In a consumer claim application about goods and services filed on 27 March 2022 Qian Xu (Appellant) sought orders that PBR Property Consultants Pty Limited (Respondent) pay $23,419 in damages to the Appellant for mismanagement of the Appellant's residential property. The parties entered into an Exclusive Management Agency Agreement under the Property, Stock and Business Agents Act 2002 authorising the respondent to manage the appellant's residential premises in Kanangra Drive, Taree. The residential premises were damaged by a long term tenant and the appellant sought to recover the cost of repair from the Respondent. The application was heard on 25 May 2022 and the Tribunal dismissed the application.
By Notice of Appeal filed 22 June 2022 the Appellant appealed against orders dismissing the application.
By Notice of Reply filed on 6 September 2022, the Respondent sought the dismissal of the Appellant's appeal.
The appeal was heard on 10 October 2022. Judgment was then reserved. These are the reasons of the Appeal Panel for dismissing the Appellant's appeal on a question of law, and refusing leave to appeal on other grounds.
Attached to the Appellant's Notice of Appeal was a summary of her contentions dated 18 June 2022, together with a number of documents, photographs, invoices and residential tenancy agreements. The Appellant filed written submissions in support of her appeal on 23 September 2022, to which were attached the documents which had been attached to the Appellant's Notice of Appeal, together with some additional documents.
The Respondent did not file any submissions in support of its Notice of Reply.
On 31 August 2022, at a call over when both parties were represented, the Appeal Panel made directions for the exchange of evidence and in particular directed (order 3(d)) that "if oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Applicant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing" was to be lodged with the Registry and served on the Respondent by 21 September 2022.
Oral reasons were given at the conclusion of the hearing before the Tribunal at first instance. The Appellant did not provide a copy of the transcript of the reasons of the Tribunal at first instance or of any part of those proceedings.
The Appellant was assisted at the hearing of the appeal by an interpreter. The Appellant's documentation in the appeal was written in English and does not reveal that the Appellant had the documents read to her in her first language. The Appellant did not dispute that she was aware of the directions of 31 August 2022, although she said that she believed that the Tribunal would provide the transcript of the reasons for the decision which gives rise to the appeal. The Appellant lodged her written submissions on 21 September 2022, the day provided by the Appeal Panel's directions.
The Appeal Panel is satisfied that the Appellant was, or should have been aware of the terms and effect of order 3(d) of the directions of 31 August 2022. The Appellant did not seek an adjournment of the appeal to obtain the transcript of the reasons for the Tribunal's decision of 25 May 2022. As was explained to the Appellant, the absence of the transcript of the oral reasons for the decision of 25 May 2022 created a significant obstacle to the success of grounds of appeal complaining about anything which occurred during the hearing of the proceedings, or was recorded in the Tribunal's reasons for its decision.
[2]
Reasons for the Decision under appeal
On 25 May 2022 the Tribunal dismissed the application filed by the Appellant on or about 27 March 2022 seeking an order that the Respondent pay to her the sum of $23,419. The basis of the claim was expressed as follows:
"PBR Property Consultants Pty Limited, managed my property since 01/04/2018, which them [sic] took over business from Professionals Coolangatta Tweed Property agent with my property manage, same tenants … until handover to DJ Stringer Property Services on 08/09/2021, agreement attached. On handover same day I Find Two earth rooms most of earth have been moved instead: water pipe and taps, drains, electricity wires and airducts. Wet walls and moist two earth rooms. Earth had been moved The Building Structure had been changed, have to do work to support building Structure urgently, Here Engineering report attached, quote of engineering support attached total $23,419, I want RBR Property Consultants Pty Limited to pay that."
The Tribunal's reasons recorded that it dismissed the Appellant's application because "Having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established". Under the heading "Notation" the Tribunal recorded that it had given "short oral reasons" at the end of the hearing, as is not disputed by the Appellant, and that (notation 2) the Tribunal "has been unable to find the damages alleged to have occurred during the tenancy are the liability of the Respondent" and that (notation 3) "In the absence of the ingoing condition report regarding the area under the premises, the Tribunal has been unable to find it occurred during the Respondent's period of services to the Applicant".
