Renda v Wu

Background

1. The appellant tenant leased residential premises from the respondent landlord from July 2011 to October 2015. For convenience, we will refer to the appellant in these reasons as "the tenant" and we will refer to the respondent as "the landlord."
2. After the tenant had vacated the premises, the landlord brought proceedings in the Tribunal against the tenant, seeking payment from the rental bond of four days' rental arrears and the cost of cleaning the premises upon the tenant's vacation (RT 15/63146).
3. On 27 January 2016, the Tribunal made orders for the parties to provide each other and the Tribunal with documents upon which they wished to rely by specified dates, and set the matter down for hearing. The Tribunal also ordered that, should the tenant intend to bring a cross application, she should lodge that application by 1 February 2016 together with supporting documentary material. Further, the Tribunal ordered that the parties' documents should include submissions as to why the 3-month time limit for making any application for compensation under s 187 of the Residential Tenancies Act 2010 (NSW) (RT Act) should or should not be extended under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
4. The tenant filed an application on 1 February 2016 (RT 16/04856), seeking full payment of the rental bond, full payment of unclaimed receipts for the amount of $1,202.21, full payment for supplying cleaning products and labour in the amount of $1,919.20 and full payment for water damaged personal contents in the amount of $11,217.47. After she had filed her material, it became clear that she was seeking the orders in reliance upon the following sections of the RT Act: 1. an order under s 175 of the RT Act regarding the payment of a rental bond; 2. an order for compensation for breach of the landlord's obligations to ensure the premises are reasonably fit to live in and/or to keep the premises in a reasonable state of repair (see RT Act, ss 52(1), 63(1)); and 3. an order reimbursing her, as tenant, for urgent repairs (RT Act, s 64(1)).
5. The basis of the tenant's claim for cleaning products, labour and damaged personal possessions was that the landlord had failed to rectify water leakage and mould problems at the premises. She claimed that she had spent time and money cleaning mould off the walls throughout the four-year tenancy and that many of her possessions were damaged by mould.
6. The tenant's and the landlord's applications were heard consecutively on 18 March 2016. On that day, the Tribunal ordered, in proceedings RT 15/63146 (the landlord's proceedings), that the Rental Bond Services pay the landlord $374.28 from the bond (for cleaning and four days' rental arrears) and pay the balance to the tenant and, in proceedings RT 16/04856 (the tenant's proceedings), it dismissed the tenant's claim for compensation.
7. On 21 March 2016, the Tribunal published its reasons in proceedings RT 16/04856 (the tenant's proceedings). It determined the tenant's claims as follows: 1. A claim for reimbursement of the cost of a locksmith in 2011 was rejected as being out of time, being over five years after the claimed cost was incurred; 2. A claim in relation to other repairs was rejected because the requests for repairs were attended to by the landlord within a reasonable time; 3. The claim for compensation for damage caused by mould was rejected because, although the Tribunal accepted that there was mould present in the premises, it found that the tenant did not mitigate her loss. It found that she blocked air vents in the house and kept windows closed, even after 2014 (which the tenant denied), which caused and/or exacerbated the mould problem, and that the landlord took reasonable steps to clean the mould. It concluded that the landlord was not in breach of ss 52 or 63 of the RT Act; 4. The Tribunal also found that the tenant had not established that her personal belongings were mould infested. It commented that "there is no objective material that all the items listed as being damaged were in her possession during the tenancy and/or were damaged as a direct or indirect result of the landlord's failure to meet the relevant obligations under the [RT Act] for all the reasons set out above."

Representation at appeal hearing

1. The tenant appeared in person at the hearing of the appeal. Ms Ridgeway, the landlord's real estate agent, sought leave to appear on the landlord's behalf.
2. The tenant objected to Ms Ridgeway appearing for the landlord, saying that the landlord should be present at the hearing.
3. The Appeal Panel decided to grant leave to Ms Ridgeway to represent the landlord, pursuant to s 45 of the NCAT Act. It is standard procedure for a real estate agent to represent a landlord in residential tenancy proceedings and the landlord had been represented by a different real estate agent from the same agency in the proceedings below. Further, as explained to the tenant, the issue of whether or not a party is present at the proceedings is a separate issue from that of representation of the party.

