A L Lindsay & Co Pty Ltd v Stickel [2023] NSWCATAP 195
Catchwords: LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Rent reduction---Withdrawal or reduction of facilities---Failure to repair---Quantum of rent reduction---Applicable principles –Questions of law--leave to appeal—reasons inconsistent with orders--remitter
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation:
A L Lindsay & Co Pty Ltd v Stickel [2023] NSWCATAP 195
Hearing dates:
28 February 2023
Date of orders:
18 July 2023
Decision date:
18 July 2023
Jurisdiction:
Appeal Panel
Before:
G Sarginson, Senior Member
M Gracie, Senior Member
Decision:
(1) Appeal allowed, in part.
(2) Matter remitted to the Tribunal Member at first instance to determine whether the amounts identified in Orders 1 and 2
are amended to reflect
the amounts in paragraph [19] of the reasons dated 2 December 2022 in Matter RT 22/31478 or whether paragraph [19] of the reasons is amended to reflect the amounts identified in
Orders 1 and 2.
(3) Appeal otherwise dismissed.
(4)
Any party seeking to make a costs application is to inform the Appeal Panel and the other party in writing within 14 days of the date of this decision that a costs application is made.
Catchwords:
LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Rent reduction---Withdrawal or reduction of facilities---Failure to repair---Quantum of rent reduction---Applicable principles –Questions
of law--leave to appeal—reasons inconsistent with orders--remitter
Legislation Cited:
Civil and Administrative Tribunal Act 2013
( NSW)
Civil and Administrative Tribunal Rules 2014
(NSW)
Public Health (COVID-19 Self-Isolation) Order 2022
(
NSW)
Residential Tenancies Act 2010
(NSW)
Cases Cited:
Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111
Bannister v Cheung
[2014] NSWCATCD 105
Bhandari v Laming [2015] NSWCATAP 224
BHP Billiton Ltd v Dunning [2015] NSWCA 55
Clements v Independent Indigenous Advisory Committee (2003) 131
FCR 28; [2003] FCAFC 143
Collins v Urban [2014] NSWCATAP 17
Cominos v Di Rico [2016] NSWCATAP 5
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54
Croghan v Rees [2021] NSWCATAP 328
Dimunova v Vega [2017] NSWCATAP 5
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
DVE18 v Minister for Home Affairs (2020) 276 FCR 401; [2020] FCAFC 83
Geracitano v Cloughessy [2021] NSWCATAP 329
Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231
Goncalves v Bora Developments Pty Ltd; Bora Developments Pty Ltd v Goncalves [2020] NSWCATAP 9
Hayes v Williamson [2015] NSWCATAP 268
House v The King (1936) 55 CLR 499
Hu v Roggeveen [2022] NSWCATAP 295
Independent Liquor and Gaming Authority v D & D Natural Health Pty Ltd
[2021] NSWCATAP 170
Lazaris v Kale [2022] NSWCATAP 36
Makowska v St George Community Housing Ltd [2021] NSWSC 287
McKerlie v Leeser; Leeser v McKerlie [2023] NSWCATCD 6
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27; [2004] FCAFC 263
Newport v Pittman [2022] NSWCATAP 150
NSW Land and Housing Commission v Orr [2019] NSWCA 231
Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 196 ALR 257
Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Roberts v NSW Aboriginal Housing Office
[2017] NSWCATAP 9
Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39
STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022]
NSWCATAP 98
Tuckwell v Ientile [2022] NSWCATCD 124
Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260
Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133
Watson v Chen [2022] NSWCATAP 44
Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123
ZEJ v ZEL [2018] NSWCATAP 252
Texts Cited:
None cited
Category:
Principal judgment
Parties:
A L Lindsay & Co Pty Ltd (Appellant)
Alicia Stickel (Respondent)
Representation:
M Ardern, Agent (Appellant)
Respondent (Self-represented)
File Number(s):
2022/378288
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
Civil and Administrative Tribunal
Jurisdiction:
Consumer and Commercial Division
Citation:
N/A
Date of Decision:
02 December 2022
Before:
S De Jersey, Tribunal Member
File Number(s):
RT 22/31478
REASONS FOR DECISION
Introduction
The appellant
landlord (‘landlord’)
appealed from
a decision
made
in the Commercial and Consumer Division of the Tribunal ( ‘ Tribunal ’ ) on 2
December
2022 ,
making orders
in relation to the maximum rent
that was payable
over a
12-month
period
by the respondent tenant ( ‘ tenant ’ ) .
The dispute involved the provisions of the
Residential Tenancies Act 2010
(NSW) ( ‘ Act ’ ) .
The tenant ’ s occupation of the premises was
pursuant to
two
Residential Tenancy Agreements ( ‘ RTAs ’ ) :
RTA dated 17 August 2017 ( ‘ first RTA ’ )
for a 12-month
term,
commencing on 8 September 2017
and ending on 9 September 2019, with a subsequent holding over until 4 March 2022 .
The
rental
bond
was $3,400 ; and
RTA dated 24 February 2022 ( ‘ second
RTA ’ )
for a 6-month term, commencing
on
4 March 2022 and ending on 3 September 2022 .
The rental bond was noted on the second RTA as
“ held . ”
The tenant vacated the premises on 17 July 2022 .
The rent under the first RTA was
$ 850 per week and
was
increased to
$875 per week from July 2021 until
4
M arch 2022 .
The rent was reduced to $750 per week
when
the second RTA
commenced
on 4 March 2022.
The
Tribunal found that the reduction of the rent
w as attributable to a request
made by
the tenant
in February 2022
when the tenant ’ s family arrangements changed and her husband was hospitalised:
[5] .
That
finding was consistent
w ith
the
relatively short duration of the
second RTA
of 6 months
and
it
being signed on 23 February 2022 ,
with the reduced rent of $750 per week commencing from 4 March 2022 .
The tenant and her family occupied the premises: [5] .
The Tribunal described the premises as a
3 or 4 bedroom
home (depending on its configuration) with a large outdoor studio : [5] .
The Tribunal
also
found at [5]:
During the
tenancy,
the tenant undertook
a number of
repairs and
improvements
at her cost and with the consent of the landlord such as interior painting
[and]
planting a rear garden. The landlord also undertook
a large number of
repairs and responded promptly to
issues.
The tenant filed
an
Application ( ‘ A pplication ’ )
in the Tribunal
on 13 July 2022
(i.e. 4 days before the end of tenancy) ,
seeking an order
that
the
weekly rent
to be reduced to
$288.46
under s 44(1)(b)
of the Act
on the basis
that the rent was excessive due to the landlord ’ s reduction or withdrawal of services or facilities ,
and/ or
s 45 where the premises were unusable or uninhabitable .
The tenant also sought an order under
s 65(1) (a)
of the Act
requiring the landlord to carry-out repairs.
As in this appeal, at the hearing before the Tribunal, the tenant was self-represented and the respondent ,
with
leave
granted on 18 January 2023,
was
represented
by Ms
M
Ardern .
Ms Ardern
i s
a
property
manager
at the licensed agent with whom the landlord had a managing agency agreement. The agent
was the entity responsible for approving maintenance and repairs and for making payments of trade invoices
on behalf of the landlord , subject to the instructions of the landlord
and the terms of the managing agency agreement between the landlord and the agent .
Mr A Lindsay , a director of the appellant, attended the hearing below and the hearing of the appeal.
Decision of
the Tribunal
The tenant ’ s
A pplication was filed with the Tribunal on
29 September 2022 .
At the hearing before the Tribunal on 25 November 2022, the tenant was given leave to amend her Application to also bring a claim for compensation
The tenant ’ s claims
pursued at the hearing are
set out at [2] of
the Tribunal
reasons ,
as:
Rent reduction under 44(1)(b) of the A ct,
claiming $288.46 per week
for the last 12 months of the tenancy from 16 July 2021 to 15 July 2022,
due to
the landlord ’ s alleged failure to address issues of water ingress and mould in the premises.
Compensation of $1,965.04 comprising:
$500 for loss of quiet enjoyment;
$1,250 for the tenant ’ s time, and that of her daughter, to clean the premises at the end of the tenancy; and
$215.04 for the cost of cleaning products.
The Tribunal
found that
it was not satisfied that
the
tenant had
established the grounds required to make the orders sought by
her .
The
factual
issues
considered by
the Tribunal are
at [ 7]- [1 8] and
the relevant findings
are
summarised
as follows
at [19] ] :
During the period
from 16 July 2021
to 25 November
2021 ,
there were :
… ongoing issues with the outdoor studio
“ which had water leakage
issues and the landlord knew it was leaking as complaints had first been made on 26 March 2020
and the landlord knew that effective repairs could not be made .
26 November 2021 to the end of the tenancy on
15 July 2022
was :
… the period
in the main house there were
a number of
leaks and resultant mould and it had been reported on
26 November 2021 by the tenant, but the issues not rectified until after the tenant vacated .
Despite the rent
being lower
for other reasons and despite the tenant knowing the condition of the property as being old when she moved in ; these factors do not exempt the landlord from
the
obligations under s 63 of the Act. I am satisfied that the roof or at
least a major
repair was needed to the studi o
and the house to stop leaks, and these
repairs were not done during the tenancy which caused a significant reduction in amenity . Nor is it an answer to say the tenant could have vacated without penalty. The tenant was entitled to
live in a house with her family without concern of regular lea ks and the
resultant
mould which I accept she had to
spend
many hours cleaning just to provide a clean environment
for her children.
At [20], the Tribunal
said:
I
reject the landlord’s submission
that the tenant refused entry and this should
have
been
taken into consideration. I accept the tenant’s evidence that they had COVID and this was the reason why the [landlord’s]
contractors
were not permitted access; this was
more
than reasonable.
The Tribunal
ordered :
for the reason s
set out at [19] -[20 ]
that :
the rent to be reduced to n o t exceed $650 per week from 16 July 2021 to 25 November 2021;
the rent to be reduced to n ot exceed $ 500 per week from 26 November 2021 to 15 July 2022 ; and
for the reasons set out at [ 21]- [22] ,
that
the balance of the Application be dismissed, including the claim for compensation ,
except for the claim of $500 for the loss of quiet enjoyment of the premises .
The amount paid by the tenant for rent
in excess of
the
prescribed rent ordered in the rent reduction be repaid to the tenant immediately.
The Tribunal
did not make
a finding
or money order
that
quantifi ed
the amount that was payable to the tenant
in
respect of the
consequential over-payments , including
the amount allowed for the loss of quiet enjoyment .
On the appeal,
this created some
uncertainty
as to the amount
payable to the tenant .
Further, despite making a finding
at [23] that the tenant was
entitled to damages of $500 for loss of quiet enjoyment
due to the
effect
of water leaks in the premises that caused mould and constant cleaning by the tenant, the Tribunal did not make a
money order that the landlord pay the tenant $500.
