Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Thomas v Godbolt [2021] NSWCATAP 318 Hearing dates: 22 July 2021 Date of orders: 18 October 2021 Decision date: 18 October 2021 Jurisdiction: Appeal Panel Before: S Thode, Senior Member D Robertson, Senior Member Decision: 1. Appeal allowed in part. 2. The Orders made by the Tribunal on 12 July 2021 in proceedings RT 21/04718 are varied as follows: a) Order 1 is varied to substitute the sum of $1,749 for the sum of $15,000. b) Order 2 is varied to substitute the sum of $5400 for the sum of $5938. 3. The respondents are to pay $13,789 to the appellant, by way of restitution of moneys paid in excess of the amounts to which the respondents were entitled, within 14 days of the date of publication of this decision. Catchwords: LEASES AND TENANCIES – Breach of tenancy agreement - No evidence – Assessment of damages Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Bridgford v Brien [2017] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69; Category: Principal judgment Parties: Stephen Thomas (Appellant) Peter Godbolt and Charlotte Godbolt (Respondents) Representation: S Hitchman (agent) (Appellant) Peter Godbolt (Respondents) File Number(s): 2021/00153161 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 12 July 2021 Before: P Thew, General Member File Number(s): RT 21/04718 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 12 July 2021. The decision related to a residential tenancy agreement. 2. The internal appeal was brought by Mr Stephen Thomas, the landlord, against the tenants Peter and Charlotte Godbolt. The landlord appeals against the decision of the Tribunal to award damages in the sum of $20,938. For the reasons set out below we have decided to allow the appeal in part. 3. For convenience we shall refer to the appellant as the landlord and to the respondents as the tenants. Background 1. The following facts are uncontroversial. The parties entered into a written residential tenancy agreement on 9 February 2018 for a fixed term of 12 months for premises in Manly, New South Wales. After the expiration of the 12 months term the residential tenancy agreement continued on a periodic basis. On 6 December 2020 the tenants vacated the premises, thereby terminating the tenancy. The tenants filed application RT 21/04718 on 02 February 2021 seeking an order for $15,000, said to be sought under section 187(1)(c) of the Residential Tenancies Act 2010 (NSW) (the RT Act) regarding the payment of an amount of money, an order for $15,000, said to be sought under section 187(1)(d) of the RT Act as to compensation, and an order for the payment of a rental bond under section 175 of the RT Act. 2. The Tribunal sent a notice of conciliation and hearing by telephone (with directions) advising the parties that the application would be heard on 25 February 2021. At the directions hearing on that date the Member noted that the application concerns the tenants' claim for compensation and the return of the bond at the end of the tenancy. It was also noted that the landlord was making a claim on the bond for outstanding rent. 3. The matter was adjourned for a 90 minute hearing on 21 May 2021. The Member hearing the matter on that date gave oral reasons for her decision on the day. Subsequently a request was received for a written statement of reasons pursuant to section 62(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). The Member published written reasons for decision on 12 July 2021. 4. By the orders the subject of the appeal, the landlord was ordered to pay the tenants two amounts totalling $20,938. The two amounts were: $15,000 in respect of "reimbursement for the Airsafe report and rent reduction during the period of non-occupation" and $5,938 "in respect of damage to piano and two speakers". 5. The critical findings are set out in full: LIMITATION PERIOD 10 … As the Presiding Member stated during the hearing, a landlord or tenant may apply to the Tribunal under section 190 of the RT Act for an order under section 187 (1) of the RT Act in relation to a breach of a residential tenancy agreement, however such an application must be made to the Tribunal within the time period prescribed. Regulation 39(9) of the Residential Tenancies Regulation 2019 (NSW) provides for the prescribed time. 11 Under Regulation 39(9), the Tenant had 3 months from the time of becoming aware of the alleged breach to make an application for such orders. … The Tenant became aware of the alleged breach on about 12 February 2018 at the latest.… The claim is therefore almost 3 years out of time.… In relation to Claim Two, the Tenant was aware of the water ingress causing damage to items from at least 7 January 2019 (email EX A-1, P 53), making Claim Two approximately 1 year and 9 months out of time.