Udy v Tilley [2018] NSWCATAP 89 | Case summary

NCAT Appeal Panel|2018-03-15

Introduction

This appeal concerns an application by the appellant for compensation relating to water charges paid to the respondent in connection with a residential tenancy agreement for a property at Katoomba.
The appellant was the tenant. The respondent was the landlord.
The appellant filed an application in the Tribunal on 19 July 2017 seeking an order that he be paid an amount of $361.80. The appellant referred to s 187(1)(d) of the Residential Tenancies Act, 2010 (NSW) (RT Act) being "an order as to compensation". The reasons state in the application for requesting an order were as follows: Excessively high usage charges as a result of leaks at the property and is an non-compliance with the requirements of water saving devices under the lease.
In the box marked "Extension of time" on the application, the appellant answered "Yes" but said "I am unaware of any time-limits for orders under this claim".
The Tribunal heard the application on 23 November 2017 and dismissed the application. There were two reasons for the dismissal provided by the Tribunal.
First, the Tribunal found the application was lodged more than 3 months after the appellant became aware of the breach to which the application related. Consequently, the application could not be made unless the Tribunal made an order extending time. The Tribunal declined to make that order because the appellant had failed to explain the delay in making the application which was found to be a period of 2-3 years.
Secondly, and in the alternative, the Tribunal found that the claim in relation to water charges could not be maintained having regard to the terms of a settlement agreement reached in earlier proceedings being application RT 17/29327 (landlord's compensation proceedings).
The appellant appeals the decision to dismiss his claim.

Notice of Appeal, history of appeal proceedings and submissions

The appeal was commenced by Notice of Appeal filed 8 December 2017. The appeal was filed in time, the appellant having received notice of the decision on 24 November 2017.
The grounds of appeal and submissions can be summarised as follows: 1. The Tribunal erred in law by wrongly concluding the claim for water usage charges had been dealt with in application RT 17/29327. The appellant said that the settlement of the earlier proceedings related to the claim by the respondent only and there had been no surrender by the appellant of his rights to claim for breach of the residential tenancy agreement; 2. The Tribunal erred in concluding the appellant was out of time to bring his application. The appellant submitted that his application had been brought under s 187(1)(c) of the RT Act seeking the payment of money in respect of water usage charges. The appellant also says he "should have applied under s 47(1)" of the RT Act. Neither of these provisions has time constraints and the member incorrectly concluded that the claim was brought under s 190(1) of the RT Act to which time limits might apply. 3. The Tribunal erred in concluding the evidence provided by the applicant was not sufficient to prove his claim. The appellant relied on a video showing the operation of the shower to demonstrate the showerhead was not compliant with the water saving requirements of the RT Act. The appellant also relied on the content of a rent ledger to show the amounts paid for water charges. In oral submissions, and notwithstanding the appellant's written submissions at page 2 (setting out water usage charges for which a claim was made), the appellant said he was only seeking a refund of water usage charges up to the period 5 March 2015. 4. The Tribunal erred in basing its decision on a misinterpretation of the appellant's oral testimony or absence thereon. In this regard the appellant indicated in his Notice of Appeal that he would be providing further details when the sound recording was available.
The appellant provided written and oral submissions to support these contentions. This included reference to the fact that the toilet cistern did not operate correctly and periodically would not close off the water flow. This problem, the appellant said, was not rectified until September or October 2016. In addition, the appellant said, in connection with the video which had been taken in 2016, that he had not reviewed the video and was therefore unaware that the showerhead was not compliant until reviewing the video sometime in the middle of 2017.
As is evident from the submissions above, a resolution of this appeal in part requires a consideration of the evidence given by the parties at the hearing of the appeal. Despite the directions by the Appeal Panel, the appellant failed to provide a copy of the sound recording to the respondent and failed to type up relevant parts of the sound recording upon which he wished to rely. The appellant sought to excuse his non-compliance by asserting that the evidence he gave at the hearing was inaudible on the sound recording.
Having pointed out that the appellant was required to prove any factual matters, including any deficiency in the sound recording of the original hearing, directions were made at the end of the hearing of the appeal to allow the appellant an opportunity to provide relevant references to the sound recording where he says the subject matter of the disputed evidence was discussed before the Tribunal together with a typed copy of the evidence he says was given. He was also directed to provide the sound recording to the respondent. Directions were also made to allow the respondent to reply to any further material provided by the appellant.
Pursuant to the directions made, the appellant provided a typed copy of the transcript references upon which he wished to rely. Relevantly, the transcript recording an exchange between the Tribunal and the appellant concerning when he became aware of the high water usage in respect of the showerhead as follows: Member: And when did you first raise it with the agent. Mr Udy: That's a good question but I raised the issue of the high water usage um all through the tenancy. Member: no not the water usage, the showerhead. Mr Udy: The showerhead. Member: When did you first raise that with the agent. Mr Udy: It would have been at an ingoing inspection […]. Member: But the ingoing inspection that was at the beginning of the tenancy. Mr Udy: oh sorry not ingoing a routine inspection […] Member: Do you know roughly. A month will do. Mr Udy: I'd say it would be in 2014/2015. Member: so you first raised the issue of the showerhead in 2014 or 2015? Mr Udy […] and I was told it would be a water saving showerhead Ah Ms Tilley also says in her response that it would be a water saving showerhead um […].

