Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kork v Merheb [2021] NSWCATAP 349 Hearing dates: 12 October 2021 Date of orders: 16 November 2021 Decision date: 16 November 2021 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member G Curtin SC, Senior Member Decision: (1) The appeal in relation to the award of $280.00 to the respondents by the appellant for urgent repairs is upheld. (2) The balance of the appeal is dismissed. (3) Order 1 made by the Tribunal on 14 July 2021 is set aside. (4) Order 2 made by the Tribunal on 14 July 2021 is varied by substituting the sum of $3,342.86 for the sum of $3,622.86 referred to in that Order. Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – procedural fairness – late served evidence not admitted – refusal of adjournment application so that late served evidence could be admitted - denial of procedural fairness cannot be generated by a deliberate or conscious decision not to comply with the Tribunal's directions of which sufficient notice had been given LEASES AND TENANCIES – difference between rent reduction for reduction or withdrawal of services, goods or facilities under s 44 of the Residential Tenancies Act 2010 (NSW) and damages for breach of the covenant for quiet enjoyment Legislation Cited: Residential Tenancies Act 2010 (NSW), ss 44, 50, 62, 64, 187(1)(d) Cases Cited: Cominos v Di Rico [2016] NSWCATAP 5 EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167 House v The King (1936) 55 CLR 499; [1936] HCA 40 Makowska v St George Community Housing Ltd [2021] NSWSC 287 Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15 Moloney v Taylor [2016] NSWCA 199 Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Texts Cited: Nil Category: Principal judgment Parties: Michael Kork (Appellant) Assya Merheb (First Respondent) Mohamed Elhallak (Second Respondent) Representation: Appellant in person First Respondent in person and on behalf of the Second Respondent File Number(s): 2021/00215190 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 14 July 2021 Before: S De Jersey, General Member File Number(s): RT 21/12935 REASONS FOR DECISION 1. This is an appeal by a landlord from an order of the Tribunal which, in substance, ordered him to pay damages to his former tenants by reason of the landlord's breach of the covenant of quiet enjoyment. 2. With no disrespect to the parties, we shall refer to them in these reasons as the Landlord and the Tenants for ease of understanding. 3. On this appeal the Landlord contended that the Tribunal erred in refusing to admit certain evidence tendered by him, erred in refusing to grant him an adjournment, erred in awarding a sum of $280.00 to the tenant for urgent repairs and made some factual errors in relation to two matters upon which the breach of the covenant for quiet enjoyment was based. 4. For the reasons that follow the appeal is upheld in relation to the $280.00 for urgent repairs, but the balance of the appeal is dismissed. Background 1. The Landlord and Tenants entered into a residential tenancy agreement for premises (a house) at Condell Park, NSW. The lease commenced on 6 March 2015 and was for a period of six months. 2. The Tribunal said that the house was about 60 years old and was run down in parts. 3. At the end of the allotted term the Tenants remained in the premises and continued to pay rent. 4. On 17 November 2020 the Tenants reported a range of issues with the premises to the Landlord's then managing agent. Those issues were described by the Tribunal as: "i. Shower screen door has lost some wheel fittings and is dangerous; ii. Kitchen cupboard doors keep falling off due to age which the tenants repair themselves; iii. Bad sewerage issues for months; iv. High possibility of gas leak and bad gas pipe connection; v. The outdoor laundry is in an advanced state of disrepair and poses a danger to children W using the back garden." 1. Those matters were not attended to by the Landlord. 2. The Tenants engaged Emergency Plumbing Squad ("EPS") to investigate and report on their complaints regarding the gas supply and sewerage system at the premises. EPS attended the premises and undertook that engagement, and issued a report and tax invoice dated 23 November 2020 for $280.00 to the Tenants and which the Tenants paid. 3. The EPS report relevantly said: "Also connection from main gas Branch to gas cook top/oven does not meet Australian standard as there is no proper shut off valve in cases of emergency or service, Found water flexible braided hose connected to appliance, therefore needs to be replaced with (GAS) hose. … High levels of sewer smell entering through kitchen cupboard where gas pipe entering from under house. House sewer system in very poor state found multiple leaks in sewer drainage system under house which Is becoming stagnant and unpleasant. In conclusion the house has been deemed unsafe for occupants to continue to live in these conditions. All plumbing services will need to be replaced or repaired as soon as possible as the occupants are at a higher risk of becoming proposed (sic) to illnesses." 1. The Landlord engaged Everflow Plumbing Services ("Everflow") to investigate the sewer system. 