Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kazacos Investments Pty Ltd atf Kazacos Investments Trust v Maher [2021] NSWCATAP 219 Hearing dates: 4 May 2021 Date of orders: 20 July 2021 Decision date: 20 July 2021 Jurisdiction: Appeal Panel Before: D Robertson, Senior Member A Boxall, Senior Member Decision: (1) Leave to appeal is refused; (2) The appeal is dismissed. Catchwords: APPEAL – Question of law – Sufficiency of reasons where oral reasons given ex tempore and no request made for written reasons LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Obligation of landlord to provide and maintain premises in a reasonable state of repair – Premises rendered uninhabitable by mould – Whether Tribunal impermissibly reversed the onus of proof in respect of the cause of the mould Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Bell v Veigel [2008] NSWCA 36 Collins v Urban [2014] NSWCATAP 17 Davies-Evans v MacCulloch [2018] NSWCATAP 253 Keene v Kuhnert [2021] NSWCATAP 65 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; 388 ALR 257 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; 100 NSWLR 578 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Spencer v Bamber [2012] NSWCA 274 Todorovic v Moussa [2001] NSWCA 419; 53 NSWLR 463 Texts Cited: Gleeson, M "Revising Transcripts of Summings-Up" (1997) 9 Judicial Officers' Bulletin 25 Category: Principal judgment Parties: Kazacos Investments Pty Ltd as trustee for The Kazacos Investments Trust (Appellant) Colin Maher (Respondent) Representation: Counsel: M Heath, instructed by Law Corporation Pty Ltd (Appellant) Respondent (Self Represented) File Number(s): 2021/00056128 (AP 21/08628) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 12 February 2021 Before: C Pirina, Tribunal Member File Number(s): RT 20/46750 REASONS FOR DECISION Background 1. The appellant in this matter (the landlord) owns an apartment in Sussex Street, Sydney. The respondent, Mr Maher, was the tenant of the apartment under a residential tenancy agreement entered into on or about 9 May 2020. 2. On 9 November 2020 Mr Maher filed an application in the Consumer and Commercial Division of the Tribunal seeking against the landlord: 1. An order for payment of $15,000 in compensation for damage to personal property as a direct result of the landlord's failure to make repairs and rectify building defects; 2. An order pursuant to s 44(1)(b) of the Residential Tenancies Act 2010 (NSW) (RTA), that the rent payable was excessive due to the reduction or withdrawal of any goods, services or facilities provided with the premises; and 3. An order pursuant to s 45 of the RTA reducing the rent payable because the premises were unusable or uninhabitable or destroyed. 1. Mr Maher asserted that from 12 August to 12 November 2020, by reason of the presence of mould, he was unable to utilise the bedrooms in the apartment and had to relocate his bed and clothing to the lounge room and place his possessions into an external storeroom. 2. Mr Maher sought rental relief in the amount of $4,080, which was calculated as a reduction in the rent payable by $340 per week for 12 weeks. 3. Mr Maher's application set out that, on or about 9 May 2020 he had signed a six month lease for the 2 bedroom apartment. About a month after the tenancy began, he noticed condensation on the internal windows and brought that matter to the attention of the landlord. After severe rainfall in Sydney between 7 and 10 August 2020 Mr Maher stated that he had notified the landlord on 12 August 2020 that mould was growing in the bedroom. Mr Maher stated that the landlord had taken no action to address and resolve the problem. 4. On 2 October 2020 Mr Maher's insurer sent an investigator, whom Mr Maher described as a mould and water ingress professional, to inspect the apartment. 5. Mr Maher stated that on 13 October 2020 a representative of the landlord attended with a mould inspector. Mr Maher asserted that the inspector had no specialist equipment with him to properly assess the unit and did no more than check the internal plumbing and complete a brief visual inspection. 6. Mr Maher identified ten items which he asserted were destroyed by mould the value of which he "conservatively" assessed at $17,670. Mr Maher also asserted that: "In order to mitigate against our loss we established a storeroom in Kennards Storage in Waterloo paying $326 per month to store our possessions which we have just increased to a larger size and are now paying $412 per month." 1. The hearing was conducted by telephone on 12 February 2021. The Tribunal made orders requiring the landlord to pay Mr Maher the sum of $15,000 immediately. The Tribunal noted that the money order was based upon a number of items listed but was limited to $15,000 by reason of the jurisdictional limit of the Tribunal being $15,000 (see s 187(4)(a) of the RTA and Regulation 40 of the Residential Tenancies Regulation 2019 (NSW)). 