Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Xu v Awad [2021] NSWCATAP 209 Hearing dates: 02 July 2021 Date of orders: 09 July 2021 Decision date: 09 July 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member S Goodman SC, Senior Member Decision: (1) The time to appeal is extended up to and including 5 May 2021. (2) Appeal upheld. (3) Order 1 made by the Tribunal on 15 April 2021 is varied to substitute the sum of $1,924.60 for the sum of $4,851.80 referred to in that Order. Catchwords: LEASES AND TENANCIES — rent and outgoings — recovery of rent — errors in calculation — no question of principle LEASES AND TENANCIES — repairs, maintenance and alterations — obligation to repair and maintain — breach — unreasonably lengthy time to repair — damages — no question of principle Legislation Cited: Residential Tenancies Act 2010 (NSW), ss 56, 61(2), 63 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Voitenko v Zurich Australian Insurance Ltd [2019] NSWCA 229 Texts Cited: Nil Category: Principal judgment Parties: Song Xin Xu (Appellant) Michael Awad (Respondent) Representation: Appellant (self-represented) Respondent (self-represented) File Number(s): 2021/00124758 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not reported Date of Decision: 15 April 2021 Before: J Levingston, General Member File Number(s): RT 21/01078; RT 21/6061; RT 21/10588 REASONS FOR DECISION 1. This is an appeal by a Landlord from a decision of the Tribunal in which the Tribunal awarded the Tenant various amounts for overpaid rent, compensation for goods damaged by the Landlord's painter and compensation for delays by the Landlord in effecting repairs. 2. Several other claims made by the Tenant were not accepted by the Tribunal, and there is no appeal brought by the Tenant against the non-acceptance of those claims. 3. In our opinion the Tribunal made three errors when calculating the rent owed, and the appeal in that regard is upheld. In our opinion the Tribunal did not make any errors in relation to the other two matters and the appeal is dismissed in relation to them. 4. Our reasons are as follows. Background 1. The Landlord and Tenant entered into a residential tenancy agreement on 24 February 2020 for a house at Kingsgrove, NSW. 2. The house was estimated to have been about 50 years old at the commencement of the tenancy. 3. During the tenancy the Tenant made numerous complaints about defects in the premises and the necessity for repairs for those defects and for other items of maintenance (such as an oven which had ceased to function and the occurrence of mould). 4. The Landlord attended to some repairs and maintenance, but the Tribunal found several of these were attended to only after an unreasonably long period. The Tribunal awarded the Tenant the sum of $1,500 for this claim for compensation arising from the delayed repairs and maintenance. 5. As the Tribunal made express reference to s 63 of the Residential Tenancies Act 2010 (NSW) ("RTA") (which says that a landlord must provide and maintain leased residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises), and no other section of the RTA or other recognised legal obligation owed by landlords to tenants, we infer that the Tribunal found that the delay in effecting repairs was considered by the Tribunal to have been a breach of s 63. 6. The Tribunal's reasons were: "Repairs were not done in a reasonable time as set out in the material facts as for example, there were delays of about 5 months for the oven replacement and window repairs, and about 6 months until the mould was treated. The rent ledger shows the reduced rent was for the whole period of the Agreement, which I take to be an admission by Xu that the whole of the disrepair had not been repaired to the time Awad gave vacant possession. The calculation of compensation is not a matter of arithmetic precision but is to be determined as a global amount and by consideration of the material facts, experience, and comparative decisions of the Tribunal. Doing the best I can, taking all the material facts and considerations into account I allow $1,500 for these claims." 1. One of the items of repair or maintenance attended to by the Landlord was mould removal and repainting. This was done by the Landlord's painter on or about 4 September 2020. During the repainting the painter did not use drop sheets and the Tenant said that four items were damaged, either by paint or by contact with the painter or his equipment. 2. In relation to those matters the Tribunal said: "Money and compensation for goods damaged by the painters. Awad succeeds as follows: (1) Rug, allow $450 after depreciation (12 months at 10%); (2) Table, quotes to repair between $750 and $1,700 requires striping [sic] and refinishing, allow $750; (3) Art work US$685 which had been hanging on the wall was damaged beyond repair and is a total write off. In previous evidence dated 22/9/20 Awad said that the artwork cost US$500 in Hawaii in 2000. I accept the earlier cost of US$500, allow $600; (4) Pillows $150 about 43 months old, allow $100. totalling $1,900.00." 