Seymour v Wu

NCAT Appeal Panel|2022-04-12

Overview

The appellant (the tenant) appeals against orders made by the Tribunal upholding the respondent's (the landlord) claim against him concerning rent he owed, including arrears of rent, and dismissing his separate claim in which he challenged the landlord's entitlement to the amount of rent claimed against him.
The premises the subject of a residential tenancy agreement between the parties is a unit in a multi-unit apartment block in Sydney the subject of a strata plan.
This appeal is concerned only with aspects relating to the amount of rent owing by the tenant. We are not concerned with any issue about termination or possession of the residential premises. That issue is the subject of separate proceedings between the parties.
For the reasons set out below, we have decided that leave to appeal should be refused and the appeal should be dismissed.

Background

The tenant first occupied the residential premises the subject of this rental dispute under a written residential tenancy agreement entered into with the landlord in 2011. Subsequently, the parties entered into a new, fixed term, 12 month, written residential tenancy agreement commencing on 5 June 2014. That agreement specified a commencing rent of $530 per week increasing to $550 per week starting on 26 June 2014. As provided for in s 41 (1A) of the Residential Tenancies Act 2010 (NSW) (RTA), no notice of increase of the rent to $550 was required to be given under s 41 in these circumstances.
As appears from the Tribunal's reasons for decision (examined further below), on the evidence that came to be given to the Tribunal at the hearing on 3 February 2022, there could be no real dispute between the parties that the landlord gave the tenant a notice of a rent increase, dated 1 April 2016, to an amount of $590 per week commencing on 9 June 2016 (the notice itself was not in evidence).
There could also be no real dispute between the parties that for a lengthy period of time dating back to, at least, October 2016, the tenant paid a weekly rental of $580 per week. The landlord's rental trust account ledger for the tenant reveals this. Furthermore, in an email from the tenant to the landlord's agent, sent on 4 September 2018 at 12:08 PM, the tenant stated "…4. The rent I'm paying, $580 a week is in line with rents sought for similar 2 bedrooms in this building, and nearby buildings…" A statement by the tenant, dated 29 September 2021, for hearing in the Tribunal on 12 October 2021, stated that he was paying $580 per week from 26 June 2015 up to and including 5 June 2020. The landlord's rental ledger supports this from 28 October 2016.
An email from the landlord's agent to the tenant, sent on 11 January 2019 at 11: 31 AM, stated that the rent increased from $550 to $580 from 10 June 2015. The reply email from the tenant sent later that day did not dispute this statement. However, the landlord never presented any notice of rent increase to $580 per week to the Tribunal (neither did the tenant), despite the clear opportunity for the landlord to have done so.
These emails on 11 January 2019 were part of an exchange of emails between the tenant and the landlord's agent on the subject of "Water damage & defects.." to the tenant's unit commencing with an email from the tenant sent on 5 January 2019 at 11:02 a.m. In the latter email, the tenant complained about weekly demands for payment of arrears of rent, stated that he was, currently, paying $580 per week "an amount above the market, in particular for this 9 year-old building" and referred to an inspection that morning where obvious defects were noted and recorded. The tenant stated, amongst other things: 'The floor on the balconies are slanted the wrong way, causing a "swimming pool" of water, after rains, which seeps into the unit; which over the years has damaged the unit, including the carpets. The water outlets on the balconies are too small, and inappropriate to drain out water, after the rain. As you are aware I've been complaining about these matters for over 2 years, and nothing has been done, despite inspections where photos were taken.'
The emails from the landlord in this exchange sent on 7 January 2019 at 12:25 p.m. and the 11 January 2019 email show that, following a request from the agent to the landlord to adjust the rent back to $580 from 9 June 2016 (plainly, a reference to the above notice of rent increase to $590 per week) this $10 reduction was approved by the landlord (see the first sentence in the landlord's email of 11 January 2019).
Dating back to 2014, a prominent feature of email communications between the tenant and the landlord's agent over a number of years were references to occasions when the lift in the apartment block was out of operation. The tenant complained to the landlord's agent about these problems and the personal injury and disruption this caused him and the agent's response was that it was a responsibility of the owners corporation because it was common property.
In 2020 relations between the tenant and the landlord worsened. The above statement from the tenant dated 29 September 2021 states that he started paying rent of $540 per week on 19 June 2020, which he continued to pay until 20 November 2020, at which time he ceased paying rent altogether. The landlord's rental ledger supports this.
Shortly before Christmas in 2020, both parties had informed each other that they would be commencing litigation in the New Year. The landlord would commence proceedings in the Tribunal for termination and possession (a notice of termination and possession for non-payment of rent was issued in that month) and the tenant would be commencing proceedings in the District Court of NSW for substantial personal injuries damages caused by the lift being out of operation.
