Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McGann v St George Community Housing [2021] NSWCATAP 43 Hearing dates: 4 December 2020 Date of orders: 25 February 2021 Decision date: 25 February 2021 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Robertson, Senior Member Decision: (1) To the extent leave is required, leave to appeal is refused. (2) The appeal is dismissed. Catchwords: LANDLORD & TENANT-social housing residential tenancy-claims for compensation and reduced rent-new points on appeal not permitted – new evidence not presented to Tribunal - no appealable error established. Legislation Cited: Civil and Administrative Tribunal Act (NSW) (2013) Residential Tenancies Act (NSW) (2010) Residential Tenancies Regulation 2019. Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Coulton v Halcombe [1986] HCA 33; 162 CLR 1 Hudson v Arp 1 (NSW) Pty Ltd [2014] NSWCATAP 31 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438 Category: Principal judgment Parties: David McGann (First Appellant) Annielea McGann (Second Appellant) St George Community Housing (Respondent) Representation: Appellants (Self Represented) Respondent (Self Represented) File Number(s): AP 20/41446 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 11 September 2020 Before: D Ash, General Member File Number(s): SH 20/11390 REASONS FOR DECISION 1. The appellants have been occupants of a unit in social housing premises in Sydney since June 2017. They appeal from a decision dismissing claims made by them for various relief, including compensation and/or a reduced rent. 2. For the reasons set out below, we have decided that leave to appeal should not be granted and that the appeal should be dismissed. Background 1. The residential premises are a two-bedroom unit on the ground floor of a large block of units. 2. The appellants occupy the unit under a residential tenancy agreement. This agreement was between the first mentioned appellant (Mr McGann) and the respondent (the Landlord). The agreement was for a fixed term ending on 20 September 2017 and continued thereafter as a periodic residential tenancy agreement. 3. Although Mr McGann was named as the tenant in the residential tenancy agreement, both he and the second mentioned appellant (Mrs McGann) were named as applicants in the proceedings commenced in the Tribunal. No point about this appears to have been raised in the Tribunal and it is unnecessary for us to say anything more about it, in view of the decision we have arrived at. 4. In the application commencing the proceedings, various orders were sought under s 187 of the Residential Tenancies Act 2010 (NSW) (RTA), including a claim for $15,000 and a claim for an order that the Landlord take steps to remedy a breach of the residential tenancy agreement. Orders were also sought under s 65 of the RTA for the Landlord to carry out repairs. 5. Four claims were, briefly, described in the application. By the hearing at first instance this had increased to seven claims. 6. In broad terms, those seven claims were as follows: 1. A claim that the Landlord should carry out work to assess the electrical wiring at the unit (the electricity charges claim). This was a claim provoked by what the appellants saw as unreasonably high electricity charges that they were experiencing. 2. A claim in respect of overcharging in respect of water usage (the water charges claim). 3. A claim in respect of disturbance from antisocial behaviour (the antisocial behaviour claim). 4. A claim that the Landlord ensure that rainwater pumps at the block of units be fixed and put into operation (the rainwater pumps claim). 5. A claim for failure to repair in a timely fashion a sewage outlet in the laundry of the unit (the sewage gas claim). 6. A claim that the unit obtain the benefit of the supply of electricity from solar panels that had been installed at the block of units (the solar panels claim). 7. A claim for failure to ensure that the unit was built in compliance with the relevant building code (the building code claim). The Tribunal's decision 1. On 11 September 2020, following a hearing that day, the Tribunal ordered that the application be dismissed. 2. Written reasons, dated 14 September 2020, for dismissing each claim were supplied. 3. In summary, Claim 1 was dismissed because the Tribunal concluded that the appellants had failed to establish that there was wiring in need of repair. It concluded that it could not infer from high electricity charges that this was the result of defective internal wiring. 4. Claim 2 was dismissed because the Tribunal concluded it did not have power to make an order that the Landlord had failed to raise water charges in accordance with the Ministerial guidelines. The Tribunal made no finding as to whether or not the water charges levied had not complied with the relevant guidelines. The Tribunal said: 15 It appears that the landlord, purportedly acting in accordance with the guidelines, has determined that premises which have separate meters but which do not receive a separate bill from the provider, will be treated by it as a shared meter dwelling, with the result in this case that if the tenants' premises is, notwithstanding its separate meter, "a shared meter dwelling", they have been paying more than they ought to have. 16 The evidence was that the provider sends a bill to the landlord with a general amount owing and a usage breakdown for each unit of the block. The issue between the parties was whether or not this amounted to "a separate bill" within the guidelines. 