Wolfgang Web and Gregory Down (the appellants) were tenants pursuant to a residential tenancy agreement in respect to a property in Marrickville. Ms Rodriquez (the respondent) was the landlord.
The respondent had commenced residential proceedings RT 15/35862 which were filed in the Tribunal on 27 May 2015. In that application the respondent claimed damages against the appellants in respect of breaches of the residential tenancy agreement. Those proceedings were heard by the Tribunal on 28 July 2015 and on 26 August 2015 provided reasons for decision (Decision) and made the following orders in favour of the respondent:
1. Tenants to pay landlord $6,384.75 on or before 18 September 2015.
2. Rental Bond Services pay the whole of rental bond No. A635281-8 to the landlord, and that this amount be credited against the money order.
The Tribunal's reasons for decision are Rodriguez Martin v Web & Down [2015] NSWCATCD 103.
By notice of appeal dated 2 September 2015 and filed 4 September 2015 the appellants appealed the decision. The appeal was filed in time, namely within fourteen days from the date the decision was received. As recorded in the notice of appeal at item 5B, the appellants challenged the following findings:
1. That they should be liable for the cost of replacing and installing the oven;
2. The finding at [33] of the Decision that the appellants had breached the residential tenancy agreement by failing to leave the premises in the same condition at the end of the tenancy as existed at the beginning of the tenancy, contrary to the obligation under the residential tenancy agreement and s 51(3)(b) of the Residential Tenancies Act, 2010 (RT Act);
3. The finding at [35] of the Decision that the respondent had not provided to the appellants consent to paint the premises;
4. The finding at [37] of the Decision that work done by the appellants in the nature of painting, replacing the oven and celling fans and installing lattice did not improve the property;
5. In respect of the finding at [41] of the Decision the appellants should have been provided a right to dispute the quotations for work, which they claimed were excessive and that the respondent is not entitled to claim the amounts sought because she "will pocket this money and not repaint anyway as it was recently painted by us to their satisfaction";
6. The finding at [39] of the Decision that, due to the current condition of the residential premises, they could not relet.
The appellants contend that the "maximum" to which the respondent should be entitled is $2,220.00 being the amount of the bond.
Insofar as these grounds raise questions other than a question of law, the appellants seek leave to appeal the Decision.
In seeking leave the appellants say that the Decision was not fair and equitable because the Tribunal failed to give sufficient consideration to the lack of evidence to support the respondent's claims that the premises was un-rentable, and the Tribunal failed to have sufficient regard to the state of the house at the beginning of the tenancy and to the fact that it had been freshly painted before the appellants moved in.
In relation to the Decision being against the weight of evidence, the appellants say they provided photographs documenting the "rundown state of the premises upon first occupying" which they say shows the house "was not freshly painted and in dire need of it".
Attached to the notice of appeal were written submissions and documents which were relied upon in support of the appeal.
The appellants also provided a separate bundle of material in support of the appeal under cover of a letter from the Marrickville Legal Centre dated 20 October 2015. This material included an amended notice of appeal which identified three further grounds of appeal, namely:
1. An error of law in that the Member did not apply the correct law with regards to breach of the residential tenancy agreement and the statute of limitations bringing an action;
2. The Member did not apply the correct principle to the question of consent by the respondent and that the Member should have considered the doctrine of wavier as stated in St George Community Housing v El-Nachar (Social Housing) [2013] NSWCTTT 184 (14 May 2013); and
3. The Tribunal failed to provide reasons as to why priority has been given to the respondent's oral evidence, such oral evidence being "the essential ground on which the decision rests".