2. In a report dated 1 December 2020 Everflow said: "We attended [address omitted], Condell Park to investigate the sewer system on the premises. We inspected from the gully that the kitchen waste goes to and found large amounts of tree roots entering the 100mm clay pipe. We cleared the tree roots with the hydrojet and reinspected. We then inspected the main sewer line for the house and also found large amounts of tree roots entering the clay pipe as well as cracks within the system. We found that the sewer line goes from pvc plastic pipe to approximately 7 meters of clay pipe and then back to pvc plastic pipe. The tree roots are entering where it joins from pvc to clay. We cleared the tree roots with the hydrojet machine and reinspected. We would recommend to reline the section of clay pipe between the pvc sections to prevent further damaged caused by tree roots and to cover the cracks within the system which could potentially collapse overtime. Please let us know if you require a quote for the above recommended works." 1. On 15 December 2020 the Tenants emailed the managing agent and said: "In regards to the sewerage smell unfortunately its still hanging around here and there …" 1. On 22 March 2021 the Tenants commenced proceedings in the Tribunal against the Landlord seeking an order for compensation of $12,345 pursuant to s 187(1)(d) of the Residential Tenancies Act 2010 (NSW) (the "RTA") and an order pursuant to s 45 of the RTA for a reduction of rent. 2. The proceedings were listed for hearing on two occasions prior to it being heard on 14 July 2021. 3. On 26 April 2021 the Tribunal made a number of directions in preparation for the hearing, including the following: "By Determination of member, on 26 April 2021 the hearing was adjourned to a date to be fixed by the Registrar. 1. … 2. The (Tenants) shall provide to the (Landlord) and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the (Tenants) intends to rely at the hearing by 03-May-2021. 3. The (Landlord) shall provide to the (Tenants) and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the (landlord) intends to rely at the hearing by 10-May-2021. 4. … 5. A failure by a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on the documents at the hearing, unless leave is granted to do so." 1. Both parties lodged and served documents on each other in accordance with those directions. 2. On 13 June 2021 the Tenants vacated the premises. 3. On 11 July 2021 the Landlord served on the Tenants a number of supplementary documents upon which he wished to rely at the hearing three days later. 4. On 14 July 2021 the Tribunal heard the proceedings and delivered written reasons. 5. At the hearing the Tribunal refused to admit into evidence the Landlord's supplementary documents because of their late service and the prejudice which would be occasioned to the Tenants if the documents were admitted. 6. The Landlord then applied for an adjournment. That application was refused by the Tribunal because, the Tribunal said, that occasion (the hearing day) was the third time the matter had been listed for hearing, the Tribunal was required to deal with matters in a way that was just, quick and cheap and because any further delay would be unfair to the Tenants. 7. The Tribunal then heard and admitted the evidence and the parties' submissions. The Tribunal granted leave to the parties to file written submissions after the hearing had concluded. Both parties filed submissions in accordance with that leave and those submissions were considered by the Tribunal. 8. After considering the evidence and submissions the Tribunal decided that the Landlord should pay the Tenants the sum of $280.00 as reimbursement for that amount paid by the Tenants to EPS for their investigation and report. The Tribunal awarded this sum on the basis that the invoice was for "urgent repairs" within the meaning of that term in ss 62 and 64 of the RTA. 9. The Tribunal also awarded the Tenants $3,342.86 (being 30 weeks at $120 per week less $257.14 for arrears of rent owed by the Tenants). The Tribunal's reasons as to the basis for that award are not clear, those reasons at times referring to it as a rent reduction pursuant to s 44 of the RTA and at other times referring to it as relating to an interference with the Tenants' right to quiet enjoyment (provided for in cl 14 of the lease and s 50 of the RTA). 10. This lack of clarity may have given rise to a ground of appeal which we are obliged to consider per Cominos v Di Rico [2016] NSWCATAP 5 even though not raised by the appellant. The lack of clarity in the Tribunal's reasons is of sufficient significance that we should address it, although, as we shall later explain, we are of the view that the lack of clarity did not amount to any error warranting interference by us in the Tribunal's decision. 11. There was no lack of clarity in the Tribunal's reasons as to the factual basis for making that award of $3,342.86. The Tribunal's findings in that regard were: "9. ... I find that all the issues set out in the 17 November 2020 email from the tenants were not rectified by the time the application was filed or by the time the tenants vacated. I find that a number of these issues were important and urgent - particularly the laundry which appears to be quite unsafe and in a poor state of repair; the photos show that it is very run down, and that it is supported by a post that appears to be not properly secured. The landlord has not led any evidence to rebut this proposition. I find that the sewerage issues and gas pipe issues are serious maintenance issues as set out in the plumber's report. Also, I am satisfied that the shower screen door was in an unsatisfactory state of disrepair as the rolling mechanism did not work optimally, which with 3 sliding doors comprising the screen posed a potential safety hazard to the tenants' family if they did not slide the doors properly or push the panels so they sat within the frame properly. The landlord said at the hearing that the panels just had to be pressed back into the frame if they dislodged. I do not consider this to be a satisfactory answer. 