Quader v Bell

Notice of Appeal and submissions of the parties

1. In his Notice of Appeal, the appellant said that the orders of the Tribunal should be set aside. At Item 5C of the Notice of Appeal he said the following orders should be made: 1 The Termination was Retaliatory and an order to VACAT (sic) is dismissed; 2. The repairs requested by the tenant are warranted, outstanding and should have been carried out by Quest Realty and the landlord. 3 The rent of $490 per week should have been reduced to $300 until repairs requested are carried out and completed. Since the Tenant vacated on 17 May 2016 he should be compensated accordingly that it is for each repair or reduction in services claimed based on its percentage of the rental and the time period between the date it was requested and the vacationing date of 17 May 2016. 4. Rent should be paid at (sic) Tribunal until repairs are carried out in its entirety.
2. At the commencement of the appeal, the appellant was asked whether he maintained his appeal in respect of orders 1, 3 and 4 to which he said yes. The appellant was also asked to identify the defects in the premises about which he complained in respect of his claim that an order should be made to reduce the rent under s 44 of the RT Act. The items identified and the period which he said there was a reduction or withdrawal of services for each item were as follows: Item Period

Air-conditioning 26 weeks Stove oven assembly 2 weeks Main cooking element 10 weeks Backyard-blocked drain/effluent 9 weeks Lighting in house 1 week Asbestos in building 7 months Electrical switchboard-non-compliance not specified (inconvenience using anything electrical in premise)

1. The appellant provided written and oral submissions. For the purpose of these reasons we do not propose to set out the whole of what was said as it is not necessary to do so. However, it is convenient to summarise the submissions under the following headings: 1. Notice of termination retaliatory. 2. Repairs and rent reduction.

Notice of termination retaliatory

1. The appellant recounted the history of this matter and said that he had been served with two notices of termination. One was a notice for breach of the residential tenancy agreement, the breach alleged being that the appellant had failed to remove a motor vehicle from common property where the residential premises are located. The second notice was a 90 day notice to end a periodic tenancy.
2. The appellant submitted that he had made an application under s115 of the RT Act to have the notice declared of no effect and that the Tribunal should have refused to make a termination order as permitted by that section. When asked by the Appeal Panel whether the issue of the retaliatory notice had been dealt with in the earlier termination proceedings, the appellant said it had not been dealt with.
3. The appellant said that he had appealed the March termination decision, that the matter had been dealt with unfairly and it was not fair that his application was heard later, that is after the termination order was made. When asked by the Appeal Panel what power we had to interfere with an earlier decision in appeal AP 16/11710, the respondent said "your NCAT", what happened was wrong and this Appeal Panel should correct the error.

