Tanious v NSW Land and Housing Corporation

Background

1. Mr Tanious's late mother was originally the tenant of the house and Mr Tanious has lived there since 2005. After the death of his mother, the tenancy was transferred to Mr Tanious. There was a written tenancy agreement between Mr Tanious and the Corporation dated 13 February 2012 for a fixed term of approximately two years expiring on 9 February 2014. As recorded in Note 2 to the agreement and in accordance with s 18 of the RT Act, after 9 February 2012 the agreement has continued to apply as if the term of the agreement were replaced by a periodic agreement but otherwise on the same terms as immediately before the end of the fixed term.
2. Although there are some inconsistencies in dating in various paragraphs of the reasons for decision of the Tribunal below, it appears from those reasons that what relevantly occurred is as follows. At some time in or after 2013, Mr Tanious obtained strips of scrap metal and made coverings for the windows and some doors of the house from those strips. He fixed these coverings externally to the window frames and some door frames of the house with what appear to be sliding bolts. The coverings generally have two small slots at the top but otherwise cover the majority of the opening where they are located. Although described in the orders and reasons for decision of the Tribunal at first instance as "shutters", the photographs of the coverings appear to show that the strips of metal were not able to be angled or moved so as to admit light or air. The coverings are shown in the two photographs below, which were before the Tribunal at first instance and the Appeal Panel. Figure 1 [View of one window of the house with the covering in place. Respondent's Bundle p 56] Figure 2 [View of the front of the house from a distance showing coverings on three windows. Respondent's Bundle p 55]
3. Mr Tanious did not at any time seek or receive the Corporation's written permission to install the coverings.
4. In August 2015, Mr Veldhoen, a Technical Officer of the Corporation, attended the property and, amongst other things, inspected the coverings. It is not clear from the decision below precisely when this occurred but information provided by Mr Tanious in section 6B(iii) of his notice of appeal suggests it was on 12 August 2015. There was a dispute as to what occurred during that visit. According to Mr Tanious, Mr Veldhoen had "no problem" with the coverings and said that if anyone from the Corporation raised the issue of the coverings "get them to call me". This account was disputed by the Corporation which relied upon various emails sent on 19 October 2015, which are referred to below. The Tribunal below did not find it necessary to resolve this dispute as to what occurred because, even if Mr Veldhoen did give oral approval for the coverings, as Mr Tanious contended, this would not amount to "written permission" or "written consent" as required by cl 25(1) of the residential tenancy agreement or s 66 of the RT Act.
5. On 24 August 2015, Mr Tanious wrote a letter to the Corporation seeking permission to install a "small metal shed" next to the bedroom window to house a "wood fire oven" for "cooking" and to "keep warm" and another "small metal shed" to "keep a few birds". The letter made no reference, however, to the coverings installed on the windows and some door frames of the house.
6. On 15 October 2015 the Corporation emailed Mr Tanious directing that various items be removed from the house or land surrounding the house including "metal sheets…from the windows" within seven days or the Corporation would issue a termination notice. By email of 16 October 2015 the Corporation warned Mr Tanious that he was in "serious breach" of the residential tenancy agreement by reason of the condition of the property and that the Corporation would issue a termination notice if the property care issues were not addressed by 26 October 2015.
7. The Corporation's internal emails, in evidence before the Tribunal below, included an email from Ms Putra to Ms Walker and Ms Hile (who are all apparently officers of the Corporation) dated 19 October 2015. Relevantly, it referred to a telephone call from Mr Tanious, telling the Corporation to "reconsider" issuing a notice to terminate because he had "verbal approval" from Mr Alex Veldhoen. The email of Ms Putra also stated: "Alex stated that he had never given approval for any unauthorised fixtures".
8. On 19 October 2015 Ms Purta emailed Mr Tanious relevantly stating: "Mr Alex Veldhoen [who] is our Technical Officer from Land and Housing Corporation told me that you have to remove all unauthorised fixtures (as per our previous letter/emails). He told me that he has never given you any approval form metal sheets, chicken coop etc. My senior officer will issue a Notice of Termination before the end of the month".
9. On 3 November 2015, the Corporation issued a termination notice under s 87 of the RT Act on various grounds including that Mr Tanious had breached the residential tenancy agreement by installing the metal coverings without the written consent of the Corporation and by failing to keep the property in a reasonably clean condition. As Mr Tanious did not vacate, the Corporation commenced proceedings in the Tribunal seeking a termination order. Those proceedings (SH 15/66143) were set down for hearing on 24 February 2016. Both parties had filed and served documentary evidence in those proceedings. The Corporation failed to appear on 24 February 2016 and the proceedings were dismissed under s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) as a result of that non-appearance.
10. On 21 March 2016, in proceedings SH 16/10383, the Tribunal dismissed the Corporation's application for the original proceedings to be re-instated under s 55(2) of the NCAT Act on the ground that the Corporation had not given a reasonable explanation for its non-attendance.
11. On 15 April 2016, a District Building Surveyor from Hurstville City Council (as it was then known) inspected the house and wrote a letter addressed to "Department of Housing". The letter stated, in part: "The inspection revealed door and window openings to be covered in metal structures not allowing for the provision of light and ventilation in accordance with cll 3.84 and 3.85 of the Building Code of Australia. The current configuration of the building presents a health risk to its occupants. Council requires all metal structures covering windows and door openings to be removed within seven (7) days from the date of this letter. Failing which, Council will consider all legal avenues available so as to rectify the matter."
12. On 22 April 2016, the Corporation issued another termination notice, this time under s 109 of the RT Act. Mr Tanious did not vacate the property in response to this notice.
13. On 27 May 2016, the Corporation commenced new proceedings (SH 16/25006) seeking orders, to the following effect: 1. That the tenancy be terminated on the basis the property had become wholly or partially uninhabitable, otherwise than as a result of a breach of an agreement - under s 109 of the RT Act; or 2. that Mr Tanious remove the coverings installed in breach of the residential tenancy agreement - under s 187(1)(e) of the RT Act.
14. By a further letter of 22 June 2016, the District Building Surveyor from Georges River Council, which included what had formerly been known as Hurstville City Council, stated that he attended the premises on 22 June 2016 and that "the metal structures covering the windows have yet to be removed". He also noted that the coverings "do not allow natural light and ventilation into the dwelling as such do not comply with Part 3.8.4.2 (Natural Light) and 3.8.5.2 (Ventilation Requirements) of the Building Code of Australia 2016 Volume 2".
15. At the hearing of those proceedings on 27 July 2016, the Corporation expressly withdrew its application for a termination order under s 109.
16. On 10 August 2016, the Tribunal provided its written reasons for decision and made the following orders: "1. The landlord's application for termination and possession is withdrawn and accordingly dismissed under Section 55(1)(a) of the Civil and Administrative Tribunal Act 2013. 2. The respondent, Mofeed Tanious ('the tenant') is to remove all metal coverings and shutters from the window and door frames of the residential premises in which the tenant resides on or before 14 days from the date of this decision."
17. As the Appeal Panel understands it, the coverings still have not been removed.

