Screations Pty Ltd v Fraser

The Appeal

1. The landlord appeals against each element of the Tribunal's decision. A summary of the grounds of appeal as we understand them is as follows: 1. Compensation for economic loss: the landlord accepts the amount awarded for a damaged game console but states that the balance of the award was made without evidence of loss; 2. Rent reduction: the landlord accepts there were some problems with the premises but argues that, on the basis of the evidence presented, a rent reduction for a period of 66 weeks was excessive; 3. Compensation for non-economic loss: the landlord accepts that the tenant suffered some distress but states that the amount awarded is excessive.
2. In summary, the landlord submits that the decision was not fair and equitable and was against the weight of the evidence. The landlord also submits that significant new evidence is now available that was not reasonably available at the time of the hearing.
3. In the appeal the landlord sought to raise issues concerning alleged damage by the tenant to the residential premises. This is not a matter which was before the Tribunal and is not a matter that can now be raised upon appeal: Hampton v Court Ltd v Crooks (1957) 97 CLR 36; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

Relevant legal principles

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) states: Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
2. Clause 12(1) of Schedule 4 to the NCAT Act states with respect to decisions made in the Consumer and Commercial Division that: An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied 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).
3. The grounds of appeal set out in the Notice of Appeal all require leave to proceed. Obtaining leave to appeal is a two-stage process. At the first stage the landlord must persuade us that it may have suffered a substantial miscarriage of justice under clause 2 of Schedule 4, because of one or more of the matters referred to in the grounds of appeal. Should the landlord persuade us that it may have suffered a substantial miscarriage of justice it must then, at the second stage, persuade us that we should exercise our discretion to grant leave to appeal on one or more of those grounds. The principles applicable to the granting of leave were set out in Collins v Urban [2014] NSWCATAP 17 at [65] - [84].
4. For the reasons which appear below we are not persuaded that the landlord has suffered a substantial miscarriage of justice.

Consideration

1. Both parties appeared before the Tribunal at the hearing and provided documentary and oral evidence. We have not been provided with a transcript or recording of the hearing and it is therefore difficult for us to ascertain with precision what was said at the hearing. Nor has either party sought the provision of written reasons for the decision.
2. We will deal with each of the grounds of appeal in turn as they relate to the particular items in dispute. At the outset we note that an appeal to the Appeal Panel does not simply provide a losing party with the opportunity to run their case again: Bowers v Karai [2021] NSWCATAP 316 at [11] and Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

Compensation for economic loss

1. The tenant's evidence to the Tribunal was that there was a leak from the roof where an extension had been built on to the house. The leak commenced in December 2020 and had been reported to the landlord's agent but repairs were not undertaken. The tenant claimed that goods in the house were damaged by water ingress on two occasions particularly following a storm and heavy rain in March 2021. She sought an amount of $2,299.95 for damage to a bed, television, game console, bedlinen, and collectible items belonging to her son. As noted above, this amount was awarded to her by the Member.
2. The landlord's primary ground of appeal in relation to this item is that, other than in relation to the game console, the tenant provided no evidence such as receipts as proof of purchase for replacements to damaged items. At the hearing of the appeal the landlord's representative agreed that there had been water ingress as a result of the leaking roof and also agreed that the games console had been damaged. The landlord stated that the tenant, however, had provided no evidence to show that other items had been damaged other than a photograph showing some water on a bed.
3. The material provided by both the landlord and tenant in the appeal, which was the evidence put before the Tribunal shows that the tenant first contacted the landlord's agent about the leak in December 2020 and again on 5 January 2021 at which point she advised that her son's bed and bed linen had been destroyed. The landlord arranged for roof gutters to be cleaned in January 2021. The tenant contacted the landlord's agent again in March 2021 to report further leaking and damage to bedding and furniture. Photographs were provided. It is apparent that the only receipt provided was for the game console.
4. As noted above, we have not been provided with a transcript of the hearing. The tenant advised us that she gave sworn evidence during the Tribunal hearing and advised the Member of the amount she had paid to replace two beds and a television which no longer worked after becoming wet.
5. It is well established that a tribunal which decides a question of fact when there is no evidence in support of the finding makes an error of law (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [91]). However, we do not consider that the decision made by the Tribunal was made without evidence. The damage to the tenant's goods was clearly notified to the landlord at the time the damage occurred and the tenant provided sworn evidence as to the cost of replacement. The amount in dispute was relatively small and the findings made by the Member were clearly open on the evidence and agreed facts before her.
6. This ground of appeal fails.

