Su v Agarwal

Background, primary decision and procedural history

1. The dispute concerned a written residential tenancy agreement in respect of a residential unit in Turramurra that had been occupied by the tenant for about two years. The most recent tenancy agreement was apparently (from the hearing notes before the primary member) dated 19 August 2021 for twelve months from 5 November 2021 to 4 November 2022 at a rental of $2,172.62pm.
2. In RT 22/41473 filed 14 September 2022 the (now former) tenant claimed from the respondent landlord, under s 175 of the Residential Tenancies Act 2010 (NSW), the return of the entire bond of $2,000 except for daily rent from 5 to 8 September 2022 and the last invoice for water usage.
3. In RT 22/48240 filed 31 October 2022 the landlord claimed compensation under RTA s 187(1)(c) of $8,596.62.
4. From the large bundles of material given to us on the appeal and the detailed description in the grounds of appeal and submissions, it appears that there was significant disputed material before the Tribunal over the items claimed by the landlord other than $330 of the rent and the last water usage invoice of $55.22, although what precisely was before the Tribunal could not be independently confirmed because of the absence of a transcript. Neither party had complied with directions made by the Appeal Panel on 18 January 2023 to provide a typed transcript of relevant parts of the sound recording that were relied upon in the appeal by that party.
5. The Tribunal decision on 14 December 2022 and reasons in that decision were brief. They are set out in full (with the machinery provisions for payment and enforcement omitted): "On 14 December 2022 the following orders were made: 1. The tenant [name and address] is to pay the landlord [name and address] the sum of $2,305.22 immediately. Reasons: Rent to vacate $550.00 Water usage $55.22 Patch and paint $990.00 Mould removal etc $330.00 Pest treatment $380.00 2. The Rental Bond Services is directed to pay the landlord [name and address] the whole bond plus interest of Rental Bond number [S]857913-7. Any amount received is to be credited against the money order. 3. The Tribunal could not be satisfied on the evidence before it that any compensation should be ordered with respect to the carpet."
6. On 17 February 2023 the original timetable was extended and the original hearing date for the appeal of 27 February 2023 was vacated. On 10 March 2023, by consent, the revised hearing date of 13 April 2023 was vacated and a hearing was dispensed with, the appeal to be determined on the papers.

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons where they are required; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. 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 to 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: 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).
4. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 may have been suffered where: " … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
5. Even if an appellant from a 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 under s 80(2)(b).
6. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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."

Grounds of appeal

1. The Notice of Appeal was filed within time on 15 December 2022. Having regard to the approach taken in Prendergast v Western Murray Irrigation Ltd at [12] in a situation where there was no legal representation of the appellant, we have sought to discern and distil the substance of the grounds of appeal: 1. Procedural unfairness: the tenant was "significantly disadvantaged" by the landlord's managing agent appearing in person when the hearing was notified to be by AVL, the AVL did not work and the hearing continued with the tenant on an indistinct telephone line where he could not properly hear and be heard and through this spoke over other speakers; partly from the difficulties, the primary member hearing the matter favoured the person physically present and effectively advised him on case presentation. 2. The primary member simply accepted at face value quotations and the landlord's evidence without dealing with the absence of supporting evidence (such as photographs and actual expenditure) of actual damage and saying why he did not accept the competing photographic and other evidence. 3. The primary member accepted the landlord's evidence on rent without saying why, if the landlord had a new tenancy in place from 9 September 2022, the landlord should receive rent from then to 11 September 2022 from the tenant.
2. In substance the above grounds raised questions of law in the form of alleged procedural unfairness and alleged absence of proper reasons.
3. The same arguments were also put forward as the reasons for a grant of leave to appeal for alleged errors of fact that made the decision against the weight of evidence and not fair and equitable.