The Appeal

1. By notice of appeal received by the Tribunal on 22 August 2016, Mr Tanious has appealed against the decision of the Tribunal below. The appeal was lodged within the 14 day period established by r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014.
2. Mr Tanious identified the order challenged on appeal as follows: "The respondent, Mofeed Tanious (the tenant) is to remove all metal covering and shutters from the window and door frames of the residential premises in which the tenant resides on or before 14 days from the date of this decision on 10-8-2016."

Orders Sought on Appeal and Grounds of Appeal

1. In his notice of appeal, Mr Tanious sought the following orders from the Appeal Panel: "The mentioned order to be dismissed Respondent to pay the legal cost. Respondent to be prevented from taking such a matter again to any Court or tribunal in the future"
2. The grounds of appeal which Mr Tanious identified in his notice of appeal were in the following terms: "At the time respondent has installed a metal frames and barred windows in order to secure the office at address 171 Belmore Rd North, Riverwood, intentionally determined Appellant must remove the metal coverings and shutters from the window and door frames which protect his privacy and securing the home in addition to the home becomes well ventilated and warm. The decision did not make any consideration of any legal or logic thinking. It has neglected all information has been provided by the Appellant."
3. In so far as leave was required, Mr Tanious sought leave to appeal, having regard to the restrictions on the Appeal Panel's ability to grant leave established by cl 12(1) of Sch 4 to the NCAT Act. Clause 12 was applicable because the decision appealed from was a decision made in the Consumer and Commercial Division. Consequently, Mr Tanious can be taken to have submitted that that he might have suffered a substantial miscarriage of justice on the basis that: 1. the decision was not fair and equitable - cl 12(1)(a) of Sch 4 to the NCAT Act, 2. the decision was against the weight of the evidence - cl 12(1)(b), and 3. significant new evidence is now available that was not reasonably available at the time of the hearing - cl 12(1)(c).
4. In relation to the contention that the decision was not fair and equitable, Mr Tanious stated in his notice of appeal: "The decision of removing the shutters and the door metal cover is against the RT agreement clauses 12, 26; section 66(2) of RT Act; UCPR 2005 rules 31.18, 31.27 It was supported by unreliable contradictory evidence alluding to the evidence Act 1995 section 165(1)(a)+(f) making it not applicable to section 140 Civil Proceedings standard of proof of the same Act. In addition to respondent has installed metal frames & barred windows on this office at address on their office at address 171 Belmore Rd North, Riverwood"
5. In relation to whether the decision was against the weight of the evidence, Mr Tanious included the following in his notice of appeal under the subheading "What evidence did you give at the hearing? What documents did you show the Tribunal?": "Consequence of documented evidence and submissions of eleven pages are included all with this appeal".
6. Mr Tanious noted that the other party gave the following evidence: "Some photo of the shutters to be removed; decision from the local Council was not supported by any academic or legal rules as I have mentioned previously".
7. Under the subheading "What evidence should the Tribunal have given more weight to? Why?", Mr Tanious stated: "The mentioned documented evidence and my submissions because it was supported by logic and legal evidence".
8. As to the significant new evidence that was not reasonably available at the time of the hearing, Mr Tanious stated: "In addition the eleven pages of documented evidence and submissions I prefer on hearing a phone call must be made to Mr Alex Veldhoen on mobile number [xxx] to let him say on oath what he said on Wednesday 12-8-2015 when he made his visit to follow painting"
9. Under the subheading "Why was this evidence (including documents) not available at the time of the hearing?", Mr Tanious stated: "The information I have had recently about the respondent has installed metal frames and barred windows in order to secure the office at Riverwood at the time preventing the applicant from installing metal shutters in order to protect his privacy and securing the home."