10. The landlord submitted that because there were times when the tenants did not pay rent on time and there were substantial arrears, the landlord did not have the financial means to undertake repairs. The landlord's obligation under section 63 is irrespective of whether a tenant pays rent or not; similarly a tenant has an obligation to pay rent on time even if there are repair issues. This defence of the landlord is not accepted as a valid reason for failing to undertake the maintenance and repairs as required by section 63 of the Act. 11. ... 12. Given the extent of issues, the fact that there are safety issues (sewerage, gas and unstable laundry) given that this is meant to be a family home with children living there; given that the tenants repeatedly followed up the issues without success; given that the agent repeatedly asked the landlord to meet his obligations to undertake repairs yet he did not; for all these reasons I find that the tenants' quiet enjoyment of the premises and use of the premises was significantly compromised and a rent reduction is appropriate. I consider 50% to be excessive and allow 25%, which is a reduction from $480 per week to $360 per week (a reduction of $120 per week). I allow it for the period from 17 November 2020 to the end of the tenancy on 14 June 2021." [Emphasis ours] The Appeal 1. As mentioned earlier, the Landlord appealed on the basis that: 1. the Tribunal erred in refusing to admit certain evidence tendered by him; 2. erred in refusing to grant him an adjournment; 3. erred in awarding a sum of $280.00 to the tenant for urgent repairs; and 4. erred in making some factual errors in relation to two matters upon which the breach of the covenant for quiet enjoyment was based. 1. We shall deal with those grounds in that order and then discuss the Tribunal's lack of clarity in relation to the basis of the award of $3,342.86 to the Tenants. Ground 1 – Rejection of Evidence 1. This is a procedural fairness ground and involves a question of law. 2. The evidence which the Landlord says the Tribunal erroneously rejected was a two-page quotation from Oz Wide Trade Services dated 6 July 2021. The document does not identify the author of the quotation nor the author's qualifications to express the opinions contained within the document. 3. The relevant part of the document is a three-line entry which said: "oven and cook top have been inspected and assessed and comply with Australian standards" 1. The Tribunal gave the following reasons for rejecting the document: "The landlord had recently provided documents by email to the Tribunal on 9 July 2021, which were sent by the landlord to the tenants by email on Sunday 11 July 2021. The tenants objected to these new documents being included in the landlord's evidence as they had been filed late, and they said that if they had received them earlier, they would have put into evidence further photos of the condition of the premises. The landlord disputed this and said the photos were in evidence. I upheld the tenants' objection on the basis that the landlord has had a reasonable opportunity to provide his evidence to the Tribunal well before the hearing, that he ought to have applied for an extension prior to the formal hearing date if he was intending to seek leave to rely on documents provided at a very late stage and I accept that the tenants were probably prejudiced by their lateness. Accordingly, I have refused leave to allow the new documents into evidence." 1. The Landlord said the document was served late because it was only obtained after the Tenants had vacated the premises on 13 June 2021. When asked by us why he had not sought such an opinion at an earlier point in time, the Landlord said that he only became aware of the gas pipe issue shortly before the hearing. We do not accept this explanation. The gas pipe issue is referred to in express terms in the Tenant's Application Form (to the Tribunal) dated 22 March 2021 which had been served on the Landlord. 2. We do not accept this ground of appeal for two reasons: first, no error is apparent to us in the Tribunal's reasons, and; second, there is no possibility that had the document been admitted the result of the case would have been any different. 