On the appeal ,
t he
tenant
quantified th e
sum
payable to her
as
follows:
Excess rent of
$4,275
paid
by the tenant
for the period
16 July 2021 to 25 November 2021
($225 x 19 weeks) ;
Excess rent of
$5,250
paid
by the tenant
for the period
26 November
202 2
to
3 March
2022
($375 x 14 weeks) ;
Excess rent of $4,750
paid by the tenant for the period from 4 March 2022 to 15 July 2022 ($250 x 19 weeks)
Compensation of $500 for loss of quiet enjoyment.
The
landlord did however contend that Orders 1 and 2 are inconsistent with the findings made by the Tribunal in [19 ] , which would
instead
equate to a
reduction
in rent of
$10,185.71 .
Despite the parties
disputing whether the reasons of the Tribunal were inconsistent with the orders of the Tribunal, neither party made an application to the Member to
amend the decision under s 63 of the
Civil and Administrative Tribunal Act 2013
(NSW)
( ‘ NCAT Act') .
Further, neither party made an application
to the Tribunal
to vary the orders
under s 188 of the Act .
Grounds of a ppeal
The Notice of
A ppeal was lodged within time on
15 December 2022 : r 25 of the
Civil and Administrative Tribunal Rules 2014
(NSW) ( ‘ NCAT Rules ’ ) .
The
landlord
contended
in the Notice of Appeal
that the
“ rent reduction s
ordered
are excessive and the amounts ordered are
requested to be substantially decreased or
completely
disregarded . ”
The landlord sought leave to appeal .
The re
were
five
grounds of appeal
raised
by which the
landlord
in seeking leave on the basis that
the Tribunal ’ s decision was
“ not fair and equitable . ”
The
lan d lord also sought leave
on the basis that the decision was
“ against the weight of the evidence. ”
I n
summary
(and
using our
brief
description
for convenience) ,
th e first five
grounds , contending that the decision was
“ not fair and equitable ”
are :
Ground 1: Studio
– lack of reasons ; no evidence
The rent reduction for the period
16
July 2021 to 25 November 2021 was not reasonable and is excessive.
The reduction related to the outdoor studio.
The order was made
with no supporting factors or evidence.
There is no explanation
o f the calculation by whic h the
amount
of the reduction
was
o rdered.
The reduction
is a 26% reduction in rent for a minor issue in a secondary building on a very large property of which the studio building was a minor part.
Ground 2:
House – lack of reasons ; no evidence
The rent reduction
f or the period 26 November 2021 to the end of the tenancy on 15 July 2022
i s unreasonabl e and
excessive. The orders
were
made
with
a
lack evidence,
re asons
or precedent. A 30% reduction in the rent has been ordered
e ven though the house was habitable in all rooms and the tenant continued to use
t he kitchen, two bathrooms,
the
living room, a sunroom, and three bedrooms. The tenant did not claim
or provide evidence that
the house was uninhabitable.
Ground 3: relevance of market rent – failure to have regard to material evidence
The rent reductions show a lack of understanding and consideration of the significantly lower than market rent
already
paid by the tenant.
The
T ribunal did not
have
regard to the fact that the tenant was paying a rent
commensurate
with the condition of the house. The
T ribunal did not
refer to
evidence or
provide
reasons for
its
calculations , including
d ocumentary evidence
of
government statistics
and
market rents
p rovided by the respondent.
The tenant was over-compensated
by the orders made for the rent reduction .
Ground 4: Impossible to undertake repairs due to weather
The rent reductions c over a period when it was physically impossible for the landlord
to
compl y
with its obligations
of repair
because of extraordinary weather.
Ground 5: COVID
–
no
evidence
The rent reduction covers a period when the tenant claimed to have
COVID
for more than two months and refused access for repairs, but no medical evidence was provided to support that claim.
Decision against the weight
of evidence
The
landlord
contended
that the Tribu na l
should have given more weigh t
to its evidence
and less weight to the
tenant ’ s
evidence .
In summary, t he evidence
to which the landlord
referred
in
support of that contention
included:
The landlord p rovided a professional ly prepared
site plan of the
outdoor
studio
and the house
with
relevant
measurements . The
a rea of repair was
said by the
la n d lord
to be
only one metre in length, which
when
compared to the overall size of the
studio , was very small.
In relation to the house, r epairs were required to one room during 2021 and two repairs
were made
to the roof during 2022. The site plan depicts the
o verall size and configuration of the
house .
The orders do not reflect the minor scale of the loss of amenity.
A s tatutory declaration
was
provided by the builder
and a ttested to the roof
being
in
reasonably good repair ,
that the landlord always approved repairs ,
the extraordinary weather preventing further repairs
and the tenant
refusing a ccess for those repairs
to be undertaken .
Statistics from the
R ental
B ond
B oard showed actual prices for houses rented in the same subur b
w ith
a
c om parable
number of
bedroom s .
The r ent reduction did not reflect the substantial discount to the market
rent
t hat the tenant was
already
receiving.
The
T ribunal did not
give
appropriate weigh t
to the
landlord ’ s
r ecords of repairs , work orders
or
work paid for , including
copies of invoices for repairs.
An email from the landlord ’ s agent to the tenant
offered to
releas e
the tenant from
her
lease obligations
and vacate without penalty,
due to
r epairs being delayed
as a result of
adverse weather. The tenant chose to stay in the house regardless ,
knowing that repairs were to be delayed.
After the
landlord ’ s
inability to undertake repairs , t he tenant
w aited another three months
before
giving
notice to vacate
and
claiming excessive rent only two days before the end of the tenancy.
Excessive weight was given to the
market value of the studio .
Th e
market
rental
for the house
would be the same without the
studio.
The photographs provided by the
t enant
were not identified by date,
location
or scale.
The tenant did not provide
e vidence
f rom a professionally qualified person in relation to the condition of the house or the re pairs
required .
New evidence
The
landlord
also sought
to adduce
new evidence , namely:
Evidence f ro m the builder who attended the premises
“ on multiple times ”
to
give oral evidence ;
Evidence of Bureau of Meteorology rain records between November 2021 and
March 2022.
Reply
to Appeal
Th e tenant
lodge d a
R eply
to Appeal
on 9 January 2023.
The tenant
contended that
the Tribunal ’ s findings
were
“ reasonable and accepted ”
and supported by
“ substantial evidence . ”
The tenant accepted
in the Reply to Appeal
that leave to appeal was necessary
and
leave
to appeal
being
granted was
not
opposed .
Parties’ submissions
Th e
landlord
lodge d
it s
evidence
and
written
submissions
on
8 February 2023 .
The tenant lodged her evidence
and
written
submissions
on 27 February 2023 .
Procedural directions made on 18 January 2023 directed th e tenant ’ s
documents to be lodged on
22 February 2023 .
Despite som e
op p osition
made in the landlord ’ s written
submissions
to the tenant relying on th at material
given
its
late
lodgement ,
it was a
short delay
of
three
business days
and there was no prejudice
established
by the
landlord . We
a llow ed
the tenant
to rely upon
her
evidence and submissions
in the appeal .
No sound recording or transcript of the hearing was
provided by either party .
Both parties delivered oral
submissions
at the hearing of
t he appeal.
W e
will
dea l
below
with the detail of the parties ’
evidence and
their
submissions in
our consideration
of
the
issues
raised on the appeal .
Statutory basis of an appeal
Section 80(2) of the NCAT Act provides that an internal appeal (which this is) may be made as of right to the Appeal Panel on a question of law and otherwise with the leave (that is, with the permission) of the Appeal Panel .
The
requirements for
the granting of
leave
to appeal from a decision of the Consumer and Commercial Division is
set out
in
cl 12(1) of Sch
4 of the NCAT Act.
An internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case. In
Ryan v BKB Motor Vehicle Repairs Pty Ltd
[2017] NSWCATAP 39
(
Ryan v BKB
) , the Appeal Panel said 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.
Leave to appeal
As we have
stated above , the
landlord seeks lea v e to appeal
and this was not opposed by the tenant in her Notice of Reply .
Irrespective of the tenant ’ s position, we are required to
satisfy ourselves that the
appellant ’ s grounds
for seeking leave to appea l
meet the statutory requirement s
in
s 80(2) and
cl 12(1) of Sch
4 of the NCAT Act.
In
Collins v Urban
[2014] NSWCATAP 17 (
Collins
), the Appeal Panel stated at [76] 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
, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that:
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;
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.
Even if an appellant from a decision in 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
, the Appeal Panel at [84] 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.”
Questions
of law
Although the landlord framed its appeal as seeking leave to appeal in respect of all grounds and did not characterise any grounds of appeal as involving questions of law, we will first consider whether any of the grounds might raise a question of law.
In
Prendergast v Western Murray Irrigation Ltd
[2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exclusive list of questions of law ,
including :
Whether there has been a failure to provide proper reasons.
Whether the Tribunal identified the wrong issue or asked the wrong question.
Whether a wrong principle of law had been applied.
Whether there was a failure to afford procedural fairness.
Whether the Tribunal failed to
take into account
relevant (i.e., mandatory) considerations.
Whether the Tribunal
took into account
an irrelevant consideration.
Whether there was no evidence to support a finding of fact.
Whether the decision is so unreasonable that no reasonable decision-maker would make it.
A
question
of law will also
arise if it is contended that
there
wa s a material failure by the Tribunal to respond to a
“ substantial, clearly articulated argument relying upon established facts ”
that may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction:
Dranichnikov
v Minister for Immigration and Multicultural Affairs
(2003) 77 ALJR 1088 ;
[2003] HCA 26
at [24] – [25] ( Gummow
and
Callinan
JJ; Hayne J agreeing at [95]);
DVE18 v Minister for Home Affairs
(2020) 276 FCR 401; [2020] FCAFC 83 at [34]; followed by the Appeal Panel in
Goncalves v Bora Developments Pty Ltd
[2021] NSWCATAP 231 (
Goncalves
) at [9(2)].
If the
T ribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued ,
its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error:
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)
(2004) 219 ALR 27; [2004] FCAFC 263 at [63] .
A failure to deal with evidence may also in the appropriate circumstances
raise a question of law .
This may
be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence .
B y s 38(6)(a) of the NCAT Act, the Tribunal
“ is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings. ”
This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance :
Goncalves
v Bora Developments Pty Ltd; Bora Developments Pty Ltd v Goncalves
[2020] NSWCATAP 9
at [28 ] ;
Croghan v Rees
[2021] NSWCATAP 328 (
Croghan)
at [40] .
Where the appellant is self-represented
(or not represented by a legal practitioner)
, it is appropriate for the
Appeal Panel to review the grounds of appeal, the material provided
by the parties
and the
Tribunal’s d
ecision
which is being challenged
to
ascertain
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
(
Cominos
)
at
[13]
.
Where a party or both parties are legally represented, there is an expectation that they will identify any questions of law (
STAR Training Academy Pty Ltd v Commissioner of Police (No 2
)
[2022]
NSWCATAP 98) but otherwise the Appeal Panel should assist by identifying any questions of law having regard to the Notice of Appeal and the parties’ submissions:
ZEJ v ZEL
[2018] NSWCATAP 252 at [8]-[11].