Consideration

The following were agreed facts in the appeal: 1. The appellant left the residential premises approximately 2 or 3 days after 29 May 2017. 2. The respondent had commenced the landlord's compensation proceedings on 30 June 2017. In those proceedings, the respondent made claims for unpaid rent, carpet cleaning, cleaning the bathroom and water usage charges, a total of $769.96 and claimed part of the bonding in satisfaction of these amounts. 3. The landlord's compensation proceedings had been settled by agreement and the settlement sum had been paid by the appellant to the respondent as required by the agreement.
In addition, the appellant had commenced earlier proceedings, application RT 16/02862 seeking compensation which had apparently been settled for $3500.00. The appellant said these claims related to order to carry out repairs and compensation for lack of maintenance. At the hearing of the appeal the respondent could not recall the detail of what occurred, these matters having been resolved as part of a resolution process in Appeal Panel proceedings AP 17/05501.
In substance, this appeal raises two questions. First, was the Tribunal correct to conclude that the proceedings had been commenced out of time. Secondly, was the Tribunal correct to conclude that the settlement reached in the landlord's compensation proceedings meant that the claim in respect of water usage charges could not now be brought by the appellant.
In relation to the proceedings being out of time, the appellant contended that no time limit was specified for an application made under s 187(1)(c) of the RT Act.
On one view, this submission misconceives s 187(1) and its purpose. Section 187 specifies the orders that may be made by the Tribunal on application by a landlord or tenant or other person. Arguably the section does not authorise the making of an application. It does not, on this approach, create a right of action in favour of a party to a residential tenancy agreement or give power to the Tribunal to make an order independent of providing a remedy in respect of an identified cause of action. Rather, an application may be made to the Tribunal in circumstances otherwise permitted by the RT Act, including those arising from a breach of a residential tenancy agreement, s 187 then giving order making power to the Tribunal to resolve such applications.
In any event, it is unnecessary to examine the scope and operation of the section in the present case. This is because, if it does independently enable the making of an application, such application must be made within 28 days from when an applicant became entitled under the RT Act to make the application: see r 23(3)(b) of the Civil and Administrative Tribunal Rules, 2014 (NSW) (Rules). As the present claim is based on a breach of the residential tenancy agreement, the entitlement to bring a claim accrues on the date the breach occurs, unless s 190 applies (a matter to which we will return below). Consequently, any application under s 187 (if it could be made under that section) was out of time as any breach of the agreement occurred more than 28 days before the application was filed,
Notwithstanding the above, the appellant says he was not obliged to pay for water usage charges because the cistern on the toilet did not work or alternatively because the premises did not contain water efficiency measures required by the RT Act and regulations, namely an appropriate showerhead. The appellant referred to s 39 of the RT Act. Relevantly, that section requires a tenant to pay water usage charges, but only if "the premises contain water efficiency measures prescribed by the regulations for the purpose of this section". Section 39(7) provides that the section is a term of every residential tenancy agreement. In respect of the showerhead, reg 11(a) of the Residential Tenancies Regulation, 2010 (NSW) (RT Regulation) provides that "all showerheads on the premises must have a maximum flow rate of 9 litres per minute".
These obligations of the respondent are reflected in cl 18 (landlord's obligation to repair) and cl 11.4.2 (landlord agrees a tenant is not required to pay water usage charges unless an appropriate showerhead is fitted) of the standard form residential tenancy agreement. Although the actual residential tenancy agreement was not in evidence before the Appeal Panel, no suggestion was made that the agreement between the parties did not comply with the RT Act.
Be that as it may, the appellant relied on a video to support his claim that the showerhead had a flow rate greater than 9 litres per minute and that he had wrongly been charged for usage.
As is evident from the above, the appellant's claim was that the respondent had breached the terms of the residential tenancy agreement. The power to bring an application for breach of a residential tenancy agreement by a landlord or a tenant is found in s 190(1) which says: A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations.
Regulation 22(9) of the RT Regulation requires any application to be made "within 3 months after the applicant becomes aware of the breach".
In its reasons, the Tribunal concluded that the appellant's application was brought under s 190(1) of the RT Act, not s 187, and therefore the three month period applied. As explained above, it was correct to do so. Insofar as the cistern was leaking, this was something the respondent, as landlord, was required to repair, the obligation to do so being a term of every residential tenancy agreement: see s 63 of the RT Act. Similarly, no charge could be made for water usage if an appropriate showerhead was not fitted. In each case, the claim for compensation arises in consequence of a breach of the residential tenancy agreement.
