Pongrass v Small - [2021] NSWCATAP 314 - NSWCATAP 2021 case summary — Zoe

NSWNSWCATAP

Pongrass v Small

[2021] NSWCATAP 314

NCAT Appeal Panel|2021-08-17

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2021-08-17

Catchwords

[2010] HCA 32 Latoudis v Casey (1990) 170 CLR 534
[1990] HCA 59 Lawless v The Queen (1974) 131 CLR 510
[1974] HCA 35
Legione v Hateley (1983) 152 CLR 406

Source

Original judgment source is linked above.

Catchwords

[2010] HCA 32 Latoudis v Casey (1990) 170 CLR 534[1990] HCA 59 Lawless v The Queen (1974) 131 CLR 510[1974] HCA 35Legione v Hateley (1983) 152 CLR 406[2001] FCA 250 Minister for Immigration and Multicultural Affairs v Yussuf (2001) 206 CLR 323[2001] HCA 30 Oshlack v Richmond River Council (1998) 193 CLR 72RT 21/16507

Judgment (21 paragraphs)

[1]

g (Residential Tenancies) [2013] VCAT 2184 Kelk v Australian Postal Corporation [2014] FCA 147 Ken Sherrington v Commonwealth of Australia (No 2) [2015] FCCA 522 Kenny v Preen (1963) 1 QB 499 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Lawless v The Queen (1974) 131 CLR 510; [1974] HCA 35; Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11 Lewin v Zhou [2018] NSWCATCD 54 Little v Neuweger (Tenancy) [2002] NSWCTTT 850 Martin's Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15 McNeill v The Queen (2008) 168 FCR 198; [2008] FCAFC 80 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWATAP 120 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Madafferi (2001) 106 FCR 76; [2001] FCA 250 Minister for Immigration and Multicultural Affairs v Yussuf (2001) 206 CLR 323; [2001] HCA 30 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998) HCA 11 Owen v Kim [2017] NSWCATAP 26 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 SCC (Sam Construction Company) Pty Ltd v Wingate [2017] NSWCATAP 222 Shirvington v Commonwealth of Australia (No 2) [2015] FCA 522 Spathis v Hanave Investment Co-Pty Ltd [2002] NSWSC 304 State Rail Authority of NSW v Consumer Claims Tribunal (1988) NSWLR 473 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2014] NSWCATAP 85 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, [1988] HCA 7 Texts Cited: A Rissman, "The Price of Quiet Enjoyment" (1999) 7 APLJ 155 Halsbury's Laws of England (3rd ed), vol 23 (1964) Category: Principal judgment Parties: Robert Gabor Pongrass (Appellant) John Small (First Respondent) Nicole Leighton (Second Respondent) Representation: Solicitors: Ivy Law Group (Appellant) First Respondent (Self-Represented) Second Respondent (Self-Represented) File Number(s): 2021/00165171 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 18 May 2021 Before: G Meadows, Senior Member File Number(s): RT 21/16205; RT 21/16507

[4]

Orders of Tribunal

The Tribunal made orders on 18 May 2021, which are summarised as follows: In matter RT 21/16205: (i) In the period commencing 20 March 2021 to date the tenants have not breached the provisions of the Residential Tenancies Act 2010 (RT Act) or of the Residential Tenancy Agreement commencing 16 March 2018. (ii) The text messages sent by the landlord's agent, Mr Ray Nicholas, to the tenant on 29 March 2021 did not constitute a valid notice of the sale of the property under s 53 (1) of the RT Act. (iii) The landlord, through his agent or other persons authorised by him, was in breach of s 53 (1) and (2) of the RT Act by conducting inspections of the property with interested parties on 10 April, 15 April, 22 April, 24 April, 29 April, 01 May, 06 May, and 08 May 2021. (iv) To the extent that the landlord, through his agent or other persons authorised by him, accessed the property on 09 April, 14 April and 29 April 2021 in order to erect a "For Sale" sign, the landlord through his agent or other persons authorised by him was in breach of s 50 and s 55 of the RT Act. (v) By publishing from 09 April 2021 and thereafter photographs of the interior of the property in which the tenant's personal possessions were visible, without first obtaining the written consent of the tenants, the landlord, through his agent or other persons authorised by him, was in breach of s 505A(1). (vi) The landlord, through his agent or other person authorised by him, breached s 50 (2) of the RT Act by interfering with the reasonable piece [sic peace] comfort or privacy of the tenants in using the [sic - property in the] period from 29 March 2021 and thereafter. 2. Pursuant to s 187 (1) (d) of the RT Act, Robert Pongrass is to pay John Small and Nicole Leighton the sum of $3500 no later than 18 May 2021. In matter RT 21/16507: The application is dismissed as the Tribunal finds on the basis of the evidence provided that the applicant has not proved his case to the civil standard of proof.
By notice of appeal filed on 8 June 2021, the appellant ("the landlord") appeals the decision of the Tribunal delivered on 23 May 2021.

