The appellant tenants appeal from a decision of the Tribunal's Consumer and Commercial Division in which the Tribunal ordered them to pay the respondent landlord the sum of $3,355. The whole of the tenants' bond was to be paid to the landlord and this amount was to be credited against the money order.
The figure of $3,355 was the net amount found to be owed by the tenants to the landlord after the Tribunal:
1. dismissed the tenants' cross claim for overpaid rent;
2. upheld the landlord's claim for compensation in the sum of $1,030 by reason of the tenants' failure to remove their goods and leave the property as nearly as possible in the same condition as set out in the entry condition report, fair wear and tear excepted, when they vacated the premises; and
3. added the amount the Tribunal found the tenants owed the landlord for arrears of rent, which was $2,325.
We are not persuaded the Tribunal made an appellable error and, for the reasons that follow, we have decided that the appeal should be dismissed.
The tenants were self-represented by the first appellant. The landlord was represented by her agent, leave having been granted to be so on 17 December 2019.
[2]
Background
The parties entered into a six-month residential tenancy agreement in February 2016 for premises in NSW. The tenancy continued thereafter until 21 August 2019 when the tenants vacated.
Rent was $1,050 per fortnight and the bond was $2,140.
It is an agreed fact that, from 20 July 2019, the tenants stopped paying rent. This was based on their, ultimately misconceived, belief that they had overpaid the rent.
After the tenants vacated, the landlord's agent conducted an outgoing inspection and completed a report on 23 August 2019. The landlord considered that the tenants had "left the property in an unacceptable state, [that] it was extremely dirty and there was evidence of pests & vermin as well as rubbish that was left behind" and lodged her application on 11 September 2019 for an order for compensation in the amount of $3,650 (including rent arrears) and an order regarding the payment of the rental bond: application RT19/41015 (the Landlord's Application).
The first appellant then lodged a cross claim seeking a money order for what he claimed was overpayment of rent by the three tenants, even accounting for the fact the tenants did not pay rent from 20 July 2019 until they vacated the premises: RT19/43788 (the Tenants' Application).
Directions were made in both related files and they were heard together on 25 November 2019. The Member made the orders and gave reasons on the same day (Decision). While the Member did not make an order that the Tenants' Application be dismissed, it is clear from the reasons and the two orders made that the Member was not satisfied that the tenants had overpaid the rent and found they were not entitled to a money order for overpaid rent.
[3]
Evidence
On this appeal the tenants filed a number of submissions, variously named as affidavits and rebuttals. The tenants also attached the documents tendered in the Tribunal at first instance, including some of the landlord's documents. The tenants referred to "fresh evidence" in their Notice of Appeal (section 5.C) however the only document which the tenants suggest was not tendered at first instance was page 10 behind 'affidavit' 1 filed on 10 January 2020. This page 10 appeared to be a print out of file notes from 8 Feb 2012 to 16 Aug 2018 from Housing NSW. The landlord's agent confirmed during the hearing that she had already seen this document in earlier proceedings. This document appears to have been tendered at first instance and is not fresh evidence. It could be relied on by the tenants in this appeal on that basis.
The tenants provided a sound recording of the hearing on 25 November 2019 but not a transcript. In any event no grounds of appeal concern the conduct of the hearing at first instance, and no reference was made to anything said at the hearing.
The landlord tendered:
1. Phone record showing call to tenant on 28 August 2019;
2. Ingoing and outgoing inspection reports;
3. Enlarged photographs from outgoing inspection report;
4. Rent ledgers both computer generated and manually created;
5. Reconciliation between tenant's bank statement and ledger receipt numbers;
6. Residential tenancy agreement;
7. Dates and snapshot of outgoing inspection photos;
8. Invoice of costs;
9. REST software correspondence for rent arrears.
In addition the landlord provided submissions, by her agent, on 17 December 2019 and 28 January 2020, as well as a copy of the Decision and an earlier decision of the Appeal Panel between the parties, delivered orally on 15 October 2018 per Principal Member Rosser.
[4]
Grounds of Appeal
The tenants are undoubtedly unhappy with the Decision, however, discontent with the outcome is not a ground of appeal.
The Notice of Appeal nominates only the decision in the Landlord's Application as the subject of the appeal. Notwithstanding that, the tenants sought, among other things, an order that "RT19/41015 and RT19/43788 be set aside and remitted to a differently constituted Tribunal for hearing and determination according to law". The tenants sought leave during the hearing of the appeal to appeal against the effective decision made in the Tenants' Application as well. The tenants needed an extension of time to do so as residential tenancy proceedings need to be appealed within 14 days of the Decision, which in this case was 10 December 2019. We may extend time to add an appeal against the effective decision made in the Tenants' Application to 19 February 2020 pursuant to s.41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act). The respondent did not oppose leave being granted to add an appeal against the dismissal of the Tenants' Application, nor the extension of time, and we determined it was appropriate to allow the tenants to add the decision in the Tenant's Application to this appeal.
