Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Robinson v MSW Real Estate Pty Ltd t/as Ray White Meadowbank [2020] NSWCATAP 145 Hearing dates: 8 July 2020 Date of orders: 20 July 2020 Decision date: 20 July 2020 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member L Wilson, Senior Member Decision: (1) Leave to appeal is refused. (2) Appeal is dismissed. (3) No order as to costs. Catchwords: RESIDENTIAL TENANCY - leave to appeal sought - against the weight of the evidence - leave refused – no issue of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Rules 2014 (NSW) Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: David Manoa Robinson (First Appellant) Guiying Zhang (Second Appellant) MSW Real Estate Pty Ltd t/as Ray White Meadowbank (Respondent) Representation: Ms Lin, Solicitor (Appellants) Mr Lee, Director, MSW Real Estate Pty Ltd (Respondent) File Number(s): AP 20/18789 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 24 March 2020 Before: G Ellis, Tribunal Member File Number(s): COM 20/01435 reasons for decision Introduction 1. The Appellants are the landlords of residential property at Meadowbank. The Respondent is the real estate agent engaged by the Appellants to manage a tenancy in 2018 to 2019. The Appellants complained about the Respondent's performance as real estate agent looking after that tenancy. On 10 January 2020, the Appellants commenced proceedings against the Respondent seeking compensation of $2,797 plus costs. 2. The Tribunal dismissed the Appellants' claim. 3. This is an internal appeal from the decision of the Tribunal made on 24 March 2020 (the Decision). 4. For the reasons which follow we have decided to dismiss the appeal. Background 1. The Appellants' claim for compensation of $2,797 against the Respondent was relevantly based upon the following two matters: 1. A claim for $980 for two weeks' rent, referrable to the period from 24 November to 7 December in 2018, alleged to have been received by the Respondent prior to the commencement of a tenancy agreement on 8 December 2018 in relation to a residential property at Meadowbank in respect of which the Appellants were the landlord. 2. A claim for $1,817 for rent not received during the period from 27 November and 20 December in 2019 when that property was not producing rent, alleged to be due to the conduct of the Respondent. 1. The Appellants entered into a management agency agreement with the Respondent shortly after 15 October 2018. The Appellants were advised by the Respondent of a potential tenant who was said to want to move in on 8 December 2018. 2. On 31 December 2018, the Appellants received their first rental payment from the Respondent for the period from 8 – 28 December 2018. 3. On 4 November 2019, the Appellants gave the Respondent 30 days' notice of termination of the managing agent agreement. The following day they requested and received a copy of the tenancy agreement, dated 24 November 2018, which shows a 50-week term from 8 December 2018 to 24 November 2019. 4. On 11 November 2019, the Respondent advised the Appellants that the tenant had just given 14 days' notice that the tenant was going to vacate the premises. 5. In response to a question from the Appellants on 13 November 2019 the tenant suggested, via SMS message, that the first week for which they paid rent was 26 November 2018 to 2 December 2018. On 18 November 2019, the Appellants sent an email to the tenant seeking the "confirmation of the lease start date" but there was no response. 6. To support the Appellants' claim that the Respondent had received $980 for two weeks rent, referrable to the period from 24 November to 7 December 2018, which had not been provided to the Appellants, the Appellants tendered electricity and gas consumption information from Evergy Pty Ltd which suggested, in relation to electricity: 1. Little electricity usage prior to 23 November 2. Increased varying electricity usage between then and 5 December 3. Constant, low usage from then until 6 January 4. Increased varying usage after that date. 1. In relation to gas, a graph was tendered, which suggested: 1. No usage prior to 25 November. 2. Increased varying gas usage between then and 5 December. 3. No usage from then until 6 January. 4. Increased varying usage after that date. 1. The Appellants relied upon the SMS message from the tenant and the consumption evidence from Evergy Pty Ltd to support its claim that the Respondent had received $980 for two weeks rent which had not been accounted for to the Appellants. The Tribunal's reasoning 1. The Tribunal at [11] referred to the energy consumption information from Evergy Pty Ltd tendered by the Appellants and stated that "although the page containing those details suggests a date range of "Aug 1, 2018 – Feb 18, 2020" the page provided only covers a period from "Nov 09" to "Feb 09" which leaves open the question of whether that page relates to that period in 2018 – 2019 or 2019-2020." 