Pont v Connolly-Bishop

Tribunal proceedings and decision

1. On 31 October 2017, Ms Connolly-Bishop lodged an application in the Tribunal against Ms Pont, seeking $248 for rent arrears from 12 October to 27 October, electricity charges of $30 and cleaning costs of $66.00. That application was subsequently withdrawn.
2. Ms Pont's application was lodged on 23 October 2017. The matter was first listed before the Tribunal on 13 November 2017. In adjourning the matter for hearing, the Tribunal noted that Ms Pont claimed: 1. Compensation in the sum of $4000; 2. A declaration under s 111 of the RT Act that a termination notice given by Ms Connolly-Bishop was not valid; and 3. Return of the bond.
3. The matter was listed for hearing before the Tribunal on 28 February 2018. At the end of the hearing, the Tribunal reserved its decision.
4. The Tribunal's reasons for decision were published on 12 April 2018. The Tribunal made the following orders: 1. Leave is granted under section 45 of the Civil and Administrative Tribunal Act 2010 (sic) to applicant to be represented by Bruce Pont. 2. The respondent is to pay the applicant the sum of $704.89 immediately. 3. The balance of the claim is dismissed.
5. In relation to the Tribunal's jurisdiction, the Tribunal found that there was a sub-tenancy agreement between Ms Connolly-Bishop and Ms Pont that was sufficiently in writing as to constitute a written residential tenancy agreement. The Tribunal found that it had "jurisdiction to treat the applicant / sub-tenant as a "tenant" and the respondent / Head Tenant as a "landlord" for the purposes of the Act". In effect, the Tribunal found that the agreement between the parties was a residential tenancy agreement and that the Tribunal had jurisdiction to hear and determine Ms Pont's application: See [51] and [52] of the reasons for decision.
6. In relation to the terms of the residential tenancy agreement, the Tribunal found at [54]: 54. I find that the sub-tenancy agreement was partly in writing and partly oral. I find that the terms of the sub-tenancy were as follows: (1)Shared and fully furnished premises (2) A fixed term six month agreement for the period 8 July 2017 to 8 January 2018 (3) Weekly rent of $290.00 to be paid fortnightly (4) Bills $20.00 per month (internet and netflix) (5) Bond of $1000.00 was payable (6) Use of Storeroom (Sub-tenancy Agreement)
7. In relation to how the sub-tenancy agreement came to an end, the Tribunal found at [61] to [62] that: 61 For the following reasons I find that the Sub-tenancy Agreement terminated prior to 27 October. I find that the notification on 6 October by the Head Tenant to the applicant of her intention to terminate the Head Tenancy Agreement constituted a repudiation by the Head Tenant of the Sub-tenancy Agreement. The applicant considered the possibility of entering into a tenancy agreement directly with the Owner, however chose not to do so. I find that the applicant accepted the Head Tenant's repudiation on 11 October when she informed the Head Tenant she would be vacating on 15 October 2017 (which she then did on 15 October). This acceptance of the Head Tenant's repudiation on 11 October terminated the Sub-tenancy Agreement under section 81(4)(g) of the Residential Tenancies Act effective on that date. 62 It follows that the applicant was free to vacate the Premises on 15 October without being liable to pay a break fee or compensation. It follows that I find that the sub tenant did not abandon the sub-tenancy.
8. The Tribunal identified the various components of Ms Pont's compensation claim and rent reduction claim, which were argued in the alternative. The Tribunal found (at [66]) that the Tribunal did not have jurisdiction to determine a rent reduction application, as the agreement between the parties terminated on 11 October 2018; that is, before the application was lodged.
9. The Tribunal went on to make findings in relation to Ms Pont's claim for compensation, at [67] to [92] of the reasons for decision and findings in relation to claims Ms Connolly-Bishop had made on the rental bond, at [93] to [102].
10. The Tribunal accepted some aspects of Ms Pont's claim for compensation and rejected others, generally on the basis that the Tribunal considered that insufficient evidence had been provided to support the claimed losses.

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) NCAT Act.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on that basis that: 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).
4. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
5. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
6. In Collins v Urban, the Appeal Panel stated at [84] that 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.
7. In cases involving a self-represented litigant who cannot clearly articulate grounds of appeal and distinguish between questions of law and errors of fact in relation to which leave to appeal is required, it is appropriate for the Appeal Panel to consider the material provided on the appeal to identify what the grounds of appeal are (Prendergast at [12]).

