Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nguyen v Tisher [2022] NSWCATAP 214 Hearing dates: 23 June 2022 Date of orders: 30 June 2022 Decision date: 30 June 2022 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member A Boxall, Senior Member Decision: 1. The application for an extension of time is refused. 2. Leave to appeal is refused. 3. The appeal is dismissed. 4. Each party is to bear their own costs of the appeal. Catchwords: APPEAL – Whether decision just and equitable – Whether decision against the weight of the evidence – Whether new evidence not reasonably available COSTS – Whether special circumstances warranting an order for costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Cripps v G & M Mawson [2006] NSWCA 84 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Suong Thao Ly Ho Nguyen (Appellant) Bryan Tisher (First Respondent) Charmain Tisher (Second Respondent) Representation: Appellant (self-represented) B Tisher (Agent) (Respondents) File Number(s): 2022/00115330 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2022] NSWCATCD Date of Decision: 1 April 2022 Before: F Holles, General Member reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW)(the NCAT Act) against a decision made on 1 April 2022 in the Tribunal's Consumer and Commercial Division in relation to three applications: 1. an application by the tenants for damage to personal effects caused by mould that was lodged on 8 June 2021 (RT 21/24957), 2. an application by the landlord, challenging the tenants' notice of termination that was lodged on 9 June 2021 (RT21/25074), and 3. an application by the landlord which made claims against the rental bond that was lodged on 1 November 2021(RT 21/44832). 1. Prior to those three applications, an application involving the same parties (RT 21/03075) resulted in orders being made, on 21 May 2021, for the landlord to repair a broken gutter and for an abatement of the rent payable by the tenants. 2. The issue(s) in the appeal are: (1) whether to extend time for the lodgement of the notice to appeal, (2) whether to grant leave to appeal, (3) whether to allow or dismiss the appeal, and (4) costs of the appeal. 3. For the reasons set out below, we have decided to: (1) refuse an extension of time for the lodgement of the Notice of Appeal, (2) refuse leave to appeal, (3) dismiss the appeal, and (4) order each party to bear their own costs of the appeal. Tribunal proceedings and decision 1. Following hearings on 30 June, 5 October and 29 November in 2021, the Tribunal's reasons for decision were published on 1 April 2022. The Tribunal relevantly found that: 1. the landlord should pay the tenants damages of $12,708.12 in the application with the reference RT 21/24957, 2. the application with the reference RT 21/25074 should be dismissed, and 3. the whole of the rental bond should be refunded to the tenants in the application with the reference RT 21/44832. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) NCAT Act. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (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. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel stated at [13]: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 1. Section 41 of the NCAT Act, which deals with extensions of time, provides: (1) The Tribunal may, of its own motion or on the application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. Considerations relevant to the exercise of the discretion to grant an extension of time were set out Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22]: 1. Is there proof that strict compliance with the rules will work an injustice on the applicant? 2. In the context of a pending appeal, the expiration of the period for appeal gives a vested right to retain the decision in question with the consequences that the time for appealing should not be extended unless the proposed appeal has prospects of success. 3. It will usually be necessary to consider: 1. the length of the delay, 2. the reason(s) for the delay, 3. the applicant's prospects of success, ie whether there is a fairly arguable case, 4. the extent of any prejudice suffered by the opponent(s). 1. If the explanation for the delay is less than satisfactory and/or if the opponent as a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable. Submissions and evidence provided 1. In deciding the appeal, we have had regard to the following: 1. the Notice of Appeal, received on 22 April 2022, plus the submissions and documents received from the landlord on 3 May 2022 and 28 May 2022, and 23 June 2022. 2. the Reply to Appeal, received on 4 May 2022, plus submissions and documents received from the tenants on 4 May 2022 and 8 June 2022. Notice of Appeal 1. The Notice of Appeal was received on 22 April 2022, which was outside of the 14-day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules). Grounds of Appeal 1. The grounds of appeal specified in the Notice of Appeal are: (1) that the decision was not fair and equitable, (2) that the decision was against the weight of the evidence, and (3) that there was significant new evidence that is now available that was not reasonably available at the time of the hearing. No error of law was alleged and no error of law is evident from the documents provided in relation to this appeal. Landlord's documents 1. Dealing first with the documents received on 3 May 2022, after indicating the orders challenged, the landlord's written submissions set out five points under the heading "Grounds of Appeal". 2. The first was that the property is not uninhabitable. A copy of an email from an engineer and a report dated 16 October 2021 were provided. It was said that a sound recording of the 5 October 2021 hearing would be submitted later. However, the only sound recording available at the hearing of the appeal was that of the call-over hearing on 6 May 2022 when the application for a stay was dismissed. 3. Secondly, in relation to the broken gutter, it was submitted that the landlord was not aware of the broken gutter prior to receiving a copy of the application in the earlier proceedings (RT 21/03075) and three documents were provided in support of that contention. 