Reply to Appeal

1. The Corporation's attachment to reply to appeal contended in essence that the grounds of appeal set out in the notice of appeal did not raise any questions of law and, to the extent that leave to appeal was sought, it should be refused.

Nature of the Appeal

1. The decision appealed from was a decision made in proceedings for a general decision, within s 32(1)(a) of the NCAT Act, and thus was an internally appealable decision within s 32(4). Under s 80(1) of the NCAT Act, Mr Tanious, being a party to the proceedings in which the decision appealed from was made, was entitled to appeal against that decision. The decision requiring him to remove the coverings from the windows and door frames of the house was a decision which determined the proceedings and was not an interlocutory or ancillary decision. Consequently, under s 80(2)(b), Mr Tanious could appeal as of right against that decision on any question of law and by leave on any other ground.

Issues on Appeal

1. Having regard to the obligation on the Tribunal, under s 38(4) of the NCAT Act, to act with as little formality as the circumstances of the case permit and without regard to technicalities or legal forms, the Appeal Panel believes it is appropriate not to take an overly strict or restrictive approach to determining the grounds of appeal upon which Mr Tanious should be allowed to rely in this appeal.
2. When Mr Tanious's notice of appeal is viewed as a whole and in light of his oral and written submissions, the Appeal Panel is prepared to proceed on the basis that he has, in effect, raised the following potential questions of law: 1. Whether the Tribunal erred in law by ordering him to remove the coverings when he was entitled to install them without written permission by virtue of cll 12 and 26 of the residential tenancy agreement and s 66(2) of RT Act; 2. Whether the Tribunal erred in law by relying on inadmissible or otherwise inappropriate evidence, in particular the letters from the District Building Surveyor of 15 April and 22 June 2016, having regard to rr 31.18, 31.27 of the Uniform Civil Procedure Rules 2005 or ss 165 and 140 of the Evidence Act 1995 (NSW).
3. In addition, Mr Tanious in his notice of appeal and oral and written submissions can be taken to have raised whether he should be granted leave to appeal on the bases that he might have suffered a substantial miscarriage of justice because: 1. The decision was against the weight of the evidence; or 2. There was significant evidence now available which was not reasonably available at the time of the hearing: 1. concerning the metal frames and barred windows at the Corporation's office in Riverwood; 2. from Mr Veldhoen concerning his inspection in August 2015 and whether or not he gave oral permission for the installation of the coverings; 3. from Mr McCarthy concerning the nature and effectiveness of the coverings; or 4. from Mr Robinson, from Complete Blinds, concerning the provision of blinds or shutters for the windows and other openings which were presently covered by the coverings.
4. These last two potential witnesses, Mr McCarthy and Mr Robinson, had not been mentioned in the Tribunal below nor in the notice of appeal. Mr McCarthy was referred to in Mr Tanious's written submissions but Mr Robinson was mentioned for the first time in oral submissions.
5. We shall address each of the issues we have identified in turn.

Was Mr Tanious Entitled to Install the Coverings without Written Permission?

