bundle.
The tenant lived in the premises for approximately 9 years.
[2]
Contentions of the Parties
The landlord contends that the tenant failed to return the property in a reasonably clean condition and as nearly as possible in the same condition as they received the property, fair wear and tear excepted.
The landlord has served in their documents two lists of items they are claiming against the bond and additional compensation, for end of tenancy charges. Exhibit A1 lists 18 claims at a total of $41585.79. Exhibit A2 lists 26 claims at a total of $98227.79.
The tenant contends that the landlord has breach section 63 of the RT Act by not maintaining the premises in a reasonable state of repair, by not addressing the repairs issues reported of water ingress and mould report by the tenant on 8 March 2023. The tenant's claim the source of the damage consisted of a leak in the bathroom waterproofing, exacerbated by the extreme weather events. The issues were not rectified by 13 July 2022.
The tenant contends these breaches have led to the tenant's disappointment, distress and frustration. The tenants contend the appropriate amount of compensation is $15000.
In the alternative, should there be no breach by the landlord, the tenants contend that the rent should be abated due to the tenants unable to access the garage and the deck for a period of 5 months, as these areas were wholly or partially uninhabitable. The tenant contends the appropriate amount of rental abatement is $1600.
[3]
Jurisdiction
In order for the Tribunal to exercise its powers contained in the RT Act, the Tribunal must be satisfied there is a residential tenancy agreement between the parties in compliance with section 13 of the Act, pursuant to section 6 of the RT Act.
The landlord has provided a copy of a Residential Tenancy Agreement, this agreement is uncontested.
An application for a claim against the rental bond for breach of a RT agreement must be made within 6 months after the payment of the rental bond, pursuant to section 175(3) of the RT Act and regulation 39(8) of the RT Regulations. The tenants application was made within 3 months of the payment of the rental bond to the landlord.
The RT Act, section 187(4)(a) and regulation 40(b) prescribe the jurisdictional monetary limit of the tribunal for matters other than the bond to be $15,000. The claims before the Tribunal in this matter both exceed the jurisdictional limit, however, both parties have consent to the jurisdictional limit in their respective claims.
An application for breach of a RT agreement must be made within 3 months of the applicant becoming aware of the breach, pursuant to section 190(1) of the RT Act and regulation 39(9) of the RT Regulations.
The application by the landlord for compensation for end of tenancy charges was made within 3 months of vacant possession and is within time.
The issue of a continuous breach in relation to section 63 was addressed by the Appeal Panel in Roberts v NSW Aboriginal Housing Office [2917] NSWCATAP 9 at [91]:
It can be accepted that an obligation to maintain can give rise to an ongoing obligation rather than a single obligation that is breached once and for all. As Dixon J (as he then was) said in Larking v Great Western (Nepean) Gravel Ltd (in Liq) [1940] HCA 37; (1940) 64 CLR 221 at 236:
If a covenantor undertakes that he will do a definite act and omits to do it within the time allowed for that purpose, he has broken his covenant finally and his continued failure to do the act is nothing but a failure to remedy is passed breach and not the commission of any further breach of his covenant. His duty is not considered as persisting and, so to speak, being for ever renewed until he actually does that which he promised. On the other hand, if his covenant is to maintain a state or condition of affairs, as, for instance, maintaining a building in repair, keeping the insurance of a life on foot, or
affording a particular kind of lateral or vertical support to a tenement, then a further breach arises in every successive moment of time during which the state or condition is not as promised, during which, to pursue the examples, the building is out of repair, the life an insured, or the particular support an provided.
The tenant's application was lodged within 3 months of 13 July 2022, when repairs had not been completed.
I find the Tribunal has jurisdiction to hear the matters.
[4]
End of tenancy charges, Bond and landlord's compensation claim
Section 51(3) of the RT Act, which is a term of every residential tenancy agreement (section 51(5) RT Act) states:
(3) On giving vacant possession of the residential premises, the tenant must do the following -
(a) remove all the tenant's goods from the residential premises,
(b) 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,
(c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,
(d) remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy,
(e) return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant.
Section 166 of the RT Act states:
166 Matters that may be subject of rental bond claim
(1) A landlord is entitled to claim from the rental bond for the residential tenancy agreement any of the following--
(a) the reasonable cost of repairs to, or the restoration of, the residential premises or goods leased with the premises, as a result of damage (other than fair wear and tear) caused by the tenant, an occupant or an invitee of the tenant,
(b) any rent or other charges owing and payable under the residential tenancy agreement or this Act,
(c) the reasonable cost of cleaning any part of the premises not left reasonably clean by the tenant, having regard to the condition of the premises at the commencement of the tenancy,
(d) the reasonable cost of replacing locks or other security devices altered, removed or added by the tenant without the consent of the landlord,
(e) any other amounts prescribed by the regulations.
