Phanivong v Garner

Appeal documents 8The appellant filed a Notice of Appeal on 1 July 2014 and the respondents filed a Reply to the Notice of Appeal on 15 July 2014. Attached to those notices were a number of documents on which the parties sought to rely. 9On 18 August 2014, Wright J, President of the Tribunal, made directions that the parties file and serve any further material to be relied on. The parties agreed that they had not filed any further material in response to those directions.

Appeal out of time 10At the commencement of the hearing the appellant's representative was put on notice that his appeal was out of time. 11The Civil and Administrative Tribunal Rules 2014, rule 25(4) requires that in residential proceedings an appeal must be lodged within 14 days of the appellant being notified of the Tribunal decision. The decision was notified to the parties on 10 June 2014. The appeal was filed on 1 July 2014. Accordingly the appeal was filed outside the time limitation. 12The appellant sought leave to amend his Notice of Appeal to seek an extension of time pursuant to the Civil and Administrative Tribunal Act 2013, s 41. 13There was no objection by the respondents and by consent the time to file the appeal was extended pursuant to the provisions of s 41 to 1 July 2014, the date the appeal was in fact lodged.

Grounds of appeal 14There was an issue whether the grounds in the Notice of Appeal raised a question of law or whether the ground identified required leave to appeal. The Notice of Appeal did not originally seek such leave 15Following discussion about the provisions of section 80 and Schedule 4 Clause 12 of the Civil and Administrative Tribunal Act 2013 (which relates to the requirements for leave)the appellant sought and was granted leave to amend the Notice of Appeal to seek leave to appeal as the issues raised were not questions of law. In essence the issues identified were whether the evidence presented to the Tribunal was sufficient to justify the orders for compensation made in relation to the electrical goods and the non-functioning air conditioning unit. 16In allowing the amendment the Appeal Panel was satisfied that the substance of the appeal remained unchanged and there was no prejudice to the respondents.

Substantial miscarriage of justice. 17It was explained to the parties that in order for the Appeal Panel to grant leave under s 80(2)(b) and Schedule 4 Clause 12, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice. Reference was made to the decision of the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 which set out the principles for grant of leave. 18The parties were informed that if leave was granted the Appeal Panel would then decide the second question of whether the appeal should be allowed.

The appellant's submissions 19In relation to the $300 awarded for compensation being an amount equal to the insurance excess it was submitted that the respondents had failed to provide evidence from the insurer in its letter that the cause of the damage to their electrical equipment was water ingress and that the area in which they had stored their electrical equipment was an outside area that should not have been used for that purpose. 20However, the appellant did not dispute that evidence was given at the hearing that the electrical goods were in fact stored in the area in question and that they had been damaged by water ingress. 21The appellant agreed with the proposition put by the respondents that the area in question in which the respondents had stored their equipment was a fully enclosed area with a roof, windows, door and power outlets (although the appellant was unable to confirm the respondents' statement that the power points were of an internal type) and that the area was intended for use as a water-tight living area. The photographic material submitted by the appellant with the Notice of Appeal supports such a conclusion. 22However, in regard to this issue and the issue of compensation for the non-working air conditioner in bedroom 4 the appellant's submission was that there was a lack of documentary evidence to support the decision made by the Tribunal. 23The appellant did not dispute that the Tribunal was not bound by the rules of evidence and was entitled to take oral evidence from the parties and attribute appropriate weight to that evidence. 24The appellant did not dispute the respondents' submission that they had given oral evidence that the electrical goods had in fact been damaged by water ingress. However the appellant submitted that the evidence by way of letter from the insurance company in respect of a claim for damaged goods did not establish that those good were damaged by water ingress relating to blocked gutters 25In regard to the air conditioner the appellant did not dispute that the air conditioner in bedroom 4 was included as a facility provided pursuant to the residential tenancy agreement or that it was not working for a period of about 17 weeks. The appellant further agreed that the circumstances demonstrated a breach of the residential tenancy agreement by the landlord. 26The appellant's submission was that there was no documentary medical evidence to support the respondents' claim that their daughter had a medical condition that precluded use of the room due to lack of air conditioning.