3. As for the first reason, Bell P, with whom Macfarlan and Brereton JJA agreed, said in EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167: "[67] A party which is given ample notice of a hearing cannot complain that there has been a denial of procedural fairness where he or she declines to participate in the hearing and the hearing proceeds in accordance with the adequate notification. Procedural fairness requires an adequate opportunity to participate to have been given, and a denial of procedural fairness cannot be generated by a deliberate or conscious decision not to participate in a hearing of which sufficient notice has been given. [68] … In Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory (2013) 280 FLR 118; [2013] ACTSC 198 at [165], Refshauge ACJ said that "[i]t is clear on the authorities that a party who is given an opportunity to put his or her case but, through their own default, fails to take the opportunity, has no basis for complaint if they are not heard", citing Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [27]." 1. In our view the Landlord had been given adequate notice of the hearing and had declined to seek the Oz Wide report (or similar report from another contractor) at an appropriately early point in time. He was given the opportunity to put (prepare) his case but, through his own default, failed to take that opportunity. In that sense the Landlord declined to participate in the hearing and was not denied procedural fairness. 2. As the decision to refuse to admit the evidence in this case was a discretionary decision relating to practice and procedure, the Landlord was required to demonstrate to us that in making its decision to refuse to admit this document because of its late service the Tribunal did one (or more) of five things (per House v The King (1936) 55 CLR 499; [1936] HCA 40): 1. it made an error of legal principle; 2. it made a material error of fact; 3. it took into account some irrelevant matter; 4. it failed to take into account or gave insufficient weight to, some relevant matter; or 5. it arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. 1. The appellant was not able to and did not submit that any of those five factors existed, and none are apparent to us from the material provided to us. Therefore, the appellant has not persuaded us that the decision was affected by any error. 2. The second reason why we do not accept this ground of appeal is because, had the documents been admitted, the result of the case would not have been any different, and thus there is no point in us ordering a new hearing at which the document would be admitted into evidence. 3. Where there is a denial of procedural fairness a new hearing will not be ordered if there is no possibility of a different result – Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54. 4. In this case there was no possibility of a different result had the Oz Wide quotation been admitted. 5. That is because the quotation spoke of the oven and cook top, whereas the opinion of EPS (in relation to the gas issue), and upon which the Tribunal relied, related to the supply of gas to the house and those appliances (rather than the appliances themselves, which are the things addressed by Oz Wide). EPS said: "All gas pipes found installed in old system (galvanise pipe) which is highly recommended to be upgraded to copper as old line showing significant signs of deterioration (rust), Also connection from main gas Branch to gas cook top/oven does not meet Australian standard as there is no proper shut off valve in cases of emergency or service, Found water flexible braided hose connected to appliance, therefore needs to be replaced with (GAS) hose." 1. Thus, Oz Wide did not address the gas issue the subject of the EPS report and upon which the Tribunal relied to find that the award was justified. Hence, its admission would not have changed the result of the case. Ground 2 - Rejection of Adjournment Application 1. The Tribunal's reasons for refusing the Landlord's adjournment application were: "The landlord sought an adjournment after I refused the new evidence in, on the basis that he wanted to be able to rely on the new evidence at a future hearing. I refused the adjournment request. This hearing is the third listing for this application. The Tribunal is required to deal with matters in a way which is just, quick and cheap. I do not consider it reasonable to adjourn the hearing for a fourth hearing listing, for the reason that the landlord has failed to provide documents in accordance with previous orders, and to further delay it would be unfair to the tenants who filed this application back on 22 March 2021 and are entitled to expect finality." 1. Again, that decision was one to which the principles of House v The King (referred to above) apply on an appeal, and the Landlord has not demonstrated any relevant error in the Tribunal's reasons, nor is any error apparent to us. Therefore this ground must fail. 2. Similarly, had the adjournment been granted and the Oz Wide quotation admitted into evidence, in our view the result of the case would have been the same for the reasons we have given above. Ground 3 – Urgent Repairs 1. In relation to awarding the Tenants $280.00 for the EPS invoice the Tribunal's reasons were as follows: "In relation to the charge of Emergency Plumber Service dated 23 November 2020, I am satisfied that the tenants are entitled to have this amount reimbursed as an urgent repair. I find that the sewerage issue meets the definition of urgent as prescribed in section 62 of the Act, given this was an issue which rendered the premises unsafe in accordance with the report of Emergency Plumbing Squad. I am also satisfied that the tenants had informed the agent of the issue weeks prior to incurring the cost and the landlord had had a reasonable opportunity to repair the issue - these findings satisfy the requirements in section 64. For these reasons, I find that the landlord is liable to pay the tenants $280 for the cost of this invoice." 