Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rose v Jaensch [2022] NSWCATAP 51 Hearing dates: 21 January 2022 Date of orders: 23 February 2022 Decision date: 23 February 2022 Jurisdiction: Appeal Panel Before: Cole DCJ, Deputy President J Lucy, Senior Member Decision: (1) The application for an extension of time within which to appeal is refused. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Gallo v Dawson [1990] HCA 30, 93 ALR 479 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: Zoshia Rose (Appellant) Stephen Jaensch (Respondent) Representation: Appellant (self-represented) Elders Brunswick Valley (Respondent) File Number(s): 2021/00310665 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: 13 October 2021 Before: W Priestley, Tribunal Member File Number(s): RT 21/28768 REASONS FOR DECISION 1. Ms Rose seeks an internal appeal against the decision of a Member sitting in the Consumer and Commercial Division of the Tribunal. 2. The decision appealed from concerns Ms Rose's application for orders against her former landlord under a residential tenancy agreement. Factual background 1. Ms Rose, the tenant, entered into a residential tenancy agreement under the Residential Tenancies Act 2010 (NSW) with Mr Jaensch, the landlord ('the agreement') on 26 April 2021, and moved in to the premises shortly thereafter. 2. The term of the agreement was 6 months, from 26 April 2021 to 25 October 2021. 3. Before and during Ms Rose's tenancy, Mr Jaensch was at all relevant times represented by an agent. 4. The premises consist of a three bedroom house which was partially furnished. 5. After moving in to the premises, Ms Rose became concerned that the premises had not been cleaned to a standard that she considered to be appropriate prior to her moving in. She also discovered that parts of the premises and some items of furniture were affected by mould. 6. There was a series of interactions between Ms Rose and the agent concerning the condition of the premises and its contents, the detail of which need not be set out here. 7. Ms Rose paid rent until 23 August 2021. 8. Several attempts were made to clean the premises. Each party obtained a report in relation to the mould. 9. Ms Rose stopped living in the premises on 10 October 2021. 10. Ms Rose made two applications to the Consumer and Commercial Division of the Tribunal seeking numerous orders in relation to the tenancy and its termination. 11. Ms Rose's applications were heard and determined on 13 October 2021. Time within which to appeal 1. These proceedings arise under the Residential Tenancies Act 2010. They come within the definition of 'residential proceedings' under the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules). 2. The Rules provide, in rule 25(4)(b): (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged— (a) … (b) in the case of an internal appeal against a decision made in residential proceedings—within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or (c) … 1. The decision at first instance was delivered on 13 October 2021. The Notice of Appeal was lodged in the Tribunal on 2 November 2021. The last day for the lodgement of an internal appeal was therefore 28 October 2021. The appeal is six days out of time. 2. Ms Rose argued that she ought to be given an extension of time within which to file a Notice of Appeal. 3. Ms Rose said that she had understood that the deadline related to the day upon which she was to put the Notice of Appeal in the post. She did not say why she had that understanding. 4. Ms Rose said that she had sought advice from Lismore Legal Aid, and that Lismore Legal Aid took 10 days to respond, ultimately saying that they could not help her. She said that left her with only 3 days. Her appeal, however, is six days out of time, and was lodged on day 20 after the delivery of the decision at first instance. 5. Ms Rose said that she was experiencing shock and confusion following the decision at first instance and that she did everything she did to get the appeal in on time. She emphasised the difficulty she experienced in preparing the Notice of Appeal. 6. Ms Rose argued that the respondent would not be prejudiced by the granting of an extension of time. 7. Ms Creighton represented the respondent. The respondent opposed the extension of time, pointing to the 'seven or eight' hearings at first instance prior to the decision being made. Ms Creighton said that payment of the amount ordered to be paid at first instance had been made to Ms Rose, and accepted, and that the bond had also been refunded to her. 8. The fourteen day time period within which to appeal reflects the importance of finality in residential proceedings. 9. We do not consider that the reasons given by Ms Rose for not lodging her Notice of Appeal within the time allowed are adequate to justify the granting of an extension of time. Ms Rose chose not to take any steps whilst she was waiting for a response from Lismore Legal Aid. The issues she seeks to raise on appeal are not complex, and the preparation of the Notice of Appeal need not have taken more than a few hours, at the very most, even for a person who is not a qualified lawyer. 