Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Moslemi v Pearce [2022] NSWCATAP 183 Hearing dates: 1 June 2022 Date of orders: 06 June 2022 Decision date: 06 June 2022 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member D Ziegler, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. (3) The respondents' application for costs is dismissed. Catchwords: APPEALS – allegation of denial of procedural fairness – leave to appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Atcheson v Knight [2018] NSWCATAP 117 Collins v Urban [2014] NSWCATAP 17 Hall v Hawkins [2015] NSWCATAP 197 Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Italiano v Carbone & Ors [2005] NSWCA 177 Panico v Crompton & Jennings [2015] NSWCATAP 110 Prendergast v Western Murray Irrigation Ltd [2004] NSWCATAP 69 Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 ZNX v ZNY [2020] NSWCATAP 41 Texts Cited: None cited Category: Principal judgment Parties: Mina Moslemi (Appellant) Stephen Pearce (First Respondent) Rikilee Pearce (Second Respondent) Representation: F Abedi (Appellant) R Pearce (Respondent) File Number(s): 2022/00085961 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 17 March 2022 Before: D Charles, Senior Member File Number(s): RT22/00351 REASONS FOR DECISION 1. This is an appeal from a decision of the Tribunal dated 17 March 2022 involving a dispute under the Residential Tenancies Act 2010 (NSW) (the RT Act). In the Tribunal proceedings the applicant tenants sought orders for: 1. overpaid rent ($1300), 2. compensation for damage to a television set ($800), 3. compensation for loss of quiet enjoyment, repairs done by the tenants, and repairs not carried out by the landlord ($5500), and 4. a full refund of the bond ($1800). 1. The landlord denied the tenants' claims for overpaid rent and compensation, and claimed against the bond for end of tenancy cleaning costs ($450), damages ($1206) and outstanding rent ($350). 2. The Tribunal: 1. found that the landlord had established an entitlement to $824 only from the bond, comprising cleaning costs, plumbing work and the cost of replacement of blinds and curtains; 2. found that the tenants were entitled to recover overpaid rent of $1,235; and 3. dismissed the balance of the tenants' claims. 1. The landlord was ordered to pay the tenants $2211 in total. 2. The appellant in the appeal is the landlord and the respondents are the tenants. 3. The landlord appeals against the money order made by the Tribunal. 4. In their reply to appeal the tenants state that they now wish to claim an additional $15525 from the landlords. However, no cross-appeal has been filed by the tenants in relation to the Tribunal's first instance decision and appeals do not serve the purpose of settling disputes related to matters unconnected with the initial Tribunal proceedings. The Appeal Panel has no jurisdiction in respect of anything other than the Tribunal's decision of 17 March 2022. Any further complaints about the landlord being in breach of the residential tenancy agreement or the RT Act are not matters that affect these appeal proceedings. Timing 1. The landlord filed the appeal on 24 March 2022 which is seven days after the decision was published. Under r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW), the time to appeal a residential tenancy decision is 14 days from the date on which the appealing party was given or notified of the decision. The appeal was lodged in time. Sound recording 1. The matter was listed for directions before the Appeal Panel on 14 April 2022. One of the directions was that the landlord was to file and serve a copy of the sound recording of the hearing if she relied upon what occurred, and at least a partial transcript of the relevant parts of the hearing. The reason for such a direction is so the Appeal Panel can identify exactly what evidence and submissions were given at the Tribunal hearing, and what the Tribunal member said at the hearing. The landlord failed to comply with this direction. Background 1. The tenant entered into a residential tenancy agreement with the landlord on 16 May 2020 for residential premises at Castle Hill NSW ('premises'). 2. It was a periodic tenancy. There was no fixed term. 3. The tenanted premises comprised two rooms or open plan units (with en-suite bathrooms for each room) forming part of a house occupied by the landlord and her family. 4. Rent was $600 per week to be paid in cash two weeks in advance from 16 May 2021. The agreement stated that the term of the agreement started on 21 May 2021. The agreement also stated: "The tenant is happy to pay one week extra and enters the address on 28 May 2021". 5. The tenants vacated one of the rooms on or about 10 December 2021 and the other room on or about 17 December 2021. 