Wootten v Simmons

NCAT Appeal Panel|2021-11-10

Background to appeal

The appellant, who was the applicant in the primary proceedings, was the landlord and the respondent was the tenant of residential premises in Hamlyn Terrace, a suburb of Wyong on the NSW Central Coast.
The parties entered into a written residential tenancy agreement dated 9 April 2019 for a 13-week fixed term commencing 9 April 2019, at a rent of $500pw and with lodgement of a bond of $2,000. The tenant was required to pay separately for water usage under the terms of the tenancy agreement.
The landlord served a notice of termination under section 86 of the Residential Tenancies Act 2010 (NSW) (the RTA) advising of the sale of the premises and the tenancy agreement was terminated when the landlord took possession of the premises on 28 April 2021. Completion of sale of the premises occurred on 7 May 2021, which the landlord said had been delayed by the tenant's belated exit.
In subsequent proceedings filed on 2 June 2021, the landlord claimed, under s 175 of the RTA an amount exceeding the bond, but without claiming compensation or a money order under RTA s 187(1)(c) or (d) for the balance. The total amount claimed was $2,472.68 for 10 items, plus a further amount for 14 damaged tiles and $104 for two Tribunal filing fees.
On 26 August 2021 the Tribunal ordered that the landlord be paid $650.27 from the bond and the tenant be paid the balance. The landlord's award for damages comprised the following: 1. $0.27 for unpaid rent ($142.59 had been claimed); 2. Nil for water usage charges ($447.09 had been claimed); 3. $400 for a damaged door ($750 had been claimed); 4. $185 being the full amount claimed for mowing and yard clean up; 5. $35 for replacing three light globes ($50 had been claimed); 6. $30 that had been uncontested for a bedroom door knob; 7. Nil for carpet clean ($540 had been claimed); 8. Nil for pet/flea treatment as the tenant kept a dog ($249 claimed); 9. Nil for repairs to a damaged fly screen ($50 had been claimed); and 10. Nil for the cost of replacement of a latch to a kitchen fly screen door ($29 had been claimed). 11. There was no amount awarded for the damaged tiles and the Tribunal found no basis in special circumstances for the cost of two filing fees totalling $104.

The Tribunal's reasons

The written reasons published to the parties said that additional oral reasons were provided at the hearing but these were not available through the absence of recording of the proceedings.
The written reasons provided to the parties on 26 August 2021 addressed each of the claims in respect of the items in dispute,: 1. Unpaid rent $142.59: The Tribunal Member accepted the landlord's ledger in the absence of contrary evidence. It was relied on to show rent and occupation fees paid by the tenant to 27 April 2021 with $71.16 in credit, leaving $0.27 owing. The Tribunal ignored the landlord's evidence that the tenant owed two days' rent because keys were returned late. 2. Unpaid water usage $447.09: The Tribunal Member cited the RTA s 39 and reg 10 of the Residential Tenancies Regulation 2019 (NSW) to require separate metering (of which there was evidence) and required water efficiency measures. The Tribunal Member found that there was no evidence of water efficiency measures having been installed at the premises and concluded that the tenant had no obligation to pay for unpaid water usage. 3. Replacement of damaged door to main bedroom $750: it was not contested that one of two double doors was damaged and required replacing. The Tribunal Member stated "Given the landlord's obligation to mitigate losses, I do not accept that replacing one door should cost $750, even if painting of it and the other double door would be required. Doing the best I can to assess reasonable compensation I allow $400 for this breach by the tenant". 4. Replacement of three outside light globes $50: it was accepted that the tenant should have changed the globes; the Tribunal Member stated "The landlord claims his own labour (he is an electrician) including labour for testing smoke alarms. I accept the landlord's evidence that the globes cost about $21. Allowing a little for the landlord's time, I allow $35 for this part of the claim".

