Sengos v Hassan

The Tribunal's Decision

1. As the Tribunal observed, the claim with respect to the bathroom was the only part of the respondent's claim that was established. The Tribunal dismissed the remaining respondent's other claims with respect to: 1. an alleged faulty installation of a range hood; 2. the existence of hole in a kitchen wall behind the microwave; and 3. costs for degreasing the kitchen and painting kitchen doors.
2. The Tribunal found that by reason of the appellant's failure to ensure safe access to the bathroom and the withdrawal of the amenity of that part of the Premises, the respondent suffered a loss of enjoyment and an interference to his peace and comfort, to be compensated by a 20% reduction in the weekly rent of $945 by $189 per week for the periods set out above, namely 7 weeks ($756) and 30 weeks ($5,670) totalling $6,426.
3. The Tribunal also ordered the appellant to pay the respondent's costs of his expert report of $1,320.
4. The total sum awarded to the respondent was $7,746.

Grounds of Appeal, Parties' Submissions and Evidence

1. The Notice of Appeal was lodged on 15 August 22.
2. The Notice of Appeal contained an attachment that set out in some detail the grounds of appeal and submissions as to why the Tribunal's decision was not fair and equitable. The appellant acknowledged that he has not identified any error on a question of law and that he requires leave to appeal from the Tribunal's decision, about which we deal later in these reasons.
3. The appellant also lodged a bundle of documents on 26 September 2022, comprising: 1. The appellant's evidence before the Tribunal; 2. The further evidence that the appellant seeks leave to rely on and described as a "work order" by Mr Foldvary dated 18 September 2022, to which we have referred above; and 3. The appellant's submissions including the RTA and tenancy ledger (the RTA and tenancy ledger were not in evidence before the Tribunal).
4. The respondent's Reply to Appeal was lodged on 30 August 2022. It contained an attachment comprising detailed submissions. The respondent also relied upon a bundle of documents lodged on 5 October 2022 comprising his written submissions for the appeal and his submissions and evidence before the Tribunal.
5. In making our decision, we have had regard to the Tribunal's reasons, the evidence before us, the parties' written submissions and their oral submissions at the hearing. Since we need to engage in detail with the parties' submissions on the appeal in our reasons, we will not separately reiterate the parties' submissions in these reasons.

Appeal Out of Time

1. At the outset, we observe that the Notice of Appeal states that Tribunal's decision was received on 28 July 2022 (which accords with the date of the decision). The appeal was lodged on 15 August 2022 and therefore it was commenced 3 days outside of the 14 days prescribed under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) (now repealed), having regard to par (d) of the definition of "residential proceedings" in r 3(1) of the NCAT Rules.
2. The appellant did not seek an extension of time within which to lodge the Notice of Appeal. We raised this with Mr Simms at the hearing. Mr Simms then sought an extension but was unable to provide an explanation as to why the Notice of Appeal was not lodged in time except to say that Mr Sengos had apparently sent the Notice of Appeal by express post to the Registry before 15 August 2022. Mr Simms said that when he happened to be at NCAT on 15 August 2022 in relation to another matter, Mr Sengos had requested him to attend on the Registry and confirm that the Notice of Appeal had been received. It appears that Mr Simms had a copy of the Notice of Appeal with him and that he then lodged it in person at the Registry on 15 August 2022. There is no record on the file of the Registry receiving another copy of the Notice of Appeal any earlier than 15 August 2022. As the respondent submitted, no tracking number was produced to confirm the assertion that Mr Sengos had posted the Notice of Appeal to the Registry by express post and within time.
3. The relevant principles for the granting of an extension of time to appeal under s 41 of the NCAT Act are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [21] and [22]. In Jackson at [22], the Appeal Panel said in relation to an extension of time in which to bring an appeal: (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 at 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) 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) 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].
4. There is no evidence that the respondent will suffer prejudice if we extend time other than in the sense described by the Appeal Panel in [22(2)] above. As to the criteria at [22(3)], the delay in this case is minimal.
5. The respondent did not deal with the question of whether the appeal was lodged within time in his Reply to Appeal or in his submissions. Mr Sukari informed us at the hearing of the appeal that the respondent objected to any extension of time being granted for the lodging of the appeal.
6. There is no evidence in support of the explanation for the delay beyond the assertion made by Mr Timms on behalf of the appellant conveyed to us at the hearing.
7. We consider the length of the delay and the prejudice to the respondent if an extension is granted to be relatively neutral factors. However, unless the appellant can satisfy us that there is apparent merit in the appeal, it could not be said that refusing to extend time will work and injustice on him. We will therefore now consider the apparent merit of the appeal, which in this context is the likelihood of the appellant obtaining leave to appeal if we extend time. Since leave is required, if the appeal has no apparent merit there would be no utility in granting an extension. Conversely, if the appellant demonstrates merit in the appeal, the prejudice to the respondent of granting an extension would not disincline the Appeal Panel to do so.
8. For the reasons that follow, in our view, the appellant's prospects of success in the appeal are weak. We are therefore satisfied that the appellant has not made out any basis to justify us relaxing the requirement that the appellant must bring his appeal within the time prescribed by the Rules.

