Wang v D F Johnson Pty Ltd

Grounds of appeal

1. The Notice of Appeal lodged on 29 August 2018 said that it challenged all orders made in SCS 17/29022.
2. The grounds for that challenge were, in summary, as follows: 1. The respondent lied at the primary hearing about an earlier date of termination of the managing agency agreement - at the appeal hearing it was said that meant the evidence from the managing agent should not be trusted. 2. The respondent left the property key after a last check so owed 3 months' rent. 3. The respondent did not protect or look after the property and didn't give the appellant reports, including on the tenant cutting down the tree. 4. The respondent did not tell the appellant how much was charged against the bond before returning the bond.
3. The orders that the appellant claimed that the primary member ought to have made were similar to some of the orders sought in the originating application.
4. The Notice of Appeal did not seek an extension of time or a grant of leave to challenge findings of fact by the primary member.

Applicable legal principles

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) states: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
2. Clause 12 of Schedule 4 to CATA states: 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. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
4. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel stated at [74]-[75] and [78]-[79]: 74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 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 - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55].
5. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37] -[39]: 37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant 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.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'
6. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10] : 10. An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.
7. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179. These categories are not exhaustive of errors of law.

Extension of time and no error of law

1. Having regard to the approach taken in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 in a situation where there was no legal representation, the Panel has considered the Notice of Appeal as if it contained an application for extension of time to lodge the appeal (if extension of time was required for that purpose) and for leave to challenge findings of fact of the primary member.
2. There was no clear evidence when the appellant received the decision of the primary member. The respondent said that it received it on about 1 August 2018. On that basis, if the appellant received it at the same date the appeal would have been lodged within time. In any event, the respondent did not oppose any extension of time that was required. We accordingly would grant any required extension of time (if any was required) for lodgement of the Notice of Appeal.
3. The Notice of Appeal in our view discloses no error of law.

No basis for grant of leave to appeal on questions of fact

1. The notice of appeal was not helpful in identifying matters to support a finding that the requirements for leave to appeal, set out above, were satisfied.
2. On the evidence before the primary member, he came to the only conclusions that he could, which we have recorded above. 1. There was simply no evidence about the tree removal from the appellant. The positive evidence from a statutory declaration by a former employee of the respondent was that the appellant accompanied him on inspections of the tenanted property and did not complain about the tree removal. 2. There were in evidence periodic inspection reports of satisfactory tenancy. 3. There was in evidence communication to the appellant by email, to the email address that the appellant used to send to the respondent, of the final reconciliation statement including cost of items claimed against the bond. 4. There was no evidence of changes to the gardens or of any loss arising therefrom apart from the invoices claimed against the bond and credited from its proceeds. 5. There was no evidence against the conclusion that the tenant left on 7 November 2017, the agent then arranged clean-up and arranged for the appellant to collect the keys at end of clean-up, on 30 November 2017. 6. There was no evidence of a total failure of consideration by non-performance of managing agency services such as to justify any claim for a refund of managing agency fees.
3. Accordingly, none of the grounds for a grant of leave to appeal has been made out.

Orders

1. The orders we accordingly make are as follows: 1. Without objection from the respondent, extend the time (if extension is required) for lodgement of notice of appeal to close of business on 29 August 2018. 2. Leave to Appeal is refused. 3. The Appeal is 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: 20 November 2018