4. Thirdly, as to the mould issue, it was claimed that the tenants used 30,000 litres more water than the previous quarter or the same quarter in the previous year and a copy of a water invoice was provided. 5. The fourth matter raised was headed "Bond-related issues". It was asserted that (1) there were arrears of rent, (2) no notice to vacate was provided, (3) shelves were installed without permission, and (4) newly painted walls were damaged when the tenants vacated the premises. A total of twelve documents were annexed. 6. Finally, under the heading "Damaged items". It was suggested (1) the landlord should not be responsible for the tenants' artworks, (2) there was evidence that the artworks were not looked after well, and (3) the extra cost of electricity was not caused by the mould. 7. The documents received from the landlord on 28 May 2022 repeated what was said in relation to the first ground, namely the submission that the property was not uninhabitable. Additional matters were raised in relation to alleged arrears of rent and three claims based on the outgoing condition report, namely for a curtain, cleaning and painting cost. The eight annexures provided with these documents included a table headed "Rent Payment Ledger" with monthly entries from 12 January to 12 October in 2021. 8. The documents submitted to the Tribunal by email at 9.34am on morning of the hearing were (1) a bank receipt to show that the amount of $12,708.12 on 10 May 2022, and (2) a receipt which provided support for the claim that the Notice of Appeal was sent by post on 14 April 2022. Tenants' documents 1. In the tenants' written submissions, received on 4 May 2022, it was said that "On 1 April 2022, [the Tribunal] awarded damages of $12,708.12 for rectification costs to artwork, cleaning costs and replacement of damaged clothing (at depreciated value)" and that "economic loss was substantiated by bills paid by the tenants". 2. As to the rental bond, it was noted there was a finding that the landlord has excluded the tenants from the preparation of an exit report (sometimes called an outgoing condition report). 3. It is sufficient to record that the tenants submitted that the landlord had failed to establish (1) that the decision challenged was not fair and equitable, (2) that the decision was against the weight of the evidence, and (3) that there was significant new evidence now available that was not available at the time of the hearing. The claim that the tenants lied on a rental application in October 2021 was also disputed. 4. A total of 164 pages of documents were received from the tenants on 8 June 2022 behind five tabs. Behind the first of those tabs was a nine-page submission in response to the appeal. Those submissions noted that the landlord's rental bond claims, which were said to have been $5,964.95 at the time of the 1 November 2021 hearing, were now $7,184.95. They also included an application for costs, based on claims as to (1) the relative strength of the appellant's case, (2) the appeal being frivolous, vexatious or misconceived, and (3) a failure to comply with directions. An itemised claim for $1,345.34 was made, comprising $557.89 for printing and photocopying plus $787.45 for solicitor's costs (8 hours at $90 plus disbursements). 5. The second, third and fourth tabs respectively contained a copy of the tenants' submissions to the Tribunal dated 28 July 2021, 14 November 2021 and 23 November 2021. 6. The fifth tab contained a copy of pages 81 and 82 of the landlord's submission to the Tribunal dated 1 November 2021. Landlord's submissions 1. As the landlord referred to a number of matters already covered in her written submissions, it is not necessary to repeat them. She also raised a number of matters in relation to her claims in the two applications under consideration. However, many of the matters raised in the landlord's oral submissions only involved restating the landlord's case and not indicating an error that would provide the basis for an appeal. 2. What remained was reference to the landlord's claims against the rental bond which suffered from the deficiency that the landlord did not put before the Tribunal the material that was before the Tribunal at first instance. For example, the landlord claimed that arrears of rent were not dealt with in the reasons delivered on 1 April 2022, after the hearing at first instance. However, the Tribunal was not provided by the landlord with copies of the documents that formed part of the landlord's evidence at first instance on that issue nor was either a copy of the sound recording or a transcript of the hearing provided. 3. Further, the fact that the landlord referred to a claim for $7,184.95, which appears to differ from the amount claimed at first instance, provides support for the view that the landlord was seeking to re-run the case she presented at first instance. 4. Following the submissions made for the tenants, no additional matters were raised in the landlord's submissions in reply. Tenants' submissions 1. Mr Tisher submitted that the landlord had not established any grounds for an appeal and that leave should be refused. Repeating what was said in the written submissions, it was said that the claim against the rental bond for $7,184.95 was new, i.e. a revised amount. 2. It was suggested the landlord had a history of failing to repair and maintain and reference was made to circumstances attending the tenants' vacating the property and its subsequent sale but those are not matters relevant to this appeal. The claim for costs was confirmed and it was noted that the landlord had provided the Tribunal with a copy of a recording of the 6 May 2022 call-over of the appeal, during which they stay application was considered and dismissed, and not a recording the hearing at first instance. Consideration 1. It is convenient to first indicate that the application which had the reference RT 21/25074, which was dismissed because it challenged the tenants' termination notice before the time provided in that notice had expired, was not the subject of any challenge in this appeal. As a result, the applications under consideration are RT 21/24957, which awarded the tenants damages for mould, and RT 21/44832, which ordered that the entire rental bond be refunded to the tenants. 