Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bodger v Goh [2021] NSWCATAP 59 Hearing dates: 8 March 2021 Date of orders: 15 March 2021 Decision date: 15 March 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks, Principal Member P Molony, Senior Member Decision: (1) Appeal allowed (2) the orders made by the Tribunal on 7 December 2020 are quashed (3) the matter is remitted to the Tribunal for hearing before a different Member upon the basis of such evidence as the Member in his or her discretion shall permit to be adduced (4) the respondent Louis Goh is directed to pay the sum of $13,525 to the Registrar of this Tribunal within 14 days to be held pending the outcome of the further hearing of the proceedings Catchwords: APPEALS – held Member failed to give adequate reasons for decision – appeal upheld – matter remitted for rehearing Legislation Cited: Residential Tenancies Act 2010 ss 43, 45 Civil and Administrative Tribunal Act s 80 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: None cited Category: Principal judgment Parties: Deborah Bodger (Appellant) Louis Goh (Respondent) Representation: P Possi as agent by leave (Appellant) Respondent (Self-Represented) File Number(s): 2020/00371241 (AP 20/52431) Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 7 December, 2020 Before: F Holles File Number(s): RT 20/32918 reasons for decision Background 1. The respondent to this appeal, Louis Goh was the tenant of residential premises in the Sydney CBD leased from the appellant, Deborah Bodger pursuant to a residential tenancy agreement which was governed by the Residential Tenancies Act 2010. The respondent filed an application in the Consumer and Commercial Division of this Tribunal on 3 August 2021 claiming that a number of orders should be made against the appellant as a result of damage which he said had been sustained to the premises as a result of rain penetration which first occurred on 10 February 2020. Included within the orders sought was an order for reduction in rent on the basis that the premises were unusable or uninhabitable and a consequential order for the repayment of rent paid in excess of any reduced amount fixed by the Tribunal. 2. Following a hearing in which both parties participated the presiding Member found that there was water ingress into the premises from 10 February 2020 to 3 August 2020 and thereafter repairs were affected to the flooring between 4 August and 24 September 2020. 3. In the application the respondent had referred to the leased premises as having 2 levels. The water damage was confined to the upper second level. The applicant said that because of the water damage he was forced to move out of the upper level 2, and into the "spare bedroom" on the lower level I. Significantly, the applicant said that throughout the whole of the period prior to the filing of the application he had continued to pay the full rent of $1400 per week. He asked that this be "lowered to discount the use of level 2 until the space is "fit for habitation". Furthermore, I am seeking repayment for excess rent, as I have been unable to use 50% of the level 2 floor space since my first report….." 4. In his reasons for decision the Member described level 2 as being a "large room with an ensuite" which the respondent had used as a bedroom. He noted that the lower level consisting of "living spaces, the kitchen, main bathroom and other areas" was not affected by water entry. The reasoning of the Member 1. In his reasons for decision the Member found 1. level 2 was "wholly or partially uninhabitable" between 10 February and 24 September 2020. 2. The water problem was rectified by 3 August 2020 and the flooring restored by 24 September 2020. 3. The "room" was partially uninhabitable because "the condition of the wooden flooring with the warping and water damage again created a hazard, which "as I understand the evidence made the room partially uninhabitable" for a total of 51 days. 4. There was a period of 175 days between 10 February and 3 August 2020 and a period of 51 days from 4 August to 24 September 2020. 1. After noting that the rent of $1400 per week equated to $200 per day, the Member said I find that the compensation payable is $70 per day for the first period, taking into account the loss of amenity of a room, including but not limited to the flooring, the water and dampness and the general condition of the room which is as I understand it, 50% of the total area of the unit. …………………………. The condition of the wooden flooring with the warping and water damage again created a hazard, which as I understand the evidence made the room partially uninhabitable. I consider that an appropriate award under section 43 above is $25 per day. 1. On this basis the Member calculated that the appellant should refund to the respondent $12,250 being 175 days' rent at $70 per day and $1275 being 51 days' rent at $25 per day. The total amount of compensation payable was calculated at $13,525. We understand that those monies have been paid by the appellant to the respondent, consequent upon a refusal to grant a stay pending the outcome of the appeal. The appellant's appeal 1. In her appeal the appellant primarily complained that the Member's decision was inappropriate because he had incorrectly formulated his decision on the basis that the upstairs level 2 represented 50% of the total area of the leased premises. It is clear that in formulating the respondent's claim on this basis the Member was obviously in error, and the respondent's own application referred to the affected area as being 50% of level 2. A copy of the appellant's Reply to the application brought by the respondent described the rented premises as having a total area of 236 m². The entry-level consisted of 3 bedrooms, 3 bathrooms, kitchen, dining, lounge, laundry, storage area and 3 balconies. The upper level consisted of one bedroom, one bathroom and one balcony. Included with the leased premises was access to 2 car spaces, a swimming pool, gym, spa, sauna, 24-hour concierge and security. 