Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cousins v Rennie [2021] NSWCATAP 414 Hearing dates: 14 December 2021 Date of orders: 21 December 2021 Decision date: 21 December 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks, Principal Member R C Titterton OAM, Senior Member Decision: 1. Leave granted to the appellant to appeal out of time. 2. Leave to appeal is refused. 3. The appeal is dismissed Catchwords: APPEAL – failure to provide transcript of proceedings with reference to evidence in the proceedings under appeal and the reasons of the Member – difficulty in considering the appeal – new evidence allowed – held appellant landlord did not discharge onus of proof that respondent tenants had caused damage – leave to appeal refused – appeal dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) - s 80, Sch 4 Public Health Act 2010 (NSW) Cases Cited: None Category: Principal judgment Parties: Paul Cousins (Appellant) Jacqueline Rennie and Sonia Battistel (Respondents) Representation: V Ibrahim (agent for Appellant) J Rennie (Respondent) File Number(s): 2021/00282612 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: 17 September 2021 Before: G Kinsey File Number(s): RT 21/32028 Reasons for decision Background 1. The appellant, Paul Cousins was one of the landlords, the other being Carrie Cousins, of residential premises leased to the respondents Jacqueline Rennie and Sonia Battistel. The residential tenancy agreement was dated 11 December 2020 expiring on 10 December 2021. 2. The respondents filed an application in the Consumer and Commercial Division of this Tribunal on 26 July 2021 seeking an order for the payment of compensation in the sum of $15,000, an order for the payment out to them of the rental bond and a termination order based on an alleged breach by the appellant of the residential tenancy agreement. 3. The respondents' application contained a number of allegations concerning the tenancy including that repairs to the property were being undertaken after they had moved in, delay in setting up provision for an Internet connection, a number of anomalies in the inspection report, and a failure to repair a number of items. The respondents gave notice to the appellant's agent on 24 June 2021 that they wished to vacate the property on 16 July 2021 on the basis of a number of asserted breaches of the tenancy agreement, including safety concerns. 4. The respondents alleged in the application that the appellant's agent had completed an outgoing condition report on 16 July, 2021, and forwarded an email to them that day stating that a final inspection had been completed and "the property has been well looked after, thank you for that." There was attached to that email a "formal report" which referred to a number of concerns that the flooring of the premises had not been fully cleaned and also, relevantly, that there were "two large stains on the living room floor" with a notation that the respondents believed that this was caused by rising damp. The agent said that she would pursue the cause of the stains. 5. In their application, the respondents denied that they had spilled any substance of any kind so as to have caused what they described as "black" stains on the floor, especially as they were in two different areas, both of which had been covered by a coffee table. They also asserted that they had photographs to demonstrate at the hearing the general dampness of the premises, "including moisture on the walls." 6. The application came on for hearing before a Member of the Tribunal on 17 September 2021 when an order was made that the rental bond be paid out to the respondents. The order stated that oral reasons were given at the hearing. 7. The appellant filed a Notice of Appeal from that order which is marked as having been received by the Tribunal on 5 October 2021. The appellant sought an order that the respondents pay to him the sum of $1,389.09 to compensate him for repair work carried out to remove the stains in the living room. 8. Accordingly, the only substantive issue for determination is whether an appeal lies from the decision of the Member to decline to have made an order compensating the appellant for the cost of these repairs in that amount. The application for leave to extend time to initiate the appeal 1. The Notice of Appeal is dated 24 September 2021, signed by the appellant's agent, and was stated in that notice to have been posted by express mail that day with the qualification that "the postage may delay the arrival of this." It is stamped as having been received by the Registry on 5 October 2021. 2. As we read the Notice of Appeal, the appellant has sought an extension of time in which to appeal on the basis that the postal delivery might be delayed, presumably as a result of problems encountered during the Covid-19 pandemic. There is filed within the appellant's documents a statutory declaration sworn by his agent stating that she posted the Notice of Appeal by express post on 29 September 2021. We note that the 14 days period for the filing of the Notice of Appeal expired on 1 October 2021. 3. We note that a period of four days delay in the filing of the Notice of Appeal is, on the one hand a small period, but on the other hand when compared with the permitted period of 14 days, a substantial period. In circumstances where it is common knowledge that the services of Australia Post were delayed due to the diverse effects of the Covid-19 pandemic, we are prepared to grant leave to the appellant to extend the time for filing the appeal. The evidence in the first instance proceedings 1. The Notice of Appeal lists the following evidence as having been provided to the Tribunal at the hearing 1. an ingoing inspection report, said to show no damage to the living room floor; 2. an outgoing inspection report said to show damage to the living room floor; 3. three professional opinions from licensed tradespersons advising the damage was "not due to wear and tear, landlord maintenance or damp issues"; 4. two professional quotes to have the floors "rectified", the appellant relying on the cheaper quote only; 5. a routine inspection report displaying a coffee table over the effected (sic) areas which displays the cup of coffee could have falled (sic) off the table, sunk into the rug and stained the floor; 6. disclosure in the residential tenancy agreement that the respondents had two dogs, "whom could have also been laying in the living room, urinated and dampness soaked into the floor and carpet"; and 7. "Additional photographs of damage." 