Yu v Hawat

NCAT Appeal Panel|2024-08-13

Introduction

The appellants are the landlords of property in Fairfield New South Wales. From 17 December 2021 until 10 July 2024 the respondent occupied the property under a series of residential tenancy agreements subject to the provisions of the Residential Tenancies Act 2010 (NSW) (the Act).
From 17 December 2021 until 26 January 2023, the rent was $550 per week. From 27 January 2023 the rent increased to $570 per week.
On 7 March 2024 the respondent lodged an application in the Tribunal seeking an order in the following terms: "Unblock kitchen pipes so we can use the sink. Section 65(1)(A) tenancies act reduce rent until repairs are made section 44(1)(B)".
The reasons given for the making of the orders sought were: "Landlord wants me to pay for plumbing to unblock pipes. They state that I am responsible for the blockage. We have not been able to use the kitchen sink since 21 March 2024. I reported the issue on 22 March 2024. Since I can't use the whole house I should have reduced rent. I have to use the laundry or bathroom to do dishes or fill a cup of water."
On 28 March 2024 the appellants lodged their own proceedings seeking: "Compensation on behalf of our landlord for a total of $2365 that he paid for plumbing repairs of a blocked kitchen sink which the tenant had caused."
The reasons given for the making of that that order were: "Due to the fact that the tenant has caused the blockage and the landlord has been advised by the plumbers that it was caused by her putting an excess of fat/oil down the sink."
The applications were listed for hearing together on 20 May 2024. The Tribunal delivered its decision that day.
In the respondent's proceedings, the Tribunal ordered: "1 The rent for the premises shall not exceed the amount of $467.50 for the period 2 March 2022 to 26 January 2023. 2 The rent for the premises shall not exceed the amount of $484.50 for the period 27 January 2023 to 3 March 2023. 3 Any overpaid rent is to be paid as a rent credit to the tenant on or before 28 May 2024. 4 The tenant's application is otherwise dismissed."

Relevant legislative provisions

It is convenient to set out the sections of the Act which are relevant to the issues raised by the appeal.
Section 44 of the Act relevantly provides: 44 Tenant's remedies for excessive rent (1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders - … (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount. … (3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement. (4) Determination of excessive rent For the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent. (5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive - (a) the general market level of rents for comparable premises in the locality or a similar locality, (b) the landlord's outgoings under the residential tenancy agreement or proposed agreement, (c) any fittings, appliances or other goods, services or facilities provided with the residential premises, (d) the state of repair of the residential premises, (e) the accommodation and amenities provided in the residential premises, (f) any work done to the residential premises by or on behalf of the tenant, (g) when the last increase occurred, (h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent). (6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent - (a) has effect for the period (of not more than 12 months) specified by the Tribunal, and (b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable.
Section 51 of the Act relevantly provides: 51 Use of premises by tenant (1) A tenant must not do any of the following - … (b) cause or permit a nuisance, … (d) intentionally or negligently cause or permit any damage to the residential premises, … (2) A tenant must do the following - (a) keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy, (b) notify the landlord of any damage to the residential premises as soon as practicable after becoming aware of the damage. … (4) In this section - residential premises includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant. (5) This section is a term of every residential tenancy agreement.
Section 52 of the Act provides: 52 Landlord's general obligations for residential premises (1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. (1A) Without limiting the circumstances in which residential premises are not fit for habitation, residential premises are not fit for habitation unless the residential premises - (a) are structurally sound, and (b) have adequate natural light or artificial lighting in each room of the premises other than a room that is intended to be used only for the purposes of storage or a garage, and (c) have adequate ventilation, and (d) are supplied with electricity or gas and have an adequate number of electricity outlet sockets or gas outlet sockets for the supply of lighting and heating to, and use of appliances in, the premises, and (e) have adequate plumbing and drainage, and (f) are connected to a water supply service or infrastructure that supplies water (including, but not limited to, a water bore or water tank) that is able to supply to the premises hot and cold water for drinking and ablution and cleaning activities, and (g) contain bathroom facilities, including toilet and washing facilities, that allow privacy for the user. (1B) For the purposes of subsection (1A)(a), residential premises are structurally sound only if the floors, ceilings, walls, supporting structures (including foundations), doors, windows, roof, stairs, balconies, balustrades and railings - (a) are in a reasonable state of repair, and (b) with respect to the floors, ceilings, walls and supporting structures - are not subject to significant dampness, and (c) with respect to the roof, ceilings and windows - do not allow water penetration into the premises, and (d) are not liable to collapse because they are rotted or otherwise defective. (1C) The Secretary may exempt any specified premises or any specified class of premises from the operation of all or any part of this section. An exemption may be unconditional or subject to conditions. (2) A landlord must not interfere with the supply of gas, electricity, water, telecommunications services or other services to the residential premises unless the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. (3) A landlord must comply with the landlord's statutory obligations relating to the health or safety of the residential premises. [Note omitted] (4) This section is a term of every residential tenancy agreement.
Section 63 of the Act provides: 63 Landlord's general obligation (1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. (2) A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises. (3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part. (4) This section is a term of every residential tenancy agreement.