[5]

Facts Found by Tribunal

The landlord is the owner of residential premises ("the premises") which were leased to the tenant. By Residential Tenancy Agreement made on 16 March 2018 for a period of 52 weeks ending on March 12, 2020 ("the lease"). The lease expired, but the tenancy continued upon the same terms as the fixed term as provided by the lease.
The landlord's agent, ("the agent") contacted the tenant on or about 20 March 2021 informing him that access was required to enable the premises to be valued. Thereafter on about 26 March 2021 the agent attended the premises and advised the tenant that the landlord was selling the home and that it would be going to auction "in early May 2021". However the tenant gave evidence that the agent, upon his visit on 26 March 2021, stated that the landlord was "likely selling and they would need further access to the property for photos and some open houses". The tenant requested that he be sent details so that he could discuss it with his partner.
On 29 March 2021 the tenant received a text from the agent asking for access to the property for a photo shoot "Wednesday next". The agent states that the tenant responded by SMS at 8:42 AM (presumably the following day) agreeing with the appointment. The agent states he had a discussion about 10:22 AM with the tenant. The agent claims that on Wednesday 31 March 2021 he had a discussion with the tenant. It then became apparent that the tenant had understood that the appointment was for the following Wednesday, 7 April. Accordingly the arrangements were cancelled. Subsequently on 31 March 2021 the agent says he had several communications with the tenant for arrangements for a photo shoot for Tuesday 6 April 2021. The agent says that he had further communications with the tenant, and that on 8 April he visited the property and left a written note which stated dates and times for inspection. He arranged for a "For Sale" sign to be erected on the premises on 9 April 2021. When he attended the property on 10 April for the purpose of the first inspection, access was denied. Accordingly the landlord sought legal advice.
The tenant states that he was interstate from 7 April to 9 April 2021. On his return at 7:30 PM on 9 April 2021 he found a "For Sale" sign erected on the front of the property, and that there were photographs displayed on the Internet of the premises. He states he found a note provided by the agent setting out the inspection times and dates.
The Tribunal found that the parties' evidence confirmed that there was no mention of a pending or intended sale prior to 26 March 2021; that the requisite notice under section 53 of the RT Act was not provided until 10 April 2021; that thereafter on each day of the inspections, the required 48 hours' notice was not provided to the tenant. A breach of quiet enjoyment was proved, and damages of $3,500 should be awarded to the tenant.

[6]

Extension of time in which to bring the appeal?

It is debatable whether this appeal has been brought within the period prescribed by the Civil and Administrative Tribunal Rules 2014 (NSW). Rule 25(4)(b) requires that an internal appeal against a decision made in residential proceedings be made within 14 days from that on which the appellant was notified of the decision or given reasons for the decision (whichever is the later). The reasons were provided to the appellant at 5:30 PM on Monday, 24 May 2021. Since this is after the closing time for the Registry, the landlord submits that the date should not be included in the calculation of 14 days which should start from 25 May 2021. The appeal was filed on 8 June 2021, namely 14 days from 25 May 2021.
Section 41 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) provides: The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
Several authorities have established the principles for the grant of an extension of time: see Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70 at [72] to [74]. These paragraphs confirm the discretionary power of the Tribunal to grant an extension of time which is described as "unfettered but it must be exercised judicially" having regard to the objective stated in section 36 of the CAT Act, namely, "to facilitate the just, quick and cheap resolution of the real issue in the proceedings".
In Jackson v Land and Housing Corporation [2014] NSWCATAP 22 ("Jackson"), the Tribunal at [22] stated that the relevant considerations were: the length of the delay; the reason for the delay; the appellant's prospects of success, i.e. whether there is a fairly arguable case; and the extent of any prejudice suffered by the respondent to the appeal.
The respondent opposes an extension of time in which to bring the Appeal, submitting that the length of the delay is only one matter for consideration and the time limit should be enforced: see Jackson at [21].
There is no evidence of the reason for the delay which is a factor to be considered in determining this application. However, the Appeal Panel takes into consideration that the respondent cannot point to any specific prejudice that he has suffered, the delay is only a matter of approximately one day, since the reasons were received by the landlord late on 24 May 2021 and the notice of appeal was filed on 8 June 2021, there are legal issues for determination raised by the appellant, and the legal representative thought that the appeal was being filed within time.
It is not apparent to the Appeal Panel that in fact the appeal is out of time: the 14-day time limit in which to bring the appeal commenced the day after the publication of the reasons, namely, on 26 May 2021, since the calculation of time commences exclusive of the day of the event, namely, receipt of the reasons: see s 36 (1) of the Interpretation Act 1897 (NSW). The 14-day period expired on 8 June 2021, namely, the day the appeal was filed. In these circumstances, the Appeal Panel does not perceive a need for leave but in any event would grant leave since any delay is de minimis.

