Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Petrovic v Bluelone Pty Ltd atf Mark Hoffman Family Trust [2021] NSWCATAP 364 Hearing dates: 3 November 2021 Date of orders: 17 November 2021 Decision date: 17 November 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks, Principal Member L Wilson, Senior Member Decision: 1. The name of the respondent is varied to Bluelone Pty Ltd atf Mark Hoffman Family Trust. 2. The appeal is dismissed. 3. The decision of the Member is affirmed Catchwords: APPEALS – residential tenancy agreement – damage to property – whether tenant caused damage or damage caused by former husband of tenant during the commission of a domestic violence offence – held tenant did not discharge burden of proof that damage caused by former husband. Legislation Cited: Civil and Administrative Tribunal Act s 81 Crimes (Domestic and Personal Violence) Act 2007 s11 Residential Tenancies Act s 54 Category: Principal judgment Parties: Irena Petrovic (appellant) Bluelone Pty Ltd atf Mark Hoffman Family Trust (respondent) Representation: Women's Legal Service NSW (appellant) M Hoffman (respondent) File Number(s): 2021/00234854 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 02 August 2021 Before: S De Jersey, General Member File Number(s): RT 21/15024. Reasons for decision Background 1. The appellant in these proceedings, Irena Petrovic, filed an application in this Tribunal on 6 April 2021 in which she claimed as tenant the repayment of a rental bond paid under a residential tenancy of an apartment. The respondent landlord was incorrectly named in that application and came to be known in the proceedings as Bluestone Pty Ltd ATF Mark Hoffman Family Trust. However, we have been informed by the respondent that its correct name is Bluelone Pty Ltd ATF Mark Hoffman Family Trust. We made an order during the hearing of these appeal proceedings correcting the name of the respondent. 2. The application was heard by a Member of this Tribunal on 2 August 2021 who ordered on that day that the appellant pay the respondent $1540 to be deducted from the rental bond by way of compensation for damage which had occurred during the tenancy to the front door of the apartment, which was a fire door, and any balance of the bond be paid to the appellant. 3. The appellant seeks leave to appeal and to appeal from that decision. The appellant asserts that the door was damaged by her former husband and that she is not vicariously liable to the respondent to pay for the cost of a replacement door. She relies on the provisions of section 54(1A) of the Residential Tenancies Act, the effect of which is to relieve her from responsibility to pay for the cost of the replacement door because she said it was damaged by her former husband during the commission of a domestic violence offence. We shall return to a consideration of this matter later in these reasons for decision. 4. The appellant sought leave to refer to new evidence which was not originally put before the Tribunal consisting substantially of police records arising out of the circumstances in which the fire door was damaged, which were annexed to an affidavit affirmed by her on 27 September 2021. We granted leave to the appellant to adduce this evidence over the objection of the respondent so that all of the relevant evidence would be before us when considering the appeal. The decision under appeal 1. In her reasons for decision the Member noted that the door which had been damaged was the front door to the apartment which was being rented by the appellant and which was also a fire safety door. The explanation as to what occurred as given by the appellant to the Member and set out in her reasons for decision is that the door "was damaged in the course of a domestic argument with her ex-husband. The tenant's evidence was that in the course of the argument she slammed the door, but her ex-husband was on the other side and pushed it and it was that action of her ex-husband that caused the door, handle and closer to be damaged." 2. In her reasons the Member also referred to a witness statement which had been given by the appellant to NSW Police which had been tendered by the respondent. That statement says "we started arguing and things got out of hand and I was scared so I slammed the fire exit door shut and I heard a loud bang on the outside when I opened this door I saw it was damaged just above the handle." 3. In rejecting the appellant's claim that she was entitled to the benefit of the provisions of section 54(1A) the Member noted that the appellant had said in a statement to Police that she was not scared or fearful of her ex-husband in regard to her own safety and that he was not violent. In these circumstances the Member said that there was insufficient evidence to establish that the argument which caused the respondent to have slammed the door and which presumably caused the ex-husband to push against it did not constitute a domestic violence offence within the Crimes (Domestic and Personal Violence) Act 2007. The grounds of appeal 1. The grounds of appeal may be stated shortly. The appellant asserted that the Member was in error in determining that the damage to the door did not occur during the commission of a domestic violence offence. The factual background 1. The narration which follows is based upon the evidentiary material available to us by way of documents filed in the proceedings below, documents filed by the appellant by leave in these appeal proceedings and the reasons for decision of the Member which refer to what was told to her by the appellant during the course of the hearing. 2. In this latter regard we note that despite directions having been made that the appellant must provide for the appeal a recording of the proceedings below and a transcript of those proceedings, both parties have failed to comply with these directions. We proceed on the basis that we are entitled to have regard to what the Member set out in her reasons for decision as representing the evidence of the appellant, unless there is some compelling reason why we should not do so. 3. We refer also to the factual material recited by the Member which is set out in [5] and [6] above. 