1. Mr Tanious contended that he was entitled to install the metal coverings without written permission by virtue of cll 12 and 26 of the residential tenancy agreement and s 66(2) of RT Act. Accordingly, he submitted that the Tribunal erred in law by ordering him to remove the coverings on the ground that they were not installed with the written permission or consent of the Corporation. In this context, cl 25 of the residential tenancy agreement is also relevant as it is the clause which prohibits the installation of fixtures or the carrying out of alterations or additions by the tenant without the written permission of the landlord.
2. Clauses 12, 25 and 26 of the residential tenancy agreement relevantly provide: "TENANT'S RIGHT TO QUIET ENJOYMENT 12. The landlord agrees: 12.1 that the tenant will have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title to that of the landlord, and 12.2 that the landlord or the landlord's agent will not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises, and 12.3 that the landlord or the landlord's agent will take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. … ALTERATIONS AND ADDITIONS TO THE PREMISES 25. The tenant agrees: 25.1 not to install any fixture or renovate, alter or add to the residential premises without the landlord's written permission, and … 26. The landlord agrees not to unreasonably refuse permission for the installation of a fixture by the tenant or to a minor alteration, addition or renovation by the tenant."
3. Section 66 of the RT Act provides: "66 Tenant must not make alterations to premises without consent (1) A tenant must not, without the landlord's written consent or unless the residential tenancy agreement otherwise permits, install or cause to be installed a fixture or make or cause to be made any renovation, alteration or addition to the residential premises. (2) A landlord must not unreasonably withhold consent to a fixture, or to an alteration, addition or renovation that is of a minor nature. (3) A landlord may withhold consent to any other action by the tenant that is permitted under this section, whether or not it is reasonable to do so. (4) A fixture installed by, or on behalf of the tenant, or any renovation, alteration or addition to the residential premises by or on behalf of the tenant, is to be at the cost of the tenant, unless the landlord otherwise agrees. (5) This section is a term of every residential tenancy agreement."
4. Mr Tanious in effect argued that: 1. under cl 12 he was entitled to reasonable peace, comfort and privacy in using the residential premises; 2. the coverings which he made and installed ensured his quiet enjoyment of the house by excluding noise, keeping the house warm and preserving his privacy; 3. consequently, he did not require permission to install the metal coverings; and 4. in addition, under cl 26 of the residential tenancy agreement and s 66(2) of the RT Act, the landlord could not unreasonably refuse permission to install fixtures or minor additions or alterations; 5. it would be unreasonable to refuse permission to install the metal coverings that ensured his peace, comfort and privacy.
5. In our view, Mr Tanious's argument is based on a misunderstanding of the effect of cl 12 and the right to quiet enjoyment. The right to quiet enjoyment is not a right conferred on the tenant to take any action which in the tenant's opinion might contribute to the tenant's comfort, privacy or enjoyment of the property. Rather, as the terms of cl 12 itself make clear, the right to quiet enjoyment involves only the prohibition on the landlord or any person claiming through or under the landlord from interfering with the tenant's possession or lawful enjoyment of the premises the subject of the tenancy.
6. The right to quiet enjoyment was explained by Yeldham J in the Supreme Court in Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15 at 23 E-F as follows: "I take the relevant law in relation to the covenant for quiet enjoyment to be correctly set out in Halsbury's Laws of England, 3rd ed., Vol 23, pp.605, 606, pars 1298, 1299 in these terms: 'the covenant for quiet enjoyment operates according to its terms to secure the tenant, not merely in the possession, but in the enjoyment of the premises for all usual purposes; and where the ordinary lawful enjoyment of the demised premises is substantially interfered with by the acts or omissions of the landlord or those lawfully claiming under him, the covenant is broken, although neither the title to, nor the possession of the land may otherwise be affected... if the act causes physical interference with the demised premises, there is a breach of covenant, notwithstanding that the act itself is done off the premises;...'"
7. The nature of the right to quiet enjoyment is also revealed by the observation that in the context of many leases there is no practical difference between the covenant for quiet enjoyment and the covenant of non-derogation from the grant, see Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1 at 8; Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 at [36]-[37].
8. Properly understood, cl 12 of the residential tenancy agreement, which in this case embodies the right to quiet enjoyment, did not entitle Mr Tanious to install the metal coverings on the windows and on some of the door frames without the written permission or consent of the Corporation.
9. Furthermore, cl 26 and s 66(2), which both establish that the Corporation could not unreasonably withhold permission or consent to the installation of fixtures or the making of minor additions or alterations to the house, do not assist Mr Tanious in this regard for at least two reasons. First, Mr Tanious has not sought the Corporation's written permission or consent and thus it has not been withheld, whether reasonably or unreasonably.
10. Secondly, even if Mr Tanious had sought written permission or consent, it would not have been unreasonable to withhold consent in circumstances where the relevant local government authority required the Corporation to have the coverings removed or face the prospect of legal proceedings to enforce that requirement. This is especially so where the contention that the coverings have the consequence that the house no longer has adequate provision of light and ventilation in accordance with the relevant clauses of the Building Code of Australia is not farfetched or manifestly unlikely to be correct.
11. For these reasons, we reject the argument that Mr Tanious was entitled to install the metal coverings without written permission by virtue of cll 12 and 26 of the residential tenancy agreement and s 66(2) of RT Act. Accordingly, we would dismiss Mr Tanious's appeal to the extent that it is based on the contention that the decision of the Tribunal below was contrary to cll 12 and 26 and s 66(2).