[7]

Further evidence

A ground for granting leave to appeal on alleged errors of fact (discussed below) is that "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)": Sch 4 cl 12(1)(c) to the CAT Act.
The parties seek to rely upon "fresh material". Material which could have been available at the first hearing, but which was not relied upon, does not constitute "fresh evidence". This has been the traditional principle applied in courts, as stated in Lawless v The Queen (1974) 131 CLR 510; [1974] HCA 35; per Steven J at 669. See also Minister for Immigration and Multicultural Affairs v Madafferi (2001) 106 FCR 76; [2001] FCA 250 at [30]; McNeill v The Queen (2008) 168 FCR 198; [2008] FCAFC 80; Timmins v Timmins [1919] P. 75 at 80. The rationale was explained in Johnson v Johnson 1899 P. 19 at 21 where the court (The President Sir F. H. Jeune) said: But it is necessary that magistrates should clearly understand what "fresh evidence" means..: It must relate to something which has happened since the former hearing or trial, or it must be evidence which has come to the knowledge of the party applying since that hearing or trial, which could not by reasonable means have come to his knowledge before that time…. It is altogether a mistake to suppose that "fresh evidence", within the meaning of the Act [Summary Jurisdiction) Married Women) Act 1895 UK) means or includes evidence which could have been called, but which is not in fact adduced, at the first hearing. It would be monstrous to suppose that a party could abstain from calling evidence, and could thereafter proceed to make application upon application, based on evidence which might have been tendered at the first instance.
The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with (a test which incorporates fresh evidence in the above sense but is broader) was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37] -[39]: [37] "In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' [38] In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '[23] Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. [24] Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' [39] As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'
In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."
It appears that the landlord seeks to rely, on this appeal, upon a statement of the agent, Mr Ray Nicholas, dated 23 July 2021 and that the tenant seeks to rely upon a response to such affidavit and a series of photographs. Since it is not evident that the content of the statement provides any information that was not reasonably available before the first Tribunal hearing, the Appeal Panel does not give leave for the landlord to rely upon such statement. Accordingly the Appeal Panel will not consider the tenant responses and photographs in reply.

[8]

Questions of law and of fact; leave to bring the appeal

Pursuant to s 80 (2) of the CAT Act, an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel on any other grounds: see s 80(2)(b). The grounds of appeal raised indicate that certain grounds are questions of law for which no leave is required. In respect of those grounds which are challenges to factual findings, leave will be required in accordance with the principles stated in Collins v Urban [2014] NSWATAP 17 at [65] - [85]. However, pursuant to Part 6 of Schedule 4 to the CAT Act, the Appeal Panel may only grant leave if it is satisfied that the appellant may have suffered "a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with): see Sch 4 cl 12 (1).
The notice of appeal has been framed in such a way as to blend appeals in relation to both fact and law and in part to raise issues of fact alone and issues of law alone. The landlord refers to the decision in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32. In that decision, which concerned the Consumer Trader and Tenancy Tribunal Act 2001 (NSW), the issue arose whether s 67, which allowed an appeal "with respect to a matter of law", included a decision with respect to a question of mixed fact and law and therefore entitled the appeal to determine any other question of fact or law or mixed fact and law in order to make appropriate orders disposing of the appeal. The court held that the language of the statute indicated that the right of appeal is not intended to be restricted to final orders disposing of proceedings; further, the words "with respect to" were to be construed as limiting the scope of the statutory appeal to exclude decisions with respect to a matter of fact. However, the Court held that, where a decision incorporated a mixture of issues of fact and law, it was necessary to separately identify the legal aspects of that decision in order to bring the appeal.
What constitutes a "question of law" has been considered by the Tribunal, in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] - [21]. The same issue has been considered in the context of the Administrative Appeals Tribunal Act 1975 (Cth) in Kelk v Australian Postal Corporation [2014] FCA 147 by Perram J: see [171] - [174]; and in Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50] per Marshall J. The principle stated in Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at 179 and in Minister for Immigration and Multicultural Affairs v Yussuf (2001) 206 CLR 323; [2001] HCA 30 at 351 at [82] remains: If [an administrative tribunal such as the Administrative Appeals Tribunal] falls into an error of law which causes to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power [and discharge of the review function] is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order law decision probably Tribunal which reflects it.
It is necessary for the Appeal Panel to separate issues of fact from issues of law as raised in this appeal.
In that respect, we note the respondent tenants' submission that there is no error of law. We also note that ground 8 in the notice of appeal has been dealt with in the course of dealing with other grounds.

[9]