4. The new evidence which the appellant has introduced for the purpose of these appeal proceedings is the fact that NSW Police have charged the former husband of the appellant with a charge of "destroy or damage property" to be heard at Waverley Local Court on 16 December 2021. 5. In her affidavit sworn by on 27 September 2021 the appellant said, inter alia 1. She asked her ex-husband Sasha to live with her in the rented premises because she was afraid to live on her own having been seriously assaulted by a previous male partner and also on the basis that he would assist in paying rent. 2. She had been arguing with Sasha because he had not been paying rent. "On the morning of 2 February 2021, I told Sasha to get out. Sasha started collecting his belongings and taking them downstairs to the front of the property. I followed Sasha downstairs and argued with him about the whereabouts of one of my sex toys. Then I took his XBox, believing that I should have this in lieu of him paying me rent." 3. "I took Sasha's XBox inside the building and went upstairs to my apartment. Sasha followed me upstairs. When I entered apartment, I closed my door (which is also fire exit door) to stop Sasha from coming in. I felt Sasha push back on the door, trying to open it and enter my apartment. When I opened the door, I noticed that it was damaged." 4. After receiving an invoice from the real estate agent for the cost of repairing the fire door on 14 March 2021, the appellant forwarded it to a police officer informing him that she intended to lodge an application with this Tribunal asking that her ex-husband pay for the damage that he caused to the door. 5. "On 2 April 2021, the police officer responded to my email advising me that the Lease could have Sasha pay for the damage if I made a formal statement about Sasha damaging the door." 6. On 2 April 2021 the police officer forwarded an email to the appellant in which he said "We can have Sasha pay for the damages, however for me to do that, I will need meet with you and get a statement saying he damaged the door and you want compensation." 7. On 14 April, 2021 the appellant made a statement to NSW Police which she annexed to her affidavit in which she referred to having told her ex-husband to leave the premises and said in part "we started arguing and things got out of hand and I was scared so I slammed the fire exit door shut and I heard a loud bang on the outside when I opened this door I saw it was damaged just above the handle." 1. There is also annexed to this affidavit a report of a statement given to NSW Police by the appellant on 2 February 2021. In that statement the appellant is reported as having said that after the argument she followed her ex-husband outside the front entry of the apartment block and located his belongings in a box. She went through the box to see if her Doxy sex toy was amongst the property. She then took the box upstairs to her unit and locked herself inside. Her ex-husband started banging on the door "it is alleged that the Accused has used physical force to hit the door possibly with his foot. This act has caused the door to crack and dent around the door handle." 2. There is reference in information given by the appellant to NSW Police in her statement of 14 April 2021 concerning the terms of an Apprehended Violence Order which had been taken out by NSW Police and whether the appellant's ex-husband should be permitted to approach her. In summary, Condition 1 precluded the ex-husband from assaulting or threatening the appellant, stalking harassing or intimidating her and intentionally or recklessly destroying or damaging any property that belonged to her or was in her possession. 3. Condition 2 stated "you must not approach[the appellant] or contact her in any way, unless the contact is through a lawyer". In her police statement the appellant said "I do not want condition two of the AVO as I'm not scared or fearful of Sasha for my safety. He is not a violent man and I would like to have contact with him and his family. I understand the condition one may continue and I'm okay with that". Does section 54 of the Residential Tenancies Act apply? 1. Section 54 of that Act is in the following terms 54 Liability of tenant for actions of others (1) A tenant is vicariously responsible to the landlord for any act or omission by any other person who is lawfully on the residential premises (other than a person who has a right of entry without the tenant's consent) that would have been a breach of the residential tenancy agreement if it had been an act or omission by the tenant. (1A) Subsection (1) does not apply to a tenant who is the victim of a domestic violence offence, or an exempted co-tenant, if the relevant act or omission constitutes or resulted in damage to the residential premises and occurred during the commission of the domestic violence offence. (1B) In this section, an exempted co-tenant means a tenant under the same residential tenancy agreement as the tenant referred to subsection (1A) who is not a relevant domestic violence offender (within the meaning of Division 3A of Part 5) nominated in a document referred to in section 105C(2) and annexed to a domestic violence termination notice (within the meaning of section 105A) for the residential tenancy agreement. (2) This section is a term of every residential tenancy agreement. 1. The definition of a domestic violence offence in that Act refers in turn to the definition contained in section 11 of the Crimes (Domestic and Personal Violence) Act 2007 11 Meaning of "domestic violence offence" (1) In this Act, domestic violence offence means an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship, being— (a) a personal violence offence, or (b) an offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or (c) an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both). (2) In this section, offence includes an offence under the Criminal Code Act 1995 of the Commonwealth. 1. This definition in turn requires reference to the definition of personal violence offences in the Crimes (Domestic and Personal Violence) Act. It is not necessary for reasons which we shall shortly develop that we further consider this aspect. 