… … 15… The Tenant said that he was pursuing all issues throughout the tenancy including in relation to the water ingress (Claim Two) and relied on the email at p53 of Ex A1. Having regard to the merits of the claims as set out below, having regard to the length of the delay and having regard to the impact on the parties, the tribunal finds that the claims are of sufficient merit to warrant the extension of time. … 17 In relation to Claim One (resulting in Order One), because the Landlord's agent agreed during the hearing that there was asbestos on the premises, in the garage, and that this was sufficient to warrant the remediation of the garage (which happened to be done by a company other than Airsafe namely BU Group), the Tribunal accepts that there was asbestos on the premises. 18 The Tribunal finds that the presence of the asbestos on the premises, even though it may have been limited to the garage, was such as to render it not fit for habitation, in breach of s 52 of the RT Act, for the period from commencement of the tenancy until the asbestos was remediated on 22 March 2018 [emphasis added].… The Landlord's agent consented to reimbursing the Tenant the sum of $1749 for the costs of the Airsafe report and the Tribunal therefore awards the sum in favour of the Tenant. 19 The Presiding Member accepted the evidence of the Tenant that he and his family were not able to reside on the premises for the 6 week period until the asbestos was removed on 22 March 2018 [emphasis added] and finds that that amounts to the sum of 13,200 in rent that he sought to be reimbursed.… The Tenant ought therefore be awarded the sum of $13,200 and $1749 in respect of that particular claim under section 187 (1)(c)-(d) of the RT Act. … FINDINGS –CLAIM TWO 22 The Tenant's Claim Two, which is a claim also made under section 187 (1)(c) or (d) of the RT Act, is in respect of damage to items owned by the Tenant caused by water ingress into the premises in the sum of $5938. … 23 The Landlord's agent agreed on at least two occasions during the hearing that there was water leaking into the premises through the roof, that the roof was thereafter rectified by the landlord and that the Tenant had communicated to the Landlord that items of his had been damaged by the water ingress, which damage had occurred before the roof had been rectified. See further paragraph 53 below. The Tenant's emails dated 27 November 2020 and 1 October 2020 from the Tenant to the landlord's agent/assistant at p53 and p56 of A1 shows that the Tenant had raised the damage caused by the water ingress to items of his possession a number of times with the Landlord since at least before 1 October 2020.… 25 The Presiding Member is also satisfied that the Tenant's Sonos Speakers were in addition damaged by the water ingress causing a power surge, that those speakers could not be repaired but had to be replaced and that the cost of replacing those speakers was in the total sum of $538, being $269 each. This finding is based on the evidence given by the Tenant during the hearing that the amount of $269 per speaker was the amount that appeared on Google searches. MONETARY LIMIT 30 In making the orders, the Presiding Member had regard to the monetary limit imposed by section 187(4)(a) of the RT Act as appears on the face of order one. During the hearing the Presiding Member addressed with the Tenant the monetary limit set out in section 187(4)(a) of the RT Act. 31 The Tenant said that the limit of $15,000 applied to each of the orders that he sought for Claim one and Claim Two, under section 187 (1)(c) and (d) of the RT Act, individually, not collectively, and that therefore the claims must be capped at $15,000 per order. The Presiding Member accepted that the monetary limit of $15,000 applies to each order made under 187(1)(c) and (d) of the RT Act, rather than to the sum of the orders collectively. The legal principles forming the basis of this decision are set out below 1. It is against these findings and orders that the landlord appeals. The Appeal 1. The landlord filed his Notice of Appeal on 2 June 2021. The appeal against a decision made in residential tenancy proceedings is brought in time. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, with the "leave") of the Appeal Panel: s 80(2) of the CAT Act. 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 CAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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 (Collins v Urban), 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. Submissions and evidence 1. In deciding the appeal, we have had regard to the following: * The Notice of Appeal lodged on 2 June 2021 and the landlord's material filed on 7 June 2021. The appellant also relies on a limited transcript filed on 8 July 2021. The respondents agreed that the content of the transcript was in all relevant aspects correct. * The Reply to Appeal lodged 19 July 2021 with attachments, including a 'Dropbox' containing 69 pages of evidence tendered before the Member at first instance, also referred to as Exhibit A1. Grounds of Appeal 1. The grounds of appeal in relation to the reduction of rent were particularised by the landlord's real estate agent, Mr Hitchman, as follows: 1. The landlord appeals against the award for compensation and denies that the premises were uninhabitable for any