1. No other reasons were given in relation to that claim. 2. On 3 December 2020, the Tenant gave vacant possession of the premises to the Landlord and he acknowledged owing $828.50 to the Landlord as at that date, but denied owing any further amounts for rent. 3. After taking into account a charge for water usage of $150, and the bond of $2,320 which had been taken by the Landlord, the Tribunal found that there had been an overpayment of rent by the Tenant to the Landlord and awarded the Tenant the sum of $2,138.40. 4. In relation to that claim the Tribunal reasoned as follows: "24. The rent ledger is confusing, as conceded by Mr Ali for Xu. But doing the best I can it shows the following facts. There is a history of part payments of rent by Awad varying between $15.40 and $1,270.20 with a final payment of $1,270.20 credited on 24/11/20 which brought the rent paid up to and including 9/10/20. 25. RT 21/6061 filed 10/2/21 by Xu claims a money order for an occupation fee of $1,531 from 24/11/20 to 4/12/20, 11 days at $82.85 is $911.35. However, this appears to be an error as the rent ledger shows a different situation. 26. The ledger shows rent was paid to and including 9/10/20. Awad owed a combination of rent and an occupation fee from 10/10/20 to 3/12/20 (vacant possession date) which is 24 days at $82.85 and $1,988.40. To that is added the final water usage charge on 23/12/20 of $150 giving a total owed by Awad of $2,138.40. 27. On 24/11/20 Awad paid $1,270.20 and the Bond of $2,320 was received by Xu on 23/12/20 so that total credits were $3,590.20. 28. From the credit of $3,590.20 deduct the debit of $2,138.40 which gives a balance due to Awad of $1,451.80." Extension of Time 1. The appeal was filed five days out of time and the Landlord seeks leave to extend the time to appeal. 2. In our opinion an extension of time should be granted having regard to the principles applicable to an application of this kind set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. 3. The delay was short, being five days. No prejudice was suffered by the Tenant. There are what we regard as clear errors (which are unjust in the circumstances) in the Tribunal's calculation of the rent owed and to whom it was owed (which errors we shall identify later in these reasons). 4. No specific reason for the delay was given by the Landlord. Indeed, in her Notice of Appeal the Landlord said that an extension of time was not required. However an extension of time was required because the time to appeal in tenancy matters is 14 days, and the Landlord's appeal was filed 19 days after the relevant date. 5. However, the absence on an explanation is not necessarily fatal to an application to extend time: Voitenko v Zurich Australian Insurance Ltd [2019] NSWCA 229 per Meagher and McCallum JJA at [29]‑[30]. 6. Weighing everything in the balance, but particularly the very short delay, the absence of prejudice and what we regard as clear errors by the Tribunal, we consider that an extension of time is warranted and will so order. 7. We shall now turn to the matters the subject of the appeal. It is convenient to consider the appeal by reference to the three matters: rent; damage by the painter; and compensation for delayed repairs. We shall address them in that order. Rent 1. There are three errors in the Tribunal's calculations. 2. The first error is in the Tribunal's finding that: "The ledger shows rent was paid to and including 9/10/20." 1. The ledger in fact shows that the rent was paid to 19 (rather than 9) October 2020. 2. The second error is the calculation of days from the date the rent was paid up to until the date possession was given. Even using the Tribunal's dates (10 October – 3 December 2020) the calculation of 24 days was wrong. Using those dates the number of days calculated should have been 54 days rather than the 24 days calculated by the Tribunal. 3. Using the correct dates, from 20 October – 3 December 2020, the number of days for which the Tenant was required to pay rent was 44 days. Therefore, the amount of the rent payable by the Tenant should have been $3,645.40 (44 x $82.85) rather than $1,988.40. 4. The third error is that the Tribunal double counted the payment by the Tenant to the Landlord of the sum of $1,270.20 on 24 November 2020. It is first credited in favour of the Tenant at [24] of the Tribunal's reasons (quoted at [16] above) when the Tribunal said that after that payment was made, the rent was paid up to 9 October 2020 (which should have been 19 October 2020). 5. It is then credited again in favour of the Tenant at [27] of the Tribunal's reasons when it was added to the bond to reach a figure for "total credits". 