2. Courts and Tribunals take the view that the same issue cannot be raised more than once otherwise litigation would never be finalised. In everyday language, that principle could be summarised by saying "you cannot have two bites of a cherry". There are four ways in which this principle can be said to operate. 3. First, The Latin phrase res judicata is a term used to indicate that a claim has already been decided by another court (or Tribunal) and between the same parties. It arises from a prior decision made by a court or Tribunal. Secondly, estoppel is a rule which prohibits a person from contradicting what was determined in earlier proceedings. It arises from the conduct of the parties. 4. Thirdly, the term issue estoppel goes beyond the outcome as it is used to indicate that a party is prevented from revisiting an issue that has been decided in earlier proceedings. 5. The fourth concept is usually referred to as Anshun estoppel, because the authoritative decision on that point is that of the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, which provides a barrier to raising in subsequent proceedings a matter that could and should have been raised in earlier proceedings. 6. Thus, by way of summary, a decision in prior proceedings in a court or tribunal not only operates to finalise the issues between the parties raised in those prior proceedings but also acts as a barrier to revisiting those issues in subsequent proceedings, other than by way of an appeal. 7. That is why the Tribunal member who decided the applications at first instance did not revisit the finding in the previous application (RT 21/03075) in relation to mould and there was no appeal from that decision. A topic such as mould raises two issues: first, who should be considered responsible for the mould (the liability issue); secondly, what amount is recoverable as damages caused by that mould (the quantum issue). Simply stated, as the liability issue in relation to the mould was determined in the previous application, it was only the quantum issue in relation to mould that was under consideration in the application with the reference RT 21/24957. 8. Next, it is necessary to place on record what appears on the Tribunal's website, namely that an appeal does not provide an opportunity to re-hear the application but only enables a party to establish either an error of law or a matter that is considered sufficient to warrant both leave to appeal being granted and the appeal being allowed. 9. It is necessary to deal with each of the five matters raised in the submissions of the landlord. 10. First, the word "uninhabitable" only appears in the catchwords in the decision the subject of this appeal and there is no finding on that aspect which can be challenged. Accordingly, the landlord's reference to the email and report of an engineer, Mr Farrah, copies of which were annexures 1 and 2 to the landlord's documents received on 3 May 2022, are not relevant to this appeal. 11. Secondly, as to the broken gutter, this matter goes to the issue of liability which was determined in the previous application and the Tribunal at first instance correctly refused to revisit that matter. 12. Thirdly, as to the mould issue, a claim that the tenants used 30,000 litres more water than the previous quarter or the same quarter in the previous year goes to liability, not quantum. Likewise, that aspect could not be raised again at first instance by reason of the finding in the previous application. 13. The fourth matter raised was the "Bond-related issues". There is nothing to indicate whether the four claims mentioned were made at first instance. If they were not raised at the hearing the subject of this appeal then they cannot be raised for the first time now. If they were raised at that hearing then, as indicated above, an appeal does not provide an opportunity to re-argue the subject matter of the first instance proceedings: only an opportunity to establish an error in respect of the first instance decision. 14. Finally, under the heading "Damaged items", the landlord made suggestions which again appear to be an attempt to raise matters which should have been raised at first instance, namely that (1) the landlord should not be responsible for the tenants' artworks, (2) there was evidence that the artworks were not looked after well, and (3) the extra cost of electricity was not caused by the mould. However, even if those three aspects are considered as challenges to the correctness of the decision made at first instance in relation to the claim for damages due to mould, the only supporting documents provided by the landlord are the pages described as Annexure 22, being pages 44 to 53 of the documents received from the landlord on 3 May 2022. 15. While the highlighting on those ten pages, being reports from an art dealer, does suggest dirt on paintings, there is nothing to establish that the highlighted aspects were not taken into consideration by either the author of those reports or the decision at first instance. 16. It is also necessary to consider the three headings upon which the landlord based this appeal, each of which requires leave (i.e. permission) to appeal. One of the three aspects of the landlord's appeal is a claim that the tenants was not truthful in an application for a new rental property made in October of 2021. It was suggested that document was not available at the time of the hearing since a subpoena (i.e. summons) or court order (i.e. order of the Tribunal) was required to obtain that document. 