Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gu v McMahon [2021] NSWCATAP 333 Hearing dates: 6 September 2021 Date of orders: 27 October 2021 Decision date: 27 October 2021 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Charles, Senior Member Decision: 1. To the extent required, leave to appeal is granted. 2. The appeal is allowed in part. 3. Set aside the order made by the Tribunal on 16 June 2021 but only to the extent that it implicitly dismissed the claims by the appellant the subject of items 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19 and 20 in the Landlord's List of Claims (defined in the reasons). 4. The appellant's claims the subject of items 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19 and 20 in the Landlord's List of Claims are remitted to a differently constituted Tribunal for redetermination. 5. For the purpose of such redetermination, directions should be made by the Tribunal which address the matters referred to in paragraph 99 of these reasons. 6. Otherwise, the appeal is dismissed. Catchwords: LANDLORD and TENANT-termination of tenancy agreement instigated by tenant-whether validly terminated-whether other bases upon which the agreement terminated-claims relating to condition of the residential premises when tenant gave up possession-significance of condition report prepared by the landlord APPEALS-error of law-failure to address termination issues-failure to address issues concerning probative force of the landlord's condition reports Legislation Cited: Civil and Administrative Tribunal Act (NSW) (2013) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation Cases Cited: Cominos v Di Rico [2016] NSWCATAP 5 Dranichnikov v Minister for Immigration and Multicultural Affairs[2003] HCA 26; 77 ALJR 1088 Hall v Jenkins [2015] NSWCATAP 197 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Yan Ping Gu (Appellant) Melinda McMahon (Respondent) Representation: Appellant self-represented Respondent self-represented File Number(s): 2021/00183141 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 16 June 2021 Before: P Moran, Senior Member File Number(s): RT 20/53986 REASONS FOR DECISION Overview 1. For a period of nearly 6 months in 2020 the respondent (the Tenant) occupied residential premises in Sydney owned by the appellant (the Landlord) under a residential tenancy agreement. 2. After the Tenant vacated the premises in late December 2020 she commenced proceedings in the Tribunal. These proceedings included a claim for the return of the rental bond she had paid at the commencement of the tenancy. In those proceedings the Landlord disputed that the Tenant was entitled to be paid the amount of the bond and contended that the Tenant owed her monies which exceeded the amount of the bond consisting of rent and other items, including costs to make good the premises after the Tenant vacated. The Tenant disputed these claims. 3. The Tribunal rejected the Landlord's claims except for two of her claims (a claim with respect to the maintenance of the garden and a claim concerning some cupboards in the kitchen). As a consequence, the Tribunal ordered that an amount of $2,090.55 be paid from the rental bond to the Landlord and the balance be paid to the Tenant. It was implicit in this order that the Tribunal dismissed the balance of the Landlord's claims. 4. The Landlord has appealed from that decision. As outlined below, we have decided that the Tribunal's rejection of most of the Landlord's other claims was affected by appellable error. At the hearing of the appeal, we explored the possibility of determining the outstanding issues between the parties for ourselves. However, for reasons that will appear below, this was neither fair to the parties nor practicable. Facts and evidence 1. The residential tenancy agreement between the parties was for a 5 month fixed term expiring on 29 November 2020. It was made on 25 June 2020. The signing by the parties was stated to have occurred on 26 June 2020. The rent was $2,650 per week. 2. The agreement contained provisions under which the parties gave express consent to the electronic service of notices and documents. Both parties specified email addresses to be used for this purpose. The Landlord specified an email address that was an address of a real estate agent at Sydney Sotheby's International Realty. The Tenant gave an email address containing her name. Clause 50 of the agreement regulated the situation. It provided that the parties agreed to only serve notices authorised or required by the Residential Tenancies Act 2010 (NSW) (RTA) on the other party by email if the other party had provided express consent for that to occur: cl 50.1. The clause also provided that the parties may withdraw their consent to electronic service of notices at any time by notifying the other party in writing, in which event no further notices were to be served by email: cll 50.3 and 50.4. 3. Under clause 41 of the agreement the Landlord agreed that where she applied to the Rental Bond Board or to NCAT for payment to her of the whole or part of the bond she would provide the Tenant with details of the amount claimed, copies of any quotations, accounts and receipts that were relevant to the claim and a copy of the completed condition report about the residential premises at the end of the residential tenancy agreement. 4. Clause 65 of the agreement provided that if the landlord provided a condition report, signed by the landlord to the tenant and the tenant did not return a copy of the condition report, signed by the tenant, within 7 days of taking possession, then the condition report signed by the landlord was deemed to form part of the tenancy agreement and to represent a true and accurate statement of the state of repair and condition of the residential premises at the date of the condition report. 