Ground 1: Adequacy of Notice

The landlord submits that the Tribunal erred in finding that the text message sent by the landlord's agent to the tenant on 29 March 2021 did not constitute proper notice for the purpose of s 53(1) of the RT Act. Section 53(1) provides: A landlord must give the tenant written notice of the landlord's intention to sell the residential premises not later than 14 days before the premises are first made available for inspection by prospective purchasers.
The Tribunal found: "The format of the written notice is not specified but that does not mean that the requirement for written notice can simply be dispensed with. I am aware of cases with a dispute related to notice being provided by email, SMS message, notice spread over several such messages and similar issues, but in each case the notice has been provided in writing even if that 'writing' is in the electronic form. That is not the case here."
The landlord submits that s 53 of the RT Act is not "as prescriptive as with Notices to give effect to a Termination of a Tenancy under inter alia section 82 of the RT Act." The landlord relies upon authorities in other jurisdictions relating to different legislation to draw analogies with the RT Act.
The RT Act contains specific provisions for the service of notices and other documents. Section 223 relevantly states: (1) a notice or other document that is authorised or required by this Act or the regulations or a residential tenancy agreement to be given to or served on any person may be given or served by - (a) in the case of a natural person - (i) delivering it to the person personally, or (ii)… or (iii)… or (iv) sending it by post to the address specified… (v) sending it to an email address specified by the person for the service of documents of that kind,or (vi) any other method authorised by the regulations for the service of documents of that kind…
The Residential Tenancies Regulation 2019 (NSW) contains no provisions for the service of notices under s 53(1) of the RT Act other than as provided above.
The landlord relies upon the decision in Guirguis v Ten Twelve Pty Ltd [2012] FMCA 307 where the Federal Magistrates Court of Australia held that the requirements for a written termination notice under the Fair Work Act 2009 (Cth) was satisfied by text message on the basis that the text message "is a form of writing and therefore satisfied section 117 (1) of the [Fair Work Act 2009 (Cth)]".
The landlord also relies upon the decision in Avopiling (WA) Pty Ltd v Central Systems Pty Ltd [2015] WASC 82 where the court considered whether a contract had been created as a result of phone text messages relating to settlement of claims arising out of a contract. At [30] Allanson J said: "30. The question whether the parties had an intention to create a legally binding contract is determined objectively by drawing inferences from what they said and did in the course of their dealings. What would each party by its words and conduct, have led a reasonable person in the position of the other party to believe: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 [22); Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004]HCA 52; (2004) 219 CLR 165 (40] - [41]. To resolve this dispute the court does not search for uncommunicated motives or intentions: Ermogenous v Greek Orthodox Community of Inc [2002] HCA 8; (2002) 209 CLR 95 [25]. The parties being at odds on whether there was a legally binding contract formed, Avopiling, as the party asserting the contract, bears the onus of proof: see Ermogenous[26]. I am satisfied has proved an agreement."
Neither of these authorities bears upon the current issue, namely, whether the landlord complied with the requirements of the RT Act in relation to the mode of service of notice. The requirements are specific: there is no basis for circumventing the requirements set out in s 223 of the RT Act. Accordingly this ground of appeal is rejected, whether it constitutes an alleged error of law or of fact.

[10]

Alternatives within grounds 2 and 3

This could not be other than an alleged error of fact requiring leave to appeal. The appellant asserts that written notice informing of the sale was given on 9 April 2021. It is submitted that the Tribunal erred in not considering that such notice constituted proper notice under the RT Act, s 53(1), which thereby permitted the landlord to enter the property under s 55(2)(f) of the Act as from 22 April 2021, to carry out inspections; accordingly, there can be no breach of quiet enjoyment under the RT Act, s 50, after that date and breaches were limited to the inspections on 10 and 15 April 2021. On 9 April 2021 the landlord caused a "For Sale" sign to be erected on the premises. The Tribunal found that a note left at the premises by the managing agent on 8 April 2021 and read by the male tenant on 9 April 2021 was written notice of sale under the RT Act, s 53.
Section 55 relevantly provides: 55 Access generally by landlord to residential premises without consent … (2) A landlord, the landlord's agent or any other person authorised by the landlord may enter residential premises during a residential tenancy agreement without the consent of the tenant, and without giving notice to the tenant, only in the following circumstances - ... (f) if the landlord and tenant fail to agree under section 53 to show the premises to prospective purchasers, not more than twice in any period of a week, if the tenant is given not less than 48 hours notice each time.
The right to enter pursuant to section 55(2)(f) is predicated upon the landlord first giving notice under s 53(1). Section 55(2)(f) provides a right to the landlord provided the landlord and tenant had "failed to agree under s 53…". The evidence and the Tribunal's findings made it clear there was a failure to agree. The right provided by 55(2)(f) requires not less than 48 hours' notice "each time" in respect of inspections. The notice under s 53 cannot operate as the notice under s 55(2)(f). It would defeat the wording and policy of s 55(2)(f). If such an interpretation was correct: there would not be the mechanism for general notice of sale, opportunity to agree inspection dates, and a procedure if the landlord and tenants failed to agree
The appellant asserted in its written submissions on appeal that "there [was] sufficient evidence before the decision maker to have found the respondents had also been provided with notice under s 55(2)(f) of the RT Act". The assertion in that submission was not supported by detailed reference to the evidence before the Tribunal. Such is required to establish the alleged error of fact. The Tribunal, and the Appeal Panel, is not obliged to trawl the evidence at large to assess the correctness of an assertion about the evidence in a submission. The Tribunal's finding that the sale notice of 8 April 2021 contained reference to inspection dates and auction date infers that there were no other notices, supporting the Tribunal's finding of breach of s 55(2)(f). Accordingly there is no merit in the submission that the breach of quiet enjoyment did not apply to inspections after 22 April 2019.