Grounds of appeal

The landlord filed a notice of appeal within 14 days as set out in Regulation 24(4)(b) on 2 September 2021. The landlord's application for a stay pending the outcome of his appeal was refused on 29 September 2021.
The landlord challenged the findings on unpaid rent, unpaid water usage, the damaged main bedroom door replacement, the cost for replacing light globes and the refusal of recoupment of two filing fees.
The tenant's ground of appeal are set out at page 3 of the Notice of Appeal and in written submissions B1 - B14: 1. Ground 1 - the rent claim. The Tribunal erred in dismissing the landlord's claim for two day's rent outstanding as the tenant vacated the premises on 29 April 2021 being the day the keys were returned. 2. Ground 2 - the claim for water usage. The Tribunal erred in finding that the landlord had failed to establish the installation of water efficiency measures contrary to the evidence, and denied the landlord procedural fairness when the Tribunal Member refused to admit a plumbing certificate into evidence. 3. Ground 3 - the claim for damage to the bedroom door - The Tribunal Member ignored the evidence tendered by the landlord and instead arbitrarily awarded an amount contrary to the evidence. 4. Ground 4 - the claim for cost of replacement light bulbs - the Tribunal Member ignored the evidence of the landlord, a licensed electrician, and arbitrarily awarded an amount contrary to the evidence. 5. Ground 5 - the Tribunal erred in dismissing the landlord's claim for costs of a filing fee and costs for express postage and erred in finding that there were no special circumstances warranting an award for costs.
We have considered the grounds of appeal taking into account the following: 1. Section 38(2) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) which provides that the Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice"; 2. the views of the Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12] and Cominos v Di Rico [2016] NSWCATAP 5 at [13] that the stated grounds of appeal should be reviewed to discern grounds that may either raise a question of law or a basis for leave to appeal, and 3. the requirement to balance such review against the obligation to act fairly and impartially as stated in Bauskis v Liew [2013] NSWCA 367 at [68] citing Hamod v NSW [2011] NSWCA 367 at [309]-[316].
We note the landlord's written submission that the grounds of appeal he expressed could be based on error of law or error of fact.
In accord with that approach, we discern the grounds of appeal identified by the landlord constitute: 1. An error of law in failing to consider and accept relevant evidence, being the landlord's unchallenged and uncontradicted evidence as the tenant filed no evidence. 2. An error of law in taking into account irrelevant considerations being matters outside the landlord's evidence which was the only basis for findings. 3. An error of law in making findings that did not accord with the uncontradicted evidence from the landlord and inadequate reasoning for departing from that evidence and in not referring to an alternative basis in the evidence for the findings made. 4. Findings against the weight of evidence and not fair and equitable causing a substantial miscarriage of justice that was clear and ought to justify a grant of leave to appeal and findings of errors of fact.
In addition, the landlord brought an application for leave to adduce further evidence. Primarily this concerned a water efficiency measures certificate issued by a plumber in 2017 that had been provided to the managing agent with whom the tenant arranged the tenancy and other documents such as further quotations consistent with existing evidence on the damaged doors. An invoice supporting the cost of an electrician to replace light globes was also put forward.
Again consistent with the approach in Prendergast and the other authorities and statutory provisions cited above, the landlord's characterisation of these grounds of appeal must be assessed. We consider that grounds (1), (2) and (3) referred to in [14], if established, constitute errors of law on the legal principles governing appeals discussed below. Ground (4) alleges an error of fact which would require the leave of the Appeal Panel to succeed.

Applicable legal principles governing appeals

CATA s 80 provides as follows: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) 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. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances."
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)."
A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as examples of error of law: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]-[79] and [84(2)] as follows: "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]. 84 The general principles derived from these cases can be summarised as follows: … (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
Even if the appellant establishes that he may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the CATA, the Appeal Panel has discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Appeal Panel's consideration of whether or not to exercise that discretion.
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.'"
In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [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."

Errors of law

For the following reasons, we agree with grounds of appeal (1) to (3) set out in the notice of appeal.

Ground 1 - unpaid rent

In respect of the unpaid rent the Tribunal Member appears to have read only the rental ledger and did not take into account the documentary evidence that two days' unpaid rent were not showing on the ledger at the rate of $71.43 per day, being the amount claimed by the landlord. The landlord's documentary evidence, in the form of texts from the selling agent that the tenant did not hand back the keys until 29 April 2021, was not contradicted by documentation. In the absence of any other evidence from the tenant establishing that he vacated the premises earlier, we find that the Tribunal Member erred and that this ground of appeal must succeed.

Ground 2 - water usage

In respect unpaid water usage it is not in dispute that s 39 of the RT Act and r 10 of the Residential Tenancies Regulation 2010 require a tenant to pay water usage charges, but only if the premises contain regulated water efficiency measures. The landlord tendered the ingoing inspection report which requires the landlord or the landlord's agent to indicate whether the residential premises have the required water efficiency measures. The section "water efficiency devices" was checked by the landlord and signed by the tenant on 9 April 2021.
At the hearing the tenant asserted that no water efficiency devices were in place.
Rather than accepting the uncontested ingoing condition report, the Tribunal Member seems to have required a water efficiency certificate from a plumber as the only means of compliance with the legislative provisions which were substantially reflected in cl 10.5 and 11.4 in the tenancy agreement. This was not consistent with the requirements if there were in fact water efficiency measures as specified in place. The tenant had signed the incoming condition report on 9 April 2019 which established that water efficiency measures were in place and the uncontradicted evidence of the landlord was that leaks were not reported by the tenant during the tenancy. The evidence of the landlord was not referred to at all by the Tribunal. We consider that the Tribunal Member erred when he concluded that "I have insufficient evidence that the water efficiency measures are in place at the premises" and this ground of appeal must succeed.

Ground 3

In respect of the replacement cost of the damaged door to the bedroom, the Tribunal simply decided to estimate an amount for the door damage that was not supported by anything other than supposition or assertion. The only relevant considerations in the evidence in respect of damage to the door were the documents provided by the landlord. These showed that the landlord had allowed $750 on the sale to the purchaser for the damage to the door and related remedial work to both doors (such as matching painting), based on quotations communicated and as obtained by the purchaser. We consider that the Tribunal's "assessment" of reasonable compensation was contrary to the evidence and this ground of appeal must succeed.