Appeal grounds

1. The appellant's appeal grounds did not distinguish between the two sets of orders from which she is appealing, those in the landlord's proceedings and those in her own proceedings. Her description of the grounds took up over four typed, single spaced pages and also made reference to attached documents. The Appeal Panel asked the tenant, at the hearing, to clarify her grounds of appeal. Having regard to the Notice of Appeal and the tenant's comments at the hearing, the Appeal Panel is satisfied that her main complaints are that the Tribunal: 1. failed to "take evidence" relevant to her claim at the hearing (Ground 1); 2. failed to let her cross-examine the agent and the landlord's parents (Ground 2); 3. took "false evidence" from the landlord, including an invoice for $700 for cleaning issued after she had vacated the premises, photographs the landlord claimed to have taken after this time and incoming and outgoing condition reports the tenant had not seen (Ground 3); 4. made orders in the tenant's proceedings after having made orders in the landlord's proceedings, without reading the tenant's documents and/or without giving the tenant a further hearing which the tenant expected (Ground 4).
2. At the appeal hearing, the tenant also complained that the Tribunal determined the first matter (the landlord's claim for the bond and cleaning expenses) before hearing evidence on the second matter (the tenant's claim for compensation) and artificially separated the two cases. This allegation is not made in the Notice of Appeal. It would not be fair to the landlord, who was not legally represented, to allow the tenant to raise a new ground at the hearing of the appeal.

To which appeal does each ground relate?

1. It is clear from the Notice of Appeal that Ground 1 (despite the way it is expressed) relates to both the tenant's proceedings and the landlord's proceedings. This is because the tenant says in her Notice of Appeal that the Tribunal "went against" evidence relevant to her compensation claim for mould-damaged goods and her claim for reimbursement of certain invoices (made in her proceedings) and evidence concerning rental payments (relevant to the landlord's proceedings).
2. Ground 2, insofar as it relates to the failure to allow cross examination of the landlord's parents, is only relevant to the tenant's claim, as the landlord's parents' evidence concerned repairs to the leaking roof and mould in the premises. Insofar as Ground 2 concerns a failure to allow cross examination of the real estate agent, we consider that this relates to both the tenant's and the landlord's proceedings. The Notice of Appeal does not identify the evidence given by the agent which the tenant wishes to challenge. However, a document the tenant attached to the Notice of Appeal setting out details of the hearing, complains about an invoice for cleaning provided by the agent at the hearing (relevant to the landlord's claim) as well as the agent's evidence concerning mould (relevant to the tenant's claim).
3. Ground 3 relates to both proceedings and Ground 4 relates only to the tenant's proceedings.

Right to appeal

1. An appeal may be made "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds" (NCAT Act, s 80(2)(b)). Where an appeal concerns a question of law, the subject matter of the appeal is that question: Ferella v Chief Commissioner of State Revenue (NSW) [2014] NSWCA 378 at [22]
2. Grounds 2 and 4 appear to raise questions of law concerning procedural fairness. However, Grounds 1 and 3 relate to the fact finding mission of the Tribunal and require the grant of leave in order to become the subject matter of these appeals.
3. When the appeal is from a decision of the Consumer and Commercial Division, the Appeal Panel may only grant leave under s 80(2)(b) of the NCAT Act if satisfied that the appellant may have suffered a substantial miscarriage of justice because: (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) (NCAT Act, Sch 4, cl 12(1)).
4. An appeal must also be lodged within the relevant statutory time frame, unless the Tribunal grants an extension of time under section 41 of the NCAT Act. An appeal in residential proceedings must be lodged within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later) (Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), r 25(4)(b)). Pursuant to r 6(2) of those rules, if a time of one day or longer is to be reckoned by reference to a given day or event, the given day or the day of the given event is not to be counted.
5. The tenant was provided with the Tribunal's orders in RT 15/63146 by email on 18 March 2016 and its orders and reasons for decision in RT 16/04856 by email on 21 March 2016. Her appeal from the orders in RT 15/63146 was therefore required to be lodged by 4 April 2016 (taking into account r 6(4) of the NCAT Rules) and her appeal from the orders in RT 16/04856 was required to be lodged by 5 April 2016. The tenant lodged her appeal against the orders made in both matters on 27 April 2016. Accordingly, she needs leave to appeal out of time. Her application for such leave is dealt with below.