The tenants attached written submissions to the Notice of Appeal, referred to as "rebuttal" of the orders and decisions made on 25 November 2019 and "comments". No grounds of appeal were disclosed in the attached document. They made further submissions, which are labelled "affidavits" but which are not affidavits, filed on 10 January 2020. Those submissions do not disclose any ground of appeal either.
We may only grant leave to appeal from decisions made in the Consumer and Commercial Division as set out in cl 12(1) of Schedule 4 of the Act, that is if we are satisfied that the tenant may have suffered a substantial miscarriage of justice on the basis that:
1. the decision of the Tribunal under appeal was not fair and equitable; or
2. the decision of the Tribunal under appeal was against the weight of evidence; or
3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The tenants alleged only that "[t]he Tribunal should have given more weight to the financial documents and the photos of the condition of the property when we vacated…"
[5]
Ground of Appeal
During the Appeal hearing the tenants confirmed that their only ground of appeal was an allegation that they may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was against the weight of evidence, in relation to the findings in relation to the rent owed and the condition of the property when they vacated.
The tenants were given several opportunities to explain to us how the Tribunal erred in finding that they owed the landlord $2,325 rent arrears. Clearly the tenants were dissatisfied with the Decision, but as we explained, this dissatisfaction does not amount to error. Whilst the tenants submitted documents evidencing some of the payments made by them for rent during the tenancy, no discernible error was thereby shown.
The remaining alleged error as to the weight of evidence concerns the Tribunal's finding as to the breaches of ss 51 and 166 regarding the cleanliness of the premises upon vacation.
In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel explained at [77] that:
77. As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:
….(2) The decision under appeal can be said to be "against the weight of evidence" … 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 - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].
The tenants say that the Tribunal gave insufficient weight to their assertion that photographs in the outgoing condition report were taken on 25 September 2019, rather than on 23 August 2019. The landlord says that the date of 25 September 2019 was automatically applied to the photographs by their reporting program when the report was last printed, and that the photographs were taken on 23 August 2019. If necessary, the landlord sought to rely on fresh evidence in the appeal, being the metadata of the photographs, to establish the date they were taken. In our view, the matter can be determined without resort to fresh evidence. The submissions of the parties on this issue were clearly before the Tribunal at first instance. The Tribunal accepted the landlord's evidence. The Tribunal said, at [11] "The landlord also relied on photos said to be taken on 23 August during the exit inspection. The tribunal does not accept the tenants' submissions the agent was untruthful about the date these photos were taken."
When it is alleged that a decision maker gave insufficient weight to a relevant matter, deference must be given to the decision of the Tribunal below. Further, it is insufficient for a tenant to merely persuade an appellate body that it would have decided the matter differently: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61, (Bathurst CJ and Leeming JA) at [13].
In any event, there is no allegation by the tenants of any intervening event, such as the reletting of the property, between 23 August 2019 and 25 September 2019 that made the actual date of the photographs an important consideration. Even if the Tribunal was wrong in its finding as to when the photographs were taken, which we do not accept, it could not lead to a finding that the evidence in its totality preponderated 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.
We are not satisfied that the tenants may have suffered a substantial miscarriage of justice because the decision was against the weight of the evidence. On that basis, we may not grant leave to appeal.
There is also no basis for the stay granted by order on 19 December 2019 to continue.
[6]
Costs
The amounts in dispute in the appeal were less than $30,000, therefore s 60 of the Act applies and each party must pay their own costs unless the Appeal Panel finds special circumstances exist that warrant an award of costs.
Both parties agreed at the hearing of the appeal that it was appropriate to dispense with a further hearing on the question of costs, should the landlord make a costs application. We agree, and order accordingly.
[7]
Orders
1. Leave to appeal is refused.
2. The appeal is dismissed.
3. The stay ordered on 19 December 2019 is set aside.
4. The respondent may lodge in the Tribunal and give to the appellants any application for costs, supported by submissions, within seven days.
5. The appellants may provide submissions opposing any cost order sought by the respondent within 14 days.
6. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, the Appeal Panel dispenses with a hearing on the question of costs and will determine any application for costs on the papers.
[8]
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
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Decision last updated: 03 April 2020