[11]

Grounds 2 to 4 and 7: Breach of quiet enjoyment

Again, this could not be other than an alleged error of fact. The Tribunal found that the tenant's right to quiet enjoyment provided by clause 14 of the lease was breached in three respects: 1. when interested parties were brought to the premises by the landlord's agent on: 10 April 2021; 15 April 2021; 22 April 2021; 24 April 2021; 29 April 2021; 1 May 2021; 6 May 2021, and 8 May 2021; and 2. when photographs were taken by the landlord's agent and published online which showed personal possessions of the tenant; and 3. when the landlord's solicitor, on the landlord's instructions, wrote what were described by the Tribunal as "inappropriate and incorrect statements" to the tenant.
In finding that compensation should be assessed in the sum of $3,500 the Tribunal said: "I arrive at that figure not by a process of mathematical calculation but on the grounds that in my opinion the landlord's breaches were more than minor but were well below justifying an award in line with the jurisdiction in the RT Act ."
The landlord submits that : 1. there was insufficient evidence supporting a factual finding that the landlord had breached quiet enjoyment by placing photographs of the personal possessions on the website; 2. the award of $3,500 was not fair or reasonable and there was insufficient evidence to make such finding or award.
An award of damages is discretionary in the context of the Appeal Panel's restricted right on appeal to interfere with findings of fact. An appellate hearing will not interfere with the exercise of discretion unless it is shown that the decision-maker has misunderstood the evidence or applied a wrong principle or taken into account matters which were irrelevant or failed to take into account matters which were relevant. If this occurred, there would be an error of law affecting exercise of jurisdiction: see House v R (1936) 55 CLR 499; [1936] HCA 40. A claim for unreasonableness or irrationality may amount to no more than a disagreement with the decision: in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, the High Court of Australia observed that expressions such as "illogical or unreasonable, or irrational, when used in challenging a decision may merely be an emphatic way of saying that the decision is wrong": see Gleeson CJ and McHugh J at 626.
This ground of appeal requires the Tribunal to consider the evidence before the Tribunal member to satisfy itself that the Tribunal member did not err in the ways that would constitute an error of law in the exercise of discretion. That evidence was as follows: 1. as to inspections: there was ample evidence to show that the agent had attended the premises with potential buyers, prior to the written notice required by s 53 of the RT Act; there was no evidence pointed to of the minimum 48 hour notice required "each time" by s 55(2)(f); further, a building inspector entered the property to complete a building inspection on Saturday 1 May 2021 without notice, and without consent of the tenant; 2. as to photographs: the tenant had agreed to photographs being taken but specifically requested that photographs should not be published showing their personal possessions; inadequate time was permitted for the tenant to remove such possessions with the consequence that they were shown on websites; 3. as to correspondence, the landlord's solicitor's letters, the subject of the Tribunal's finding that they contained "inappropriate and incorrect statements" were entirely consistent with that finding when their content was looked at. They included a claim for aggravated damages and reference to police action. Such letters were written on the instructions of the landlord. Such letters accused the tenants of unreasonable conduct, when the tenants were acting entirely within their rights. One such letter sent on 30 April 2021 at 8:28 PM stated, inter alia: "Please be advised I am just now notifying NSW Police of your damage to my client's property that I am instructed about. If the police do not proceed with criminal charges in regards to the damage or other damage you have caused to my client's property, my client will be considering bringing a private criminal prosecution."
The tenant responded, pointing out that the legal requirement to provide a notice under s 53(1) had not been provided.
The landlord caused another letter to be sent on 5 May 2021 alleging breaches of the residential tenancy agreement and containing the statement: Please ensure that the premises are kept reasonably clean and including for tomorrow's inspection.
A further letter was sent by the landlord on 6 May alleging "continued attempts to harass and intimidate the Landlord (and his agents)." Such letter alleged that the tenant had reneged on agreements to provide access and challenged the basis of the tenant's objection that a notice had not been provided under section 53(1).Threats of defamation proceedings were also included in such letter. Further letters followed in a similar vein.
The Tribunal was entitled to regard each of the above events as a breach of the tenants' quiet enjoyment. The Tribunal was entitled to exercise its judgement as to the effect of each of these aspects of the landlord's conduct. As was observed by Lord Dunedin in Admiralty Commissioners v SS Valeria (Owners) [1922] 2 AC 242 (HL) said at 248: "[I]n calculating damages you are to consider what is the pecuniary sum which will make good to the sufferer, so far as money can do so, the loss which he has suffered…"
The assessment of damages is a matter for the Tribunal. It rejected the tenant's claim for $15,000 by way of damages, and considered that $3,500 was appropriate. There is no demonstrable error in the discretion so exercised.
In Byrnes v Jakona [2002] FCA 41, Allsop J referred to the task of assessing damages in the context of a lessor's breach of quiet enjoyment and said at [110]: "The task necessitates what is likely to have occurred in the absence of those inferences. The difficulty in such an estimation does not relieve the Court from the responsibility of estimating them as best it can, even if this involves a measure of guesswork rather than estimation. In carrying out this task the Court is, in effect, doing what is required of a jury when it may have to form conclusions on slender materials and make allowances for contingencies. If some broad estimate is capable of being made in this way, it should be."