17 This does not need to be determined. More accurately, it cannot be determined. There was no dispute that the Tribunal can make a money order in accordance with section 139 (1) of the Act. However, the relief sought by the tenants is different. It is, in effect, a declaration that the landlord has failed to raise charges in accordance with the guidelines. Assuming without deciding that was so, the Act contains no power to make such a declaration. There may be a remedy, but it is not a remedy that the Tribunal has power to give. 1. Section 139 of the RTA, to which the Tribunal referred, relevantly, provides: 139 Social housing tenants to pay charges for water (1) Charges payable A tenant under a social housing tenancy agreement must pay to the landlord any charges, determined in accordance with guidelines approved by the appropriate Minister, in respect of water usage by the tenant. (2) Guidelines for payment of charges The guidelines may provide for the determination of the charges by reference to any of the following— (a) actual usage or estimated usage, (b) the income of the tenant, (c) the rent payable by the tenant (whether with or without rent rebate). …. (4) The guidelines are to be made publicly available. 1. Claim 3 involved two different claims. The first claim concerned complaints about the conduct of a neighbouring tenant who had, it was thought, left the premises in May 2019. It concerned conduct of that tenant in 2018 and 2019. The Tribunal rejected this claim on the ground that it was out of time, presumably, because of the three- month time limit for claims of breach of the residential tenancy agreement prescribed in Regulation 39 of the Residential Tenancies Regulation 2019. 2. The second claim involved in Claim 3 was concerned with alleged abusive behaviour arising out of disputes about parking at or outside the premises. The Tribunal rejected this claim on the ground that insufficient particulars of the behaviour in question had been supplied to the Landlord so as to establish a breach by the Landlord of s 50 (3) of the RTA. 3. Section 50 of the RTA, to which the Tribunal referred, relevantly, provides: 50 Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement. 1. Further in relation to Claim 3, insofar as the remedy sought was a rent reduction, the Tribunal dismissed the claim for such remedy on the basis that no relevant reduction or withdrawal of facilities or services had been identified. 2. Claim 4 was dismissed because the appellants had failed to show that the Landlord owed them any obligation to provide the service of operative rainwater pumps. Furthermore, in so far as the claim was concerned with mould at the unit, the Tribunal found that the appellants had not shown that the mould was caused by the inoperative rainwater pumps. 3. Claim 5 was dismissed because the appellants had failed to show that the Landlord had been in breach of duty in failing to repair in a timely fashion. 4. Claim 6 was dismissed because the appellants had failed to identify any obligation by the Landlord to ensure the supply of electricity from the solar panels. 5. Claim 7 was dismissed because the Tribunal concluded there was no obligation owed by the Landlord to the tenant in respect of the standard to which the premises needed to be built. The limited appeal right 1. Under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. 2. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, as this is, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 of Schedule 4 of the NCAT Act on the basis that: …..the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) 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 concerning the grant of such leave to appeal are to be found in Collins v Urban [2014] NSWCATAP 17 (at [82]-[84]). In Collins, the Appeal Panel (at [84]) stated that ordinarily it will only be appropriate to grant leave to appeal 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." (Citations omitted) The grounds of appeal 1. In the section of the Notice of Appeal lodged on 29 September 2020 which set out the grounds of appeal it was stated: Electricity Audit: a wiring diagnostic of my unit was never performed. Neither [the respondent] nor I gave this evidence. Considering all the other properties with similar issues and my direct next door neighbour having cross wiring, sending someone out to perform this on my unit is not a big ask. Excess Water Charges: the Member did in fact find this to be evident that they are not charging me in accordance with their policies but stated he had not the power to rule this. Antisocial Behaviour: we have now proof that the tenant that states is not a tenant has in fact lived here for at least two years. I also have more dates, times and photos of the antisocial behaviour happening all submitted to [the respondent]. Rainwater Pumps: is it not the duty of a landlord to fix pre-existing fixtures. I don't understand how the Member did not find this [to be] the case. By telling the Member that the cost was too high [for]a charity to fix, how is that relevant in any case involving the Residential Tenancies Act. Sewage Gas: Sufficient evidence was submitted. A work order submitted by me to [the respondent] in regards to a bad smell coming from laundry and nothing but sending an electrician to put a fan in the laundry, not a plumber to look down the drain to see where the smell was coming from, a year prior to fixing the issue. Solar Power Panels: Apparently I have an account number and everything with Energy Locals Account [number given]. I even paid 10c from my card towards it and it went through so there is some kind of fraudulent activity going on. Not to Code: I have paid for an independent building inspection report since submitting evidence of this and they point out general building code mistakes, not the ones that are exactly for [the respondent] as mine and the rest of the units on the block are built to another code using disability access in most of it as we have wider doors, lower cupboards etc but the evidence I submitted should have been sufficient. You can't tell me that the grant from the government like [the respondent] is the code which these properties were built. 