Repairs and rent reduction

1. As indicated above, the appellant provided a bundle of documents in support of his appeal totalling 71 pages. In addition, he provided the sound recording and a list identifying time marks within that sound recording which we understood to be references to the evidence to support his claim that there existed in the residential premises the defects which he identified at the commencement of the appeal.
2. In respect to the air-conditioning, the appellant said the air-conditioning had not been serviced. He relied on documents found in his bundle at pages 54 and 56 (which appear to be quotations for preventative and routine maintenance by air-conditioning companies) and said that this was evidence that the air-conditioning units had not been properly maintained.
3. In reply, the respondent said that on no occasion did the air-conditioning fail to work and there is no evidence of any actual problem with the system.
4. In respect of the stove and oven assembly and main cooking element, the appellant pointed to various documents noting repairs were necessary and the fact that various parts of the stove and oven assembly failed from time to time. The appellant submitted that the respondent carried out some repairs, but these were not on a timely basis and it was an old facility which did not properly operate. In making this submission, the appellant did not assert that the stove was completely unusable. Rather, parts of the stove did not work from time to time. The appellant did not identify evidence recording the particular date or dates upon which the stove did not work.
5. In reply, the respondent accepted that various features of the oven and cooking elements did not operate correctly during the course of the tenancy. The respondent agreed that the stove was old. However, the respondent said that repairs were carried out as necessary to fix various problems when notified by the appellant. In this regard the respondent pointed to invoices dated 13 November 2015 and 24 December 2015 detailing work to provide a new element and to repair a hotplate switch found in the respondent's bundle at page 50. The respondent also pointed to a third invoice dated 9 November 2015 to replace another element on the stove: See respondents bundle page 51.
6. In respect of the drain that became blocked in the backyard, the appellant said it had overflowed and made the backyard unusable. The appellant said that he had notified the respondent on 4 March 2016 however no action was taken until 18 April 2016 when he told the landlord that some tiling would be damaged.
7. In reply, the respondent said that the drain became blocked because of the actions of the appellant and/or occupants of the premises in pouring excessive oils and fats down the sink which had caused the drain to become blocked. The respondent referred to the documents at page 49 of respondent's bundle where the plumber who carried out the repairs said: Problem caused by too much fat going down the kitchen sink.
8. Further, the respondent said that the affected area was a small, localised issue that had no impact on access to the house. She relied upon a picture at page 54 of the respondent's bundle of the staining to the path caused by grease, fat and oil.
9. In these circumstances the respondent submitted that the appellant or the occupants had caused the defect and she had rectified the defect when notified.
10. In respect to the lighting in the premises and the electrical switchboard, the appellant said that he was an engineer, that the electrical switchboard was old and that the actions of the respondent did not correct the non-compliance. The appellant said that this problem created an inconvenience and/or a nightmare in using anything electrical in the premises. However, other than the stove and a fuse blowing, no reference was made to evidence detailing the occasions on which the electrical services failed to work. Further, the appellant did not otherwise identify a particular period during which his use and occupation of the premises had been adversely affected or how this had occurred.
11. In reply, the respondent said that there were no general problems with the electrical services and the switchboard. In this regard the respondent relied on the evidence from her agent, Mr Dean Stojanovski in the form of a letter to Mr Quader dated 1 May 2016 (respondent's bundle p35) recording his attempt to access the property on 30 April 2016 for an inspection. In that letter of the agent said: When I arrived a (sic) the property and spoke with Mr Wael at the door, he asked what I am doing here. I advise Mr Wael that I was there to see the claimed urgent repairs e.g. as spare stores and electrical problems. Mr Wael said "everything is ok". I advise Wael that it was imperative I inspect the property and see the urgent repairs and he refused me access. Mr Wael reassuring me nothing was urgent and that the inspection could be done when he vacated the property.
12. In relation to asbestos in building , the appellant claims a rent reduction for a period of seven months. The appellant did not identify areas in the residential premises where asbestos was found. Rather, reference was made to the documents and the sound recording of the hearing. In relation to those documents, the comments concerning asbestos appear to be in the context of a contractor being proposed to carry out an inspection: see e.g. email dated 12 May 2016-appellant's bundle p31. In this regard we note the email refers to the appellant's assertion that he gave to the respondent's agent "the letter from the Asbestos contractor months ago". However, a review of appellant's bundle suggest that the contractors that had been approached to do an inspection was Luke Meadows (CETEC) and WHS&E Consultant, who sent quotations by email dated 3 and 4 May 2016: see e.g. appellant's bundle p51-53, that is after the residential tenancy agreement had been terminated.
13. In any event, no particular item requiring rectification was identified, no place where asbestos was found on the property was identified nor did the appellant provide evidence concerning the impact this issue head on his use and occupation of the premises.
14. The only documents suggesting the presence of asbestos relates to asbestos found in a different property- "Villa 4": see eg appellant's bundle p45 and 57. The first document is a letter from the appellant to the respondent's agent setting out various complaints about repairs the appellant asserts were required to the residential premises. As is apparent from its date, the letter was also sent after the residential tenancy agreement had been terminated on 30 March 2016. The second is a letter dated 17 April 2015 notifying the proposed removal of asbestos from Villa 4 on 27 April 2015.
15. Significantly, the first document is not an expert report. Further, neither document identifies any asbestos on the residential premises the subject of this appeal.
16. In reply, the respondent said that there was no issue regarding asbestos and again relied upon the letter from her agent to the appellant dated 1 May 2016 to which we have referred above as corroborating her position that there was no issue in relation to this aspect of the appellant's claim. MFI 1 was also said to support the respondent's position.

Consideration

1. As recorded in the Notice of Appeal, the appellant asks the Appeal Panel to make four orders. These orders relate to: 1. An order under s115 of the RT Act that notices of termination of the residential tenancy agreement are retaliatory; 2. An order to carry out repairs; 3. An order that rent be paid to the Tribunal pending the carrying out of repairs; 4. An order under s44(1) of the RT Act that the rent is excessive and be reduced.
2. Each of these is dealt with in turn.