Also ,
the
statutory
provisions
that
apply in the Tribunal
includes
38 (4) of the NCAT Act,
which
provides:
The Tribunal is to act with as little formality as the circumstances of the case permit and
according to equity, good
conscience
and the substantial merits of the case without
regard to technicalities or legal forms .
In having regard to s 38(4), the Appeal Panel in
Newport v Pittman
[2022] NSWCATAP 150
(
Newport
)
said
at [15]
that
“…
it
would deprive the
appellant of procedural fairness if it did not recognise that it had articulated a question of law, albeit orally, namely that there was an absence of reasons to support the orders
under appeal. A failure to forward a party procedural fairness will
in itself constitute
an
error of law: see
Clements v Independent Indigenous Advisory Committee
(2003) 131
FCR 28; [2003] FCAFC 143 at [8].
Consideration
Ground 1: Studio – lack of reasons;
evidence
Ground 2: House -
lack of reasons; no evidence
Grounds 1 and 2 as we have
described
them above,
essentially
raise the same issues of a lack of reasons and no evidence in support of the Tribunal ’ s findings .
We have ,
for convenience ,
dealt with them together .
G round 1
contended that the Tribunal
made the orders for rent reduction in respect of the outdoor studio
“ with
n o supporting factors or evidence and
fail ed
to
“ make clear ”
or having
“ explained the
calculation ”
by
which
rent
reduction
w as determined .
Similarly , ground 2
in respect of the house,
contended that
the
“ orders were also made on
lack
of
evidence, reason or precedent ”
and
“ no evidence ”
that the
relatively large
house ,
was
“ uninhabitable ” .
Relevant principles - lack of reasons
At [21], the Appeal Panel in
Newport
said:
A Tribunal must state clearly the reasons relied upon to justify its findings. In
Resource Pacific Pty Ltd v Wilkinson
[2013] NSWCA 33 at [46],
Basten
JA said that a “
pragmatic and functional approach”
is to be applied in determining whether the obligation to give reasons has been satisfied. At [48] His Honour stated that the function of the appellate court is “to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power.”
In
NSW Land and Housing Commission v
Orr
[2019] NSWCA
231
(
Orr
) ,
Bell P ,
(Ward JA at [109] agreeing)
discussed the
“ relevant principles ”
in relation to the provision of reasons at [65]-[7 7 ]
(from which we have extracted the following):
65. One may begin with the observation that the quality of a court or tribunal’s reasons can vary immensely, of course, depending upon a range of considerations including the experience and skill of a judicial officer or tribunal member, the complexity of the subject matter, the quality of the submissions made before the court or tribunal, the availability of transcript, the urgency of the matter and the time the judicial officer or tribunal member
has to
compose his or her reasons.
…
66.
In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard:
Resource Pacific Pty Ltd v Wilkinson
[2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection:
Bisley Investment Corporation v Australian Broadcasting Tribunal
(1982) 40 ALR 233 at 255 (Bisley).
…
68.
In terms of the former parameter, the
quantity (or detail) of reasons
, necessary for those reasons to be adequate may vary both with the
nature of the decision maker
, i.e.
whether or not
it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the
nature of the question being decided
:
Wainohu
v New South Wales
(2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and
Kiefel
J ( Wainohu ).
…
69.
An important question which is raised by the present case concerns the detail of reasons required of NCAT for a
discretionary
decision, particularly bearing in mind that there is no
right of appeal
from the Tribunal’s decision other than on a question of law (although a broader appeal may be permitted with leave of the Appeal Panel): see [30] above.
70. As to the latter parameter identified by
Basten
JA in
Resource Pacific
, namely the
quality of reasons
, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court.
71. That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which
is capable of affecting
the lives of citizens in profound ways, there are certain minimum characteristics that a
Tribunal’s reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party):
(a)
the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)
the Tribunal's understanding of the applicable law, and
(c)
the reasoning processes that lead the Tribunal to the conclusions it made.
72.
Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed.
…
74 .
In
Tatmar
at 386, Mahoney JA (as he then was) observed in the context of the obligation to give reasons for a discretionary judgment that it was not necessary for a judge:
"who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to
itemi[s]e, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see
O'Hara v Evans
(Court of Appeal, 23rd
September
1976, unreported;
Colacicco
v
Colacicco
(Court of Appeal, 15th March, 1977, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see
Selvanayagam
v University of the West Indies
[1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824 at 826.
But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it."
…
These principles were
summarised and applied
by
the Appeal Panel in
Origin Concepts Pty Ltd v Wynne
[2022] NSWCATAP 31 at [20]-[23]
and
Volkswagen Group Australia Pty Ltd v Saad
[2022] NSWCATAP 133 at [58].
In summary, the reasons to be given by the Tribunal
should make
the basis for the decision apparent .
The features that are required for reasons to be adequate are set out in s 62(3) of the NCAT Act
referred to above in
Orr.
Were the Tribunal’s reasons adequate?
We have set out the Tribunal ’ s reasons
for
reducing the rent
at [1 0 ] above .
As we
have
stated above
t hat part of the
Trib un al ’ s reasons
followed
its consideration of the evidence
at
[7] (in relation
to
the studio) and [8]- [ 18]
(in
relation
the
house) .
In our view, the approach taken by the Tribunal was to allow a notion al
amount for the rent reduction without reference
to the specific type of
calculations
relied upon in the Notice of Appeal and the
landlord ’ s
submissions
on appeal .
It is correct that t here was no precise methodology
applied
by the
T ribunal to find the amounts of rent to be reduced .
Applying an exact mathematical calculation may not always be appropriate
or possible .
The amount claimed by the
tenant
was clearly regarded
by the Tribunal
as
excessive .
Yet
the
landlord
did not conduct its case
below
on the basis that
the calculations now relied upon in its
N otice of
A ppeal were
relevant
in any respect .
That
i s because ,
as observed by the Tribunal at
[15],
the
appellant ran a case that no
reduction
of any amount should
allowed .
The
landlord ’ s agent
confirmed in
oral submissions
at the hearing of the appeal that
there was no percentage loss of any areas identified
by it at the hearing below
as
being
unusable .
That
wa s
not
how the landlord ’ s
case
was
put on appeal .
It was in effect a new case
that was
not put below .
There was no calculation provided
to the Tribunal
of the area of
affected
parts of the studio or house .
There was
a
site plan
in the landlord ’ s evidence lodged on 8 February 2022 (Item 15 at page 17) .
It
was common ground
(by reference to that site plan and other evidence)
that
there were affected areas of the premises .
The Tribunal regarded th e absence of proper repairs
as
causing
“ a significant
reduction
in amenity ” :
[19]
(our emphasis) .
The rental reduction was to reflect that loss , which was
unquantified by
any methodology offered by
the landlord .
Doing its best to
allow some reduction
of rent by
reference to
the evidence
considered by the
T ribunal
in rel a tion
to water ingress and the presence of mould in the
premises and
having
rejected
the
amount
of the reduction
claimed
by the tenant as not
having been established, the landlord offered
no alternative
case or any
means of quantifying that reduction
in the event
any reduction
was allowed. The case advanced by the landlord was, as we discuss
further
below,
solely
based on the proposition
that
the rent payable under the RTA was already discounted
from comparable market rents for such premises in that
particular location
in the
suburb of
Mosman , and
in those circumstances,
there should be
no further reduction
of
rent .
The Tribunal rejected th e landlord ’ s
contention
and
did its best
on the evidence before it and
having regard to
the competing contentions of the parties,
to award an amount to reflect its finding that there was a
“ significant loss of amenity . ”
In
Commonwealth v Amann Aviation Pty Ltd
(1991) 174 CLR 64;
[1991] HCA 54
(
Amann
)
Mason CJ and Dawson J
held
at
83
(Toohey J at 134 and
Gaudron
J at 153 making similar observations) :
“ 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
(1971) 124 CLR 303, 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”: at 308. Where precise evidence is not available the court must do the best it can. And uncertainty …
is not a reason for a court refusing to assess damages.” (citations omitted)
In
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd
[2003] HCA 10 ; (2003) 196 ALR 257
(
Placer
)
at [38] ,
Hayne J said (with Gleeson CJ,
McHugh
and Kirby JJ at [6] agreeing):
“[38]
It may be that, in at least some cases, it is necessary or desirable to distinguish between a case where a plaintiff cannot adduce precise evidence of what has been lost and a case where, although apparently able to do so, the plaintiff has not adduced such evidence. In the former kind of case it may be that estimation, if not guesswork, may be necessary in assessing the damages to be allowed.
References to mere difficulty in estimating damages not relieving a court from the responsibility of estimating them as best it
can
may
find their most apt application in cases of the former rather than the latter kind. …” ( citations
omitted)
We are satisfied, having regard to the principles referred to above, that
the
amounts for the rental reduction allowed by the Tribunal
w ere
not, as put in oral
submissions
on behalf of the landlord,
“ plucked out of the sky . ”
T he
Tribunal ’ s
reasons at [19]
are
sufficient to show that some reduction was warranted
and the amount allowed was
necessarily
a notional amount
where
the
case put by the parties
on the evidence before
the Tribunal
did not
permit a more detailed or mathematical approach
in
quantifying th e
reduction
of
the
tenant ’ s
“ significant loss of amenity ” .
In
McKe
r
lie
v
Leeser
;
Leeser
v
McKerlie
[2023] NSWCA T CD 6
(
McKe
r
lie
v
Leeser
)
, the Tribunal held
at
[124]-[125] ;
124.
Even if a tenant is not entitled to a rent reduction under s 44 (1) (b) of the RT Act, the Tribunal can still award compensation under s 187 of the RT Act for breach of the obligation under ss 63 and 65 of the RT Act to keep premises in a reasonable state of repair, by reason of the loss of use and amenity of the premises caused by the breach.
125.
In assessing an appropriate amount of compensation, the Tribunal can consider the rent payable for the premises as a consideration in formulating appropriate compensation for loss of use and amenity caused by the breach (see, for example,
Tuckwell v
Ientile
at [78]-[82];
Cowling v Tran; Tran v Cowling
[2021] NSWCATCD 128 at [156]-[174]).
We are satisfied that
the
basis of the
Tribunal ’ s
findings
was
sufficiently set out
at
[19]
of its reasons .
A reduction
in loss of amenity was found .
That finding was unchallenged
on appeal .
A reduction in the rent was justified.
No submission was made that
the Tribunal should assess the
amount
of the
reduction in the way now contended by the landlord on the appeal .
The Tribunal exercised its discretion, as it was obliged to do, to find some amount
for the reduction of rent .
The landlord
describ ed
the decision and the amount allowed as unreasonable,
unjust
and displaying a lack of fairness .
However , in challenging a decision
on appeal that was
founded on the exercise of a discretion as in this case, the test we must app l y is that
prescribe d by
the
High Court of Australia in
House v The King
(1936) 55 CLR 499 at 504-505
( per
Dixon, Evatt and
McTiernan
JJ ) :
The
manner in which
an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not
take into account
some material consideration, then his determination should be
reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
We fin d
that in all the circumstances
and
based on the matters
discussed above, the
Tribunal ’ s
decision displayed an a de quacy of reason s
in
finding that
notional amount s
should be
allowed
for
some
reduction of rent
sought by the tenant,
across the periods
relating
to
the
loss of amenity
in
the
studio and
in
the
later period relating to
the house .
