Quader v Nguyen

Quader v Nguyen - [2022] NSWCATAP 128 - NSWCATAP 2022 case summary — Zoe

[4]

Scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with leave, that is, with the permission of the Appeal Panel: s 80(2)(b) of the NCAT Act.
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.
An error of law will also occur where there is a material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]- [25] (Gummow and Callinan JJ; Hayne J agreeing at [95]); DVE18 v Minister for Home Affairs (2020) 276 FCR 401; [2020] FCAFC 83 at [34]; followed by the Appeal Panel in Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 at [9(2)].
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 Sch 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 the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 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."
In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
In Collins, the Appeal Panel stated at [84(2)] 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]

Grounds of Appeal

The grounds of appeal specified in the Notice of Appeal were expressed as follows and it is convenient to subsequently refers to those matters as grounds 1 to 5: "- The Tribunal Member failed to consider the overwhelming evidence provided by the appellant, including but not limited to, the severe undue financial hardship placed upon the appellant, the fabrications and mistruths provided by the respondent, and comparative rental prices. - The Member's written reasons for the decisions made are not consistent with the evidence provided on multiple grounds. One such example is her statement that the appellant "did not do anything to mitigate their loss" which is untrue. The evidence showed that the appellant exhausted all options available to minimize losses. - The Member should have excused the respondent's representative, as they failed to provide a Tenancy Management Agreement. This document was specifically requested by the previous Tribunal Member to ensure the representative was legally entitled to attend the hearings and provide oral evidence. The respondent also failed to submit any evidence to the Tribunal which the member ignored, even though the appellant made every effort to ensure their evidence reached the Tribunal on time. - The Member did not consider that the respondents current representatives were not involved in any way with the original tenancy and the issues, therefore they have no first hand knowledge of any dealings. - The Member failed to consider the far ranging financial and mental impacts of the issues presented as the rent reduction she ordered amount to just $17.5 per week."
The order which the appellants sought in the Notice of Appeal was that the rent reduction be assessed at $200 per week, that the respondent be ordered to pay them $12,000, and that a rent reduction of $200 per week apply until either the services are provided or they vacate the subject property.
The appellants also sought leave to appeal on the basis that the decision was not fair and equitable, and that the decision was against the weight of the evidence.

[8]

Relevant law

Section 44 of the RTA relevantly provides: 44 Tenant's remedies for excessive rent (1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders - … (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount. … (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. … (5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive - (a) the general market level of rents for comparable premises in the locality or a similar locality, (b) the landlord's outgoings under the residential tenancy agreement or proposed agreement, (c) any fittings, appliances or other goods, services or facilities provided with the residential premises, (d) the state of repair of the residential premises, (e) the accommodation and amenities provided in the residential premises, (f) any work done to the residential premises by or on behalf of the tenant, (g) when the last increase occurred, (h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent). (6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent - (a) has effect for the period (of not more than 12 months) specified by the Tribunal, and (b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable. …
The appellants' application also relied on s 187(1)(d) of the RTA which grants the Tribunal the power to award compensation.

[13]