By proceedings RT 21/00502 in the Tribunal, lodged by the tenant on 5 January 2021, which are not the subject of this appeal, the tenant sought an order that the landlord's notice of termination and possession of the premises issued by the landlord in December 2021 was invalid.
By proceedings RT 21/01276 in the Tribunal, lodged by the landlord on 12 January 2021, the landlord sought termination of the residential tenancy agreement and possession of the premises on the ground of non-payment of rent and an order for the payment of rental arrears. The money orders which came to be made in those proceedings are the subject of this appeal.
In March 2021, the tenant commenced proceedings against the landlord in the District Court. The Appeal Panel determining an appeal by the tenant from part of the orders that came to be made in RT 21/01276 (Seymour v Wu [2021] NSWCATAP 289) described the claim by the tenant in the District Court proceedings in the following terms: 42. …Mr Seymour sued Mr Wu for: 1. matters which are the responsibility of the body corporate (for the complex in which this unit was situated) under the Strata Schemes Management Act 2015 (NSW) (in relation to aspects of the common property with which Mr Seymour is dissatisfied), and alleged personal injury occasioned to Mr Seymour in relation to those matters (having to access his unit by way of three flights of stairs because the lift was inoperative for a period of time in August and September 2014 and which allegedly aggravated Mr Seymour's right knee which caused or contributed to the need for a right knee replacement on 30 September 2014); 2. alleged injury to his ankle in July, August, and September 2020 when the lift was out of order for about four weeks in July and August 2020 which may have caused or contributed to the need for right ankle replacement on 14 October 2020; 3. inadequate drainage from his balcony, and water penetration into his unit after heavy rain….; 4. increases in rent without service of the appropriate notice; 5. excessive rent due to the water penetration issues referred to above; 6. a declaration that the termination notice was not valid
Following a hearing of the two Tribunal proceedings RT 21/00502 and RT 21/01276, together on 29 June 2021, the Tribunal (Senior Member Charles) upheld the landlord's claim for termination and possession, made directions for an adjourned hearing of the claim for arrears of rent and dismissed the tenant's claim (RT 21/00502).
As to the adjourned hearing, the Tribunal explained that it became apparent during the hearing that the landlord's representative did not have all relevant material for a calculation to be made of the rent arrears "but particularly in circumstances where the tenant was disputing whether the tenant had been served with rent increase notices…. Accordingly, [the landlord's representative] decided not to press for orders today for rent arrears and he also conceded that the rent arrears claimed could not exceed the Tribunal's jurisdictional limit of $15,000.00 if he wished to continue a claim for rent arrears in the Tribunal. Accordingly, directions are made for an exchange of documents on that issue only; i.e. to facilitate a hearing on the issue of rent arrears at a later date to be fixed by the Divisional Registrar."
In upholding the landlord's claim for termination and possession the Tribunal said that it made the following findings, amongst others: 1. The parties entered into residential tenancy agreements dated 20 May 2011 and 22 May 2014 for fixed 12 month terms, which became a periodic tenancy relationship from 4 June 2015: at [8] (1). 2. Rent started at $460 per week under the 2011 agreement, rising to $530 per week and then $550 per week under the 2014 agreement and now being $580 per week, according to the landlord's oral evidence that day, having decreased from $590 per week in 2019: at [8] (1). 3. The tenant has not paid all the rent owing …. meaning there are substantial rent arrears to be calculated by the landlord pursuant to directions for further evidence on the issue of rent arrears. 4. The Tribunal is satisfied that the breach by non-payment of rent in the circumstances of the case was such as to justify termination of the tenancy.
The Tribunal proceeded to make an order for the immediate termination of the residential tenancy agreement and for possession. It suspended the order for possession until 28 July 2021 and ordered the tenant to pay an occupation fee of $82.85 per day from 30 June 2021 (based upon a weekly rental of $580). It did not make an order under s 89 (5) of the RTA based upon the required conclusion that the tenant had frequently failed to pay rent owing. Accordingly, in accordance with s 87 (3) of the RTA, a termination solely on the ground of non-payment of rent and any warrant for possession issued as a result of any order for possession would cease to have effect if the tenant paid all the rent owing or entered into, and fully complied with, a repayment plan agreed with the landlord.
It is clear from the Tribunal's reasons (and those of the Appeal Panel referred to above) that the tenant did not, at this time, seek to respond to the landlord's claims by applying in the Tribunal for orders that the Tribunal was empowered to make concerning alleged excessive rent or a rent refund pursuant to ss 44, 45 or 47 of the RTA. A misconceived claim of that nature in respect of excessive rent had been made by him in the District Court of NSW. As the terms of those sections of the RTA make clear, such claims needed to be made in the Tribunal.
