Thomas v Slade

NCAT Appeal Panel|2023-02-22

REASONS FOR DECISION

This is an appeal from a decision of the Tribunal involving a claim for the bond at the end of a residential tenancy agreement.
In the first instance proceedings the Tribunal found partially in favour of the landlord in respect of some of the items claimed, but dismissed the landlords' claim for $1880 for end-of-tenancy cleaning costs.
In this appeal the appellant landlord appeals the Tribunal's decision to refuse to award compensation for cleaning costs. The landlord seeks an order that the tenants be required to pay $1220 towards her cleaning costs.
For convenience, in this decision we will refer to the appellant as the landlord and the respondents as the tenants.
For the reasons that follow we have decided to dismiss the appeal.

Timing

The landlord filed the appeal on 19 December 2022 which is 14 days after the landlord was notified of the decision. Under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW), the time to appeal a residential tenancy decision is 14 days from the date on which the appealing party was given or notified of the decision. The appeal was lodged in time.

Background

The background to the appeal, which is based on information contained in documents filed in the appeal proceedings and told to us during oral submissions, is as follows.
The tenants entered into a residential tenancy agreement with the landlord on 18 January 2019, for residential premises in a rural area outside of Sydney ('premises'). The premises include a four bedroom house, a two bedroom granny flat and stables. The tenancy ended when the tenants provided vacant possession of the premises on or about 22 August 2022.
On 15 September 2022 the tenants lodged an application in the Tribunal seeking a refund of the bond which had been paid at the commencement of the tenancy.
The landlord claimed she was entitled to the following amounts from the bond: 1. $833.45 for rental arrears; 2. $1880 for cleaning; 3. $1221 for patching and painting of walls; and 4. $1850 for yard maintenance.
The matter came before the Tribunal for a final hearing on 5 December 2022. 1. By that time the parties had agreed that the landlord was entitled to $833.45 for rental arrears and had also resolved some of the other aspects of the dispute. The Tribunal awarded the landlord: 2. $833.45 for agreed rental arrears; 3. $732.60 for patching and painting the walls; 4. $275 for agreed fencing repairs; and 5. $825 for yard maintenance. 6. However, the Tribunal dismissed the landlords' claim for cleaning costs in its entirety.

Scope and nature of internal appeals

An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl. 12(1) of Sch. 4 of the NCAT Act. In such cases, the Appeal Panel must 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).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 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.
Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl. 12(1) of Sch. 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
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; (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

The only grounds of appeal contended by the landlord are that the landlord may have suffered a substantial miscarriage of justice because: 1. the decision in relation to cleaning was against the weight of evidence; and 2. the decision in relation to cleaning was not fair and equitable.
Neither of the grounds of appeal involve an error on a question of law and therefore the landlord requires leave to appeal.

Tribunal decision in relation to cleaning

In the Tribunal proceedings the landlord claimed $1880 for cleaning costs. We understand the landlord to have been alleging a breach by the tenants of s 51(3)(c) of the Residential Tenancies Act 2010 (NSW) (the RT Act) which provides that on giving vacant possession of the premises the tenant must leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy.
This section is a term of every residential tenancy agreement: RT Act s 51(5).
The Tribunal's decision insofar as it addresses the landlord's claim for cleaning costs is brief. The Tribunal refers to the cleaning quote provided by the landlord and the landlord's ingoing and outgoing photographs. After briefly discussing that evidence, the Tribunal concludes: Based on the lack of evidence of comparison of ingoing and outgoing photos showing cleaning requirements, the tribunal finds that the landlord failed to establish any claim for cleaning. No amount was awarded for cleaning.
Although not explicitly stated, we understand the Tribunal member to be saying that she was not satisfied, on the basis of the evidence, that the tenants had breached their obligation under s 51(3)(c) to leave the residential premises in a reasonable state of cleanliness, having regard to their condition at the commencement of the tenancy.

Ground 1 - Weight of evidence

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 at [77].
The landlord says that the decision was against the weight of evidence because the Tribunal member did not take into account the signed ingoing condition report (the 'ingoing report'), or a letter dated 6 October 2022 from a professional cleaner (the 'cleaner's letter').

Did the Tribunal take into account the ingoing condition report and the cleaner's letter?

