Civil and Administrative Tribunal New South Wales Medium Neutral Citation: MacDonald v Post [2020] NSWCATAP 261 Hearing dates: 11 November 2020 Date of orders: 10 December 2020 Decision date: 10 December 2020 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member D Charles, Senior Member Decision: The appeal is dismissed. To the extent necessary, we refuse leave to appeal on grounds other than a question of law. Catchwords: LANDLORD AND TENANT – covenants – reasonably clean and fit to live in – quiet enjoyment – breach by landlord – no questions of law identified or apparent – grounds not made out for leave to appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Schedule 4 cl 12(1)(c) Cases Cited: Collins v Urban [2014] NSWCATAP 17 House v R (1936) 55 CLR 499 Texts Cited: Nil Category: Principal judgment Parties: Selda MacDonald (Appellant) Danielle Post (First Respondent) Andrew Burns (Second Respondent) Representation: Appellant (Self-Represented) Respondents (Self-Represented) File Number(s): AP 20/36755 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 29 July 2020 Before: G Ellis SC, Senior Member File Number(s): RT 20/22558 and RT 20/22855 REASONS FOR DECISION 1. The appellant owns a two-bedroom house at Haberfield, NSW. The appellant rented the house to the respondents under a twelve-month residential lease commencing on 23 September 2019 at a weekly rent $710 with a rental bond of $2,840. 2. Consequential upon a faulty roof and resultant water ingress, mould took hold in the second bedroom which made it uninhabitable. Attempts were made to repair the roof and remove the mould. As a result of the mould the respondents terminated the lease early and commenced proceedings in the Tribunal seeking compensation (RT20/22558). The appellant commenced proceedings in the Tribunal seeking a break fee, arrears of rent and compensation for alleged damage to the property (RT 20/22855). 3. The two proceedings were heard together. The Tribunal found in favour of the respondents and dismissed the appellant's claims. 4. The appellant appeals both decisions. In substance, this appeal is no more than the appellant re-putting submissions she first put to the Tribunal. In our opinion the appellant has not demonstrated any error in the Tribunal's decision (none were identified in the Notice of Appeal, written or oral submissions, and none are discernible to us) and the appeal must be dismissed. Background 1. In the 2018-19 year there were 68,388 new applications filed in the Tribunal. Of those 30,203 were tenancy matters, an average of 121 new applications per working day. 99.8% of those tenancy matters were finalised within 12 months. It is clear that the Tribunal's workload is high. 2. In this case some 450 pages of documents were submitted by the parties (omitting repeated documents) in a case in which the final amount found owing by the appellant to the respondent was $2,783. 3. Notwithstanding the Tribunal's workload, and the modest amount in dispute, the Senior Member who decided this case read every document provided and analysed them in order to do justice to the parties – see [8] of the Tribunal's reasons. The Senior Member concerned could only be commended for such an approach. 4. The central issue in the case was the mould. The Tribunal correctly said at [30]: "These proceedings depend on the position in relation to the mould, since that is the basis upon which the tenant relies to allege a breach of the tenancy agreement that entitled her to terminate and claim compensation. For that reason, it was necessary to closely consider the various expert reports which have been included by the parties in the evidence placed before the Tribunal in these proceedings. Such reports are considered below, in chronological order. 1. The Tribunal then set out a summary of the various expert reports in chronological order and made express reference to the salient parts of those reports. The Tribunal referred to non-expert evidence where relevant, consisting mostly of contemporaneous records and objective evidence, and at [44] made the following findings (with corrections for obvious typographical errors): "Having regard to the evidence and the submissions, the Tribunal makes the following findings in relation to the house and tenancy: (1) The landlord knew of the need for roof repairs as early as October 2019. (2) The house sustained water ingress due to a storm on 17 January 2020. (3) Further water ingress occurred due to a storm on 09 February 2020. (4) The cause of that water ingress was a failure to maintain the house's roof. (5) As a result of what water ingress, fans and a humidifier were required. (6) As a result of that water ingress, mould developed. (7) That mould was both on surfaces and in the air inside the house. (8) The water ingress also resulted in a bad odour inside the house. (9) The tenant's son was at risk of suffering respiratory distress due to mould. (10) The second bedroom was not fit for habitation from late January 2020. (11) That made conditions in the main bedroom more crowded from then." 1. The Tribunal found that the appellant had breached cl 18.1 of the residential tenancy agreement which required the appellant to provide premises which were reasonably clean and fit to live in, and breached cl 14.2 of the residential tenancy agreement and s 50 of the Residential Tenancies Act 2010 (NSW) ("RTA") which required the appellant not to interfere with the respondents' right to quiet enjoyment of the premises. 