On 27 September 2021, the Appeal Panel (referred to above) dismissed an appeal by the tenant against the orders made in these two proceedings on 29 June 2021. Because the point had not been raised before the Tribunal at first instance, the Appeal Panel refused to allow Mr Seymour to raise on appeal an argument that he was not in rental arrears at all: at [29].
Thereafter, proceedings RT 21/42081 were commenced by the tenant on 5 October 2021. In these proceedings the tenant sought orders as follows: 1.That there was no valid increase in rent under Section 41 of the [RTA] and as a consequence any rent so paid by the tenant is recoverable. 2.In any event rent paid by the tenant was excessive for long periods and the tenant sought relief under Section 44 (1) and to any extent, if applicable, sought leave under Section 44 (2). 3.An appropriate order under Section 44 (5) (a), (d) & (h). 4.An appropriate order under Section 45. 5.An order under Section 47 requiring the landlord to repay excessive rent to the tenant.
In what we understand was an attachment (7 pages) to the application commencing these proceedings, the tenant described the grounds of his application. This included reference to: 1. The complaints he had long made about the lift not working, water leaking into the unit, damage to the carpets, cracks in the walls, interruption to TV app and Foxtel services and "other matters" in respect of which he relied upon documents contained in two folders filed earlier in the proceedings. It was indicated that these warranted compensation in the amount of $15,000, as well as a rent reduction under s 44 of the RTA. 2. The requirements of s 41 of the RTA in respect of any rent increases had not been met, which included rent increases to $550, then $580 and then $590 per week. The tenant said that, as a consequence, he had paid $13,993.65 in rent to which the landlord was not entitled, or on the basis that a non-excessive rent of $530 per week was applied there was $16,715.00 excessive rent that he had paid. He requested that the Tribunal declare a fair rent for the premises at $530 per week applicable from 1 July 2018. 3. An order in the sum of $28,372.00 should be made in favour of the tenant made up of $15,000.00 compensation and a rental claim of $13,372.00.
On 11 November 2021, following a hearing, together, of the remaining part of RT 21/01276 and a first hearing of RT 21/42081, the Tribunal made the following orders: 1. On 11 November 2021 the hearing was adjourned to a date to be fixed by the Registrar. 2. The request for an extension of time to issue a warrant for possession is refused. Interim Order 3. The tenant is to pay ZICHAO WU rent, presently $580 per week, next payment due on the 15-Nov-2021 in accordance with the residential tenancy agreement. Procedural Order 4. At the next hearing the Tribunal shall hear the Tenant's application being 21/42081 (the Tenant's Current Application). The issues to be determined are as follows. (a) If any part of the Tenants application was raised and determined at the hearing of matter RT 21/00502 which was heard and dismissed on 29 June 2021; and, (b) whether: (i) the rent was valid the raised during the term of the tenancy and if those rent increases are not payable having regard to section 41 (10) of the Act; (ii) an order should be made that the rent payable during the tenancy was excessive having regard to section 44 (2) of the ACT and any evidence before the Tribunal as to matters set out in section 44 (5) (a), (d) and (h) of the Act; (iii) an order should be made that rent creases during the tenancy are not payable having regard to section 44 (2) of the Act; (iv) section 45 of the Act is applicable to this matter and if so what part of the rent abated; (v) whether section 47 of the Act is applicable to this matter and if so what amount should be repaid to the Tenant by the Landlord pursuant to that section or another section of the Act such as section 190; and, (vi) any compensation is payable by the Landlord to the Tenant.
In its decision on 11 November 2021 the Tribunal also gave some reasons concerning rental arrears, the subject of the remaining part of RT 21/01276, to which it cross referred in its decision on 3 February 2022. Relevantly, the Tribunal said: 13. The Tribunal asked the Tenant whether, in his submission, the rent record tendered by the Landlord…. was in error, that is payments made by the Tenant were omitted or any other arithmetic calculation was wrong. The Tenant did not answer that question and stated that the termination notice given to him was invalid, the rent was excessive, no rent increase notices were given in the rent increases were excessive. While those matters may be relevant to matter RT 21/42081, which will be dealt with at the next hearing, the Tenant did not answer the question. 14. On the basis of: (a) the rent ledger tendered by the Landlord… (b) the findings of fact made by the Tribunal in matter RT 21/01276 and set out at paragraph 8 (1) of the Reasons for the decision in that matter that the current rent payable is $580 per week at all relevant times; the Tribunal calculates that the rent arrears for the period from 04-Nov-2020 to 11-Nov-2021 is $30,809.66… This amount will increase by $82.85 per day from 12 November 2021, subject to: (c) any rent payments made to (sic) the Tenant; and, (d) the amount awarded to the Tenant in matter RT 21/42081.
By the time of the hearing in this appeal there were other proceedings on foot between the parties concerning attempts by the landlord to terminate the residential tenancy relationship and obtain possession of the premises. We are not concerned with such matters on this appeal.