2. It is possible that in describing the affected area in the manner in which he did, the Member may have inadvertently misrepresented the state of the evidence. However, because the Member has not described, even succinctly, the nature and extent of the totality of the leased premises, that part of the leased premises on level 2 which was affected by water damage, and the nature and extent of any other matters including inconvenience which might properly be taken into account in assessing any compensation properly payable by the appellant to the respondent, neither party was in a position to understand the reasoning of the Member in order to assess whether the ultimate decision was or was not appropriate. 3. Furthermore, we are not in a position to commence to analyse whether the decision of the Member was in error such that an appeal lies. Indeed, such an analysis would need to be undertaken by reference to all of the evidence before the Member. However, despite directions being given during the course of the case management of these appeal proceedings that the parties should lodge the sound recording or transcript of the hearing at first instance if oral reasons were given or what happened at the hearing was being relied upon together with a typed copy of the relevant parts, this has not occurred. 4. In her appeal the appellant also complained that the Member did not have available to him for the purpose of the telephone hearing any material which had been filed on her behalf. She stated in the Notice of Appeal "The paper copies of Respondent's Replies were sent to NCAT in October as per NCAT instructions. When we offered to send the (Member) soft-copies by email (the Member's) reply in the recorded Tribunal hearing was that it would be "difficult." Because the "Member" did not have a copy of respondent's Replies in over-the-phone Tribunal hearing he was unable to see or follow the statements we made, and the order issued as factual errors…………." In his Reply to Appeal document the respondent said "My recollection of the hearing on 7 Dec 2020 was that the NCAT (Member) did allow for a soft copy of the Respondent's Reply to be emailed to NCAT immediately by the attending property manager. The Respondent's Reply was reviewed during the hearing on that day." It is impossible for us to resolve this matter because firstly the appellant has failed to provide a copy of the recording and transcript of the proceedings before the Member, and the Member has made no reference to the competing positions of the parties concerning the layout and configuration of the leased premises. The obligation to give reasons 1. It is established as a fundamental principle in this Tribunal that when delivering reasons for decision a Member must set out such of his or her reasoning process as will allow the parties and the Tribunal on appeal to understand the basis for the making of any orders. 2. An authoritative exposition of the relevant principles governing the desirability of giving reasons for decision was undertaken by an Appeal Panel of this Tribunal in Collins v Urban [2014] NSWCATAP 17. 49 …………………………In many instances not having findings of fact and legal reasoning explicitly available may render effectively worthless any appeal right because the appellate body does not have a statement of the findings of fact, the relevant law and explanation of how the law was applied to the facts as found, by the decision maker at first instance. 54 In relation to one of the principal predecessors of the present Tribunal, the Appeal Panel of the Administrative Decisions Tribunal (ADT) held that the principles identified above applied to that Tribunal. In Sydney Supermarkets Pty Limited v Xu [2009] NSWADTAP 28 the Appeal Panel of the ADT said at [56] - [60]: 56 The Tribunal is obliged to give adequate reasons. Appeal Panels of the Tribunal have routinely accepted the principles enunciated in the line of cases that include Soulemezis v Dudley (1987) 10 NSWLR 247, Mifsud v Campbell (1991) 21 NSWLR 725 and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. The Tribunal is a deliberative body engaged in the exercise of a judicial function when hearing and determining applications, giving reasons for decision and making final orders. See recently, Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, esp at [109] ff per Basten JA. The Commonwealth authorities relating to Commonwealth tribunals are to similar effect. See, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 366; Dornan v Riordan[1990] FCA 383; (1990) 24 FCR 564 at 568; Edwards v Guidice [1999] FCA 1836; (1999) 169 ALR 89 at [10], [43]. 57 In our view, s 89(5) of the ADT Act, to which counsel for the appellant gave emphasis, does no more than confirm the law as it would in any event have applied to the Tribunal. 58 Section 89(5) states that the Tribunal must in reasons published under s 89 set out: (a) the findings on material questions of fact, referring to the evidence or other material on which these findings are based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.' 59 (In that regard we note that strictly interpreted s 89 is not applicable to this case. Section 89 is concerned with the circumstance where the Tribunal does not publish written reasons at the time it makes its final orders.) 