5. There were special conditions of the tenancy agreement, including that the tenant agreed not to attach any hooks to any of the surfaces in the premises without the prior written consent of the landlord, the tenant agreed that the property would be cleaned at her expense upon vacating the premises and that "As the property is currently on the market for sale, the owner agrees that there will be no inspections through the property for the duration of the 5 month fixed lease term". Another special condition addressed a requirement for the tenant to engage professional cleaning upon vacation since the landlord had agreed to 7 pets being kept at the premises. 6. There was also a special condition that a condition report was to be completed, signed and returned to the landlord's agent within 7 days from commencement of the lease. 7. Sections 29 and 30 of the RTA provide: 29 Condition reports (1) A condition report relating to the condition of residential premises on a day specified in the report must be completed by or on behalf of a landlord before or when the residential tenancy agreement is given to the tenant for signing. (2) The landlord or landlord's agent must, before or at the time the tenant signs the residential tenancy agreement, give to the tenant 2 copies, or one electronic copy, of the completed condition report. Maximum penalty—20 penalty units. (3) The tenant must complete and give one copy of the condition report to the landlord or landlord's agent not later than 7 days after taking possession of the residential premises and both the landlord and the tenant must retain a copy of the report. (3A) Subsection (3) does not apply to the tenant if the landlord or landlord's agent has failed to give to the tenant copies of the condition report in accordance with this section. (4) At, or as soon as reasonably practicable after, the termination of a residential tenancy agreement, the landlord or landlord's agent and the tenant must complete the copy of the condition report retained by the landlord or the tenant under this section, in the presence of the other party. (5) It is not a breach of subsection (4) for the condition report to be completed in the absence of the other party if the party completing the report has given the other party a reasonable opportunity to be present when it is completed. (6) A condition report is to be in the form prescribed by the regulations and may be included in a prescribed standard form of residential tenancy agreement. 30 Condition report evidence of condition of premises (1) A condition report that is signed by both the landlord and the tenant is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the day specified in the report. (2) This section does not apply— (a) to any matter that could not have reasonably been discovered on a reasonable inspection of the premises, or (b) to any statement in the report about which the tenant makes a written dissenting comment on the copy of the report completed by the tenant and retained by the landlord. 1. There were no findings made by the Tribunal about the preparation, signing, provision to the Tenant or return to the Landlord of an ingoing condition report or about relevant aspects of an outgoing condition report. 2. However, it seems clear that, at least, an ingoing condition report was prepared by the Landlord's agent as a result of an inspection held on 26 June 2020, that a copy of this was supplied to the Tenant at some point near the commencement of the tenancy, that a vacation inspection was conducted by the Landlord's husband, Mr Wang, and the Tenant's agent, Ms Elkordi, on 21 December 2021 and that with regard to that inspection an outgoing condition report was prepared by Mr Wang, which was signed by himself and the Landlord. 3. This was because the Landlord presented in evidence to the Tribunal a condition report, which referred to an inspection by Mr Morgan from the Landlord's real estate agency on 26 June 2020. This condition report contained typewritten entries concerning the ingoing sections of the report, apparently, completed by Mr Morgan. It also contained handwritten entries in respect of the outgoing section. On the front page of this document there was hand written "Vacate Inspection on 21/12/2020 James Wang & Yan Ping Gu" under which there appeared signatures, apparently, those of Mr Wang and the Landlord (the Landlord's Outgoing Condition Report). 4. Mr Wang said in a witness statement provided to the Tribunal that a vacation inspection at which he and Ms Elkordi were present took place on 21 December 2020 (this was confirmed in email correspondence) and that: During the inspection I recorded and said to the agent all the comments relating to the condition report…. 1. The Tenant presented in evidence to the Tribunal a copy of a condition report with the above completed ingoing sections but also containing handwritten comments and entries in the section concerning the tenants' comments about the ingoing entries provided on behalf of the Landlord. This document was referred to by Ms Elkordi in an email subsequent to the inspection on 21 December 2020 (sent on 21 December 2020) and an email response from Mr Wang stated that he had not yet seen the document (email sent to Ms Elkordi on 21 December 2020). There was no suggestion that the condition report to which Ms Elkordi referred was brought by her to the inspection on 21 December 2020. 2. We refer to some (but not all) of the relevant aspects of email communications concerning termination of the residential tenancy agreement and the appellant's claims for compensation that were presented to the Tribunal. Much of the email correspondence was to or from Mr Wang. It is clear that he was managing affairs relating to the tenancy on behalf of the Landlord. (He also appeared at the hearing in the Tribunal and on appeal on behalf of the Landlord). 3. There were no findings made by the Tribunal as to the written communications (both emails and text messages) that were actually sent and received. It was clear that there was no controversy about whether some of these communications had occurred but there were others where this was disputed. 