2. The Tribunal awarded the respondents $100 p/wk for 14 weeks for the impact of the mould on the respondents, $100 for extra electricity used to run machinery to try and dry the damp, and $1,283 for expert inspections and reports. 3. The Tribunal dismissed the appellant's claim for a break fee because the Tribunal found the respondents had not abandoned the premises, rejected the appellant's claim for arrears of rent for lack of evidence and rejected the appellant's claim for damage to a carport for the following reasons: "As to the claim for damage to the carport, there do not appear to be any photos showing the condition of the carport prior to or at the commencement of the tenancy. The photos that have been provided do not clearly indicate the nature and extent of the damage: there is an appearance of some damage to the carport roof in the first two photos and an appearance of movement of a support in the last two photos but there is no evidence as to the cause and there is only hearsay evidence of the claimed cost of repairs. Although the landlord indicated that two builders had attended and provided a quote, they were presumably verbal quotes as no such documents were provided to the Tribunal. In these circumstances, the landlord has not discharged the onus of proof she bears in relation to this claim. No explanation was provided as to why the landlord noticed damage to the carport sometime after the tenant had vacated, despite a detailed earlier exit inspection by the landlord's agent." Extension of Time to Appeal 1. The appeal was filed a day or two late and the appellant requires an extension of time to appeal. No relevant prejudice having been suffered by the respondents we extend the time to appeal to the date of filing the Notice of Appeal. The Appeal 1. The Tribunal's NCAT Guideline 1 – Internal Appeals succinctly says: "What can be done on an internal appeal? 3. On an internal appeal from a final decision, the Appeal Panel can consider whether the Tribunal which originally heard the proceedings made an error of law. The Appeal Panel may also consider, if it gives permission or 'leave', whether any other error was made in reaching the original decision. If there has been an error of law or the Appeal Panel gives leave and finds that there has been any other error, orders are made to correct the position. 4. Generally, an appeal is not an opportunity to have a second go at a hearing." 1. We appreciate the appellant is not legally trained, but her grounds of appeal did not attempt to identify any errors of law, or other errors, in the Tribunal's decision. Her grounds of appeal, as contained in her Notice of Appeal, consisted of six pages of submissions which would have been appropriate to advance at the hearing but are inapt for an appeal and inapt as grounds of appeal. 2. It is fundamental to an appeal at NCAT for there to be an error which involves a question of law [per s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act")], or for the appellant to show that he, she or it may have suffered a substantial miscarriage of justice because the appellant is able to show that the decision of the Tribunal under appeal was not fair and equitable, was against the weight of evidence, or because significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) [per cl 12 of Schedule 4 of the NCAT Act]. Without one or more of those things, no appeal can succeed. 3. The appellant has not identified any errors involving a question of law in the Tribunal's decision. We have, independently of the appellant's submissions, examined the Tribunal's decision but we cannot discern any errors involving a question of law (nor any other errors). 4. The appellant submits that she may have suffered a substantial miscarriage of justice because the decision of the Tribunal was not fair and equitable. To make good this submission she would need to persuade us that she was denied procedural fairness in some way, and there was a significant possibility, or a chance which was fairly open, of a different and more favourable result had she not been subjected to that procedural fairness – see Collins v Urban [2014] NSWCATAP 17 at [76]-[77]. However, the appellant does not allege any denial of procedural fairness nor is any apparent to us. 5. The appellant also submits that she may have suffered a substantial miscarriage of justice because the decision of the Tribunal was against the weight of evidence. "Against the weight of evidence" means that the evidence, in its totality, preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal Member could reach – Collins at [77]. 6. That has not been demonstrated here. The evidence referred to by the Tribunal at [31]-[42] of its reasons is clearly in the respondents' favour as explained by the Tribunal, and the balance of the evidence to which the appellant refers is either irrelevant to the issues or, where relevant, does not preponderate so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal Member could reach. Indeed, it was a feature of this appeal that the appellant did not grapple with the evidence referred to by the Tribunal. 