Questions of law

1. It is difficult, and in most circumstances practically impossible, to deal with allegations of procedural unfairness when the appellant does not comply with directions and provide typed transcript from the sound recording of what is relied upon to advance the allegation (or, if the sound recording fails or is of poor quality, an affidavit deposing to what was said and annexing any contemporary notes). The respondent can then put forward any other parts of the proceedings in typed transcript or other evidence in lieu of a poor sound recording.
2. The directions are made because the Appeal Panel's limited resources and time pressures, as for any court or similar decision-making body, do not extend simply to listening to an entire sound recording even if it is provided (as it appears to have been here) and being left to "work it out". Even if such listening was undertaken or required to be undertaken, it would not accord procedural fairness simply to listen, without directed submissions from the parties to particular parts relied upon, and purely from listening to try to work out what is said to be unfair and why, compared with the treatment of the other party. If it was said that unfairness would be obvious, the inevitable response is that what is seen by one party as obviously unfair is likely, if there is a contest on the point, to be obviously fair to the other party, with the merit of what is said or done being found in the eye of each adversarial beholder.
3. The appellant tenant did not here provide such transcript or direction. The ground of alleged procedural unfairness is not made out.
4. Turning to adequacy of reasons, it is essential, where reasons are required or otherwise provided, to expose the reasons for resolving a point critical to the contest between the parties but the manner in which that obligation is discharged varies according to the nature of the jurisdiction being exercised, the court or tribunal exercising it and the subject matter being determined: Soulemezis v Dudley (Holdings) PL (1987) 10 NSWLR 247 (CA) at 259, 270-272, 280-281; Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at [40]; Wainohu v NSW (2011) 243 CLR 181 at [58]; NSW Land and Housing Corp v Orr (2019) 100 NSWLR 578, [2019] NSWCA 231 at [65]-[77]; see also s 62(3) of the NCAT Act which sets out the content when reasons are requested.
5. A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to engage with the case put by a party. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law because the reasons are thereby rendered inadequate: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
6. In NSW Land and Housing Corp v Orr (2019) 100 NSWLR 578, [2019] NSWCA 231 at [65]-[77], the Court of Appeal made it clear that, while the degree of complexity required for reasons (including reference to the evidence) differs according to the nature of the proceeding and the decision-maker, there is a "minimum acceptable standard" with "certain minimum characteristics" that requires the decision-maker to expose why it reached the decision it did, so that a losing party, in particular, has the basis to understand why it lost, if there is an avenue for challenge and to enable an appellate body to understand and assess whether the decision was correct:
7. "Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.": per Mahoney JA in Housing Commission of NSW v Tatmar Pastoral Co PL [1983] 3 NSWLR 378 (CA) at 386, cited in Orr at [74].
8. In some circumstances the short reasons given by the primary member in the present circumstances may be sufficient. Where, however, there is a clear contest on the factual material put forward by the parties, and/or on how the legal principles are to be applied to the facts, and/or what are the correct legal principles, it will be necessary to expose the basis on which certain factual material is preferred, the basis on which the legal principles are applied to that material and the basis on which it is considered that the legal principles being applied are correct. The degree of elaboration of the bases will depend on what is put forward.
9. In the primary decision under review only the conclusions or outcomes were presented as the "reasons". All they supported was the total in the money order. They did not show either party, and particularly the losing party (the tenant), why he lost on each salient claim. They did not enable the tenant to assess whether there was basis to challenge the outcome. They did not enable the Appeal Panel to assess the merits of the challenge.
10. Accordingly, the primary decision was subject to an error of law in not being supported by adequate reasons and the appeal succeeds.

Alleged errors of fact

1. There is accordingly no need to consider the alternative grounds of appeal that require consideration of a grant of leave to appeal. Indeed, given what we propose as next steps below, it would be inappropriate for us to analyse the detail of the factual material provided to us.

Appropriate relief - the way ahead

1. Section 81 of the NCAT Act provides that, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal. The section sets out a list of available orders which is not exhaustive. That list includes allowing the appeal, setting aside the primary decision and remitting the whole or any part of the case to the primary level of the Tribunal for reconsideration, either with or without further evidence and in accord with the Appeal Panel's directions.
2. It seems appropriate to enable the parties to put before the Tribunal for the new hearing whatever evidence each wishes to put forward, which may or may not include some or all of the evidence previously relied upon and able to be obtained from the existing primary decision files and may or may not include further evidence to be filed and served that brings, for instance, the evidence up to date.
3. The Appeal Panel has recently and comprehensively reviewed the authority on when a matter should be remitted to a differently constituted Tribunal: Chapman v Nicolosi [No 2] [2023] NSWCATAP 73 at [5]-[26]. Applying what is said there, we consider that in the circumstances of this case the matter should be heard by a differently constituted Tribunal. Although the Member did not make express credit findings, it is in the interests of justice that there is avoided any basis to suggest pre-judgment.

Orders

1. We make the following orders: 1. The appeal is allowed. 2. Remit the matter to the Consumer and Commercial Division for hearing by a differently constituted Tribunal on such evidence as the parties file and serve in accord with directions and the rules for that hearing. 3. Make no order as to the costs of the appeal or the primary decision appealed from. 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: 30 March 2023