Violet v Ghaderi-Araghi

Notice of Appeal - Grounds of Appeal

1. The landlord states in her Notice of Appeal that the order challenged on appeal is par [11] of the reasons, being "payment of money in the way of compensation $2,000.00".
2. Written submissions were provided by the landlord on 28 April 2017. In summary, three grounds of appeal are identified.
3. The first ground was that there was no evidence to support the Tribunal's finding that the tenant was without accommodation due to the actions of the landlord.
4. The second ground was that the Tribunal did not provide adequate reasons for its finding that the tenant was entitled to $2,000.00 for discomfort and loss of enjoyment of the premises.
5. Thirdly, the landlord submits that the Tribunal incorrectly applied the decision of the Supreme Court in Tralee. The landlord submits that that decision should be distinguished, as it related to a claim for non-economic loss of enjoyment of a premises resulting from specific defects in those premises.
6. In the alternative, the landlord submits that if the Appeal Panel were to determine that there had been no error of law, leave to appeal should be granted on the basis that the landlord had suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was against the weight of the evidence: cl 12(1)(b), Sch 4, Civil and Administrative Tribunal Act 2013 (NCAT Act).
7. Further submissions were filed by the landlord on 19 May 2017. These submissions relevantly state that: 1. The [tenant] did not claim for loss of enjoyment or discomfort. 2. The [tenant] did not claim for personal injury or as stated in Tralee Technology Holdings v Yun Chen for damages to the room. 3. The [tenant] did not make a claim based on distress, disappointment & anxiety. 4. The [tenant] did not make a claim "that the Tenant be granted quiet enjoyment of the residential premises and that the landlord not interfere with the Tenant's peaceful, comfortable & private use of the premises." 5. Typed statement from the Respondent dated 06/12/16 paragraph 15 claims that the [tenant] "was not able to obtain accommodation, as I was not able to pay bond" but has resided in as least 5 places since November 2016. I note that before residing at Rooty Hill[. The [tenant] also stayed in a number of residents [sic - residences], moving on a regular basis. 6. Typed statement received on the 15 May, 2017 state that 'you are the first person that I gave $420.00 as Bond' therefore claiming Compensation for this should be invalid. 7. The [tenant] claims that he had to buy food while on the street, yet in his statement on the 15th May he states 'even one time I did not use kitchen or never cooked'. 8. The [tenant] already had rental of storage facilities so no further cost were incurred. The [tenant]'s submission is 14 1/2 pages long & sites [sic - cites] 39 cases which I find excessive to this matter. I am now filing a Compensation claim to recover the extensive Costs I have incurred.
8. We note that we offered the parties the opportunity to resolve the matter consensually, consistent with our duty pursuant to s 37(1) of the NCAT Act. We adjourned to allow the parties to do so. We noted that the matters raised by the landlord in her "compensation claim" were not the subject of the present appeal, but encouraged the parties to reach a resolution all of the issues between them. Unfortunately, the parties were not able to resolve the issues between them in in a consensual manner.

Reply to appeal - submissions

1. The tenant's Reply to Appeal was filed on 7 April 2017. Attached to the Reply were submissions setting out the tenant's response to the landlord's grounds of appeal. However, at the hearing, the tenant's counsel confirmed that later submissions filed on 12 May 2017 set out the tenant's arguments. In summary, the tenant submitted that: 1. Upon a finding that the landlord had breached the RTA, he was entitled to an order for payment of compensation pursuant to s 187(2)(b) of the RT Act; 2. As the Tribunal found that the landlord had unlawfully locked tenant out of the premises and taken possession of the premises, that illegal lockout being in breach of s 120(1) of the RT Act, accordingly, pursuant to s 120(2), the Tribunal had an additional power to order the compensation paid to the tenant; 3. The power of the Tribunal to award compensation includes the power to award compensation for non-economic loss: Chen v Zhang [2013] NSWCTTT 444; 4. The Tribunal correctly applied the law in awarding tenant compensation $2,000.00 for loss of enjoyment of the use of those premises in accordance with the decision of the Supreme Court in Tralee; 5. The Tribunal's award of $2,000 was "well within" the range of the applicable legal authorities and within the community expectations. When assessing the tenant's damages, the Tribunal was also entitled to take into account economic loss, including storage costs and meals, and the tenant's failure to receive the value of the unexpired term of the tenancy agreement; 6. A fair reading of the decision, "not minutely attuned to the perception error", established that there had been no failure to provide adequate reasons;
2. In the alternative, the tenant submitted that if the Appeal Panel determined that the tenant cannot recover damages for loss of enjoyment pursuant to the principles set out in Tralee, the award of compensation was justifiable by reason that the tenant suffering compensable distress and disappointment as result of his wrongful eviction by the landlord.

