Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Van Wyk v Mosely [2022] NSWCATAP 239 Hearing dates: 12 July 2022 Date of orders: 20 July 2022 Decision date: 20 July 2022 Jurisdiction: Appeal Panel Before: R Titterton OAM, Senior Member G Ellis SC, Senior Member Decision: 1. Leave to appeal is refused. 2. As a result, the appeal is dismissed. Catchwords: APPEAL – Whether decision fair and equitable - whether decision against the weight of the evidence - whether there is fresh evidence - whether to grant leave to appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Greta Van Wyk (Applicant) Jennifer Mosely (Respondent) Representation: Appellant (Self-represented) Ms S Pike (Respondent) File Number(s): 2022/00145735 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2022] NSWCATCD Date of Decision: 04 May 2022 Before: Member S Smith File Number(s): RT 22/10300 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 in the Consumer and Commercial Division of the Tribunal on 4 May 2022 (the Decision). 2. The application to the Tribunal was brought by appellant (the tenant), against the respondent (the landlord). 3. The issues in the appeal are: 1. whether the Decision was not fair and equitable, 2. whether the Decision was against the weight of the evidence, 3. whether significant new evidence is not available that was not reasonably available at the time of the hearing, and 4. if any of those three issues are determined in favour of the tenant, whether leave to appeal be granted and, if so 5. whether the appeal should be allowed. 1. For the reasons set out below, we have decided to refuse leave to appeal and, as a result, dismiss the appeal. Tribunal proceedings and Decision 1. The application to the Tribunal was lodged on 8 March 2022. After a preliminary hearing on 29 March 2022, the matter was listed for final hearing on 4 May 2022 and the Decision was published on that day, following the hearing. 2. The Tribunal relevantly found that the tenant had failed to prove her case in relation to claims (1) for compensation for damage to clothing and other goods, (2) for a rent reduction, and (3) that the landlord's 90-day termination notice was not retaliatory. 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. The tenant does not allege any error of law in this appeal. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise). We have undertaken that exercise and discern no question of law. 3. 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 Sch 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: 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). 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 Sch 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 Sch4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. 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, 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. Submissions and evidence 1. In deciding the appeal, we have had regard to the following documents: (1) the Notice of Appeal lodged on 18 May 2022 and the accompanying documents, (2) the Reply to Appeal lodged on 30 May 2022, (3) the tenant's documents, received on 24 June 2022, and (4) the landlord's documents, received on 7 July 2022. We have also taken into consideration the oral submissions made during the hearing of the appeal. Notice of Appeal 1. The Notice of Appeal was lodged on 18 May 2022, which is within of the 14-day period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules). The grounds of appeal specified in the Notice of Appeal are as summarised below. 2. It was contended that the Decision was not fair and equitable because, to summarise what was set out in the Notice of Appeal: (1) the Decision was not based on the evidence filed by the tenant, (2) the Decision did not refer to the tenant's witness statements, (3) the landlord's agent was permitted to interrupt the tenant, (4) the landlord did not have sufficient evidence to prove the tenant was responsible for the mould, (5) there was no evidence that the house was structurally sound, (6) the tenant provided sufficient evidence, including photos, (7) the tenant's attention was not drawn to there being insufficient evidence in relation to the claim for damage to goods, (8) the Decision did not acknowledge that the tenant's complaint was a long-standing one, (9) the decision on the rent reduction claim was based on false and misleading reports and failed to consider the tenant's evidence, and (10) there was a comment made at a prior hearing, on 29 January 2022, that cleaning mould was an acknowledgement there were structural issues with the property. 3. Secondly, it was said in the Notice of Appeal that the Decision was against the weight of the evidence in that more weight should have been given to: (1) the tenant having provided notification of the mould numerous times over a long period, (2) the witness statements of the tenant's son and fiancé, (3) emails containing photographic evidence and details of the tenant's notification of mould, (4) the reports provided by the tenant in support of her case, (5) there being three permanently locked windows, (6) suggested lack of evidence provided by the landlord, and (7) the tenant having lived in the property for three years prior to the discovery of the dampness. 4. Thirdly, the Notice of Appeal suggested that significant new evidence is now available that was not reasonably available at the hearing, namely: (1) water bills and emails regarding those water bills, (2) evidence available from Vera Tannous of Prime Real Estate, and (3) photographic evidence. It was said that such evidence was only discovered after the tenant's documents were submitted. 