Additional evidence

1. The tenant sought to rely, at the appeal hearing, on some additional evidence, that had not been before the Tribunal at first instance. This included rainfall charts showing rainfall which was said to be relevant to the tenant's mould claims and a letter from compensation lawyers concerning a claim for compensation the tenant apparently made in 2011.
2. The landlord also sought to rely upon additional evidence, being a statutory declaration from a real estate agent concerning the condition of the property at the time the tenant moved in.
3. The tenant did not explain why this evidence was relevant to any ground of appeal that raised a question of law or why, to the extent leave to appeal was sought under the NCAT Act, Sch 4, cl 12(1)(c), it was new evidence, evidence not "reasonably available" to her before the hearing: see Pusell v NSW Land and Housing Corporation [2016] NSWCATAP 215 at [36]-[38].
4. We have determined not to admit any additional evidence. It is not relevant to determining whether the Tribunal made the errors the tenant alleges that it made.

Questions arising on appeal

1. The issues arising on appeal are as follows: 1. Should the Appeal Panel grant leave to appeal out of time in the landlord's proceedings and/or the tenant's proceedings? 2. If so, do any of the tenant's appeal grounds raise questions of law and, in relation to grounds which do not raise questions of law, does the Appeal Panel grant leave to appeal on those grounds? 3. Has the tenant succeeded in establishing that the Tribunal erred in law or, if the Appeal Panel has granted leave to appeal on another ground, has the tenant established that ground? 4. If the tenant has established that the Tribunal has made an error of law or another appealable error, would it be futile to remit the matter to the Tribunal for reconsideration: 1. because the Tribunal below did not have jurisdiction to hear the tenant's application due to it being made outside the statutory time frame and the Appeal Panel can be satisfied that the Tribunal properly refused to extend time? 2. because factual findings made in the landlord's favour which are not affected by the errors mean that the tenant could not succeed?

Leave to appeal out of time

1. The Appeal Panel may extend the time in which to lodge an appeal even if the relevant period has expired: NCAT Act, s 41. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, the Appeal Panel noted at [21] that "it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice." It then set out the principles which govern the granting of an extension of time to appeal (at [22]): The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
2. We have considered the factors referred to by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and will deal with them in turn.

Length of the delay

1. The appeal was lodged 12 days late (in the case of the appeal from the orders in the landlord's proceedings) and 13 days late (in the case of the appeal from the orders in the tenant's proceedings). Neither delay is insubstantial, but nor is either delay extensive.

Reason for the delay

1. The tenant provided information in her Notice of Appeal to explain the delay as follows. The tenant emailed the Tribunal on 19 March 2016 concerning the orders of 18 March 2016. On 21 March 2016, the Tribunal replied to her email, advising her of her right to appeal and also stating: "You should seek independent advice before lodging an application."
2. The tenant emailed the Tribunal again on 30 March 2016, requesting an extension of time to appeal the orders of 18 March 2016. She was informed by the Tribunal registry on 5 April 2016, by email, that an appeal in residential proceedings had to be lodged within 14 days from the day the appellant was notified of the decision appealed against. The email also stated that the writer had previously forwarded the tenant a copy of "NCAT Guideline 1: Internal Appeals" which contains information about the time limits for appealing a decision made in residential proceedings.
3. The tenant said she had contacted more than seven different agencies offering free legal advice prior to the hearing, and only one of them had offered the possibility of help. She tried to contact that agency to obtain advice about lodging an appeal, but had had difficulty securing an appointment. The tenant said that once she had received independent legal advice from another source, she lodged her appeal. This was not disputed by the landlord.

Prospects of success

1. For the reasons which are set out below, we consider that the tenant has a fairly arguable case in respect of both appeals.

Prejudice to respondent

1. Ms Ridgeway, for the landlord, accepted that there would be no significant prejudice to the landlord if an extension of time were granted.

Consideration

1. There is some difficulty in the tenant's position, in that she was on notice of the 14-day time limit for lodging an appeal from at least 5 April 2016 and did not lodge her appeal until 12 days later. However, this may be explained by the Registry's instruction to her to obtain independent advice before lodging an appeal.
2. It is of course desirable for a prospective appellant to seek legal advice before lodging an appeal, but the tight time frame of 14 days in which to appeal a decision made under the RT Act means that many appellants will not be able to do so before lodging an appeal within the statutory time frame. This is particularly the case if the prospective appellant cannot afford to pay for legal advice and is seeking to obtain advice from Legal Aid or community legal centres which typically cannot assist within two weeks.
3. We consider that it would be unjust to deny the tenant an opportunity to appeal in circumstances where she was following the instructions given to her by the Tribunal's registry, particularly where the delay was less than two weeks and there is no significant prejudice to the respondent. We are satisfied she took reasonable steps to obtain independent legal advice within a short time frame.
4. We accordingly grant the tenant leave to appeal out of time in both proceedings, pursuant to s 41 of the NCAT Act.