The Tribunal's reasons for decision

The reasons given in each proceeding were identical. Significantly, the Tribunal recorded that it had granted the respondent leave to amend her application to seek orders for: "1 A rent reduction of 10% from 22 February 2024 to 8 April 2024 regarding a blocked kitchen drain; 2 A rent reduction from 17 December to 2021 to 3 March 2023 regarding leaks throughout the premises. The tenant did not specify the amount of the reduction; 3 Compensation for economic loss of set $1650 due to damaged furniture."
The Tribunal recorded that it had given oral reasons for granting this leave.
The Tribunal's written reasons set out the relevant principles applicable to a claim in respect of the reduction or withdrawal by a landlord of goods, services or facilities pursuant to s 44 of the Act.
The Tribunal recorded that, due to changes in the identity of the of the appellants' managing agent and the absence of records from the previous managing agents, the only evidence before the Tribunal regarding the tenancy between 17 December 2021 and 22 February 2022 was the evidence of the respondent. The Tribunal accepted the respondent's evidence regarding the tenancy during that period.
The Tribunal found that, at the commencement of the tenancy, the respondent had notified the appellants' then agent that a skylight was leaking and that the walls of a sleepout attached to the house were also leaking.
The Tribunal found that, initially, the leaking of the skylight did not constitute a reduction or withdrawal of facilities because the skylight and sleepout leaked at the commencement of the tenancy but that, by 8 January 2022, the leaks to the premises had worsened from the conditions at the start of the tenancy such that there was a reduction in the facilities provided with the residential premises.
The Tribunal concluded that the documentary evidence did not support the landlords' submission that the landlords had responded promptly when the tenant had notified their agent of the need for repairs. The Tribunal found that "the landlord failed to respond with reasonable diligence to repair notifications".
The Tribunal noted a number of communications from the respondent to the appellants' agent concerning the leaks and accepted the tenant's evidence "that it was not until two or three weeks after first notifying [the agent] that a succession of contractors attended the premises". The Tribunal recorded that repairs were attempted but were unsuccessful and found that, after multiple repair attempts "the leak to the kitchen and lounge finally stopped on or about 3 March 2023, around 13 months after the current agent was first notified, and around 14 months after the withdrawal first occurred on or about 8 January 2022."
The Tribunal noted that, although the tenant had not made a claim pursuant to s 52 of the Act, the Tribunal was satisfied that the habitability of the premises and their structure was significantly impacted by the leaks. The Tribunal also found that "the sleepout is still affected by leaks and excessive dampness and that this has deteriorated since the commencement of the tenancy."
The Tribunal concluded: "Overall, the Tribunal is satisfied that the landlord's delay in attending to the repairs to the leaks in the kitchen, loungeroom and sleep-out have caused a reduction in facilities because the qualitative standard of the premises, with extensive leaks, is less than what a landlord is required to provide under a residential tenancy agreement."
The Tribunal determined that the appropriate amount to allow for reduction in rent on account of the water leaks was 15% for the maximum period of 12 months. In so concluding, the Tribunal took into account that there was no evidence before the Tribunal of the general market level of rents for comparable premises in the locality so that the Tribunal could not accept the landlords' submission that the rent payable under the tenancy agreement was below the market rate.
The Tribunal also took into account: 1. That the kitchen and lounge room comprised around 30% of the area of the house; 2. That a functioning kitchen is a basic amenity in any home as is a living area and both were significantly affected during rain; 3. That, although the sleepout may not have been advertised as a bedroom, it was provided as part of the residential premises and, with five occupants in a four bedroom home, the respondent needed to use the sleepout as a bedroom. It was an important facility provided with the premises; 4. That, as a result of the multiple leaks: the hinges of the kitchen cupboards have rusted and fallen off; the cupboards are warped; and every room has mould which the respondent had been unable to clean off; 5. That the leaking had a negative visual impact with pots and bowls on floors and furniture, water down walls and pooling on windowsills, and mould; and 6. That, although no part of the premises was completely unusable due to leaks, the environment was adversely affected, causing a significant reduction in the qualitative standard of the premises.
The Tribunal dismissed the respondent's claim for compensation for damage to her couch as the application was brought out of time and the Tribunal was not satisfied as to the respondent's explanation for her failure to bring the application within time. The Tribunal refused an extension of time to bring that claim.
In relation to the blocked sink, the Tribunal noted that: "The evidence from the plumbers provided by both parties indicates that the cause of the blockage was a large buildup of solid fat over time."
The Tribunal noted that the respondent denied pouring fat down the sink and gave evidence that she used the sink "only for normal purposes". The Tribunal stated: "There is no independent evidence to support the landlord's assertion that this tenant was negligent and thus caused the fat buildup during the two years and two months between the commencement of the tenancy and the blockage. The cause may well have been the negligence of a previous tenant combined with [the respondent's] normal and reasonable use of the sink. Simply put, the landlord has failed to discharge its onus of proof."
The Tribunal dismissed the landlords' claim in respect of the blocked sink.
The Tribunal also dismissed the application by the tenant with respect to the alleged withdrawal of facilities by the landlords in relation to the blocked sink.

