Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chen v Lie [2021] NSWCATAP 34 Hearing dates: 27 January 2021 Date of orders: 17 February 2021 Decision date: 17 February 2021 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member R C Titterton OAM, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. Catchwords: LEASES AND TENANCIES – Residential tenancies – Appeal from Tribunal decision where no evidence filed by Tenant – no question of principle Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013, ss 80, Sch 4 , cl 12 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Pholi v Wearne [2014] NSWCATAP 78 Category: Principal judgment Parties: Jing Chen (Appellant) Yun Chuan Lie (Respondent) Representation: Appellant (Self Represented) J Feng (Agent) (Respondent) File Number(s): AP 20/46555 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 21 October 2020 Before: M Tibbey, Senior Member File Number(s): RT 20/31544 REASONS FOR DECISION Overview 1. The appellant (the Tenant) appeals from a decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal (the Tribunal) of 21 October 2021 (the Decision). In the Decision, the Tribunal ordered the Tenant to pay the respondent (the Landlord) $242.15, and directed Rental Bond Services to pay the Landlord the whole of the relevant bond plus interest. 2. The Decision concerned an application brought by the Landlord. She had sought various orders following the Tenant's vacation of the residential premises including payment of the bond, an occupancy fee and an additional amount for cleaning. There was a contested hearing before the Tribunal at which both parties appeared. However, as we explain below, the Tenant did not file any documents in response to the Landlord's application. 3. Following the hearing, the Tribunal provided a detailed decision in favour of the Landlord. The Tenant has appealed to the Appeal Panel, saying that the Decision was not fair and equitable, and against the weight of the evidence. 4. For the reasons set out below, we have decided not to grant leave to appeal, and to dismiss the appeal. Background 1. It was common ground that the Tenant had occupied the Landlord's premises for approximately 5 ½ years. The Tribunal found that at the conclusion of the tenancy, the Landlord's agent conducted a final inspection, that the property was left dirty, insufficiently cleaned, with cockroaches present and "heavy grease" on the stove, rangehood and nearby cabinets. In addition, photographs provided to the Tribunal showed that the stovetop was greatly marked, the burners were very black and that the surrounding areas, including the tiles and cabinets, were "very dirty". 2. The Tribunal allowed the Landlord's claims for replacement of the stove top ($410), replacement of the kitchen rangehood ($310), replacement of locks on bedroom doors ($315), for the repair of a kitchen drain pipe ($180), and for cleaning of the premises ($300). In addition, $57.15 was allowed as an occupancy fee. In summary, the Tribunal accepted the claims of the Landlord, and ordered the Tenant to pay her $242.15, and ordered Rental Bond Services to release the bond to the Landlord in full. Grounds of Appeal 1. The Tenant told the Appeal Panel that her Notice of Appeal encapsulated the errors she claimed that the Tribunal made in the Decision. In summary, these were as follows: 1. No amount should have been allowed for the stove top, which worked well; 2. No amount should have been allowed for the rangehood, which stopped working three months before the Tenant vacated the premises. The Tenant advised the Landlord at the time, but the Landlord did not undertake any repairs; 3. No amount should have been allowed for general cleaning, as the Tenant cleaned the bathroom, bedroom, oven toilet and kitchen well; 4. No amount should have been allowed for the replacement of the kitchen drain pipe, as the hole was not made by the Tenant, and was already there, when the tenancy commenced. 1. In addition, the Tenant told the Appeal Panel that the Landlord had lied in her documents and at the hearing before the Tribunal. 2. Finally, the Tenant also asked the Appeal Panel to place the Landlord's agent on a "black list" because of its conduct. We explained at the hearing, that even were we minded to do so, the Appeal Panel has no power to make such an order. Evidence relied on at the Appeal 1. For her appeal, the Tenant filed various bundles of documents, on 13 November, 16 November and 18 November 2020, and 11 January 2021. The first bundle included photographs of the premises. The second bundle included a response to a "statement of amended application" of the Landlord made before the Tribunal (again including some photographs). The third bundle included an email from the Tenant to the Landlord's agent and a further copy of photographs previously submitted. The fourth bundle includes two pages of submissions, photographs and correspondence between the parties with the Tenant's handwritten annotations. 2. None of this material was before the Tribunal. The Tenant confirmed at the appeal hearing that she had provided no documents at all for that hearing. 3. For the reasons we explain below, we do not consider that the Tenant should be allowed to rely on any evidence which was not before the Tribunal, but was available at the time. Nature of an appeal 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). A question of law 1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. 2. In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise). 3. We have undertaken that exercise, but we cannot identify any error of law in the Tenant's Notice of Appeal. Accordingly, the Tenant requires the leave of the Appeal Panel to bring her appeal. Leave to appeal 1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 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. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that: (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. 1. Even if the Tenant establishes that she may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. The Tenant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. Consideration 1. We commence our consideration by dealing with the Tenant's materials filed in support of her appeal. The rule is that an appellant cannot rely on evidence at the appeal which was not before the Tribunal at first instance, unless that evidence was not reasonably available at the time of the hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. Quite clearly, the evidence that the Tenant seeks to rely on was evidence that was reasonably available at the time of the Tribunal hearing. For instance, there are emails between the parties which pre-date the Tribunal hearing. And there were photographs of the premises which were taken prior to vacant possession of the premises being given by the Tenant to the Landlord. 2. Accordingly, we will not take account of the evidence filed by the Tenant on appeal. We will however consider her submissions contained in her bundle. 3. The Tenant says that the Decision is not fair and equitable, and against the weight of the evidence. We disagree. The Decision was clearly based on the evidence before the Tribunal, which included the residential tenancy agreement, the tenant's rental ledger, the ingoing and outgoing condition reports, many photographs showing the state of the premises at the conclusion of the tenancy, and an invoice relied on by the Landlord. As we have noted, the Tenant filed no materials at all. 4. Having considered the material before it, the Tribunal, in our view, applied the correct law in coming to the Decision, which was clear, considered and detailed. 5. Accordingly, we are not satisfied that the Tribunal made a factual error that was unreasonably arrived at or clearly mistaken, or that the Tribunal went about the fact finding process in an unorthodox manner or in such a way that produced an unfair result. Therefore, we are not satisfied that the Tenant may have suffered a substantial miscarriage of justice in the sense described above. But even if we had, in the exercise of our discretion, we would not have granted leave to appeal. Costs 1. In her documents, the Landlord sought costs in the event that she was successful. We explained to Mr Feng that the rules provide that costs can only be awarded in "special circumstances". Mr Feng submitted that there were special circumstances constituted by the costs of travel and attendance at the hearing. 2. The principles regarding the awarding of costs in "special circumstances" are well established. In eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 the Appeal Panel stated at [48]: "The authorities considering the meaning of the expression "special circumstances" were recently reviewed in CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]- [31]. From those authorities, it can be seen that "special circumstances" are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional. Further, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs." 1. The Landlord has not advanced any matters which would establish "special circumstances". The Landlord has simply stated that she has borne costs in defending the appeal. While it is regrettable that that has happened, in circumstances where the appeal was dismissed, we are not satisfied that there are any special circumstances warranting an award of costs. Orders 1. For the above reasons, we make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 17 February 2021