Retaliatory notice claim

1. In relation to the claim under s115 of the RT Act, this claim cannot be maintained in this appeal and this part of the appeal should be dismissed.
2. We can state our reason shortly.
3. Quite properly, when determining the termination application in proceedings RT 16/11710 on 30 March 2016, the Tribunal also dealt with the respondent's claim made in application RT 16/12569 that the notice of termination was retaliatory as a separate question to the remainder of the tenant's application. The reason for doing so is obvious. If the notice of termination was retaliatory and declared to be of no effect then the application for termination under s85 of the RT Act would have failed.
4. On page 2 of the March termination decision, the Tribunal said: I find that the landlord gave a termination notice of a periodic agreement which specified a termination date that was not earlier than 90 days after the date on which the notice was given. I am satisfied that a termination notice was given in accordance with section 85 and the tenant has not vacated the premises as required by the notice. The respondent argued that the notice was retaliatory and filed an application under section 115 of the Act on 14/3/16. Clause 22(5) of Regulation 22 of Residential Tenancies Regulation 2010 provides that for the purposes of section 115(3) of the Act the prescribed period for making an application by a tenant for a declaration that a termination notice has no effect on the ground that it is a retaliatory notice is within 30 days of being served with the termination notice if the termination notice was given under section 85 of the Act. I find that the termination notice was given under section 85 and that the application was not lodged within 30 days of the date of service of the termination notice. I declined to exercise my discretion to extend time given the delay in lodging the application and that the application was made after the date for vacant possession specified in the notice. Accordingly I dismissed that part of the application which was made in file RT 16/12569. In any event, I was not satisfied on the evidence presented by the respondent to the Tribunal that the termination notice was retaliatory. If I had not dismissed the application for being made out of time, I would not have been satisfied that the landlord would have been motivated or partly motivated for any of the reasons set out in section 115 (2) of the Act and dismissed that part of the application.
5. Clearly, in making the termination order the Tribunal dealt with that part of the tenant's application RT 16/12569 relating to the allegation that the termination notices were retaliatory and dismissed that claim. In doing so, the Tribunal found as a matter of fact the notices were not retaliatory.
6. In making the termination order, there was no need to finally determine the claims relating to repairs and rent reduction as part of the termination application. This was because s85 was mandatory in its terms, requiring the Tribunal to terminate the tenancy if a valid notice had been served, and any other conduct of the landlord was irrelevant in deciding whether a termination order should be made as there is no discretion given to the Tribunal to otherwise decline the application.
7. The issue of retaliation and the dismissal of that part of the tenant's application in RT 16/12569 under s115 of the RT Act became the subject of the appeal to the Appeal Panel in the termination appeal, AP 16/17111. This fact is clear from the Appeal Panels reasons in the Stay decision where the Appeal Panel said at [10]: The appellant lodged his Notice of Appeal on 8 April 2016. In that Notice of Appeal the appellant identified the above decisions of the Tribunal in RT 16/11710 and RT 16/12569 as being those that were the subject of his appeal. There is no dispute that these decisions are "internally appealable decision" to the Appeal Panel: see Civil and Administrative Tribunal Act 2013, subs 32(4) and 80(1).
8. As indicated above, the appellant appealed this decision to the Supreme Court of New South Wales. In the Supreme Court decision, in relation to a submission of the appellant's solicitor Ms Ash concerning s115, Adamson J said at [27]: Ms Ash has raised a question of law regarding the true construction of s 115. It is arguable that the Member misapprehended its effect and considered that he was not entitled to consider whether the eviction was retaliatory since Mr Quader had not made an application under s 115(3). However, Member Kinsey went on to make a finding that, even if notice had been given in time, he would not have been satisfied that Ms Bell was motivated (wholly or partly) by any of the reasons in s 115(2). In my view, it is evident that Member Kinsey was not satisfied that Mr Quader had made out a case that the eviction was retaliatory in any event. This is a question of fact that was open to him to make and does not give rise to a question of law. That it was made on an alternative basis does not affect its worth or significance..
9. Again, it is clear that the issue of the notice of termination being retaliatory was the subject of the appeal to the Supreme Court in respect of the Stay decision.
10. Finally it is clear that the termination appeal, which included the issue of dismissal of the retaliatory notice claim was dismissed by the Appeal Panel on 6 June 2016.
11. A decision of the Appeal Panel is not a decision over which there is internal appeal jurisdiction: see s32(3) of the NCAT Act. Consequently, to the extent the appellant seeks to challenge the decision of the Appeal Panel made on 6 June 2016, the present appeal is incompetent and there is no power of this Appeal Panel to make the orders sought.
12. Further, and in any event, even if an appeal was available, the time to appeal was 14 days after the 30 March 2016 which is the date of the relevant decision: see Rule 25(4)(b) of the Civil and Administrative Tribunal Rules, 2014. Consequently, the present appeal is out of time.
13. There is no reason why time should be extended in the present case, particularly as the premises have been vacated and no error has otherwise been shown to have been made in respect of the order for termination and the rejection of the claim that the termination notice was retaliatory.
14. Finally, we note in the July decision (which is the subject of the present appeal) the Tribunal said the retaliatory notice claim should be dismissed. The Tribunal does not appear to have appreciated this had already been done by order of the Tribunal on 30 March 2016. However, this fact does not affect the outcome of the appeal on this issue nor does it affect the correctness of the July decision to dismiss the balance of the application heard on 9 June 2016.
15. It follows that this aspect of the appeal should be dismissed.