Ground 1: Rejection of the tenant's evidence

1. The tenant's first ground of appeal is that the Tribunal did not accept her evidence. Whilst the failure to have regard to a party's evidence may, in some circumstances, constitute a failure to have regard to relevant considerations and thus raise a question of law, the rejection of a party's evidence does not, of itself, raise a question of law. Accordingly, leave to appeal must be granted in relation to this ground, if it is to be agitated on these appeals.
2. The tenant did not formally apply for leave to appeal. In her Notice of Appeal, she left the section entitled "Leave to Appeal" blank, failing to tick either "yes" or "no" next to the question "Are you asking for leave?" However, the landlord's reply to appeal engages with the question of whether leave should be granted and it was clear at the appeal hearing that the tenant wished to appeal on grounds which did not raise questions of law and did not understand what a question of law is. In these circumstances, we consider that the tenant should be treated as having applied for leave to appeal under s 80(2)(b) of the NCAT Act. The tenant has not identified the paragraph in clause 12(1) of Sch 4 to the NCAT Act on which she relies; however, the tenor of her Notice of Appeal and her submissions is that the Tribunal's decision was not fair and equitable and that it was against the weight of evidence (NCAT Act, Sch 4, cl 12(1)(a) and (b)).
3. As mentioned above, in order to grant leave to appeal, the Appeal Panel must be satisfied that the tenant may have suffered a miscarriage of justice due to one of the factors in cl 12(1)(a),(b) or (c) of Sch 4 to the NCAT Act. In Collins v Urban [2014] NSWCATAP 17 ("Collins v Urban") at [71], the Appeal Panel commented that "the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred."
4. We do not consider that there was any failure in the rejection of the tenant's evidence in the landlord's proceedings which deprived the tenant of a chance that was fairly open of achieving a better outcome. The Notice of Appeal contains an assertion that, contrary to the Tribunal's finding, the tenant was not in arrears of rent (point 5 on page 4). It is also submitted in the Notice of Appeal that $100 (which the Tribunal ordered that the landlord was entitled to in respect of cleaning) should have been offset against the cost of the tenant's cleaning of mould over the period of the tenancy. The tenant presents this as a rejection of her evidence concerning her own cleaning of mould in the property during the tenancy.
5. The tenant acknowledged in her material submitted below "the amount owing of $274.30 for 4 days rent" (document 21, point 3) and also acknowledged this in her appeal material. Her claim that she should not have to pay this depended upon having claims she wished to set off against the rent owing. The RT Act does not permit a tenant's monetary claims concerning a landlord's breach of a residential tenancy agreement to be set off against money owing to a landlord when a bond is being refunded (see RT Act, ss 163-166).
6. As for the $100 the Tribunal allowed the landlord for cleaning, the tenant acknowledges in her Notice of Appeal that she left a mouldy area which she could not clean when she moved out, albeit that she contended the premises were in a worse condition when she moved out than when she moved into them. To the extent that the tenant contends the decision was "against the weight of evidence," it could not be said that "the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance … that the conclusion was not one that a reasonable tribunal member could reach" (Collins v Urban at [77]).
7. In our view, the tenant has not established that the Tribunal's rejection of her evidence constituted a failure in the way the landlord's proceedings were conducted. The tenant has not demonstrated that she may have suffered a substantial miscarriage of justice as a result of the Tribunal's rejection of her evidence and leave to appeal in the landlord's proceedings on Ground 1 is refused (NCAT Act, s 80(2), Sch 4, cl 12).
8. The Tribunal also preferred the landlord's evidence to that of the tenant, in the tenant's proceedings. The tenant's evidence included statutory declarations, an advertisement and a quotation from a roof repairer, in the tenant's proceedings. Again, we are not satisfied that the rejection of this evidence was "a failure in the way [the] matter was conducted" (Collins v Urban).
9. The Tribunal was not persuaded by the quotation submitted by the tenant to establish that the roof was in need of repair, finding that "the quotation is a generic quote outlining what would be involved in any roof restoration" and that there was "no specific material indicating a specific problem with the roof in question aside from noting there might be broken tiles, some moss present and the gutters need cleaning". No error has been demonstrated in relation to the rejection of this evidence.
10. Whilst we have some concern that the Tribunal made no reference in its reasoning to the statutory declarations filed by the tenant, the tenant did not explain on the appeal why they were relevant. One statutory declaration was from a neighbour recalling a conversation with the landlord in 2011 or 2012 in which the neighbour advised the landlord to restore his roof "as it looked in worse shape than mine". This is not, in our view, probative. The second statutory declaration, made by D. Rodriguez, stated that the tenant "was collecting water from some roof holes that she had in the kitchen and lounge areas" and that some water was coming from broken tiles in the roof. D. Rodriguez also gave evidence that the tenant had told her that the owners had refused to fix the roof because they could not afford to pay a tradesman to do the work. D. Rodriguez did not indicate when this occurred, meaning that it is impossible to know whether this was before the landlord engaged a tradesman to repair the roof or afterwards. For this reason, the evidence is of limited value. We note that it is not necessary for a decision-maker to refer to "every piece of evidence and every contention" made by a party: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46], 75 ALD 630 at 641 per French, Sackville and Hely JJ; Reece v Webber [2011] FCAFC 33 at [67]; 192 FCR 254, Jacobson, Flick and Reeves JJ at 277; Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157, Dowsett, Flick and Griffiths JJ at [47].
11. The tenant also objected to the Tribunal's rejection of her evidence of an advertisement for the sale of the premises (placed before the landlord purchased and the tenant occupied the premises), which indicated that renovations were required at that time. We agree with the Tribunal that this does not establish that specific repairs were required.
12. The tenant has not demonstrated any error or injustice in the way her evidence was dealt with in her own proceedings. We do not accept that the Tribunal's decision was "against the weight of evidence" (applying the Collins v Urban test referred to above) or that it was not fair and equitable.
13. The Appeal Panel refuses leave to appeal on this ground in the tenant's proceedings (NCAT Act, s 80(2)(b)).