period of time; 2. In respect of claim one, the order refers to a claim for refund of rent for 6 weeks period from commencement of lease dating back to February 2018; 3. there was no evidence to show that the property was uninhabitable during this period, or that the tenants were required to vacate for any period; 4. none of the evidence provided by the tenants has shown that they did in fact vacate the property during this period and the landlord denies the tenants did not reside in the premises at the relevant time; 5. at no stage did the tenants notify the agent that they were not able to reside at the property; 6. over the term of the lease, there were numerous emails exchanged between the agent and tenants, as well as several face-to-face meetings at property inspections, and at no stage did the tenants ever raise the subject of being unable to use the property for the period they refer to; 7. an email was sent to the tenants regarding a second rent payment, following an initial upfront payment, and the tenants acknowledged the amount due and subsequently made payment; 8. the tenants did not seek a credit or refund for the time they were apparently unable to reside at the property, in fact they requested an extension to their lease; 9. the compensation awarded to the tenants represents full rent for the premises, and has not taken into account the fact that the garage was for storage, and is completely separate to the house; 10. It is denied that the premises were uninhabitable. 1. At the hearing of the appeal the landlord withdrew the appeal against the award of compensation in the amount of $5400 for water damage to a piano and accordingly the order for the payment of that amount will stand. 2. Further, the landlord conceded at first instance, and again on appeal, that $1749 is payable in respect of reimbursement for the cost of the "Airsafe report", obtained by the tenants to show the presence of asbestos in the garage. Again the order for the payment of that amount will stand. 3. The landlord does however, maintain his appeal in respect of the award for damages for a set of 'Sonos One' speakers. In respect of this ground of appeal the landlord submitted that there is no evidence to support a finding that the damage to the speakers was in fact caused by a power surge and submitted that the landlord cannot be liable for "a power surge occurring throughout a tenancy". The landlord submitted that he should not be found liable for a breach of the residential tenancy agreement and that the findings and orders in respect of the damage to the speakers should be set aside. Reply to Appeal 1. In the Reply to Appeal the tenants identified that they supported the reasons and orders of the Tribunal. Relevantly the Reply stated that the tenants considered all aspects of the matter to have been 'discussed' in detail in the original hearing and that the tenants rejected the grounds of appeal on the basis that they 'seem to wish to re-litigate the arguments, rather than introduce anything new'. The appellant's submissions 1. During oral submissions the landlord's representative, Mr Hitchman, confirmed that the landlord appealed against the finding that the premises were uninhabitable. 2. Mr Hitchman maintained that there was no evidence to support a finding that, because of the presence of asbestos in the detached garage, the premises were uninhabitable. Further the landlord submitted that the tenants did not seek reimbursement for six weeks rent until they terminated the tenancy, more than two years after the alleged breach. 3. The landlord submitted that time to commence proceedings should not have been extended in circumstances where there was no evidence that the premises were uninhabitable, and the tenants failed to inform the landlord they had vacated the premises for a period of six weeks in 2018 until they finally vacated the premises almost three years' later. 4. In respect of the award of damages in relation to the speakers, the landlord submitted that there was no evidence that the speakers were damaged by water ingress. The respondent's submissions 1. In respect of the finding that the premises were uninhabitable, the tenants submitted that asbestos was present in the garage and referred to the Airsafe report at page 11 of Ex A1. 2. In respect of the award of damages for the speakers the tenants submitted that a 'confluence' of water and electrical problems caused the fridge and two speakers to break. The fridge was repaired under warranty (see tenants' submissions filed and served on 19 July 2021). 