[12]

Ground 6: Interference with right to Quiet Enjoyment Must Be "unreasonable"

The landlord claims, as another alleged error of fact, that the breach of quiet enjoyment must be more than mere inconvenience and must be unreasonably breaching quiet enjoyment of the premises. The landlord relies upon the observations in Lewin v Zhou [2018] NSWCATCD 54 at [36].
The Tribunal found: "In my opinion and I find the tenants, by contrast with the landlord and his solicitor, in general showed a conciliatory and positive attitude in relation to resolving the landlord's wish to sell the property. This is obvious when reading the email and SMS correspondence produced by both parties."
The facts in Lewin v Zhou bear no resemblance to the present circumstances under review. In that matter, the complaints by the tenant were found to be trivial, resulting in award of compensation of $50 in favour of the tenant. At [36] of the decision there are references to authorities which address the question of "quiet enjoyment". References are also made to an article entitled "The Price of Quiet Enjoyment" (1999) 7 APLJ 155 by A Rissman. At [37] a quote from such article is reproduced stating: "It was said in Brown v Flower [1911] 1 Ch 219 at p228 that a "mere interference with the comfort of persons using the demised premises by the creation of a personal annoyance such as might arise from noise, invasion of privacy or otherwise is not enough to amount to a breach of the covenant of quiet enjoyment. Something more than a mere inconvenience is required."
At paragraphs [38] and [39] in Lewin v Zhou the following is stated: "[38] In Mc C v Director of Housing [2009] VCAT 2748, the Victorian Civil and Administrative Tribunal cited Southwark [Southwark LBC v Tanner [2001) AC 1] and that article before continuing at [41]: it seems to me that the term quiet enjoyment is not an absolute term, but that a breach of quiet enjoyment would have to be an interference that is unreasonable or significant in some way and more than inconvenience. This is consistent with contemporary living arrangements requiring a degree of give-and-take, of tolerance regarding the behaviour of neighbours. The Tribunal there held that bird noises, flood lighting and minor invasions of privacy by neighbours are mere inconveniences, and do not amount to a breach of quiet enjoyment. [39] Lastly, it has been held in Ciesiolka v Department of Housing NSW [2010] NSWCTTT 497 that the sending of three rental arrears letters, three water rates arrears letters and a notice of termination was not a breach of the tenant's right to quiet enjoyment. Similarly, in Shirvington v Commonwealth (No 2) [2015] FCCA 522 the Federal Circuit Court held that there was no breach of quiet enjoyment in the landlord serving a notice of termination and a letter indicating its intention to seek possession of the premises."
Each case will turn on its facts: see Glasshouse Investments Pty Ltd v Mpj Holdings Pty Ltd [2005] NSWSC 456 at [17]. The landlord has referred the Tribunal to several authorities by way of example where breaches of quiet enjoyment have been considered: see for example Spathis v Hanave Investment Co-Pty Ltd [2002] NSWSC 304 at [124]-[152], where all the essential authorities are discussed.
The landlord has referred the Appeal Panel to the decision in Ciesiolka v Housing NSW (Social Housing) [2010] NSWCTTT 497, in which the leading authorities have again been considered, and Shirvington v Commonwealth of Australia (No 2) [2015] FCA 522. At [16]-[18], Perram J, in considering whether an injunction should be granted to restrain a breach of quiet enjoyment, found that three letters sent by the landlord threatening to commence proceedings which were designed to obtain possession could not amount to an interference with the tenant's right to quiet enjoyment.
The landlord has referred the Appeal Panel to numerous other decisions, for example Martin's Camera Corner Pty Ltd v Hotel Mayfair Ltd (1976) 2 NSWLR 15, where the issue was alleged breach of covenant due to water seepage. The water seepage was found to be a breach of quiet enjoyment. In the decision, Yeldham J referred to the definition of the covenant for quiet enjoyment as set out in Halsbury's Laws of England (3rd edition), vol 23 (1964) at [1298]-[1299] as follows: "The covenant for quiet enjoyment operates according to its terms to secure the tenant, not merely in the possession, but in the enjoyment of the premises for all usual purposes; and where the ordinary and lawful enjoyment of the demised premises is substantially interfered with by the acts or omissions of the landlord all those lawfully claiming under him, the covenant is broken, although neither the title to, nor the possession of the land may be otherwise affected… If the act causes physical interference with the demised premises, there is a breach of covenant, notwithstanding that the act itself is done off the premises."
What constitutes a breach of quiet enjoyment was considered in Kenny v Preen (1963) 1 QB 499 at 512-3 by the Supreme Court of Judicature, Court of Appeal where Lord Justice Pearson said: "I would decide on two grounds in favour of the tenant's contention that there was, in this case, a breach of the covenant for quiet enjoyment. First, there was a deliberate and persistent attempt by the landlord to drive the tenant out of her possession of the premises by persecution and intimidation, and intimidation included threats of physical eviction of the tenant and removal of her belongings. In my view that course of conduct by the landlord seriously interfered with the tenant's proper freedom of action in exercising her right of possession, tended to deprive her of the full benefit of it, and was an invasion of her rights as tenant to remain in possession undisturbed, and so would in itself constitute a breach of covenant, even if there were no direct physical interference with the tenant's possession and enjoyment… Secondly, if direct physical interference is a necessary element in the breach of covenant that element can be found in this case to a substantial extent, as I have already stated."
The conduct of the landlord under review in the above proceedings was the persistent claim by the landlord of threats to evict the tenant on numerous occasions contained in letters sent by the landlord. Such conduct is not dissimilar to that which has occurred in the present proceedings.
The remaining decisions relied upon by the landlord such as Little v Neuweger (Tenancy) [2002] NSWCTTT 850 and Jones v Director of Housing (Residential Tenancies) [2013] VCAT 2184 are further examples but these decisions otherwise do not assist.
The landlord submitted that, at its highest, a breach of quiet enjoyment occurred on 15 April 2021, but not on 22 and 24 April and on 1, 6 and 8 May 2021. The Tribunal's findings concerning the range of breach have been set out earlier in these reasons, which included unhelpful correspondence from and for the landlord and the conciliatory attitude towards resolution in the tenants' correspondence. The Tribunal concluded: "With great respect to the parties, the tone and content of much of this correspondence, particularly on the part of the landlord or his solicitor, was not conducive to the parties quickly resolving their differences. In view of the previous findings and the fact that the tenants and the landlord lodged their applications in the Tribunal Registry on 14 and 15 April 2021 respectively, and also given the fact that both parties amended their respective applications immediately prior to the hearing, I do not propose to summarise and comment in detail on the events between those dates [10-24 April 2021]."
The Tribunal found the conduct of the landlord to constitute a significant interference with the quiet enjoyment to which the tenant was entitled, on all the dates referred to in the decision. On the Tribunal's findings that have not been successfully challenged on appeal (as we have already found), the Appeal Panel considers that there was unreasonable, not merely inconvenient, interference with the tenants' quiet enjoyment.