2. The Tribunal identified the amounts it awarded in respect of various heads of claim as follows: Rent arrears $4,080 (premises partially uninhabitable, due to moisture issues in premises leading to mould problems) Storage fees $4,466.15 (removal of personal property to mitigate loss by mould) Jacket replacement $1,008.95 (destroyed by mould) Sofa replacement $3,389.00 (destroyed by mould) Bedroom furniture replacement $7,340.00 (destroyed by mould) 1. The Tribunal's order records that oral reasons for the decision were given. 2. The landlord produced as part of its appeal papers a transcript of what its solicitor asserted was the "parts of the sound recording relevant to the appellant's appeal". 3. Mr Maher asserted that the transcript was not complete. He provided his own extracts from the transcript of the hearing. To the extent the respective transcripts concerned the same parts of the hearing there was no material difference between them. Mr Maher did not dispute the accuracy of the transcript of the other parts of the hearing reproduced by the landlord. 4. The landlord did not seek written reasons for the decision, as it was entitled to do pursuant to s 62(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 5. It is however discernible from the transcript produced by the landlord that the Tribunal acknowledged that the onus lay upon the tenant to establish that the mould present in the apartment was the landlord's responsibility and not caused by anything done by the tenant, but found that Mr Maher had satisfied that onus. 6. It is also apparent that the Tribunal found that the extent to which the moisture and mould was present in the apartment made them "especially in the cooler months almost uninhabitable". 7. The Tribunal accordingly made an order that there be a reduction in rent for the period of 12 August to 9 November 2020 in the amount of $4,080.00. The Tribunal found that Mr Maher had taken a reasonable approach of trying to salvage his property and had incurred a cost of $4,466.15 in storage in an attempt to mitigate the loss to his property. The Tribunal also found that certain items were damaged, including a jacket, a sofa, and a bed, and that "the amount of mould on those items and nature of the fabric meant that they couldn't necessarily just be wiped down or salvaged". The Tribunal accepted the receipts provided by the tenant as evidence of the value of those items and awarded the tenant the value so assessed as compensation for the loss of those items. The scope and nature of internal appeals 1. By virtue of s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable; or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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. Grounds of Appeal 1. The landlord's Notice of Appeal listed three grounds of appeal which we understand to be: 1. That the Tribunal erred in law in finding that the premises were "uninhabitable due to moisture issues in the premises leading to mould problems"; 2. That the Tribunal made an error in law in determining that the storage costs, which reflected the cost of storage for a period after Mr Maher vacated the leased premises, were recoverable by Mr Maher; and 3. The Tribunal erred in law in determining the compensation payable to the respondent on account of damage to the respondent's possessions on the basis they were destroyed. 1. In each case there is said to be no evidence in support of the relevant finding. 2. The landlord also sought leave to appeal on the basis that each of the findings asserted to have involved errors of law were not fair and equitable and that the finding that the landlord was responsible for the mould damage was against the weight of evidence. 3. By its written submissions the landlord also sought to assert that the Tribunal's conclusion that the appellant was responsible for the mould was not supported by adequate reasons. The landlord acknowledged that this ground of appeal was not raised in its Notice of Appeal but sought to maintain that submission at the hearing. 4. We note immediately in this context that the Tribunal has not been requested to give written reasons pursuant to s 62(2) of the NCAT Act. The fact that written reasons have not been requested or provided must have a substantial significance in any assessment of oral reasons which have been provided. In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; 100 NSWLR 578 Ward CJ in Eq stated at [114]: 114 In the present case, the source of any obligation on the part of the Tribunal, including on the part of the Appeal Panel, to provide written reasons in this matter was not examined. This is not unimportant. It should not be assumed that, in the absence of a request for the provision of reasons, there is an implied statutory obligation (let alone an obligation at common law) on the part of the Tribunal to do so. Nor should it be assumed that the content of reasons required to be provided under any such implied statutory obligation, or common law obligation, were such an obligation to be found, would mirror that required of a court. Writing extra-judicially in "The Evolution of the duty of decision-makers to give reasons" ((2016) 23 AJ Admin L 128), Sackville AJA has noted that the content of the judicial duty to give reasons varies depending on the jurisdiction being exercised