(2) This section does not limit the matters for which the landlord may claim from the rental bond for a residential tenancy agreement.
The Tribunal must determine if the tenants breached the residential tenancy agreement by breaching their obligations under section 51(3) of the RT Act. This obligation requires the tenants to leave the premises as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy. 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 is 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).
Further, when determining a claim against the tenant's bond by the landlord, the Tribunal must determine if the claim falls within section 166 of the RT Act. When assessing claims again the tenant's bond, the issue should not be approached from the standpoint of the fastidious and obsessive landlord: Pancio v Crompton & Jennings [2015] NSWCATAP 110; Adoncello v Sazdanoff [2006] NSWCTTT 577; Fitzpatrick v Wu (RTT 01/16425).
[5]
Bond items addressed at the hearing on 24 March 2023
Cleaning
[6]
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: 09 August 2024
The Tribunal considered test for apprehended bias in Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 8 at [22] - [24], where the Tribunal stated:
22. The High Court of Australia has given guidance on how to determine whether apprehended bias is established in various decisions. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [6] the Court said:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a tribunal be independent and impartial.
23. The Court went on, at [19] as follows:
Judges have a duty to exercise the judicial functions when the jurisdiction is regularly invoked and they are assigned to cases in accordance with practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose the judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then the objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
24. In R v The Commonwealth Conciliation and Arbitration Commission and Ors; ex parte the Angliss Group (1969) 122 CLR 546 the High Court considered an application for a writ of prohibition against the Commission on the grounds of apprehended bias and a breach of the principles of natural justice. The Court said, at pages 553-554:
[The] requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.
The test for apprehended bias is an objective test, being "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson [2000] HCA 48 at [11], which was affirmed in Charisteas v Charisteas [2021] HCA 29.
The test is applied in a two step process outlined in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [8]: firstly, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; secondly, there must be an articulated "logical connection" between that matter and the feared departure from the judge deciding the case on its merits.
The landlord has claimed that the member is related to the tenant, Mr Hunter. The basis for the claim is a facebook page, which has not been provided to the Tribunal. The member stated in the hearing, in response to the landlord's claim, that, to the best of the members knowledge, the member is not related in any way to Mr Hunter, nor has the member previously met or had any relationship with the tenants prior to the hearing of 14 February 2023. Further to that, as far as the member is aware, the member is not related to any person with the last name of Hunter.
The landlord has also claimed that the member is of indigenous heritage. The landlord then directly asked the member if they were of indigenous heritage. The member stated in the hearing, in response to the landlord's claim, that, to the best of the members knowledge, the member is not of indigenous heritage and has never claimed that the member is of indigenous heritage. The member also stated that the member was not aware the tenant, Mr Hunter, identified as indigenous until he responded to the landlord's claims.
It does not appear that any fair-minded lay observer would consider that a Tribunal member who has identified never meeting and holding no personal or cultural connection with a party, would not bring an impartial mind to the issues which had to be decided.
It is difficult to see how there is a logical connection between the matters upon which the applicant based their allegation of apprehended bias and any fear that the application would not be determined on its merits.
Actual Bias
The Tribunal considered actual bias in Saeedi v Fisher & Paykel Appliances Pty Ltd [2016] NSWCATAP 235 at [45]-[46], where the Triibunal stated:
45. Mr Saeedi alleges actual bias. The onus of demonstrating actual bias lies with Mr Saeedi as the party asserting bias and is a heavy onus to discharge (per French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 520). An allegation of actual bias must be distinctly made and clearly proved; cogent evidence is required to support a finding of actual bias; that finding should not be made lightly: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97].
46. In Minister for Immigration and Multicultural Affairs v Jia Legeng, Hayne J wrote at [183]:
"Bias" is used to indicate some preponderating disposition or tendency, a "propensity; predisposition towards; predilection; prejudice". It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is "any thing which turns a man to a particular course, or gives the direction to his measures" [citations omitted].