[2]
Reply to appeal
The respondent filed a bundle of documents including a reply to appeal and various evidence on 22 September 2015. The content of the reply to appeal can be summarised as follows:
1. In relation to the compensation in respect of the oven, the Tribunal considered the appellants' arguments and reduced the amount of compensation payable as found at [42] of the Decision;
2. The Tribunal was correct in its conclusion and there was evidence to enable the Tribunal to conclude what was the condition of the property both at the commencement of the tenancy and at its conclusion;
3. The appellants did not have consent to paint the premises and the evidence provided by the respondent demonstrates the paint work carried out was of a poor standard;
4. In relation to the damaged wall and fly screens, the respondent again says there was evidence before the Tribunal to support the conclusions made;
5. In relation to the works carried out to the property, that is the installation of a new gas outlet, the construction of garden beds and the installing of "a box with the number on the fence of the property" and the construction of the lattice work and plants, that these were unauthorised works; and
6. Otherwise the respondent contends that the orders made in her favour were justified on the evidence.
[3]
Submissions
The parties filed written submissions and made oral submissions at the hearing.
It is convenient to set out these submissions by reference to the questions of law raised and the particular item which made up the sum of $6384.75 being the amount the Tribunal determined the appellants were to pay the respondent. In awarding this sum the Tribunal found the appellants liable to pay the following amounts:
1. Replacement of ceiling fans - $340.00;
2. Compensation for oven - $1,000.00;
3. Cost of installation of oven - $720.00;
4. Repairs - $1,112.75;
5. Repainting - $3,212.00; and
6. Total - $3,684.75.
[4]
Appellants' submissions
In relation to questions of law, these can be summarised as follows.
Firstly, the appellants say that the claim in respect to alterations, being the interior painting work of the property was out of time because this work was undertaken approximately two months after 22 May 2012, being the date the residential tenancy agreement commenced. The appellants referred to cl 22(9) of the Residential Tenancies Regulation 2010 (RT Regulation) and say that the claim should have been brought within three months and is therefore well out of time. In this regard the appellants referred to the Decision of the Tribunal in Southern Cross Community Housing Ltd v Macklan & Anor [2014] NSWCATCD 125 where the Tribunal found at [20] that a limitation period runs from the date a cause of action accrues and that s 190 and cl 22(9) provide for a time limit to bring such claims.
The second question of law raised by the appellants is that the Member, in determining alterations were made to the residential premises without consent, failed to have regard to the issue of "whether or not the landlord had waived their right to rely on the breach by reason of its failure to take action until late 2012, despite a number of inspections occurring". The appellants referred to the decision of the Consumer, Trader and Tenancy Tribunal in St George Community housing v El-Nachar (Supra), particularly at [17] where the Tribunal made reference to the decision of the High Court in Commonwealth v Verwayen [1990] 170 CLR 394. The appellants say that the Tribunal was in error in failing to determine the respondent had waived her rights to claim damages for breach arising from the unauthorised works.
Further, it would appear the appellants submit that the respondent in any event had agreed to the painting work being undertaken as she had in fact credited an amount in favour of the appellants in the rent ledger for "paint and other materials": see par 47 of the appellants' written submissions.
The third error of law propounded by the appellants is that the Tribunal failed to provide adequate reasons.
This ground relates to the Tribunal's finding that the respondent had not consented to the making of alterations and painting of the property.
The appellants refer pars [7], [18], [20], [33] and [34] of the Decision.
The appellants then say that the finding at [34] that there was no written consent and no evidence that any consent formed part of the terms of the agreement was an error of law because there was evidence of a "partly oral term" being evidence provided by the appellants. Accordingly, the appellants say that the decision simply dismissed the oral evidence provided by the appellants without giving reasons as to why this evidence should be rejected. Further, insofar as the issue of consent did not raise a question of law, the appellants submit that their oral evidence and other material provided to the Tribunal was sufficient to justify a finding that consent was given by the respondent to the appellants to paint and improve the residential premise: see appellants' written submissions par 77. This submission is supported by a narration in relation to the events which occurred, including various documentary material which had been provided to the Tribunal at the original hearing: see written submissions par 78 and following.
In relation to the particular awards made in favour of the respondent against the appellants the appellants make the following submissions:
[5]
a) Replacement of celling fans
In oral submissions the appellants confirm that there was no challenge to the award of $340.00 in connection with the fan.
[6]
b) Compensation for oven
In relation to the award of $1,000.00 for the oven, there was no challenge to this amount however the appellants challenged the cost of $720.00 for installation.