Notice of Appeal

The appellants filed their Notice of Appeal on 7 June 2024, that is three days outside the time fixed by rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) for the filing of a notice of appeal in "residential proceedings". The proceedings before the Tribunal were "residential proceedings" as that term is defined in the rules.
The Notice of Appeal challenges both the orders for the reduction of rent and the order dismissing the appellants' application.

Scope and nature of internal appeals

An appeal to the Appeal Panel from a decision of the Tribunal is an internal appeal. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that an internal appeal may be brought against a decision of the Tribunal, as of right on a question of law and with the leave of the Appeal Panel on other grounds.
An internal appeal to the Appeal Panel does not provide a losing party in the Tribunal at first instance with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] - [40] provided further guidance in relation to what is a question of law and the categories of questions of law. At [26] - [28] the Appeal Panel stated: "26 … great care must be taken in drafting a notice of appeal to ensure that it is apparent, on its face, that the ground of appeal raises a question of law. If not, leave to appeal is necessary. 27 Where, however, there is a question of law in substance, a court (and, it follows, an Appeal Panel) has discretion (to be exercised judicially and in the interests of justice) to direct its formal notification in an amended notice of appeal: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [60]. In appropriate circumstances, the Appeal Panel may elect to waive the requirement to formally lodge an amended notice of appeal, given its mandate to act "with as little formality as the circumstances of the case permit … without regard to technicalities or legal forms": NCAT Act, s 38(4); Wollondilly at [19]. Where the party is not legally represented, a more generous approach is warranted: Kudrynski at [50]-[51]. This is an aspect of ensuring procedural fairness. 28 When dealing with self‑represented parties, the Appeal Panel has in many instances considered for itself whether a question of law is raised, applying John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [12]: Eastman v Nepean Blue Mountains Local Health District [2024] NSWCATAP 94 at [11], FSO v Secretary, Department of Education [2024] NSWCATAP 154 at [34], El‑Mohamad v Lin [2024] NSWCATAP 139 at [31], Johnson v Nachar [2024] NSWCATAP 135 at [14], Batshon v Suttons Motors Homebush Pty Limited [2024] NSWCATAP 114 at [19], Craig v Shallita [2024] NSWCATAP 112 at [16]."
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division (other than interlocutory decisions) are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered 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."
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel, at [84], summarised the general principles derived from cases dealing with the grant of leave to appeal in other contexts as follows: "(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (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. BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."