[13]

Alternative ground 1: estoppel

The landlord claimed, before the Tribunal, that the tenants were bound by their conduct in discussions with the managing agent in March and April 2021 such as to create an estoppel preventing them from denying that they had notice of the sale.
The Tribunal rejected the claim for equitable relief stating: "I also do not accept Mr Neagle's submission that sec 38 of the CAT Act gives the Tribunal equitable jurisdiction to make a finding that verbal notice will satisfy the requirements of section 53 (1) of the RT Act."
This raises an alleged error of law as to the Tribunal's jurisdiction with respect to estoppel claims. If jurisdiction is made out then the factual allegations were not considered by the Tribunal, giving rise to an error of law.
Estoppel may arise by conduct: it can operate to prevent a person acting inconsistently when they have allowed another person to believe and assume stated facts: see Amalgamated Investment and Property Co (in Liq) v Texas Commerce International Bank [1982] QB 84.
However, the jurisdiction of this Tribunal is confined by the provisions of the CAT Act, s 28. Section 28 provides: 28 Jurisdiction of Tribunal generally (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. (2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction - (a) the general jurisdiction of the Tribunal, (b) the administrative review jurisdiction of the Tribunal, (c) the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction), (d) the enforcement jurisdiction of the Tribunal. (3) Subject to this Act and enabling legislation, the Tribunal has jurisdiction in respect of matters arising before or after the establishment of the Tribunal.
It should be noted that the guiding principle stated in s 36 of the CAT Act and the consonant objective in s 3(d) of the CAT Act do not invest jurisdiction in the Tribunal but, rather, guide the exercise of power within jurisdiction.
It should be noted that the CAT Act does not invest the Tribunal with equitable jurisdiction. Prior to 2018 there was a belief that the Tribunal could grant relief against forfeiture, an equitable remedy: see Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289. Such decision rested on the basis that the Tribunal could be regarded as an inferior court within the meaning of the Law Reform (Law and Equity) Act 1972 (NSW). Section 6 thereof stated: 6 Defence in inferior court Every inferior court shall in every proceeding before it give such and the like effect to every ground of defence, equitable or legal, in as full and ample manner as might and ought to be done in the like case by the Supreme Court under the Supreme Court Act 1970.
There are two reasons that such decision does not assist the landlord.

[15]

Is the Tribunal an "inferior court"?

Since the decision of the New South Wales Court of Appeal in Attorney-General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 ("Gatsby"), it is doubtful whether the Tribunal constitutes an "inferior court" for the purposes of the Law Reform (Law and Equity) Act. The Act does not define the term "inferior court". Gatsby found that the Tribunal is not a court of a State for the purposes of Chapter III of the Commonwealth Constitution and section 39 of the Judiciary Act 1903 (Cth).
Whilst the decision is confined to the interaction between the Commonwealth Constitution and a State Tribunal and acknowledges that the Tribunal exercises State judicial power in some of its statutory functions (see also State Rail Authority of NSW v Consumer Claims Tribunal (1988) NSWLR 473 ), it raises the question again whether the Tribunal can be considered to be a court or an inferior court for the purposes of State legislation unless such legislation specifically refers to it when investing it with jurisdiction, and whether the matter of purported investment of jurisdiction can be conferred other than on a State court.
Various decisions have debated the question whether the Tribunal is a "court". In Draybi Bros Pty Ltd v Bede Diab and John Maklouf, Jihad Dib, Mohammad Chahroukdraybi Bros Pty Ltd [2014] NSWCATCD 67 the Tribunal at [90]-[119] considered this question and concluded that the Tribunal had jurisdiction to determine a defence of equitable estoppel.
The decision in Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2014] NSWCATAP 85 reached the same conclusion with relief against forfeiture. The issue of jurisdiction of the Tribunal to grant relief against forfeiture was not an issue raised on appeal to the Supreme Court. Nevertheless, this question was fully considered by the Supreme Court in Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 at [67] - [76], where White J said at [75]: "In my view, irrespective of the power to grant statutory remedies, it has jurisdiction under section 6 of the Law reform (Law and Equity) Act and would be required to consider a defence to the owners' claim for possession that the lessee was entitled to relief in equity against forfeiture."
Relief against forfeiture is a distinctive remedy and the Tribunal has jurisdiction under s 28(3) of the CAT Act "in respect of matters arising before or after the establishment of the Tribunal".
Whilst the Appeal Panel is bound to follow the decision of the Supreme Court of New South Wales, there is doubt that the decision is sustainable. Whilst the Interpretation Act expressly recognises the power of courts and tribunals to make their own rules (see s 78) the reference to the judiciary applies to courts only. In section 21, "rules of court" are stated to be as follows: 21 Meanings of commonly used words and expressions (1) In any Act or instrument - … rules of court, in relation to a court or tribunal, means rules made by the person or body having power to make rules regulating the practice and procedure of the court or tribunal.
There is therefore a recognised distinction between a court and a tribunal.
The Constitution Act 1902 (NSW) defines "judicial office" in s 52 as being the office held by a Chief Justice, President of the Court of Appeal, Justice Deputy Chief Judge, and other judges of courts which are named in s 52. No member of the Tribunal is included in the definition of "judicial office". However, the President of the Tribunal must be a Judge of the Supreme Court of New South Wales: see CAT Act, s 13(1).
For present purposes, the Appeal Panel, accepting that the Tribunal is bound by the decision in Steak Plains Olive Farm, concludes that it has power invested by s 6 of the Law Reform (Law and Equity) Act. The Tribunal does not have general power to grant equitable relief. Since the landlord in substance relied upon estoppel as a claim rather than a defence, it cannot be raised in the Tribunal.