[7]
c) Cost of installation of oven
In seeking to challenge the installation costs of $720.00, the appellants sought to provide an invoice/quotation to prove the costs for installation were less than $720.00. The Appeal Panel did not accept this document into evidence as the Appeal Panel was not satisfied the evidence was originally provided to the Tribunal and it was not evidence of a type which was not reasonably available at the time of the original hearing.
[8]
d) Repairs
In relation to the award for repairs of $1,112.75 the appellants referred to photographs in the respondent's folder of documents and submitted that the works carried out by them improved the property and made it more valuable. However, no evidence of this increased value was identified by the appellants.
Further, the appellants submitted that the work and price for the repairs was excessive. However again no evidence was identified in the material before the Appeal Panel in support of this submission.
In relation to the painting work undertaken by the appellants, to which the dispute concerning consent related, the appellants identified various invoices from Bunnings Warehouse relating to this item and other works which the appellants said they have undertaken at the residential premises. Details of the work and cost of each item of work was set out in tab 12 of the appellants' bundle of documents.
[9]
e) Repainting
In relation to the award in favour of the respondent for repainting the residential premises in the sum of $3,212.00 the appellants said that this quotation included various repainting of the exterior of the premises which should not, in any event, have been allowed.
It would seem from the oral submissions made to the Appeal Panel that submissions concerning the challenge to the quotation was not made at the original hearing because the appellants did not realise these items were included in the quotation until they subsequently studied the quotation.
In relation to the internal repainting of the premises, the appellants said that two bedrooms were not painted by the appellants and therefore the respondent should not be allowed the cost of repainting those bedrooms which were otherwise not damaged by the appellants. In this regard the appellants identified various photographs in the bundle of documents provide to the Appeal Panel in support of this submissions as well as the ingoing inspection report.
[10]
Respondent's submissions
The respondent made submissions in relation to those matters said to raise question of law and the individual items for which damages were award.
In relation to the questions of law the respondent made the following submissions:
1. The limitation period specified in s 190 do not apply because, at the time of the breaches the appellants were still residing in the premises and the limitation periods only apply "when the tenant vacates the property". Consequently, the appellants could have rectified any damage done to the premises and brought the premises into compliance with their original conditions at any time up to the time the premises were vacated;
2. The cases referred to by the appellants had no relevance as these were cases where "applications were lodged years after the tenants had vacated the property";
3. The appellants were always on notice and "in constant communication" with the respondent regarding their unauthorised work;
4. The doctrine of wavier has no application in the present case as the appellants remain obliged to "make good upon vacating the premises"; and
5. In any event, the appellants inappropriately used "the premises to conduct their massage business, so they decided to connect gas in the bedroom, ruin the paint, damage the fly screens, remove the oven/stove etc."
In any event, no submission was made on the question of waiver at the original hearing.
Further, the only matter to which the principle of waiver could apply was the painting and any consent in connecting with the painting was on condition that the appellants would not damage the property.
The respondent also says there was no failure to provide proper reasons. While the appellants state they obtained consent from the agent to paint the premises this was not a term of the written residential tenancy agreement, a requirement under the RT Act. In any event, the ingoing condition report and outgoing condition report clearly demonstrated that the premises were not returned to the respondent in the same condition.
In relation to the oral evidence of the appellants, the Tribunal gave some weight to this evidence and the fact that all of the appellants' evidence was not accepted does not demonstrate error.
In relation to the particular items that remain in dispute in the appeal, namely the cost of installation of the oven, repairs and repainting the respondent made the following submissions:
1. There was a "quotation" to carry out this work for $720.00 being a email message saying "I can do it tomorrow for $720.00" found in the respondent's bundle;
2. In relation to the repairs, there was a quotation for $1,112.75 from Hire A Hubby Canterbury to refit the flyscreens and undertake other work including repairs to the wall, remove the lattice and replace flyscreens, again part of the respondent's bundle of documents. The respondent also said photographs corroborate the damage requiring rectification.
In relation to the claim for painting of $3,212.00, the respondent relied on the quotation for this amount from Impressive Finishes. In relation to the damages to walls, the respondent said that this damage was not fair wear and tear and that there were other quotations which she obtained which were more expensive.