1. The Notice of Appeal set out the orders it was contended the Appeal Panel should make, relevantly, as follows: Have the wiring of my unit check[ed] and fixed as to not have outrageous bills from my supplier. Grant compensation for putting us in financial hardship. Rectify the water charges. Grant compensation for putting us in financial hardship…. Antisocial behaviour, grant compensation for having to be put into this environment and disturbing our general peace and enjoyment of the property. Have the rainwater pumps fixed as pre (sic) the RTA 2010. Grant compensation for the water charges since having no rainwater to use to cut the cost of living which is why they were put in. Grant compensation for housing us in an uninhabitable property. Grant compensation for fraudulently using our information and seeing no benefit, as still with same AGL provider. Grant the cost of my building inspection and also fix the problems as per the RTA. Have mould in the property/complex rectified. 1. By the Notice of Appeal, the appellants sought leave to appeal on the basis that the decision was not fair and equitable, was against the weight of evidence and that there was significant new evidence now available that was not reasonably available at the time of the hearing. 2. As to the contention about new evidence, the appellants identified the following material in the Notice of Appeal: 1. Evidence that the "tenant in question" in relation to antisocial behaviour does reside at the premises and there are also a number of photos and emails sent through to the respondent with regard to the antisocial behaviour issue. 2. A building inspection report by Rapid Building Inspections concerning an inspection of the property on 4 August 2020. 3. Proof that the solar power account is in the name of Mrs McGann and that it can receive payment. 1. Subsequent to the Notice of Appeal, the appellants also sought to rely upon some work done by an electrician they engaged after the Tribunal's decision, the subject of an invoice from The Local Electrician dated 13 November 2020. 2. The appellants were self-represented. In Cominos v Di Rico [2016] NSWCATAP 5 at [13], the Appeal Panel stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. We have followed that approach in determining this appeal. Submissions 1. The appellants lodged extensive written submissions in support of the appeal covering each of the seven claims (lodged on 17 November 2020). Ms McGann also made oral submissions at the hearing of the appeal. 2. The respondent lodged two bundles of written submissions (one lodged on 21 October 2020 on the other on 25 November 2020), which we have considered. Ms Vandenberg and Ms Jennings also made oral submissions on different claims at the hearing of the appeal. Consideration 1. As to the electricity charges claim, the arguments of the appellants on appeal did not address the fundamental reason why their claim failed, namely that they did not establish that there was defective wiring requiring repair by the Landlord. As to this, in our opinion, the Tribunal was correct in saying that such a defect could not be inferred from the high electricity bills that the appellants were, apparently, experiencing. It seems to us that the appellants' arguments, whilst critical of electrical work that the Landlord did or did not do, did not give sufficient recognition to the fact that the appellants bore the burden of proof of a breach by the Landlord of its repair obligation. 2. As to the evidence from The Local Electrician obtained after the Tribunal's decision, this evidence does not satisfy the test concerning the use of new evidence on appeal set out in cl 12 of Schedule 4 above. This is because we are not satisfied that it was material that was not reasonably available at the time of the hearing at first instance. On appeal, the appellants asserted, but did not prove, that it was not available at that time because of a lack of funds to obtain it (the invoice was for an amount of $388.00). 3. We add that the invoice from The Local Electrician falls short of being clear proof that electrical wiring issues explained the appellants high electricity bills. At most, it raises the prospect that removal of a circuit unrelated to the appellants unit might have this consequence. 4. As to the water charges claim, the first point to make is that the appellants are not correct in saying that the Tribunal found that they had not been charged in accordance with the relevant guidelines. On the contrary, the Tribunal said that it was unnecessary to determine that question because it concluded the Tribunal did not have power to grant the relief which was sought. 