Ground 2: Failure to allow tenant to cross-examine witnesses

1. The second ground of appeal is that the Tribunal did not let the tenant cross-examine the real estate agent or the landlord's parents. The failure to allow a party an opportunity to cross examine may, in some situations, constitute a denial of procedural fairness: Gallo v Duflou [2014] NSWCATAP 115 at [21] to [36] and cases there cited; Raslan v Pan [2015] NSWCATAP 12 at [26]. A denial of procedural fairness is an error of law, meaning that the tenant does not need leave to appeal on this ground.
2. The Appeal Panel has no objective evidence of what occurred at the hearing of either application (other than the written decision in the tenant's proceedings). The parties were ordered, on 17 May 2016, to provide a sound recording or transcript of the hearing at first instance if what happened at the hearing was being relied upon. Neither party did this. However, the tenant attached to her Notice of Appeal a document she had prepared, entitled "Details of the hearing we attended on at the Tribunal on 18 March 2016 at 9.15am." In this document, the tenant claims that the Tribunal member informed her at the hearing that the agent's grandfather had died and she "wanted us to be gentle with her [the agent] because she was still quite shaken." She also states in that document that the Tribunal member told the parties that the agent could speak first then she would let the tenant have her say, "so that we would not interrupt them."
3. The landlord did not challenge, in the Reply to Appeal, the tenant's assertion that the Tribunal member failed to let the tenant cross examine the "landlords" and the agent. (It was accepted by the agent that the tenant mistakenly thought that the landlord's parents were the landlords). Further, the agent representing the landlord accepted in the appeal hearing that the Tribunal member had told the tenant to "go easy" on the agent in the proceedings below, and that the tenant had not had an opportunity to cross examine the agent or the landlord's parents. In these circumstances, the Appeal Panel accepts that the tenant was not given an opportunity to cross examine the landlord's witnesses, as she alleges.