Absence of NBN connection

In the application, the first order sought was for compensation and the first paragraph under the heading "Reasons for the Order/s" set out the basis of that claim was being the additional internet cost of $171 per month. It is clear that claim for compensation was not considered and that there was supporting evidence for that amount to which there does not appear to have been any challenge. The failure to consider that claim amounts to an error law.
When determining a claim for compensation, such as a claim for compensation under a residential tenancy agreement, the assessment of the amount payable must be determined by reference to the fundamental principle that the party affected by the breach should be put in the same position as if the breach had not occurred. That was made clear by the High Court in Haines v Bendall (1991) 172 CLR 60 at 63; [1991] HCA 15 (Haines) where it was said: "The settled principle governing the assessment of compensatory damages … is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed …"
As the tenancy commenced on 10 December 2020, when that claim was considered at the hearing on 21 December 2021 a period of 12 months and 11 days had elapsed. Using the rate of $171 per month, an amount of $2,112.68 should have been determined. That is an amount assessed for the direct loss resulting from the absence of any NBN connection and it is noted that is equivalent to about $40 per week.
However, the appellants' claim for compensation, both at the 21 December 2021 hearing and in the appeal, went beyond that cost to include a claim for loss of income. That is not a claim for direct loss: it is a claim for consequential loss.
The principles relating to when a consequential loss can be recovered are well-established, by the rule in Hadley v Baxendale (1854) 9 Ex 341, which set out two tests, either of which needed to be satisfied for there to be an entitlement to recover. The first test is whether the damages claimed may fairly and reasonably be considered as arising naturally, in the usual course of things, from the breach. The second test is satisfied when the subject damage "may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it."
As to the first test, we are not satisfied that loss of income can reasonably be considered to arise naturally, in the usual course of things, from the lack of an NBN connection, especially when there are alternative means of obtaining internet access. As to the second test, there was no evidence that Mr Quader's income or dependency upon an NBN internet connection was either disclosed or discussed at the time when the tenancy agreement was made and there is no basis for a finding that it can reasonably be supposed to have been in the contemplation of both parties at that time.
Accordingly, we do not consider Mr Quader's loss of income was recoverable as compensation with the result that its non-inclusion at first instance did not involve any error.
We are of the view that, in relation to the claim based on the lack of an NBN connection, an amount of $2,112.68 should have been allowed as compensation. First, that amount represents the application of the basic principle set out in Haines. Secondly, that is the primary basis on which the appellants made that claim. Thirdly, that amount can be objectively determined and does not require any subjective assessment, such as by reference to comparative rentals which may differ in amount for a variety of reasons. It is thus not necessary to consider a rent reduction (under s 44(1)(b) of the RTA) for the lack of an NBN connection as any such claim would overlap the claim for compensation (under s 187(1)(d) of the RTA) and to do so would be to order the respondent to pay the appellants twice for the same loss.

[23]

Leave to appeal

It is also necessary to consider whether the appellant may have suffered a substantial miscarriage of justice because: first, the decision challenged in this appeal was not just and equitable; secondly, that decision was against the weight of the evidence. If either of those issues are resolved in favour of the appellant there is a third question of whether the discretion should be exercised to grant leave to appeal.
The matters raised in the Notice of Appeal in support of the contention that the decision was not just and equitable have been considered. We are not satisfied that the absence of an NBN connection warrants a rent reduction as high as $200 per week, being 25% of the rent payable and the amount that will be substituted for the $600 allowed at first instance, namely $2,112.68, is considered to be reasonable compensation.
Having considered the topic of the driveway, we have borne in mind the two statutory declarations provided by the appellants and, while we do not consider an expert report would be needed to establish this claim, we do not consider the rejection of this claim to have been either unfair or inequitable.
The evidence which it was suggested should have been given more weight was (1) the statutory declarations, (2) evidence of loss of income, (3) evidence of comparative rents, and (4) documents relating to the driveway.
Evidence of loss of income is not relevant since that claim cannot be maintained. The evidence of comparative rents in relation to the absence of an NBN connection would be relevant to a claim for rent reduction under s 44 of the RTA. However, that claim cannot be maintained as we have assessed compensation under s 187(1)(d) of the RTA for that claim.
Having considered the statutory declarations and the documents relating to the driveway, we are not satisfied that, weighing up the available evidence on this topic, that the outcome on this issue can be said to have been against the weight of the evidence.
Even if the appellant may have suffered a substantial miscarriage of justice because the decision could be said to have not been fair and equitable or if it could be said that the decision was against the weight of the evidence, we do not consider the discretion should be exercised to grant of leave to appeal. By reference to the categories suggested in Collins at [84(2)] quoted above, we are not persuaded that leave to appeal should be granted.

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (10)