4. By an email sent on 23 October 2020 (to the email address specified by the Tenant for the electronic service of notices) the Landlord gave notice that the Tenant was required to deliver up vacant possession of the premises on 29 November 2020 given the expiry of the fixed term on that date. 5. In accordance with s 84 of the RTA a residential tenancy agreement for a fixed term could be terminated at the instigation of a landlord by the landlord giving at least 30 days' notice that the agreement was to expire at the end of the fixed term. In such circumstances, the Tribunal is required to order that the agreement terminated at this time if the tenant did not vacate the premises as required by the notice. 6. However, as a response to the COVID-19 pandemic, at the time when the Landlord gave this notice, Regulation 41C of the Residential Tenancies Regulation 2019 altered s 84 so that a period of at least 90 days' notice was required to be given by a landlord with a view to bringing about the termination of a fixed term tenancy. Accordingly, the Landlord's notice given by email on 23 October 2020 was ineffective. 7. On 9 November 2020, Mr Wang sent an email to the Tenant in which it was contended that the special condition that there would be no sales inspections during the tenancy was invalid and requesting an inspection time on 23 or 24 November 2020. 8. The Tenant informed Mr Wang about the defect with the 23 October 2020 notice in an email sent to Mr Wang on 11 November 2020 (part only of this email appears in the bundles presented to the Tribunal). 9. In that email, which referred to recent emails from Mr Wang, the Tenant said that the Landlord would need to send a new termination notice with a new 90 day termination period. The Tenant also said that she now withdrew her consent for electronic communications as provided for in cll 50.3 and 50.4 of the agreement. 10. The Tenant also said in the email that the Landlord had acted in breach of s 26 of the RTA by failing to disclose that the special clause in the residential tenancy agreement concerning no sale inspections was invalid. It was said that the Landlord was well aware that the Tenant only rented the property if the Landlord agreed to no viewing during the 5 month lease because of her animals. The email went on to say that the breach of s 26 allowed her to give 2 weeks' notice and make a complaint to Fair Trading. 11. The email from the Tenant did not refer to s 98A of the RTA but under that section a notice of termination on the ground that the landlord has contravened s 26 of the RTA must specify a termination date that is not earlier than 14 days after the day on which the notice is given. 12. The fixed term of the residential tenancy agreement expired on 29 November 2020. 13. By virtue of s 18 of the RTA, the residential tenancy agreement between the parties continued as a periodic agreement. Pursuant to section 97 of the RTA a tenant can terminate a periodic agreement at any time by giving a termination notice which specifies a termination date that is not earlier than 21 days after the date on which the notice is given. 14. After the expiry of the fixed term, in an email sent to Mr Wang (and not to the email address specified by the Landlord for electronic service of notices) on 2 December 2020, the Tenant stated: ….. Also I now give formal notice as per my previous email and fair trading advice that we vacate the property on 18 December 2020. Keys and handover will be concluded then. 1. From the appeal papers it was not clear what was the "previous email" referred to in this email. The notice given by the 2 December 2020 email was less than the 21 day period required by s 97 of the RTA. 2. On page 67 of the Landlord's bundle of documents presented to the Tribunal were copies of records of four communications from Mr Wang-three emails and one letter. One of the emails was only part of the communication and it did not disclose the addressee or a date when it was sent. The other two emails were addressed to the Tenant and gave a date and time of sending on 3 December 2020-one was from Mr Wang and the Landlord and the other was from Mr Wang. The letter was from the Landlord to the Tenant. 3. On appeal, the Tenant disputed that she had received any of these communications on page 67. 4. The record of part of the email stated that Mr Wang had been advised that the Tenant's termination notice sent by email on 2 December 2020 was invalid as she needed to serve 21 days termination notice and also that it should not have been sent by email as both the Landlord and the Tenant had withdrawn consent to such communication. The papers we have seen do not appear to contain any written communication on behalf of the Landlord before the Tenant's email sent on 2 December 2020 withdrawing the Landlord's consent to electronic service of notices. 5. The first in time of the two emails dated 3 December 2020 said that they had just put a letter of notice in the letter box of the residential property and that the notice served was that the Landlord withdrew the consent for electronic service of any notice. The second in time of these emails stated that the Tenant was required to serve a valid termination notice without emailing as they had both agreed on 11 November 2020 to withdraw consent to such service. It requested that service of the Tenant's termination notice be to their residential address. 6. In an email from Mr Wang to the Tenant sent on 7 December 2020 it was said that "As you are going to terminate the lease...." the Tenant was asked to do various things, including to arrange a time for a final inspection. 7. In his statement to the Tribunal Mr Wang said that on 14 December 2020 he received a message from the Tenant that she would vacate the property on 21 December 2020, not 18 December 2020. 8. Various invoices show that cleaning work was carried out at the residential premises on 18 and 19 December 2020 and that a pest and termite inspection took place on 18 December 2020. 