Wall v Barham

reasons for decision

1. Tenant Rachel Ward and landlord Lance Barham, were parties to a "residential tenancy agreement" (the Agreement). A dispute arose about various matters including alleged arrears in rental payments and repairs to the premises the subject of the Agreement, a three-bedroom house on the NSW Central Coast.
2. Throughout May and June 2016, the parties each made applications to the New South Wales Civil and Administrative Tribunal (NCAT) seeking various orders under the Residential Tenancies Act 2010 (NSW) (the Act). Mr Barham sought an order terminating the Agreement and an order that Ms Wall pay rental arrears. Ms Wall, sought a declaration that a termination notice issued by Mr Barham was "retaliatory" and, as a consequence, had no effect and, in addition, orders that Mr Barham pay her compensation, carry out repairs and reimburse her for the cost of undertaking urgent repairs.
3. The parties' respective applications were dealt with together at a hearing on 6 July 2016. In a reserved decision handed down on 28 July 2016, the Tribunal made the following orders: 1. The residential tenancy agreement is terminated in accordance with section 85 of the Residential Tenancies Act 2010 (the Act), as the landlord has served a 90-day notice for termination of a periodic tenancy. 2. The residential tenancy agreement is terminated on 6 July 2016 and possession is to be given to the landlord on the date of termination. 3. The order for possession is suspended until 3 August 2016. 4. The tenant is to pay a daily occupation fee at the rate of $71.42 per day from the day after termination, namely 7July 2016, until the date vacant possession is given to the landlord. 5. Within 60 days of the date for possession of the property specified in these orders, being [xxx], the landlord may request a relisting to determine the amount of any occupation fee owing; 6. The tenant is to pay the landlord the sum of $3,228.16 for rent arrears, owing for the period from 20 May 2016 to 6 July 2016 such sum to be paid immediately; 7. The tenant is to pay the landlord the sum of $532.24 for water usage outstanding for the period from 6 August 2015 to 25 February 2016, such sum to be paid immediately; 8. The Rental Bond Board is directed to pay the whole of the rental bond number [xxx] to the landlord, such sum to be credited against the money orders for rent arrears and water usage; 9. The balance of the Applications RT 16/26326 and RT 16/25938 and RT 16/20793, being related proceedings, are otherwise dismissed.
4. The Tribunal gave written reasons for its decision.
5. Ms Wall now appeals that decision. She relies on a number of grounds, including denial of procedural fairness. For the reasons that follow, we conclude that the grounds relied upon are not established. Therefore, we must dismiss the appeal.

Conduct of the appeal

1. On the morning of the appeal hearing, Ms Wall sent by facsimile a letter to NCAT's Registrar, seeking an adjournment on medical grounds. In that letter, among other things, Ms Wall outlined the difficulties she has experienced in preparing the appeal.
2. Ms Rowland, who represented Mr Barham in the appeal, objected to the requested adjournment, pointing out that, at Ms Wall's request, the hearing had already been adjourned on one occasion, 16 September 2016. In addition, she asserted that since the filing of the appeal, Ms Wall had repeatedly failed to comply with procedural directions made by the Appeal Panel, resulting in Mr Barham being inconvenienced and incurring unnecessary costs.
3. In a statutory declaration dated 1 December 2016, provided in support of her application for an adjournment, Ms Wall invited the Appeal Panel to contact her to discuss that application. At the start of the hearing we spoke to Ms Wall by telephone. After canvassing various options, Ms Wall announced she was well enough to participate in the hearing by telephone and no longer sought an adjournment.
4. The hearing proceeded with both parties attending by telephone.

Is the appeal out of time?

1. A preliminary issue raised by Mr Barham is whether the appeal was made out of time.
2. An internal appeal against a decision made in residential proceedings must be lodged within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later): reg 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules).
3. A copy of the decision under appeal and the Reasons for Decision (the Reasons) was posted to Ms Wall on the day the decision was given, 28 July 2016. By the operation of reg 13(4)(a) of the Rules, Ms Wall is taken to have been given a copy of the decision, four working days after that date, that is, 3 August 2016.
4. The appeal was lodged six days later on 9 August 2016. It follows that the appeal was not lodged out of time.