3. The tenants maintained that the Tribunal was entitled to make a finding awarding $20,000, being above the jurisdictional limit of the Tribunal, because the tenant's original application sought orders in the amount of $15,000 for money (s187(1)(c)) and separately for compensation (s 187 (d)). The tenants submitted that a claim for money and a claim for compensation could each attract an order for $15,000, being the jurisdictional limit of the Tribunal. Consideration 1. Consistently with the approach to appeals brought by self-represented appellants identified in Cominos v Di Rico [2016] NSWCATAP 5 at [12] – [13], we identify in the appellants' grounds of appeal three issues: 1. Whether there was evidence to support a finding that the premises were uninhabitable 2. Whether there was evidence to support the finding, on which the Tribunal relied in extending the time for filing of proceedings seeking a rent reduction or abatement, that the tenants had persistently pursued reimbursement of rent for the time that they claimed not to have occupied the premises. 3. Whether there was evidence that the damage to the speakers was caused by water ingress for which the landlord was responsible, through breach of his obligation to maintain the premises in a reasonable state of repair. Ground one – no evidence to support a finding of uninhabitability 1. The critical finding of fact in respect of the habitability of the premises is found at [17] of the written reasons for decision, that is that there was "asbestos on the premises, in the garage". It is not in contention that asbestos was present in the garage. 2. However, at [18] the Tribunal concluded that the presence of asbestos in the garage was such as to render the premises not fit for habitation in breach of section 52 of the RT Act for the period from the commencement of the tenancy until the asbestos contamination was remediated on 22 March 2018. 3. For the reasons that follow we are of the view that the Tribunal erred in so finding, as there was no evidence to support a finding that the residential premises were unfit for habitation. 4. The landlord tendered a limited transcript, the accuracy of which was agreed between the parties. 5. The landlord relied on the following exchange between the Member and Mr Godbolt. Member: the remainder of it, the excess beyond the cost of the report which is $1749, that's for the loss of use of the premises, is that right? Tenant: yes Member: Okay, but it was only in the granny flat that asbestos was present, is that correct? Tenant: Yes. Member: Did you live in the granny flat or did anyone live in the granny flat? Tenant: No. 1. Later the Member again questioned the tenants on the use of the garage: Member: You didn't use it? Tenant: We did, but we used it as a place to store surfboards, and to come back in and have a shower, and storage. 1. It is not in contention that the garage (which the Tribunal recorded in the written reasons for decision had formerly been used as a "granny flat") was a separate building to the residential premises, being the house, inhabited by the tenants. A floor plan was provided to the Member that demonstrates that the garage and main house are separated by a courtyard. 2. The Member also relied on an expert report of 'Airsafe OHC Pty Ltd' (the Airsafe report) dated 13 February 2018 tendered by both parties. The report states that chrysotile asbestos was detected in the paper backing of the linoleum tiles, but not in the linoleum floor itself. No asbestos was found in the residential premises comprising the main house. 3. Although Airsafe also found small amounts of lead in the paint in the granny flat roof eaves, rear window iron bars, the external window frame ledges at the front of the house and to a lesser degree in the front bedroom ceiling paint, and the tenants relied at the hearing at first instance upon the presence of lead as rendering the house uninhabitable, the Tribunal did not make any finding regarding the presence of lead in determining that the premises were uninhabitable. The Member relied solely on the presence of asbestos. 4. It was submitted by the tenants that the garage contained 'friable' asbestos, however this is not evident from the Airsafe report (pp 10-11 of Ex A1). The word 'friable' does not appear in the report. 5. In our view, it was not open to the Member, on the evidence before her, to conclude that the premises were uninhabitable by reason of the presence of asbestos in the garage. It is apparent from the exchange between Mr Godbolt and the Member that Mr Godbolt confirmed on two occasions that the garage was not used by the tenants other than for storage purposes. There is simply no evidence that by reason of the presence of asbestos in the garage the tenants were unable to reside safely in any part of the house. This is certainly not suggested in the Airsafe report. 6. The Member did not refer to any evidence in support of the conclusion that the presence of asbestos in the garage made the house itself uninhabitable. Nor did the Member provide reasons for the conclusion at [18] that "even though" the presence of asbestos was limited to the garage, the house was uninhabitable. 7. Making a finding of fact where there is no evidence to support that finding is an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91]; House v The King (1936) 55 CLR 499; [1936] HCA 40. We are of the view that ground one must succeed. Ground two – No evidence that the tenants had pursued reimbursement of the rent during the tenancy. 