Submissions and evidence

1. In deciding the appeal, we have had regard to the following:

• The Notice of Appeal received on 30 April 2018;
• The Reply to Appeal received on 17 May 2018;
• Submissions made on behalf of Ms Pont received on 31 May 2018;
• The procedural directions made at the call over on 10 May 2018;
• Material on the Tribunal's file RT 17/45182.

Notice of Appeal

1. The Notice of Appeal was lodged within the 14 day time period specified in cl 25(3) of the Civil and Administrative Tribunal Rules 2014 (the Rules).

Grounds of Appeal

1. The grounds of appeal as set out in the Notice of Appeal are lengthy and somewhat discursive. At the hearing, we identified the main bases for the appeal as follows: 1. Ms Pont's lack of access to a number of documents produced under summons by the owner's managing agent, which led to a denial of procedural fairness. 2. The Tribunal's failure to find that Ms Connolly-Bishop had contravened s 26 of the RT Act. 3. The Tribunal's finding that it did not have jurisdiction to consider Ms Pont's rent reduction claim.
2. Otherwise, the basis for the appeal is that the Tribunal made a range of factual errors in its reasons for decision and did not accept Ms Pont's evidence in relation to her losses. The specific finding of fact referred to at the hearing which Ms Pont claims is in error is the finding that, at the time Ms Pont vacated the premises, her rent was only paid until 11 October 2017: [74] to [76] of the reasons for decision.
3. Ms Pont also seeks leave to appeal on all three grounds specified in cl 12 of Schedule 4 of the NCAT Act.

Leave to be represented

1. At the beginning of the hearing, Ms Pont sought leave to be represented by her father, Bruce Pont, who represented her during the proceedings before the Tribunal at first instance. Ms Pont said that she wanted her father to represent her because she works long hours as a personal trainer. She claimed that she was not able to articulate her case. Ms Pont stated that her father is a builder and not a lawyer and that she needed to be represented because Ms Connolly-Bishop is an experienced tenant who "knows how the process works".
2. Ms Connolly-Bishop objected to Ms Pont's application. She claimed that Ms Pont's case had been "constructed" by Mr Pont and stated that she doesn't have any more understanding of residential tenancy law than has Ms Pont.
3. We decided to refuse leave for Ms Pont to be represented. It appeared to us that Ms Pont was able to articulate the basis for the appeal and would not be disadvantaged if she did so, particularly in circumstances where Ms Connolly-Bishop was representing herself. There was no evidence before us to support Ms Pont's claim that Ms Connolly-Bishop had any particular experience in residential tenancy law. Further, Ms Pont had the benefit of the written material prepared by her father and would have his advice and assistance during the hearing. Mr Pont sat next to Ms Pont during the appeal hearing and frequently assisted her to answer our questions and to make submissions.

Ground 1 - access to summonsed material

1. Ms Pont claims that at the hearing before the Tribunal, Ms Connolly-Bishop objected to her having access to some of the documents produced under summons by the owner's managing agent, on the basis that the material was private or personal. She further claims that she reserved her "right" to access to this material and sought access to it on the day after the hearing, when the Tribunal's decision was reserved. Attached to the Notice of Appeal is an email dated 9 February 2018 in support of that proposition. We note that that email is not on the Tribunal file and was not referred to by the Tribunal in the reasons for decision.
2. In the ordinary course of events, when there is an objection to a party having access to documents produced under summons, the Tribunal hears and rules on that objection. It is not clear that such a process occurred in this case. This could potentially amount to a denial of procedural fairness.
3. However, Ms Pont confirmed that the reason she sought access to the documents concerned was to support her claim that Ms Connolly-Pont had contravened s 26 of the RT Act. When we explained to Ms Pont that s 26 of the RT Act is a penalty provision, that the Tribunal has no power to impose civil penalties for breach of the section and that the Tribunal impliedly accepted that Ms Connolly-Bishop had breached the tenancy agreement between them in relation to lack of access to the storage room, Ms Pont confirmed that she did not press Ground 1.