Consideration

1. The NCAT Act sets out the basis upon which appeals from decisions of the Consumer and Commercial Division may arise. Section 80 states that an appeal may be made as of right on any question of law, or with leave of the Appeal Panel on any other grounds.
2. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right and noted at [11] that, in circumstances where appellants are not legally represented, it is apposite to approach the issue by looking at the grounds of appeal generally.
3. The three grounds of appeal summarised above (that is, the making of a finding without probative evidence to support it; the failure to provide adequate reasons; and the incorrect application of the decision of the Supreme Court in Tralee) all raise questions of law.

Tralee

1. It is convenient to firstly consider whether or not it was open to the Tribunal to award compensation in accordance with the decision of the Supreme Court in Tralee. If the Tribunal erred in doing so, there would be no reason to consider the other grounds of appeal.
2. In Tralee, the court considered an appeal from the Local Court of New South Wales. One of the issues was whether the magistrate erred in holding that non-economic loss could not be awarded due to the provisions of the Civil Liability Act 2002. Proceedings had been commenced by both the landlord and the tenant in the (then) Consumer Trader and Tenancy Tribunal. The landlord sought recovery of arrears of rent from the tenant. The tenant claimed damages for breach of the residential tenancy agreement. Those breaches included an alleged failure on the part of the landlord to repair and/or properly maintain the premises. The tenant had sought $18,100 in respect of various issues including floorboard movement and subsidence, water ingress, vermin access, inadequate sound insulation, faulty tiles, a faulty ceiling and a noisy air-conditioning unit. The Local Court found that the damages for non-economic loss were not recoverable.
3. On appeal, a question to be determined was whether the magistrate erred in finding that damages for non-economic loss were not recoverable. From paras [33] to [39], Bellew J, after a thorough review of the authorities, found that the magistrate had in fact erred. However, his Honour stated that this did not of itself entitle the tenant to relief. That was because the Local Court had concluded that, even if the tenant could claim damages, the provisions of the Civil Liability Act 2002 applied, and that no damages were recoverable. In this respect, Bellew J again reviewed the relevant authorities. His Honour concluded, in the passage referred to by the Tribunal at [11] of its reasons, that: 61. The weight of authority supports the view that a claim for damages for distress, anxiety, or disappointment is a claim for damages to which the [Civil Liability Act 2002] will apply. However in my view that was not the claim brought by the plaintiff in the present case. Although Mr Bradley made reference to the property being an "embarrassment" that was not, in my view, an expression of distress, anxiety, disappointment or any similar emotion. It is apparent from those extracts of his evidence above that the claim for damages for non-economic loss arose from a loss of enjoyment of the property. That was not a claim for personal injury damages. 62. In my view, the Magistrate erred in reaching a contrary conclusion. Her Honour found that there was a "conflict" between the decisions in El-Saiedy and Louw. In my view, the differing conclusions reached in those cases is explained by the fact that the respective claims for damages were brought on different bases. The claim brought in El-Saiedy was one for discomfort and loss of enjoyment of the property. That brought in Louw was one for inconvenience, distress and disappointment. The differing bases upon which the respective claims were brought explain why different conclusions were reached. They also explain why Harrison AsJ in El-Saiedy did not consider (and was apparently not taken to) the various decisions of the Court of Appeal which support the proposition that claims for damages based upon anxiety and distress are claims which attract the provisions of the [Civil Liability Act 2002].
4. We are not aware of any appeal from the decision. Therefore, both the Tribunal below, and this Appeal Panel, are bound to follow his Honour's decision and to apply it in the present proceedings, that is, that damages for non-economic loss are available for a loss of enjoyment of the premises, such a claim not being a claim for personal injury damages.
5. Accordingly, we consider that there is no error in principle in the Tribunal determining damages in the form of non-economic loss for the landlord's deprivation of the tenant's loss of enjoyment of the premises. We reject the submission of the landlord that the reasoning in Tralee should be distinguished (that is not followed) in this appeal. His Honour clearly referred to and considered all the relevant authorities, and we consider that the Tribunal was correct to find that it was open to it to consider whether or not compensation should be payable for the loss of enjoyment of the tenant's premises in circumstances where he had been "locked out" by the landlord.