Relevant provisions of the RTA

Section 41 of the RTA, relevantly, provides: 41 Rent increases (1) The rent payable under a residential tenancy agreement may be increased only if - (a) the tenant is given a written notice by the landlord or the landlord's agent specifying the increased rent and the day from which it is payable, and (b) the notice is given at least 60 days before the increased rent is payable. (1A) Subsection (1) does not apply to a fixed term agreement for a fixed term of less than 2 years that specifies the date on which, and the amount by which, the rent payable under that agreement will be increased. This subsection does not affect the operation of subsection (2) in relation to the renewal of a fixed term agreement. (1B) The rent payable under a periodic agreement may not be increased more than once in any period of 12 months. ….. (3) A rent increase is not payable by a tenant unless the rent is increased in accordance with this section or the rent is increased by the Tribunal. (4) The residential tenancy agreement is varied to specify the increased rent from the date the rent is increased in accordance with this section. ….. (6) Notice of a rent increase may be cancelled or varied (so as to reduce the increase) by a subsequent written notice given to the tenant by or on behalf of the landlord. Any such later notice takes effect from the date on which the earlier notice was to take effect. ….. (8) Subsections (1)-(7) are terms of every residential tenancy agreement. (9) A landlord or landlord's agent must not contravene this section. Maximum penalty - 20 penalty units. (10) The Tribunal must not make an order that a rent increase is not payable because this section has not been complied with unless the application for the order is made not later than 12 months after the rent is increased. If an application has not been made within that 12 month period, the rent increase is taken to comply with this section.
Section 43 of the RTA provides: 43 Rent reductions (1) Reduction in goods, services or facilities The tenant may make a written request to the landlord at any time for a reduction in rent if the landlord reduces or withdraws any goods, services or facilities provided with the residential premises, even if those goods, services or facilities are provided under a separate or a previous contract, agreement or arrangement. (2) Premises unusable The rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are - (a) otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or (b) cease to be lawfully usable as a residence, or (c) appropriated or acquired by any authority by compulsory process. (3) Access to purchasers The landlord and tenant may agree to reduce the rent payable for premises during periods when access to the residential premises is required to be given to prospective purchasers of the premises. (4) Effect of section This section does not limit the rights of landlords and tenants to agree to reduce the rent payable under a residential tenancy agreement. (5) This section is a term of every residential tenancy agreement.
Section 44 of the RTA, relevantly, provides: 44 Tenant's remedies for excessive rent (1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders - (a) an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount, (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount. (2) Time limit for excessive rent increase applications An application for an order that a rent increase is excessive must be made within the period prescribed by the regulations after notice of the increase is given. (3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement. (4) Determination of excessive rent For the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent. (5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive - (a) the general market level of rents for comparable premises in the locality or a similar locality, (b) the landlord's outgoings under the residential tenancy agreement or proposed agreement, (c) any fittings, appliances or other goods, services or facilities provided with the residential premises, (d) the state of repair of the residential premises, (e) the accommodation and amenities provided in the residential premises, (f) any work done to the residential premises by or on behalf of the tenant, (g) when the last increase occurred, (h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent). (6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent - (a) has effect for the period (of not more than 12 months) specified by the Tribunal, and (b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable.
Regulation 39 (1) of the Residential Tenancies Regulations 2019 provides that the prescribed time for making an application for an order that a rent increase is excessive pursuant to s 44 (2) is within 30 days after the notice of increase is given.
Section 45 of the RTA provides: 45 Remedies for reduction of rent on frustration of residential tenancy agreement (1) The Tribunal may, on application by the landlord or tenant, make an order determining the amount of rent payable if the rent is abated under section 43(2). (2) The Tribunal may order that - (a) from a specified day, the rent for the residential premises must not exceed a specified amount, and (b) the landlord must repay to the tenant any rent paid by the tenant since the specified day that is in excess of the specified amount.
Section 47 of the RTA, relevantly, provides: 47 Tenant's remedies for repayment of rent and excess charges (1) Requests to landlord A tenant may make a written request to the landlord that the landlord repay to the tenant any rent, or other amounts, paid by the tenant that are not required to be paid under this Act or the residential tenancy agreement. (2) A request may be made during or after the termination of a residential tenancy agreement. (3) A landlord must, within 14 days of a written request by a tenant, repay to the tenant the amount of any rent or other amount paid in excess of the amount payable by the tenant under this Act or the residential tenancy agreement. (4) Tribunal orders A tenant may apply to the Tribunal for an order for the repayment of rent or any other amount paid by the tenant if a written request by the tenant for payment is not complied with by the landlord within 14 days. (5) The Tribunal may order that rent or any other amount be repaid to the tenant if it finds that the rent or amount was not required to be paid by the tenant under this Act or the residential tenancy agreement.

