The appellant entered into a residential tenancy agreement with the respondent for an apartment located in Hurstville, New South Wales commencing on 17 May 2014. She vacated the apartment in December 2019.
After the appellant vacated the apartment the respondent claimed $616 from the appellant's bond for certain cleaning and repair work in the kitchen, being a sugar soap clean, cleaning to cupboards, the ceiling and downlights, cleaning above cupboards and behind a door, repainting cupboard doors and the ceiling. That amount was deducted from the appellant's bond and was paid to the respondent.
The appellant commenced proceedings in the Tribunal asserting that the respondent was not entitled to that sum of $616 and alleging that the respondent was liable for damage done to items of her clothing caused by a water leak in the apartment. The damage was alleged to be the growth of mould on the clothing. The appellant alleged that the amount of the damage caused to her clothing was in the sum of $4,648.
The Tribunal substantially found in favour of the appellant in relation to the amount deducted from the appellant's bond. The Tribunal found that the respondent was only entitled to a sum of $150 (and not $616) and ordered that the balance of the amount deducted from the bond, being $466, be re-paid to the appellant.
The Tribunal rejected the appellant's claim for compensation for alleged damage to her clothing.
The Tribunal found that in early November 2019 the appellant noticed that the laundry tap was leaking. The appellant rang a plumber who attended the premises on Sunday, 3 November 2019, and said to the appellant that he would report it to the managing agent.
The Tribunal found that the plumber reported the leak to the agent the following day, being 4 November 2019, and attended that same day to undertake the necessary repairs. The Tribunal noted that there was "no issue about these events".
The Tribunal found that about one week later the appellant notified the managing agent that she had found a number of clothing items in her wardrobe which were mouldy. She told the agent that they had become mouldy because of the damp from the leak that had come through to her wardrobe.
The appellant tendered a number of photographs which the Tribunal described as showing a pile of clothing, and a number of separate photographs of some individual clothing items. The appellant also tendered a series of photographs from various clothing websites of similar items of clothing and the prices advertised for those items. The appellant submitted that the total amount of the prices in the latter photographs was $4,648.
The Tribunal said that no receipt for the purchases of the damaged clothing items were tendered which might show their age, the Tribunal noting that the appellant's oral evidence was simply that some items were one year old, and some items were older.
The Tribunal held that in order for the appellant to succeed with her compensation claim for damage to her clothing she needed to establish that the respondent had breached the residential tenancy agreement.
The Tribunal said that the relevant term of the residential tenancy agreement to consider was that set out in s 63(1) of the Residential Tenancies Act 2010 (NSW) (the "RTA"), namely the obligation of the respondent to keep the premises in a state of reasonable repair.
Section 63 of the RTA says:
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.
This term is found in cl 18.3 of the residential tenancy agreement entered into between the parties to this appeal.
The Tribunal then noted the terms of s 65(3A) of the RTA. The full terms of s 65 are as follows:
65 Tenants' remedies for repairs - Tribunal orders
(1) Orders for which tenant may apply The Tribunal may, on application by a tenant, make any of the following orders -
(a) an order that the landlord carry out specified repairs,
(b) an order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant,
(c) an order that the landlord reimburse the tenant an amount for repairs to a smoke alarm carried out by the tenant under section 64A(3).
(2) Orders for repairs The Tribunal may make an order that the landlord carry out specified repairs only if it determines that the landlord has breached the obligation under this Act to 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.
(3) In deciding whether to make an order under this section, the Tribunal -
(a) must take into consideration the regulations, if any, made under subsection (6), and
(b) may take into consideration whether the landlord failed to act with reasonable diligence to have the repair carried out.
(3A) The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair.
(4) Reimbursement for urgent repairs The Tribunal may order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant if it is satisfied that the landlord has failed to reimburse the tenant for the costs in accordance with this Division.
(5) Payment of rent into Tribunal The Tribunal may order that all or part of the rent payable under a residential tenancy agreement be paid into the Tribunal until an order under this section has been complied with.
(6) Guidelines relating to reasonable time for repairs The regulations may provide for guidelines relating to reasonable times within which repairs to, and maintenance of, residential premises required to be carried out by the landlord under the residential tenancy agreement, this Act or any other Act or law should be carried out.
Having noted the terms of s 65(3A) of the RTA the Tribunal said that there was no issue that the plumber reported the leak to the agent on 4 November 2019 and attended that same day to do the repair. The Tribunal said that the appellant:
"… agreed with the proposition that there was no further leak, but she had not noticed that the leaked water had seeped into her wardrobe, dampened her clothes, which then became mouldy."