Statutory basis of internal appeals

1. Internal appeals may be made as of a right on a question of law or otherwise with leave (that is, with the permission) of the Appeal Panel.
2. Where, as in this case, the appellant is represented by an agent, it is appropriate for the Appeal Panel to review the stated grounds of appeal, the material provided by the parties and the Tribunal's decision which is being challenged to ascertain whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13].
3. An internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 (BKB Motor Vehicles), the Appeal Panel said at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.
4. As we stated earlier, the appellant concedes that he has not identified any relevant question of law. Nor have we identified one from his material and submissions. The appellant would need leave to appeal.

Leave to Appeal

1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must first be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that the decision of the Tribunal under appeal was not fair and equitable; the decision of the Tribunal under appeal was against the weight of evidence or there was significant new evidence that was not reasonably available at the time the proceedings under appeal were being dealt with.
2. In the Appeal Panel's decision in Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at paragraph [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where there was a significant possibility or a chance that was fairly open, that a different and more favourable result would have been achieved for the appellant had the relevant circumstances in paragraphs (a) or (b) of cl 12(1) not occurred or if the fresh evidence under paragraph (c) of cl 12(1) had been before the Tribunal at first instance.
3. As noted during the hearing of the appeal, even if an appellant from the 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. In the Appeal Panel's decision of Collins v Urban, the Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in certain matters.
4. Those types of matters include issues of principle, questions of general public importance, an injustice which is reasonably clear so that it would be unjust to allow the finding to stand, a factual error that was unreasonably arrived at and clearly mistaken or the Tribunal having gone about the fact finding process 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.
5. The appellant asserts that the decision of the Tribunal was not fair and equitable but seeks leave to rely on evidence not before the Tribunal in doing so.