10. The discretion to extend time may only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant (Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [19], citing Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]). As McHugh J said in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], "[i]n order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time." We are not satisfied, having regard to all of those factors, that the rules would work an injustice in this case. 11. Another relevant factor when considering an application for an extension of time is whether the appellant has a fairly arguable case (Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]). For the reasons set out below, we are not satisfied that Ms Rose does have a fairly arguable case. 12. Ms Rose's application for an extension of time is refused. 13. We will, however, proceed to deal with the issue of leave to appeal in case we are wrong about the extension of time issue. The Appeal 1. The orders made at first instance on 13 October 2021 are as follows: 1. The Residential Tenancy Agreement is terminated in accordance with s 103 of the Residential Tenancies Act 2010 as the landlord has breached the agreement and the breach is, in the circumstances of the case, sufficient to justify termination. 2. The Residential Tenancy Agreement is terminated on 18 October 2021 and possession is to be given to the landlord on the date of termination. 3. The tenant shall pay the landlord a daily occupation fee at the rate of $126.00 per day from the day after the date of termination, namely 19 October 2021 until the date vacant possession is given to the landlord. 4. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 5. The landlord…is to pay the tenant…the sum of $7,366.50 immediately. Failure to pay any instalment in this order by the due date will result in the whole of the balance being payable immediately. Reasons: • Compensation for failure to provide premises clean and without mould and to eradicate mould during the tenancy $5,000. • Cost of remediating clothing $1,140.50. • Cleaning costs $638. • Cost of two reports and attendance of expert at hearing $2,856. • Less $2,268 owed in rent from 23.8.21 to 10.9.21. 6. The rent is reduced to nil ($0) from 10 September 2021 to 18 October 2021. … Oral reasons were given at the hearing. 1. By the day of the hearing before us, the respondent had paid to Ms Rose, through his agent, the compensation ordered, and the bond had been returned to Ms Rose. 2. By the time of the hearing before us, the scope of the Notice of Appeal had narrowed. Ms Rose sought the following: 1. A reduction in the rent of $885 per week paid by her from 26 April 2021 to 10 September 2021. 2. Compensation for 11 bed slats which Ms Rose chose to leave in the house because, she said, they were damaged by mould. 1. Ms Rose also sought the cost of the preparation of the transcript of the first instance hearing. This is, of course, a disbursement, rather than a cost which can be claimed by way of damages. Leave to Appeal 1. The Civil and Administrative Tribunal Act 2013 (NSW) provides, in s 80(2): 80 Making of internal appeals … (2) Any internal appeal may be made— … (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. 1. The Civil and Administrative Tribunal Act 2013 provides, in Schedule 4, clause 12(1): 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). 1. Ms Rose argued in her grounds of appeal that her appeal raised the following questions of law: 1. "There was an error in law, when much of the second part of my original application was not addressed, it was ignored when the Member stated that the main issue was the mould. It was, but not the only important one. My original application asked to address the deliberate negligence of the agents and landlord throughout the situation, also the lack of cleaning to the home or to the soft furnishings, and to provide a rent reduction given the state of the home- failing to meet the minimum standards of hygiene required by law." 1. "There was an error in law when I was not given time to ask counter-question, challenge the statements made against me which were believed on no evidence, despite my providing concrete, contradictory documentary evidence. The real evidence was not given sufficient weight in the decision. The Member only indicated his intention not to order the cleaning after both experts had hung up, so I did not have an opportunity to question the experts fully." 2. "There was an error in law when I was not given an opportunity to speak to how my evidence proved they did not ever intend to dispose of the mattresses or any furniture despite being contaminated, but their oral assertion was accepted without any evidence provided, as a mediating factor as to the relatively small level of compensation awarded." 