by the court and the subject matter of the decision (see at 129, referring to the High Court's decision in Wainohu v New South Wales (2001) 243 CLR 181; [2011] HCA 24 at [56]). Sackville AJA there also pointed to the tension for decision-makers, judicial or otherwise, who are confronted with a high volume caseload and limited resources. At least anecdotally, that tension must be particularly apt for the Tribunal, which has a high volume of cases and is established under an Act the objects of which include "to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible" (see s 3(d) of the NCAT Act). The case before the Tribunal 1. We note that it was not in dispute that there was mould within the apartment during the tenancy or that there was condensation in the premises which had caused the mould. The dispute between the parties related to the cause of that build-up of condensation. 2. Mr Maher's case was that the cause was the building itself, that there was some issue with the way the building was constructed or designed. The landlord submitted that there was no probative evidence before the Tribunal that the cause of the condensation was the building. The evidence disclosed that the building had been completed in late 2019. 3. The landlord submitted that the onus lay upon the tenant to establish an entitlement to compensation. 4. The evidence before the Tribunal relied upon by Mr Maher included a report from Callais Group Pty Ltd (Callais), who were retained by his insurer to investigate the cause of the damage to his goods. That report, dated 15 October 2020, refers to an attendance on 2 October 2020. 5. The report, which is headed "Initial Inspection Report", records: "A high moisture presence…within the premises resultant from the extensive condensation build up present and visually sighted". 1. The report also includes comments about the ventilation within the apartment noting: "Minimal operational/opening windows were available". The premises contained a sliding door to a small balcony however the larger majority of windows in the property were not available to be opened (Minimal ventilation available to the premises)". 1. The report noted that there was "visible contamination to surfaces resultant from continued moisture presence" and that samples collected from items in the bedroom returned mould counts classified as high and very high. The report further contained the comment that "due to the cause of damage" the client manager was requested to "complete review prior to advising further as the condition of content items will continue to be impacted until such time adequate air flow is available within the premises". 2. The report also includes the statement "Callais General Manager has since received communication in relation to completing a full building (multi-level/multi-unit) inspection [sic] as this concern has been noted in numerous units of the premises". 3. Mr Maher's evidence also included an email from the director/operations manager of Callais dated 16 November 2020, which stated that it was the General Manager's "professional opinion" that the water/moisture presence in the premises " was resultant from the structural building envelope and NOT the living conditions of…the tenant" and that "to provide an exact answer on what is allowing the building envelope to develop such issues, further investigations into the structure of the building is strongly recommended". 4. The landlord tendered at the original hearing a report from Mould Removal Australia Pty Ltd dated 14 October 2020 which stated: "Mould/condensation issues are a combination of ventilation, use of internal household appliances and an occupants' lifestyle along with external environmental factors like aspect and the weather". 1. The report suggested that "condensation…can be simply controlled by cross-ventilating regularly on DRY days during winter or by warming up inside with the sun or electric heat". The report noted that there "appears to be no water penetration issues from any external source at time of inspection", that there "appears to be no water penetration issues from internal plumbing mains, pressure or waste pipes", and that "most windows appear to open for ventilation". 2. The Mould Removal Australia report stated: "In summary: There is a condensation/mould issue in this unit, and is the combination of the aspect (cannot be changed), weather (cannot be controlled) and lifestyle issues. Ensure occupants ventilate correctly or dry the unit correctly (air conditioner), by taking the time to read and implement some of the recommendations below I am sure the occupants will notice a rapid reduction in condensation in the unit and reduced condensation is the secret to mould reduction." 1. The report then stated: "A quotation will follow to remove the existing mould and fog the home for spores." 1. The report then followed with "suggestions to assist with the long term prevention of new mould growing specific to this property along with general lifestyle adjustments that reduce mould issues." 