2. The Tribunal then referred to the Respondent's tendered documents which consisted of the rent ledger and the bank statement. These documents reveal payments totalling payments of 50 weeks rent plus a final payment of $210. 3. The rent ledger showed that the initial payment of $980, received by the Respondent on 21 November 2018, was made referrable to the first two weeks of the lease, i.e. from 8 December 2018 – 21 December 2018. The Tribunal stated that this was "consistent with the initial payment being made as a deposit and then subsequentially recorded on Wednesday 12 December 2018 as rent shortly after the term of the tenancy agreement commenced on Saturday 08 December 2018": see [12] of the Decision. 4. The Tribunal then referred to the "firm oral denial of this allegation during the hearing": see [12] of the Decision. 5. The Tribunal's conclusion on this issue was expressed at [14] of the Decision as follows: 14 On the issue now under consideration, there is, for the Applicants, a suggestion based on an sms message response from a tenant almost a year after an event, not confirmed by that tenant when confirmation was requested, and equivocal evidence from an energy supplier. Against that, the evidence of the Respondent is a first-hand denial that is supported by business records and bank statements. Weighing the evidence of the Applicants and the Respondent on this issue, which, if true, would constitute serious misconduct on the part of the Respondent, the Tribunal is unable to be reasonably satisfied the allegation has been proved with the result that this claim is rejected. The Notice of Appeal 1. Ms Lin, Solicitor, appeared for the Appellants. Mr Lee, Director of the Respondent, appeared for the Respondent. Mr Lee accepted that the notice of appeal was filed within time and hence, the Appellants did not need an extension of time for their appeal. 2. Ms Lin only pursued one ground of appeal, namely, that the Decision of the Tribunal to dismiss the claim of $980 for two weeks rent was against the weight of the evidence, in particular the SMS message from the tenant of 13 November 2019 and the consumption information from Evergy Pty Ltd. 3. Ms Lin agreed that no error of law was involved in this submission and leave to appeal would be required: see s 80(2) Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 4. Ms Lin also confirmed that the Appellants were not relying upon the additional evidence that had been filed in the Appeal. 5. Ms Lin's submissions essentially repeated the submissions made before the Tribunal at first instance. We have already summarised those submissions at [10] – [13] above. In particular, the Appellants submitted that the evidence as to the energy consumption for the premises made it unlikely to be for the period 2019-2020. 6. We note that an internal appeal before the Appeal Panel is not a hearing de novo. An appellant is required to show that the Tribunal at first instance has fallen into error. Further, because the identified error is other than in respect of a question of law, the Appellants are required to demonstrate why leave to appeal should be granted. Should leave to appeal be granted? 1. The Appellants did not make any submissions at the hearing of the appeal as to why leave to appeal should be granted. 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that 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. 1. In Collins v Urban, the Appeal Panel at [84] stated that, 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] and authorities cited there. 2. We have decided for the following reasons to refuse leave to appeal. First, we note the amount involved is relatively small – $980. Secondly, no issue of principle or question of public importance or policy which might have general application is involved. 3. Thirdly, it is our view that the Tribunal's conclusion on the facts was reasonably open to it. In particular, the Tribunal was entitled to place significant reliance upon the denial of the Respondent that it had received the rent in question and that this was supported by the bank statements and rental ledger. 4. In other words, the reasoning process at [14] of the Decision and the conclusion arrived at does not demonstrate a factual error that was unreasonably arrived at nor one that was clearly mistaken. Further, it is our view that the Tribunal has not 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. 5. Accordingly, we refuse leave to appeal and we will dismiss the appeal. Costs 1. The Respondent did not seek an order for costs in its favour. As a result, there will be no order as to costs of the appeal. Orders 1. The Orders of the Appeal Panel are as follows: 1. Leave to appeal is refused. 2. Appeal is dismissed. 3. No order as to costs. ********** 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: 20 July 2020