2. We now come to consider the circumstances in which a tenant may be relieved of liability to pay compensation to a landlord resulting from damage to the rented premises. Prima facie the tenant will be so liable if the damage was caused by a person other than the tenant who was lawfully on the residential premises, and the liability to pay compensation would have arisen if the damage had been caused by the tenant. 3. There is no suggestion that the appellant's former husband was a tenant of the premises. There is also no suggestion that he was not lawfully on the premises at the time that the damage was sustained to the door. The only basis upon which the appellant can avoid liability to compensate the respondent is if subsection (1A) applies. This subsection will only apply firstly if the damage to the door was caused by the ex-husband, and secondly it occurred during the commission of a domestic violence offence. 4. It is convenient to deal firstly with this second aspect. The Member found that no domestic violence offence had been committed on the basis of the assertion by the appellant in her police statement of 14 April 2021 which we have set out in [17] above. That statement clearly relates to a consideration by the appellant of the provisions of the provisional AVO and cannot, without more, be said to be relevant to the circumstances which prevailed at the time that the door was damaged. Indeed, on two occasions the appellant stated to police that she was concerned for her safety at the time that she slammed the door shut. We have no doubt that the damage to the door was sustained during the commission of a domestic violence offence. 5. We now come to consider whether, on the evidence, the person who caused the actual damage to the door is capable of being identified. As is obvious the two alternatives are that the damage to the door was inflicted by the appellant or by her ex-husband. The differing narrations of what occurred given by the appellant must be treated with some caution, particularly as she seems to have been concerned to demonstrate to the police that responsibility for the damage to the door was to be ascribed to her ex-husband. One version of the appellant's story is that she slammed the door. It is not clear whether she slammed it against her ex-husband or whether it was slammed fully shut and he then struck it. We have no evidence as to the construction of the door, and no evidence as to the precise damage sustained to the door. Another version is that she had closed the door and locked herself inside. After this occurred, her ex-husband may have started banging on the door and used physical force, possibly with his foot, which caused the door to crack and dent around the handle. 6. The appellant has clearly given conflicting versions of what occurred. In these circumstances it is difficult to conclude with any degree of comfort what happened. This has been compounded by the lack of evidence as to the construction of the door and the precise damage sustained to it. 7. The burden of establishing that section 54(1A) applies lies on the appellant. In order for her to escape vicarious liability for the damage sustained to the door the Tribunal needs to be satisfied to the civil standard of proof that the door was damaged by the ex-husband in the course of him committing a domestic violence offence. This requires us to determine what was the real and effective cause of the damage sustained to the door. 8. We are comfortably satisfied on the balance of probabilities that the appellant slammed the door shut after she went into the apartment while seeking to avoid her ex-husband. Because of the competing versions of what occurred given by the appellant, we find it equally plausible that the door was damaged when the appellant slammed it shut, whether or not it was slammed shut against some part of the body of her ex-husband. We are not persuaded that in all the circumstances it is more likely than not that her ex-husband damaged the door by initiating some physical action on his part rather than merely resisting the door being closed upon him. Our inability to come to any positive conclusion is compounded by our complete lack of knowledge as to the materials with which the door was constructed, the nature and extent of the damage sustained to it, and any assistance whether of an expert nature or otherwise about what might have caused the particular damage. 9. In all of these circumstances we conclude that the appellant has not discharged the burden of demonstrating that the real and effective cause of the damage to the door was created by a person other than the appellant. 10. In these circumstances, section 54 does not apply, and to the extent that she found to the contrary, the Member was in error. 11. However, although we have concluded that the Member was in error in applying the provisions of subsection (1A) of section 54, we have concluded that section 54 does not operate to relieve the appellant from liability to compensate the respondent for the cost of replacement of the fire door because, as we have said the appellant has not discharged the burden of demonstrating that the real and effective cause of the damage to the door was created by a person other than the appellant. Accordingly, the appellant is directly responsible to compensate the respondent for the damage to the door. 12. On this basis, the order made by the Member below must be upheld, albeit for different reasons. 13. The orders that are available to us in disposing of these appeal proceedings are set out in section 81 of the Civil and Administrative Tribunal Act: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following— (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance. 1. In all the circumstances, it is appropriate that the decision of the Member under appeal be affirmed. Orders 1. Having regard to the conclusions which we have reached as to disposal of these proceedings we make the following orders 1. The name of the respondent is varied to Bluelone Pty Ltd atf Mark Hoffman Family Trust 2. The appeal is dismissed. 3. The decision of the member is affirmed. ********** 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. 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