1. We accept the Landlord's contention that the Tribunal erred in awarding the Tenants the $280.00 as reimbursement for the EPS invoice. That is because ss 62 and 64 of the RTA allow for recovery by Tenants of the cost of urgent repairs (as defined in s 62), but not for the costs of reports or investigations. 2. Section 62 of the RTA defines "urgent repairs" as "any work needed to repair any one or more of the following …" (a list of items then follows). 3. EPS did not undertake any work needed to repair anything, it simply investigated the gas and sewerage issue identified by the Tenants and provided a report containing opinions on those issues. 4. Therefore, in our opinion the Tribunal erred in law in misconstruing or misapplying the statutory provisions and awarding the Tenants a sum for repairs when no repairs were undertaken (by EPS). Ground 4 – Factual Errors 1. Two errors were alleged by the Landlord. 2. First, that the Tribunal had failed to find that the sewerage issue had been fixed by 1 December 2020. Second, that the Landlord had organised a repair of the laundry, but the Tenants had wanted the whole laundry demolished and rebuilt. We understood this second matter to be an assertion that the Landlord could not be liable for not providing a proper laundry when the Tenants had wanted the whole laundry demolished and rebuilt rather than repaired as suggested by the Landlord. 3. No errors of law were identified or are apparent in relation to either of the two matters we have described above, and so the Landlord requires leave to appeal. We would not have granted leave, but it is simpler to briefly state why those contentions were both bound to fail rather than set out all of the reasons why we would have refused leave to appeal. 4. The first contention fails because there was no evidence that the sewerage issue was fixed. Indeed, the evidence is clear that it was not. 5. EPS had reported that: "High levels of sewer smell entering through kitchen cupboard where gas pipe entering from under house. House sewer system in very poor state found multiple leaks in sewer drainage system under house which Is becoming stagnant and unpleasant. In conclusion the house has been deemed unsafe for occupants to continue to live in these conditions. All plumbing services will need to be replaced or repaired as soon as possible as the occupants are at a higher risk of becoming proposed (sic) to illnesses." 1. Everflow said: "We attended [address omitted], Condell Park to investigate the sewer system on the premises. We inspected from the gully that the kitchen waste goes to and found large amounts of tree roots entering the 100mm clay pipe. We cleared the tree roots with the hydrojet and reinspected. We then inspected the main sewer line for the house and also found large amounts of tree roots entering the clay pipe as well as cracks within the system. We found that the sewer line goes from pvc plastic pipe to approximately 7 meters of clay pipe and then back to pvc plastic pipe. The tree roots are entering where it joins from pvc to clay. We cleared the tree roots with the hydrojet machine and reinspected. We would recommend to reline the section of clay pipe between the pvc sections to prevent further damaged caused by tree roots and to cover the cracks within the system which could potentially collapse overtime. Please let us know if you require a quote for the above recommended works. 1. As one can see, Everflow did not repair the faults found by EPS. The only matter Everflow attended to was the removal of the tree roots, Everflow did not repair the "multiple leaks in (the) sewer drainage system" referred to by EPS, nor the cracks in the sewerage pipe system found by Everflow. Clearly the sewerage system had not been repaired by Everflow. 2. This is confirmed by the contemporaneous email sent by the Tenants to the then managing agent on 15 December 2020 (accepted by the Tribunal), some two weeks after Everflow removed the tree roots, which said: "In regards to the sewerage smell unfortunately its still hanging around here and there …" 1. The contention in relation to the laundry must also fail. 2. It is true that the Tenants expressed an opinion that the laundry needed demolishing (because it was in such a poor state in their opinion) but that was simply an opinion expressed by the Tenants, not a demand and not a refusal to allow the Landlord to do the repairs he considered appropriate. Indeed, the Tenants had no legal right to impose their view on the Landlord as to what repairs or work should be done on the laundry. 3. In contradistinction, the Landlord had the right under cl 23.6 of the lease to enter the premises on at least two days' notice to carry out or assess the need for necessary repairs. He could have exercised that right if he had chosen to do so, and could have undertaken the repairs he thought appropriate. But he did not do so, and he was not prevented from doing so by the Tenants. Therefore, his contention in that regard must be dismissed. Rent Reduction or Quiet Enjoyment? 