60 A trier of fact is not obliged to address, and reconcile, every contradiction or inconsistency in the evidence. The law does 'not require lengthy or elaborate reasons' but it is 'necessary that the essential ground or grounds upon which the decision rests should be articulated': Soulemezis v Dudley (Holdings) Pty Ltd per McHugh JA at 280. 55 Section 89 of the Administrative Decisions Tribunal Act 1997 was in similar terms to s 62 of the Act, although there was no equivalent of s 62(4). 56 The Appeal Panel accepts that these principles should also be applied in relation to decisions in proceedings before the Consumer and Commercial Division of the Tribunal, which are judicial in nature. An appeal lies from the Consumer and Commercial Division to the Appeal Panel as of right from a final or ancillary decision on a question of law and by leave on other grounds or from interlocutory decisions. As a result, there is generally a duty on Members sitting in the Consumer and Commercial Division to give oral or written reasons for their decisions or, at least in uncontested proceedings, "to make... a note of everything necessary to enable the case to be laid properly and sufficiently before the [Appeal Panel] if there should be an appeal", to quote the words of Sir Frederick Jordan in Carlson v King (1947) 64 WN (NSW) 6. 1. In the course of a discussion of the circumstances in which reasons should be given in the Consumer and Commercial Division, the Appeal Panel in Collins made a number of observations about some basic matters which should be included in a shorthand fashion even in uncontested residential tenancy matters. The Appeal Panel said 62 In these circumstances and taking into account the nature of the jurisdiction being exercised, the particular subject matter of the decision in many residential tenancy disputes and the fact that giving detailed reasons is not cost free, the Appeal Panel concludes that in uncontested residential tenancy matters involving relatively small amounts of unpaid rent or other similarly small claims, while Members are required to prepare or record reasons for their decision that duty may be discharged by utilising a suitably drafted form to record (whether by written statements, circling options or ticking responses or a combination of methods): (1) the appearances for the parties; (2) the evidence given by the witness or witnesses and the resolution of any conflicts in the evidence; (3) the relevant details of the residential tenancy agreement, notice of termination and other documents provided to the Tribunal; (4) the elements of any relevant cause of action and whether the Member is satisfied that each element has been made out; (5) the elements of any relevant defence raised and whether the Members is satisfied that it has or has not been made out; and (6) any other relevant matter which would be necessary to allow the Appeal Panel to hear and determine any appeal on a question of law or, if leave were granted, on other grounds. The Member failed to give adequate reasons 1. We assume that the Member applied the provisions of sections 43 and 45 of the Residential Tenancies Act dealing respectively with abatement of rent if residential premises become wholly or partly uninhabitable and empowerment to make orders in effect specifying the amount of rental payable and for repayment of any excess rent paid. 2. We observe that the matters set out in the extract from Collins in [14] above and the matters contained within sections referred to in [15] above should have formed part of the reasons for decision of the Member in the circumstances of the proceedings in this matter. If this had occurred, there would have been a reference to the Reply document filed by the appellant, assuming that it was received by the Member and taken into account, and there would have been a reference to the configuration and layout of the premises, as well as any other matters that the Member thought relevant to take into account in determining the proceedings. 3. We observe that the Member failed to identify any particular basis upon which he assessed the amount by which the compensation should be reduced other than by reference to the loss of amenity of a room affected by the water damage and consequential repairs, which was mistakenly referred to as 50% of the total area of the residential premises. Conclusions 1. In all the circumstances we conclude that there has been a failure of the Member to produce and publish such reasons for his decision which would enable the parties and the Appeal Panel to understand the reasoning process adopted by him in determining the quantum of and the basis for the compensation which he ordered the appellant to pay to the respondent. This failure to give reasons constitutes an error of law. Accordingly, by reason of the provisions of section 80 of the Civil and Administrative Tribunal Act, leave to appeal is not necessary. 2. On this basis the appeal must succeed, and the orders of the Member quashed. As the proceedings have miscarried, it will unfortunately be necessary for a further hearing to be conducted, before the Tribunal differently constituted. Orders 1. We make the following orders: 1. Appeal allowed 2. the orders made by the Tribunal on 7 December 2020 are quashed 3. the matter is remitted to the Tribunal for hearing before a different Member upon the basis of such evidence as the Member in his or her discretion shall permit to be adduced 4. the respondent Louis Goh is directed to pay the sum of $13,525 to the Registrar of this Tribunal within 14 days to be held pending the outcome of the further hearing of the proceedings ********** 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: 15 March 2021