Zhang v Pollasky [2023] NSWCATAP 154 | Case summary

NCAT Appeal Panel|2023-05-29|Before: Blake AM

Leave to appeal under s 80(2)(b) of the NCAT Act

In Collins at [76], the Appeal Panel stated that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act 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." (emphasis in original)
In Collins at [77], the Appeal Panel, without seeking to be exhaustive in any way, stated 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" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act 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.
The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act 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: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 (Al-Daouk) at [23].
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
In Collins at [84], the Appeal Panel summarised the general principles which govern the granting of leave to appeal: "[84] The general principles derived from these cases can be summarised 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."

Whether significant new evidence has arisen (being evidence that was not reasonably available at the time of the hearing before the Tribunal)

We are not satisfied that the digital photographs and video files sought to be relied on by the landlord constitute significant new evidence (being evidence that was not reasonably available at the time the proceedings before the Tribunal were being dealt) that has arisen within the meaning of cl 12(1)(c) of Sch 4 of the NCAT Act as explained in Al-Daouk at [23]. The digital photographs and video files were taken by the landlord on various dates on or prior to 14 October 2022 We do not accept the explanation by the landlord as to why she did not give these digital photographs and video files as part of her evidence at the hearing before the Tribunal as it is inconsistent with order 2 when read with the important note of the procedural directions made in proceedings RT 22/44193 on 1 November 2022.
Even if we had decided that the digital photographs and video files of the landlord constituted significant new evidence (being evidence that was not reasonably available at the time the proceedings before the Tribunal were being dealt), we would not have decided that the landlord may have suffered a substantial miscarriage of justice within cl 12(1) of Sch 4 of the NCAT Act. The digital photographs and video files do not substantiate the claims of the landlord. For example, the video files only showed water flowing from a tap into a sink and did not show water not emptying from the sink after the tap was turned off. Nor did the media show any blockage for which the tenants could be held responsible.
As to the other photographic material provided by the landlord which was new evidence, again this material did not demonstrate any error in the evaluative process undertaken by the Tribunal concerning the state of the premises at the end of the tenancy such to warrant a grant of leave.

Whether the Tribunal Decision was not fair and equitable

The contentions of the landlord in the notice of appeal in substance were that her printed photographs should have been accepted because the photographs of the tenants were "fake". Further, she should be able to rely on her digital photographs and video files.
There is no evidence to substantiate this assertion that the evidence of the tenants was "fake".
As to the digital photographs and video files, we have already determined at [41] above that they do not constitute significant new evidence (being evidence that was not reasonably available at the time the proceedings before the Tribunal were being dealt) that has arisen within the meaning of cl 12(1)(c) of Sch 4 of the NCAT Act.
As to the landlord's printed photographs, the Tribunal considered them in the context the landlord's claims for the patching and painting of nine walls and bathroom cleaning. The fact that the Tribunal did not accept them as establishing the landlord's claim does not establish that the decision on these claims was not fair and equitable, On the contrary, the findings of the Tribunal about the landlord's photographs was consistent with the warning by the New South Wales Court of Appeal that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes and their usefulness may depend on their nature and quality: Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72 at [42] (Sackville AJA with Ward JA at [1] and Garling J at [72] agreeing).
Finally, as happened, it was open to the Tribunal to view the competing photographic evidence and what the tenants said in determining the actual state of the premises. In doing so, the relevance of the outgoing inspection report and the absence of the tenants being invited to attend the inspection for the purpose of the preparation of that report was a matter relevant to evaluating whether the decision was fair and equitable and/or against the weight of evidence.
It follows that we are not satisfied that the Tribunal Decision was not fair and equitable within the meaning of cl 12(1)(a) of Sch 4 of the NCAT Act.

Whether the Tribunal Decision was against the weight of evidence

The landlord did not seek to analyse the evidence in respect of each of her claims and the tenants' claim for compensation arising from their loss of quiet enjoyment arising from noise occasioned by the building works in the building in which the premises are located so as to demonstrate that the evidence in its totality preponderated 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 as explained in Collins at [77],
We pointed out to the landlord that we could not evaluate whether the findings made by the Tribunal were against the weight of evidence with cl 12(1)(b) of Sch 4 of the NCAT Act because she had not complied with the 21 April 2023 orders by providing a typed transcript of the relevant parts of the hearing before the Tribunal. The sound recording notes filed by the landlord on 16 May 2023 were not a typed transcript of the relevant parts of the hearing before the Tribunal. They comprised three type written pages with a transcription of parts of the hearing with the first time entry as "10:55" minutes and the last time entry as "2:21:23". Several entries include commentary by the landlord which were not words spoken at the hearing.
The absence of a complete transcript on each of factual disputes raised prevents the evaluative task required for the grant of leave from being undertaken.
It follows that we are not satisfied that the Tribunal Decision was against the weight of evidence within the meaning of cl 12(1)(b) of Sch 4 of the NCAT Act.
Finally, we should note the appellant made submissions about the operation of ss 98 and 98A of the RT Act. These sections respectively deal with the right of the tenant to terminate on notice for breach and to terminate the residential tenancy agreement where the landlord has contravened s 26 of the RT Act (which relates to information disclosure in connection with a proposed tenancy).
This submission was made in the context of the Tribunal's award in favour of the tenants of $500 compensation.
The problem with this submission is that the Tribunal made the award on the basis that there had been a breach of quiet enjoyment due to building works being carried out for an extended period of time. Consequently, these sections were irrelevant in considering whether the Tribunal's award was correct.
The Tribunal was entitled to consider what had been said at the commencement of the tenancy concerning proposed building works. However, it was the fact that they continued for a significant period time that formed the basis of the award.
Consequently, no error is established on this basis.

Conclusion

Since none of the criteria in cl 12(1) of Sch 4 of the NCAT Act has been satisfied, we are not satisfied that the landlord may have suffered a substantial miscarriage of justice. It follows that leave to appeal against order 2 of the 24 March 2023 orders should be refused.

Orders

We make the following orders: 1. leave to appeal is refused; 2. the appeal is otherwise 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

Amendments 08 June 2023 - Legislation Cited - Residential Tenancies Act 2010 (NSW), ss 98, 98A, 175, 187 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: 08 June 2023

The scope and nature of internal appeals

Internal appeals may be made as of right on a question of law and otherwise with leave of the Appeal Panel: s 80(2)(b) of the NCAT Act.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 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 (cl 12(1)(a)); or 2. the decision of the Tribunal under appeal was against the weight of evidence (cl 12(1)(b)); 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) (cl 12(1)(c)).
The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to an orders that the appeal is to be allowed or dismissed: s 81(1)(a) of the NCAT Act.
Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that in the case of an appeal from a decision of the Tribunal in proceedings under the RT Act an internal appeal must be lodged within 14 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision.
An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the appeal in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.

Zhang v Pollasky

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