1. We mentioned earlier that a claim for a rent reduction under s 44 of the RTA is different to a claim for damages for breach of the covenant for quiet enjoyment. We have also mentioned the lack of clarity in the Tribunal's reasons as to the basis for the award to the Tenants of $3,342.86, at times referring to it as a rent reduction pursuant to s 44 of the RTA and at other times referring to it as relating to an interference with the Tenants' rights to quiet enjoyment (provided for in cl 14 of the lease and s 50 of the RTA and the remedy for which is damages). 2. A claim for a rent reduction under s 44 of the RTA is different to a claim for damages for breach of the covenant for quiet enjoyment, albeit there may be overlapping considerations. 3. A reduction of rent under s 44 of the RTA is dependent on factual findings that there was a "reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises" (our emphasis). 4. Quiet enjoyment is different, albeit with overlapping considerations. It was described by Yeldham J in Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15 at 23.F as follows: "I take the relevant law in relation to the covenant for quiet enjoyment to be correctly set out in Halsbury's Laws of England, 3rd ed., vol. 23, pp. 605, 606, pars. 1298, 1299 in these terms: "The covenant for quiet enjoyment operates according to its terms to secure the tenant, not merely in the possession, but in the enjoyment of the premises for all usual purposes; and where the ordinary and lawful enjoyment of the demised premises is substantially interfered with by the acts or omissions of the landlord or those lawfully claiming under him, the covenant is broken, although neither the title to, nor the possession of the land may be otherwise affected…" 1. A rent reduction under s 44, and damages for breach of the covenant for quiet enjoyment, are not mutually exclusive remedies, although care must be taken to avoid double compensation. As was said in Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [88], in a passage cited with approval by Basten J in Makowska v St George Community Housing Ltd [2021] NSWSC 287 at [46]: "That is not to suggest that a claim for damages for loss of quiet enjoyment and an order for the reduction of rent are mutually exclusive forms of relief. Depending on the claims made, there may be facts common to both types of claim which would need to be taken into account in order to avoid double compensation. For example if the premises (or part thereof) cannot be used in the manner intended or its use is in some way impaired by reason of a landlord's breach, it may be inappropriate to both reduce the rent and make an award of damages for loss of use." 1. We think the better view of the Tribunal's reasons is that the Tribunal made the award it did on the basis of a breach of the covenant of quiet enjoyment. That is because of the terms of paragraph 12 of the Tribunal's reasons (quoted above) including the express reference to quiet enjoyment and the absence of any express reference or findings in the Tribunal's reasons as to any reduction or withdrawal of any goods, services or facilities. 2. It is true that the Tribunal calculated those damages by way of rent reduction for a period, and it is true that Order 1 made by the Tribunal expressly referred to s 44 of the RTA, but the method of assessing damages for breach of the covenant for quiet enjoyment by way of calculating a reduction in rent for the period during which the breach occurred is not inappropriate. 3. The lack of clarity in the Tribunal's reasons, and what, if anything we do about it on this appeal, is somewhat analogous to the circumstances presented to the Court of Appeal in Moloney v Taylor [2016] NSWCA 199. 4. That case concerned a claim for compensation under the Holiday Parks (Long-term Casual Occupation) Act 2000 (NSW) (the "HPA"). The Tribunal awarded the appellant $19,412.80 under s 34(2)(b) of the HPA. The Tribunal did not refer to s 33 of the HPA. 5. On the appeal to the Tribunal's Appeal Panel, the Appeal Panel concluded (correctly) that the Tribunal did not have jurisdiction under s 34(2)(b) of the HPA to make the award it did. The appellant submitted that the award could be supported by the application of s 33 of the HPA and that the Appeal Panel should so hold. The Appeal Panel accepted that s 33 could have founded the award, however, it refused to remit the appellant's claim for compensation to the Tribunal under that section. The Court of Appeal held that the Appeal Panel was in error in failing to do so. 6. The Court of Appeal said: "[17] It is not entirely clear from the reasons of the Appeal Panel why it refused to remit the question of compensation. One possibility is that it considered that it did not have power to make such an order because the Tribunal did not consider the sections of the Act under which such an order might be made. The other possibility is that the Appeal Panel in the exercise of its discretion did not consider it appropriate to remit the question because the Tribunal had not considered the correct sections of the Act. [18] Either process of reasoning involved an error of law. The Appeal Panel clearly had power pursuant to s 81(1) to make an order requiring the first instance Tribunal to reconsider a matter having regard to the correct provisions of the Act; and