The test for actual bias was addressed in Watkins v Woolworths Limited [2017] NSWCATAP 125 at [40]:
40. In the case of actual bias, a subjective test is involved. As the authors of Judicial Review of Administrative Action and Government Liability (6th ed 2017, Thomson Reuters) state at [9.40]:
"A claim of actual bias requires cogent evidence that the decision-maker was in fact biased. Actual bias will not be made out by suspicions, possibilities or other equivocal evidence. In the absence of an admission of guilt from the decision-maker, or, more likely, a clear and public statement of bias, this requirement is difficult to satisfy."
The landlord has claimed that the member was hostile towards the landlord in the hearing of 14 February 2023. However, the landlord has then submitted that the recording the landlord obtained from the Tribunal did not demonstrate the members hostility towards the landlord. The landlord claimed this was due to the member allegedly accessing and altering the sound recording.
Members do not have access to the sound recording equipment or files of the Tribunal. Members may be provided with a copy of a sound recording on request, as can a party request a copy of the recording. The landlord has not provided supporting evidence of the alleged hostility but rather indicated the sound recording does not support the claim.
Should the Tribunal adjourn the matter on 24 March 2023?
The landlord suffered a medical episode at the hearing on 24 March 2023. The ambulance was called to attend the landlord and the landlord sought an adjournment, as she was unwell.
The tenants consented to the adjournment. The ambulance attended and assessed the landlord and the landlord left the hearing.
Authorities in relation to adjournment applications establish that matters should ordinarily proceed to be heard on the dates they are allocated, and adjournments are granted in exceptional circumstances. O'Neil v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22]. The granting of an adjournment is a discretionary question to be determined according to the overall requirements of justice in the specific circumstances to the matter. Squires v Rogers (1979) 27 ALR 330; 39 FLR 106.
In determining whether the adjournment should be granted, the Tribunal may take into account the guiding principle to facilitate the just quick and cheap resolution of the real issues in contention. (NCAT Act section 36(1)).
In the full circumstances of the matter, including considering the length of time the application has been on foot in relation to the guiding principles of the Tribunal in Section 36(1) of the NCAT Act, the Tribunal finds there was sufficient evidence to support adjournment. The adjournment was granted.
Should the Tribunal adjourn the hearing of the 3 July 2023?
The landlord is not seeking an adjournment, however, the Tribunal will consider if an adjournment is appropriate in the circumstances, given the refusal to hear the matter on the papers and the absence of the landlord at the hearing of 3 July 2023.
The tenant has indicated the landlord in unwell and provided a medical certificate that stated that the landlord will be unfit to continue her usual occupation from 30 June 2023 to 3 July 2023 inclusive.
The tenants opposed the adjournment, indicating that the matter has been on foot for a substantial period of time and they were in person and ready to proceed.
Medical certificates should indicate both the illness and the reason(s) for the applicant's inability to attend court: AHB v NSW Trustee and Guardian [2014] NSWCA 40.
The medical certificate provided by the landlord does not indicate either the illness or the reason for the landlord's inability to attend the hearing.
Authorities in relation to adjournment applications establish that matters should ordinarily proceed to be heard on the dates they are allocated, and adjournments are granted in exceptional circumstances. O'Neil v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22]. The granting of an adjournment is a discretionary question to be determined according to the overall requirements of justice in the specific circumstances to the matter. Squires v Rogers (1979) 27 ALR 330; 39 FLR 106.
In determining whether the adjournment should be granted, the Tribunal may take into account the guiding principle to facilitate the just quick and cheap resolution of the real issues in contention. (NCAT Act section 36(1)).
In the full circumstances of the matter, including considering the length of time the application has been on foot in relation to the guiding principles of the Tribunal in Section 36(1) of the NCAT Act, the Tribunal finds there is insufficient evidence to support adjournment. The adjournment is refused.
The landlord further asserts that the listing of both file numbers on the one notice of orders on the 14 February 2023, is a demonstration of bias. This is based on the tenants being listed as applicants and the landlord as a respondent.
This matter contains a claim and cross claim heard together. Both parties are applicants and respondents. The Tribunal order making system provides members with the ability to make orders in multiple matters at the same time. This process is employed on a regular basis by all members. Utilising this function of the order making system does not demonstrate bias.
In so far as any prejudgement of the matters, the landlord has indicated that the landlord believes the member is misinterpreting the landlord's photographic documentary evidence. The landlord was given the opportunity to present submissions, including taking the member to any supporting evidence, such as photographs. The landlord has not provided any evidence that the member has demonstrated bias in relation to the landlord's photographs.
For the reasons discussed above, there is insufficient evidence to find actual or apprehended bias by the member and the Tribunal refuses the application for recusal.