Grounds of appeal

1. The decision under appeal is an "internally appealable decision": ss 4 and 32(4) of the NCAT Act. A party may appeal an internally appealable decision on any question of law or with the leave of the Appeal Panel on any other ground: s 80(2)(b) of the NCAT Act.
2. Where, as in this case, the decision the subject of the appeal is a decision of the Consumer and Commercial Division of NCAT, cl 12 of Sch 4 to the NCAT Act limits the circumstances in which an Appeal Panel may exercise the power to grant leave to appeal: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
3. Ms Wall relies on the following grounds said to give rise to questions of law: 1. Whether, the Tribunal failed to afford her procedural fairness by: 1. hearing all applications together; 2. dismissing the balance of the applications without hearing from her. 1. Whether, the Tribunal failed to give adequate reasons for its decision to dismiss the claims made by Ms Wall.
4. In addition, Ms Wall seeks leave to appeal on the grounds that: 1. the decision in relation to rental arrears was against the weight of evidence and/or was not fair and equitable; 2. the decision in relation to water usage charges was not fair and equitable; 3. significant new evidence has arisen, namely "receipts from tradespersons".
5. At the hearing, Ms Wall withdrew a number of grounds of appeal listed in the notice of appeal, namely those relating to the alleged retaliatory termination notice, the order for possession (Order 3) and the enforcement of consent orders made in relation to RT 16/07603 (an application relating to premises not the subject of the Agreement).

(a) Hearing the three applications together

1. Ms Wall contends that the Tribunal's decision to hear all applications together gave her inadequate time to prepare material in support of her application and to respond to Mr Barham's material. She contends that, as a consequence, she was denied a reasonable opportunity to present her case. Ms Rowland disagrees and contends that both parties were given a reasonable opportunity to prepare and present their respective applications.

Procedural history

1. To put the submissions made by Ms Wall in context, it is necessary to examine the procedural history of the applications determined by the Tribunal, in the decision under appeal. The following overview is taken largely from the reasons for that decision (Reasons) (at [1]-[12]) and procedural directions made in the course of the proceedings at first instance.
2. Over a four-week period, the parties lodged three separate applications seeking various orders under the Act. On 3 May 2016, Mr Barham lodged application RT 16/20793, seeking an order for termination under s 85 of the Act together with an order for payment of alleged rental arrears (the original application). On 2 June 2016, Mr Barham lodged a second application, RT 16/25938, seeking a termination order under s 87 of the Act on the ground of an alleged breach of the Agreement, namely "constant rental arrears" and orders directing the Rental Bond Board to pay to him the bond held for the premises and the payment of rental arrears (the second application).
3. The following day, Ms Wall lodged application RT 16/26326 (the third application) seeking orders that Mr Barham carry out repairs to the premises, reimburse her for the costs of urgent repairs undertaken and pay her compensation. In addition, Ms Wall sought a declaration that the termination notice was retaliatory and not given in accordance with the Act.
4. In early June 2016, the original application was listed for hearing on 6 July 2016. After receiving the second and third applications, the Tribunal listed all applications for a directions hearing on 22 June 2016. At that hearing, the Tribunal directed that the second and third applications be listed for hearing on 6 July 2016 together with the original application. In addition, the Tribunal directed the parties to file and serve: (i) by 29 June 2016, any material they sought to rely on in relation to the two subsequent applications, and (ii) by close of business 1 July 2016, any reply to the other party's material.
5. Both parties had filed material in relation to the original Application prior to the directions hearing. Ms Wall filed a folder of material on 20 June 2016.
6. After the directions hearing, both parties applied for an adjournment and an extension of time to provide their material. The Registrar refused both applications and advised the parties to raise any concerns at the hearing: Reasons at [12].
7. At the hearing, the Tribunal decided not to grant either party an extension of time to provide material, noting that each had been aware of the issues in dispute since February 2016: Reasons at [32]. The Tribunal gave detailed reasons for not granting an adjournment and an extension of time to provide documents: [33] - [40].