Accordingly, t here w a s no error of law
established in this part of the
grounds of appeal in grounds 1 and 2 .
For the same reason s ,
in so far as leave was sought,
we would refuse leave to appeal.
“No evidence”
contention
T o
contend
that there was some evidence capable of supporting a finding, it is necessary that there be a rational connection between
particular evidence
and a finding of fact:
BHP Billiton Ltd v Dunning
[2015] NSWCA 55 at [35]
–
[43],
Tudor Capital Australia Pty Limited v Christensen
[2017] NSWCA 260 at [300]
The
“ no evidence ”
submission is
not
founded on
a contention that there was no evidence of water ingress or mould
in the premises .
The Tribunal made a finding that the studio, described as an
“ important space for the family ”
for the reasons given at [7] ,
was
“ not used ”
for a 6-month period : [7] .
The landlord did not challenge in ground 1, the finding that the studio was subject to water ingress and mould and that the tenant ceased using the studio for about 6 months because of that loss of amenity .
The
“ no evidence ”
point
i n relation to the
studio
has not been established .
In relation to the
house
in
ground 2, the landlord
accepted there was water ingress and repairs were required .
The issue raised on the
“ no evidence ”
point in
relation
to ground 2 was that
there was
no claim and no evidence that
“ the house was
uninhabitable. ”
T he
Tribunal referred to
some of the
room s
in
the
house
suffer ing
water ingress and resultant mould
to support
the
finding that
th ere
was
a loss of amenity .
The
Tribunal clearly
accepted
the
tenant ’ s
evidence at [8]- [12] in its findings at [19] .
Also,
as observed at [13]-[14]
of the Tribunal ’ s reasons,
there was
ongoing
leaking
and repairs were required .
The excuse for the landlord not undertaking the repairs is a different issue
and
we discuss
that
below .
The
T ribunal found that the landlord failed to
comply
with its
obligations
of repair
under s 63 of th e
Act : [19] .
That finding was not directly challenged on appeal .
The obligation under s 63 of the Act is to keep and maintain residential premises in a reasonable state of repair having regard to the age of the premise , the
life expectancy of the premises and rent payable.
The contention in ground 2 was that the house remained habitable .
That accords with the Tribunal ’ s findings .
The Tribunal
did not
f i n d ,
as submitted by the tenant
on the appeal ,
that
the leaks and mould
in one part of the house
caused
“ the whole room ”
to
become
“ unusable ”
or that the entire house was uninhabitable .
A breach of the obligation
in s 63 of the Act
to maintain premises in a reasonable state of repair may amount to a withdrawal or reduction of services by the landlord by reason of the landlord’s omission to comply with th
at
obligation
:
Roberts v NSW Aboriginal Housing Office
[2017] NSWCATAP 9
(
Roberts
)
at [113]-[114].
A finding that premises are not fit for habitation is not
to be
lightly
made :
Bannister v
Cheung
[2014] NSWCATCD 105
at
[20];
Bhandari v Laming
[2015] NSWCATAP 224
at
[36]) ;
McKerlie
v
Le
es
er
at
[102]
In
Dimunova
v Vega
[2017] NSWCATAP 5
(
Dimunova
)
at [31]-[32] ,
the Appeal Panel said
at [31] :
However, in our view, it was necessary for the Tribunal to consider whether the respondent had breached the obligations set out in s 63 to provide and maintain the residential premises in a reasonable state of repair. The Tribunal found that the burst water pipe did not occur through any act or omission of
the respondent and therefore there was no breach of the residential tenancy agreement. In our view that analysis discloses an error of law. In our view, the obligation set out in s 63 is mandatory (subject to s 65(3)) , and is not conditional upon the landlord having it within the landlord’s own power the ability to take steps to provide and maintain the residential premises. The fact that another unit owner or the strata committee of the body corporate must take steps to fix the burst pipe does not excuse the landlord of his or her obligations under s 63. The only qualification to these statements is that the duty set out in s 63 is, in our view, modified by s 65(3) which provides that the Tribunal must not determine that a landlord has breached the obligation (that is the obligation which, by virtue of s 65(2),
refers back
to s 63(1)), unless the Tribunal is satisfied of two matters. The first matter is that the landlord had notice of the need for repair or ought reasonably to have known of the need for repair.
The second matter is that the landlord failed to act with reasonable diligence to have the repair carried out (s 63(3)(b)).
(our emphasis)
We deal with the second of the
qualifications
(italicised)
referred to
above
in
Dimunova
later in our reasons.
The
“ no eviden ce ”
point
raised
in ground 2 was that there was no
claim made and evidence
that the house was
“ uninhabitable ” .
The Tribunal did not make any finding that the house was
uninhabitable .
It di d
not appear to b e
in dispute
before the Tribunal that
the tenant continued t o
use the areas identified in ground 2, including the kitchen , two bathrooms, a sunroom and three bedrooms .
The critical finding
made by the Tribunal, not challenged on appeal, was that
“ the tenant was entitled to
live in a house with her family without
concern
of regular leaks and the
resultant
mould which I accept
she had to spend
m any ,
many hours
cleaning
just to provide a clean environment for her
children ” :
[19] .
P rimarily , it was
that
evidence and
finding that supported
the Tribunal in concluding
that the re
had been a
“ significant reduction in amenity ”
and the
consequential order for a reduction of rent.
We re jec t th e landlord ’ s
contention s
raised in grounds 1 and 2
in
relation
t o the
“ no evidence ”
point .
For the same reason s ,
in so far as leave was sought,
we would refuse leave to appeal.
Failure to have regard to “precedent”
The
landlord
contended (specifically in ground 2 but we take it
as equally
applying to
the contentions in ground 1) that
the Tribunal failed to
apply
o r
have
regard to
“ precedent ”
in
making
its findings of rent reduction .
We have construed that contention as raising a question of law
as to whether the Tribunal applied the wrong principle and failed to direct itself to the right question .
For the
reasons
that
follow , we do not accept that this part
of
the
landlord ’ s
contentions raised in
grounds
1 and 2 of the appeal
have been established .
T he Tribunal is not bound by the doctrine of precedent:
Independent Liquor and Gaming Authority v D & D Natural Health Pty Ltd
[2021] NSWCATAP 170 (
ILGA
).
T he Appeal Panel in
ILGA
stated at [51]:
The Tribunal is not bound by the doctrine of precedent to follow earlier decisions. However, in the context of the legislation governing one of the predecessor Tribunal’s to NCAT – the Administrative Decisions Tribunal – it was said that the Tribunal should ordinarily follow decisions of the Appeal Panel and decisions of the Tribunal as constituted by the President or a Deputy President, unless they are clearly wrong:
Rittau v Commissioner of Police
[2000] NSWADT 186 at [60]. We agree, however no such qualification has been expressed in relation to first instance decisions by the Tribunal Members other than the President or Deputy President. It follows that the Tribunal did not make a legal error by failing to follow the decision in
MJ Trading v Independent Liquor and Gaming Authority
[2018] NSWCATD 260.”
The
“ precedent ”
the landlord was referring to
i s
Hayes v Williamson
[2015] NSWCATAP 268 (
Hayes
) .
Hayes
was constituted by a Deputy President .
Hayes
was not relied upon or
referred to
by the
landlord
(or tenant) in the proceedings before the Tribunal .
The
Tribunal
made
no
r eference to
Hayes
, being the point
of
t h e
landlord ’ s submission,
effectively
contending
that the Tribunal of its own accord should have
applied
the approach
in
Hayes
.
However, as
we have stated above, t he landlord
had opposed
any rent reduction and offered no
method
of
calculating
or
quantifying any loss of amenity that may be found by the Tribunal.
At the
hearing of the appeal the lan d lord provided a
spreadsheet
providing a
“ H ouse compensation
calculation based on Hayes v Williamson . ”
The
percentage
figures referrable to
the
various rooms derived fro m
the overall
internal
a rea of the house and studio ,
was never
put
to the Tribunal
as
a means of quantifying any loss of amenity .
A part y
on an appeal ,
as we have referred above , is not
permitted a rehearing
or an opportunity to run its
c ase ag a in on grounds not advanced
in
the proceeding s
under
appeal .
The landlord does not explain why
the Tribunal was obliged
to rely on Hayes
as a
m atter
of prec ed ent ,
or
that
the Tribunal
applied the wrong principle
or
failed to direct itself to the right question ,
by not adopting the methodol og y under consideration in
Hayes
.
The Appeal Panel
decided
Hayes
on the basis of
an agreed
methodology
adop ted b y the p arties
befor e
the Tr ibunal
and
Hayes
is
clearly
distinguishable from the facts of the present proceedings .
Hayes
is distinguishable
In
Hayes
, there was a calculable
loss
that concerned
only
one
bed room
of the property
that was
–
it was agreed - uninhabitable .
In the decision
there
under appeal,
b oth parties
had
accepted a reduction
of rent was warranted and
they
were
$140 apart on t h e am oun t of the
weekly
reduction
that was appropriate .
The landlord provided and relied upon a mathematical calculation.
Both parties adopted that methodology but differed
i n its application ,
causing the difference between them.
The
method agreed by the parties was to
compare the floor space occupied b y
the affected bedroom
and effectively double that percentage to arrive at the loss of amenity
by reference to the rent payable .
The Appeal Panel
rejected
the amount awarded by the Tribunal
because
the parties had
a ppli ed the wrong percentage
ref e rrable to the floor space of the total enclosed
living
area
of the property .
The Appeal
P anel
adopted
the same methodology
and
took
in to account
the
erro r
in the
calculation
to
arrive at a different
percentage .
The appellant
in
Hayes
did
n ot dispute the figure derived by the Appeal
P anel at th e
hearing
in
Hayes
.
Hayes
does not stand for the proposition t h at there is any fixed approach in
determining a rent reduction by reason of a loss of amenity .
The Appeal Panel did not require a prescribed
approach and
made t he adjustment
it made
as
“ fair and
appropriate ” : [ 21].
In
Hayes,
the loss
o f
amenity
was
isolated
to one bedroom .
The ca s e before the
T ribunal on this appeal was far more
variable because
of
the
nature
of the
l eaks over
different
p arts of the premises
over a long period of time,
both before and after some repairs had bee n
perfor m ed .
The refore, the
loss of amenity was in respect of different parts
of the
premises
at different
times .
In our view, a
broad-brush
approach was
permissible
in the
circumstances .
Mathematical precision was illusory or
at best
complex and
it was
never
contended
by th e landlord
as an approach to be taken
in the
proceedings
below .
We reject the landlord ’ s contentions raised in grounds 1 and 2 in relation to the
“ precedent ”
issue .
For the same reason s ,
in so far as leave was sought,
we would refuse leave to appeal.