We think the words "previously" and "and" are missing from that quote, and that that sentence should read
"… agreed with the proposition that there was no further leak, but she had not previously noticed that the leaked water had seeped into her wardrobe, and dampened her clothes, which then became mouldy."
The Tribunal noted the respondent's evidence that the appellant attended the office of the managing agent on 13 November 2019 and advised the managing agent that her clothes were mouldy (and the carpet wet), and that this was the first time such a complaint had been made. The managing agent issued a work order on 14 November 2019 to have the carpets in the wardrobe professionally cleaned and this was done on 20 November 2019.
The Tribunal said that it was satisfied that the managing agent had acted promptly at the time the leak was reported to it and also when wet carpet (and mouldy clothes) was reported to the managing agent on 13 November 2019.
The Tribunal said there was no evidence from the appellant that the respondent or the managing agent knew about the leak prior to 4 November 2019, nor was there any basis or reason to suspect that a leak was about to happen before that date.
In those circumstances, the Tribunal held that there had been no breach of s 63(1) of the RTA by the respondent and therefore it was not appropriate to make any award of compensation in favour of the appellant.
The Tribunal said that if it was wrong about there being no breach of s 63(1) of the RTA, it nevertheless would have found that the appellant had not established, on the balance of probabilities, a reasonable amount of compensation for any of the items of clothing because there was a lack of clear evidence as to what items were damaged (the photos showed only bundles of allegedly damaged clothing, and there was no itemised list of the allegedly damaged clothing), there was no evidence of the original cost of the allegedly damaged items, there was very limited evidence of the age of any of the items (and that evidence was very general). In those circumstances the Tribunal said that the appellant had not established, on the balance of probabilities, a reasonable amount of compensation for any of the items.
The Tribunal therefore dismissed the appellant's claim in relation to her clothing.
[2]
The Appeal
The appellant appealed.
In the appellant's Notice of Appeal, she said that her ground of appeal in relation to the deduction of $150 for cleaning the property was that the property was dirt free when she left. In relation to her claim for compensation she said that the decision not to grant compensation was unfair because her clothes were in perfect condition and were still wearable before they became mouldy.
The appellant also sought leave to appeal on the ground that the decision was not fair and equitable. She said it was not fair and equitable because she had to buy more clothes to replace the damaged ones, she felt the decision was not fair and equitable, and it caused her to feel depressed having to spend money intended for the care of her child who had a disability.
On 4 June 2020 the Appeal Panel directed the appellant to lodge with the Tribunal and provide to the respondent by 2 July 2020:
1. all the evidence provided to the Tribunal below on which she intended to rely;
2. any fresh evidence which she intended to seek leave to rely;
3. her written submissions in support of the appeal; and
4. the sound recording of the hearing at first instance if what happened at the hearing was being relied on and a copy of the relevant parts.
The appellant did not comply with any of those directions. That is regrettable. It is to be hoped that these reasons are interpreted to the appellant in her native language, and that she will now understand, if she did not understand previously, that compliance with directions of the Tribunal and Appeal Panel are not optional, but obligatory.
The appellant appeared for herself on the appeal assisted by a Mandarin interpreter.
In her oral submissions the appellant was asked in what way was the Tribunal's decision wrong. In answer the appellant said that she hadn't finished her part of the evidence as yet because her son had asthma.
The appellant said she had asked the respondent many times to repair but that they didn't repair until she had moved out. She said the damage to the cupboards was not her responsibility.
The appellant said that during the hearing at first instance the Tribunal Member talked over the appellant, interrupted her and did not understand the appellant's language. She asserted that she had been discriminated against by the Tribunal. She said that she felt she was being attacked by reason of her cultural background and her language. She asserted that some information was not interpreted by the interpreter assisting her at the hearing. She also complains that the telephone line was poor.
[3]
Decision
The accepted and correct approach in the Appeal Panel in relation to self-represented appellants is 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 - Cominos v Di Rico [2016] NSWCATAP 5 at [13] and the cases cited therein.
Having undertaken that exercise here, it is our opinion that the Tribunal erred in law in two respects.
First, although it did not say so expressly, it is apparent that the Tribunal held there was no breach of cl 18.3 of the lease [being the term implied by s 63(1) of the RTA] unless the conditions of s 65(3A) were satisfied, namely that the respondent had notice of the need for the repair, or ought reasonably to have known of the need for the repair. This is incorrect.
Section 65 is concerned with repairs, not damage to a tenant's property. A reading of the section, set out at [15] above, reveals that it is directed to repairs, and the "obligation" referred to in sub-s (3A) is the obligation on landlords to repair. In terms, it is not directed to damages to a tenant's possessions which may be caused by a breach of the term implied by s 63(1).