2. The landlord also relied upon a letter from a licensed builder, Mr Manuel Skarparis of Sydney Home Builders, which confirmed he had inspected the apartment and that there were "openable windows and sliding doors providing cross-flow ventilation [and] also…a ducted reverse cycle air conditioner and a bathroom extraction fan". Mr Skarparis stated "I can only conclude that the lifestyle of the occupant is responsible for the condensation proliferating and causing subsequent mould". 3. Mr Maher tendered to the Tribunal photographs of mould on his property as well as photographs showing substantial condensation on the inside of the windows within the unit. 4. Mr Maher informed the Tribunal that the representative of Mould Removal Australia "was only armed with a torch" and "was not even there to check on the air quality". The parties' submissions 1. In its written submissions on the appeal the landlord submitted that the Callais report made no claim as to the cause of the condensation/mould inside the unit and that it was merely an initial inspection report setting out the observations of the Callais personnel on attending the unit. The landlord submitted, at [23]: "the report itself makes no finding as to cause of the mould/condensation issue and makes no assertions at all that the building is affected by some sort of building defect to cause the mould damage alleged". 1. The landlord further submitted that the statements in the email from Callais dated 16 November 2020 were "a mere assertion contrary to the weight of evidence served by the appellant". In that regard the landlord referred to the Mould Removal Australia report and the letter from Sydney Home Builders. The landlord submitted: "The Member in her oral reasons determined that 'normal' or 'reasonable' use of the unit by the respondent would not have resulted in the quantity of condensation at issue. This was neither fair nor equitable. The practical effect was to reverse the burden of proof so that the appellant is required to somehow refute the presumption that the respondent's use of the unit was normal and reasonable." 1. In oral submissions Mr Heath of Counsel who appeared for the landlord suggested that the Tribunal's conclusion was "almost as if res ipsa loquitur". 2. In supporting its application for leave to appeal on the basis that the decision was against the weight of evidence and not fair and equitable the landlord also submitted that the decision of the Member: 1. Gave undue weight to the email from Callais dated 16 November 2020; 2. Did not give sufficient weight to the Mould Removal Australia report and the Sydney Home Builders letter; and 3. "Made an express assumption in favour of the respondent that his use of the unit was 'normal' and 'reasonable', which the appellant, as the landlord, was neither capable of refuting nor its responsibility to refute". Consideration Ground 1 – Responsibility for the presence of mould 1. The essence of the landlord's submissions concerning the finding that the landlord was responsible for the occurrence of mould (and the application for leave to appeal in respect of that finding) was that it was not sufficient to establish that there was excessive moisture in the premises which was leading to mould, but that it was necessary to establish the cause of the excessive moisture. 2. The landlord also submitted that the Tribunal's reasoning was that, because there was nothing to suggest the tenant was doing anything unusual or inappropriate to cause the moisture, therefore the source of the moisture must be a problem with the building, either inadequate ventilation or water penetration, and that that form of reasoning was impermissible reasoning. The landlord submitted that the inference that the building was the cause of the moisture could not be drawn from the absence of evidence to suggest another reason. 3. In our view, the reasoning of the Tribunal was not so stark. The reasoning of the Tribunal, insofar as it is set out in the transcript produced by the appellant, is set out in a number of passages, which it is convenient to reproduce verbatim with some editing to remove obvious repetition. 4. Having noted that the Callais report was not conclusive because they had not done all the investigations they had recommended, the Member stated: I mean but that email from Callais, who…is…independent from both of you –…it seems to clearly say it's not the living conditions – and to say that the applicant's desperate for evidence, well he's lodged a claim and he's getting evidence in support of the claim, there's nothing wrong with that. And that email says it's not living conditions. I mean it doesn't conclusively say … – what it might be – because further investigations obviously seem to be required for that to be determined and you know it's a completely different scenario to a small house or small block of apartments where things might be clearly evident, this is a big building … I think the reality is that the Callais report is inconclusive but someone from Callais has provided an opinion in that email that says it's not living conditions. The Mould Removal Australia report says it is living conditions in direct contradiction but then it's quite