Ground 4

In respect of the replacement cost of three light globes, the Tribunal rejected the landlord's uncontradicted evidence that the landlord had changed the lightbulbs and claimed his own labour costs as a licensed electrician. While the Tribunal accepted the landlord's evidence that the cost of the globes amounted to about $21, the Tribunal rejected the cost for the landlord's labour but the reasons did not explain why it awarded "a little for the landlord's time", allowing only $35 in total for this part of the claim. The Tribunal did not consider on what basis the landlord's own time is compensable. The finding as to damages was not supported by evidence and we consider that this ground of appeal must succeed also.
In our view, the foregoing errors of law in themselves justify upholding the appeal.

Leave to appeal

If grounds of appeal (1), (2) and (3) contain mixed errors of law and fact and require leave to appeal, which we do not consider to be the case but deal with for completeness, then in our view that leave should be granted and the appeal allowed, as also envisaged in ground (4).
Each of the matters found concerning rent, water usage measures, door damage and the globe replacement time was against the weight of evidence not contradicted in the documents before the Tribunal and the findings and assessments made by the Tribunal were not fair and equitable. There was a significant possibility, indeed a near certainty on the evidence, that there would have been a different outcome on these matters if given proper weight and characterised fairly and equitably. There was clear error justifying a grant of leave.

Limitation on internal appeals

The landlord sought leave to adduce fresh evidence in the form of a plumbing certificate dating back to 2017. It was explained at the hearing of the appeal that significant evidence may only be admitted if the evidence was not reasonably available at the time the proceedings under appeal were being dealt with, in accordance with clause 12(1)(c) of Schedule 4 of the CAT Act.
We are not entirely convinced that the water efficiency certificate constitutes further evidence not reasonably available. The reason put forward for lack of availability was that the landlord assumed that it was a matter not in issue because the ingoing condition report stating that water efficiency measures were in place. The tenant had not previously disputed the existence of water efficiency measures and had paid previous water bills without any demur. Further, the issue was raised by the Tribunal and not the tenant, in a manner that ignored the reference in the evidence to the confirmation by the tenant of the required water efficiency measures actually being in place at the start of the tenancy.
We would have been more inclined, in those circumstances, to view the ground of appeal as giving rise to an absence of procedural fairness not to allow the landlord to place the certificate into evidence and to see if the tenant wished to take that aspect further. However, this is unnecessary to determine given the other errors of law that justify allowing the appeal.

Appropriate relief on appeal

CATA s 81 provides as follows: "(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance."
The errors of law that we have identified necessitate reconsideration of the landlord's claim on the bond. It is not appropriate that the Appeal Panel itself engage in the primary fact-finding. We may not have all the evidence and we have not heard the parties' full submissions on those matters. To hear and determine the landlord's claim would deny the parties the first level of appeal. In addition, the landlord at least may wish to put into evidence the water efficiency certificate and the circumstances in which it was made available to the tenant, and possibly the further quotations that he obtained and sought to present on appeal.
We consider that, in the circumstances where the tenant chose not to file material in response to directions, there would not be an occasion for affording a further opportunity to do so in the usual course simply because of errors justify a re-hearing on the existing material. However, the landlord has specifically sought leave not only to file the plumbing certificate, but also stated in the notice of appeal that he would, if permitted seek to adduce a "quote from a builder for the main door repairs" and a quote "from a licensed electrician for the light bulb repairs." Whether both parties should be given the opportunity to file further evidence should be the subject of a directions hearing for a timetable before re-hearing to provide that opportunity.
The appeal should be allowed, the primary decision set aside and the matter remitted to be given a new hearing date after directions for further evidence. In the circumstances where the primary decision has been completely set aside, we think it appropriate that such new hearing should be before a Tribunal differently constituted to avoid any suggestion of pre-judgment: cp Walker Corporation v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 at [121] (5) and (7).
We note that the bond remains with the Rental Bond Board and no further order is required preserving the bond.
It will be noted that we have not dealt with the landlord's claim for filing fees and cost of express postage. On present evidence, we do not consider the proceedings required to terminate the tenancy and to contest the bond constitute special circumstances that would justify allowing the appeal, but the issue, like the other matters that have justified allowing the appeal, is open to be raised for re-determination on a re-hearing, as are the matters on which the landlord previously succeeded.
We note that there has been no sufficient attempt at present to establish historic filing fees in earlier proceedings as a separate head of loss for breach in the current proceedings, and have insufficient information on how they were treated in previous proceedings (for instance, was a costs order sought and refused for absence of special circumstances).

Costs of appeal

Neither party sought leave for legal representation on the appeal. We discern no special circumstances in the appeal, as required by s 60 of the Civil and Administrative Tribunal Act 2013 (NSW), to justify a costs order given the amounts involved in the proceedings appealed from: rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW).

Orders

The orders that we accordingly make are as follows: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. Order 1 made in RT 21/24013 Set aside order 1 made on 26 August 2021 is set aside. 4. The matter is remitted to the Consumer and Commercial Division, differently constituted, for re-hearing, with directions to be made by the Division to permit the lodgement and service of further evidence.

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: 28 January 2022

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