An order to carry out repairs and an order that rent be paid to the Tribunal pending the carrying out of repairs;

1. These two issues can be dealt with together.
2. The residential tenancy agreement has terminated and the appellant has vacated the premises on 17 May 2016. This date was before the Tribunal heard the appellant's application in relation to these two claims on 9 June 2016.
3. The Tribunal dismissed these claims because "the tenancy had ended and accordingly no claim can be sustained under (s65) of the Act".
4. In our view the Tribunal was correct to dismiss these applications. The tenancy had come to an end and there was no point in making an order for repairs. Secondly, since the tenancy had come to an end, the Tribunal could not make an order that any future rent payable under the residential tenancy agreement be paid to the Tribunal until repairs were carried out.
5. Accordingly, the appeal in relation to these matters should be dismissed.

An order under s44(1) of the RT Act that the rent is excessive and be reduced.

1. The last ground of appeal relates to a claim for the reduction of rent under s44(1) of the RT Act.
2. The basis of the claim is that the rent is excessive having regard to the reduction or withdrawal by the respondent landlord of goods, services or facilities provided with the residential premises. The claim is based on the fact that various repairs were required to be carried out by the respondent who failed to do so or alternatively there had been an interference with the appellant's right to quite enjoyment of the premises. The items which the appellant said required repair work: 1. Air-conditioning 2. Stove oven assembly 3. Main cooking element 4. Backyard-blocked drain/effluent 5. Lighting in house 6. Asbestos in building 7. Electrical switchboard-non-compliance
3. In dismissing the application, the Tribunal made the following findings that [33] (c) and (d): (c) any fittings or other goods, services or facilities provided with the premises; the Tribunal is not satisfied that the (appellant's) sworn evidence in the documents tendered by the (appellant) attest to the reduction in the goods and services that the (appellant) agreed with the landlord for the landlord to provide. (d) the state of repair of the premises; the (appellant) induces in his evidence a copy of an ingoing condition report. The (appellant's) evidence further comprises emails to the managing agent reporting his complaints about the condition of the premises. The Tribunal is satisfied that the condition of the premises at the commencement of the tenancy was as recorded in the ingoing condition report. That is, the condition of older premises, the (appellant) having comprehensively noted on the report his comment about the condition of the premises. That is, the premises are not in new or refurbished condition, but could be classified as well used. The (appellant) accepted those conditions at the start of the tenancy. The landlord produced to the Tribunal various invoices and receipts. The landlord relies on the receipts and invoices to demonstrate that she has responded to the (appellants) request for repairs. The Tribunal is not satisfied that the condition of the premises warrant a reduction in rent.
4. While these reasons are brief, it can be seen that in dismissing this part of the tenant's application, the Tribunal: 1. rejected the appellant's evidence that the premises had fallen into a state of disrepair when compared to the state of the premises when the tenancy commenced, 2. rejected the appellant's contention that the respondent had failed to carry out necessary repairs, and 3. otherwise rejected the appellant's contention that the rent was excessive due to a reduction or withdrawal of goods, services or facilities.
5. The appellant has a right of appeal on a question of law and otherwise requires leave of the Appeal Panel to appeal on any other grounds: see s80(2)(b) of the NCAT Act. The challenges made in the present appeal concerning an order to reduce the rent raise questions other than a question of law so leave to appeal is required. Leave may only be granted if the appellant can demonstrate he may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, against the weight of evidence or significant new evidence that has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with): see cl 12 Sch 4 of the NCAT Act. The principles applicable were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17.
6. It is necessary to consider the each of the alleged defects to determine whether leave should be granted.

Air-conditioning

1. In relation to the air-conditioning, the assertion is that the system was not serviced and filters were not replaced.
2. Even if this is correct, there is no evidence to suggest that the air-conditioning did not work as intended nor is there any evidence to suggest the quiet enjoyment of the appellant was in any way affected.
3. This ground is dismissed.