There is little doubt that, at some time, during the tenant's occupancy of the Appellant's premises between 13 October 2017 and 31 August 2021, significant damage of the kind described by the Appellant was caused, apparently for the purpose of the hydroponic production of prohibited substances. Among the Appellant's material tendered before the Appeal Panel were varying quotations and reports that confirm that soil has been removed exposing the footing of the residential premises, and a recommendation by a structural engineer that a short retaining wall be designed to ensure the lateral stability of the premises. The structural engineer's opinion had not been provided to the Member at first instance. Although, without the transcript of the proceedings, or of the Tribunal's reasons for its decision, we cannot be certain, it does not seem to have been in contest at first instance, and was not in the appeal, that remedial work of the kind asserted by the Appellant was reasonably required to restore the premises to their pre-modification state of repair.
It is not in doubt that the Respondent assumed the management of the premises on 1 April 2019, some 18 months after the tenant first occupied the premises. It does not seem to have been in dispute at first instance, and was not in the appeal, that the first time that the Appellant or the Respondent's representative discovered the modifications in the garage region of the premises, on the lower of two storeys of those premises, was after the tenant vacated. Although, again, not having the transcript of the hearing, we cannot be certain about it, it seems likely, as the Respondent's representative asserted during the hearing of the appeal, that property of the tenant stored in the garage area concealed, at least in part, the modifications which the tenant had effected to the subfloor area of the Appellant's premises.
It is not in contest that there was no "ingoing condition report regarding the area under the premises" to which the modifications were made. The legal basis of the Appellant's claim was not identified in her originating application. Without the transcript of the hearing of the application, and the Tribunal's reasons for dismissing it, we cannot assume that the decision was erroneous in some way.
[3]
Principles governing the appeal
The principles governing the appeal are not in doubt. The Appellant may appeal the decision of the Tribunal as of right on a "question of law" pursuant to s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) or, with the leave of the Appeal Panel, "on any other grounds".
The sole ground of appeal articulated by the Appellant stated "new evidence". The error on a question of law which the new evidence was asserted to establish was not identified by the Appellant. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13, the Appeal Panel recorded a non-exclusive list of "questions of law", being:
"(i) whether there has been a failure to provide proper reasons;
(ii) whether the Tribunal identified the wrong issue or asked the wrong question;
(iii) whether a wrong principle of law had been applied;
(iv) whether there was a failure to afford procedural fairness;
(v) whether the Tribunal failed to take into account relevant (i.e. mandatory) considerations;
(vi) whether the Tribunal took into account an irrelevant consideration;
(vii) whether there was no evidence to support a finding of fact; and
(viii) whether the decision is so unreasonable that no reasonable decision maker would make it [authorities omitted]."
In the absence of the transcript of the reasons for the decision of the Tribunal of 25 May 2022 or the transcript of the hearing, it is difficult to see on what basis, if admitted, the purported "new evidence" would establish error on a question of law.
The Appellant also sought leave to appeal, on the ground of "New Evidence Provided", it being asserted by the Appellant that the decision of the Tribunal was not fair and equitable as "significant new evidence is now available that was not reasonably available at the time of the hearing". As will be explained, not only was the purported new evidence reasonably available at the time of the hearing before the Tribunal, it was in fact before it.
The principles governing the application for leave to appeal are not in doubt and were extensively considered in Collins v Urban [2014] NSWCATAP 17 (Collins) (at [65]-[84]).
In the present circumstances it is unnecessary to refer in detail to the principles governing the Appellant's application for leave to appeal, save to record that, pursuant to the provisions of clause 12(1) of Schedule 4 of the CAT Act, the Appellant needs to demonstrate that she "may have suffered a substantial miscarriage of justice" because the decision of the Tribunal under appeal was not fair and equitable.
The Appeal Panel in Collins accepted [68] that clause 12 does not require the Appellant to demonstrate that she has "actually suffered a substantial miscarriage of justice", all that is necessary is that she may have suffered such a miscarriage.
The Appeal Panel accepted [70], by reference to the decision of the High Court in Mraz v The Queen [1955] HCA 59; [1955] 93 CLR 493 at 514, that the loss of a chance of success which was "fairly open" constituted a miscarriage of justice.