Ground 2 - Contravention of s 26 RT Act

1. Section 26 RT Act relevantly provides: 26 Disclosure of information to tenants generally (1) False representations A landlord or landlord's agent must not induce a tenant to enter into a residential tenancy agreement by any statement, representation or promise that the landlord or agent knows to be false, misleading or deceptive or by knowingly concealing a material fact of a kind prescribed by the regulations. ….. Maximum penalty: 20 penalty units.
2. Ms Pont's position is that 1. She was induced to enter into the residential tenancy agreement with Ms Connolly-Bishop by the promise of access to the storage room and a second bathroom; 2. Ms Connolly-Bishop knew at the time of the agreement was entered into that the store room and attached bathroom could not be used; 3. Ms Connolly-Bishop therefore engaged in misleading and deceptive conduct; and 4. The Tribunal should have made findings in relation to contravention of s 26.
3. The problem with Ms Pont's position is that, as noted above, s 26 is a penalty provision. Proceedings in relation to contravention of penalty provisions are heard in the Local Court or the Supreme Court, not in the Tribunal: s 202 RT Act. In such circumstances, there was no obligation on the Tribunal to make findings in relation to an alleged contravention of s 26, as the Tribunal cannot impose a penalty for contravention of that section.
4. After we explained s 26 to Ms Pont, she confirmed that she no longer pressed the Tribunal's failure to make findings that Ms Connolly-Bishop had contravened that section as a ground of appeal.

Ground 3 - Rent reduction claim

1. Section 44(3) of the RT Act provides: (3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement. (Emphasis added)
2. As noted above, the Tribunal found that the six month fixed term residential tenancy agreement between the parties ended when Ms Connolly-Bishop repudiated the agreement and Ms Pont accepted the repudiation and vacated the premises: [61] to [62] of the reasons for decision and [17] above.
3. Section 81(1) of the RT Act specifies the circumstances in which a residential tenancy agreement comes to an end. These circumstances includes 81(4)(g); that is, when "disclaimer occurs (such as when the tenant's repudiation of the tenancy is accepted by the landlord)". The tenant's acceptance of repudiation of the tenancy by the landlord is equally an example of disclaimer.
4. Such a situation occurred in another matter that was the subject of an appeal to the Appeal Panel, Corcoran v Far [2018] NSWCATAP 13. In that matter, the landlord had excluded the tenant from the premises and subsequently refused to allow him to return. The Appeal Panel found, at [58] to [59]: [58] …. This conduct amounted to a repudiation of the residential tenancy agreement which gave rise to an entitlement in the appellant to accept the repudiation and terminate the residential tenancy agreement or, alternatively, elect to affirm the residential tenancy agreement and seek appropriate orders from the Tribunal. In addition, the party not in default is entitled to claim damages: McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457 at 476-477. [59] Where there is repudiation, the party not in default must make an election. In Majik Markets Pty Ltd v Motor Repairs Pty Ltd (No 1) (1987) 10 NSWLR 49 Young J (as he then was) said: "When a party commits a breach going to the heart of the contract or repudiate his obligations then the situation arises under which the so-called innocent party has to elect whether or not to put an end to the contract. The time for making an election will not arise until a reasonable time has elapsed for the matter to be properly considered… After that time the innocent party must do one of two things, either elect to affirm the contract or to put an end to it. That election can be made by an intentional statement or by action or by conduct. That election must be communicated and is not complete until it is communicated.… All that is meant by "communication" is that the fact of election must come to the repudiating party's attention. It matters not whether the communication came from the innocent party or from a third party."
5. We see no error in the Tribunal's finding that Ms Connolly-Bishop repudiated the tenancy agreement and that Ms Pont accepted the repudiation by advising Ms Connolly-Bishop that she would vacate the premises on 15 October 2017. We therefore agree with the Tribunal's finding that the tenancy agreement between the parties terminated upon acceptance of the repudiation, in accordance with s 81(4)(g) of the RT Act.
6. As Ms Pont did not lodge an application until 23 October 2017, the application was not lodged before the end of the tenancy agreement in accordance with s 44(3) of the RT Act. There was therefore no error in the Tribunal stating that it had no jurisdiction to determine the application for rent reduction and instead determining Ms Pont's claim for compensation for breach of the tenancy agreement.