[19]

Costs

Each party has claimed an award of costs in their favour, and has made extensive written submissions in support of their or his claim for costs.
The Tribunal may award costs pursuant to s 60 of the CAT Act. An award of costs is in the discretion of the Tribunal, the only limitation being that the discretion is to be exercised judicially: see Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59. The general rule is that each party is to pay its own costs in this Tribunal; costs may be awarded if the Tribunal is satisfied that there are special circumstances warranting an award of costs; CAT Act. ss 60(3) specifies the matters to which the Tribunal must have regard when considering whether or not special circumstances exists.
"Special circumstances" must be out of the ordinary but "do not have to be extraordinary or exceptional": See CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31]; see also Megerditchian v Kurmond Homes Pty Ltd [2014] NSWATAP 120; SCC (Sam Construction Company) Pty Ltd v Wingate [2017] NSWCATAP 222 at [19] - [22]. An award of costs is compensatory, not punitive: see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998) HCA 11 per McHugh J at [67].
The tenants submit that special circumstances exist. What constitutes "special circumstances" has been the subject of considerable authority: see for example Council of the Law Society of New South Wales v Levitt [2017] NSWCATOD 126 at [17]; Gaynor v Burns [2015] NSWCATAP 150 at [16]-[19]; Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [76]. At the last mentioned reference, the [extant) President, Wright J observed: "[S]pecial circumstances" for the purposes of s 60(2), are those which are out of the ordinary but they do not have to be extraordinary or exceptional: see the Appeal Panel in CPD Holdings Pty Ltd v Baguley [2016] NSWCATAP 160 at [6]; citing the Court of Appeal in Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60] which concerned the same expression in the previous legislation governing the (then) Administrative Decisions Tribunal."
The tenants submit: that there has been an unnecessary and unrestrained expanse of authorities cited in the appellants' submissions on appeal; that the appellant has unnecessary prolonged the proceedings by lodging vast materials with the Appeal Panel, without apparent discernment of focus on the issues in dispute; that the appellant's grounds of appeal are lacking in substance, and that the appellant failed to comply with directions for the preparation of the proceedings for hearing including in respect of appropriately revisiting the grounds of appeal. In this respect, on 7 July 2021 the Tribunal directed the appellant to lodge and serve a copy of any amended notice of appeal by 14 July 2021: no such document was ever served.
The tenants have emphasised: that the voluminous material includes a 271 page appeal book with no attempt made by the appellant to identify materials unnecessary to be put to the Tribunal; that the landlord attempted to increase the material by "fresh evidence" which it suggested went to "issues of credit". The respondent has pointed to the decision in Insurance Australia Ltd t/as NRMA Insurance v Milton (No 2) [2016] NSWCA 173 in which the NSW Court of Appeal directed a special costs award be made against practitioners due to concerns raised about the volume of unnecessary material.
The Appeal Panel concurs with several of the respondent's submissions, especially in relation to the volume of material. None of the numerous grounds of appeal have been successful. Dealing with each ground and answering the vast number of authorities relied upon by the unsuccessful appellant, has clearly incurred avoidable costs. The appellant has made the proceedings unduly complex, and by its conduct, has unnecessary disadvantaged the respondent. The appellant's conduct of the proceedings has been contrary to the guiding principle established in section 36 (3) of the act.
Accordingly, the Appeal Panel determines that special circumstances have been established, that the appellant's claim for costs should be dismissed and that the tenants claim for costs should be upheld.
Accordingly the appellant is to pay the costs of the respondent of this appeal.

Pongrass v Small

At a glance

Court

Decision date

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Catchwords

Judgment (21 paragraphs)

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Legislation Cited (13)

Cases Cited (61)

Cited By (9)