Consideration

1. While expressed as a denial of procedural fairness on the ground of the applications being heard together, the substance of this ground is the Tribunal's alleged failure to give Ms Wall adequate time to prepare for and present her case in relation to the second and third applications.
2. The Tribunal was obliged to afford each party procedural fairness: s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Among other things, the Tribunal was required to take such measures as are "reasonably practicable" to ensure that each party had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5)(c) of the NCAT Act. In addition, the Tribunal was required to have regard to the "guiding principle" - to facilitate the just, quick, and cheap resolution of the real issues in the proceedings - together with the objects of the NCAT Act, which include the resolution of the real issues in proceedings justly, quickly, cheaply and with as little formality as possible: ss 36(1) and 3(d).
3. There is considerable overlap in the subject matter underlying the claims contained in the three applications. As the Tribunal noted at the hearing on 6 July 2016, both parties "were aware that the applications involved essentially the same facts": at [35]. Central to each application was the validity of the termination notice issued by Mr Barham and the rental arrears. By the time of the directions hearing, the application in relation to the termination notice purportedly given to Ms Wall in February 2016 had been superseded by the second application in which Mr Barham sought an order that the Agreement be terminated on the ground of an alleged breach of the Agreement, namely Ms Wall's failure to pay rent in accordance with the terms of the Agreement. The only material difference between the original and the second application was that the former sought orders for termination of the Agreement under s 85 of the Act (no grounds termination), the latter under s 87 of the Act (breach of Agreement on account of rental arrears). The third application was in effect, a counterclaim to Mr Barham's claim for rental arrears and termination of the Agreement. In addition, it raised two new issues - claims for repairs to the premises and compensation
4. The directions made by the Tribunal on 22 June 2016 gave Ms Wall seven days to prepare her material in relation to the second and third applications and two days to reply to any material received from Mr Barham. While the directions made on 22 June imposed a tight timetable, given the narrow scope of the new issues raised in these applications, in our opinion the timetable was not so tight as to effectively deprive Ms Wall the opportunity to obtain and prepare material to support her case.
5. Procedural fairness does not require a tribunal to provide limitless opportunities to prepare and be heard. In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 the High Court emphasised that the conduct of litigation is not merely a matter for the parties to determine. Case management principles are an important practical aspect of concepts of accessibility of justice. Time and cost are not only considerations that affect individual parties. They affect the justice system as a whole.
6. Efficient case management is an essential ingredient of a just and accessible system of litigation. We do not accept the proposition that as a consequence of listing the three applications together and requiring the parties to comply with the timetable made on 22 June 2016, Ms Wall was denied a reasonable opportunity to present her case or suffered a "practical injustice". (See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [14].)
7. This ground of appeal is not established.

(b) Dismissing the balance of the applications without hearing from Ms Wall

1. Ms Wall asserts that at the hearing on 6 July 2016, the Tribunal "refused to hear the remainder of the issues in my application RT 16/26326". As set out above, those issues related to Ms Wall's claims for repairs to the premises and compensation. She asserts that at the end of the hearing, the Tribunal stated that there was insufficient time to deal with those matters and to ask for "a hearing date on another day".
2. Ms Rowland, who was present at the hearing before the Tribunal, disputes that account. She claimed at that hearing Ms Wall simply failed to produce any evidence to support those claims.
3. It falls to Ms Wall to establish as alleged that the Tribunal "refused to hear" the balance of the issues in RT 16/26326. A review of the many directions made since the appeal was lodged, indicate that Ms Wall was squarely on notice of the need to provide either a copy of the sound recording or transcript of the hearing before the Tribunal, to support her allegation that the Tribunal "refused to hear" from her. The statutory declaration, made by Ms Wall on 1 December 2017, reveals that she understood that requirement.
4. Furthermore, we note that the Reasons given by the Tribunal about the "remainder of the issues in application RT 16/26326", which we deal with below, do not tend to support Ms Wall's contention that the Tribunal "refused to hear", the balance of issues in that application.
5. The premise on which this ground of appeal is based is not established.

Ground 2: Adequacy of reasons

1. Ms Wall contends that the Tribunal failed to give adequate reasons for Order 9, which states: The balance of the Applications RT 16/26326 and RT 16/25938 and RT 16/20793, being related proceedings, are otherwise dismissed.
2. We do not understand Ms Wall to contend that the Tribunal failed to give adequate reasons for its decision to dismiss the balance of the first and second applications. Nor do we understand her to contend that the reasons given for the decision in relation to the payment of rental arrears and termination of the Agreement to be inadequate. Rather we understand this ground to relate to the adequacy of reasons given for the balance of the claims made in the third application, RT 16/26326, namely the claims in relation to repairs to the premises and compensation.
3. As Ms Wall correctly points out, the Tribunal was required to give adequate reasons for its decision to dismiss the balance of the applications (see generally, Wainohu v New South Wales [2011] HCA 24, (2011) 243 CLR 181; Beale v GIO (1997) 48 NSWLR 430; Collins v Urban [2014] NSWCATAP 17 (Collins)).
4. Section 63(3) of the NCAT Act stipulates that any statement of reasons must contain: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (See also, Collins at [56]; O'Brien v Twyman [2016] NSWCATAP 125 at [50])
5. While not required to give "lengthy or elaborate reasons", the Tribunal was nonetheless required to articulate the "essential ground or grounds upon which the decision rests": Collins at [54] citing Sydney Supermarkets Pty Limited v Xu [2009] NSWADTAP 28 at [60] and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at [280].