1. We are of the view the Tribunal erred by concluding that the tenants had pursued the reimbursement of rent in respect of the period at the commencement of the tenancy when the asbestos was being remediated before late 2020, when the tenants were about to vacate the premises. There was no evidence before the Member to support a finding that the landlord was aware that the tenants did not take occupation of the premises until six weeks after the tenancy commenced. 2. The relevant finding appears in the written reasons for decision at [6]: "during the hearing the Tenant said that he and his family were unable to occupy the premises from the commencement of the tenancy until the removal of the asbestos had occurred on 22 March 2018. The Tenant said words to the effect 'there was asbestos in the place…. Of course we were not living there.'" The landlord submitted that rent had been paid for the entire period and the first time it was brought to his attention that the premises had not been occupied during the period prior to the removal of the asbestos was when the tenants filed a claim for compensation in 2020. 3. The tenants did not provide any form of statement, sworn or unsworn in relation to this issue. There was no evidence, other than an assertion from the bar table, to support the contention that the tenants were not in occupation of the premises: Member: Mr Godbolt, you and your family did not in fact take possession of the property, you did not occupy the premises for the first 6 weeks is that right? Tenant: Correct.… Member: Mr Godbolt, did you email the owner or agent at any time at all and say: 'I was not there for 6 weeks?' Tenant: Are you asking me, yes we kept in very close contact with Zoe throughout that time, I can't find the email in the bundle that refers to it, but I dispute the assertion that they weren't aware. Member: So Zoe, who so is she, the landlord? Agent: Zoe was the landlord's assistant. Member: Okay the landlord's assistant. Are you able to find that email in this bundle Mr Godbolt, because clearly that's pretty important. And then was there… So you asked for reimbursement? You told them that you hadn't even moved in and that you weren't going to because of the asbestos, and lead? Tenant: …There are emails in regards to the removal and when it would be done, I can't see anything in the pack that explicitly says we were not living there. … 1. The tenants conceded at the hearing of the appeal that there was no documentary evidence to support a finding that they had informed the landlord that the property was vacant for six weeks. Furthermore, there was no evidence before the Tribunal of any communication from the tenants informing the landlord that the tenants expected a refund for six weeks' rent. Indeed, rent was paid for the entire period and the tenant did not demand a refund until a notice of termination was issued to vacate the premises approximately 22 months later. 2. It was pointed out by the landlord that the contemporaneous email exchange between Charlotte Godbolt and the landlord's agent suggests that the tenants were living at the premises, as the landlord's agent indicates the tenants "do not need to be there" and Ms Godbolt referred to the asbestos contractor "coming around straight away". (See pp 29 and 33 of Ex A1 dated 19 and 14 March 2020). 3. The tenants' application for damages was brought significantly out of time. 4. Section 190(1) of the RT Act provides that claims for breaches of residential tenancy agreements must be commenced within the period specified in the Residential Tenancies Regulation 2019 (NSW). Section 190(1) provides: Applications relating to breaches of residential tenancy agreements (1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations. 1. The "period prescribed by the regulations" is the period set out in reg 39(9) of the Residential Tenancies Regulation 2019 (NSW). That regulation provides: (9) For the purposes of section 190(1) of the Act, the prescribed period is within 3 months after the applicant becomes aware of the breach. 1. The Tribunal has power to extend that period of its own motion or upon application by any person: s 41 of the CAT Act. The Tribunal extended the time for filing an application in this case, however we are of the view that the Tribunal's exercise of that discretion miscarried. 2. The principles applicable to the exercise of the discretion to extend time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant — Gallo v Dawson [1990] HCA 30 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision — Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success — Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), — Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable — Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]–[59]. . 