5. Secondly, the appellants say that their claim was not in the nature of a declaration that charges had been incorrectly levied. They say that they had wanted the Tribunal to rule that the Landlord was required to levy water charges in accordance with the RTA and their own policies. 6. We note that the Tribunal proceeded on the basis that the appellants had not sought a money order in respect of the alleged overpayment of water charges and the appellants have not challenged that position on the appeal. 7. In considering the question of power to grant the relief sought the Tribunal, presumably, had in mind the powers set out in s187 of the RTA. That section, relevantly, provides: 187 Orders that may be made by Tribunal (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders— (a) an order that restrains any action in breach of a residential tenancy agreement, (b) an order that requires an action in performance of a residential tenancy agreement, (c) an order for the payment of an amount of money, (d) an order as to compensation, (e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement, (f) an order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined, (g) an order that requires rent paid to the Tribunal to be paid towards the cost of remedying a breach of the residential tenancy agreement or towards the amount of any compensation, (h) an order directing a landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations, (i) a termination order or an order for the possession of premises, (j) an order directing a landlord or landlord's agent to give a former tenant or person authorised by a former tenant access to residential premises for the purpose of recovering goods of the former tenant or fixtures that the former tenant is entitled to remove. 1. In view of these powers, we agree with the Tribunal's view that it did not have power to make a declaration to the effect that the Landlord had acted in breach of a statutory provision or in breach of a term of the residential tenancy agreement. 2. However, having listened to the relevant part of the sound recording of the hearing, it is sufficiently clear that the appellants were seeking relief in relation to an ongoing failure, as they saw it, by the Landlord to comply with its obligation under s 139 (1) to determine water charges in accordance with the Ministerial guidelines. 3. In those circumstances, an exercise of the power in s 187 (1) (h) arose for consideration. 4. Given the nature of the appellants' complaint about water charges, it seems to us that the Tribunal erred by failing to ask itself the right question about the Tribunal's power to grant relief. It was an error of law by the Tribunal not to do so: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(2)]. 5. Nevertheless, in our opinion, this error was not a material error. This is because no breach of s 139 (1) of the RTA by the Landlord was established. 6. As the terms of s 139 (1) make clear, the appellants' claim depended upon establishing a breach of the Ministerial guidelines, not a failure by the Landlord to comply with its own policy about charging in respect of the supply of water. 7. The appellants, however, focused solely upon the Landlord's "Water Charges Policy", rather than on the guidelines themselves. 8. The wording in the Landlord's policy upon which the appellants founded their case was as follows: Properties that have separate meters but do not generate a separate bill from the water authority will be treated as a shared meter dwelling. 1. The appellants contended this was the situation that applied to them - they should have been charged as a shared meter dwelling, in which case there charges should have been a percentage of rent and not based upon water usage figures. 2. The Landlord's policy set out this different method of charging as follows: Tenants in properties with a separate water meter Tenants in properties with a separate water meter will continue to be billed for the actual water usage on a quarterly basis. SGCH will pass the invoice to tenants upon receipt of the water usage bill from the relevant water authority. Tenants in properties with a shared water meter The Ministerial Guidelines allow for charging of water usage to tenants in properties with a shared water meter. Tenants in properties with a shared water metre will pay 3% of their total household rent for water usage charges. Water usage will be capped at $6.50 per household per week. 1. The Landlord's policy also stated that its policy aligned with the RTA and the Ministerial Guidelines. 2. A Fact Sheet provided by the Landlord to tenants included the following statement: WHAT DO I NEED TO PAY FOR WATER? This depends on whether you live in a property with its own (individual) water meter, like a house, or a property with a shared meter, like a block of units. Some properties have an internal, separate water meter. This is for the resident's information but is not checked by meter readers and doesn't have a separate bill. SGCH will charge tenants of these properties the same way as shared water meter properties. 1. There was no dispute about the following: 1. There was a separate water meter for the appellants' unit. 2. Sydney Water sent a quarterly bill to the Landlord for the block of units in which the appellants' unit was located. 3. Accompanying this quarterly bill from Sydney Water was a Meter Reading Statement for units with separate meters, including a statement in respect of the appellants' unit. This statement identified the meter number, the date it was read, the meter reading and the amount of consumption (amongst other things). 