Rent reduction

1. Section 45 of the Residential Tenancies Act gives the Tribunal power to make an order determining the amount of rent payable if the rent is abated under s 43(2) of that Act - including because the premises have become wholly or partly uninhabitable otherwise than as a result of a breach of the tenancy agreement. The Member awarded the tenant a rent reduction for 66 weeks (which we understand was the duration of the tenancy) on the basis that the premises were partially uninhabitable. The Member's reasons are very brief but state that the main issue was significant gaps in the rear bifold doors leading to an inability to control internal comfort and the entry of insects etc. She noted that there were additional lighting issues and related electrical hazards, roof leakage issues and other repair issues which caused injury and inconvenience to the tenants.
2. The landlord argues that during the course of the tenancy repairs and maintenance along with the installation of new items were carried out to the amount of $7,116.35. Furthermore, issues were fixed when required and attended to as soon as possible. The landlord states that the tenant chose to stay in the property for 66 weeks rather than leave which would indicate that there were no major issues and the property was not in an uninhabitable state.
3. The landlord states that the tenant had previously applied to the Tribunal for repairs to the property to be undertaken but those proceedings were ultimately dismissed due to the non-appearance of the tenant at the scheduled hearing in February 2020, which had previously been adjourned at the request of the tenant. This matter was not previously raised by the landlord with the Tribunal and was raised for the first time before us. This is the "new evidence" ground that the landlord wishes to rely upon in the appeal as noted above. The landlord stated that this evidence had not been provided at the Tribunal hearing because the "order had been filed away".
4. As the Appeal Panel held in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]: … the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence.
5. We are not persuaded that the evidence which the landlord now seeks to rely upon was not reasonably available at the time of the hearing. The landlord's own explanation for its absence implies that it could have been obtained and put before the Tribunal but was overlooked because it had been filed away. Furthermore, the evidence must be significant and we are not persuaded that the fact an earlier application was dismissed for non-appearance, without more, is in any way significant.
6. While the extent of the evidence put before the Tribunal in considering this issue is unclear, it is apparent from the material submitted that both the landlord and tenant were provided with every opportunity both before and during the hearing to put forward evidence in relation to the condition of the premises. Photographs of various items and parts of the premises were provided along with statements by both parties. The primary issues concerned the leaking roof, structural issues with the bi-fold doors which were not sealed allowing the weather and insects into the property, security issues with those doors, lights damaged and not replaced, a bathroom exhaust fan hanging from the ceiling and various other items.
7. In essence the landlord submits that the Tribunal's decision was against the weight of the evidence. The expression "against the weight of evidence" in the Tribunal means that the evidence in its totality preponderates so strongly against the conclusion favoured by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23 at [153], followed in Collins v Urban at [77].
8. We are not satisfied that any error has been established in the manner in which the Member considered the evidence. The fact that the tenant chose to stay in the premises rather than move is irrelevant to a consideration of the habitability of the premises. The tenant concedes that certain repairs were made during the course of the tenancy in line with the landlord's obligation to maintain and repair the premises but maintains that the major issues were not attended to. In our view the findings made by the Member that the premises were partly uninhabitable were reasonably available on the evidence put forward by both parties at the hearing.
9. This ground of appeal fails.

Compensation for non-economic loss

1. The landlord disputes the amount of $1,450.50 awarded to the tenant for non-economic loss, namely the stress and inconvenience caused by ongoing repair issues with the premises. The landlord acknowledges there was some distress caused to the tenant but submits that the amount awarded was too high. In essence, the landlord argues that the decision was not fair and equitable or was against the weight of evidence and refers to the fact that the landlord has also suffered stress arising out of the roof issues. The landlord also states that the award is unfair in circumstances where the damage was caused by a natural disaster which we understand to be a reference to the March 2021 rainfall.
2. Again, it is not entirely clear what evidence was before the Tribunal but it is apparent that both parties provided copies of emails etc relating to ongoing communication about repairs to the property and other issues, particularly those related to the leaking roof and the bifold doors. The tenant told us that she proposed the amount of $1,450.50 which was ultimately awarded by the Tribunal.
3. This is not a matter where the tenant was claiming compensation for any injury or ill health caused by a breach by the landlord of the obligation to repair. While not stated in the reasons for decision, it is apparent that the Member found there had been an interference with the tenant's reasonable peace, comfort or privacy in using the residential premises in breach of s 50 of the Residential Tenancies Act. This conclusion was reasonably open on the evidence as there had been delays and failure to repair.
4. As to the amount awarded, the landlord has not pointed to any particular error in the amount but simply asserts it is too high. Issues about any stress suffered by the landlord or whether some damage was occasioned as a result of a natural weather event are not relevant to the present consideration.
5. We are satisfied that the Tribunal, doing the best it could on the basis of the evidence before it, made no error in its calculation of the sum awarded for non-economic loss. We do not therefore agree that its finding was against the weight of evidence or not fair and equitable. This ground of appeal is not made out.

Conclusions

1. The landlord has not established that the decision was not fair and equitable or against the weight of the evidence or that the Tribunal made any other error. In all the circumstances we are unable to find that the landlord has suffered a substantial miscarriage of justice. There was no real possibility or fair chance of a different result on the state of the evidence before the Tribunal.
2. None of the grounds of appeal have been established. Leave to appeal is therefore refused and the appeal is dismissed.

Orders

1. We make the following orders: 1. Leave to appeal refused. 2. Appeal 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: 21 January 2022