Grounds of appeal

The grounds of appeal as set out in the appellant's Notice of Appeal were as follows: "The basis of our appeal request for order 1, 2, and 3 stems from the lack of notification to our office or the landlord regarding an additional cross-claim from [the respondent] or NCAT concerning the ceiling/roof leaks. Consequently, during the Tribunal hearing on 20 May 2024, we were unable to provide our supporting evidence and documents to contest the cross-claim due to not being advised of its existence. We find this unjustified, therefore request a fair review under appeal. In regard to our initial claim of the kitchen sink blockage, despite providing supporting evidence indicating that the tenant was responsible for the blockage, the claim was dismissed. Furthermore, no evidence was presented from the opposing party to suggest otherwise. Given these circumstances, we firmly believe that a rehearing of this matter is warranted."
We understand the appellants' challenge to the orders in relation to the respondent's application to be founded upon an alleged denial of procedural fairness in the respondent being permitted to raise a claim based upon the water leaks. Whether the appellants were denied procedural fairness raises a question of law.
The ground of appeal relating to the dismissal of the appellants' claim does not raise any question of law.
The appellants also sought leave to appeal on each of the grounds specified in clause 12 of Sch 4 to the NCAT Act. In each case the appellants claimed that they were unable to provide their evidence in opposition to the respondent's claim in respect of water leaks because they were not advised of that claim in advance of the hearing.
In respect of the appellants' claim to recover the costs arising from the blocking of the kitchen drain, the appellants' statements of the grounds upon which it was alleged that the decision was not fair and equitable and that the decision was against the weight of evidence were in identical terms to the appellants' ground of appeal concerning the dismissal of that claim.
The appellants included in their appeal bundle documents identified as "roof leak documents", "plumbing documents" and "comparables". The appellants' agents, Ms C Cappuccio and Ms J Refik, who appeared for the appellants at the hearing of the appeal, indicated that only the "plumbing documents" had been before the Tribunal at first instance. The "roof leak documents" and the "comparables" had not been before the Tribunal. In each case the appellants maintained that these documents had not been put before the Tribunal because the appellants' representatives did not realise or did not consider that they were necessary or significant to the appellants' case.