6. The tenants lodged their claim in the Tribunal on 5 January 2021. Tribunal proceedings 1. The hearing in the Tribunal occurred on 17 March 2022. The Tribunal issued its Notice of Order and written reasons on the day of the hearing. 2. The Tribunal made findings, and reached conclusions as follows: 1. The evidence established that from 21 June 2021 until 10 December 2021 (24 weeks and 5 days) the tenant paid an additional $50 per week in rent (an amount of $1,235). The Tribunal accepted that the tenant paid this amount "under pressure" from the landlord who said it was to reimburse the landlord for the extra electricity that the tenant was said to have been using. The Tribunal found that no rent increase notice had been served by the landlord and the premises were not separately metered for electricity. In the circumstances, the landlord had no legal basis to require payment of the extra $50 per week during that period and was therefore required to refund the amount of $1,235 which was paid by the tenant over and above the agreed rent of $600 per week. 2. The tenants' claims for compensation for repairs, and for damage to the television set were dismissed. 3. As regards the landlord's claims on the bond amount, the landlord did not have an ingoing condition report and the ingoing photographs relied upon by the landlord were inconclusive as to the condition of the premises at the commencement of the tenancy. However, based on the ingoing and outgoing photographs and the landlord's affirmed evidence, the Tribunal allowed the landlord's claim for plumbing works ($300) and the claims in respect of replacement of blinds ($59) and bathroom curtains ($15). It also allowed the claims for cleaning ($300) together with a further amount for cleaning due to the tenants' pets ($150), based on the outgoing photographs and the express provisions in the agreement. 4. The Tribunal did not allow the landlord's other damages claims. It was not satisfied that the tenant was responsible for such damage. Further, there was no evidence as to the age and prior condition of the claimed items and it was not clear whether any of the amounts sought (which appeared to be replacement costs) had taken account of depreciation or fair wear and tear. The Tribunal concluded that the landlord, who bears the onus of proof on the balance of probabilities, had not proved a legal basis to hold the tenant responsible for payment of the additional amounts claimed. 5. The Tribunal also did not allow the landlord's claim for unpaid rent. The Tribunal said that the landlord did not provide a rent ledger to support the claim and also accepted the tenants' position that they were entitled to a credit of one week's rent in advance. The Tribunal found that on a proper interpretation of the agreement one week's rent had been paid in advance by reason of the words: "The tenant is happy to pay one week extra and enters the address on 28 May 2021". Legal framework 1. The bond is the property of the tenant held by the landlord, and the legal onus is upon the landlord to prove a legal entitlement to the bond or any part of it. 2. Under s 51(3) of the RT Act, the tenant has obligations at the end of the tenancy. These include leaving the premises as nearly as possible in the same condition they were in at the commencement of the tenancy (fair wear and tear excepted) and as set out in any applicable ingoing condition report, and returning the property in a reasonably clean condition. "Fair wear and tear" means damage or deterioration that arises from the reasonable use of the house for its intended purpose and the ordinary operation of natural forces. The test is objective and should not be approached from the perspective of a "fastidious and obsessive landlord": Panico v Crompton & Jennings [2015] NSWCATAP 110 at [24]. 3. The lack of an ingoing condition report does not prevent the landlord from raising a claim based on the condition of the property at the end of the tenancy, but the absence of such a report goes to the weight of the evidence (Hall v Hawkins [2015] NSWCATAP 197). 4. If there is a dispute about the value of an item damaged by the tenant it may be necessary to consider whether the value of the item is affected by depreciation. There may be situations where it is appropriate to consider the Australian Taxation Office depreciation schedule to consider what is the value of the damaged item in the process of determining what is the appropriate amount of damages to put the party in the position it would have been had the breach not occurred. In such circumstances, it may not be appropriate to award the full cost claimed by a landlord for a more valuable asset than that which had to be replaced, where for less expenditure the landlord could have acquired an asset in similar condition to that replaced: Atcheson v Knight [2018] NSWCATAP 117 at [42]: 5. Rent payable under a residential tenancy agreement may only be increased in accordance with the procedure in s 41 of the RT Act. This requires the landlord to give the tenant at least 60 days' written notice of the rent increase. A rent increase is not payable by a tenant unless the rent is increased in accordance with s 41 or the rent is increased by the Tribunal: s 41(3) RT Act. 6. A tenant is only required to pay electricity usage charges if the premises are separately metered for electricity: ss 38 and 40 of the RT Act. Scope and nature of internal appeals 1. An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. 2. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2). 3. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong. 1. Where the appeal is from a decision made in the Consumer and Commercial Division (other than in respect of interlocutory decisions), there is a further qualification to the possible grant of leave in that we may only go on to consider a grant of leave in the broader sense if we are first satisfied that the elements of cl 12(1) of Sch 4 of the NCAT Act are made out, in that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Grounds of appeal 1. The notice of appeal and submissions of the landlord do not clearly identify the grounds of appeal. The landlord's materials take the form of an extensive commentary which in large part appear to invite the Appeal Panel to simply substitute the decision preferred by the landlord for the one made below, without identifying clearly any grounds of appeal. 2. Nonetheless, as the appellant is unrepresented, a broad interpretation of the grounds of appeal should be allowed unless it unreasonably prejudices the respondents: Prendergast v Western Murray Irrigation Ltd [2004] NSWCATAP 69. 3. However, there is a proper limit to this process, in that it is not the role of the Appeal Panel to draft grounds of appeal for the appellant not raised, and then resolve them (ZNX v ZNY [2020] NSWCATAP 41, citing SZTOG v Minister for Immigration and Border Protection [2018] FCA 112), unless the issues go to the jurisdiction of the Tribunal or are otherwise necessarily considered to resolve the appeal. 4. Having considered the landlord's written and oral submissions we understand the grounds of appeal to be as follows: 1. The landlord was denied procedural fairness because she did not receive the tenants' physical documents and "due to email issues did not have a chance to review the [tenants'] documents in advance of the hearing day." 2. There was no evidence to support the finding that the tenants paid the extra $50 per week due to "pressure". 1. We also understand that the landlord seeks leave to appeal on the ground that the landlord has suffered a substantial miscarriage of justice because the decision to reject the landlords' claim for damages and rent arrears was against the weight of evidence. 2. The other issues raised by the landlord in the appeal are, in substance, the landlord seeking to re-argue her case at first instance and do not establish an error of law or an error of a type that leave to appeal should be granted. Consideration Procedural fairness ground 1. The mere fact that documents were received late does not cause procedural unfairness. The appropriate enquiry is whether the late receipt of documents caused any practical injustice to the landlord. 2. The landlord has not demonstrated how the late receipt of the tenants' documents caused any practical injustice. She had the opportunity to raise objections in relation to any perceived unfairness at the start of or during the hearing and the tenants submit that this opportunity was specifically addressed by the Tribunal at the start of the hearing. The landlord has not submitted that she made any such objections to the Tribunal and in any event, in the absence of any sound recording or transcript of the hearing, we cannot know what, if anything, was said about the issue at the hearing. 3. An opportunity forgone, but reasonably available, does not demonstrate breach of procedural fairness; and it must be shown that the party lost an opportunity to put any information or argument before the decision maker, or otherwise suffered detriment: Italiano v Carbone & Ors [2005] NSWCA 177 at [88]. 4. The landlord has failed to show how she suffered detriment as a result of the late receipt of documents and therefore this ground of appeal fails. No evidence to support finding that tenants paid the additional $50 per week "under pressure" from the landlord 1. As we do not have a sound recording or transcript of the hearing we do not know what evidence was given at the hearing in relation to this issue. Accordingly, we cannot be satisfied that there was no evidence to support this finding. 