9. As we have mentioned, Mr Wang and Ms Elkordi, from Rent Fairy, the Tenant's agent, carried out an inspection of the residential premises on 21 December 2020 following the Tenant's departure from the premises. The inspection, described as "vacate inspection", was referred to in an email from Ms Elkordi to Mr Wang sent at 3:18 p.m. that day. The email contained a proposal for the Tenant to bear the cost of having the gardens returned closer to the condition at the start of the tenancy and for the kitchen cupboards to be installed in order to finalise the vacation and for return of the bond in full to the Tenant. It was said that, as was discussed, the property had been pest controlled, all carpets steam cleaned and professionally cleaned. It was said that she was happy to have the cleaners re-attend to clean the toilet and carry out a wipe through of the kitchen drawers. Otherwise, it was said that other issues noted throughout the inspection were deemed wear and tear or had been present at the commencement of the tenancy. It was noted that the agent who had carried out the ingoing inspection report was not present at the inspection that day. It was then said: I also note that the copy of the ingoing inspection you have on the file does not have [the Tenant's] comments from the commencement of the tenancy. I currently hold this copy in my possession am happy to provide you with a copy. 1. Mr Wang replied to Ms Elkordi's email later on 21 December 2020. He said he would discuss the issues with his wife and asked for the ingoing condition report with the Tenant's comments to be sent to him as he had never received this. The email contained no reference to any issue as to whether or not the tenancy had terminated and if so when that occurred. 2. On 23 December 2020, Mr Wang sent an email to Ms Elkordi (copy to the Tenant) asking again for the ingoing condition report with the Tenant's comments to be sent to him. He also said in the email that they would reply shortly as to whether they accepted the Tenant's offer to arrange the gardening and kitchen cupboard services to finalise the matter. 3. Later on 23 December 2020, Mr Wang sent another email to Ms Elkordi (copied to the Tenant). Amongst other things, it was said in the email that Ms Elkordi had admitted and agreed at inspection that a cleaner would be back to complete the cleaning of the house as the floors of the kitchen, living areas, surface of dishwasher and toilet in main bathroom were not in a clean condition. It was also said that there was another issue, namely that the Tenant had never served a proper termination notice for a minimum of 21 days. It asked again for the ingoing condition report with the Tenant's comments to be sent to him. 4. On 26 December 2020, Mr Wang sent an email to Ms Elkordi which set out a list of 22 claims for a total amount of $15,056.51. This amount exceeded the amount of the rental bond. A claim for rent for the period from 21 December 2020 to 11 January 2021 was included in this amount. 5. The email concluded by stating that as soon as the Tenant arranged to fix or repair or clean the items the relevant claims with respect to them would be withdrawn, subject to the result of such work. 6. In the Landlord's bundle presented to the Tribunal there was another email from Mr Wang to Ms Elkordi with the sent date of 27 December 2020. This set out an additional claim regarding damage to the door of the side fence. 7. In the Tenant's bundle of documents presented to the Tribunal there was an email from Ms Elkordi to Mr Wang (copied to the Tenant) with a sent date of 27 December 2020 which stated that it attached a copy of pages of "ingoing condition report that had additional comments made at the commencement of the tenancy" (the Tenant's Ingoing Condition Report). 8. In his written statement to the Tribunal Mr Wang said that he had sent the Landlord's Outgoing Condition Report to the Tenant's agent but he was not specific as to how or when this occurred. He also contended that the comments by the Tenant in the ingoing condition report he eventually received were "made up" later by the Tenant or her agent after the dispute had arisen. 9. We have not seen any email or letter from, or on behalf of, the Tenant setting out a specific response to each of the claims listed in Mr Wang's emails of 26 and 27 December 2020, or to the references in the Landlord's Outgoing Condition Report which supported these claims, nor was any witness statement presented to the Tribunal providing any such responses. On appeal, the Tenant sought to rely upon statutory declarations from herself and Ms Elkordi that were made after the Tribunal hearing. 10. Mr Wang informed the Tribunal that the Landlord did not find a new tenant for the premises until "early March 2021" (transcript, page 62.3). The Tribunal proceedings and hearing 1. On 30 December 2020 the Tenant commenced proceedings in the Tribunal seeking payment to her of the full amount of the rental bond pursuant to s 175 of the RTA. (The application also sought an order under s 21 of the RTA that a term of a residential tenancy agreement was void or partly void because the term was inconsistent with the Act or Regulations. The application did not identify which term was said to be void or partly void or explain the basis of this claim. However, it emerged at the hearing that this was connected with a contention that the Tenant had been misled into making the agreement by the term of the agreement that no sales inspections would be carried out during the tenancy). 2. In her application the Tenant stated that she did "not agree with any claims that the Landlord is making regarding repairs or outstanding rental payments". The parties must have appreciated that this was a reference to the claims set out in, at least, Mr Wang's email of 26 December 2020. 