5. In her Notice of Appeal, the tenant submitted that leave should be granted as there was a miscarriage of justice for reasons which may be summarised as follows: (1) false and misleading evidence presented by the landlord's agent, (2) unsubstantiated allegations which shifted blame to the tenant, (3) the tenant being wrongfully portrayed, (3) the tenant suffered loss despite paying rent punctually, and (4) the tenant submitted sufficient proof in relation to the mould. Reply to Appeal 1. The submissions made by the landlord in reply may be summarised as follows: (1) the landlord's evidence was factual and not misleading, (2) Ms Pike represented the landlord as Ms Hewson was on leave, (3) there was no blame directed towards the tenant, all repairs were carried out in a timely manner, and none of the repairs were connected to mould in the property, (4) no mould was notice during an inspection in 2020 and it was not until October 2021 that the tenant advised of mould on her lounge, (5) there was a ruptured shower membrane but not near the rooms said to have mould, (6) the Mould Men report does not suggest high moisture readings and suggested lack of ventilation as a cause, which was supported by the last five routine inspections, (7) there was no evidence that the tenants did not make full use of the property and inspections suggested all rooms were being used, and (8) the tenant has a responsibility to clean mould as it appears and the level of rain in the Sydney region has recently been higher than usual. 2. A further statement was provided, and it has been considered, not as evidence, but as submissions in response to the submissions of the tenant. 3. The response to the claim that the Decision was not fair and equitable was to note that the Tribunal, at first instance: (1) referred to the copious amounts of evidence, (2) did note the length of the tenancy and when the moisture problem was first notified, and (3) observed that "the evidence to link the landlord's conduct to the damage is tenuous and the quantum aspect entirely deficient". It was also suggested that the landlord's offer to clean the mould was a gesture of goodwill and did not constitute an admission that the mould was caused by structural issues. 4. In reply to the claim that the Decision at first instance was against the weight of the evidence, after referring to the written submissions made for the landlord at first instance, it was suggested: (1) the landlord's agent responded promptly to matters raised by the tenant, (2) the tenant left 94 days after the 90 day notice was given and did not clean the mould, (3) the tenant never notified the landlord of windows being permanently locked, (4) Mr Garrett's qualifications and experience suggested his opinions were sound, (5) the report from Regency Leatherlife included the words: "I looked on the painted walls and didn't notice any [mould]", and (6) the Mould Men report revealed recorded readings of 10% and said "moisture levels of around 16% and below can be considered dry". 5. On the issue of fresh evidence, it was submitted that (1) the tenant had failed to demonstrate how that evidence was not available by the time of the hearing, and (2) such evidence did not have a level of significance that would have made a difference to the Decision. Evidence in response to the suggested fresh evidence was provided. 6. In a closing submission, it was contended that the landlord had acted diligently, that any mould aligned with the La Nina climate events, and that the tenant could have ended their lease by giving three weeks' notice at any time as they were on a month-to-month tenancy after 2018. It was said that the tenant's rental bond was released on a goodwill basis despite there being reasons that would have justified retaining some of that rental bond and that the landlord supported the orders made on 4 May 2022. Tenant's documents 1. The tenant provided a partial transcript of the hearing as well as a USB drive which contained a recording of the hearing. As the USB drive enabled an awareness of everything that was said at the hearing, that has been considered in preference to the partial transcript. It is convenient to here note that there were 17 additions, in red, of the words "Member is heard laughing". 2. A total of 96 pages of documents were provided by the tenant. Based on the accompanying index, those pages appear to contain copies of the contents of what the tenant described as "Bundles 1 and 2", as presented to the hearing at first instance plus what was described as "Other evidence to support Application for Appeal". Landlord's documents 1. A total of 188 pages were provided: the first 153 being documents provided to the Tribunal for the first instance hearing and the remaining 45 pages being documents only provided for this appeal. Oral submissions of the tenant 1. While much of the oral submissions appeared to be rearguing the case that was made at first instance, those submissions have been considered as having been made in support of the claims that the Decision was not fair and equitable and/or that the Decision was against the weight of the evidence. 2. References to a suggested lack of evidence of the landlord overlook the fact that onus of proof rested with the tenant. The fact that the landlord refunded the entire rental bond to the tenant does not carry evidentiary weight in relation to the issues under consideration. Submissions were made in support of the proposition that it was the landlord, not the tenant, who was responsible for the mould which became evident. 