2. In any case, whether or not the tenants paid the additional $50 per week "under pressure" is irrelevant as a matter of law. The Tribunal correctly held that the landlord had no legal basis to require payment of an extra $50 per week during the relevant period as rent payable under a residential tenancy agreement cannot be increased without following the procedure in s 41 of the RT Act (and this was not followed), and a landlord is not entitled to charge a tenant for electricity charges if the premises are not separately metered. The emotional state of the tenants when they paid the additional $50 per week is not relevant to determining whether or not the landlord was entitled to charge this additional amount. 3. No error has been established and therefore this ground of appeal also fails. Whether findings regarding end of tenancy losses and rent arrears were against the weight of evidence 1. A decision under appeal can be said to be against the weight of evidence 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: Collins v Urban at [77]. 2. At [30] of the Tribunal's decision, the Tribunal explains in some detail why it was not satisfied that the landlord's evidence substantiated her claim for damages and rental arrears. It is apparent from the reasons for decision that the Tribunal considered the evidence in some detail and concluded that it was not sufficient to establish all of the matters alleged by the landlord, for the reasons explained in the decision. These included: 1. There was no evidence as to the age or condition of the items; 2. It was not clear whether the amounts sought had taken account of depreciation or fair wear and tear; 3. The absence of a rental ledger; 4. The lack of an ingoing condition report; 5. The ingoing photographs were inconclusive as to the condition of the premises at the start of the tenancy; 6. The tenants' oral evidence regarding the credit of one week's rent; and 7. The terms of the written residential tenancy agreement. 1. We would add that some time was spent by the parties during the hearing of the appeal discussing the landlord's claim for rental arrears of $350. The submissions of the parties, and evidence they attempted to adduce whilst making such submissions, were confusing and contradictory. The landlord did not provide a rental ledger to the Tribunal (or to the Appeal Panel) and the terms of the written tenancy agreement are ambiguous. The agreement states that the term of the agreement starts on 21 May 2021 but that rent is payable in advance starting on 16 May 2021. When questioned about this anomaly the landlord's representative was unable to explain it in any helpful manner. 2. Having reviewed the evidence which was before the Tribunal (and which has been made available to the Appeal Panel), in our view the Tribunal's findings in relation to end of tenancy losses and rental arrears were open on the evidence before it. The fact that the landlord says certain evidence should have been given more weight is not, without more, sufficient to establish that the conclusion reached in relation to the landlord's bond claim was not one that a reasonable Tribunal member could not reach on the basis of the available evidence. 3. For these reasons we are not satisfied that the decision was against the weight of evidence and it is not necessary to consider the other elements relevant to determining whether to grant leave to appeal. Costs 1. The tenants have indicated that they wish to claim against the landlord for their wages lost due to time spent attending the hearings of the appeal and the first instance proceedings. This is in effect a claim for the costs of the proceedings. 2. Section 60 the NCAT Act provides that each party to proceedings in the Tribunal is to pay their own costs. The Tribunal has a discretion to award costs but only if it is satisfied that there are "special circumstances warranting an award of costs": s 60(2) of the NCAT Act. 3. The exception in Rule 38A of the Civil and Administrative Tribunal Rules 2014 does not have any application in this matter. 4. There is nothing before us to establish that there are special circumstances, that is circumstances that are "out of the ordinary", in this case. 5. In any event, costs recoverable under s 60 by self-represented litigants do not include compensation for time spent by the litigant in preparing and conducting his or her case: Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41; Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65. 6. The costs claimed by the tenants are therefore not costs to which they would be entitled under s 60 of the NCAT Act, even if special circumstances existed. 7. Accordingly, the claim for costs is dismissed. ORDERS 1. For these reasons we make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The respondents' application for costs 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: 06 June 2022