Other grounds of appeal

1. Ms Pont's other grounds of appeal are in effect objections to a range of findings of fact made by the Tribunal. Except in relation to one issue, which we deal with below, we perceive no error in the Tribunal's findings of fact or in its application of relevant law to those findings of fact.
2. The only specific finding of fact that was pressed as an error in oral submissions at the appeal hearing was the finding that, as at the date possession was given on 15 October 2017, rent was paid until 11 October 2018. As a consequence of this finding, the Tribunal found that Ms Pont was not entitled to a refund of $331 from the rental bond, being the equivalent of rent from 12 October to 15 October. The Tribunal found that Ms Connolly-Bishop was entitled to retain this amount from the rental bond.
3. Ms Pont submitted that the evidence relied on by the Tribunal, specifically an email from her father, was in error and that the true position in relation to the date rent was paid to was reflected in other evidence before the Tribunal, namely her bank records.
4. An examination of the reasons for decision (at [74]) indicates that Ms Pont's argument that rent was paid to 15 October 2017 was based on her claim that she paid four days rent at the start of her tenancy which she should not have been obliged to pay and which "cancelled her obligation to pay four days rent at the conclusion of the sub-tenancy". The Tribunal did not accept this proposition and specifically found that rent was payable from 8 July 2017. We see no error in the Tribunal's finding of fact in that regard.
5. In any event, leave to appeal would be required to challenge the Tribunal's findings of fact in this regard. For the reasons set out below, we would not grant leave to appeal even if Ms Pont could establish that one of the bases for leave to appeal was established.

Electricity charges

1. Ms Connolly-Bishop withheld $197 from the rental bond to cover estimated electricity charges. The Tribunal found (at [99]) that Ms Connolly-Bishop was entitled to claim electricity charges. This was on the basis that it was a term of the sub-tenancy agreement that Ms Pont pay one third of the electricity bills.
2. The problem with this finding is that it ignores s 38(1)(a) of the RT Act which states that a tenant must pay all charges for the supply of electricity to the tenant at the residential premises "if the premises are separately metered" and s 40(1)(c) of the RT Act which states that a landlord must pay all charges for the supply of electricity to the tenant at the residential premises if the premises "are not separately metered". Both s 38 and s 40 are terms of every residential tenancy agreement.
3. Section 21(1)(a) of the RT Act provides that a term of a residential tenancy agreement is void to the extent to which it is inconsistent with any term included in the agreement by the Act or the regulations. This means that a term that requires a tenant to pay electricity charges is void unless the premises occupied by the tenant are separately metered.
4. Ms Pont was occupying the same premises as Ms Connolly-Bishop. It is not in dispute that there was no separate meter in the premises that was measuring only Ms Pont's usage. In these circumstances, we conclude that the term of the sub-tenancy agreement that Ms Pont pay one third of the electricity bills was void. Ms Connolly-Bishop was therefore not entitled to withhold part of the rental bond to cover electricity charges. We are satisfied that the Tribunal did not apply the relevant law when determining Ms Pont's liability for electricity charges.
5. Ms Pont disputed that she was liable to pay electricity charges in the Notice of Appeal, although not for the reasons set out above. Given that Ms Pont was not represented, it was appropriate for us to raise the issue at the appeal hearing. Ms Connolly-Bishop stated that she understood and accepted what we put to her. She indicated that she did not oppose being ordered to refund a further $197 of the rental bond to Ms Pont.
6. We have therefore partly allowed the appeal on this basis. As it is not in dispute that Ms Connolly-Bishop has complied with the money order made by the Tribunal, we have made a money order to cover the electricity charges withheld from the rental bond.

Leave to appeal

1. As noted above, leave to appeal from a decision made in the Consumer and Commercial Division of the Tribunal can only be granted in accordance with cl 12 of Schedule 4 to the NCAT Act; that is, if the appellant may have suffered a substantial miscarriage of justice because the decision is not fair and equitable, because it is against the weight of evidence or because significant new evidence is now available which was not reasonably available at the time of the hearing.
2. We are not satisfied that the decision was not fair and equitable or that it was against the weight of evidence. This is so even though the Tribunal rejected elements of Ms Pont's claim for compensation.
3. Ms Pont provided new evidence on the appeal, specifically a number of text messages to support her claim for compensation for loss of income. We are not satisfied that that evidence was not reasonably available at the time of the hearing.
4. We are therefore not satisfied that Ms Pont has established a basis for leave to appeal. However, even if a basis for leave to appeal had been established, we would not grant leave to appeal because we are not satisfied that the criteria for the exercise of the discretion to grant leave to appeal (as set out in Collins v Urban and at [26] above) have been met. Leave to appeal is therefore refused.

Orders 1. Leave for the appellant to be represented by Bruce Pont is refused. 2. The appeal is allowed in part. 3. The respondent is to pay the appellant $197 within 14 days of the date of publication these orders. 4. The appeal is otherwise dismissed.

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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: 28 June 2018