Did the Tribunal rely on Inadmissible or Inappropriate Evidence?

1. As the Appeal Panel understands it, Mr Tanious submitted that the Tribunal erred in law by relying on inadmissible or otherwise inappropriate evidence, in particular the letters from the District Building Surveyor of 15 April and 22 June 2016, having regard to rr 31.18, 31.27 of the Uniform Civil Procedure Rules 2005 or ss 165 and 140 of the Evidence Act 1995 (NSW).
2. In this regard, Mr Tanious also contended that the metal coverings did not affect the lighting or ventilation of the house and noted that it made it warm, which he maintained was a benefit.
3. The Appeal Panel is of the view that the Tribunal below did not make any error by having regard to the fact that the District Building Surveyor expressed certain opinions in his letters or by accepting those opinions.
4. To the extent that Mr Tanious relied upon rr 31.18 and 31.27 of the Uniform Civil Procedure Rules 2005 (the 2005 Rules), these rules do not apply to the Tribunal. Rule 1.5(1) of the 2005 Rules concerns their application and states: "(1) Subject to subrule (2), these rules apply to each court referred to in Column 1 of Schedule 1 in relation to civil proceedings of a kind referred to in Column 2 of that Schedule."
5. The Civil and Administrative Tribunal of New South Wales is not specified as a court to which the rules apply in the table in Column 1 of Sch 1 of the 2005 Rules.
6. That is not to say, however, that the Tribunal does not have any relevant procedural rule or provision dealing with expert evidence, similar to rr 31.18 and 31.27. NCAT Procedural Direction 3, issued by the President under s 26 of the NCAT Act, relates to expert witnesses and establishes a code of conduct for experts, in paragraphs 10 to 20, of the Procedural Direction which is similar to r 31.27. Paragraph 10 of the Procedural Direction provides that the code of conduct for experts only applies, however, to an expert witness who: "(a) provides an expert's report for use as evidence in proceedings or proposed proceedings in the Tribunal, or (b) gives opinion evidence in proceedings in the Tribunal."
7. The District Building Surveyor was not called as an expert witness in the Tribunal nor did he provide an expert's report within the meaning of that paragraph.
8. Furthermore, s 38(2) and (3) of the NCAT Act establish that the rules of evidence do not apply to most proceedings in the Tribunal and, in particular, they did not apply to the proceedings at first instance in this case. Section 38(2) and (3) relevantly provide: "(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, … "
9. The "rules of evidence" refer to both the Evidence Act 1995 (NSW) and the common law principles relating to evidence - Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216 at [189]. Consequently, ss 140 and 165 of the Evidence Act strictly have no role to play in the present appeal.
10. Although s 140 does not apply, it is nonetheless accepted that in the Tribunal a party will have established its case or a fact in issue if the Tribunal is satisfied that the case or fact has been proved on the balance of probabilities. Thus, the Tribunal effectively applies the same principle as is contained in s 140.
11. As to s 165 of the Evidence Act, even if it was applicable in the Tribunal, which it is not, that section deals with warnings that a judge may be required to give a jury when there is a judge and jury and the evidence is of a kind that may be unreliable. It would have no application to a Member or Members sitting in the Tribunal.
12. In addition, it can be noted that s 38(2) of the NCAT Act provides that the Tribunal may inform itself on any matter in such manner as it thinks fit. This includes matters of expert opinion such as the opinions expressed by the District Building Surveyor in his letters. One consequence of the Tribunal not being bound by the rules of evidence in these proceedings and the Tribunal being entitled to inform itself in such manner as it thinks fit is that the question of the acceptability of expert evidence in the Tribunal will be one of weight not admissibility - Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216 at [191] based upon the reasoning of the Court of Appeal in Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 at [82] and [83].
13. The evidence which Mr Tanious sought to challenge on appeal was the opinions expressed in the District Building Surveyor's letters of 15 April and 22 June 2016 concerning whether the coverings contravened the Building Code of Australia in relation to light and ventilation requirements and whether there was a "health risk". Given the material before the Tribunal at first instance which included the Surveyor's letters, the photographs of the coverings and the rooms of the house with the coverings attached to the windows and the extracts from the Building Code of Australia, there was material which provided an appropriate basis to justify the Tribunal below giving weight to the Surveyor's opinions and, especially in the absence of any contrary evidence, accepting them. There was no error of law on the part of the Tribunal below in this regard.
14. Finally, it is important to note that s 38(2) of the NCAT Act makes clear that, although the rules of evidence might not apply, the Tribunal must nonetheless comply with the rules of natural justice. Mr Tanious did not submit before the Appeal Panel that he was unaware of the material upon which the Corporation relied or that there was a denial of procedural fairness, or contravention of the rules of natural justice, by the Tribunal at first instance in this regard.
15. For these reasons, we do not accept that the Tribunal below erred in law by relying on inadmissible or otherwise inappropriate evidence, in particular the letters from the District Building Surveyor of 15 April and 22 June 2016.