generic in its – the report's construction and doesn't really have specific information or reference to specific conditions in this apartment so I'm not sure that I'm overly convinced by that report. What I see from the evidence that's been supplied is that there's excessive buildup of moisture in cooler months within this particular unit – whether or not this problem extends to other units is not something I need to make a finding about, so you know it is what it is. It may well be something about this building and this particular unit within this building that has yet to be identified that is causing these issues but I cannot see how a reasonable person living in a reasonable manner is going to accumulate so much water within their property, that seems unreasonable to me. What seems more likely is that there is some building defect that is perhaps yet to be identified in terms of airflow in terms of water within the cavity of the building itself or something that is causing this and personally if it was my building I'd be onto my builders big time. … The burden of proof is on the Applicant, but I accept…that this appears to be – more likely than not – on the available evidence, some kind of issue with this particular unit itself. I'm not saying that extends to any other units, I'm not saying anyone's lying about anything, I'm not saying that you know about it and you're hiding it, I'm just saying there seems to be something that may not have been identified because that amount of moisture to be building up just for a new build is…if this was again a shoddy house in the suburbs that had dodgy renovations here there and everywhere you know…it could be clearly identified what was causing this, but – I am satisfied that there is something about the premises that has made them especially in the cooler months almost uninhabitable and based on that finding…I will make an order that rent reduction be applied for the period requested which was the 12th of August to the 9th November and that amount is $4,080. 1. It is clear from those passages that the Tribunal did accept that the email from Callais was evidence that the problem was related to the building. It is also apparent that, in the absence of evidence that the tenant had been behaving in an unreasonable or inappropriate manner so as to cause excessive condensation, the Tribunal concluded that the moisture build-up and condensation was not something for which the tenant was responsible and that, regardless that it was not possible to identify a specific reason for the condensation, there was something about the building that was causing there to be an undue build-up of moisture leading to the spread of mould. 2. It is also apparent that, although the Member did not specifically address the issue, on the basis of that finding the Member concluded that the premises had not been provided or maintained in a reasonable state of repair, having regard to the rent payable and prospective life of the premises (s 63 of the RTA) and were, at least in part, uninhabitable by reason of the moisture and consequential mould. 3. So described, the Tribunal's reasoning cannot be described as impermissible. 4. It was not in issue that there was excessive moisture in the apartment and that this was the cause of mould on Mr Maher's possessions. The issue was whether the source of the moisture was a consequence of something in the building. 5. In our view, there was evidence, albeit limited, that there was inadequate ventilation of the premises. In this regard we refer to the Callais report and the email of 16 November 2020, including the hearsay statements made in those documents, and the photographs produced by the respondent showing the degree of moisture in the premises. 6. Thus, it cannot be said there was no evidence of inadequate ventilation. Accordingly, given the presence of that evidence, the inference that the existence of mould was a consequence of some flaw or inadequacy of the building itself was an available one. 7. In Davies-Evans v MacCulloch [2018] NSWCATAP 253, at [21] an Appeal Panel of the Tribunal stated, in response to a submission by a tenant that the existence of mould which had been notified to the landlord was sufficient to establish a breach of s 63 of the RTA: 21 If there had been a high level of mould in the premises, it might have been possible to infer that the cause of the mould was some defect for which the landlord was responsible, such as inadequate ventilation, broken or breached damp proof courses, guttering problems, cracks in mortar and joints, cracked lead flashing, or ineffective drains. However, the Tribunal did not accept the tenant's claims that there was a high level of mould in the property, making the bedrooms unusable. Rather, it only found that there was "some level of mould." This was supported by the report of the respondent's expert which concluded that there was "low-level mould contamination" in March 2018. Further, the respondent's evidence was that, at routine inspections, there was very little mould in the property. It was therefore open to the Tribunal, to find as it did, that