During the oral submissions, item 5 of the quotation was also discussed being exterior painting of the premises, particular the veranda celling and fascia in item 5.
[11]
Consideration
The present appeal relates to a decision regarding residential proceedings being a decision made by the Consumer and Commercial Division of the Tribunal.
Consequently, no leave to appeal is required on a question of law and otherwise leave is required. To the extent that leave is required, cl 12 of Sch 4 of the Civil and Administrative Act 2013 (NCAT ACT) requires the appellants to show they may have suffered a substantial miscarriage of justice. To do so they must show that the Decision was not fair and equitable, against the weight of evidence or that there is significant new evidence that was not reasonably available at the time of the hearing. The principles applicable to the grant of leave were set out by the Appeal Panel in Colins v Urban [2014] NSWCATAP 17.
Also, because the proceedings were residential proceedings within the meaning of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules), rl 25(4)(b) requires the appeal to be lodged within fourteen days of the date of the decision.
Accordingly, the appeal was lodged in time, the only question of leave being the grant of leave in respect of questions other than questions of law.
[12]
Questions of law
In relation to the questions of law raised in this appeal, the first question is whether or not the original proceedings were out of time by reason of s 190 of the RT Act and cl 22(9) of the RT Regulation.
As the decision makes clear at [3] the respondent's application was that she was entitled to be paid the rental bond. This is an application that could only be brought at the conclusion of the residential tenancy agreement. The Tribunal found that the residential tenancy agreement terminated on 25 April 2015 (Decision [6]) and that the application was filed on 27 May 2015 (Decision [1]). Accordingly, the application in connection with the bond was within time. This is because an order in connection with the payment of the bond is made pursuant to s 175(1) and the time for bringing such an application "within six months after the bond is paid": see cl 22(8). Because the bond had not been paid at the time of the application, this time limit did not operate to prevent the claim being made.
The respondent, in her application filed 27 May 2015 also sought orders in respect to damage caused to the premises: see Decision [1] - [2]. In the present case, the award for damages that was made in respect of each of the items was based on the appellants' breach of their obligation under s 55(3)(b) of the RT Act to leave the premises in the same condition at the end of the tenancy as existed at the beginning of the tenancy, fair wear and tear excepted: see Decision [32] and following.
In these circumstances, it seems to us that the awards made can be properly characterised as a breach of this obligation and are therefore within time, namely within three months from the date of the breach of the residential tenancy agreement: see cl 22(9) of the RT Regulation.
While there may have been an additional breach by the appellants in painting the premises originally contrary to any permission that may have been granted under the residential tenancy agreement, no damages were sought in connection with that breach and therefore the issue of such a claim being out of time does not arise.
In any event, it was open to the Tribunal under s 41 of the NCAT Act to extend time to bring the claim. While it was not necessary for the Tribunal to do so, if such an issue had been raised at the hearing it could have been dealt with and time extended.
No sound recording of the original hearing was provided to the Appeal Panel despite directions having been made to allow the appellants to file all material on which they wished to rely by 13 October 2015. In the absence of any sound recording, it is not possible to determine what evidence was given at the hearing and whether or not the Tribunal failed to deal with such an issue.
Be that as it may, having regard to the fact that the bond claim could only be made after the residential tenancy agreement had come to an end and because the claim in respect of the rental bond necessarily involved a determination of the issue of damage to the painting of the premises, in our view it would have been appropriate for the Tribunal to extend time if that issue had arisen in the proceedings at first instance.
Insofar as it is now necessary to extend time to bring such a claim for damages, we would make such an order.
Accordingly, this ground of appeal fails.
The second ground of appeal said to be an error of law appears to be that the appellants should have been provided with a "right to dispute the quotations for work, for which they claimed were excessive". This submission appears to be that the appellants were denied a procedural fairness.
The problem with this submission is that the appellants did not suggest that they did not have an opportunity to provide relevant documents and other evidence prior to the original hearing nor have they placed in evidence before the Appeal Panel what occurred at the hearing on 28 August 2015. However, it is clear from the Decision [4] that:
Both parties have filed and served documents in support, in accordance with the Tribunal's previous directions.