Consideration

1. The Reasons ran to some 114 paragraphs, of which a large number were devoted to an examination of whether the notice of termination given to Ms Wall was a "retaliatory notice" within the meaning of s 115 of the Act and whether the rent payable for the premises was in arrears.
2. The Tribunal gave the following reasons for dismissing, what Ms Wall describes as the "balance of Application RT 16/26326": 102 The tenant's claims for repairs by the landlord are not pressed; there is no evidence to consider supporting such a claim and no submissions made in that regard; … 104 The tenant's claim for compensation is not supported by any evidence tendered or submissions made and accordingly is also dismissed.
3. While brief, these reasons disclose the "essential ground or grounds upon which the decision rests". The reasoning process that led the Tribunal to dismiss each claim is abundantly clear: the absence of evidence and submissions to support each claim and, in relation to the claim for repairs, Ms Wall's decision not to press that claim.
4. Ms Wall challenges the merits of the decision reflected in order 9. We deal with that issue below. However, whether the Tribunal erred in making its decision involves different considerations to whether the reasons given were adequate.
5. The contention that the reasons given were inadequate is rejected. This ground is dismissed.

Ground 3: the decision about rental arrears was against the weight of evidence and /or not fair and equitable

1. Ms Wall contends that the Tribunal failed to consider, or give appropriate weight to her evidence regarding alleged rental arrears. She asserted that the Tribunal did not consider "the substantial body of evidence, in the form of statutory declarations, email correspondence, bank statements…". She contended that the Tribunal "completely disregarded the evidentiary proof contained within my bank statements as to rental payments".
2. Mr Barham disagrees.