3. Under s 175 of the RTA, upon application by a landlord or tenant, the Tribunal may make an order as to payment of the rental bond. 4. On 30 December 2020 the parties were given notice of a conciliation and hearing (by telephone) to be held on 1 February 2021. This notice was accompanied by various directions, including that the Tenant was to give to the Landlord any "documents" on which she intended to rely within 14 days. The directions contained a notation that "Documents" included, amongst other things, witness statements. 5. On 14 January 2021, the Tenant gave the Landlord and the Tribunal a folder of documents. This did not include any witness statements. 6. At the hearing on 1 February 2021 a direction was made which required the Landlord, by 15 February 2021, to give the Tenant all documents on which the Landlord intended to rely at the hearing. No provision was made for the Tenant to provide any responsive evidentiary material. It was also noted that the Tenant had sent her documents to the Landlord and the Tribunal and that the Tenant accepted liability "only for the costs associated with the repair of cupboards in the sum of $800." 7. No direction was made for the Landlord to provide any specific document outlining her claims. 8. In accordance with the direction made on 1 February 2021, on 15 February 2021, the Landlord provided a folder of documents. This included a list of claims (the Landlord's List of Claims), a statement from Mr Wang in support of the claims, copies of quotes and estimates of costs and the Landlord's Outgoing Condition Report. 9. The Landlord's List of Claims outlined a claim for a total amount of $16,268.51. The items listed were the same as those set out in the 26 and 27 December 2020 emails from Mr Wang (there were still 22 numbered items but item 18 in the Landlord's List of Claims incorporated both items 18 and 19 set out in the 26 December 2020 email). These documents made it clear that the Landlord's claim for rent was based upon a failure by the Tenant to bring the tenancy agreement to an end by giving the required 21 days' notice in a properly served termination notice. 10. No formal application pursuant to s 175 of the RTA (or pursuant to s 163 of the RTA) was ever made by the Landlord for payment to be made to her of the rental bond and no separate application was lodged by the Landlord in the Tribunal making a claim for rent and compensation for breach by the Tenant. 11. Nevertheless, the material provided by the Landlord pursuant to the direction made on 1 February 2021 confirmed what was apparent from the email correspondence outlined above, namely that the Landlord opposed payment of the rental bond to the Tenant and instead sought payment of that money and more on the basis of her claims for rent and compensation in respect of the condition of the premises when the Tenant vacated. 12. The procedure that was followed before the final hearing did not expose and adapt to the real issues that arose in the dispute between the parties. No provision was made for the Tenant to respond to the Landlord's evidentiary material in support of her claims. As a consequence, there was nothing from the Tenant which, explicitly, notified the Landlord or the Tribunal of the nature of the Tenant's case as to how and when the tenancy agreement terminated and there were no written statements from the Tenant responding to the factual aspects of the Landlord's claim. There was also no formal process taken which recognised that the Landlord pursued a money claim for more than the amount of the rental bond. 13. At the hearing on 28 April 2021 the Tribunal raised with Mr Wang, who appeared for the Landlord, the fact that no application by the Landlord had been lodged in the Tribunal. The response from Mr Wang was that he had been told by the Registry that this was unnecessary (transcript, page 10). 14. The Tribunal also raised with Ms Elkordi, who appeared for the Tenant, the absence of any witness statements from the Tenant. Ms Elkordi indicated that she was a bit confused about this because the Tenant had put on her evidence before the first hearing on 1 February 2021 (transcript, page 11). Subsequently, she said that they were not aware that they needed to provide such material and apologised for not doing so (transcript, page 13). 15. The course followed at the hearing was that Ms Elkordi presented what she said was "my evidence as to whether we agree or we disagree with these items" (transcript, page 19.1) - a reference to the Landlord's List of Claims. In doing so, in respect of some items she made assertions about matters of which she had no personal knowledge-for example, that curtain rods were not changed (transcript, page 25.2), that a light fell off because the back door lock mechanism was not working properly (transcript, page 28.4), that a bathroom was never used by the Tenant (transcript, page 32.4) and that no hooks were placed in a wall by the Tenant (transcript, page 34.2). In respect of a number of the claims, one of the objections to it, or the sole ground of objection, was that no invoice for the costs claimed had been provided. 16. After hearing from Ms Elkordi, the Tribunal heard from Mr Wang who gave an account about each of the items claimed. With respect to the claim for rent, Mr Wang submitted that the Tenant never gave a proper termination notice giving 21 days' notice (transcript, page 39.6). As to the other items claimed, Mr Wang referred to various parts of the evidence, including entries in the Landlord's Outgoing Condition report and to quotes in respect of the rectification work he said was required. The Tribunal's decision 1. The Tribunal identified the issues as being, first, whether a term of the tenancy agreement was void or partly void and, secondly, whether there were outstanding rental payments or repair or cleaning costs which entitled the Landlord to part or all of the bond: [6]. 