Accordingly, we are not satisfied there was a failure prior to and at the original hearing to provide the appellants with an opportunity to produce evidence if they wished to contradict any of the claims being made by the respondent or put forward their own claims in relation to what occurred during the period of the residential tenancy agreement.
Accordingly, the ground of appeal that they were denied a reasonable opportunity to be heard is not made out on the facts before the Appeal Panel.
In relation to other grounds of appeal, these all appear to raise questions other than questions of law for which leave is required. It is convenient to deal with these claims as they relate to each of the items for which the Tribunal made an award of damages.
[13]
a) Replacement of ceiling fans - $340.00
There was no dispute by the appellants that they were liable for the amount of $340.00 for the costs of replacing the ceiling fans.
[14]
b) Compensation for oven - $1,000.00
Again, there was no dispute by the appellants that they were obliged to pay the respondent the sum of $1,000.00 in respect of the purchase of a replacement oven.
[15]
c) Costs of installation of oven - $720.00
The only written evidence of which the Appeal Panel is aware that was provided at the original hearing was the email message stating that "I can do it tomorrow for $720.00". The message appears to have come from "plumbgician@hotmail.com".
While the appellants sought to tender fresh evidence on this issue, the Appeal Panel rejected the tender for the reasons stated above.
No sound recording was provided of oral evidence given in relation to this aspect which may have provided more detail as to the work to be performed to install the new oven and the cost to do so. However, having conceded the cost for the replacement oven and necessarily that it would be required to be installed by an electrician, there is no reason for the Appeal Panel to reject a claim for this work: see e.g. Kang v Khan [2014] NSWCATAP 48 at [21]. In support of this conclusion there seemed to be no dispute in the appeal that the work had been done by an electrician and as the rules of evidence do not apply, there was no basis for the Tribunal to reject this evidence.
It is clear from [42] of the Decision that the Tribunal did in fact accept the installation costs of $720.00 and, while this evidence may have been slight, there is no basis to conclude there was no evidence of the reasonable cost for installation of the oven. In the absence of evidence of a lessor cost for the same installation work no error is shown and this ground of appeal does not succeed.
[16]
d) Repairs
The amount allowed for the cost of repairs under this item claimed by the Tribunal was $1,112.75: Decision [41]. This work was detailed on the quotation dated 11 June 2015 from Hire a Hubby Canterbury. The work included repairing and refitting flyscreens, repairing and undercoating a hole in the wall where mirrors are located, supplying and installing a new toilet roll holder, cleaning paint off the laundry tub and removing the lattice and crawling vine that had been installed on the lattice. In addition, the quotation included removal of all rubbish caused from works carried out.
In relation to the flyscreen issue, the Tribunal found that the appellants admitted there was a hole in the flyscreen in the dining room window. But denied any problems in connection with the fly screens in bedroom 2 or that the flyscreens required more than "minor fixing": see Decision [27].
In relation to the lattice work the appellants made oral submissions to the effect that installation made the property "more valuable".
Finally, the appellants said that the scope of work and the price was excessive. However in relation to the question of increase in value with respect to the lattice work and in relation to the repair work being excessive, no evidence was provided by the appellants to support this submission.
Having regard to the award made, it is clear that the Tribunal rejected the appellants' contentions concerning the flyscreens, that is the extent of damage caused by the appellants during the course of the residential tenancy agreement. It is also clear that the Tribunal found the lattice work did not improve the property and that various repairs to the property were necessary to rectify the appellants breach of the obligation under s 55(3)(b) of the RT Act: see Decision at [37] and [41].
In the absence of any alternative evidence as to the reasonable cost of effecting the repairs as found by the Tribunal, there is no basis for the Appeal Panel to conclude that the Tribunal was in error in making an award in the sum of $1,112.75.
[17]
e) Painting
The final issue to deal with is the award of $3,212.00 for painting.
The Tribunal found there was no written consent to carry out any alterations or renovations to the premises as required by s 61(1) of the RT Act: Decision [34].