4. Based upon the usage in the meter reading for a unit set out in the Meter Reading Statement, the Landlord sent an invoice to the tenant for the tenant's quarterly water usage. 5. Sydney Water did not prepare a bill addressed to any tenant in the block with a charge water usage. 1. Plainly, the charge for usage in the bill from Sydney Water to the Landlord includes the usage obtained from reading separate water meters for various units in the block. 2. Whether or not this method of charging complies with the Landlord's water policy is not to the point. The relevant question is whether it complies with the Ministerial guidelines and the appellants did not show that there was any such non-compliance. 3. Relevantly, the guidelines provide (see FACS Housing-Ministerial Guidelines for Water Usage Charging-2019-2020): Policy Statement … Tenants pay either a "percentage water charge" or an "actual water charge". This is determined by whether the property in which the tenant resides has a separate or a shared water meter and whether FACS-housing receives sufficient usage information from the local water authority to determine the tenant's water usage. …. Intent of Policy The policy is designed to impact positively on environmental concerns by encouraging water conservation and reducing water usage. …. 1. The charging method followed by the Landlord was consistent with this policy. The readings from the separate meter at the appellants' unit provided the Landlord with "sufficient usage information from the local water authority to determine the tenant's water usage". 2. Although this is not to the point, we should add that, as we see it, it is unclear whether the charging to the appellants complies with the Landlord's water policy. The policy does not specifically refer to a situation where an aggregate bill is sent by Sydney Water to the Landlord, albeit showing separate usage for particular units, although the underlying policy to charge for actual usage when that can be determined by appropriate meter readings is apparent. 3. As to the antisocial behaviour claim, the appellants have not shown that the Tribunal made any error of law or fact, let alone an error of fact of the nature that would warrant the grant of leave to appeal, having regard to the considerations set out in Collins v Urban, referred to in paragraph 24 above. 4. Furthermore, the appeal concerning the dismissal of this claim, principally, relied upon new evidence that was not presented to the Tribunal. 5. The new evidence was described in the Notice of Appeal as follows: I have evidence that the tenant in question in relation to antisocial behaviour does reside here and has been for the last two years in the form of his witness statement with the NSW Police force. There are also a number of photos and emails sent through to SGC a with regards to this issue. 1. However, the threshold problem for the appellants is that they did not show on appeal how any of this new evidence, insofar as it existed before the hearing on 11 September 2020, was not reasonably available for presentation at the hearing. 2. Insofar as the new evidence concerned events that occurred since the hearing on 11 September 2020, such events could only concern new possible breaches by the Landlord of s 50 (3) of the RTA which are not the subject of the existing proceedings. An appeal from a decision rejecting a claim for breach by the Landlord of this provision is not the mechanism for raising and determining allegations of new breaches that have occurred subsequent to the Tribunal's decision. 3. As to the rainwater pumps claim, we can see no error by the Tribunal in respect of the claim, as it was presented to the Tribunal. 4. The Tribunal described the appellants' claim as follows: 29 The tenants have made an application in relation to rainwater pumps. The application seeks that the pumps be made operative in accordance with the LAHC Design Standards 2014 and that there be compensation and/or a rent reduction for increased mould. 1. The Tribunal reasoned: 32 The Tribunal rejects the width of the landlord's position. The standards may or may not apply. However, the onus is on the tenants to show that any failure to meet the standards is a breach of any duty of the landlord owed under the agreement, and they have not. 33 As the issue of mould, it is notorious that mould may have one or more of a number of causes. It may be attributed to a tenant's failure to comply with their obligation[s] under the tenancy. It may be attributed to a landlord's failure to comply with an obligation. It may be neither. 34 Here, the material provided by the tenant does not rise above demonstrating some dampness and suggesting that there might be one or other causes, and that this is something for the landlord to fix. This is insufficient to make out a claim. 1. We see no error in the Tribunal's conclusion that any proof of a breach of the design standards was not sufficient to establish a breach of duty by the Landlord. 2. However, on appeal, it was contended that there had been a breach by the Landlord of s 52 (2) of the RTA in relation to these pumps. It was contended that the pumps had been operative at the commencement of the tenancy in June 2017, thereby, supplying rainwater collected in water tanks at the block of units to parts of the appellants' unit, but the pumps had been turned off shortly after the commencement of the tenancy. The Landlord did not dispute that this had occurred but said that this involved no interference with the supply of water from Sydney Water, the pumps had been turned off to avoid a risk of electrocution after some of the pumps and associated valves failed and the Landlord, as a non-profit organisation, had decided the benefit to tenants of repair of the system did not justify considerable expense of such repair. 