Should Mr Tanious be granted Leave to Appeal on Other Grounds?

1. As has been noted above, Mr Tanious also contended, in effect, that he should be granted leave to appeal on the basis that he might have suffered a substantial miscarriage of justice because: 1. The decision was against the weight of the evidence; or 2. There was significant evidence now available which was not reasonably available at the time of the hearing.

Was the decision against the weight of the evidence?

1. Mr Tanious submitted that the opinions of the District Building Inspector should not have been accepted and that the photographs in evidence before the Tribunal at first instance, and available to the Appeal Panel, demonstrated that there was no interference with light or ventilation in the house as a result of the metal coverings. Thus, the decision was submitted to be against the weight of the evidence.
2. In the context of cl 12(1)(b) of Sch 4 to the NCAT Act, the Appeal Panel has held that a decision under appeal can be said to be "against the weight of evidence" where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach - Collins v Urban [2014] NSWCATAP 17 at [77(2)].
3. As we have explained above, it was open for the Tribunal below to give weight to the opinions of the District Building Surveyor contained in his letters and the extracts from the Building Code of Australia. There was also evidence, by way of emails from Georges River Council, of the Surveyor's qualifications.
4. As to the photographs, they do not support the proposition put forward by Mr Tanious that the metal coverings did not restrict ventilation or light coming into the house. The fixed nature of the strips of metal and the small opening at the top of each covering shown on the photographs are consistent with, and do not provide any contrary indication to, the Surveyor's opinion as to the restriction of ventilation. There was no expert evidence to the contrary.
5. As to the amount of light coming into the house with the coverings in place, Mr Tanious submitted that a comparison of the top photograph on p 50 of the Respondent's bundle with the photograph on p 57of that bundle demonstrated that there was no diminution in the light coming into the room. Those two photographs appeared to show the same room. Mr Tanious said that the photograph on p 50 had been taken in 2005, before the coverings were installed. The photograph on p 57 was obviously taken after the coverings were installed. Without being aware of the exact conditions under which the photographs were taken, the photographs do not provide any adequate basis for reaching any conclusion as to the amount of light entering the room. This is particularly so when the photograph on p 57 appears to have been taken with the aid of a flash.
6. Far from the evidence preponderating against the finding made by the Tribunal below, there did not appear to be any evidence which pointed unequivocally against the conclusions reached by the Tribunal. In these circumstances, we reject the submission that the findings of the Tribunal below were against the weight of the evidence in any relevant sense. Accordingly, the Appeal Panel is not in a position to grant leave to appeal on this basis.

Was there significant new evidence that was not reasonably available at the time of the hearing?

1. The evidence which Mr Tanious contended fell within cl 12(1)(c) of Sch 4 to the NCAT Act was: 1. evidence concerning the metal frames and barred windows at the Corporation's office in Riverwood; 2. evidence from Mr Veldhoen concerning his inspection in August 2015 and whether or not he gave oral permission for the installation of the coverings; 3. evidence from Mr McCarthy concerning the nature and effectiveness of the coverings; or 4. evidence from Mr Robinson, from Complete Blinds, concerning the provision of blinds or shutters for the windows and other openings which were presently covered by the coverings.
2. Under cl 12(1)(c), the Appeal Panel may grant leave if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because: "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."
3. Thus, in order to fall within this paragraph, the evidence which Mr Tanious relies upon must be: 1. significant; and 2. new, in the sense that it was not reasonably available at the time the proceedings below were being heard.
4. It has been held that evidence will not be "significant" for these purposes unless, if it had been before the Tribunal at first instance, there would have been a significant possibility that a different, more favourable result would have been achieved by the appellant - Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 at [113].