We do not agree with the landlord that the Tribunal member did not take account of the ingoing report. The fact that the report is not directly referenced in the section of the decision entitled "Cleaning" does not mean that the Tribunal did not take it into account. As the NSW Court of Appeal said at [77] in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr) (per Bell P), citing Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165: "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole."
In this instance the decision contains numerous references to the ingoing report, albeit not under the section entitled "Cleaning". Moreover, the excerpt from the transcript of proceedings provided by the landlord indicates that the Tribunal member did indeed have regard to the ingoing report, and informed the landlord's agent of her reservations regarding the probity of this evidence with respect to the cleaning claim. We will deal further with this issue later in these reasons.
With regard to the cleaner's letter, the landlord is referring to a letter dated 6 October 2022 from Donna Arici of Epic Home Cleaning. The letter states: I … confirm that I cleaned the house at XXXXX on behalf of Karen Thomas and Derek Deogh prior to property being tenanted in July 2018. Cleaning charge was $650 and paid in full by owners.
Although the letter is not specifically referenced in the Tribunal's decision, this does not mean that the Tribunal failed to take it into account. It is not necessary for the Tribunal to detail each factor which it has found to be relevant or irrelevant or to itemise each of the factual matters to which it has had regard when making a decision: Orr at [74].
In any event, whether or not the Tribunal took the letter into account is of no moment. The letter has little if any evidentiary value. The letter refers to cleaning carried out four years earlier. It contains no information as to the date on which the cleaning occurred, and provides no details as to the standard or the extent of that cleaning. The letter therefore provides limited probative evidence as to the state of cleanliness of the premises at the start of the tenancy and it was open to the Tribunal to have little or no regard to it.

Was the decision against the weight of evidence?

The crux of the dispute is whether the Tribunal gave sufficient weight to the landlord's evidence, including in particular the ingoing report, when assessing the claim for cleaning costs.
The landlord's submission is in effect that the ingoing report reflects that the parties agreed that the premises were clean at the commencement of the tenancy, that the outgoing photographs provided by the landlord establish that the premises were left in an unclean condition, and that therefore it was incumbent on the Tribunal to find that the tenants had breached their obligation under s 51(3)(c).
Relevant to this issue is s 30(1) of the RT Act which states: A condition report that is signed by both the landlord and the tenant is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the day specified in the report.
Section 30(1) therefore contains a rebuttable evidentiary presumption concerning condition reports. If a condition report is signed by both landlord and tenant it is presumed to be a correct statement of the state of repair or general condition of the residential premises on the day specified in the report, in the absence of evidence to the contrary.
Section 30(1) is qualified by subsection 31(2) which states: This section does not apply - (a) to any matter that could not have reasonably been discovered on a reasonable inspection of the premises, or (b) to any statement in the report about which the tenant makes a written dissenting comment on the copy of the report completed by the tenant and retained by the landlord.
Having considered the materials which were before the Tribunal, including the ingoing report, we are not persuaded that the Tribunal gave insufficient weight to the ingoing report. Our reasons for this include the following.
Firstly, in order to determine whether the premises were left unreasonably clean, it was necessary for the Tribunal to compare the evidence as to their condition at both the start and end of the tenancy.
While the ingoing report was prima facie evidence as to the condition of the premises at the commencement of the tenancy (to the extent that the tenants did not note otherwise on the report) the onus was on the landlord to establish not only the condition of the premises at the start of the tenancy, but also their condition at the end of the tenancy,
The landlord's evidence as to the condition of the premises at the end of the tenancy did not include a signed outgoing condition report. The landlord relied primarily on a series of outgoing photographs taken one or two days after the tenancy ended. Many of those photographs are indistinct and inconclusive. For example, the photographs relied upon to show that the tenants left animal prints on the windows and hair in the bathroom basin are not sufficiently clear to show conclusively the issues complained of by the landlord. Similarly, the outgoing photographs are unlabelled and taken at close angles so it is often difficult to ascertain what part of the premises is depicted in the photographs.
Secondly, some of the outgoing photographs relied upon by the landlord show areas which were not marked as either clean or unclean on the ingoing condition report by either party (such as the stables). Accordingly, in the absence of other probative evidence as to the condition of those areas at the commencement of the tenancy, the Tribunal was unable to compare their condition at the beginning and end of the tenancy.
Thirdly, the ingoing report contains numerous notations made by the tenants which show that the tenants disagreed with the landlord regarding the state of cleanliness of several aspects of the premises at the commencement of the tenancy (the Disputed Areas). For example, the tenants' comments included, in relation to sliding doors at the premises: "Tracks dirty and dusty", in relation to skirtings: "dirty and dusty", in relation to the bathroom vanity: "dirty" in relation to the air conditioning vents: "dirty and dusty", in relation to the kitchen rangehood: "cooking stains" and so on.
It follows therefore that with regard to the Disputed Areas, the ingoing report could not, pursuant to s 31(1) of the RT Act, be presumed to be a correct statement of the cleanliness of the premises at the commencement of the tenancy. The landlord's agent did not refer us to any additional probative evidence which established the condition of those areas at the commencement of the tenancy and acknowledged that the ingoing photographs attached to the report were not sufficiently clear for this purpose.
Nonetheless, many of the outgoing photographs relied upon by the landlord to show that the premises were not left in a satisfactorily clean condition at the end of the tenancy relate to the Disputed Areas (such as sliding door tracks and the rangehood). In the absence of other evidence to establish the condition of those areas at the commencement of the tenancy, the Tribunal could not have concluded that those areas were unsatisfactorily clean at the end of the tenancy.
We note here that with regard to the rangehood, the landlord's agent submitted that while the tenants noted on the ingoing report that there were "cooking stains" on the rangehood, the landlord's issue was that the rangehood was left "greasy". We do not think there is any relevant difference between these concepts for the purposes of s 51(3)(c). In any event no discrepancy in the condition of the rangehood is apparent from the photographs relied upon by the landlord.
This leads to another important point which is that the landlord appears to have taken an overly fastidious view as to what is required to comply with s 51(3)(c). Section 51(3)(c) requires the premises to be left in a reasonable state of cleanliness having regard to their condition at the start of the tenancy (emphasis added). "Reasonable" does not mean perfect. What is required is a level of cleanliness that is fair and sensible having regard to the state of cleanliness when the tenancy commenced. In this instance, there was cogent evidence that at least parts of the premises were not clean at the beginning of the tenancy. This was relevant to assessing whether the premises as a whole were left in a reasonable state of cleanliness at the end of the tenancy. Thus, even if the evidence established that some areas of the premises were less clean at the end of the tenancy than at the beginning, it was nonetheless open to the Tribunal to conclude that the premises as a whole were left in a reasonable state of cleanliness having regard to their condition at the start of the tenancy.
For these reasons we are not satisfied that the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion regarding cleaning was not one that a reasonable Tribunal Member could reach.