Stove oven assembly and Main cooking element

1. These items can be dealt with together.
2. It was conceded by the respondent that various parts of the stove failed from time to time. However at no time was the stove at any time unusable in its entirety or to a substantial degree. The Tribunal described the premises "well used" and found that the respondent had "responded to the (appellant's) request for repairs". The Tribunal referred to the incoming inspection report and the receipts and invoices provided in evidence by the respondent to support these conclusions.
3. Having reviewed the documents that were provided by the respondent in this appeal (see for example receipts in respondent's bundle p50-51 and incoming inspection report in appellant's bundle p21-27), no error has been demonstrated that might constitute a substantial miscarriage of justice. The documents, sound recording and the references provided by the appellant to particular parts of that sound recording do not lead to a different conclusion. Rather, the evidence demonstrates that the respondent met her obligation to carry out repairs as required by ss63 and 65 of the RT Act.
4. Further, in our view there has been no breach by the respondent of her obligations in respect of the appellant's right to quite enjoyment that might otherwise enable the Tribunal to make an order to reduce the rent. While such a breach may amount to a reduction or withdrawal of goods, service and facilities within the meaning of s 44 of the RT Act: see eg Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9, the present case is not one where there has been any substantial interference of the type referred to in Roberts at [121] and following. To the contrary, the evidence shows that while parts of the cooking appliance failed from time to time, there is no basis to conclude there was a relevant "reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises" within the meaning of s44(1)(b).
5. Finally, having regard to the findings concerning the state of the premises when rented, there is no basis to conclude that the rent being paid by the appellant was, in these circumstances, excessive.
6. This ground of appeal therefore fails

Backyard-blocked drain/effluent

1. The evidence is that the particular drain became blocked because excessive fat and oil was poured down the kitchen sink: see plumber's invoice in respondent's bundle p 49. The photograph at respondent's bundle p54 supports the view of excessive grease fat and oil over flowing from the drain.
2. The respondent had this defect corrected.
3. In circumstances where the appellant (or his occupants) cause this problem and it was, in any event, rectified by the respondent, there could be no relevant reduction or withdrawal of goods, services and facilities by the respondent. Accordingly, this ground fails.

Lighting in house and Electrical switchboard-non-compliance

1. These items can also be dealt with together.
2. The appellant said to the Appeal Panel that the switchboard was old and had problems.
3. However, there was no evidence from a qualified electrician to say it did not operate correctly. While fuses may have "blown" from time to time over the 3 year tenancy, this does not prove any relevant defect or that there are circumstances warranting an order that the rent be reduced.
4. No particular problems of either a major or ongoing nature were identified in the evidence. Indeed, the appellant did not otherwise specify a period during which the state of the switchboard affected his use and occupation of the residential premises and its facilities. Again, the sound recording does not provide any relevant evidence that would lead to the conclusion that the Tribunal's decision was wrong. Lastly, there was evidence from the respondent's agent that when he went to the premises to carry out an inspection he was told there were no "asbestos or electrical problems". While this attempt to inspect occurred after the tenancy was terminated, we note that the appellant was still in possession and clearly the respondent wished to ensure that there were no defects at this time.
5. Accordingly, this ground fails.

Asbestos in building

1. The last issue is the claim of asbestos in the building.
2. The appellant does not identify the location of any asbestos in the residential premises or that it had any relevant impact on the appellant that would amount to a reduction or withdrawal of goods, services and facilities by the respondent. His assertion was rejected by the Tribunal. This was in circumstances where there was evidence from the agent (referred to above) that the appellant said there was no asbestos problem and in circumstances where the only evidence of asbestos was in premises other than the residential premises the subject of this dispute.
3. The respondent relies on MFI 1, a letter from the Department of Fair Trading to assert there was no asbestos in the premises. Leave is required to rely on this evidence. Leave should be refused as it is clear from the date of the letter that the evidence was available before the original hearing and is not evidence "not reasonably available at the time the proceedings under appeal were being dealt with". In any event, the document is nothing more than a letter confirming the premises are registered for the purpose of determining the presence of asbestos. It does not say the premises are asbestos free. It is of no assistance in resolving the present dispute one way or the other.
4. Notwithstanding our view of MFI 1, the appellant has not demonstrated any relevant error of the Tribunal in dismissing his claim for an order that the rent be reduced. Accordingly this ground fails.

Orders

1. Having regard to the above conclusions the Appeal Panel makes the following order: 1. Leave to appeal is refused and the appeal is dismissed.

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: 07 February 2017