Application to Rely on Further Evidence

1. As cl 12 of Sch 4 of the NCAT Act makes clear, reliance on further evidence to support a grant of leave is fettered by the requirement that it be significant new evidence that has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). We do not consider that any of the documents provided by the appellant in the appeal constitutes significant new evidence that was not reasonably available at the time of the hearing.
2. The appellant sought to tender the RTA and tenancy ledger on the appeal. These documents were not before the Tribunal and the only explanation for the appellant not submitting those documents in evidence before the Tribunal was that the appellant's agent believed the obligation was on the respondent to provide all relevant tenancy documents. Even if that may be the case (and we do not say that it is), if it was relevant to the appellant's case in response to the application before the Tribunal it was incumbent on the appellant to provide all evidence on which he sought to rely in accordance with the standard directions made for the hearing before the Tribunal.
3. In any event, the relevance of these documents for the purposes of the appeal is marginal and only seems to be relied upon to establish that the rent at the relevant time of the claims for excessive rent was less than the amount used by the Tribunal to calculate the amount of compensation. We have accepted the appellant's submission that the amount of rent payable at the time of the events giving rise to the claims in the application was less than the rent which was payable at the time of the proceedings before the Tribunal and used by the Tribunal as the basis for calculating the amount of compensation payable to the respondent.
4. We now turn to the appellant's application for leave to rely on Mr Foldvary's report.
5. The principles governing the admissibility of further evidence was discussed by the Appeal Panel in Owen v Kim [2017] NSWCATAP 26 (Owen v Kim) at [37]-[39]. The Appeal Panel said: 37. In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38. In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40]: The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that 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. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39. As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'"
6. Having regard to those principles, there are several reasons for not permitting Mr Foldvary's report into evidence on the appeal: 1. First, we are satisfied that it was within the ability of the appellant to obtain evidence from Mr Foldvary before the hearing at first instance and the appellant has not provided any evidence to the contrary, save for a bare assertion in submissions that there was some difficulty in obtaining a report. We do not accept that unsubstantiated assertion. In fact, the evidence before the Tribunal included invoices and documents relevant to the works undertaken by Mr Foldvary at the Premises. He said he undertook "regular on-site repairs" at the Premises on 12 separate occasions. 2. Secondly, even if we were wrong in that finding, the expertise of Mr Foldvary is not established beyond his 15 years as a carpenter (1997-2010) and 14 years of bathroom renovations referred to as "current". But beyond his qualifications as a carpenter and a reference to being "licensed", his expertise is unknown. The respondent described him as a "handyman" and professionally unqualified to undertake the repair works as he only holds a licence as a wall and floor tiler. We cannot comment on the accuracy of that, but it underlines the fact that in the exercise of our discretion, we could not be satisfied that the report on which the appellant seeks to rely is made by an expert of appropriate study, training, and expertise to be admissible as an expert report. 3. Thirdly, Mr Foldvary could not be described as an independent expert. He undertook much of the maintenance and repair work that was the subject of criticism by the respondent. It is not apparent that he could be expected to give impartial and objective evidence. 4. Fourthly, it would be unfair to the respondent who did obtain expert evidence to have to meet this new evidence when it could and should have been presented before the Tribunal if the appellant regarded it as relevant and probative. Without remitting the matter back to the Tribunal for further consideration, the respondent would be denied the opportunity of being able to deal with it. And to remit the matter to allow the respondent a right of response would be inimical to the "guiding principle" in s 36 of the NACT Act and cause a prejudice to the respondent that could not be remedied even with an order for costs in his favour.