Metal frames and barred windows at the Corporation's office in Riverwood

1. The first type of evidence relied upon by Mr Tanious in this regard was evidence concerning metal frames and barred windows at the Corporation's office in Riverwood. It appears that Mr Tanious was arguing that because the Corporation had metal frames and bars on the windows of its office at Riverwood, he should be permitted to keep his metal coverings on his windows and door frames.
2. In our view, there is no significant possibility that, if Mr Tanious had led evidence at first instance of the frames and bars on the windows of the Corporation's office at Riverwood, he would have achieved a different, more favourable result. The presence of such frames and bars at the Riverwood office is most unlikely to have any bearing on whether Mr Tanious installed his coverings without written consent in breach of his residential tenancy agreement and whether he should be ordered to remove them. Thus, this was not "significant" evidence. Further and alternatively, there was no evidence to support the conclusion that the evidence was "new" in the relevant sense.
3. Consequently, the Appeal Panel declines to grant leave to appeal on this basis.

Evidence from Mr Veldhoen

1. Mr Tanious was aware of Mr Veldhoen and what occurred during his visit to the house in August 2015. Mr Tanious could have asked Mr Veldhoen to confirm in writing what he had told Mr Tanious on that occasion and could have provided any such confirmation to the Tribunal at the hearing at first instance. Alternatively, he could have requested that a summons be issued to Mr Veldhoen to attend and give evidence at the hearing. Mr Tanious has not provided any explanation as to why these steps could not be taken and thus why Mr Veldhoen's evidence was not reasonably available at the time the proceedings below were being heard. Accordingly, the evidence was not "new" within the meaning of cl 12(1)(c) and the Appeal Panel cannot grant leave to appeal on this basis.
2. Further and in any event, the Tribunal below considered both versions of what Mr Velhoen had said and concluded at [39]: "Even if Mr Veldhoen had orally approved the shutters after they have been installed (as the tenant asserts), the original breach by the tenant is that he installed the shutters without the written consent of the landlord. Section 66 of the RT Act refers to "written consent", not oral consent, and such written consent must be obtained before the fixture, alteration, or addition to the property is made. What Mr Veldhoen may, or may not, have orally said to the tenant is irrelevant to the fact that the tenant required written consent from the landlord prior to installing the shutters. The landlord has never given its written consent to the shutters being installed, and has given written notice to the tenant the shutters be removed."
3. Thus, it follows that even if Mr Veldhoen had given evidence at the hearing at first instance to the effect that Mr Tanious contended, it is unlikely that there would have been a "significant possibility" that a different, more favourable result would have been achieved by Mr Tanious. On this basis, it could also be concluded that the Mr Veldhoen's evidence would not have been "significant" in the relevant sense.
4. To the extent that Mr Tanious was submitting that the Tribunal below should have telephoned Mr Veldhoen to obtain his evidence, failing to do so would not constitute an error of law on the part of the Tribunal at first instance nor would it amount to a basis for allowing the appeal.
5. As the Appeal Panel was not conducting a new hearing of the matter under s 80(3) of the NCAT Act, there was no occasion for the Appeal Panel to contact Mr Veldhoen by telephone during the hearing of the appeal.

Evidence of Mr McCarthy and Mr Robinson

1. It was submitted that Mr McCarthy could give evidence concerning the nature and effectiveness of the metal coverings and Mr Robinson, from Complete Blinds, could give evidence concerning the provision of blinds or shutters for the windows and other openings which were presently covered by the coverings.
2. There was nothing to suggest that evidence from either of these witnesses would be "new" evidence as referred to in cl 12(1)(c). Nor did Mr Tanious point to anything which would indicate that it was "significant" in the required sense.
3. The Appeal Panel is of the view that Mr Tanious has not demonstrated that evidence from these witnesses would fall within cl 12(1)(c) and, consequently, the Appeal Panel is not in a position to grant leave to appeal on the basis of that evidence.
4. It can be noted that Mr Tanious did not seek to lead evidence from these witnesses at the hearing below and there was no occasion for the Appeal Panel to contact these witnesses since it was not conducting a new hearing of the matter under s 80(3).

Conclusions on Leave to Appeal

1. Mr Tanious has not established any basis upon which the Appeal Panel could grant leave to appeal. Further, even if one of the bases in cl 12(1)(a), (b) or (c) had been made out, in our view having regard to the whole of the proceedings and the reasons for decision of the Tribunal below, we are not satisfied that Mr Tanious might have suffered a miscarriage of justice in the circumstances. Accordingly, leave to appeal would not be granted in any event.