The Tribunal's decision the subject of the appeal

The Tribunal began by stating that its reasons were final reasons in matters RT 21/01276 and RT 21/42081.
As to the tenant's claim that rent he had paid was recoverable because there had been no valid increase in rent under section 41 of the RTA, the Tribunal rejected this claim as follows: 10 The effect of section 41 (10) is that if increased rent is sought by a landlord and the tenant has paid the increase and is not taken issue with an increase not complying with section 41 within 12 months, then the Tribunal cannot make an order that the rent increase is not payable because section 41 of the Act has not been complied with. In this matter, the last rent increase took effect from 9 June 2016 so the Tenant cannot raise a non-compliance with section 41 is the basis for seeking the repayment of rent.
In so concluding, the Tribunal referred to evidence from the rent ledger tendered by the landlord that showed an increase to $590 per week by a notice dated 1 April 2016 effective on 9 June 2016 and that the tenant had stated in evidence that he had that rent increase notice.
As to the claim for relief under s 44 of the RTA in respect of alleged excessive rent, the Tribunal rejected this claim on the basis that: 1. The tenant had not shown that he had made any application pursuant to s 44 (1) (a). 2. As to a s 44 (1) (b) application, the Tribunal referred to evidence from the tenant that water ingress had caused damage to a Persian carpet and that the lift had not operated for a period of 13 weeks in total during 2014, 2020 and 2021 and concluded, first, that these matters did not amount to evidence of a reduction or withdrawal of services or facilities within the terms of s 44 (1) (b), secondly, the tenant had made no reference to cost or as to the damage concerning the carpet, thirdly, the tenant had refused to make an assessment of the quantum he was claiming in respect of the lift-whether that be as an excessive rent claim or compensation. As to the lift, the Tribunal said that the landlord conceded that the lift had not worked for 13 weeks in total and offered compensation of $1300, which the tenant refused: at [13]-[18]. 3. Further as to a s 44 (1) (b) application, the Tribunal said (at [17]): The tenant also made reference to water damage and the condition of the premises. When requested to particularise these matters, the Tenant limited his answer to stating that they are set out in his submissions. In the two matters before the Tribunal today the Tenant made 8 submissions, in total a substantial volume of documents, being the seven listed in the Submissions and Documents Report dated 25 January 2021 and the submissions made on 8 October 2021 which is not listed in that report. The Tribunal cannot favour a party by searching through their documents to find their case, a party should be prepared to put their case to the Tribunal at a hearing and identify evidence that the party has provided.
As to the claim under s 45 of the RTA based upon s 43 (2) of the RTA, the Tribunal said that a remedy under s 45 could not be given unless the premises become uninhabitable otherwise than as a result of a breach of agreement and that the tenant had put forward no evidence that demonstrated such a matter: at [19]-[20].
The Tribunal rejected the tenant's claim under s 47 because of all the reasons it had given in relation to the various claims referred to above: at [21].
As to the orders concerning the amount of rent to be paid (Orders 1, 2 and 3), the Tribunal reasoned: 1. In view of its conclusions about rent increases, there did not need to be any amendment to the Tribunal's finding about rent owing made in paragraph 14 of the reasons given on 11 November 2021: at [4] and [12]. 2. In these circumstances, given the absence of any evidence of outstanding rent having been paid, an order as to the amount of rental to be paid will be made, having regard to the monetary jurisdiction limit provided by in accordance with s187 (4) (a) of the RTA and clause 40 (b) of the Residential Tenancies Regulation 2019: at [23].