7. The appellant seeks to rely on evidence which she did not give to the Tribunal. One example is her assertion (not contained in any sworn statement or affidavit) that she contacted all the mould companies engaged by the respondents and asked them specifically whether they attended the premises and they all answered "no". This was relevant, she submitted, to the Tribunal's finding that the author of the MouldPlus report dated 3 March 2020 inspected the premises. However, the appellant has not demonstrated, as is required by cl 12 of Schedule 4 of the NCAT Act, that any of this new evidence was not reasonably available to her at the time of the hearing before the Tribunal. Accordingly, we will not consider this new evidence. 8. On the hearing of the appeal, we asked the appellant, more than once, to identify what errors she said the Tribunal had made. The appellant identified a number of complaints she had with the Tribunal's decision. We shall address each in turn. 9. The appellant submitted that "critical evidence and supporting documents … do not seem to have been reviewed nor considered". We reject this submission. The Tribunal expressly said that all of the documentation submitted was read. The Tribunal went on to say, at [8], that: "… in these reasons reference is only made to those documents which were referred to by the parties in their oral submissions or which are otherwise relevant to the claims pursued at the hearing in these proceedings." 1. The documents not referred to by the Tribunal, but referred to by the appellant in her submissions, fell into one of those two categories, and the appellant has not identified any document not mentioned in the Tribunal's reasons which is of any relevance to the legal and factual issues in dispute in this case and particularly to the appeal. 2. The appellant submitted, more than once, that she had taken steps to rectify the leaking roof and other matters. But that is not to the point. She was found liable to the respondents because the Tribunal found she was in breach of the terms of the tenancy agreement and the RTA that the premises were not reasonably clean and fit to live in, and that the appellant interfered with the respondents' right to quiet enjoyment, not that she had failed to take steps to rectify the problems. It seems, on the evidence, that she did take some steps to rectify the leaking roof and resultant mould problem, but those attempts were insufficient to ensure the appellant met her contractual and statutory obligations. 3. The appellant submitted that the allegation that mould was present was false and untrue. This assertion of falsity was not put to the respondents in cross-examination. Indeed, the appellant did not cross-examine the respondents at all. Not having put that allegation to the respondents, and not having given them a fair opportunity to respondent to it, that allegation cannot now be raised for the first time on appeal. 4. The appellant submitted that there was no evidence for the Tribunal's finding that the appellant knew of the need for roof repairs as early as October 2019. This submission is incorrect. At [39] of its reasons the Tribunal referred to the particular evidence as follows: "Copies of text messages reveal that roof repairs were under consideration as far back as 28 October 2019 …" 1. The appellant submitted that the Tribunal should not have extended time for the respondents to commence proceedings. The reasons of the Tribunal on that issue were as follows: "[23] The combined effect of section 190 of the Act and reg 22 of the RTR is that the tenant should have commenced within three months. of becoming aware of the damage. On the basis that water damage occurred on 17 January 2020, that would suggest 17 April 2020. However, the basis of the claim was mould and, although there was evidence that the insurance assessor suggested on 22 January 2020 that the tenant's son should not be sleeping in the second bedroom, it was not until 13 February 2020 that mould was detected in the house. Even taking 13 February 2020 as the starting point, the commencement of proceedings on 22 May 2020 is outside the three-month period. [24] However, section 41 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) provides the Tribunal with the power to grant an extension of time. The Appeal Panel decision in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] sets out the relevant considerations. [25] Here, the length of the day is quite short and there is a compelling reason for the delay in that these proceedings were commenced later the same day as earlier proceedings based on the same subject matter were dismissed because the tenancy had come to an end. There is evidence available to the tenant which suggests she has an arguable case and there does not appear to be any prejudice that would be suffered by the landlord. However, if the tenant is found to have a case, a strict application of the time limit would work an injustice on the tenant by denying her claim for compensation." 1. This was a discretionary decision and so one or more of the five types of error identified in House v R (1936) 55 CLR 499 would need to be established. None were identified by the appellant and none are apparent to us. 2. No other matters of complaint were identified by the appellant in her oral submissions. Conclusions 1. In our opinion there is no error of law apparent in the Tribunal's decision, nor does it appear the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable or was against the weight of evidence. 2. Rather, all indications are that the Tribunal's decision was correct. Orders 1. The appeal is dismissed. To the extent necessary, we refuse leave to appeal on grounds other than a question of law. ********** 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: 10 December 2020