The respondents' submissions 27The respondents submitted that all of the documentary material provided with their notice of reply to the appeal was available to the Tribunal Member at the hearing and that in addition they had given a full explanation of the circumstances surrounding their claim to the Member. 28The respondents submitted that the area in which the electrical goods were stored is a covered and enclosed area used as part of the living area of the residential premises. 29The respondents also submitted they had advised the Tribunal Member that their daughter suffers from excessive nose bleeds and was unable to sleep in bedroom 4 for a period of about 17 weeks. They had on several occasions contacted the landlord about the lack of air conditioning in bedroom 4 but there had been no response. Emails were in evidence before the Appeal Panel of some communications on this subject.

Relevant legal principles 30The Appeal Panel in Collins v Urban [2014] NSWCATAP 17 considered the meaning of "substantial miscarriage of justice". After reviewing relevant cases it was said at paragraph 71 that "..it can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way the matter was conducted or decided which deprives the appellant of a chance that was fairly open of achieving a better outcome than occurred." 31That case also reviewed the principles to be applied in determining a grant of leave. It is useful to again set out those principles from para 84 of the decision. "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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."

Determination of the leave issue 32The essence of the appeal is that the evidence before the Tribunal Member was insufficient to support the findings of fact. That is, the decision was "not fair and equitable" or "against the weight of the evidence" and that as a result the appellant may have suffered a substantial miscarriage of justice. 33There are two separate matters that must be evaluated. 34First is the claim that the Tribunal was in error in concluding that there was water ingress that damaged the electrical goods and that the respondents suffered damage of $300. 35The consent order to clean the gutters supports a conclusion that the gutters may have been blocked and caused water ingress in the relevant area. Photographic evidence provided in the appeal supports this view. 36The appellant did not dispute that the area in which the respondents had stored their electrical equipment was part of the living accommodation and that it was intended to be water-tight. The appellant did not dispute that there was oral evidence given at the hearing in relation to the cause of the damage to the electrical goods being water ingress. 37It is clear to the Appeal Panel that the Tribunal Member had before him a number of documents and oral evidence from which he could conclude that damage to the respondents' electrical goods was due to water ingress to the premises. The quotation to repair the goods attached to the Respondents' Reply to Appeal confirms water damage to the goods. 38The respondents did not make a claim for all the actual loss suffered as a result of the damaged goods but only that part of their loss arising from the damaged goods not covered being equivalent to the excess payable under their insurance policy of $300. This amount was paid in making the insurance claim as acknowledged in the letter from the insurance company 39The Appeal Panel is therefore satisfied that there was sufficient evidence available to the Tribunal to support the determination that the respondents' suffered an actual loss of $300 in respect of the damaged goods due to water ingress to the residential premises for which they were entitled to be compensated. 40In relation to the second matter, the Appeal Panel is satisfied there was evidence before the Tribunal that was not disputed by the appellant that in failing to rectify the air conditioner for bedroom 4, of which the appellant was on notice, the appellant was in breach of his obligations under the residential tenancy agreement. 41It was not necessary for the respondents to establish any medical condition of their daughter. However, their oral testimony on this matter provided a basis for the Tribunal Member to conclude bedroom 4 was not capable of being fully utilised as a bedroom during the 17 weeks the air conditioner was not working. Accordingly it was open to the Tribunal to conclude there was a breach of the residential tenancy agreement and a withdrawal of services. 42The appellant informed the Appeal Panel that the Tribunal assessed damages at a rate of $20.00 per week due to the failure to provide a functioning air conditioner. 43Ultimately the assessment of the sum to be awarded as compensation by way of damages for the withdrawal of the air conditioning services was a matter for determination by the Member and the amount of $20.00 per week, a total of $380.00, has not been shown to be unreasonable in circumstances where there was evidence to show the living space could not be used. 44Having regard to these conclusions, the appellant has not established there was a substantial miscarriage of justice on the basis that the decision on either issue was not fair and equitable or was against the weight of the evidence and the application for leave to appeal was refused. 45Accordingly the Tribunal made the following orders: (1)By consent the appellant has leave to appeal out of time and time is extended pursuant to s41 of the Civil and Administrative Tribunal Act 2013 up to 1 July 2014. (2)The appellant has leave to amend the Notice of Appeal to seek leave to appeal in accordance with section 80 and Schedule 4 cl 12 of the Civil and Administrative Tribunal Act 2013. (3)The application for leave to appeal is refused. (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: 16 October 2014