Miscellaneous issues

1. In his written and oral submissions, Mr Tanious contended that the decision below was based on "contradictory" and "negligent" information in various respects. For the sake of completeness, we shall address these issues by reference to the following passage from his written submissions which adequately summarises the issues raised (with paragraph numbers added for ease of identification): "[1] ● There was absolute negligent for the fact of the same matter has been taken twice to the same tribunal previously by the same respondent against the same appellant in order to terminate the appellant tenancy and both were dismissed twice. [2] ● Paragraph 10 page 4 and paragraph 11 page 5 the tribunal member below has confirmed that respondent could not on the one hand argue that the premises was wholly or partially uninhabitable… etc. at the time he has expressed his surprising from the respondent attitude but in the end he has supported the respondent by the decision of removing the shutters. [3] ● Paragraph 20 page 9 & 10 he has mentioned section 66 of the RT Act at the time there was absolute negligent for subsection (2) which has prevented the respondent from unreasonable withhold consent to a fixture. [4] ● Paragraph 26 page 11 he has accepted the shutter could not be considered fixtures but he has intended removing it for totally unfair non existing reasons such as interfere with ventilation, light, and safety of the appellant which was not true and there was no factual evidence supporting for such things. The shutters was made of flexible light metal very easy to be installed and removed by one person only. Appellant has clarified and confirmed this fact in front of the respondent's technical officer MR ALEX VELDHOEN. In addition to MR PAT McCARRTHY the expert in sheet metal installation from the factory address [xxx], Peakhurst, NSW, 2210. He can also be contact on [xxx] at hearing session in order to provide an expert opinion concerning such a matter. Appellant has made these shutters from scrap metal he has had from the rubbish pin of the mentioned sheet metal installation factory. [5] ● Paragraph 39 page 15 there was an acceptance from the side of tribunal member below the respondent's technical officer has verbally approved the shutters but there was insisting the written consent was mandatory before instaloing the shutters neglecting the fact of clause 12 of the tenancy agreement has allowed the tenant to protect his privacy and quite enjoyment of the premises. [6] ● Paragraphs 40, 41, 42 pages15,16 information has been provided and confirmed the negligent of the tribunal below for the unreliable evidence which was provided by the council employee as well as the negligent for the factual background of this proceedings. [7] ● Paragraphs 43, 44, 45, 46 pages 16, 17 of reasons of the decision has confirmed the absolute contradiction with negligent of the tribunal below. At the time he has considered the appellant did not support his facts by an expert report he also added in a contradictory way the UCPR has not been applied in his tribunal associated with a lot of other contradictory information."
2. The matter raised in the first paragraph was considered by the Tribunal below at [32] to [33] where it considered the application of the doctrines of res judicata and issue estoppel. The Tribunal correctly concluded that, because the landlord was raising a different cause of action in the later proceedings and the Tribunal had made no findings on the merits after a full hearing (the proceedings having been dismissed because of the landlord's non-appearance) in the earlier proceedings, those doctrines did not prevent the Corporation from pursuing the proceedings the subject of this appeal. Consequently, we would not uphold the appeal on this basis.
3. The second paragraph relates to the comment of the Tribunal below at [10] that: "The landlord cannot on the one hand argue that the premises are wholly or partially uninhabitable not by reasons of any breach by the tenant, and then on the other hand argue that the Tribunal should make an order that the tenant remove the shutters because the tenant has breached the residential tenancy agreement and s 66 of the RT Act."
4. As has been noted in these reasons and the decision below, the Corporation expressly withdrew its application for termination. Mr Tanious has not demonstrated any error on the part of the Tribunal in dealing with the application for an order for removal of the coverings under s 187 of the RT Act in these circumstances.
5. The matter raised in the third paragraph concerning whether the Corporation unreasonably withheld consent to the installation of the coverings has been dealt with above.
6. The fourth paragraph is apparently based in part upon a misunderstanding of the reasons. The Tribunal stated (at [26]): "The Tribunal is satisfied on the evidence that they are "fixtures" (May v Ceedive Pty Ltd [2006] NSWCA 369 at [65]-[66]). Even if they are not fixtures, the shutters are clearly an "alteration" or "addition" to the premises, as they are physical items that alter the external appearance of the window and door frames, and affect the entry of light into the premises."
7. The Tribunal below did not accept that the coverings were not fixtures; rather, the Tribunal below expressly found that the coverings were fixtures. As was proper, the Member then went on to consider an alternative assuming that the coverings were not fixtures, as was made clear by starting the sentence with the phrase "[e]ven if". In addition, questions relating to the evidence of Mr Veldhoen and Mr McCarthy have already been dealt with above.
8. The fifth paragraph apparently involves a similar misunderstanding of the Tribunal's dealing with an alternative. The Tribunal below did not accept that Mr Veldhoen orally approved the shutters. Further, the effect of cl 12 and the right to quiet enjoyment have been dealt with above.
9. The sixth and seventh paragraphs relate to questions of expert evidence and the UCPR. They have also already been dealt with.

Conclusion and Orders

1. For all of these reasons, none of the grounds of appeal has been made out and the Appeal Panel is not in a position to, and would not, grant leave to appeal.
2. In these circumstances, the orders of the Appeal Panel are: 1. The appeal is dismissed. 2. Leave to appeal is refused.

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: 15 November 2016