1. The Tribunals' findings in relation to the extension of time are contained at [15] - "The tenant stated that he was pursuing the issue on and off in respect of the compensation for rent reduction from February 2018…. And that he did not know that there was a limitation period. … the tenant said that he was pursuing all issues throughout the tenancy including in relation to the water ingress … and relied on the email at p53 of ExA1. Having regard to the merits of the claims, having regard to the length of the delay and having regard to the impact on the parties the Tribunal finds that he claims are of sufficient merit to warrant an extension of time". 1. For the reasons set out above we do not consider that the tenants had tendered evidence that the claim for rent reduction had been pursued throughout the tenancy. The absence of such evidence was conceded by the tenants. The claim that the premises, as opposed to the garage, were uninhabitable was not supported by evidence. In deciding whether time should be extended, it was incumbent upon the Member to differentiate between the claim for rent reduction and the claim for water ingress. 2. As the Appeal Panel stated in Jackson, it may be appropriate to go further into the merits of the substantive application if the explanation for the delay in bringing the application is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable. 3. As the Tribunal relied in extending time upon the conclusion, which we have found was reached without evidence, that the tenants had been pursuing the issue throughout the tenancy, we conclude that the Tribunal's exercise of the discretion to extend time (in relation to the claim for reimbursement of rent) miscarried. 4. The tenants' explanation for the delay in bringing proceedings, that they did not know there was a "limitation period", was not a satisfactory explanation, and becomes even less so in the absence of evidence that the tenants had been pursuing the issue of a rent reduction or abatement throughout the tenancy,. 5. In light of our conclusion regarding the issue of habitability, we conclude that the time for filing an application to seek the reimbursement of rent by reason of the alleged uninhabitability of the premises should not be extended. 6. Accordingly ground 2 must also succeed. Ground 3 - no evidence that the damage to the speakers was caused by water ingress 1. The landlord appealed against the Tribunal's decision to award $5938 for water damage to the tenants' piano and Sonos speakers. At the hearing the landlord withdrew his appeal concerning the order for compensation regarding the piano, and the order for compensation in the sum of $5400 in respect of the piano will stand. 2. The appeal in respect of an award for damages for the Sonos One speakers is pressed. 3. It is the landlord's submission that the Tribunal erred in finding that a power surge caused loss and damage. 4. The Tribunal found that "water leakage blew out two speakers" and awarded $269 each (or $538) for two Sonos One speakers. In the Tribunal's summary of the evidence concerning the tenants' claims in respect of damage caused by water ingress, at para [21] of the written reasons for decision, the Tribunal referred to two items of evidence as relevant to the tenants' claim that the speakers had been damaged by reason of water ingress and that the issues were brought to the landlords' attention. 5. The first item referred to was an email dated 20 October 2020 from the tenants (Ex A1 p56) in which Charlotte Godbolt asserted that there were: "outstanding losses due to power surges, leaks, and other past events". 6. The second item referred to by the Tribunal was a statutory declaration of Peter Godbolt dated 16 February 2021: Whilst living at 32 XXX Street we experienced Power Surge problems, resulting in damage to electrical equipment. 3 desk lights and 2 Sonos One Speakers were affected with the surge damaging/blowing them beyond repair. 1. The tenants' claim in respect of the speakers was also the subject of discussion during the hearing. The relevant part of the transcript is (at 1:07): Member: What is the other $538 for? Tenant: 2 Sonos Speakers blew up after submerging in the water … I put a stat dec, that's basically what happened. Member: Do you have any invoice or quote, where did you come up with the dollar value? Tenant: I googled Sonos 1. Member: Ok, no worries, is that google search in your submissions? Tenant: No it's not. 1. In our view, the finding of the Tribunal that the landlord was responsible for the damage to the speakers was not supported by evidence. Critically, although there was evidence of water ingress, and that the tenants had complained to the landlord about the water ingress, there was no evidence to link the water ingress to the damage to the speakers. The statutory declaration provided by the tenants does not support the tenants' case. It simply asserts that a power surge caused damage to the speakers. There is no evidence that the water ingress was responsible for the power surge. 2. The Member set out her reasons in respect of this head of damage at [25] – [26]. The Member concluded that damages were payable because "the Presiding Member is … satisfied that the tenant's two Sonos One speakers were in addition damaged by the water ingress causing a power surge, that those speakers could not be repaired but had to be replaced and that the cost of replacing those speakers was in the total sum of $538". 