Consideration

The difficulty confronting the appellants in maintaining the grounds of appeal and the application for leave to appeal was that they had not provided a recording or transcript of the hearing and, in particular, had not provided a transcript of the oral reasons given by the Tribunal for permitting the respondent to amend her claim at the hearing.
At the hearing of the appeal, Ms Cappucio and Ms Refik, who had also appeared before the Tribunal at first instance, acknowledged that they had agreed to the Tribunal hearing the respondent's amended claim on 20 May 2024. They stated that: "We made a decision to proceed because we wanted to get the matter out of the way."
On 26 June 2024 the Appeal Panel directed: "2 The Appellant is to lodge with the Appeal Registry and give to the Respondent by 17 July 2024: (a) All the evidence given to the Tribunal at first instance on which it is intended to rely; (b) Any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely; (c) The Appellant's written submissions in support of the appeal; and (d) If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing."
The Appeal Panel cannot determine that the decision to permit the respondent to amend her claim to seek a reduction in rent by reason of the roof leaks involved a denial of procedural fairness to the appellant without knowing, by reference to a transcript (or at least a recording), the Tribunal's reasons for granting leave.
We note, in any event, that the concession by the appellants' agents, that they agreed to the amendment to the respondent's claim in order that the proceedings could be resolved on the day, is fatal to any suggestion that the grant of leave to amend the respondent's claim involved a denial of procedural fairness. The appellants (through their agents) took the decision to proceed on the day, presumably in the expectation that the amended claim would not succeed. That expectation having been disappointed, it is not open to the appellants to go back on their decision.
The failure of the appellants to provide a recording or transcript of the hearing at first instance is also fatal to the appellants' application for leave to appeal on the bases that the decision is against the weight of evidence or is not fair and equitable. The Tribunal recorded in its reasons for decision that "All three present at the hearing also gave sworn oral evidence." The three present at the hearing were the appellants' agents, Ms Cappuccio and Ms Refik, and the respondent. Clearly, in the absence of a transcript or recording of the hearing at first instance, the Appeal Panel does not have before it all of the evidence that was presented at the hearing.
As the Appeal Panel held in Aboss v Hafeez [2022] NSWCATAP 345, in circumstances where the appellant has not filed a transcript or recording of the hearing at first instance: "30 … it is impossible for the Appeal Panel to conclude that the decision was against the weight of evidence (as the evidence weighed by the Tribunal is not available to the Appeal Panel): see Shokrgozar v Abouloukme [2017] NSWCATAP 232 at [90]; Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at 24-26; and Watson v Chen [2022] NSWCATAP 44 at [27]-[37]. 31 For the same reason, the Appeal Panel could not determine that any finding made by the Tribunal, or the decision as a whole, was not fair and equitable. …"
We note that the respondent did not file any documents beyond a Reply to Appeal. In that document the respondent stated: 1. That she had notified the appellant of her claim regarding roof leaks on 3 April 2024, that is six weeks before the hearing; and 2. In relation to the fat buildup: "The onus of proving negligent or intentional damage rests with the landlord … There is no independent evidence to support the landlords assertion that I as the tenant was negligent and thus caused the fat build up during my tenancy. The cause may well have been the negligence of a previous tenant combined with the landlord's 'lack of maintenance over many years'."
The respondent explained at the hearing that she had not filed further documents because the directions made by the Appeal Panel on 26 June 2024 did not require her to. The respondent sought to hand up at the hearing the documents she had relied on at the first instance hearing, which she said had been served on the appellants on 3 April 2024.
The respondent was correct in submitting that the directions made on 26 June 2024 did not explicitly require her to file documents. Owing to a typographical error, order 3, which was clearly intended to refer to the respondent, instead referred to the appellant.
It might be argued that it should have been apparent to the respondent that there was an error in the order, and that, at the least, the respondent should have made enquiries of the Appeals Registry, to ascertain whether that was the case and when she should file the documents on which she relied. However, we do not need to consider that issue. Because we were of the view that the documents which the respondent sought to file at the hearing would not assist us in consideration of the grounds of appeal and the application for leave to appeal, we declined to receive the documents which the respondent sought to hand up at the hearing.
Although, as we have noted, the absence of a recording or transcript of the hearing prevents the Appeal Panel from determining that the decision was against the weight of evidence or not fair and equitable, we also consider that leave to appeal would be refused, even if there had been no oral evidence so that the "plumbing documents" provided by the appellants constituted the whole of the evidence concerning the fat blockage.
The appellants' submission in respect of the fat blockage was that the appellants' documentary evidence established the appellants' case that the respondent was responsible and that the respondent had filed no contradictory evidence. The Appeal Panel invited the appellants' agents to identify the evidence relied upon as establishing the appellants' case.
The material which the appellants' agents identified was limited to: 1. A report from a plumber dated 17 April 2024, which stated: "NSW Maintenance Plumbing visited this property numerous times for issues with blockages from the kitchen area. The first visit we managed to temporarily unblock the line and get the sink working again allowing water to flow freely. Unfortunately this didn't last long and the agent contacted us again to re attend. After attempting to unblock the line a second time using the high pressure water jet blaster we noticed an excessive amount of spillage under the kitchen kick boards and spillage out onto the living room floor which was mostly fat and oil liquids. We then proceeded to conduct a camera inspection entering in from the kitchen sink waste pipe and found a large build up of solid fat approx 3m down the line. Given that this line is only for this kitchen sink it is most likely a build up over time of what the tenants have been washing down the kitchen sinks whilst doing their dishes. After this we gained permission to delete this line and we completed a drainage re run externally and connected into the sewer line via the vent line." and 1. An email from the respondent, sent on 5 March 2024, which the appellants submitted constituted an admission that "[the respondent] does put any excess oil/fat down the sink." The email stated: "I just want you to know that I don't lie. I never pour oil down the sink. The only grease oil or fat going down the sink from me is off plates. I have never in the two years I have been here poured oil down the sink."
The appellants' agents confirmed that there was no dishwasher on the premises. The suggestion that the ordinary process of washing dishes with residual oil or fat in a kitchen sink is somehow an improper use of the sink and drainage system cannot be accepted.
A tenant is entitled to undertake the ordinary activities of daily living without being held to have breached their obligation regarding the cleaning and maintenance of a rental property.
We would not accept that the Tribunal's conclusion that the respondent was not responsible for the blockage of the sink was not fair and equitable or was against the weight of evidence, even if we accepted that the only evidence before the Tribunal concerning that issue was that identified by the appellants.
The appellants' application for leave to appeal on the basis that there was significant new evidence now available which was not reasonably available at the time of the hearing must fail, because the new evidence on which the appellants sought to rely was reasonably available at the time of the hearing.
In Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 the Appeal Panel held, in relation to clause 12(1)(c) of Sch 4 to the NCAT Act: "23. 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). 25. Further, to grant leave simply on the basis of whether a party had been unsuccessful in their attempt to obtain evidence would allow any party who has a personal excuse for not providing evidence otherwise reasonably available an opportunity to seek leave to appeal any decision of the Tribunal. Such an outcome would not promote finalisation of the real issues in dispute in a just, quick and cheap manner, as an opposing party would be liable to face a successful appeal and a rehearing merely because of the personal circumstances of the person who failed to procure necessary evidence."
The fact that a party did not realise that particular evidence might be helpful or even necessary does not mean that that evidence was not reasonably available at the time of the hearing: 3D Design & Build Pty Ltd v Lynch [2016] NSWCATAP 229 at [80].