6. In submissions the Tenant submitted that he had in fact paid two amounts of $1,270.20, but this was not correct, the ledger only showing the one payment and there being no other evidence of a second payment of that amount. 7. Taking into account the water usage charge of $150, the final figure in [26] of the Tribunal's reasons as to what was owed by the Tenant for rent should have been $3,795.40 (and not $2,138.40). 8. Total credits for the Tenant in [27] of the Tribunal's reasons should have been $2,320 (and not $3,590.20). 9. Deducting credits from what was owed, as the Tribunal correctly did in [28] of its reasons (other than for the figures used), results in an amount owed by the Tenant to the Landlord of $1,475.40 (and not an amount owed by the Landlord to the Tenant of $1,451.80 as found by the Tribunal). Damage by the Painter 1. No error, of law or otherwise, was identified by the Landlord in her submissions in relation to this matter. 2. On an appeal, an appellant such as the Landlord in this case, must demonstrate error of the relevant kind in the Tribunal's decision or that significant new evidence has arisen being evidence that was not reasonably available at the time of the hearing before the Tribunal. The "significant new evidence" ground is not relied upon by the Landlord in this appeal. 3. Section 61(2) of the RTA says that the Tribunal may, on application by a tenant, order a landlord to pay compensation to a tenant for damage to, or loss of, the tenant's goods caused by any person in the exercise of a power of the landlord to enter residential premises under the RTA or the residential tenancy agreement. 4. As the painter entered the premises with the apparent consent of the Tenant per cl 23 of the tenancy agreement and s 56 of the RTA, the Landlord was liable to the Tenant for damage done by the painter to the Tenant's goods under s 61(2) of the RTA. 5. The Tribunal obviously accepted the Tenant's evidence that drop sheets were not used and that the painter damaged the goods identified. The painter was not called as a witness in the hearing before the Tribunal and so there was no evidence to the contrary. 6. The Tribunal also obviously accepted the Tenant's evidence as to the cost of the damage to those goods, and appropriately awarded sums equal to the lowest quotes for repair and discounted the amounts awarded for the other items for depreciation. 7. In those circumstances we see no error in the Tribunal's decision and do not uphold the appeal in relation to this matter. Compensation for Delayed Repairs 1. No error, of law or otherwise, was identified by the Landlord in her submissions in relation to this matter. 2. The Landlord made many submissions as to how far out of her way she went to satisfy the Tenant's complaints (which extended to many issues which were not the subject of complaint by the Tenant to the Tribunal or were not accepted by the Tribunal), but her submissions did not directly address the question whether the Tribunal made any error in its findings relating to this matter. 3. We have examined the Tribunal's decision and the material supplied by the parties on the appeal, but no error in the Tribunal's decision, of law or otherwise, is apparent to us. 4. As the Tribunal explained, some repairs took a considerable time to effect. The Tribunal gave examples of the time taken to attend to the oven (five months) and the mould (six months). The Landlord does not challenge those factual findings. 5. Such delays could be considered to be a breach of the Landlord's obligation to maintain the residential premises in a reasonable state of repair, and the amount of compensation awarded is not, in our opinion, outside the reasonable range for an evaluative judgment of the appropriate amount of compensation in the circumstances. 6. In those circumstances we do not uphold the appeal in relation to this matter. Orders 1. As the Landlord has succeeded in relation to the rent, but failed in relation to the other matters, we find that the Tenant owes the Landlord $1,475.40 for unpaid rent, whilst the Landlord owes the Tenant the total of $3,400 for the painter's damage and compensation for delayed repairs. 2. The net result is that the Landlord owes the Tenant $1,924.60 (and not $4,851.80 as found by the Tribunal). 3. This result may also be reached by adding the amounts which the Landlord owes the Tenant (being bond of $2,320 and compensation of $3,400, to get a total of $5,720) and then subtracting from that total the amount which the Tenant owes the Landlord (being rent of $3,795.40). $5,720 less $3,795.40 is $1,924.60. 4. Accordingly, we make the following orders: 1. The time to appeal is extended up to and including 5 May 2021. 2. Appeal upheld. 3. Order 1 made by the Tribunal on 15 April 2021 is varied to substitute the sum of $1,924.60 for the sum of $4,851.80 referred to in that Order. ********** 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: 09 July 2021