Significance of real estate agent's evidence

1. The real estate agent did not provide written evidence such as a witness statement or affidavit in the proceedings below, but gave oral evidence at the hearing. Much of this evidence was significant for the purposes of the tenant's proceedings. One of the key matters of fact upon which the parties differed in the tenant's proceedings was whether the tenant had removed material blocking the vents in the premises in 2014, as the landlord had requested. The tenant said she had done this, whereas the landlord claimed that the vents were still blocked when the tenant vacated the premises in 2015. The agent gave sworn evidence, upon which the Tribunal relied, that tissues the tenant had placed in the vents were still present after she vacated. The agent also provided the Tribunal with photographs which the agent claimed to have taken after the tenant had vacated and which showed tissues in the vents. The tenant said that those photographs had been taken by her (the tenant) in 2014. The Tribunal's acceptance of the real estate agent's evidence on this point was critical to the Tribunal's finding that the tenant had not mitigated her loss in respect of damage caused by mould and that the landlord was not responsible for any such damage to the tenant's goods.
2. The agent also gave evidence in the landlord's proceedings. The tenant said that the agent produced an invoice for cleaning and a condition report, at the hearing. The tenant's account is that the Tribunal rejected the invoice as it was in relation to cleaning done by the landlord, and found that the landlord was entitled to $100 for cleaning rather than the $700 claimed. At the appeal hearing, the agent said that the Tribunal's order for payment of part of the bond to the landlord, at least insofar as it related to the $100, was by consent, but the tenant disputed this. The tenant said that she also disputed the agent's evidence, given at the hearing, as to why the condition report was not signed by the tenant. It appears to be the tenant's case that she was not invited to attend when the condition report was prepared. The Tribunal did not give written reasons in the landlord's proceedings and neither party requested any. Accordingly, the only account of what happened which is before the Appeal Panel is that provided by the tenant.
3. In its decision in respect of the tenant's proceedings, the Tribunal made some comments about the condition reports (which were relevant to both proceedings). It noted that both the ingoing and outgoing condition reports were "unsigned by the tenant" (paragraph 14), It relied on the outgoing inspection report (paragraph 31) to find that tissues had been placed in the vents. The decision in the landlord's proceedings to allow an amount for cleaning must have entailed a finding, under s 166(1)(c) of the RT Act, that the landlord was entitled to "the reasonable cost of cleaning any part of the premises not left reasonably clean by the tenant, having regard to the condition of the premises at the commencement of the tenancy". That is, the Tribunal must have accepted the landlord's account of the condition of the premises at the commencement and end of the tenancy, rather than the tenant's. This account was contained in the condition reports which the agent had made and upon which the agent commented at the hearing. Thus, the agent's disputed evidence was critical to the Tribunal's decision in the landlord's proceedings.

Significance of landlord's parents' evidence

1. The landlord's parents both made statutory declarations which the Tribunal referred to in its written decision in the tenant's proceedings. The landlord's father's evidence concerned his attendance at the property to clean mould. He stated that, when he and his wife attended the property on six occasions, they noticed that the tenant had blocked every air vent and most windows. He also stated that he requested the tenant to remove everything that was blocking the air vents but she refused. The statutory declaration made by the landlord's mother was to the same effect and also claimed that the leaks to the roof were repaired in 2011 and that there had been no more leaks since then. Like the agent's evidence, this evidence was critical to the rejection of the tenant's compensation claim. It was also relevant to the Tribunal's rejection of her claim for reimbursement for urgent repairs.
2. The landlord's parents were not in attendance at the hearing in the Tribunal below. At the appeal hearing, the real estate agent representing the landlord said that the tenant had not requested the landlord's parents to attend the hearing.

Consideration

1. Where a party is self-represented, a court or tribunal has a common law duty to ensure that that party understands the relevant procedures of the court or tribunal, including those available for cross examination: Lee v Cha [2008] NSWCA 13, Basten JA at [48]-[49]; Norfeld Pty Ltd v Jones trading as Watermark Patent & Trademark Attorneys [2014] NSWSC 992, Hamill J at [92]-[96]; Gallo v Duflou [2014] NSWCATAP 115 at [32]-[36]. We consider that, having embarked upon a determination of the merits of both applications, the Tribunal had an obligation to explain to the tenant that she was entitled to apply to cross examine the agent and the landlord's parents and, in the case of the landlord's parents, to apply for an adjournment for this purpose if necessary. Failing to do so denied her an adequate opportunity to be heard. Our reasons for coming to this conclusion are as follows.
2. Unlike the situation in Raslan v Pan [2015] NSWCATAP 12, the lack of an opportunity to cross examine these witnesses constituted a "practical injustice": see Raslan v Pan [2015] NSWCATAP 12 at [28]; Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 214 CLR 1, Gleeson CJ at 13-14 [37]-[38]; Gallo v Duflou [2014] NSWCATAP 115 at [41]. This is because the Tribunal relied upon the evidence of these witnesses to reject the tenant's evidence and to make findings of fact in favour of the landlord which were critical to the determination of both proceedings.
3. The landlord had an obligation to ensure that the landlord's parents were at the hearing or otherwise available for cross examination, if the landlord wished to rely upon their evidence. The landlord's agent stated at the appeal hearing that the tenant did not ask the landlord's parents to attend the hearing in the proceedings below. However, the standard material sent by NCAT to the parties prior to the hearing instructs them that their witnesses must attend the hearing. Accordingly, if the Tribunal was minded to admit that evidence notwithstanding the witnesses' non-attendance, it was required, at the very least, to ask the tenant whether she wished to question them and, if so, whether she wished to apply for an adjournment so she could do that.
4. For these reasons, we are satisfied that the Tribunal erred in law in both proceedings by failing to give the tenant an opportunity to cross examine the landlord's witnesses. Providing that there is utility in doing so, the appropriate remedy is to remit the proceedings to the Tribunal for redetermination. There is, however, an issue as to the utility of this remedy in the tenant's proceedings.