Ground 2 - Decision not fair and equitable

Whether a decision was not fair and equitable will involve a consideration of whether there has been an unfairness in the way the proceedings have been conducted or some other denial of procedural fairness.
The landlord's submission in this regard is that during the hearing the Tribunal member unfairly refused to consider the ingoing condition report, stating that it was "subjective" and could not be relied upon.
We have reviewed the excerpt of the transcript provided by the landlord and do not agree with the landlord's assessment of what transpired at the hearing. Whilst the Tribunal member did say "the condition report can be quite subjective" and other similar words to that effect, there is nothing in the transcript which establishes that the Tribunal member refused to consider the ingoing condition report. Rather, the member appears to have been pointing out to the landlord's agent that she did not consider the landlord's evidence, including the ingoing condition report, was sufficient to establish the landlord's significant cleaning claim, and was giving the landlord an opportunity to submit additional evidence to support the claim.
For reasons already explained it was open to the Tribunal to reject the landlord's cleaning claim on the basis of the evidence before it.
The landlord has not identified anything about the conduct of the proceedings which would lead us to the conclusion that the decision was not fair or equitable.

Exercise of discretion

For these reasons we are not satisfied that the landlord may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the Tribunal's conclusions were against the weight of evidence. Consequently, our discretion is not enlivened and it is not necessary to consider whether leave to appeal should be granted. We would add however that even if our discretion had been enlivened, we would have declined to exercise our discretion to grant leave to appeal as we are not satisfied that any of the factors referred to in Collins v Urban at [84] exist in this instance.
Firstly, the Appeal involves no issue of principle or question of public importance or policy which might have general application.
Secondly, nothing in the landlord's submissions satisfies us that the findings and conclusions of the Tribunal disclose a factual error which was unreasonably arrived at, or that there is a finding or conclusion which was clearly mistaken.
Finally, there is nothing before us to suggest that the Tribunal has 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.

Conclusion and Orders

For these reasons we make the following orders: 1. Leave to appeal refused. 2. Appeal dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 February 2023

(NCAT Act) Civil and Administrative Tribunal Rules 2014(NSW)

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