there was some mould and that it did not render the bedrooms unusable. It was also open to the Tribunal to find that the tenant had not established that the landlord was responsible for the mould, nor that there was any breach of s 63 of the RT Act. 1. In Keene v Kuhnert [2021] NSWCATAP 65 the Appeal Panel said, at [15] – [16] 15. The task of the Senior Member in determining the proceedings before him was to evaluate the evidence given and produced by the parties, and where that evidence was inconsistent, to decide what of that evidence it was safe and appropriate to rely upon. In essence, the dispute between the parties revolved around competing assertions about whether the respondents caused the mould by reason of the manner in which they lived in the premises, or whether the mould was caused by some deficiency or defect in the premises themselves. In order to carry out his task the Senior Member analysed the evidence and determined that he preferred the explanation advanced on behalf of the respondents. We detect no error in this approach. 16. There is significant evidence that the state of the property rather than some neglect on the part of the respondents was the cause of the mould. On this basis the Senior Member was entitled to conclude that the premises were not fit for habitation, and that the respondents were entitled to terminate the residential tenancy agreement. 1. In this case there was evidence that there was a high level of mould in the premises. There was also, as we have noted, some evidence that the apartment was not adequately ventilated. There was no evidence which established that Mr Maher was utilising the premises in an unusual manner so as to generate excessive moisture or condensation. The assertion in the letter from Mr Skarparis of Sydney Home Builders, to the effect that the tenant must be responsible, was mere speculation. In those circumstances, as the Appeal Panel suggested in Davies-Evans v MacCulloch, the inference was available "that the cause of the mould was some defect for which the landlord was responsible". We do not consider that the Tribunal made an error of law in drawing that inference. We do not accept Mr Heath's submission that this process of reasoning effectively imports a form of "res ipsa loquitur" into the relationship between landlord and tenant. The Tribunal did not determine that the presence of mould was sufficient to cast an onus upon the landlord to prove it was not responsible. The Tribunal determined, as we consider it was entitled to do, that, given the high level of mould and the evidence of inadequate ventilation, it could infer that the mould was caused by a deficiency in the building and that the landlord was therefore in breach of its obligation under s 63 of the RTA to "provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises". 2. To the extent the landlord submits that the conclusion that the landlord was responsible for the mould and that the mould was not caused by the tenant was said to be against the weight of evidence, we note that, as the Tribunal noted, the Mould Removal Australia report was "quite generic in its construction and doesn't have specific information or reference to specific conditions in the apartment". 3. We also note again that there was no evidence (as opposed to speculation) to suggest that Mr Maher was the cause of the condensation, either that he was engaging in activities which generated excessive quantities of moisture on the property, or that he was not undertaking reasonable steps to ensure ventilation. 4. We are not persuaded that the decision of the Tribunal was against the weight of evidence or that the landlord may have suffered a substantial miscarriage of justice by reason of the Tribunal's acceptance of the (admittedly limited) evidence supporting Mr Maher's case in preference to the (also limited) evidence put forward by the landlord. 5. We also reject the landlord's submission that the Tribunal's reasons were inadequate. We have set out the essential parts of the Tribunal's oral reasons above. 6. As Bell P held in NSW Land and Housing Corporation v Orr [2019] NSWCA 231; 100 NSWLR 578 at [65] – [77]: 65. One may begin with the observation that the quality of a court or tribunal's reasons can vary immensely, of course, depending upon a range of considerations including the experience and skill of a judicial officer or tribunal member, the complexity of the subject matter, the quality of the submissions made before the court or tribunal, the availability of transcript, the urgency of the matter and the time the judicial officer or tribunal member has to compose his or her reasons. Further, good judgment writing is an art not a science (see TF Bathurst, "Writing Better Judgments", speech delivered to the COAT NSW Annual Conference "Efficient, Informal and Fair: Tribunals Delivering Under Pressure"). 66. In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley). 