Whether redetermination of the tenant's application would be futile

1. The question as to whether the breaches of the rules of procedural fairness in the tenant's proceedings made any difference to the outcome of the proceedings arises for two reasons: first, because the tenant brought the applications for compensation and reimbursement outside the statutory time limit and the Tribunal did not exercise its discretion to extend time; and secondly because the Tribunal rejected the tenant's compensation claim on the basis that she had not established that her goods were damaged as a result of the landlord's failure to meet obligations under the RT Act. If the Appeal Panel could conclude that the denial of procedural fairness would have made no difference to the outcome of the proceedings, then it would decline to grant relief: see Stead v State Government Insurance Commission (1986) 161 CLR 141 ("Stead"), the Court at 145-146.

Is the statutory time limit determinative of the tenant's application?

1. The tenant's application for orders in relation to a breach of the residential tenancy agreement was required to be made within three months after she became aware of the breach (RT Act, s 190(1); Residential Tenancies Regulation, cl 22(9)). The tenant was out of time in respect of her application for orders in relation to the landlord's alleged breach of the agreement. The tenant accepted that she applied to the Tribunal more than three months after becoming aware of the landlord's alleged breach, although the Tribunal did not explore the question of when time starts to run for awareness of a continuing breach. The tenant's case was that the mould in the premises was caused by a leaking roof and that she had been aware of both the mould and the leaking roof since 2011. On any view, she did not bring proceedings within three months of becoming aware of the breach, because the proceedings were brought more than three months after she moved out of the premises in 2015.
2. The tenant did not apply for an extension of time or make submissions about such an extension, even though the Tribunal's orders of 27 January 2016 provided that each party's documents should include submissions as to why the three-month time limit should, or should not, be extended. As the tenant's application for orders concerning alleged breaches of the landlord's obligations under the residential tenancy agreement was out of time, the Tribunal had no jurisdiction to hear or determine it unless it extended time for the making of the application, pursuant to s 41 of the NCAT Act. The Tribunal did not extend time and, in its reasons, did not consider whether to do so.
3. A decision as to whether to extend time is sometimes made at a hearing, and an oral decision given. There is some indication in the tenant's own material that the Tribunal considered extending time at the hearing, as she says the Tribunal member asked her why she had not lodged a compensation claim within 90 days. However, there is no evidence that the Tribunal made an oral decision concerning an extension of time at the hearing, and the written reasons indicate that the Tribunal erred in the way it dealt with this issue.
4. In its decision, the Tribunal first observed that "both the tenant's application and the landlord's application have been filed within the relevant limitation period in Regulation 22 of the Residential Tenancies Regulation 2010." This was clearly incorrect in relation to the tenant's application, except insofar as it relates to the rental bond (see RT Act, s 175 and Residential Tenancies Regulation 2010 (NSW), cl 22(8)). However, in the course of its decision, the Tribunal: 1. rejected the tenant's claim for reimbursement of the cost of a locksmith (which the Tribunal appears to have treated as a claim for payment for urgent repairs) on the basis that it was out of time, without considering whether to extend time; 2. dealt with the remainder of the tenant's claim for urgent repairs on its merits, deciding that requests for repairs were attended to within a reasonable time, without considering the application of the statutory time limit; 3. rejected the tenant's compensation claim on its merits, finding that the tenant did not take steps to mitigate her loss and that the landlord was not in breach of ss 52 or 63 of the RT Act, without considering the application of the statutory time limit; 4. having determined the compensation claim on its merits, then noted that the "claim for over $14,000 damaged goods was not made until 2016 - well outside the statutory time limit", without considering whether to extend time.
5. To the extent that the Tribunal determined the tenant's claims on their merits, without extending time, this was a jurisdictional error. It was also an error to fail to consider whether to extend the time for the making of the tenant's application.
6. The Tribunal had an obligation to inform the tenant, at the hearing, of her right to apply for an extension of time to apply to the Tribunal under s 41 of the NCAT Act or to consider extending time of its own motion after hearing from the parties. This is an aspect of the Tribunal's duty to ensure that a self-represented party understands the Tribunal's procedures. In the circumstances of this case, it was clear that the applicant wished to make her applications for compensation and for reimbursement for expenses, notwithstanding the delay in lodging those applications. Given that those applications could not be made without an extension of time, it was incumbent upon the Tribunal to consider whether to grant an extension.
7. As the Tribunal did not consider whether to extend time, we cannot conclude that the effect of the statutory time limit is to make redetermination of the application futile.