3. It was also suggested that the evidence was not viewed or listened to properly by the presiding member. We note that, in proceedings before the Tribunal, the evidence is provided in documentary form and, in the absence of any cross-examination, what is said during the hearing constitutes submissions as to what should be the outcome of the case and why. 4. An opportunity was also provided for the tenant to make submissions in reply. Oral submissions for the landlord 1. Ms Pike's submissions included that the cause of the mould was the weather during the relevant period. She also referred to the inspections that were conducted during the tenancy. Consideration 1. As an aid to understanding the Decision in relation to this appeal, it is necessary to provide some introductory remarks. First, since the tenant commenced the proceedings at first instance, she bore the onus of proof. There was no obligation on the landlord to provide any evidence and it was open to the landlord to lead no evidence at all and still contend that the tenant had failed to prove her case. 2. Secondly, in relation to the tenant's claim for damages due to mould, it was necessary for the tenant to satisfy the Tribunal: (1) that there was mould, (2) that such mould caused damage to the tenant, (3) that the landlord should be found to be responsible for that damage, and (4) the amount that should be allowed for that damage. The first three aspects establish liability and the fourth is referred to as quantum. 3. In relation to a claim for rent reduction, the tenant was required to persuade the Tribunal that that the premises became wholly or partly uninhabitable which, if found in favour of the tenant, would raise the question of what reduction is considered appropriate and date from which and until which that reduction should apply. 4. As to the claim that the notice of termination was retaliatory, the tenant needs to prove: (1) that a notice of termination was issued by or for the landlord to the tenant, and (2) that such a notice was retaliatory, ie motivated in response to some conduct on the part of the tenant. 5. Thirdly, it must be borne in mind that an appeal does not provide an opportunity for the unsuccessful party to rerun the hearing. Instead, an appeal provides an opportunity for the appellant to demonstrate an error in the Decision. Decision not fair and equitable 1. Dealing first with the claim that the Decision was not fair and equitable. It is not necessary to go into any detail in relation to the claim for damages because, even if it be assumed that the tenant established that there was mould which caused damage for which the landlord was responsible, there was no evidence of the amount of that damage: only a list setting out amounts claimed (at page 17 of the tenant's documents). Taking the six-seater leather lounge recliner set as an example, there is no evidence of (1) the purchase cost, (2) the age of that recliner set, or (3) the cost of replacement. 2. This aspect was included in the following paragraphs of the reasons provided by the Tribunal member who conducted the hearing (emphasis added): At the hearing I drew the applicant's attention to the fact that the damage to good claim was not supported by evidence of a) the nature and extent of the damage to the goods and b) the value of the goods for the purpose of calculating compensation. There is but a list of items with money values. If the tenant can establish a loss flowing from breach of the tenancy agreement by the landlord, the quantum of compensation is the market value of the goods at the time of the damage or the cost to repair. In this case the evidence to link the landlord's conduct to the damage is tenuous and the quantum aspect is entirely deficient. As a result, the tenant cannot succeed on this part of the claim. 1. Thus, even if it be assumed, in favour of the tenant, that she established liability on the part of the landlord, the tenant failed to establish the quantum of her loss or damage. 2. During the hearing of the appeal, we raised with the parties what they contended should be the outcome if the appeal was allowed. Both parties suggested that we should substitute our decision for the Decision, rather than remit the matter for a re-hearing. When asked what she contended should be the outcome, the tenant referred to her schedules (page 17 for the compensation claim, and page 18 for the rent reduction claim) and suggested an amount of $11,000 would constitute fair compensation. 3. The fact that the tenant referred to the schedule for her compensation claim and not to evidence in support of those amounts served to illustrate that she only had a list of claims and no evidence in support of the amounts claimed. 4. The dismissal of this claim cannot be said to have not been fair and equitable. 5. We now turn to the claim for rent reduction. As to liability, there were competing causes, such as the nature and extent of wet weather during the relevant period, and the failure of the waterproofing membrane in the main shower (which did not present as a likely cause when it was suggested that the area affected by mould were predominantly elsewhere in the property). The landlord's evidence appears to have included a report from a structural engineer which did not support the asserting that there was a structural issue. There was a lack of contemporaneous documents supporting uninhabitability of the areas for which a claim was made. Neither oral nor documentary evidence supports a finding that uninhabitability was raised during any of the periodic inspections. 6. The witness statements (pages 19-20 of the tenant's documents) did no more than set out what the landlord's agent, Ms Hewson, was said to have been told on 27 February 2021. Again, there is a page which sets out the amount claimed (page 18 of the tenant's documents) but, while there was evidence of mould, there was a lack of evidence that such mould rendered at least part of the premises unhabitable. 