Ground 3: relevance of market rent – failure to have regard to material evidence
Ground 3 contend s
that the rent reduction order e d
by the Tribunal
“ shows a lack of understanding of , and consideration for ,
the significantly lower
than
mar k e t
rent level paid by the tenant during
the tenancy . ”
The contention by the landlord in ground 3 also raises the question of law as to whether the Tribunal applied the wrong principle and failed to direct itself to the right question .
We have taken th e
contention
to be in relation to the period
only
covering the second RTA
which reflected a reduction in rent from the first RTA (including the holding over) .
T he
first
RTA was
presumably a t a
market rent to reflect the condition and age of the premises,
and
that is what the parties
had
agreed
for
the
amount of
rent
before the subsequent reduction .
If however the landlord is contending that the rent payable under the first RTA and the holding over was below market rent for a property of this condition and age or that it was not obliged to undertake repairs by reason of those matters, either promptly or at all, we would reject that submission .
The tenant did not take on a tenancy of premises that were already leaking or suffering from mould infestation . We find, if necessary, that it was open to the Tribunal to provide the
rent reduction for loss of amenity from the agreed rent of $850 that was caused by the studio becoming affected by water and unused from 16 July 2021.
We do not accept
the landlord ’ s
contention
in ground 3
in relation to the house .
The
T ribunal clearly had
regard
to the
significantly lower than market rent level paid by the tenant
under the second RTA
during the tenancy .
In doing so, the Tribunal did n o t allow the tenant ’ s claim
to the extent she sou ght a far
greater
rent reduction .
The age and condition of the house is a matter relevant to the
landlord ’ s
obligation under s 63 of the Act but it
does
not prohibit a
tenant
claiming a
reduction in
rent caused by factors that might relate to the age and con dition
of the premises
and
which
also
create
a n
unacceptable
loss of amenity .
The first RTA continued for the period when water was reported in the house
on
26 November 2021 .
That issue was unresolved
until the end of the tenancy.
The relevant
legal principles were summarised in
Tuckwell v
Ientile
[2022] NSWCATCD 124 at [63]-[71]:
Under s 44 (1) (b) of the RT Act, the Tribunal can award compensation by way of a rent reduction if it is satisfied that the rent is excessive having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises. An application under s 44 (1) (b) must be brought during the tenancy rather than after the tenancy has ended. Any rent reduction cannot be for a total period of more than 12 months.
A “reduction” or “withdrawal” of “goods, services or facilities” includes a failure by a landlord to conduct repairs
during the course of
the tenancy in breach of ss 63 and 65 of the RT Act (
Roberts v Aboriginal Housing Office
[2017] NSWCATAP 9).
However, the “reduction” or “withdrawal” must involve items that fell into disrepair and were not repaired
during the course of
the tenancy, not items that remained in the same condition (or not provided) at the beginning of the tenancy (
Pan v
Malveholm
[2021] NSWCATAP 101).
If goods, services, or facilities were not present at the commencement of the tenancy, then the potential applicable causes of action arise under ss 52; 63; 65, 187 and 190 of the RT Act. Section 52 involves whether the premises are reasonably fit for habitation at the commencement of the tenancy. Sections 63 and 65 involve whether the landlord has kept the premises in a reasonable state of repair. Sections 187 and 190 are remedial provisions that allow orders for damages and compensation (among other remedies).
However, the limitation period for Tribunal proceedings under ss 187 and 190 of the RT Act is different to s 44 (1) (b) of the RT Act. By reasons of Regulation 39 (9) of the RT Regulation the limitation period is 3 months from becoming aware of the breach. The Tribunal can extend the limitation period under s 41 of the
Civil and Administrative Tribunal Act 2013
(NSW), applying the principles in
Jackson v NSW Land and Housing Corporation
[2014] NSWCATAP 22 at [22]…
The landlord has an obligation under s 63 (1) of the RT Act to provide and maintain premises in a reasonable state of repair having regard to the age of, rent payable for, and prospective life of the premises. The obligation applies even if a tenant had notice of the state of disrepair before
entering into
occupation of the premises (s 63 (2) of the RT Act).
By reason of s 65 (3) (a) and (b) of the RT Act, the landlord has not breached its obligation under s 63 (1) of the RT Act unless the landlord is aware, or should reasonably have been aware, of the need to repair and has failed to act with reasonable diligence to have the repair performed.
The principles applicable to
whether or not
there has been a breach of s 63 (1) have been considered by the Appeal Panel on many occasions, including
Murarer
v
Andresson
[2016] NSWCATAP 15 at [11]-[16] and
Roberts v NSW Aboriginal Housing Office
[2017] NSWCATAP 9 at [115]-[121]). The test is objective and once the landlord knew or should reasonably have known of the need to repair the repair must be carried out within a reasonable time and is not excused by conduct or delay caused by tradespersons or suppliers.
In respect of the matters that may be considered by the Tribunal when assessing
whether rent is excessive
under s 44 (1) of the
Act , s 44 (5)
states:
(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).
The matters identified in s 44 (5) of the Act are wide, and discretionary, with the legislature identifying that
the Tribunal
“ may ”
have regard to those matters .
The breadth of the provision
and the Tribunal ’ s discretion
is emphasised by the legislature
a dopting the phrase
to
“ any other matter it considers relevant …”
in s 44 (5)
(h).
In
Roberts
,
the Appeal Panel stated at [124]:
“124 As to what constitutes a reduction, in our view this means the goods, services or facilities are of a qualitative or quantitative standard which is less than what a landlord is required to provide under a residential tenancy agreement. On the other hand, a withdrawal suggests there must be a removal or inability to use the
particular goods, services or facilities. That is, the goods services or facilities or part of them are no longer available to a tenant.”
In
Hu v
Roggeveen
[2022] NSWCATAP 295
( ‘
Hu v
Roggeveen
’
) , the Appeal Panel stat ed at
[59] that
“ T he focus of the assessment of the appropriate level of rent reduction is the rental value of the premises after the reduction or withdrawal of the services or facilities ”
and distinguished between a re nt reduction under s 44 (1) (b)
and damages for non-economic loss
due to a landlord failing to keep
premises in a reasonable state of repair,
failing to provide quiet enjoyment
where part of methodology of assessment is loss of amenity.
However,
the Appeal Panel in
Hu v
Rogg
eveen
did not state that loss of amenity
could not be considered in determining whether a rent reduction
was appropriate, or the amount of the rent reduction .
Th is issue
(and the
issue of
‘ double compensation ’
where claims are brought for a rent reduction under s 44 (1) (b) and damages under
ss 187 and 190 of the Act in the same proceedings)
was referred to
in
Makowska
v St George Community Housing Ltd
[2021] NSWSC 287
at
[46]:
Thirdly, it is of course possible that conduct of a landlord may constitute a breach of the tenant’s right to quiet enjoyment and a reduction or withdrawal of facilities. However, in the present case, where the only loss is non-economic loss, such as inconvenience or loss of amenity, it would be inappropriate to award damages by way of compensation
and
provide a reduction of rent. [21] Accordingly, had there been a legal error in failing to provide compensation for breach of quiet enjoyment with respect to the deterioration of the lawn, no further relief would have been appropriate and, accordingly, as a discretionary matter, relief by way of judicial review would have been refused.
Ultimately, what the Tribunal is determining is whether rent is excessive
during the relevant period
by reason of a withdrawal or reduction in goods,
services
or facilities
by the landlord .
That issue is assessed objectively,
not merely
on the basis of
subjective assertions of the
tenant and the landlord
that the rent is , or is not, excessive.
If the
breach arises from a landlord failing to keep
the
residential premises in a reasonable state of repair
constituting a withdrawal or reduction in
facilities ,
the loss of amenity caused by the breach
is a relevant matter to be
taken into account .
Th e loss of amenity
will depend upon the particular facts and circumstances of
the case
in the context of determining whether
th e
residential premises with reduced amenity
correlates into a finding that rent is excessive
(and the amount by which rent is excessive) .
There
is no simple mathematical formula that
applies to every case.
It appears to us that the
issue
primarily
raised by ground 3
must
relate to the
period of the
second RTA where the tenant was occupying
the premises
under a below market rent or at least
a reduction of
the previously agreed rent under the first RTA.
The Tribunal ’ s
relevant finding in this respect
was
at [5]:
The rent had been reduced during the tenancy for reasons of the COVID pandemic
and also
in February 2022 due to a request from the tenant when her family arrangements had changed , in particular her husband was hospitalised.” (also at [17]).
The
second RTA
was
apparently enter e d into
on that basis
at the reduced rent of $750 per week
and
for
only
a
6-month
period .
Presumably, it was a
short-term
arrangement
to reflect those short - term circumstances .
The evidence is unclear but the landlord did not deny, as far as we are aware
from
the evidence
before us , that finding by the Tribunal
(noting
as we have, that
there is no transcript of sound recording of the hearing) .
The only challenge
made by the landlord
to the findings with respect to COVID concerned a different matter, namely that the refusal to allow the builder to effect repairs because the tenant told the builder
she (and
possibly others in the fam i ly) had COVID .
The rent reduction was
agreed on 2 3
February 2022
(when the second RTA was signed)
and took effect from the commencement date of the second RTA which was 4 March 2022 .
The first report
by the tenant
of water ingress in the house was
on
26 November 2021: [18]
The
landlord
contended before the Tribunal that the
first
report of mould was not until
March 2022: [14].
Based on
those
two matters which are the source of the
tenant ’ s complaints in these proceedings,
neither seem to be causally linked
in a ny
temporal sense to
the
reduction in rent being agreed on 26 February 2022 .
In our view, it was open o n
the evidence for the Tribunal to find that the reduction in rent was for reasons other than the leaking and mould in the house.
The
Tribunal was aware that the rent had already been reduced with effect from
4
M arch 2022
to
$750 .
T here is
no
reason to infer that
the Tribunal
did not
take
that into account in the amoun t
of
the reduction awarded
for
the period
from 26 November 2021
up to and after
4
M arch 2022 ,
to the date
that
the tenant vacated the premises
in July 2022 .
I n any event, based on the findings referred to above, the rent reduction was
found to be unrelated to the leaks and mould and a further reduction in rent was warranted .
G round
3 largely also
repeats the contentions that we have considered above
in relation to the Tribunal providing
“ no evidence or
reason
for the
calculation
”
(our emphasis),
including
“ the documentary evidence of NSW statistics and market rents
…” .
We
need not repeat
our
consideration
of those contentions
in
ground 3
as we have dealt with them above
a nd rejected them .
As we have discussed, the
T ribunal did not undertake a
“ calculation . ”
N o
method of calculation was relied upon by the parties ;
instead, the
T ribunal
approached the reduction of rent in
a way that was open to it on the evidence
and
doing its best
by applying a notional figure .
We reject ground 3 of the grounds of appeal .
For the same reasons, in so far as leave was sought, we would refuse leave to appeal.
Leave to appeal
The remaining
grounds (grounds 4 and 5)
raised
in Part 6.B( i )
of the Notice of Appeal
and the contention s
that the Tribunal ’ s decision was against the weight of the evidence
raised
in Part 6.B(ii) ,
each require le a v e
to
appeal .
T here is
no question of law
raised by them.