The proper test the Tribunal should have applied is that set out in cl 18.3 of the lease [reflecting the terms of s 63(1)] namely, whether the respondent breached its obligation to keep the premises in a reasonable state of repair considering the age of, the rent paid for and the prospective life of the premises. The Tribunal did not apply that test.
As is clear, landlords need only keep premises in a reasonable state of repair, not a perfect state. Whether the damage to the appellant's clothing resulted from the respondent's failure to keep the premises in a reasonable state of repair, or it occurred notwithstanding the premises were kept in a reasonable state of repair, was a question not addressed by the Tribunal and one we are unable to answer on the material before us.
The Tribunal's second error of law was in the Tribunal's finding that the appellant's case failed because there was a lack of clear evidence (as distinct from a lack of any evidence) of quantum. The Tribunal relevantly said there was a
"… lack of clear evidence of what items were damaged …. there is no evidence of original cost of purchase of any of the items; there is very limited evidence of age of any items."
The Tribunal said that therefore the appellant had not established, on the balance of probabilities, a reasonable amount of compensation for any of the items.
In so finding, in our opinion, the Tribunal failed to apply the correct legal principles.
In Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 the Appeal Panel said:
"[57] In relation to the complaint that the tenant had failed to substantiate the cost of the goods she claimed were damaged, the sound recording confirms that while the Member was critical of some aspects of the tenant's presentation of her documentary evidence, he was equally critical of the landlord's presentation of its evidence. The discussion during the hearing, and the Member's reasons, indicate that he advised both parties of his concerns as to the shortcomings in their evidence, and provided them with an opportunity to respond.
[58] On the issue of quantification of the amount of compensation to be awarded, the Member's reasons indicate that he approached that issue in an orthodox way. As discussed by the Appeal Panel in Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117, provided that some evidence of loss or damage has been produced, difficulty of assessment is not a bar to the assessment of damages, and where precise evidence is not available, the court or tribunal must do the best it can. The tenant had the onus of proving that the amount she claimed represented the losses suffered by her. While she did not substantiate the age or purchase costs of the items, the tenant had produced evidence in the form of photographs of items damaged by mould. In those circumstances the Member was entitled to estimate the value of the damaged items. His conclusion that the tenant should be allowed 30% of the amount claimed was open to him."
(Our emphasis)
That principle is well settled. In Searle v Commonwealth of Australia [2019] NSWCA 127 Bell P, with whom Bathurst CJ and Basten JA agreed, cited with approval the well-known passage from the judgment of Mason CJ and Dawson J in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1994] HCA 54 at 83
"[203] In Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1994] HCA 54 at 83 (Amann), Mason CJ and Dawson J said:
'The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J. went so far as to say that the 'assessment of damages … does sometimes, of necessity involve what is guess work rather than estimation'. Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reasons of contingencies is not a reason for a court refusing to assess damages. (Footnotes omitted)'"
Some evidence of loss was given. There were photographs of the damaged clothes, the appellant gave apparently unchallenged evidence they were damaged by mould, there was (it would seem) no evidence of any other possible cause of the mould, there was some evidence of the age of various items of clothing and there was some evidence of the cost of replacing that clothing.
It is true the evidence was not clear, as the Tribunal said, but the lack of clear evidence does not equal the absence of any evidence. It is hardly surprising that the appellant did not have receipts relating to the purchase of her clothing, we doubt whether many members of the community would keep such receipts. The photographs could have been better, and a list of the items would have been helpful, but the appellant is self-represented, English is not her first language and there are some cultural differences.
Nevertheless, at the end of the day, and accepting the evidence could have been more clear, there was some evidence on quantum and, as difficult as it may have been to assess damages, the Tribunal ought to have done the best it could with the evidence it had before it and assessed the quantum of the damaged clothing.
As for the appellant's appeal from the finding that she was liable to the respondent for $150 for cleaning the property, we cannot discern any error in the Tribunal's decision on the material the appellant has placed before us.
[4]
Conclusion
In our opinion the Tribunal erred in two respects, and the appellant's case in relation to her clothing will need to be re-heard.
[5]
Orders
We make the following orders:
1. Appeal upheld.
2. The appellant's claim in relation to the alleged damage to her clothing is to be reheard by the Tribunal differently constituted.
3. Should the appellant succeed in her claim in relation to her clothing, the order made by the Tribunal that the respondent pay to the appellant the sum of $466 may be varied accordingly.
[6]
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: 26 August 2020