Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Skatulski v Daraya Holdings Pty Ltd [2021] NSWCATAP 134 Hearing dates: 6 May 2021 Date of orders: 14 May 2021 Decision date: 14 May 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member D Goldstein, Senior Member Decision: Appeal dismissed. Catchwords: LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – repairs – damage – sufficiency of evidence of damage - rent - excessive rent – reduction of services or facilities – discretion – reduction not warranting reduction of rent – no error in exercise of discretion Legislation Cited: Civil and Administrative Tribunal Regulation 2013 (NSW), Sch 1 cl 2(2) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 House v The King (1936) 55 CLR 499; [1936] HCA 40 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Lauron v Michael [2021] NSWCATAP 120 Texts Cited: Nil Category: Principal judgment Parties: Mikolaj Skatulski (First Appellant) Izabela Skatulski (Second Appellant) Daraya Holdings Pty Ltd (Respondent) Representation: M Skatulski (on behalf of both Appellants) R Sammons (Managing Agent) (Respondent) File Number(s): 2021/00061987 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 15 February 2021 Before: P Smith, General Member File Number(s): RT 20/41092 REASONS FOR DECISION 1. This is an appeal brought by tenants against orders of the Tribunal dismissing their claims against the respondent landlord for compensation in relation to mould on five pairs of shoes allegedly caused by damp and rent reduction for a non-functioning bathroom door lock. 2. For the reasons set out below the appeal is dismissed. Background 1. The background relevant to this appeal is succinctly stated in the Tribunal's reasons as follows (with some minor typographical corrections): "The applicant and respondent are parties to a residential tenancy agreement for premises at … Asquith NSW 2077. On 28 September 2020 the applicant filed application for compensation for damaged goods and rent reduction for facilities withdrawn and reduced. The applicant seeks order for compensation in the sum of $2,850.00 for mould damage to 5 pairs of shoes. The shoes were kept in a wardrobe which was affected by water ingress that was rectified by waterproofing the subject area. The evidence in support of the claim for compensation is a photograph of 5 pairs of shoes showing some mould on the surface and soles of the shoes. There is no independent evidence or report to the Tribunal on the extent of the damages or evidence whether the goods are damaged beyond economical repair. There are no invoices or evidence of the purchase of the goods. The only evidence on the amount of the claim is some current prices downloaded from the internet. On the material provided in support of the claim the Tribunal is not satisfied the applicant has established the grounds for making the orders sought. The applicant seeks an order for rent reduction for a faulty bathroom door lock. The landlord agent provided an invoice that the bathroom handle was repaired on 23 February 2020 but the tenant states this is an ongoing issue which affects their occupation of the premises. It is an agreed fact that that the bathrooms lock was faulty, but the Tribunal is not satisfied that the applicant has established that it is appropriate to make an order that the rent is excessive due to facilities being withdrawn or reduced for a faulty mechanism in an internal door lock. There is no supporting evidence that the fault precluded the door from being closed. The Tribunal makes an order that the landlord have the door inspected by a suitably qualified tradesperson and repair if defective." 1. In relation to the shoes the Tribunal decided that, in the absence of any independent evidence that the shoes were damaged beyond repair, evidence of the extent of the damage or evidence of the purchase price of the shoes, the appellants had not proved their case in relation to the shoes. It is implicit in those findings that the Tribunal did not accept the uncorroborated evidence of the appellants on those issues. 2. In relation to the bathroom lock and the claim for reduction of rent, the Tribunal said that even though the parties agreed that the lock was faulty, it was not satisfied there should be a reduction of rent in circumstances where there was no supporting evidence that the fault precluded the door from being closed. It is implicit in those findings that the Tribunal either did not accept there had been any withdrawal or reduction of services or facilities simply because the lock was faulty (in circumstances where the door could still be closed) or was not persuaded, in the exercise of its discretion, that the rent payable under the residential tenancy agreement was excessive having regard to the non-functioning lock. 3. There had been other disputes between the parties which had been resolved at a conciliation hearing held before a Tribunal member on 13 November 2021, approximately three months before the hearing before the Tribunal from which this appeal has been brought. In that conciliation hearing the Tribunal noted that the parties had reached agreement for the respondent to investigate and repair the door handle to the bathroom and main bedroom, the air conditioning in the lounge room, leaking water in the living room, the exhaust fan in the bathroom and was to patch a hole in the living room. The Appeal 1. On this appeal the appellants contended that: 1. The agreement between the parties reached at the conciliation hearing on 13 November 2021 was not considered, and the Tribunal was satisfied with the appellants supporting documentation at that conciliation hearing. 