Reasons in relation to rental arrears

1. In its Reasons, the Tribunal addressed at some length the issue of claimed rental arrears: Reasons at [48] to [87]: Rent Arrears - Landlord's Calculations 48 The calculations in Annexure F1-F4 were disputed by the tenant. The Annexures set out details of rent received from the tenant for the period from 12 September 2013 up to and including 7 July 2016. The document sets out a rent payment reconciliation against amounts the landlord claimed as rent due and payable throughout the whole period of the tenancy. 49 The document has been carefully prepared. Annexure F1 compares rent received for each of 11 and 11a and is reconciled to 6 July 2016. 50 Although the landlord submitted at hearing that the lease of 11a required approval for sub-letting, which he says was not given, it is clear on his own evidence that the landlord had accepted rent for 11a. The landlord's submission as to sub-letting is rejected. The proceedings in the Tribunal concerning the lease of 11a have already been dealt with and concluded and are not being re-visited in these proceedings. 51 The Annexure F2 shows a total of 147 weeks of rent payable for number 11 for the period from 12 September 2013 to 22 June 2016 in a sum of $73,500. The amount to bring rent up to date as at 6 July 2016, is a further 14 days at $71.42 per day calculated at the rental of $500 per week. That makes a total outstanding for [the subject premises] as at 6 July 2016 of $3,799.88 ($2800 plus 14 days at $71.42 per day or $999.88). 52 The document concludes the balance outstanding by the tenant for rent as at 22 June 2016 is in a sum of $2,800. That amount however over estimates by 1 week the total rental period which is 146 weeks, not 147. The amount in the reconciliation document needs to be reduced by 1 week by $500, to $2300 as at 22 June 2016, leaving a balance on that reconciliation of $3,299.88 as at 6 July 2016. 53 The agent has calculated in a summary in the form of Hearing Notes provided in application RT 16/26326 that rent was only paid up to 20 May 2016 and that rent outstanding as at the hearing date on 6 July 2016 was $3,228.16. The difference between the two calculations is $71.72, or approximately 1 day's rent. The difference apparently arises because the landlord's reconciliation has added an extra day's rent (23 June 2016). 54 Doing the best it can with the two calculations, the Tribunal accepts the agent's calculation of $3,228.16 as the correct figure for rent arrears. 55 The agent has also produced the unpaid water invoice (again in application RT 16/26326) printed 18 March 2016 for the sum of $532.24 which remains outstanding. The landlord also claims this amount. … Ending the Tenancy and the Rent Arrears Calculations' Dispute - Findings 73 As the parties both conceded at hearing that the only sensible outcome was to end the tenancy, the issue became that of possession of the property and what time if any should be allowed for the property to be vacated and possession delivered to the landlord. 74 The Tribunal also has to determine what rent and other arrears are outstanding and whether the tenant was in breach of the lease for number 11. 75 The tenant's evidence in relation to the disputed rent was not convincing. The tenant submitted that some payments previously made in respect of [the granny flat] had not been credited towards payments of rent due for [the subject premises]. 76 The tenant also asserted that some cash payments had been made which the landlord had not credited. 77 The tenant however did not provide any written material to challenge the evidence of the witness, Ms Simona Williamson from Chameleon Integration. That evidence as referred to above covers all rental payments received since the commencement of the tenancy and is supported by the bank statements of the landlord from his rental account and the RAMS Transaction history at annexure F4 of the landlord's submissions. That reconciliation (save for 1 day) agrees with the managing agent's rent ledger summary submitted in RT 16/26326. 78 The evidence must persuade the Tribunal in relation to any disputed facts on the civil test, being the balance of probabilities. The tenant has not produced evidence to contradict the reconciliation prepared by the landlord, or the agent, although the tenant has set out in her own bundle at pages 8, 9 and 10, her summary of deposits for [the subject premises]. 79 In examining the landlord's reconciliation, the landlord's document has taken account of the rental deposits referred to by the tenant at pages 8, 9 and 10 of her bundle. The reconciliation also takes into account the landlord's bank statements, as stated and the evidence from Raine & Horne real estate Trust account as well as the documents relied upon by the tenant in her bundle. 80 The tenant for her part asserts that several payments relied upon by the landlord in relation to "split rent" were incorrectly applied as between [[the subject premises] and [the granny flat]. The tenant denied she was in arrears in respect of [the subject premises]. 81 The tenant gave a detailed account of an attempt by her and the agent at the Tribunal of attempting their own reconciliation of rental payments and receipts. 82 The Tribunal did not fully understand the tenant's submission that rent had not been correctly applied between the two properties given that the prior proceedings concerning the lease of [the granny flat]. had been determined and the rent arrears for that property finally "agreed" after a three-hour negotiation at the Tribunal, with orders being made by consent. 83 If the tenant had sought to account for errors in the rent receipt for payments made to [the granny flat] instead of [the subject premises], that should have been resolved at that time. 84 The tenant then concedes that she had made an error by making rental payments for [the subject premises] "by mistake into another real estate's account". As at the hearing, the evidence of those payments and the amounts was not produced by the tenant who said those payments had not yet been recovered. The tenant apologised for the mistake. 85 Doing the best it can in terms of the dispute as to the calculations, the Tribunal accepts the evidence set out in the reconciliation rent payment statement produced by the landlord's witness and the agent's calculation. 86 In this Tribunal's view, the statement by the landlord's agent and the witness, Simona Williamson, is a more reliable and accurate account record than that contributed by the tenant. The Tribunal finds accordingly that the tenant is in breach of the lease for [the subject premises] for not paying rent. 87 On that basis, the Tribunal is satisfied on the balance of probabilities that the amount outstanding in respect of rent payable by the tenant to 6 July 2016 is in the sum of $3,228.16 as set out at paragraphs 53 and 54 above.
2. As is apparent from this extract of the Reasons, the dispute between the parties about rental arrears centred on whether rental payments received from Ms Wall had been properly credited. Since late 2013, Ms Wall had leased two properties from Mr Barham: the premises the subject of the Agreement (the subject premises) and a "granny flat" behind those premises. The parties entered into separate residential tenancy agreements for each property. At some point in time, a dispute arose between the parties about the rent paid by Ms Wall for the granny flat. In April 2016, following an application made by Mr Barham to NCAT, the Tribunal entered consent orders which required Ms Wall to pay rental arrears of $4,456. The Tribunal noted that the "proceedings in relation to [the granny flat] dealt with all issues outstanding in respect of that residential property and there were no subsequent proceedings to set aside those orders or assert that the rent calculation was incorrect": [22].
3. In the proceedings before the Tribunal, Ms Wall asserted that rental payments she gave to the managing agent had not been "properly receipted or distributed" between the two premises: Reasons at [22].
4. In support of his claim for rental arrears, Mr Barham tendered a spread-sheet prepared by bookkeeper, Simona Williamson. The spread sheet set out the rent received from Ms Wall for the period, 12 September 2015 to 7 July 2016, the rent payable for that period and the difference between the two amounts. The Tribunal identified a number of minor errors in Ms Williamson's calculation but otherwise accepted her estimate of the rent owing on the premises: see [51] - [54].
5. The Tribunal discussed Ms Wall's evidence in some detail but found it to be "unconvincing": see [73] to [86].