3. Section 52 (2) of the RTA provides: 52 Landlord's general obligations for residential premises ….. (2) A landlord must not interfere with the supply of gas, electricity, water, telecommunications services or other services to the residential premises unless the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. 1. In our opinion, s 52 (2) of the RTA is concerned with conduct affecting the supply of services by third parties to the residential premises. Hence, the proscription not to interfere with such services. The section is not directed at services provided by the landlord itself. If that had been the intention the section would have contained a proscription against a landlord ceasing or withdrawing a supply. 2. However, there is a threshold problem for the appellants in relation to this argument based upon s 52 (2) of the RTA. 3. The Tribunal's reasons make no reference to a claim for breach by the Landlord of s 52 (2) of the RTA and contain no factual findings in respect of such claim. 4. The sound recording concerning that part of the hearing when the rainwater pumps issue was addressed contains no reference to a claim based upon unlawful interference by the Landlord and no reference was made to s 52 (2). Rather, Ms Mcgann stated, without reference to any particular breach, that the Landlord had an obligation to fix appliances on the property. 5. In the circumstances, it seems to us that the claim of unlawful interference in breach of s 52 (2) is a new claim first advanced by the appellants on appeal. 6. It is a claim that not only raises questions of law as to the interpretation of s 52 (2) of the RTA but also controversial questions of fact (about which there have been no findings), including, for example, whether, if there was an interference falling within s 52 (2), such an interference was justified in accordance with the terms of that sub-section. 7. In accordance with well established principle, we are not prepared to entertain this new claim on appeal: see Hudson v Arp 1 (NSW) Pty Ltd [2014] NSWCATAP 31; Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438; Coulton v Halcombe [1986] HCA 33; 162 CLR 1 at 7. As was said by the High Court in Suttor, generally, new points will not be permitted to be raised on appeal where "evidence could have been given which by any possibility could have prevented the point from succeeding": at 438.3. 8. As to the reduction in rent aspect of the rainwater pumps matter, the Tribunal's reasons (set out above) disclose that the Tribunal addressed this aspect on the basis that the problem with the pumps had caused mould at the residential premises. 9. The Tribunal found that the appellants had not established the pumps were the cause of mould. That was a conclusion of fact. On appeal, the appellants did not show any reason to doubt the correctness of this conclusion, let alone that the conclusion was, plainly, incorrect: see [84 (c)] of Collins v Urban, referred to in paragraph 24 above. 10. On appeal, the appellants went further than they, apparently, did before the Tribunal at first instance and contended they should have a rent reduction because of the withdrawal of the rainwater facility, regardless of whether or not the loss of the pumps was the cause of mould. In this regard, the appellants said they applied for a rent reduction under s 43 of the RTA. The relevant Tribunal power is, however, contained in s 44 of the RTA. 11. Sections 43 and 44 of the RTA, relevantly, provide: 43 Rent reductions (1) Reduction in goods, services or facilities The tenant may make a written request to the landlord at any time for a reduction in rent if the landlord reduces or withdraws any goods, services or facilities provided with the residential premises, even if those goods, services or facilities are provided under a separate or a previous contract, agreement or arrangement. …… 44 Tenant's remedies for excessive rent (1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders— ….. (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount. 1. Again, applying the principles concerning raising new points on appeal, we do not think we should permit the appellants to advance this contention on appeal. 2. Even if we were wrong about this, we do not see how any error that the Tribunal may have made in its approach to this question could be regarded as material. This is because the appellants did not point to any material that provided any basis for an assessment as to the amount by which the rent might or should be reduced. 3. On appeal, the appellants again went further than they did before the Tribunal at first instance and contended that the Landlord was in breach by providing residential premises that were mouldy. 4. The appellants did not refer to any specific term of the residential tenancy agreement or section of the RTA in support of this claim. Presumably, sections 52 (1) and 63 of the RTA may fall for consideration, although, so far as s 52 (1) is concerned, there was no attempt by the appellants, as we understood it, to establish that there was a problem with the condition of the residential premises at the commencement of the tenancy agreement. 