2. Their evidence before the Tribunal was in line with NCAT guidance and was not challenged. 3. The Tribunal should have given equal weight to the parties' evidence, should have given more weight to the appellants' evidence and that the respondent's evidence was (in some unidentified way) false and misleading, and had been served out of time. 1. The appellants also seek leave to provide to us and to have us consider on appeal further documentary evidence which they had not provided to the Tribunal at the hearing. General Principles for Appeals in the Tribunal 1. An internal appeal in the Tribunal is different to a hearing at first instance. An appeal is not a second hearing of the disputes between parties. 2. Put simply, with some over-simplification, to succeed on an appeal an appellant must show that either: 1. the Tribunal which heard the case made an error in its decision (and the error must be identified), and that had the Tribunal not made that error: 1. the Tribunal's orders would have been different; or 2. the Tribunal's orders should be set aside because they couldn't be relied upon as being correctly made; or 1. the appellant now has significant new evidence which was not reasonably available to the appellant to give to the Tribunal at the time of the hearing, and that therefore the appellant may have suffered a substantial miscarriage of justice in not having that new evidence at the time of the hearing before the Tribunal. 1. In relation to the first of those, the error is not the result itself, but the error made in the Tribunal's reasoning or thinking which led to the (incorrect) result. 2. Put another way, the error to be shown is not that the Tribunal made the wrong orders (in the eyes of the appellant), and if the Appeal Panel simply looked at all of the material the Appeal Panel would agree with the appellant and change the orders made by the Tribunal or order a new hearing. 3. Rather, the error an appellant must show is an error in the Tribunal's reasoning process (or thinking) which caused the Tribunal to come to the wrong conclusions and therefore make the wrong orders, or the Tribunal's conclusions and orders couldn't be relied upon as being correctly made. 4. An example of an error or mistake being made by a Tribunal in its reasoning process which leads to wrong conclusions and orders is where a Tribunal applies the incorrect law. Applying the incorrect law to facts will result in incorrect conclusions and orders. In this example, the error or mistake an appellant must show the Tribunal made in its reasoning process is the application of the incorrect law. 5. Another example of an error or mistake being made by a Tribunal in its reasoning process which leads to wrong conclusions and orders is where a Tribunal makes a finding of fact (that something was done, said or happened for example) when there was no evidence given to the Tribunal to prove that fact. 6. There are two types of errors or mistakes: ones involving a question of law and ones that don't involve a question of law. 7. If the Tribunal made an error or mistake in its reasoning process which involves a question of law then an appellant has a right to appeal. The two examples set out above involve errors of law. Some others are set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. Other errors of law are found in other authorities. 8. Where the error or mistake does not involve a question of law an appellant must seek leave (or permission) to appeal, and that leave or permission is only given if certain requirements are satisfied. The requirements are set out in detail in Collins v Urban [2014] NSWCATAP 17. 9. Described briefly, leave to appeal is only granted if an appellant shows that he, she or it 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. the appellant now has significant new evidence which was not reasonably available to the appellant to give to the Tribunal at the time of the hearing, and that the appellant's case involves at least one of the following: 1. an issue of principle; 2. a question of public importance or a matter of administration or policy which might have general application; 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error or mistake 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal went 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. As we have said, all of those matters numbered (1)-(8) above are explained in detail in Collins v Urban. 