Grounds of appeal

Under s 80 of the NCAT Act, a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis 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).
Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], namely. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1 issues of principle; 2 questions of public importance or matters of administration or policy which might have general application; or 3 an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4 a factual error that was unreasonably arrived at and clearly mistaken; or the Tribunal having gone about the fact- finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,
The Notice of Appeal, including the attachment to it, indicates that the tenant contends there were errors of law and otherwise that leave should be granted on the grounds that the decision was not fair and equitable and was against the weight of the evidence. The Notice of Appeal states that the tenant does not rely upon any new evidence.
The attachment to the Notice of Appeal contains 23 numbered paragraphs under the heading, Grounds of Appeal. For the hearing of the appeal the tenant presented 6 spiral bound bundles (not paginated) as well as a separate bundle (not paginated) beginning with a two page document, dated 4 April 2022, headed "Index of Further Documents In support of the Appellant's Grounds of Appeal". Some of the material in all these documents concerns proceedings which are not the subject of this appeal and documents that were not relied upon before the Tribunal in the proceedings the subject of this appeal and are, therefore, irrelevant to this appeal.
One of the spiral bundles presented by the tenant had an index described as "Index of Documents and Submissions" for the hearing of the appeal on 12 April 2022. This bundle contained both a reply from the landlord to the tenant's grounds of appeal and a response from the tenant to that reply.
A large part of the documents contained in the other spiral binders consists of email correspondence between the parties dating back to 2014.
We have considered all of this written material, along with the tenant's oral submissions on the appeal and, having regard to the approach we should take with respect to an unrepresented litigant, as referred to in Cominos v Di Rico [2016] NSWCATAP 5 at [13], consider that the tenant's relevant grounds of appeal can be identified as follows: 1. As stated in his oral submissions at the hearing of the appeal, the tenant regarded his main ground of appeal as being that the Tribunal erred in failing to consider and apply his contention that the landlord should be refused the relief it sought and otherwise be precluded from any favourable consideration by the Tribunal in respect of the relief the tenant sought against the landlord on the basis that the landlord did not come to the Tribunal with clean hands (Ground 1). 2. The Tribunal erred in misinterpreting s 41 of the RTA and, thereby, failing to conclude that there were no valid rent increases above the starting rental of $530 in the 2014 residential tenancy agreement. In particular, the Tribunal erred by invoking s 41 (10) of the RTA in circumstances where s 41 (9) of the RTA had not been complied with (Ground 2). 3. The Tribunal erred by failing to find that no relevant notices of rent increases were sent by the landlord to the tenant. In this regard, the Tribunal erred by failing to recognise that the notice dated 1 April 2016 increasing the rent to $590 per week was not relied upon by the landlord and no valid section 41 notice existed for a rental of $580 per week (Ground 3). 4. The Tribunal's decision was affected by bias in favour of the landlord (Ground 4). 5. The Tribunal erred in law by failing to give consideration to some of the tenant's submissions and evidence (Ground 5). 6. The Tribunal's decision was not fair and inequitable because the order dismissing the tenant's application deprived the tenant of his ability to pursue his right to compensation and rental abatement (Ground 6). 7. The Tribunal's decision was against the weight of the evidence because there was no evidence that the landlord had issued any s 41 notices, despite claiming, dishonestly, that he had.
In identifying these grounds of appeal, we have paid particular attention to the attachment to the Notice of Appeal setting out what the tenant described as his grounds of appeal and the tenant's reply submissions to the landlord's reply to the grounds of appeal. We have excluded matters that do not concern the proceedings the subject of this appeal but raise contentions about the latest dispute between the parties concerning termination and possession of the premises.

Ground 4, bias-consideration

We should deal, firstly, with the allegation of bias, whether the allegation be one of actual or apprehended bias, or both.
As to actual bias, what needs to be established is some "preponderating disposition or tendency "in favour of a party by "anything which turns a man to a particular course, or gives the direction to his measures": per Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [183]. Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Jia Legeng at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). It needs to be established by cogent evidence and a party alleging actual bias carries a heavy onus to discharge: per French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Jia Legeng at 520.
As to apprehended bias, the question is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644; 75 ALJR 277; [2000] HCA 63.
We see no sufficient basis for a conclusion of bias of either kind in respect of the Tribunal's decision.
To the extent the tenant relies upon contentions concerning the manner in which the hearing was conducted or aspects of the conduct of the hearing, except to the extent that what occurred is referred to in the Tribunal's reasons, such contentions must be rejected because, despite the direction to do so, the tenant has not supplied the sound recording or transcript of relevant parts of the hearing. On 2 March 2022, the parties were directed to supply such material, if what happened at the hearing was being relied upon.
The tenant relies upon contentions that the Tribunal failed to consider some of his submissions and evidence, including the specific approach that the Tribunal expressly referred to in its reasons (at [17]) concerning the tenant's submissions about water damage and the condition of the premises. We address these contentions in respect of our consideration of Ground 5 below.
However, we do not accept that the particular approach outlined by the Tribunal in paragraph 17 of the reasons and other alleged omissions to consider the tenant's material warrant a conclusion of bias.
As to the reliance upon what was said by the Tribunal in paragraph 17, all we can go by is what the Tribunal described in this paragraph. We do not know the specific terms of the exchange between the Tribunal and the tenant about this issue, nor the specific context in which it occurred. On the basis of what we do know, it seems to us that the Tribunal, naturally and quite understandably, sought particulars of an allegation the tenant was making that was within his knowledge and, apparently, part of his case and expected the tenant to be able to assist the Tribunal with that detail, including by specific reference to supporting documents. Nor do we see anything surprising or unconventional with the Tribunal's response that it would not look through the extensive and disjointed documentary material presented to it in an attempt to find the requisite information and seek to formulate and establish the strength of the tenant's case. Furthermore, we note that the Tribunal outlined these events in the approach it took in a matter-of-fact fashion.
In these circumstances, we do not see that these circumstances reveal that a fair-minded observer might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to making its decision.
The tenant also relies upon the Tribunal's allegedly flawed reasoning in respect of reliance upon the notice of increase to $590 per week and the absence of a notice of increase supporting $580 per week. However, for the reasons we give in relation to Ground 3, we do not agree that there was any error by the Tribunal concerning these matters, let alone that the alleged deficiency in reasoning could warrant any conclusion of bias.
Accordingly, we reject Ground 4 of the appeal.