17. First, it is noted that there was a hearing day on 29 November 2021 and there is no explanation for why the desire to rely on this document was not raised on that occasion. Secondly, even if that document was available, it does not appear that would have affected the outcome which does not appear to have been based on a witness statement, statutory declaration or affidavit of the tenants: the evidence upon which the claim for damages was based was said to be "receipts, quotes and reports"; the decision in relation to the rental bond claims was based on the failure of the landlord to provide evidence that satisfied the Tribunal in relation to those claims. Thirdly, the document referred to has not been included in the documents submitted in support of the appeal and if that is because the landlord does not have a copy of that document then no explanation has been provided for how the landlord can make a claim in relation to a document without having a copy of it. Given that the tenants disputed the landlord's claim in relation to the contents of that document, in the absence of a copy of that document, this aspect rises no higher than a contested allegation. 18. The other two aspects of the landlord's appeal are that the decision was not fair and equitable and that the decision was against the weight of the evidence. Both those aspects may be dealt with at the same time because they both require a consideration of the evidence that was before the Tribunal. 19. Having listened to the sound recording of the hearing on 6 May 2022, when the application for a stay was refused, it is clear that the landlord was put on notice of the need to provide material for this appeal, including the sound recording is so desired. 20. While the tenants provided a copy of the documents submitted to the Tribunal on 28 July 2021, 14 November 2021 and 23 November 2021, there were only a limited number of documents provided by the landlord. In the absence of all the evidence upon which both parties relied at the hearing, it is not possible to say that the decision was against the weight of the evidence or that the decision was not fair and equitable. As a result, the landlord has failed to establish either of those aspects. Indeed, on the basis of the documents that have been provided, the weight of the evidence was in favour of the tenants and the decision was fair and equitable. 21. As a consequence, no basis for a miscarriage of justice has been demonstrated such as would warrant granting leave to appeal. Further, even if it could be said that the decision to award compensation and/or the decision to refund the rental bond were either not fair and equitable or against the weight of the evidence, this case does not appear to fall within any of the five categories suggested in Collins with the result that there is no basis for granting leave to appeal. 22. It remains to consider the application for an extension of time. A Notice of Appeal from the decision of 1 April 2022 should have been lodged on or before 15 April 2022. 23. The landlord maintained that the Notice of Appeal was mailed on 14 April 2022 and, on the morning of the hearing of the appeal, provided a document which served to confirm that the Notice of Appeal was mailed on 14 April 2022, and arrived at the Tribunal's post office box on 21 April 2022. The tenants said their copy was "post marked 22 April 2022". As it is clear that the Notice of Appeal was received by the Tribunal on 22 April 2022, it was one week late. 24. Normally, being out of time by one week may be considered sufficiently short to warrant granting an extension of time. However, one of the principles stated in Jackson, is that the time for appealing should not be extended unless the proposed appeal has prospects of success. As this appeal does not have the required merit, the application for an extension of time is refused. Costs 1. The effect of s 60 of the NCAT Act is that s 60(1) provides that "Each party to proceedings in the Tribunal is to pay the party's own costs" but s 60(2) relaxes that default position by providing that "The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs". 2. The following non-exhaustive list of considerations is set out in s 60(3): (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter the Tribunal considers relevant. 1. It is well-established that the adjective "special" requires circumstances that are out of the ordinary but do not need to be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120, adopting what was said in Cripps v G & M Mawson [2006] NSWCA 84 at [60]. 2. Since s 60(2) commences with the words "The Tribunal may award costs …", it is clear the Tribunal has a discretion which must be exercised. Accordingly, it is necessary to consider not only whether there are special circumstances but also whether those circumstances warrant an award of costs. 3. In this instance, there was a failure to provide documents that formed part of the landlord's evidence at first instance and the sound recording of that hearing, but that was not so much a direction as a warning to the landlord that they should be provided if the landlord wished to rely upon them. 4. While the strength of the landlord's case was not high, that may well have been the result of a failure to provide the necessary documents in support of the appeal. The appeal could not properly be described as frivolous, vexatious or misconceived. It is clear that the appellant genuinely believed there had been an error but she failed to establish any such error. As such, the contention that this appeal involves special circumstances is rejected. 5. Even if it could be said there are special circumstances, an order for costs is not considered to be warranted in this case, noting that (1) the starting point in Tribunal proceedings is that each party bears their own costs, (2) the landlord was neither legally qualified nor represented with the result that she could not reasonably be expected to appreciate terms such as res judicata, ex turpi causa non oritur actio, or Anshun estoppel, and (3) this appeal, as with the first instance proceedings, was of a kind commonly encountered by the Tribunal. Conclusion 1. For the reasons set out above, the following orders are made: 1. The application for an extension of time is refused. 2. Leave to appeal is refused. 3. The appeal is dismissed. 4. Each party is to bear their own costs of the appeal. ********** 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: 30 June 2022