The Tribunal found as a matter of fact that the claim for compensation was made more than three months after the tenant became aware of the breaches. Therefore the claims were out of time.
In our view the Tribunal was correct to reach this conclusion.
First, in relation to the leaking cistern, it is clear from the submissions made by the appellant in this appeal that this problem was fixed no later than September or October 2016, nine months before the proceedings for compensation were commenced. The appellant must have been aware of the breach on or before October 2016.
Secondly, the video in respect of the showerhead said to show the rate of water discharge was more than 9 litres per minute, was taken in June 2016. Similarly, this fact suggests that the appellant was aware of any alleged breach at this time, the only reason to take a video showing a bucket being filled up from the showerhead to demonstrate that there was not an appropriate water efficiency device. The appellant suggested in the appeal that he did not review the video at the time it was taken and therefore was unaware of any problems with the showerhead until June or July 2017 when he then reviewed the video and commenced his application. This seems improbable, particularly having regard to the Tribunal's finding that the appellant had raised this issue with the respondent's agent as early as 2014 or 2015, a finding confirmed by the transcript of evidence provided by the appellant to the Appeal Panel as set out above.
While the appellant sought leave to appeal these conclusions, it could not be said that the "evidence in its totality so strongly preponderates against the conclusion found by the Tribunal". Consequently, leave to appeal should be refused: see cl 12(1) Sch 4 of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act) and Collins v Urban [2014] NSWCATAP 17 at [77].
The Tribunal had power to extend the time to bring the application pursuant to s 41 of the NCAT Act. The Tribunal declined to exercise its discretion to extend time and provided reasons for doing so. No challenge has been made to the exercise of this discretion and, in any event, we can discern no error by the Tribunal in this regard.
Accordingly, the Tribunal was correct to dismiss the appellant's application as it was out of time.
In reaching this conclusion we should also deal with the appellant's statement to the Appeal Panel that he should have made an application under s 47 of the RT Act. Such an application would have been for a refund of amounts paid. We note this application was not made in his original application. Further, such an application first requires a notice for repayment to be given to a landlord under s 47(1) before an application can be made under s 47(4). There is no evidence such a notice was given, nor that the landlord had improperly failed to respond to such a request in the time required by s 47(3). Rather, as we set out above, the appellant sought an order for compensation. Consequently, as this ground was not raised in the original application, it cannot now be raised on appeal: see Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33.
While unnecessary to do so, we will briefly deal with the Tribunal's conclusion that there was, in any event, a settlement agreement which prevented the present application being made.
As noted above, the respondent had claimed unpaid water usage charges in the landlord's compensation proceedings. Those proceedings had been resolved by consent orders. The agreement recording this settlement, and about which the Tribunal made orders in the landlord's compensation proceedings, was reached following conciliation. The written agreement forms part of the documents provided in this appeal. The text of the agreement (with address redacted) was as follows: The parties have agreed to the following consent orders: (1) The tenant agrees to pay the sum of $200 to the landlord as full and final settlement of all claims arising from the tenancy at … Katoomba. The tenant is to pay this amount in fortnightly instalments of $40, the first instalment due Tuesday, 25th July 2017, and fortnightly thereafter until the amount is paid in full. (2) The parties agreed to the release of the full Bond plus interest to the tenant. (3) The parties agree to a relist period of 3 months if these consent orders are not complied with.
There is no dispute that the orders were complied with and the settlement amount paid by the appellant to the respondent.
The Tribunal concluded that the expression "as full and final settlement of all claims arising from the tenancy" referred to all claims whether brought by the respondent as landlord or the appellant as tenant. This agreement was reached in circumstances where there had been earlier appeal proceedings and a history of multiple disputes between the parties.
The words used in the agreement are unambiguous. There is no reason to confine the words "all claims arising from the tenancy" as only referring to claims by the respondent as landlord. Certainly, there is no reason to conclude that all disputes concerning water usage charges were not being resolved by the settlement reached in the landlord's compensation proceedings. The settlement was reached on 20 July 2017, nearly 2 months after the tenancy had come to an end and the appellant had vacated the premises. It was also the day after the application, the subject of this appeal, had been lodged in the Tribunal. In these circumstances, there seems no basis to conclude the parties did not intend exactly what they had said. It follows that this ground of appeal also fails.

Orders

The Appeal Panel makes the following order: 1. The application for leave to appeal is refused and the appeal is otherwise 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: 26 April 2018

Udy v Tilley

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