the conclusion that it did not was a conclusion of law. Similarly, the fact that the first instance Tribunal made an error of law could not provide a discretionary reason for refusing to remit the compensation claim. On the contrary, the error provided a reason for remitting the matter if the error could not be corrected on appeal. An error concerning what was relevant to the exercise of a discretion was also an error of law. [19] It may be that the Appeal Panel thought that it did not have power, or it was inappropriate, to remit the question of compensation under provisions other than s 34(2)(b) because the right to receive compensation under other provisions of the Act was not before the Tribunal. The question before the Tribunal was whether an order should be made under s 34(2)(b). [20] However, if that is the basis of the Appeal Panel's decision, it was not correct. [21] The appellant had sought an order under s 33 of the Act. It was an error of the Tribunal, and the Appeal Panel, not to deal with that application. [22] But even if the appellant had not specifically raised s 33 of the Act, that would not affect the outcome." … [27] Section 38(4) of the CAT Act provides: "The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." [28] Under s 45 of the CAT Act, a party to proceedings in the Tribunal has the carriage of the party's own case and is not entitled to be represented except in certain limited circumstances or with leave of the Tribunal. [29] A provision such as s 38(4) takes its colour from its statutory context. 5 In circumstances where s 83(1) permits an appeal to this Court with leave on a question of law, it appears that s 38(4) does not release the Tribunal from the obligation to apply rules of law in arriving at its decisions. It is apparent that the Appeal Panel was seized of this proposition. [30] Nevertheless, as is apparent from the provisions of s 36 to which we have referred, a body such as the Tribunal (which expression includes the Appeal Panel) is not expected to conduct its proceedings with the formality of a court of law. Rather, it is required to conduct itself with minimum formality and to reach decisions according to the substantive merits of the case, and not by reference to legal form or technicalities. Further, it is to exercise its powers speedily and economically. [31] On appeal, the question for the Appeal Panel was whether in substance the Tribunal had made an appealable error and, if so, what orders should be made which would best achieve justice between the parties having regard to that error and the provisions of the Act. That question was not addressed, or not properly addressed, simply by asking the question whether the Tribunal had power to make the orders sought under the provision relied on by the Tribunal. [32] Whether the appellant had identified the correct section or not, it was plain that he sought to recover from the respondent compensation for the costs of removing the structure left behind by the respondent on site 63 in the caravan park. The CAT Act required both the Tribunal at first instance and the Appeal Panel to address the question whether the appellant was entitled to recover the amount claimed as a matter of substance, not in terms of legal form and technicalities, redolent of pre-Judicature Act formalism. [33] On appeal, the first question for the Appeal Panel was whether the Tribunal had power to make the order sought by the appellant and, if so, in what circumstances. 9 That question was not to be answered simply by asking whether the Tribunal at first instance had identified the correct basis for such a power. By concluding that the Tribunal had relied on the wrong section and giving that as a reason for why the order could not be made and the decision not be reconsidered, the Appeal Panel put legal form and technicalities ahead of the substantive issue with which it was concerned. It also involved the Appeal Panel relying on the error of the Tribunal as a ground for refusing relief in respect of that error." 1. In our view, consistently with that reasoning, and reaching our decision according to the substantive merits of the case and not by reference to legal form or technicalities, it is appropriate to approach the lack of clarity in the Tribunal's reasons by stating that if we are wrong about the proper interpretation of the Tribunal's reasons, then we would not otherwise interfere with the Tribunal's orders as the award made by the Tribunal was justified as damages for the breach of the covenant for quiet enjoyment. This is because of the factual findings made by the Tribunal, and the Tribunal's power to grant that compensation under s 187 of the RTA. 2. We conclude by noting that a claim for compensation under s 187(1)(d) of the RTA was expressly made in the Tenants' Application Form which commenced proceedings in the Tribunal. Orders 1. We make the following orders: 1. the appeal in relation to the award of $280.00 to the respondents by the appellant for urgent repairs is upheld; 2. the balance of the appeal is dismissed; 3. Order 1 made by the Tribunal on 14 July 2021 is set aside; 4. Order 2 made by the Tribunal on 14 July 2021 is varied by substituting the sum of $3,342.86 for the sum of $3,622.86 referred to in that Order. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2021