3. The reasons then continue at [53] published as an "addendum": Relevantly to Claim Two, the water ingress accepted by the Landlord's agent to have occurred as a result of a leak in the roof (later rectified by the Landlord) constitutes a breach of section 52 within the meaning of section 52(1A)(a) and section 52(1B) (c) of the RT Act where it occurred from the commencement of the tenancy. This was not a finding expressly made in the ex tempore reasons given by the Presiding Member in the hearing on 21 May 2021 but is a finding made now in this Addendum, which appears consistent with the principles in Bar-Mordecai at [196] and is a finding that is consistent with the remainder of the findings in respect of Claim Two made on 21 May 2021 and consistent with the evidence. 1. While it was accepted by the Member that there was a leak in the roof, and that damage was occasioned before the leak was rectified, there is nothing in the written reasons for decision to explain the basis upon which the Member concluded that the water ingress had caused any power surge. 2. We are not satisfied that the evidence supports a finding that the landlord's failure to repair the roof caused a power surge, or that a surge caused loss and damage to the tenants' goods. The written reasons are in our view inadequate, as they do not explain how, in the absence of any relevant lay or expert evidence, the Tribunal could conclude that a failure to repair a leak in a timely fashion caused a power surge. In our view, in the absence of any evidence that a leak in the roof caused (or could have caused) a power surge, there was no foundation for the finding that the landlord was responsible for the damage to the speakers. We conclude that the Tribunal erred in finding the landlord liable to compensate the tenants for the value of the speakers and that this ground of appeal must succeed also. Jurisdictional limit 1. We note that the total amount to which we have concluded the tenants are entitled is less than $15,000. It is therefore unnecessary to address the question whether the Tribunal had jurisdiction to make orders which, in total, exceeded $15,000. We note that the Tribunal referred to the Appeal Panel decision in Bridgford v Brien [2017] NSWCATAP 111 as authority for the proposition that the limit on jurisdiction laid down in s 187(4)(a) of the RT Act and regulation 40 of the Residential Tenancies Regulation 2019 (NSW) applies distributively to each order made in respect of each cause of action and not globally to all orders sought in a particular application. We further note that the Appeal Panel in Bridgford v Brien did not purport to determine that question finally and does not appear to have received submissions in relation to that issue. 2. Although the tenants addressed this issue in reply, the landlord did not raise any ground of appeal challenging the award of more than $15,000 by reference to the limits upon the Tribunal's jurisdiction imposed by s 187(4)(a) of the RT Act. 3. The fact that we have not addressed the question, whether the jurisdictional limit imposed by s 187(4)(a) applies distributively to each separate order made by the Tribunal or whether it applies globally to all orders made in one application, should not be taken as approval of the approach adopted by the Tribunal in this regard. Conclusion 1. The landlord's appeal was successful in part. The orders made by the Tribunal must be set aside to the extent that they require the landlord to pay $13,200 in reimbursement of six weeks rent and $538 in respect of damage to the tenants' speakers. We were informed at the hearing of the appeal that the landlord has paid the amount of the money order in full. In determining the appeal we may make any order that we consider appropriate and may exercise all the functions that are conferred or imposed by the CAT Act or other legislation on the Tribunal at first instance: CAT Act s 81. It is appropriate that the tenants repay to the landlord the amount they have received in excess of the amount which should have been awarded. We will vary the orders made by the Tribunal to reflect our conclusions and will additionally make an order that the difference between the amount the subject of the varied orders and the amount which the landlord has paid to the tenants be repaid to the landlord. Accordingly we make the following orders. Orders 1. The orders of the Appeal Panel are: 1. Appeal allowed. 2. The Orders made by the Tribunal on 12 July 2021 in proceedings RT 21/04718 are varied as follows: 1. Order 1 is varied to substitute the sum of $1,749 for the sum of $15,000. 2. Order 2 is varied to substitute the sum of $5400 for the sum of $5938. 1. The respondents are to pay $13,789 to the appellant, by way of restitution of moneys paid in excess of the amounts to which the respondents were entitled, within 14 days of the date of publication of this decision. ********** 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: 18 October 2021