3. There was a failure to take into account in the award of compensation that she did not have the use of two full bedrooms of furniture. 1. Asserted error of law (1) is misconceived. The Member at first instance was dealing with Ms Rose's claim under the Residential Tenancies Act 2010, not a claim in tort. The inadequacy of cleaning and the mould on the soft furnishings were clearly referenced in the Member's reasons in this context. The issue of rent reduction was considered, and a rent reduction was awarded for the period after which Ms Rose vacated the premises. No question of law arises. 2. Asserted error of law (2) is also misconceived. The rules of procedural fairness do not require a Member to indicate his or her decision in the presence of expert witnesses and give a party the opportunity to comment on that decision. A complaint about the weight given to evidence does not amount to a question of law. 3. Asserted error of law (3) asserts, in effect, that the Member took a view about the intention of the landlord concerning disposing of the mattresses and furniture, and that the view taken was a 'mediating factor as to the relatively small level of compensation awarded'. There is no basis for this assertion in the oral reasons given by the Member. No question of law arises. 4. Asserted error of law (4) also does not give rise to a question of law. The Member had extensive evidence as to the state of the house throughout the tenancy and there is no reason to suppose that he ignored any of it. 5. As the appeal raises no question of law, leave is required under s 80(2)(b) and clause 12, Schedule 4 of the Civil and Administrative Tribunal Act 2013. Was the decision at first instance not fair and equitable (clause 12(1)(a), Schedule 4) 1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel said, at [77(1)]: If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 1. The transcript of the hearing, including the oral reasons, does not disclose anything procedurally unfair or inequitable about the hearing or the decision. No denial of procedural fairness has been demonstrated. 2. Ms Rose has characterised the compensation the subject of the orders at first instance as being at 'a relatively small level', but the Member characterised the $5000 component of the award as being 'at the larger end of the scale', after a brief review of some of the authorities. It is clear that the $5000 was intended to compensate Ms Rose for the presence of mould in the house for the period during which she was living there. To award, in addition, a rent reduction for that period would constitute double dipping. Was the decision at first instance against the weight of the evidence (clause 12(1)(b) Schedule 4) 1. In Collins v Urban, the Appeal Panel said that the authorities establish the following (see [77](2)]: The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 1. It has not been demonstrated that the decision at first instance was against the weight of the evidence. Has significant new evidence arisen (clause 12(1)(c), Schedule 4). 1. There is no suggestion that any new evidence has arisen. Evidence concerning the bed slats left in the premises by Ms Rose was available at the time of the first hearing. 2. In Collins v Urban, the meaning of 'substantial miscarriage of justice' was explained as follows (at [68]-[71]: 68 Clause 12 does not require that the Appeal Panel must be satisfied that the appellant has actually suffered a substantial miscarriage of justice. All that is required is that the appellant "may" have suffered such a miscarriage. 69 The use of the expression "substantial miscarriage of justice" recalls the wording of the proviso to s (6)(1) of the Criminal Appeal Act 1912 (NSW) which is in the following terms: provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. 70 What constitutes a "substantial miscarriage of justice" in the context of s 6(1) was explained by the High Court in Mraz v The Queen (1955) 93 CLR 493 at 514: It [the proviso] ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried. (underlining added) 71 From this passage, it can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. 1. It has not been established that the appellant may have suffered a substantial miscarriage of justice, or any miscarriage of justice at all. There was no failure in the way the matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. 2. No basis for a grant of leave to appeal has been made out. 3. As the appellant has not succeeded, we will not make an order in relation to the cost of her obtaining the transcript of the hearing at first instance. Order 1. We make the following order: 1. The application for an extension of time within which to appeal is refused. ********** 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: 23 February 2022