The appellants contended there was an oral agreement prior to entry into the residential tenancy agreement that permitted the painting work which was undertaken. There is no dispute that the appellants in fact painted the premises.
The appellants say the Tribunal failed to deal with the fact there was an oral agreement permitting painting, the existence of which is corroborated by the respondent landlord reimbursing the appellants various monies spent on purchasing paint. In this regard the appellants have attached invoices totalling $431.74 and the rent ledger which shows a credit made to the tenant ledger in the sum of $431.74 on 30 November 2012.
Therefore, the appellants say that the painting work was approved and that the Tribunal was in error in concluding the work was unauthorised.
The problem with this submission is that even if it is accepted there was an oral agreement, and even if the work was permitted to be undertaken by the appellants pursuant to that oral agreement, the Tribunal found that the work actually undertaken "did not improve the property", contrary to the appellants' submissions to the Tribunal. Further, the Tribunal found that the respondent will "incur expense in bringing the premises back to the condition in which they existed at the beginning of the tenancy": Decision [37].
It should also be noted that the painting work was said to have been done in 2012 and that the tenancy continued until it came to an end on 25 April 2015. Therefore, even if it is accepted that painting work had been undertaken by the appellants with the consent of the respondent, it was still necessary for the Tribunal to access the state of the premises at the end of the tenancy and determine whether or not the obligations under s 56 of the RT Act had been met. The Tribunal did this and determined this question of fact adversely to the appellants.
A review of the photographic material provided to the Appeal Panel demonstrates that various walls and internal surfaces of the premises required repainting to rectify defects that could not be regarded as fair wear and tear. These include photographs of damage shown on photos 2, 3, 4 and 5 of the respondent's bundle to various internal surfaces. The respondent had provided evidence in the form of a quotation from Impressive Finishes dated 6 June 2015 in the sum of $3,212.00 inclusive of GST.
In this quotation included an amount of $2,400.00 plus GST for interior painting which was to fill gaps and cracks, repaint interior ceiling and walls and repaint interior doors and trims. Insofar as the Tribunal allowed this amount in connection with repainting the premises, no error is shown in the award which has been made.
However, the Appeal Panel notes that the quotation also includes painting to the exterior of the building, in particular, the following items:
5. The repainting of front veranda ceiling and fascia in white glow sheen.
6. The repainting of front window and door in white gloss.
In relation to item 5, there is no evidence before the Appeal Panel nor where there any findings by the Tribunal at first instance or other documents recorded in the material tendered on appeal that would suggest that the appellants had caused any damage to the veranda ceiling or fascia being the external surfaces of the building.
There is also no evidence to which our attention as drawn showing that there was damage to the external surfaces of the front door and surrounding door trim.
It follows that insofar as the Tribunal made an award for damages for repainting the outside surfaces of the building, this award was not justified on the findings made by the Tribunal and accordingly the appeal in respect of this item of the award should be allowed. Further, none of the evidence which has been provided to the Appeal Panel by either party to which we have been taken would suggest that the appellants had damaged or otherwise caused the need for painting of the external surfaces or had otherwise failed to comply with their obligations under s 56 of the RT Act.
This award, in the absence of evidence and appropriate findings, constitutes an error of law.
Accordingly, it is appropriate that the amount of $550.00 plus GST of $52.00, a total of $572.00 be deducted from the amount of the award made and the appeal be allowed to this extent.
[18]
Orders
The Appeal Panel makes the following orders:
1. The appeal is allowed in part.
2. Order 1 made 26 August 2015 is varied as follows:
1. The appellant's Wolfgang Jaimez Web and Gregory D'Elbert Down are to pay the respondent, Racquel Rodriguez Martin the sum of $5,812.75 within fourteen days from the date of this decision.
1. Save as provided above, the appeal is dismissed and the stay previously made in respect of the orders in application RT 15/35862 is lifted.
[19]
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
[20]
Amendments
28 July 2016 - .
02 August 2016 - Corrected typographical errors
06 September 2016 - Order 2 and names of Appellant's corrected.
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: 06 September 2016