2. In relation to "significant new evidence", an appellant must prove (on an objective test) that that this new evidence was not available at the time of the hearing because no person could reasonably have obtained that evidence at that time - Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]; Lauron v Michael [2021] NSWCATAP 120 at [21]-[26]. Decision 1. To the extent the appellants' appeal raises questions of law, we see no error in the Tribunal's decision and any appeal ground put forward on that basis is dismissed. 2. To the extent the appellants' appeal seeks leave to appeal, the appellants have failed to establish any of the matters we have set out at [19] above and we refuse leave. 3. We see no need to go further into those matters and isolate what may be questions of law, or what be grounds for seeking leave to appeal, given the extremely modest amount which would be awarded if the Tribunal below was found to have erred, and given we are required to implement the practice and procedure of the Tribunal so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. 4. Therefore, we shall confine ourselves to the brief reasons below to explain why this appeal fails. 5. In relation to ground 1, the appellants submitted that the agreement between the parties reached at the conciliation hearing on 13 November 2021 was not considered at the hearing, and the Tribunal was satisfied with the appellants' supporting documentation at that conciliation hearing. 6. This is not a ground of appeal and, without any disrespect to the appellants who are not legally trained, reveals a misunderstanding of the difference between conciliation hearings and hearings of the proceedings. 7. A conciliation hearing is not a hearing of the parties' dispute in which evidence is called and the Tribunal makes a decision resolving that dispute. A conciliation hearing is a meeting between the parties which is supervised by a member of the Tribunal who acts as a conciliator or mediator between the parties to assist them to explore whether the parties can settle part or all of their dispute on a basis acceptable to them and to avoid a hearing. 8. Anything that is said or done at a conciliation hearing is confidential and is not admissible in proceedings – Cl 2(2) of Sch 1 of the Civil and Administrative Tribunal Regulation 2013 (NSW). Therefore, the Tribunal was prohibited from considering the agreement reached between the parties at the conciliation hearing at the subsequent hearing from which this appeal is brought. 9. In any event, the agreement is irrelevant to the issues relating to the shoes and the bathroom lock. 10. In addition, it is no function of the Tribunal at a conciliation hearing to decide whether a party's documentation is satisfactory or not. That is function of the Tribunal at the hearing of the proceedings. All the Tribunal attempts to do at a mediation is to assist the parties reach agreement to settle part of all of their dispute. 11. In relation to ground 2, the appellants submitted that their evidence before the Tribunal was in line with NCAT guidance and was not challenged. That may be so, but it does not overcome the fact that their evidence was insufficient to prove the matters they needed to prove in relation to the shoes and does not change the fact that the Tribunal obviously came to the view that the non-functioning lock on a bathroom door that could still be closed was of such a minor inconvenience as to not be worthy of a reduction in rent. 12. To overturn that latter decision the appellants would need to show that the Tribunal's decision miscarried in one of the ways identified in House v The King (1936) 55 CLR 499; [1936] HCA 40. In this appeal they have failed to do so. 13. In relation to ground 3, the appellants submitted that the Tribunal should have given equal weight to the parties' evidence, should have given more weight to the appellants' evidence and that the respondent's evidence was (in some unidentified way) false and misleading, and had been served out of time. 14. This submission is also irrelevant to the need for the appellants, on an appeal, to show error in the Tribunal's decision making in relation to the orders they challenge. 15. An appeal is not an inquiry into all complaints an appellant may have about the hearing. On an appeal an appellant identifies the orders made by the Tribunal after a hearing which he, she or it says were erroneous, and then needs to show there was some error committed by the Tribunal which led to the erroneous order challenged on appeal, and then needs to show how the order would have been different if the Tribunal had not committed that error. 16. This submission by the appellants does not fall within those requirements. In this case the respondent's evidence was wholly irrelevant to the shoes and bathroom lock issues. 17. Equally, the weight given to the appellant's evidence was irrelevant to the shoes and bathroom lock issues. In relation to the shoes the appellants simply failed to provide any relevant evidence on the issues identified by the Tribunal, and the decision not to award any rent reduction for the non-functioning bathroom lock was also not dependent on the weight given to their evidence. Orders 1. We make the following order: 1. Appeal 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: 14 May 2021