T here is
however
considerable overlap
between the issues discussed above in relation
to
the
questions
of law
arising on the appeal
(particularly in relation to the
“ no evidence ”
contentions) and the issues that require leave
to appeal .
For the reasons that
follow, w e are satisfied on the evide nce
that
i s available, that the Tribunal gave due regard to the
assessment
of
th e
evidence
before it,
in term s
of its weight and probative value ,
and
that the Tribunal ’ s
reasons logi c ally followed fr om
the findings it made.
W e have not been assisted in dealing with this aspect of the appellant ’ s contention s seeking
leave
because the appellant did not comply with the procedural directions made on 18 January 2023 in Order 2(d ) ,
that
required :
[By 8 February 2023]:
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 part of the hearing, together with the sound recording of the entire hearing.
As the Appeal Panel stated in
Watson v Chen
[2022] NSWCATAP 44 (
Watson
) at [27], compliance by the parties with procedural directions made by the Tribunal is
“ mandatory, not voluntary …” .
This is reiterated in the NCAT ’ s Guideline 1
“ Internal Appeals ”
at cl 60 that states:
60. The parties are required to comply with any directions made for the filing and service of submissions and other material to be relied upon
in order to
prepare the matter for hearing.
In
Watson
,
the Appeal Panel emphasised that it was incumbent on
an
appellant who seeks to overturn the Tribunal ’ s orders of proving that the decision was affected by some material error: [33] .
Compliance with mandatory procedural orders facilitates that
appellate
process and enables the Appeal Panel to have all relevant material before it
when
making its determination of an appeal .
The consequence of
the
landlord
not
lodging the sound recording or a transcript of the hearing at first instance
is that on the appeal,
we
may not be afforded the opportunity of being able to
conclusively determine whether
a
finding
by a Tribunal
was not fair and equitable or against the weight of evidence ,
in which case the lan d lord
may
not
be able to
succe ed
in
its
challeng e to
those aspects
of its appeal.
The Appeal Panel has adopted this approach in circumstances where the sound recording or transcript of the hearing at first instance has not been supplied on an appeal:
Whear
v Kids on Hayes Street Pty Ltd
[2021] NSWCATAP 123 at [22]-[26];
Geracitano
v
Cloughessy
[2021] NSWCATAP 329 at [23]-[27];
Lazaris
v Kale
[2022] NSWCATAP 36 at [23]-[28].
Decision not fair and equitable
Ground 4: Impossible to undertake repairs due to weather
Ground 5: COVID – no evidence
G rounds
4 and 5
do not
r aise
a question of law and require leave to appeal. The grounds are contained in the Notice of Appeal
in support of the landlor d ’ s contention that
the Tribunal ’ s
decision was
“ not
fair
and
equitable . ”
They are also raised in the Notice of Appeal
as reasons that the Tribunal ’ s decision was
“ against the weight of the evidence . ”
Either way, the requirement for leave is invoked.
We will
therefore
deal with these grounds as raising the need
for
leave under both
grounds raised in cl 12 of sch 4 of the NCAT Act .
It
is
also convenient
t o consider these two grounds
together
as they effectively
relate to the same
issue, namely the question of whether and if so why, the landlord failed
to
undertake the necessary repairs to the
premises .
For the reasons that
follow, we are not satisfied that there was a
"
significant possibility" or a "chance which was fairly open"
that a different and more favourable result would have been achieved ,
but for the
matters challenged in respect of the
Tribunal ’ s findings ,
so th at
there was
a substantial miscarriage of justice for the purposes of cl 12(1) of Sch
4 of the NCAT Act.
Ground 4
contends
that
“ extraordinary weather ”
ma d e it
“ physically
impossible ”
for the
landlord
to comply with its obligations
of repair
under s 63 of the Act .
The landlord ’ s
submission
attached to the Notice of Appeal
dated 8 February 2023
accept ed
that :
The
Member acknowledged
the weather conditions and lack of
global supply issues which the landlord encountered which made it physically
impossible
for
th e landlord to carry out repairs for
a period of time
… However, the Member ignores this fact when applying Section 63 of the Act.
The Membe r does not consider, for example, that the landlord could not force a roofer to get on a roof to fix it when that would be against work health and safety law, and all safety procedures of the Australian Building
Industry.
That submission
is
in part
based on
the
following
statement in the statutory de claration
of the
landlord ’ s
builder ,
Mr Claude Crespin, dated 12 October 202 2:
Due to the extraordinary amount of rain in Sydney from
November 2021 to March 2022,
we were called to fix two leaks for the main house, but at times we could not make those repairs straight away because it just didn’t stop
raining .
We cannot make repairs until the rain stops.
The Tribunal had specific regard to that part of Mr Crespin ’ s evidence
at
[13]
and
[16]. The Tribunal accepted there had been
“ extraordinary rain ”
in Sydney between November 2021 (when the tenant first raised her complaints in relation to the house
( [18]) and March 2022 .
The Tribunal also
made reference
to the rain during the last 12 months: [11] and [16]. The submission that insufficient weight was given to Mr Crespin ’ s evidence is not supported on the evidence
the Tribunal
referred to and the findings made by the Tribunal that accepted Mr Crispin ’ s evidence.
However, there are at least
two
difficulties with
Mr Crespin ’ s
evidence and the landlord ’ s reliance on it
to the extent that it was
not
determinative of
the landlord being entirely relieved of its obligations under s 63 of the Act .
First ,
the builder was not made available for cross - examination and his evidence therefore could
n o t
be
tested .
No explanation was given to explain his
unavailability before the Tribunal or on the appeal .
The
importance of
Mr Crespin ’ s
evidence to the lan d lord ’ s case is apparent from
ground
4
of
the
appeal and the landlord ’ s
request to adduce
“ new evidence ”
by having
the builder
“ give oral evidence as a witness ”
to the condition of the house
and
the extraordinary weather ,
and
to explain his evidence
“ in person . ”
That application was not formally
made
at the hearing
of the appeal .
No r
was a remitter sough t
by an order
to have
that
evidence referred
as a separate matter
to the Tribunal for further consideration .
In any event ,
we would have refused
either
application .
The time for making any application to adduce evidence from the builder was
at the hearing
before
the
Tribunal
and not on the appeal .
If that necessitated
an application
by the landlord
to adjourn the hearing to enable that evidence to be called, then it was incumbent o n
th e
landlord
to do
so at the hearing
before the
Tribunal and not on appeal .
If that was refused
by the Tribunal , it was then open to the
landlord
to challenge that decision on appeal .
Also,
if
it was indirectly sought,
we would
not
remit the matter for
further
consideration by the Tribunal
in circumstances
where
the
landlord
gave no evidence and made no submission as to why the
builder
was unavailable
to give oral evidence
at
the hearing .
That may also have been a reason why no application to adjourn the hearing was made when it should have been , namely the reason (s)
for the builder being unavailable
may
not
support ed
an
application
for an
adjournment .
Second ,
the Tribunal observed that the
“ each time a leak was reported the
agent would arrange for a tradesperson to attend to
undertake
a
repair ”
( [13] ) and that
the builde r, given the rain events,
“ would make repairs as soon as they could ” : [16].
The Tribunal found that b etween November 2021 and
M arch 2022 ,
the builder attend ed
th e site
on two occasions
to undertak e
repairs
in relation to water leaks
but
could not undertake the work due to rain : [16] .
T he evidence in Mr Crispin ’ s statutory declaration that
“ at times we could
not make these repairs ”
because of the rain
during
entire
period
of November 2021 and
M arch 2022 ,
wa s
not able to be tested in person
and
it was
lacking
many
specific details
to prove
the matters
about which he
deposed .
The
evidence of quotes
in the form of Work Orders
being raised and
repairs undertaken ,
is provided in
a
“ Work
O rder Summary ”
in respect of the premises
for the period
21 November 2019 to 6 July 2022
( identified as Item 20 at p 35 of the
landlord ’ s
documents lodged on 8 February 2023 ) .
For present purposes, we only deal with the roof and related repair work
in
respect
of
“ leaks ”
referred
to in the Work
O rder Summary .
There is also
a
S chedule of
“ I nvoice Payments ”
( item 19
on page 33 )
in
the
same
documents lodged
by the
landlord .
The Tribunal ’ s factual findings regarding the attendances of Mr Crespin was open on the
evidence contained
in the statutory declaration of Mr Crespin and by reference to the two entries of 26 November 2021 and 15 December 2021 in the Work Order Summary .
There is scant detail in the Work Order Summary and the Schedule of Invoice Payments describing the type of repair work that was required and that could not be undertaken out .
As far as we are aware, the actual Work Orders and invoices referred to in the Summary and Schedule were not in evidence before the Tribunal or in the documents lodged on the appeal .
Mr Crespin ’ s statutory declaration
also
attached a list of
“ times we attended the house ”
during period 26 November 2021 and 14 July 2022
( Item 14 on page 11 of the tenant ’ s bundle of documents ) .
Th at
“ chronology ”
includes
dates that quotations were approved by
the agent
on behalf of the landlord.
Mr Crespin ’ s
chronology record s
him
attend ing
and undert aking
repairs on three
(not two)
occasions during the period after 21 November 2022 and
the
tenant
vacating
the premises
in July 2022 . The chronology also
records
that
it
was not until 12 April 2022 that the issue of access was impacted by the tenant ’ s COVID isolation .
As we have stated, without the transcript or the sound recording we are unable to conclusively determine or reconcile
some of
the inconsistencies in the documentary evidence
or how, if at all, the parties dealt with that evidence at the hearing .
If
obtaining
quotes for repair work was holding
up
repair
work up, then it was
always
open to the
landlord
to seek
quotes
f rom
other builder s .
The same applies
if Mr Crespin was unable to schedule the work
until
later
when it was
possible
for him
to undertak e
it .
This does not mean that it was
im possible to
undertake work in Sydney during that
entire period
but that Mr Crespin as the builder used by t he
landlord ,
was
only able
to
undertake them
“ as soon as
[ he ]
could schedule them . ”
No
doubt
t he weather
also impacted
othe r
builders
and
the
price
quoted for any repairs
but there was no evidence of any attempt to seek alternative builders
t o
provide
quotations
for repair
or
undertake
the repair work
when it
became
necessary
and
if
Mr Crespin was unable to fir it into his schedule .
The
main
repair work when it was undertaken was after the tenant vacated .
I n
effect, th ere
was a period from November 2021 until July/August
when
necessary
repairs were said to be impossible
due to rain and related scheduling difficulties
or prevented by the tenant .
Even allowing for the period
when
access was
refused due to
the tenant having
C OVID,
that is a period of 8 months when no substantive repairs
of the type undertaken after the t e na n t vacated ,
were
performed
by the landlord .
Overall, t h e
evidence does not con vincingly
show
the impossibility of Mr Crespin (or another builder) being unable
to undertake repairs
throughout
that entire
period
after
21 November 2021
or being refused access from all of March
to July 2022 .
T he proposition put by the landlord is inconsistent with the obvious desire on the part of the tenant to live in a home that was not affected by rain and mould and it is also
somewhat
coincidental per h aps ,
that the repairs were
in fact undertaken
almost
immediately after
the ten a nt had vacated
the
pr e mises .