1. The Notice of Appeal, in referring to the evidence of the respondents stated that they had advised the Tribunal that the property had "mould issues" for the first time that day, that no complaints had ever been made by them to the agent prior to that date, nor had any photographs of mould been provided. Leave to the appellant to adduce new evidence 1. The appellant sought to rely on "new evidence", being a report from a licensed builder who inspected the property on 24 September 2021 and stated that the damage was not due to dampness or mould. It was said that this information could not have previously been provided because of Covid 19 restrictions. 2. During the course of the appeal hearing, we asked the appellant's agent why this building inspection report could not have been made available on or prior to the date of the hearing, namely 17 September, 2021. We were informed that a Public Health Order had precluded trades persons from visiting the site prior to that date. We are sceptical about this submission. A Public Health (Covid – 19 Additional restrictions or Delta Outbreak) Order (No 2) made under the Public Health Act 2010 (NSW) which is dated 20 August 2021 and amended on several dates up to 5 September 2021 authorises workers to visit a place of residence in a "stay-at-home area" to carry out work which is not "prescribed work." The only exception to carrying out prescribed work is if it is necessary for certain purposes. 3. There must be considerable doubt whether attending to inspect a place of residence for the purpose of giving an opinion about the cause of staining on a floor falls within the exclusion created by the Public Health Order. In any event, we apprehend that if it was not permissible to obtain such an opinion on or prior to 17 September 2021, being the date of the hearing it would not be so permissible on 24 September 2021 when the inspection was carried out. 4. We have determined to allow the appellant to rely on this additional new evidence, on the basis that his agent may have been under a genuine misapprehension about whether she was entitled to have someone physically attend the premises. What is known of the reasons for decision of the Member 1. At the conclusion of the orders under appeal the Member said "Oral reasons given at the hearing." 2. Directions for the preparation of these appeal proceedings have been issued by the Tribunal. On 29 October 2021, the appellant was directed to lodge with the Tribunal and give to the Respondent by 19 November 2021 the sound recording or transcript of the hearing at first instance and a typed copy of the relevant parts. 3. The only information made available to us on the appeal is a one-page typed document said to be extracts from relevant parts of the sound recording, including dialogue between the appellant's agent and the Member. In that dialogue the agent states that the respondents had never previously mentioned any mould issues in connection with the property. She informed the Member that she had obtained the opinions of three builders based on photographs which she had taken and that they advised her that "if it were damp rising floorboards would be lifting up and the floorboards wouldn't be stained that colour". 4. The Member informed the agent that what she was putting was "speculation", based on the agent's belief, and on the other hand the respondents were informing the Member about their assessment of the cause of the staining, which was also a matter of speculation, based on their belief. The Member pointed out he did not have any independent evidence as to what was the more likely cause of the staining, namely the fact that something had been spilled on the floor by the respondents or rising damp. Furthermore, he pointed out that the appellant bore the onus of proof that the respondents had caused the damage. He was not prepared to accept the evidence of a builder who had examined photographs, was unable to give a firm opinion as to the cause of the damage but speculated that "it could be spillage". He said that on the evidence which had been provided by the agent, he could not be satisfied that the damage was in fact caused by the respondents. It was on this basis that the Member declined to make any order for compensation in favour of the appellant. The failure to provide the transcript and the reasons for decision of the Member 1. We have earlier set out the documentary material which the appellant stated in the Notice of Appeal had been provided to the Member. During the course of the appeal hearing, the respondent Ms Rennie informed us that she and Ms Battistel had engaged with the Member during the first instance hearing before him and provided oral evidence including evidence which described the stains on the floor. She said that she had also provided photographs and submissions to the Tribunal. 2. An appeal from the decision of the Member cannot be brought as of right. Except in a case where a Member of this Tribunal has committed an error of law, all other appeals from decisions of the Consumer and Commercial Division require the leave of the Appeal Panel, which can only be granted in certain circumstances. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note— Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made— (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may— (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. Schedule 4 to the CAT Act provides further restrictions on the granting of leave to appeal from decisions of the Consumer and Commercial Division: Schedule 4 Consumer and Commercial Division 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied 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). Note— Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. 1. It follows that in order to succeed on this appeal the appellant has to fulfil the requirements which we have set out above. There has to be something more than the fact that the appellant did not like the decision at first instance. Furthermore, an appeal does not constitute a rehearing of the matter but is generally confined to the evidence given in the proceedings at first instance, and the reasons for decision given by the Member. Where an appellant fails to inform the Appeal Panel of all of the evidence given in the proceedings below which is relevant to the appeal and the reasons for decision of the Member relevant to the appeal it is virtually impossible for an Appeal Panel to properly consider an appeal. This is what has occurred in these proceedings. 2. Nevertheless, so that the appellant may understand why his appeal must fail we shall consider the evidence which is available to us in the context of such reasoning of the Member which has been disclosed in the short extract from the transcript which we have earlier described. Assessment of the evidence before the Tribunal 1. A comparison of the ingoing condition photographs and the outgoing condition photographs of the living room area demonstrates in the latter the appearance of dark staining in two areas. They are apart, but it is difficult to assess how far apart. Furthermore, it is difficult to compare the location of those stains on the floor with the photographs of the living room floor shown in the ingoing condition report. 2. The three reports from the builders were all based on photographs provided by the appellant's agent, and none of them attended at the premises to physically inspect them. They were all inconclusive as to the actual damage sustained and the cause of that damage. The preponderance of opinion was that the damage was more likely to be caused by a stain of some sort. One builder thought that it might be rising damp, but the other two thought this was unlikely. 3. The new evidence upon which the appellant sought to rely is a letter from Pavett Carpentry and Constructions Pty Ltd reporting on an inspection carried out on 24 September 2021. That letter states that the subfloor void was found to be damp "but it also does have more than enough airflow and ventilation," and that there was a distance of over 1 metre between the floor joists and the natural ground level. The letter noted that "liquid from the top of the floorboards has penetrated through the floorboards and has clearly stained the timber floor joists structure below". There was no sign of movement in the stained area and surrounding flooring which indicated that there was no moisture within the flooring caused by rising damp. It said that "rising damp does not fall into one specific circle and it is very clear that there was liquid spilt from above that wasn't efficiently cleaned causing the flooring soak it up and cause a stain." Attached to the letter were photographs showing the staining having protruded through the floorboards and onto the joists structure. The liquid was not identified. 4. We note that on the evidence the respondents had vacated the premises on 16 July 2021 and that new tenants had occupied the premises on 24 July 2021. There is no clear indication that the staining observed during the inspection on 24 September 2021 was the same staining as was observed when the respondents vacated the premises on 16 July 2021. 5. Before us on the appeal Ms Rennie conceded that she saw the staining for the first time when the respondents moved out of the premises, because it had been covered by a rug. 6. We emphasise that there is no positive evidence that the staining shown in the outgoing inspection photographs and the photographs supplied by Pavett Carpentry and Constructions Pty Ltd are the same stains by reference to their position in the living room of the premises. It is difficult to line them up with the perimeters of that room and the distance of the stains either from each other or from the perimeters. 7. We emphasise that we cannot be sure that this summary of the evidence other than new evidence which we have admitted is the same evidence as was before the Member. Conclusion 1. In essence, the reasoning of the Member was that he was not satisfied on the evidence that the appellant had discharged his onus of proof that the staining was caused by the conduct of the respondents. He characterised the competing assertions as to the cause of the staining as "speculation" in the absence of any definitive evidence to identify what the staining consisted of, and whether and to what extent it was caused by the respondents. 2. We conclude from our review of what we know of the evidence before the Member, and the new evidence, that the conclusion of the Member was one which was reasonably open to him on the basis of the evidence before him, and we are of the same conclusion even allowing for the new evidence. The appellant has failed to discharge the onus of proof as to the cause of the staining to the floor in the living room. 3. It follows that leave to appeal should be refused and the appeal dismissed. Orders 1. We make the following orders: 1. leave granted to the appellant to appeal out of time. 2. leave to appeal is refused. 3. 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: 21 December 2021