5. However, it is clear that controversial factual questions would arise, should this new claim be permitted, concerning the extent and cause of the mould. Again, applying the above principles concerning advancing new claims, we are not prepared to permit the appellants to raise this claim on appeal. 6. We note that, in respect of this new claim, the appellants sought to rely on a building inspection report that was not presented to the Tribunal at first instance. The report is from Rapid Building Inspections. It presents as a pre-purchase standard property report. 7. Significantly, the report refers to an inspection date on 4 August 2020. That is also the date indicated as the date of the report on its first page. 8. The hearing at first instance was on 11 September 2020. Accordingly, we are unable to conclude that the report was not reasonably available at the time of the hearing, as required by cl 12 (c) of Schedule 4 (set out above), for the purpose of obtaining leave to appeal. 9. In these circumstances, even if we had permitted this new claim to be raised on appeal, we would have refused leave to appeal in connection with this new claim, in so far as the appellants sought to rely upon this building inspection report in support of their appeal. 10. As to the sewage gas claim, the appellants contended that the Tribunal overlooked evidence of a work order dated 6 July 2018 with the description "SCOPE-MTC". They contended that this was a work order to investigate drains in the laundry. They also say that this led to the work order to supply and install fans in the laundry and bathroom areas (a work order dated 16 August 2018). They then assert that "[t]he Sewage Gas would have been found at this time…" 11. However, the material put forward by the appellants in their written submissions did not substantiate the contention that the work order dated 6 July 2018 was a work order to investigate drains in the laundry and that the sewage gas would have been found at this time. The work order sheet that the appellants relied upon on appeal referred to plumbing leak problems in various areas, including the laundry, and the description of the problem from the tenant referred to mould and dampness but not to a smell problem. 12. Accordingly, we do not think the Tribunal erred by overlooking material evidence in relation to this issue. 13. As to the solar panels claim, nothing presented by the appellants on appeal undermined the fundamental problem for them in relation to this claim, namely that there was no identified obligation of the Landlord to ensure that the appellants received the benefit of electricity generated by these panels. 14. The Tribunal concluded: 37 In October 2018, the landlord and an electricity provider wrote to the tenants to confirm that an embedded network had been agreed to by a majority of the block's tenants and that a formal offer would be made by the provider to all tenants. 38 Solar panels were installed in furtherance of the proposed arrangement. 39 The essence of the tenants' complaint is that there has been undue delay in getting the arrangement up and running. 40 On its face, delays in an arrangement between the tenants, other tenants, the landlord and 1/3 party would not be evidence of a failure of the landlord to perform its duties under the residential tenancy agreement with the applicant tenants. The tenants also included some promotional material from the landlord about the benefit of such a scheme, but this does not advance matters. There is no identified breach of any obligation owed under the Act. 1. It was uncontroversial that electricity from this new source was never provided to the residential premises. According to the Landlord, the embedded network is not yet complete, a lot of difficulty has been experienced in establishing this but the proposal was still being investigated. 2. The appellants referred to the fact that an account for them with this new energy supplier (Energy Locals) has been set up, they had paid some money on this account ($0.10) and they had been sent a letter from the proposed supplier with an energy plan and details of costs. In their written submissions they asked the questions "… shouldn't we be connected with the solar? Does it fall under section 52 (2) of the RTA and also section 43 RTA?" 3. In our opinion, none of those sections are capable of applying in the uncontroversial circumstances that there has never been any supply of electricity from this new source. 4. We find no error by the Tribunal in its conclusions about this. 5. Finally, as to the building code claim, the first problem for the appellants in relation to this claim was that there was no identified obligation of the Landlord owed to the appellants to construct a building in accordance with the building code. 6. The second problem for the appellants was, as we understood them to accept, that they had not supplied any or any sufficient evidence in support of these claims to the Tribunal. As to this, on appeal, they sought to rely on the building report from Rapid Building Inspections to which we have already referred. As we have said, this report does not satisfy the requirement in respect of leave to appeal that it was not reasonably available at the time of the Tribunal hearing. Orders 1. For the above reasons, to the extent leave is required, we refuse leave to appeal and order that the appeal be 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: 25 February 2021