Mr Crespin in his chronology referred to one occasion on
12 April 2022 that he was
turned away
by the tenant due to COVID .
An email from the tenant dated 21 April 2022
to Ms Ardern
(page 89 of the tenant ’ s documents lodged on 27 February 2022)
accords with th at ,
in which she stated :
C4 [Mr Crespin’s company]
came
last week to do some repairs but I had to send them away as we
were both unwell with Covid .
I have
mess aged them a couple of times to see when they wished to return but
havent
[sic] heard form [sic] them .
Also there is a problem with the mains fuse box … We don’t have light in the back bedroom,
sunroom
or bathroom.
The evidence
in the Work
O rder Summary shows an
“ urgent ”
work order
was
issued on that same date for the
“ problem with switchboard for half the house . ”
However,
no
new
W ork
O rder
for roof related repairs
was
issued after th at date .
There was an existing quote approval that Mr
C respin said was
given
on
24 March 2022
and is referred to in the Work Order Summary
o f
that same date to
“ investigate any leaks to house only, and quote to fix ” .
However,
having been turned away on 12 April 2022
( 3 weeks later) , there was
n o further
w ork undertaken in relation
t hat quote approval .
O n
13 July 202 2,
Mr Crespin ’ s chronology record s that
the builder
attended
the premises
when
the tenant was not at home ,
presumably because she vacated the next day .
By that time, Ms Arden
had been
aware
for some time
of the tenant ’ s
intention to vacate by 15 July 2022
( see
email to the tenant dated 14 June 2022
at
page 116 of the tenant ’ s bundle of documents).
Further, t he
T ribunal rejected the contention by the lan d lord
in relying on
the builder ’ s evidence
that it was
justified in
responding to th e
problem
of rain and
no access due to COVID,
by offering the
tenant
the option to break the second RTA without penalty ,
but the tenant chose not to
accept that offer :
[14]
and [19] .
We are satisfied that the
T ribunal had regard t o
the builder ’ s evidence
and
largely accepted it .
The Tribunal
assessed
that evidence
and gave it the
weight that
was appropriate
whe n
the
builder was
n ot
made
available to be cross examined (for reasons unexplained)
and where
his
evidence
has been referred
to by the landlord ’ s submissions
as establishing the
“ physical impossibility ”
of undertaking roofing repair work
between November
2021
and March
2022 .
There was no convincing evidence
(aside from the
single
incidence of COVID
in April 2022 )
to explain the subsequent
delays
in
having
any
repairs
undertaken
during
the period
from
March 2022 to July 2022.
Ground 5 is a lso a
“ no evidence ”
point .
The landlord contends that t here was no
“ medical proof ”
that the tenant or family members had COVID over a two-month period
(March and April 2022)
as a reason for refusing the landlord ’ s builder access to undertake repairs .
There was evidence given by the tenant, and accepted by the Tribunal, that
the tenant (and perhaps other
occupants of the premises )
had COVID and there was nothing of which we have been made aware as to why that was so
implausible
that it was not open to the Tribunal to
accept
that evidence.
Further,
it was the landlord ’ s builder
who corroborated that evidence .
Mr Crespin
s tated,
as we have discussed above, that he
was
re fused access because of COVID and th e
tenant
“ did n ’ t
want strangers
in the house . ”
The Tribunal refers to the builder ’ s evidence in this respect at [13] .
The landlord (and builder) appears to have accepted this explanation at the relevant time .
We have
understood th e
reference
to
“ strangers ”
as being
the
need for isolation
in a COVID affected premise
and following the relevant health advise to refuse non-family members access to premises ,
except for the specific exempt ions
listed in
cl 6(5)
(which do not apply)
and
requiring
that any exempt person entering the premises must wear personal protective equipment
in
cl 6(6)
of
the
Public
H
ealth (COVID-19 Self-Isolation
)
Order
2022 (
NSW)
that was
effective from 28
M arch 2022 to 22 April 2022
(which
appears to cover the approximate period of the COVID issue) . We observe that
the subsequent
COVID-19
Self-
Isolation
Order (No
2)
referred
to by
the land lord
on the appeal
(but
which did not commence until 3 1
M ay 2022 ) , relevantly
had
identical
provisions.
The ultimate issue for the Tribunal ’ s consideration was whether there was a loss of amenity and part of its consideration of this issue was to consider why there was a loss of amenity .
We are satisfied that the
landlord ’ s
evidence did not sufficiently explain the
8-month
period during which no
or inadequate
repairs were undertaken to
prevent
all of
t he
caus es of
water ingress
to
the premises during that period .
Accordingly ,
it was open to the Tribunal on the evidence before
it, to
find that the landlord had failed to comply with its obligations under s 63 of the Act and
to
make an excessive rent order
under s 44 (1)(b)
of the Act
for
the
loss of amenity
found by the Tribunal .
We refuse the landlord leave to appeal in respect of grounds 4 and 5.
Decision against the weight of evidence
Most of
matters raised
b y the landlord
to contend that Tribunal ’ s decision was against the weight of evidence have been addressed above .
We have identified
five
issues
relied upon in the Notice of Appeal that require our separate
consideration
in determining whether,
either on their own or collectively,
we should
grant
the landlord
leave
to
appeal
on the basis that the Tribunal ’ s findings were against the weight of evidence .
We will deal with each of them briefly as they are not the primary matters relied upon by the
landlord in seeking leave to appeal .
T he main
grounds on which leave is sought
have been dealt with above in these reasons .
The
f ive
matters relied upon by the landlord
in seeking leave to appeal
that we have not already dealt with
under t h is
contention
are
now considered .
The tenant’s photographs were “NOT dated and mostly did
NOT prove location or scale .”
We reject that contention .
The tenant ’ s evidence before the Tribunal
lodged on 27 February at Tab 3(a)
and on the appeal
had a list of photographs described as
“ Photograph Index ”
with a date and description of every photo in the
tenant ’ s evidence .
The tena nt confirmed
at the hearing
of the appeal
that the dates were derived from a date recorded on the back of each photograph .
The landlord did not establish that any of the dates or descriptions were incorrect to cause any doubt about the accuracy of the
tenant ’ s
“ Photograph Index . ”
The question of
“ s cale ”
is not
a valid objection to the photographic evidence,
as this was not
relevant to
the purpose
for which the tenant relied
on
that photographic evidence .
The tenant
“did NOT
(sic)
provide any evidence from
a ny
professionally qualified person as to the condition
of the house or the repairs required.”
This contention is
irrelevant and is
rejected .
It was
n ot in d i s p ute that the house was old and that repairs were required. The issue was that the
tenant suffered a loss of amenity . T here was evidence of water ingress and mould ,
both
in
the outside studio and the house ,
that
required
repairs
for which the landlord was liable under s 63 of the Act
and
which
were
not undertaken .
The
Tribunal’s “ orders give excessive
weight to the market value of the studio building.”
We also reject that contention .
As we have referred above, the Tribunal
had regard t o
the
nature
and purpose for which the studio was used by the
tenant ’ s family .
The Tribunal
found that
the studio
w as
advertised as
“ a large double studio for teenage retreat ” :
[7] .
The studio was described
“ as an important space for the family
–
with teenage
children it was a place for them to socialise with their friends;
have
sleepovers,
t he space was large enough for the tenant to store possessions from their previous home;
t he children practise d
their instruments (including a piano) in the studios
a nd it gave the family space ” : [7]
The findings by the Tribunal do not
reflect a
failure
to give appropriate weigh t
to the
relevance of the studio
for
the tenant renting the premises
or in finding
a
loss of amenity when
it could not be used as
an
“ attractive ”
and
“ functional ”
space ,
and
that it was
not
u sed at all in the last six months of the tenancy .
The orders ga ve no weight to the tenant continuing to live in the premises
during an “impossible
situation ”
due t o
the rain events, that she refused the offer
to break the lease
and then waited 3 months to give notice to vacate and she
lodged her application 2 days after vacating .
We reject th e relevance
and
basis of those
contentions
for
the
landlord ’ s
application for leave to appeal .
I n the
circumstances that we have referred to above
and
based on the Tribunal ’ s findings,
we are of the view that
it was open to the Tribunal to conclude at [19] that
it
wa s not an answer
to the loss of amenity
of the premises
for the landlord
to s ubmit
th at the
tenant could have vacated without penalty .
The obligation
of repair
i s
on the lan d lord
under
s 63
under the Act .
A
failure to
comply
with t hose
obligations is not alleviated by offering a
release
from the RTA and
to
allow the tenant to vacate
without
penalty .
That would allow any landlord to avoid its obligations
under the Act
and
force
a n
RTA to
a premature
end ,
by reason of its
own
default .
Also, the timing of the tenant ’ s actions of which the landlord comp l ains is irrel evant
to wh ether
there was a
los s of amenity .
It was reasonably open to the tenant to infer from the landlord ’ s offer that it did not propose undertaking the necessary repairs to
remove
th at
loss of amenity .
This
wa s
an inference
also open on the evidence that
we have discussed above that
shows the landlord undertook extensive repairs
only
after the tenant vacate d .
Presumably
too,
the tenant required time to arrange alternative accommodation and it is not for us to question when a tenant feels the time is right to lodge an
application
in the Tribunal
for rent reduction
if
it ha s
a
legitimate
cause of action, which the Tribunal found she did ,
even th ough
the amount allowed for the
reduction
in rent
was significantly less than
the amount the tenant
h ad
claim ed.
It is also
possible
to infer that the tenant had perhaps intended to
lodge the
A pplication while still in occupation under the second RTA
but that
it was not amended
to
reflect her circumstances after
vacating .
We
mentioned above
that
the Application
had
included
a claim for an order
under s 65(1)(a) of the Act
for the landlord to undertake repairs .
Obviously ,
that was
only an order that could be made while she was in occupation under the RTA .
That claim
was
then n ot p ursued
at the hearing since
the tenant
had
just
vacated
when the Application
was
lodged .
The tenant
“did not ask for repairs to be carried out immediately”
after the tenant’s period of isolation for COVID
had ended .
We reject that contention. The onus was
n ot on the
tenant to ensure the landlord complied with its obligations under 63 of the Act .
The evidence in the Work Order Summary shows that the landlord was
well aware
of the ongoing leaks and the need to undertake adequate repairs to prevent water ingress and mould in the premises .
Further ,
as we have referred above,
the tenant ’ s email dated
21 April 2022
refers to her
having
requeste d
the builder to attend
“ a couple of times ”
after the
p er i od of COVID isolation had ended
and
that she
had not heard from them .
New evidence
As set out above, the landlord sought to adduce
“ new evidence ”
provided
in
its documents for the appeal lodged on 8 February 2023 ,
and submitted in the Notice of Appeal :
“ We wish the builder who attended the property on multiple times to give oral evidence
… ;
“ We wish to
give Australian
Bureau of Meteorology
[ ‘ Bureau ’ ]
evidence ”
of the weather
( i.e. ,
rain )
records
for Sydney City
between November 2021 and March 2022.