Consideration

1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel considered at [77] the meaning of the phrase "against the weight of evidence" in cl 12(b) of Sch 4 to the NCAT Act: The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) 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 (citations omitted).
2. As the extract from the Reasons set out above reveals, the Tribunal had before it competing evidence about the alleged rental arrears. The spread sheet tendered on behalf of Mr Barham was supported by the managing agent's business records, namely bank and trust account statements. In contrast, Ms Wall did not provide any written material to challenge the evidence adduced by Mr Barham. In those circumstances it is unremarkable that the Tribunal preferred Mr Barham's evidence over that provided by Ms Wall. The finding made by the Tribunal about the rental arrears was open to it on the evidence. We are unable to accept the proposition that the decision in relation to rental arrears was against the weight of evidence.
3. With respect to the contention that the decision was not fair and equitable, we note that the available material does not indicate that in determining Mr Barham's application for payment of rental arrears that the Tribunal went about its fact-finding role in an unorthodox manner or one that was likely to produce an unfair result. Nor, apart from an attack on the merits of the decision, was it suggested that it was not fair and equitable for some other reason.
4. This ground of appeal is not established.

Ground 4: That the decision in relation to water charges was not fair and equitable

1. Ms Wall asserts that the decision made by the Tribunal in relation to the water charges was not fair and equitable. In addition, she contends the decision was so unreasonable or irrational that no reasonable person could have reach such a conclusion: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; see also Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.If the latter is established, it would constitute an error of law.
2. She asserts that the Tribunal had before it no evidence to support the finding that she was liable to pay the sum of $532.24 for water usage.
3. This is incorrect. Before the Tribunal was the account received by Mr Barham for water usage for the subject premises to 25 February 2016: see [55]. Ms Wall does not dispute that account. Rather she disputes whether the premises contained the water efficiency measures prescribed by s 39 of the Act and cl 11 of the Residential Tenancies Regulation 2010 (NSW). The effect of these provisions is that a tenant can only be required to pay water usage charges if the prescribed water efficiency measures are in place.
4. Apart from asserting that the "only evidence" provided to the Tribunal to support the proposition that the premises complied with the prescribed water efficiency measures was photographic evidence tendered by Mr Barham, Ms Wall has not explained how this part of the decision was not fair and equitable or as she contends, so unreasonable or irrational that no reasonable person could have reach such a conclusion.
5. This ground is not established.

Ground 5: That significant new evidence has arisen, namely "receipts from tradespersons"

1. Ms Wall seeks leave to appeal on the ground that significant new evidence has arisen, namely receipts provided by tradespeople for repairs undertaken to the premises. That evidence was not produced in the appeal.
2. To amount to "significant new evidence" within the meaning of cl 12(1)(c) of Sch 4 to the NCAT Act, Ms Wall must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard. [emphasis added] (See Owners SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 at [109].)
3. Ms Wall contends that at the hearing the Tribunal refused to admit the receipts provided by tradespeople, on which she now seeks to rely. Her claim is unsupported and disputed by Ms Rowland.
4. This ground is misconceived. If, as claimed by Mr Wall, the Tribunal refused to admit the receipts, it could not be said that that evidence was not reasonably available at the time the proceedings below were heard. While the Tribunal make have erred in refusing to admit those documents, without some evidence to support the proposition that this occurred, the issue is moot.

Should leave to appeal be granted?

1. As we are not satisfied that the decision under appeal is not fair and equitable, or against the weight of evidence or that significant new evidence has arisen, it is not necessary to consider whether Ms Wall may have suffered a substantial miscarriage of justice.

Orders

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

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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: 22 March 2017