Was the finding as to cause of damage to items connected with the breach?

1. Another reason why a reconsideration of the tenant's case might be futile is that the Tribunal found that there was insufficient evidence to support the tenant's claim that her property was damaged by mould and that the mould was attributable to a breach of the landlord's obligations. If the Tribunal's finding on the issue of causation could not be affected by the failure to allow cross examination of the agent or the landlord's parents, the Appeal Panel may be able to conclude that that failure would make no difference to the outcome of the proceedings. We note the High Court's injunction that a court (and equally a tribunal) "should proceed with caution" in determining that a breach could make no difference to the result already reached (Stead at 145).
2. We are unable to conclude that the Tribunal's breaches of the rules of procedural fairness could not have affected the Tribunal's determination as to causation.
3. The Tribunal commented early in its reasons that the tenant "conceded that she had no objective evidence to support her claim for the damage to her property other than the photographs tendered and her submission and oral evidence" (decision at [10]). At the end of its decision, the Tribunal noted: "there is no objective material that all the items listed as being damaged were in [the tenant's] possession during the tenancy and/or were damaged as a direct or indirect result of the landlord's failure to meet the relevant obligations under the [RT Act] for all the reasons set out above" (paragraph 33). The Tribunal implicitly found that the tenant had not established any causal connection between the mould and damp in the home and the damage to her goods. It also suggested that the tenant had not established that her goods were in fact damaged.
4. Although the evidence of the landlord's witnesses was not directly relevant to the question of whether the mould caused damage to the tenant's goods, it was relevant to the tenant's credibility. As already indicated, the evidence of the agent and the landlord's parents was that the tenant did not unblock the vents in the house before she moved out. The Tribunal rejected the tenant's evidence that she unblocked the vents in 2014, finding that "she did not appear convincing," even though there was "little objective material to assist the landlord's claim in this regard" (paragraph 31). Had the tenant been able to cross examine the agent and the landlord's parents, it is possible that the Tribunal would have come to a different conclusion about whether the tenant unblocked the vents, which may have affected its assessment of her credibility. If this occurred, it might have accepted her oral evidence concerning the causal connection between the mould and the damage to her goods.
5. For these reasons, we are not persuaded that a reconsideration of the tenant's application would be futile. Accordingly, both the tenant's and the landlord's proceedings should be remitted to the Tribunal for redetermination.

Ground 3: taking false evidence

1. The tenant's third ground, that the Tribunal took false evidence, does not raise a question of law. Whilst it is the tenant's case that the landlord's evidence was false, it is for the Tribunal to consider all admissible evidence and determine for itself whether it is credible. It is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(2).
2. In light of our decision concerning Ground 2, it is not necessary to consider whether to grant leave to appeal on Ground 3 on non-error of law grounds. This is because the tenant will have an opportunity to challenge the evidence of the landlord which she contends is false when the proceedings are remitted to the Tribunal.

Ground 4: making orders without reading documents or providing further hearing

1. Ground 4 raises a question of law, being whether the Tribunal denied the tenant procedural fairness in the way alleged. However, the tenant has not pointed to any evidence which establishes that the Tribunal failed to read her documents before making its orders or that it promised her a further hearing and failed to provide such a hearing. This ground is therefore rejected.

Orders

1. In proceedings RT 15/63146 and RT 16/04856: 1. Leave to appeal out of time is granted. 2. Leave to appeal on the ground that the tenant's evidence was rejected is refused. 3. Appeal allowed. 4. The proceedings are remitted to the Tribunal to be determined in accordance with these reasons and otherwise according to law.

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: 08 November 2016