The evidence from the builder was
a further statutory declaration
of Mr Crespin dated
8 February 2023 .
The
meteorolog ical
“ rain records ”
were
provided in a document
in a summary form
that
referenced
(but did not attach)
the
Bur e au ’ s records .
The person wh o
p r e p ared the document is
not
known.
Clause 12(1)(c) of sch 4 of the NCAT Act only permits new evidence on an appeal if it is
both
“ significant ”
and
if it
has arisen
after the time of the hearing before the Tribunal ,
in th e
sens e
that it was not reasonably
available
to the party seeking to rely upon it
at t hat
time .
The meaning of
“ not reasonably available ”
is that
the evidence
could not have been
reasonably
“ obta ined ”
at the time of the hearing:
Al-
Daouk
v Mr Pine Pty Ltd t/as
Furnco
Bankstown
[2015] NSWCATAP 111
at [23]-[24].
The
new
evidence from
M r Crespin w as
to be relied upon
as
being
“ a witness
of
t h e
condition of the house ”
and
to
“ explain
in person
… why the roof/leaks cannot physically be repaired when it ’ s raining
. .. . ”
The
rain
records covered the relevant
period
in relation to th e
leaks to the house from November 2021
to March 2022.
We refuse the
landlord ’ s
application
to
adduce th e
new
evidence .
Mr Crespin ’ s
new evidence is
a
further
statutory declaration
that was
not relied upon at the heari ng .
The
lan d lord elected to rely on the evidence of Mr Crespin in his statutory declaration
dated
12 October 2022
before the Tribunal .
If that evidence was inadequate
and the landlord now
s eeks to supplement it
and adduce oral evidence
from the builder ,
then
i t i s an attempt to
run
a case
with evidence that
was reasonably available but
which
the landlord
elected
not to
provide
before the Tribunal .
A s we have discussed , an
“ appeal does not provide a losing party
with the opportunity to run their case again
…” :
Ryan v BKB
at
[10] .
W e ar e
not
sati sfied that
the new evidence
is
“ significant ”
in the sense that
even if it had been adduced b efore the Tribunal , the
outcome
of the hearing would not have been any more favourable
to
the landlord .
As we have
referred to
above, the Tribunal
largely accepted Mr Crespin ’ s evidence .
Referring to Mr Crespin ’ s statutory declaration
of 12 October 2022 , t he
T ribunal
said:
… I accept the builder’s evidence that the main house was
generally in good condition … [and]
that due to
the extraordinary amount of rain
in Sydney from November 2021 March 2022
they were called to fix 2 leaks but
at
times could not make repairs immediately due to rain; but would make repairs as
soon
as they could.
Further, it is too late to
now seek to
adduce oral evidence
from
Mr Crespin. If it was
significant
to the lan d lord ’ s case at th e
hearing , the lan d lord failed to secure the attendance of Mr Crispen to give oral
evidenc e and
to afford the
tenant
the opportunity of
test ing
that evidence .
The tenant submitted that no explanation was offered to the Tribunal
as to
why
Mr Crespin was not
available
to attend the hearing .
No exp l anation was provided
at
the hearing of the appeal
to explain why the
builder
was
not
available
to
give evidence at the hearing before the Tribunal .
No adjournment
was
sought
by the landlord
to be able to adduce
oral
evidence
from Mr Crespin
before the Tribunal
or
obtain
a further statement
from hi m .
No reasons were give n
for not making that
application .
The same considerations apply the summar y
of the Bureau ’ s rain
records .
The Bur e au ’ s data was reasonable
available t o the landlord if it has sought to adduce that evidence at the hearing .
Also , a s
we have
stated above,
the Tribunal
accepte d that
the period of
November
2021 to March 2022 was a period of
an
“ extraordinary
amount of rai n ” .
We are not satisfied either that
t his evidence is
“ significant ”
in the sense
that
the outcome of the hearing would have been more favourable to the landlord
if that evidence had been relied upon at the hearing .
Quantum
The landlord provided a
“ spreadsheet ”
that
claimed
that
the
amount of $14,310.71
was
the total
amount
of the reduction of rent
allowed
by reference
to Orders and 1 and 2
made by
the
T ribunal .
The spreadsheet
also
demonstrate d
that
by
refer en ce to the Tribunal ’ s findings at [19] of its reasons, the
rent reduction should be $10,185.71.
As discussed previously, the Tribunal ordered
the rent
“ not exceed $650 pw ”
from 16 July 2021 to 25 November 2021; and
“ not exceed ”
$500 pw from 26 November 2021 to
15 July 2022.
The landlord asserts that there
is an error of law because
orders 1 and 2 declaring the amount of rent under s s
44 ( 1) (b)
and 44 (4) of the RT Act does not reflect the findings in paragraph [19] of the decision.
The relevant findings in paragraph [19] was that
rent was to be reduced by $100 pw from 16 July 2021 to 25 November 2021; and $250 pw from
26 November 2021 to
15 July 202 2 (the end of the tenancy).
The findings regarding the agreed amount of rent prior to the Tribunal determining a rent reduction was appropriate is
set out at paragraph [5]. The rent was $875 pw from July 2021 to
3 March 202 2 ; and from 4 March 202 2
to 15 July 2022 the rent was $750 pw.
Applying the above factual findings, the declared amount of rent payable should have been:
$775 pw from 16 July 2021 to
25 November 202 1.
$ 625 pw from 26 November 2021 to
3 March 2022.
$500 pw from 4 March 2022 to 15 July 2022 .
On the basis of
the findings made
at paragraph
[19] and if the tenant had paid the full rent at the amounts set out in paragraph [5] ,
the
amount or reimbursement would
on our calculation
be
as follows:
$100 pw from
16 July 2021 to 25 November 2021 (132 days
equating to 18.86 weeks)-$1, 886.
$250 pw from 26 November 2021 to
15 July
2022 (2 31
days equating to
33
weeks)- $ 8,250 .
Total: $ 10,136 .
T he
landlord
lo dg ed an application for a stay of
the Tribunal ’ s orders .
The stay was not granted because the landlord did not attend the hearing of the
stay
application .
No
amount for
reimbursement has been paid by the landlord to the tenant.
It is unfortunate the
landlord did not make an application to the Tribunal pursuant to the
‘ slip rule ’
under s 63 of the NCAT Act to amend the orders
or the reasons to c larify the orders made.
If
paragraph [19] contained a typographical error regarding the amounts of the rent reduction, and the orders identified
the correct amount of the declared rent payable , then
the applicable finding s at paragraph [19]
would
on our calculation
be as follows:
Rent reduction of $ 225 per week from 16 July 2021 to 25 November 2021.
Rent reduction of
$ 3 75 per week from 26 November 2021 to
3 March 2022.
Rent reduction of $ 250 per week from
4 March 2022 to 15 July 2022.
If they were the factual findings
and the tenant had paid
all of
the rent at the amounts set out in paragraph [5], then the amount of reimbursement would be as follows:
$225 per week
from 16 July 2021 to 25 November 2021 (18.86 weeks)-$ 4,243.50
$ 3 75 per week from 26 November 2021 to 3 March 2022
( 97 days equating to 13. 86 weeks)-$ 5,197.50
$250
per
week from 4 March 2022 to 15 July 2022 ( 133 days
equating to
19 weeks)- $4,750
Total:
$ 14, 191
The difference between the two amounts is approximately $4,000.
Unfortunately , from the written reasons of the Tribunal, we cannot
discern whether there is a typographical error in the amounts set out in the orders that were made, or a typographical error in the amounts set out in
paragraph [19] of the Tribunal ’ s decision .
There is a clear
inconsistency between the orders and the reasons.
Under those circumstances, we do not
regard it as an appropriate or
a
procedurally fair exercise of our powers under s 81 of the NCAT Act to
make any orders
setting aside
or varying the orders of the Tribunal;
or substituting our decision for the
decision of the Tribunal.
It is appropriate that the Member at first instance resolve that issue.
Regrettably, the matter will need to be
remitted back to the Member at first instance to determine whether the orders 1 and 2 are to be
varied to reflect the reasons in paragraph [19] ; or the amounts identified in the reasons in paragraph [19] are to be varied
to reflect orders 1 and 2.
The scope of the remittal is limited to that issue .
Upon remittal, the Tribunal may also determine that it is appropriate the decision
be without further oral hearing under s 50 (2) of the NCAT Act, subject to both parties being given an opportunity to make submissions on whether an oral hearing should be dispensed with (s 50 (3) of the NCAT Act).
Further, we strongly encourage the parties to have settlement discussions to attempt to resolve the amount of the reimbursement . A compromise may be
appropriate, considering the small monetary amount in issue. However, whether the remitted proceedings resolve
is a matter for the parties.
We note that in its orders the Tribunal did not quantify
the amount of reimbursement .
The Tribunal made an order (Order 3) that
any amount paid
in excess of
the rent reduction orders was to be repaid to the tenant. There is nothing inconsistent with the provisions of s 44 (1) (b) a nd (4) of the RT Act in the Tribunal framing its orders that way. It could have, if it chose to do so, made a
money order that a specific amount be reimbursed as an ancillary order under s 188 of the RT Act ,
but it was not obliged to make such an order .
The
benefit s
of ordering a
specific
amount is to be repaid
are
clarity and finality .
Costs
Order 6(2)
under the heading
“ Notes ”
in
the
procedural
orders for the
hearing of the
appeal
made
by the Appeal Panel
on
18 January 2023 ,
required any party
seeking to make an
application
for costs of the appeal to lodge and serve any submissions on costs
“ at the same time as their submissions
in relation
of
the appeal . ”
Neither party provided submissions on costs
and it is unclear to us whether a party seeks to make a costs application.
Unless a party files with the
Appeal Panel and serves on the other party written notice that they are seeking to make a costs application within 14 days from the date of this decision, we do not propose to make any costs order s .
We point out that
because the amount claimed or in dispute in the appeal is less than $30,000 ,
by reason of the operation of s 38A of the NCAT Rules and ss 60 (1) (2) and (3) of the NCAT Act,
for any costs application to be successful ,
the party seeking costs would have to establish
“ special circumstances ”
sufficient
for a costs order to be made .
Neither party was legally represented in the appeal.
If a costs application is made, we will issue further procedural directions regarding the filing and serving of costs submission and documents to facilitate the disposition of the costs application. If no cost application is made, there will be no order as to the costs of the appeal.
Orders
We make the following orders:
Appeal allowed, in
part.
Matter remitted to the Tribunal Member at first instance to determine whether the amounts identified in Orders 1 and 2 are amended to reflect the amounts in paragraph [19] of the reasons dated 2 December 2022 in Matter RT 22/31478 or whether paragraph [19] of the reasons is amended to reflect the amounts identified in Orders 1 and 2.
Appeal otherwise dismissed.
Any party seeking to make a costs application is to inform the Appeal Panel and the other party in writing within 14 days of the date of this decision that a
costs application is being made.
**********
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:
18 July 2023
Official source: https://www.caselaw.nsw.gov.au/decision/1896265031d631e227d9b758