Extension of time

The appellants' explanation for the delay in filing the Notice of Appeal was that their agents had been awaiting instructions and needed to gather documents. The appellants' agents indicated that they had only been appointed in February 2022 when the respondent was already living at the property, and they had to gather further documents from the previous agents, which they stated needed to be re-organised. The appellants' agents also indicated that they had not been aware of the 14 day time limit.
The respondent did not identify any prejudice arising from the delay in the filing of the Notice of Appeal beyond the inconvenience of having to respond to the appeal.
The delay was only three days and, regardless that we have concluded that leave to appeal must be refused and the appeal must be dismissed, we will extend time for the filing of the appeal.

Final orders

Although we have determined to dismiss the appeal, it is necessary to vary the orders to reflect the fact that the respondent no longer resides at the premises. The orders of the Tribunal directed that the rent reduction was to be provided by way of rent credit on or before 28 May 2024.
The Appeal Panel was informed at the hearing of the appeal that the appellants did not comply with that order and no credit had been provided. Accordingly, it is necessary to vary the orders to substitute a money order for the order requiring the provision of a rent credit.
The rent credit ordered by the Tribunal was $82.50 per week for the period 2 March 2022 to 26 January 2023 (which was 47 weeks and 3 days) and $85.50 per week for the period 27 January 2023 to 3 March 2023 (five weeks). The Tribunal's orders provided for the reduction of the rent for a period which was two days longer than the maximum period permitted under the Act. Although that was not a ground of appeal, it is appropriate, since we are altering the orders made by the Tribunal, that we correct the error and limit the amount the appellants are required to pay the respondent to the amount of rent reduction which the respondent should have received over a period of 12 months. Forty-seven weeks at $82.50 is $3,877.50. Five weeks at $85.50 is $427.50. One extra day at $82.50 per week is $11.79. The amount the appellants should be ordered to pay the respondent is $3,877.50 + $427.50 + $11.79 = $4,316.79.

Orders

Our orders are: 1. The time for the filing of the appeal is extended to 7 June 2024. 2. Leave to appeal is refused. 3. The appeal is dismissed. 4. Replace order 3 made in Consumer and Commercial Division proceedings 2024/00088589 on 20 May 2024 with the following: "The appellants, George Yu, Hua Yu, Yu Liu and Amy Yu, are to pay to the respondent, Souria Hawat, the sum of $4,316.79 by 28 May 2024."

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 2025

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