2. The Tribunal then proceeded to address each of the claims in the Landlord's List of Claims in the order listed, beginning with the claim for rent. 3. As to the claim for rent, the Tribunal referred to the existence of emails and text messages in the documentary material presented to the Tribunal and remarked that neither party at the hearing had relied upon any particular communication with respect to the issue. The Tribunal then said: 12 Neither party has tendered in evidence termination notices in a form compliant with the Regulations. That, combined with the absence of any witness statement of the [Tenant], nor reference at the hearing by either party to any particular text message or email either in support of, or opposition to, the contention of rental arrears leaves the Tribunal in the unsatisfactory position of being asked to speculate. 13 There is no Application by the [Landlord] before the Tribunal; the sole Application for determination being that of the [Tenant]. 14 On the limited evidence on this issue the findings I make, the only findings, are that vacant possession of the Premises was given by the [Tenant] to the respondent on 21 December 2020 and that rent was paid up to that point. I make no finding of rental being in arrears. 1. The Tribunal proceeded to accept the Landlord's claims in respect of the kitchen cupboards (the Tenant had accepted liability for $800 but the Tribunal awarded $880) and the work required on the garden. 2. All of the other claims were rejected. 3. Most of the claims were rejected on the basis that the Tribunal was not satisfied that there was a defect in the particular condition of the premises as alleged by the Landlord or, in some instances, on the basis that it was not satisfied that the Tenant was responsible for the defect. 4. In some instances, the Tribunal said that it accepted the position of the Tenant concerning a disputed fact in circumstances where such a position necessarily depended upon the personal knowledge of the Tenant which had not been the subject of any evidence from her (paragraphs 21,37,43,44, and 47). 5. In respect of one of the claims (item 16), the Tribunal gave as an additional reason for rejecting the claim that the quote supplied in support of the claim was for a number of different items of work and there was no calculation as to that part concerning item 16. Furthermore, the Tribunal said that the quote was given without a visual inspection and was therefore unreliable. 6. As we have already mentioned, the Tribunal made no findings bearing upon the weight to be given to the Landlord's Outgoing Condition Report and it did not address the probative force of that Report. It also made no findings about the Tenant's Ingoing Condition Report. 7. Nevertheless, in addition to the claim for rent, the following three claims in the Landlord's List of Claims were unaffected by the issue concerning the probative force of the Landlord's Outgoing Condition Report: 1. Item 17 was a claim for damage to a retaining wall near the water meter based upon the contention that this was "caused by tenant's removal car crashing". One of the reasons the Tribunal gave for rejecting this claim was that there was no evidence that any damage was caused by the applicant: at [52]. 2. Item 21 was a claim for "Damaged/destroyed side fence gate. Cost of replacement $842 as attached quotes". The Tribunal referred to the evidence in support of this claim consisting of photographs and a quotation from Amazing Fencing. It said that the photographs appeared to show a timber gate having been removed and possibly lying on its side. It concluded, amongst other things, that there was no evidence as to precisely what the author of the quotation was quoting for, nor was there any evidence sufficient to persuade the Tribunal as to the manner or respects in which it is alleged the side gate was either damaged or destroyed. It also considered that, given what it said was the paucity of evidence, it was not persuaded that the damage was caused by the Tenant: at [57]. 3. Item 22 was a claim for unpaid water usage. The claim was in two parts. First, a claim for a small amount in respect of water usage, including an amount for the period 5 June 2020 to 30 June 2020, according to the water bill in evidence. The second part was for the period from 4 September 2020 to 21 December 2020. Mr Wang informed the Tribunal of a water meter reading taken on 21 December 2020 but no water bill concerning this second period was presented to the Tribunal. In rejecting item 22 the Tribunal concluded, amongst other things, that the Landlord did not rely upon any evidence to support this item of her claims: at [61]. The limited appeal right 1. Under s 80 of the NCAT Act, a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, which this is, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: …..the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) Grounds of Appeal 1. In the Notice of Appeal lodged by the Landlord she requested that the order made by the Tribunal be changed and that the Tenant be ordered to pay her the sum of $14,177.96. This amount is the difference between the amount ordered to be paid to the Landlord from the bond and the total amount of the Landlord's claims ($16,268.51). 2. Amongst the grounds of appeal set out in the Notice of Appeal, it was said that the Tribunal erred in law regarding the unpaid rent claim, that the decision was not fair and equitable and that the decision concerning the claims for compensation was against the weight of the evidence. Leave to appeal was sought. 3. In explaining why it was said that the decision was not fair and equitable, it was said in the Notice of Appeal, amongst other things, that: 1. The Tenant never served a proper termination notice as required by s 97 of the RTA and so the lease was not terminated. 2. Eventually, the Tenant moved out of the premises on 21 December 2020 but rent was only paid to 20 December 2020. 3. The Tenant was liable for payment of rent for a period of 21 days from 21 December 2020. 