Inadequacy of reasons

1. The second ground of appeal is that the reasons explaining how the $2,000.00 was derived were inadequate.
2. It is well established that a failure to give proper reasons constitutes an error of law: Nancarrow v Donvito [2017] NSWCATAP 97; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110. There is a useful discussion of the relevant authorities in Pollard at [56]ff. In summary: 1. A trial judge's reasons (here the Tribunal's) must, "as a minimum ... be adequate for the exercise of a facility of appeal": Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; 2. A superior court (here the Appeal Panel), "considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding": Soulemezis; 3. The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud v Campbell (1991) 21 NSWLR 725; Hull v Thompson [2001] NSWCA 359; 4. While a judge is not obliged to spell out every detail of the process of reasoning to a finding: Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435; 5. The reasons must do justice to the issues posed by the parties' cases: see Moylan v Nutrasweet Co [2000] NSWCA 337. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA.
3. The Tribunal referred to various matters in reaching its conclusion at [11] that the appropriate award for discomfort and loss of enjoyment of the premise was $2,000.00. These included: 1. The tenant being unlawfully locked out of the premises by the landlord (reasons at [9]); 2. The tenant having to store his goods (reasons at [7(a)]; 3. The tenant being unable to find alternative accommodation for two weeks and having to live on the streets for that period (reasons at [7(a)]; 4. The tenant having to purchase cooked meal when he was otherwise homeless ([7(a)]; 5. The tenant having to incur storage costs ([7(a)].
4. We note that reasons for decision need not necessarily be lengthy or elaborate: Beale at 443. We consider that, while briefly stated, when the reasons as a whole are read together, the Tribunal did provide adequate reasons for its decision to award compensation.
5. We also note that the tenant submitted that he failed to receive the value of the unexpired term of the RTA. The tenant relies on Or v Wei [2013] NSWCTTT 424 as authority for the proposition that when assessing loss of bargain damages it as open to the Tribunal to take into account failure of a tenant to receive the unexpired value of a residential tenancy agreement. The Tribunal made no finding of the length of the term of the RTA, and the tenant relied on s 14(3)(b) of the RT Act. That section provides that if the landlord fails to ensure that a residential tenancy agreement is in writing (s 14(1), the landlord is not entitled to terminate the residential tenancy agreement under s 85 during the first 6 months of the tenancy. Section 85(2) provides that while a landlord may, at any time, give a termination notice for a periodic agreement (that is a residential tenancy agreement that is not a fixed term agreement: s 3 of the RT Act), the termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given. Accordingly, the tenant submitted, and we accept, that this had the effect having the benefit of residential tenancy agreement of a minimum of six months' duration.
6. In summary, we consider that all these matters, when considered cumulatively, provide appropriate reasons for the Tribunal reaching its decision that compensation for his loss of enjoyment of the premises should be awarded.
7. As to the quantum of the compensation awarded, the landlord relied on Chen v Zhang [2013] NSWCTTT 444. In that decision, the Tribunal at [12] summarised a number of authorities where the Tribunal awarded compensation where there had been an unlawful dispossession of the tenant. As the Tribunal remarked at [11], a review of previous decisions by the Tribunal is useful as a guide to prevailing standards in the community, but the Tribunal must consider the individual circumstances of the case: Planet Fisheries P/L v La Rosa [1968] HCA 62; (1968) 119 CLR 118; Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44.
8. As the tenant submits in his written submissions, although loss may be difficult to calculate (or to quantify), it is a generally accepted principle that lone a loss is proven, a court or tribunal must do its best to put a value on that loss. We accept the tenant's submission that the award of $2,000.00 was an appropriate amount of compensation to order and within the range of relevant legal decisions and within community the community's expectations.

Lack of probative evidence

1. The final ground of appeal was that there was no evidence to support the Tribunal's finding that the tenant was without accommodation due to the actions of the landlord.
2. The making of a finding without probative evidence to support it is an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
3. It is not correct to submit that there was no evidence to support the Tribunal's finding. What is correct is that there was no corroborative evidence to support the tenant's evidence that that was the case. As the Tribunal clearly accepted that tenant was telling the truth, there is no reason why the finding was not available to the Tribunal.

Substantial miscarriage of justice

1. As noted above, in the alternative, the landlord submitted that if the Appeal Panel were to determine that there had been no error of law, leave to appeal should be granted on the basis that the landlord had suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was against the weight of the evidence: cl 12(1)(b), Sch 4, Civil and Administrative Tribunal Act 2013 (NCAT Act).
2. Clause 12 of Sch 4 of the NCAT Act provides that an Appeal Panel may grant leave if it is satisfied the appellant may have suffered a substantial miscarriage of justice because: 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).
3. Given our findings that: 1. There is no error in principle in the Tribunal determining damages in the form of non-economic loss for the landlord's deprivation of the tenant's loss of enjoyment of the premises; and 2. The award of $2,000.00 was the appropriate amount of compensation to order and within the range of relevant legal decisions and within community the community's expectations, we do not consider that the landlord may have suffered a substantial miscarriage of justice. Nor are we are not satisfied that the appeal involves an issue of principle, questions of public importance, an injustice is reasonably clear or that the Tribunal went about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result: Pholi v Wearne [2014] NSWCATAP 78 at [32].
4. Leave to appeal is refused.

Conclusion

1. For the above reasons, the Appeal Panel orders: 1. The appeal is dismissed. 2. Leave to appeal on an issue other than error or law is refused. 3. The stay of the Tribunal's order of 28 February 2016 lifted.

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: 20 June 2017