The Appeal Panel further recorded at [72], by reference to the decision of the High Court in Gallagher v R [1986] HCA 26; [1986] 160 CLR 392, that an appellate court would "conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial".
The Appeal Panel in Collins recorded [78] that the deprivation of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved had the new evidence been before the court or tribunal at first instance, was sufficient to satisfy the requirement 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". For the reasons which follow, it is unnecessary to refer further to the decision in Collins.
[4]
The Appellant's case
During the hearing, the Appeal Panel directed the Appellant's attention to each of the documents attached to her Notice of Appeal, the numbering of which is not necessarily easy to follow. So doing established that the "new evidence" upon which the Appellant relied in support of her application for leave to appeal had clearly been available, and was before the Tribunal on 25 May 2022. As both the Appellant's grounds of appeal on a question of law, and her application for leave to appeal were reliant upon "new" evidence, neither can succeed in those circumstances.
It is not in doubt that the Appellant's claim for the sum of $23,419 comprised three quotes for remedial work to her premises, one from Paul's Plumbing Services dated September 15, 2021 in the sum of $264, one from Globe Consulting dated 30 November 2021 in the sum of $1,155, and one from Multistructure Engineers and Project Management Pty Limited dated 1 December 2021 in the sum of $22,000.
The photographs which were attached to the Appellant's Notice of Appeal were prepared by and attached to the report of Globe Consulting Pty Limited dated 12 November 2021.
The Appellant agreed, as she had to, that all of those documents predated and were before the Tribunal on 25 May 2022. Attached to her submissions of 23 September 2022 were all of those documents, albeit the photographs there attached were in colour, whereas the earlier photographs were black and white. There was no relevant "new evidence" attached to the Appellant's submissions filed 23 September 2022. It is thus demonstrably clear that the "new evidence" purportedly relied upon by the Appellant was not new evidence and was before the Tribunal at first instance.
The crux of the Appellant's case in the Tribunal, as clarified by her in her submissions in the appeal is, as recorded at paragraph 10 of her Outline of Submissions of 23 September 2022, which stated:
"Tamara Smith current work for RBR Property Consultant, as the property manager for 1 Clonakilty Banora Point NSW six and a half years, would know the property from good condition to structurally damages by the removal of the earth from the foundation room to set up hydroponic plants."
It is not in doubt from the documents which are attached to the Appellant's Notice of Appeal and reproduced in her Outline of Submissions that, between 2015 and 2021 Ms Smith had the conduct of the management of the Appellant's property. Not insignificantly, that was, until 1 April 2019, in the course of her employment by Professionals Coolangatta Tweed, whereas, from 1 April 2019, it was pursuant to Ms Smith's employment by the Respondent. After 1 April 2019, Ms Smith, on behalf of the Respondent, provided a number of inspection reports which did not record any of the modifications to the subfloor area of the premises. The routine inspection reports included reports dated 23 September 2019, 15 September 2020 and 16 March 2021.
Significantly, in its short notations, the Tribunal stated at [2] that it had been "unable to find the damages alleged to have occurred during the tenancy are the liability of the Respondent" and [3] that the Tribunal had been unable to find that the modifications to the subfloor area of the premises "occurred during the Respondent's period of services to the Applicant". Quite apart from the fact that the "new evidence" is not new evidence, it had no bearing on what appears to have been the critical issue in the proceedings on 25 May 2022, namely that in some manner not articulated in the Appellant's originating application filed on 27 March 2022 the Respondent was liable for the cost of rectification of the premises because it had failed during its retainer as managing agent to observe and report to the Appellant that the premises had in fact been modified.
As we have earlier recorded, the Appellant having failed to provide the transcript of the hearing of the proceedings, or reasons for the Tribunal's decision, other than by assuming error when none has been proved, we are unable to find that the decision of 25 May 2022 was erroneous, either on a question of law or any other ground. In the circumstances, the appeal and the application for leave to appeal will both be dismissed.
For these reasons we make the following orders:
[5]
Order
1. Leave to appeal refused.
2. Appeal 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: 27 October 2022