67. Whilst all decision makers, be they judges or tribunal members, should aspire to high quality decision making, an integral part of which is the formulation of clear reasons for decision (as Gleeson CJ explained extra-judicially in "Judicial Accountability" (1995) The Judicial Review 117 at 122), as Basten JA said in Resource Pacific at [48], "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality." His Honour's identification of separate parameters of quantity and quality is, with respect, a useful one. 68. In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). Thus even superior courts are not required to give reasons for every interlocutory decision: Wainohu at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]) and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 but cf. Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], Pollard at [65] and see the discussion in Resource Pacific at [48]−[58]. 69. An important question which is raised by the present case concerns the detail of reasons required of NCAT for a discretionary decision, particularly bearing in mind that there is no right of appeal from the Tribunal's decision other than on a question of law (although a broader appeal may be permitted with leave of the Appeal Panel): see [30] above. 70. As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court. 71. That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) The reasoning processes that lead the Tribunal to the conclusions it made. 72. Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed. 73. In this context, in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187, Fitzgerald P said of the Queensland Retail Shop Leases Tribunal, adapting the language of Samuels JA in the unreported decision of this Court in Strbak v Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep) (Strbak), cited in Xuereb v Viola (1988) 18 NSWLR 453 at 469, that, while such a tribunal: "might not be required to 'submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...' or '... incorporate an extended intellectual dissertation upon the chain of reasoning ...', at least 'a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...' is necessary". It should be noted that Samuels JA in Strbak had been describing the duty of a District Court judge to give reasons as opposed to that of a tribunal member. 74. In Tatmar at 386, Mahoney JA (as he then was) observed in the context of the obligation to give reasons for a discretionary judgment that it was not necessary for a judge: "who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemi[s]e, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23rd September, 1976, unreported; Colacicco v Colacicco (Court of Appeal, 15th March, 1977, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824 at 826. But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it." 75. To like effect, in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46], Basten JA said: "Generally, the concept of 'reasons' requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have not been identified.)" (emphasis added) 76. What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzolanic at 287. 77. These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291. 1. In our view, the Tribunal Member's reasons sufficiently exposed her reasoning. The reasons were given orally at the conclusion of the hearing. They were not expressed with any formality. No application for written reasons pursuant to s62 of the NCAT Act was made. 2. Any consideration of the adequacy of such reasons must acknowledge the manner in which the reasons were delivered. Although the Tribunal Member in preparing written reasons could not have altered the decision or the substance of the reasons expressed orally, the Tribunal Member would have been able to improve the expression of those reasons and spell out more clearly the foundation for the decision, in particular by making more explicit her findings of fact. As Mason P held in Bell v Veigel [2008] NSWCA 36, at [220]: "It would in my view be wrong for a judge who has pronounced reasons for final judgment to make a material addition or alteration to those reasons simply because some better idea has come to mind. Sometimes, however, a judge fails to spell out what was in his or her mind referable to a particular argument, simply due to oversight. I see no reason why such an oversight could not be remedied, on application or on the judge's own motion, in a proper case." 1. See also the statement of Gleeson CJ, writing extracurially, in "Revising Transcripts of Summings-Up" (1997) 9 Judicial Officers' Bulletin 25 at 25: 'A judicial officer revising a transcript of reasons for a decision is entitled to alter the transcript where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say; or where there is some infelicity of expression which the judicial officer desires to remedy. There is no reason, in law or in policy, why a judicial officer who delivers a judgment ex tempore should be strictly bound to the precise manner in which the reasons were expressed. On the contrary, judges and magistrates are encouraged, where it is possible and appropriate to do so, to decide cases promptly and to give their judgments immediately. It would not advance that policy to prevent them from later improving the manner of expression of their reasons, provided, of course, that they do not alter the substance.' 