1. In explaining why it was said that the decision concerning compensation was against the weight of the evidence, it was said in the Notice of Appeal, amongst other things, that the Tribunal did not assess the condition reports (ingoing and outgoing). 2. The Landlord had no legal representation, nor did the Tenant. In Cominos v Di Rico [2016] NSWCATAP 5 at [13], the Appeal Panel stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal and that in such circumstances it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. We have approached the appeal in this manner. 3. In addition to the bundles of documents the parties had presented to the Tribunal, the following written material was presented on appeal: 1. The Landlord provided a written statement from Mr Wang. In part, this contained submissions about error by the Tribunal but it also contained a more expansive account as to the defects said to have been found at the premises when the Tenant vacated and as to the costs of cleaning or rectifying such defects. 2. The Tenant presented a statutory declaration by Ms Elkordi on 26 August 2021 with attached documents. She also presented an unsigned statutory declaration from herself containing a date of 26 August 2021. This addressed the Landlord's claims. Part of what was said was in the nature of submissions. 1. To the extent that this written material from each of the parties consisted of evidence in support of, or in opposition to the Landlord's claims, we would only have, potentially, taken it into account in the event that we decided to deal with the appeal by way of a new hearing. That is not the course that we have followed. Consideration - error concerning the Landlord's claim for rent 1. In our opinion, the Tribunal made an error of law in failing to identify and address the issues that arose in respect of the Landlord's claim for rent. This was an error of the nature referred to in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24]-[25]. Another way to characterise the error is that the Tribunal's failure to identify and address these issues flowed from an error of law in failing to ask itself the right questions: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13(2). 2. The Landlord's claim for rent was based on its contention that the tenancy agreement continued in circumstances where the Tenant had failed to give a proper termination notice by its email of 2 December 2020. It was said that this notice was not proper in two respects. First, because under s 97 notice of 21 days was required and, secondly, because the notice could not be given by email. 3. If the basis for a conclusion that the tenancy agreement terminated in late December 2020 was solely dependent upon a termination by the tenant pursuant to s 97 of the RTA then the Landlord's position about termination was the correct one and, clearly, she was entitled to a substantial amount of additional rent, subject to any order curing the defective notice under s 113 of the RTA. 4. In this connection, the Tribunal needed to determine how and when the tenancy agreement terminated. At the latest, this must have occurred by the time the Landlord entered into a tenancy agreement with a new tenant, said by the Landlord to have occurred in early March 2021. 5. In her email sent on 9 November 2020, the Tenant had contended that she was entitled to terminate by giving 14 days' notice because of the alleged breach by the Landlord of s 26 of the RTA. 6. In these circumstances, on the material before the Tribunal, and having regard to the absence of legal representation for the parties, the Tribunal ought to have considered with the parties a number of issues as to how and when the tenancy agreement terminated, including, but not necessarily limited to, the following: 1. Did the tenancy agreement terminate on 21 December 2020, in accordance with s 81 (2) of the RTA, by reason of the termination notice given by the Tenant on 2 December 2020 and the vacation of the premises by the Tenant on 21 December 2020? With regard to this issue, did the Landlord contravene s 26 (1) of the RTA in connection with the term of the agreement that there would be no sale inspections during the term of the tenancy? Did the 2 December 2020 email from the Tenant meet with the requirements for service of such a notice? 2. Even if the notice of termination given in the email of 2 December 2020 was not valid: 1. did the tenancy agreement terminate on or about 21 December 2020 by reason of the operation of s 81 (d), (e), or (g) of the RTA and, if so, when did that occur? 2. or should the Tribunal cure any defect with such notice pursuant to s 113 of the RTA? 1. Isn't the Landlord entitled to 1 day's outstanding rent even if the answer to any of the above questions is yes? 2. If the answer to these questions is no, when did the tenancy agreement terminate? 1. Furthermore, from what the Tenant said in her statutory declaration presented on appeal, it appears that she wishes to contend that, even if the answer to the above questions is no, then the Landlord failed to mitigate her loss by not re-letting the premises until a date in March 2021. It seems to us that the Tenant should be permitted to pursue this contention upon the redetermination of the proceedings that we have decided must occur. Consideration - errors concerning the Landlord's other claims 1. The fact that the Landlord's Outgoing Condition Report was not signed by both parties did not deprive the report of any weight: Hall v Jenkins [2015] NSWCATAP 197 at [63]. 2. Potentially, depending upon findings concerning the manner of preparation of the report, including about its preparation in the presence of the Tenant's agent, the provision of it to the Tenant, the Tenant's contemporaneous response to it (or lack of such a response), and, potentially, the credit of Mr Wang and Ms Elkordi, the Landlord's Outgoing Condition Report was deserving of significant weight in the determination of all of the Landlord's claims, save for those concerning rent (item 1), the damaged retaining wall (item 17), the damaged side fence gate (item 21) and unpaid water usage (item 22). 