Ground 1, lack of "clean hands" contention-alleged error of law- consideration

The short answer to Ground 1 of the appeal is that an alleged absence of "clean hands", apparently of the kind applied in relation to claims for equitable relief, is not a legally recognised element in relation to the relief the subject of the proceedings with which we are concerned.
The tenant raised a variety of allegations concerning a lack of "clean hands", including that, contrary to s 41 (9) of the RTA, a penalty provision, the landlord had contravened s 41 (1) of the RTA. However, because, as we have said, this point gives rise to no legally recognised impediment for the landlord, it is unnecessary for us to address each of the tenant's allegations of a lack of "clean hands".
Accordingly, we reject Ground 1 of the appeal.

Ground 2, alleged misinterpretation of s 41 of the RTA-alleged error of law-consideration

The tenant's argument was that s 41 (10) of the RTA should be construed as applying "subject to s 41 (9)" so that, according to the tenant, the deemed compliance with s 41 of the RTA set out in s 41 (10) would not apply in the event that a landlord contravened the provisions requiring notice of rent increases to be given. The tenant contended that a contravention under s 41 (9) of the RTA precluded the landlord from the benefit of s 41 (10) of the RTA.
We see no basis for construing s 41 (10) in this way. Nothing in the language of the two sub-sections, or the section as a whole, or the text of the statute as a whole, suggests such a construction. On the contrary, the two sub- sections operate effectively in their own sphere without the relationship suggested by the tenant. The contravention established by s 41 (9) can lead to the imposition of a penalty. On the other hand, the deemed compliance provided for in the last sentence of s 41 (10) establishes certainty about the rental obligation when the event referred to has not occurred within the specified period.
Accordingly, we reject Ground 2 of the appeal.

Ground 3, no notices for rental increases-no reliance upon $590 increase-no notice of increase to $580- alleged error of fact and law-consideration

Although the tenant's grounds for his application challenged each of the increases from $550 per week to $590 per week on the basis that no notices of increase had been shown to have been given, in his oral submissions on appeal the tenant focused upon the absence of a notice of increase to $580 per week. He was correct to do so, first, because there was no proper basis for a challenge to the Tribunal's conclusion that a notice of increase to $590 per week had been given and there was no requirement for a notice of increase to be given for the $550 per week increase since this had been specified in the 12 month fixed term 2014 residential tenancy agreement (as we have already mentioned).
The tenant was correct in saying that the landlord had not shown that any s 41 (1) notice of increase to $580 had ever been given. The Tribunal did not conclude otherwise.
However, we do not agree that the Tribunal made any error in relying upon the $590 per week increase and at the same time making rent calculations and consequential orders on the basis of a rental of $580 per week. Once it was established that there had been a valid increase in the rent to $590 per week by reason of the operation of s 41 (10), this being the latest increase, it was open to the landlord to say to the tenant that it would accept payment of a lesser sum of $580 per week, as it did by its email of 11 January 2019 (referred to above) and to maintain that position in the proceedings it brought in the Tribunal.
Such a conclusion does not depend upon any finding of fact as to whether a notice of a rent increase of the kind referred to in s 41 (1) had or had not been given or whether any such notice was a valid notice. The effect of s 41 (10) is that the requirements of the section concerning notice are taken to have been complied with if the condition in the subsection has occurred, as it clearly had in this case.
In these circumstances, it is unnecessary for us to consider whether a rent increase to $580 per week was applicable by reason of s 41 (6), bearing in mind the email from the landlord sent on 11 January 2019 (referred to above), or whether the parties were bound by a finding by Senior Member Charles that $580 was the applicable rent in his decision made on 29 June 2021.
Accordingly, we reject Ground 3 of the appeal.