Fair and Equitable Ground

1. The sole basis upon which the appellant then proceeds is whether the decision was fair and equitable.
2. In the absence of the appellant lodging the sound recording or a transcript of the hearing at first instance as directed by the Appeal Panel on 31 August 2022 (see direction 3(d)), we are not able to assess the evidence that was before the Tribunal and whether it was challenged or the subject of competing evidence by the appellant. We cannot therefore conclusively determine whether the Tribunal's findings were not fair and equitable by reason of the contentions now made on the appeal: Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [22]-[26]; Geracitano v Cloughessy [2021] NSWCATAP 329 at [23]-[27]; Lazaris v Kale [2022] NSWCATAP 36 at [23]-[28].
3. As the Appeal Panel stated in Watson v Chen [2022] NSWCATAP 44 at [27], compliance by the parties with procedural directions made by the Tribunal is "mandatory, not voluntary…". This is reiterated in the NCAT's Guideline 1 "Internal Appeals" at cl 60 that states: 60. The parties are required to comply with any directions made for the filing and service of submissions and other material to be relied upon in order to prepare the matter for hearing.
4. The appellant's submissions on the appeal are mostly presented as mere assertion, unsupported by evidence. To that extent, the appellant takes issue with the findings of the Tribunal but he does not adequately address how, if it is the case, the findings were wrong.
5. For example, the appellant states "the original leak was rectified within 24 hours". Clearly that was a fact in dispute. The Tribunal preferred the respondent's evidence. The appellant also asserts that the second leak "was unrelated and was due to a blocked drain". The Tribunal dealt with the two events as separate matters and determined separate periods of time for each of them when calculating compensation. The assertion that there was no loss of enjoyment from 10 June 2020 to 30 July 2020 is also unhelpful and is presented as no more than an unsupported assertion which was not accepted by the Tribunal. So too, the submission that the tenant was witnessed "using the area" when the property was inspected on 26 April 2022. That is both exceedingly vague and lacking in corroboration.
6. The Tribunal's decision to use the existing rent of $945 per week, and not the rent applicable at the relevant time of the claim for compensation, was not the fault of the Tribunal. As the appellant acknowledges and the Tribunal stated in its reasons, the RTA was not in evidence before the Tribunal. Presumably, the evidence of weekly rent was provided during the course of the hearing and if it was incorrect, then the appellant had the opportunity to correct it.
7. We also reject the contention that it was a failure on the part of the Tribunal that caused the appellant to omit tendering the RTA. The Notice of Listing for Conciliation and Hearing made by the Tribunal on 10 May 2022 required the respondent (here the appellant) to provide to the Tribunal all "tenancy documents" including the "tenancy agreement". Orders made on 6 June 2022 required both parties to provide documents to be relied upon at the hearing before the Tribunal. If it was considered relevant, it was for the parties to adduce a copy of the RTA. We do not accept that it was for the Tribunal to require the parties of the need to tender the RTA if they chose not to do so.
8. We consider that overall, the Tribunal's decision was open on the evidence that was before it and that was referred to by the parties. The decision cannot be seen to have been against the weight of evidence and to the extent that the appellant's submissions might indirectly raise this ground for leave to appeal, it also fails.

Monetary Claim by the Respondent

1. Finally, we observe that the respondent in his submissions has sought to invoke the "slip rule' to claim that the Tribunal miscalculated the compensation for loss of amenity in respect of the first bathroom leak by only allowing $756 (at $189 per week at 20% rent reduction for 7 weeks).
2. The respondent contends that the amount should have been $1,323, a difference of $567.
3. There are several reasons why we have declined the respondent's claim for an extra $567. 1. Firstly, an error such as this should be promptly brought to the attention of the Tribunal for correction under s 63 of the NCAT Act. Only the President or the Tribunal Member who was the relevant decision-maker can correct such an error. 2. Secondly, this is not a matter that is properly the subject of an appeal, particularly where the respondent has not filed its own application/cross application or raised it in the Reply to Appeal to allow the appellant the opportunity of dealing with the claim. 3. Thirdly, the amount claimed is relatively minor. Section 36(4) of the NCAT Act requires the Tribunal to implement procedures in facilitating the resolution of a dispute so that the costs to the parties and the Tribunal "is proportionate to the importance and complexity of the subject matter". As noted in Fletcher-Jones v Avant Garde Logistics Solutions Pty Ltd [2021] NSWCATAP 201 at [26]-[27]: 26. We accept that there is no minimum monetary amount governing when leave to appeal should be granted by the Appeal Panel. 27. However, the quantum of any order is a relevant consideration, due to the requirement on us to implement the practice and procedure of the Tribunal so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: NCAT Act s 36(4). 1. Finally, we are cognisant of the appellant's contention that the calculation of the rent reduction at $189 was based on the current weekly rent of $945 under the RTA and not based on the rent payable under the RTA at the time of the loss of amenity, which was $895. There seems to be no dispute about those figures. The respondent has therefore already been advantaged by the decision and while that may have been attributed to the appellant not advising the Tribunal as to the relevant weekly rent at the time of the repairs being undertaken or tendering a copy of the RTA, it does not mean that the respondent's advantage should be compounded by us.
4. We reject the respondent's claim for a further payment of $567.

Costs

1. Neither party was legally represented or made any application for costs. Accordingly, we make no orders with respect to the costs of the appeal.

Orders

1. Our orders are: 1. Refuse the application to extend time to lodge the Notice of Appeal.

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: 18 November 2022