3. Hence, the weight to be given to the Landlord's Outgoing Condition Report was an important issue in the proceedings. As we have said, the Tribunal did not address this issue. In our opinion, it erred in law in failing to do so. The error was in failing to ask itself this question. 4. As to the remaining claims that were unaffected by this issue (apart from the claim for rent which we have already dealt with), firstly, we can see no error of law or fact by the Tribunal in respect of its rejection of the claim concerning the retaining wall (item 17). On the contrary, with regard to that claim we consider the Tribunal was correct in concluding that there was no basis for a conclusion that the Tenant was responsible for this damage. 5. We also consider that the Tribunal was correct to reject the claim in respect of unpaid water usage (item 22). Although the Tribunal was incorrect in saying that the Landlord did not rely upon any evidence in support of this claim (she did present one water bill, there was a water reading at the commencement of the tenancy in the ingoing condition report, Mr Wang informed the Tribunal of a water reading on 21 December 2020 and gave his calculation of water usage and cost), the Landlord's contention was unsubstantiated. As to the part of the claim concerning water usage to 3 September 2020, the water bill in support of this claim included usage for a period from 5 to 30 June 2020 (20kl), but nearly all of this period was before the Tenant took possession of the premises. There were no water readings to show that this usage began at the commencement of the tenancy and it seems highly unlikely that such a large amount would have been used by the Tenant from 29 June 2020. As to the claim for water usage from 4 September 2020 to 21 December 2020, there was no water bill presented to substantiate the claim. 6. We do, however, consider that the Tribunal erred in rejecting the claim concerning the side fence gate (item 21). The Tenant's objection to this claim was that no invoice for the claimed cost had been provided (transcript, page 36.6). There was no contention that no damage had occurred or that the Tenant was not responsible for the damage. With reference to photographs, Mr Wang informed the Tribunal that the Tenant had cut parts of the gate to patch gaps in the fence (transcript, page 60.6) - the Landlord had agreed to the patching work at the Tenant's expense before the commencement of the tenancy but not to the gate being cut for this purpose: see email sent on 24June 2020. The claim was stated to be for "cost of replacement" and the quote from Amazing Fencing did appear to be for materials and work to supply a side gate. In these circumstances, in our opinion, leaving aside a question of procedural unfairness to the Tenant in connection with the absence of any witness evidence from her, the totality of the evidentiary material on the subject ought to have led the Tribunal to uphold this claim. 7. Finally, the Tribunal's additional reasons for rejecting the claim the subject of item 16 do not overcome the Tribunal's error concerning the Landlord's Outgoing Condition Report, nor does any contention with respect to any of the items that only quotes, rather than invoices were supplied. The quote relied upon in respect of item 16 also covered the cost of the works described in items 12, 13 and 15, which claims will now be redetermined. The lack of a visual inspection in making this quote did not deprive the quote of any probative force. 8. It was open to the Tribunal to assess quantum on the basis of quotes, rather than invoices, depending upon the circumstances. There is no general rule that quotations cannot be relied upon to establish quantum of loss or damage. It will depend upon, among other things, the nature of the work to be done, the nature and content of the quotation, the circumstances in which it was prepared, the genuineness of the quotation and the expertise or experience of the person who prepared it.: Hall v Jenkins [2015] NSWCATAP 197 at [79]. Outcome of the appeal 1. It follows from the above reasons that the Tribunal's rejection of claims by the Landlord's, except for its rejection of the claims the subject of items 17 (damage to retaining wall) and 22 (unpaid water usage), should be set aside. 2. These rejected claims will need to be redetermined by a differently constituted Tribunal. With respect to the claim for rent, the largest rejected claim, the Tribunal will need to address the issues outlined in paragraphs 88 and 89 above. Furthermore, further directions will need to be made which, at least, make provision for the parties to provide evidence and submissions regarding their competing contentions about termination of the tenancy agreement and for the Tenant to provide her evidence in response to the Landlord's evidence in support of his claims for costs that are to be re-determined. ORDERS 1. Accordingly, we make the following orders: 1. To the extent required, leave to appeal is granted. 2. The appeal is allowed in part. 3. Set aside the order made by the Tribunal on 16 June 2021 but only to the extent that it implicitly dismissed the claims by the appellant the subject of items 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19 and 20 in the Landlord's List of Claims. 4. The appellant's claims the subject of items 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19 and 20 in the Landlord's List of Claims remitted to a differently constituted Tribunal for redetermination. 5. For the purpose of such redetermination, directions should be made by the Tribunal which address the matters referred to in paragraph 99 of these reasons and which make provision for the parties to adduce such further evidence and submissions as the Tribunal may decide to allow. 6. Otherwise, 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: 27 October 2021