Ground 5, failure to consider submissions and evidence-alleged error of law-consideration

As we interpret the tenant's grounds of appeal, the tenant complained that the Tribunal had failed to consider the tenant's complaints about water damage and the condition of the premises.
There will be an error of law where the Tribunal fails to respond to substantial submissions, squarely raised and seriously advanced: Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 at [170]-[175]. In this regard, the Appeal Panel in this decision also said (at [175]): "Where, as here, the Tribunal is presented with numerous submissions about a diverse range of issues, the dividing line between those which can be characterised as having been seriously advanced, obliging the Tribunal to consider them, and those which cannot, can be difficult to identify. The Tribunal was not required to consider every submission made by a party. As the Full Court of the Federal Court stated in Applicant WAEE at [49], the Tribunal was not obliged to consider submissions that were misconceived or those where it had rejected the factual premise upon which the submission was based. Nor, in our view, was the Tribunal required to consider poorly developed submissions or those given scant attention by the submitting party. We reject the Board's submission that had the Tribunal accepted the subject submission, a finding that cll 1(d) and 1(f) applied to the Independent Verification Reports was inevitable. Nonetheless, we accept that the subject submission was relevant to that determination. It was a substantial submission, squarely raised and seriously advanced by both the Board and SunRice. As a consequence, the Tribunal was obliged to address that submission."
We do not consider that the Tribunal erred in this respect. In our opinion, the submissions by the tenant based upon water damage and the condition of the premises were given scant attention by him, were poorly developed and were not substantial.
We arrive at this conclusion because: 1. According to paragraph 17 of the Tribunal's reasons, despite the invitation to do so, the tenant did not develop his general assertion in any way at the hearing. 2. Although it was for the tenant to prove the specific facts in support of his claims, including as to damage and an amount as to an excessive rent, the written material that the tenant had supplied to the Tribunal about this area, largely, in the form of email correspondence between the parties, did not rise above assertion, usually, in general terms, of problems. On a number of occasions, in the correspondence, the tenant referred to inspections that had occurred on behalf of the landlord in respect of which the landlord should have reports and photographs but he left the potential proof on this basis, rather than collect the proof himself and provide specific details as to what had occurred. 3. A written statement from the tenant, dated 17 January 2021, illustrates this deficiency in the tenant's approach to proof. In a statement containing 61 paragraphs all the tenant stated about the area with which we are presently concerned was: 8. I say that the landlord breached his obligations to me under Section 52 of the [RTA], including the failure to carry out essential repairs and maintenance, and as a consequence was in breach of Section 63 of the Act. 9. Water leaked into the lounge/living area and the 2 bedrooms after heavy rains & with cracks appearing on the walls in the 2nd this bedroom due to apparent structural defects. The leaking water into the unit damage the carpets. The carpet in the 2nd bedroom, is in part, threadbare. 10. The concrete divides between the 2 balconies ever than the lounge living area and the 2 bedrooms are corroded because of water leakage during heavy rains over the years. No repairs were made. 11. Those obligations and the breaches thereof, spelt out in correspondence to the landlord's agent… A number of times and in that regard I refer to the correspondence in the accompanying folder of documents, in particular my email dated 13 December 2020…
The tenant also contended that the Tribunal had failed to consider his "clean hands" contention. However, because this contention was misconceived, as we have already mentioned, we do not consider that the Tribunal was obliged to address it in the reasons for decision.
The tenant also contended that the Tribunal had failed to consider all of his submissions about the absence of notices of rent increases and their validity. However, as we have already said, the reasoning of the Tribunal, with which we agree, was not dependent upon making any findings as to these matters. Accordingly, we do not consider that the Tribunal was obliged to address such contentions in its reasons.
Accordingly, we reject Ground 5 of the appeal.

Grounds 6 and 7, decision not fair and equitable and against the weight of the evidence-consideration

The tenant contended that the decision was not fair and equitable because the dismissal of the tenant's application "deprived him of pursuing his right to claim compensation and rental abatement". However, such a contention is misconceived. The fact that the Tribunal has dismissed a claim, with the consequence that rights are lost, does not in itself render a decision not fair and equitable.
As to the contention that the decision was against the weight of the evidence because there was no evidence that the landlord had issued any s 41 notices, despite claiming that it had, the short answer is that the Tribunal was well justified in finding that the notice in respect of the increase to $590 had been given because the tenant gave evidence that he had the notice.
Accordingly, we reject Grounds 6 and 7 of the appeal.

Orders

For the above reasons, we order that leave to appeal is refused and the appeal is 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: 24 June 2022

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (9)