1. That passage was quoted with approval by Beazley JA (with whom Powell JA and Sperling J agreed) in Todorovic v Moussa [2001] NSWCA 419; 53 NSWLR 463, at [41], and by Campbell JA (with whom Basten and Macfarlan JJA agreed) in Spencer v Bamber [2012] NSWCA 274. The last three sentences were also quoted by Steward J (with whom Kiefel CJ and Keane, Gordon and Edelman JJ agreed) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; 388 ALR 257. 2. The Tribunal's reasons clearly noted the existence of a substantial level of mould, identified that there was evidence that the ventilation in the apartment was inadequate, and acknowledged the contrary evidence relied upon by the landlord. The Tribunal noted that there was no suggestion (beyond the formulaic generalisation in the Mould Removal Australia report) that the tenant was engaged in unusual activities which might have caused excessive condensation, and concluded that it was satisfied on the balance of probabilities that there was "something about the premises that has made them, especially in the cooler months, almost uninhabitable". That conclusion was clearly the foundation of the Tribunal's orders allowing a rent reduction and awarding compensation to the tenant. The Tribunal's reasons were sufficient and no error of law is disclosed. 3. The landlord's challenge to the finding that it was responsible for the mould in the premises must fail. Ground 2 - storage costs 1. The landlord's challenge to the award of storage costs to Mr Maher was founded upon the proposition that the costs in question were related to the storage of Mr Maher's goods for a period extending well beyond the termination of the tenancy. 2. Mr Maher explained the incurring of storage costs as necessary to preserve the goods against the possibility that they could be repaired. 3. The Tribunal's conclusion, as expressed in the oral reasons, was that "the tenant has taken a reasonable approach of trying to salvage his property and has incurred costs of $4,466.15 in storage in an attempt to mitigate the loss to property". That is a finding of fact and it cannot be said it was made without evidence. 4. Nor are we persuaded that the conclusion was against the weight of evidence or not fair and equitable. Although minds might differ on the conclusion that the renting of storage for damaged goods for 12 months against the possibility that the goods might be able to be repaired was a reasonable step taken in mitigation of the damage, that conclusion was open to the Tribunal. 5. In any event, even if the cost of storage had not been allowed, the amounts allowed by the Tribunal in respect of the reduction in rent and damage to goods on their own exceed the jurisdictional limit of $15,000, so that the setting aside of the award in respect of storage costs would not affect the outcome of the proceedings. For this reason also we are not satisfied that the landlord may have suffered a substantial miscarriage of justice so as to warrant the grant of leave to appeal. 6. The landlord's challenge to the award of storage costs must fail. Ground 3 - finding that the goods were damaged beyond repair 1. The landlord submitted that the assessment of compensation on the basis that Mr Maher's possessions were damaged beyond repair was not supported by evidence that the goods were so damaged. The landlord submitted that the only evidence tendered by Mr Maher was a statement in his evidence that "the following photos are of mould affected items which have been disposed of given the extent of the mould damage, terrible smell and the advice of the mould experts". 2. The landlord submits that there was no evidence or documentation from such "mould experts" tendered by Mr Maher. 3. Given the evidence of Mr Maher that he had disposed of the mould affected items by reason of the extent of mould damage, smell and the advice of experts, it cannot be said there was no evidence upon which the Tribunal was entitled to base its conclusion that the relevant goods had been destroyed, that is rendered unusable and incapable of repair, by the mould. 4. The Tribunal found that the goods had been damaged and the Tribunal's conclusion was: "I also accept that certain items were damaged including jacket, sofa, bed and the amount of mould on those items and the nature of the fabric meant that they couldn't necessarily just be wiped down or salvaged. I also accept that receipts had been provided as evidence of their value." 1. That was a finding of fact involving no error of law. The Tribunal was entitled to reach that conclusion and we are not persuaded that the conclusion was against the weight of evidence or not fair and equitable. 2. The landlord's challenge to the award of compensation for damaged goods must fail. Conclusion 1. We have concluded that each of the landlord's grounds of appeal must fail and we have rejected each of the bases upon which the landlord sought leave to appeal. 2. Accordingly our orders will be: 1. Leave to appeal is refused; 2. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 July 2021