7. The reasons provided by the member who presided at the first instance hearing adequately identified the evidence, specifically identifying the expert evidence. In relation to the rent reduction claim, the relevant portions of the challenged reasons are set out below: During the hearing and in documents on file the tenant complained of visible mould and an odour which reduced amenity. This is however inconsistent with the evidence furnished by the landlord's agent. In several periodic inspections (eg 31 Aug 2020, 27 Feb 2021, 29 Jan 2022) the issue of dampness and mould is touched on but there is no suggestion of a frank demand for remedial action by the tenant. Indeed in the Aug 2020 inspection the absence of mould is mentioned by the property manager and in the January 2022 report a few mould spots are noted as was the absence of any moisture smell. When one turns to the technical reports the inspection by the "Mould Men" is to say the last, "guarded" when the matter of significant active mould is mentioned. The report is far short of describing the property as being in need of urgent remediation which is really what the tenant contends. The landlord's documents described the mould issue as "minor" and I might observe that the tenant's conduct in continuing to occupy the dwelling is consistent with that diagnosis. 1. Accordingly, the tenant's claim suffered evidentiary deficiencies which included: (1) the absence of witness statements in support of the question of whether the premises became wholly or partly uninhabitable and during what period, (2) the absence of supporting contemporaneous documents, and (3) the periodic routine inspections not raising the uninhabitability now claimed. In view of those matters, the decision to reject the rent reduction claim cannot be said to have not been fair and equitable. 2. The claim that the termination notice was retaliatory was not challenged in this appeal which not surprising since the tenant vacated the premises on 20 May 2022, after the first instance hearing on 4 May 2022 and just after the Notice of Appeal was lodged on 18 May 2022. 3. However, as the presiding member noted, there was evidence of an intended bathroom renovation in a property that only had one bathroom which, as was correctly observed, would make the property unhabitable while that renovation was undertaken. There was thus a valid basis for the termination notice which provided an impediment to a finding that it was a retaliatory notice. Further, the tenant did not adequately identify to what the notice was said to be retaliating. 4. Accordingly, even if there had been a challenge to this aspect, no basis for overturning the decision made on this issue has been demonstrated. Decision against the weight of the evidence 1. Next, was the Decision against the weight of the evidence? To be able to fairly and properly consider this ground, the Tribunal would need to have placed before it the evidence upon which both parties relied at the hearing which gave rise to this appeal. Even assuming the documents provided by the parties meet that test, the failure of the tenant's evidence to satisfy essential aspects of her claim for damages prevents a finding that the Decision made was against the weight of the evidence. In other words, a proper weighing of the evidence reveals a gap in the tenant's evidence that precludes a finding in her favour in relation to her claim for damages. 2. Likewise, as to the rent reduction claim, the evidentiary deficiencies listed above have the necessary result that the weight of the tenant's evidence was also lacking in relation to this claim. Fresh evidence, not reasonably available 1. The last basis of the appeal was that there was additional evidence that should now be considered. However, it is important to note that this basis does not permit a party to simply supplement the evidence provided at the first instance hearing. What is required is fresh evidence, being evidence that was not reasonably available prior to the first instance hearing. 2. The evidence to which the tenant referred in relation to this aspect of the appeal appears to be additional evidence, not fresh evidence, and the Tribunal is not persuaded that the evidence upon which the tenant now wishes to rely for the first time was not reasonably available at the time of the hearing at first instance: see Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. Additional matters 1. There are two other aspects which warrant consideration. First, the claim that the member laughed during the hearing. Of the seventeen occasions suggested in the partial transcript provided by the tenant, many do not appear from listening to the recording of the hearing. Those that are audible coincide with when an interruption occurred. 2. Such laughter is regrettable, and it is understandable that such conduct may give a party reason to believe that either the presiding member is not taking a party's case seriously or is distracted from the issues requiring determination. However, having considered the evidence, the reasons provided, and the submissions of the parties to this appeal, the Tribunal does not consider that the Decision would have been any different either in the absence of such laughter or if the case had been heard by another member of the Tribunal who did not react to interruptions in that fashion. 3. Secondly, although not raised by the tenant, we have considered whether the reasons provided were adequate. If a Tribunal does not refer to any evidence or submission, it should not be assumed that evidence or submission has been ignored. As was said by Allsop P (as he then was) in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]: "[A] judge may, in dealing with large bodies of evidence, be forced to economise in expressions and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires a truncation of reference and expression. Judgement writing should not become a process that is oppressive and produces unnecessary prolixity. Not every piece of evidence must be referred to. That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed or resolved …" 1. The leading case on the adequacy of reasons is New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 which, while accepting that what was required of reasons provided by a Tribunal was not as strict as for the judgement of a court, said that the reasons provided by a Tribunal should reveal (1) material findings in relation to factual aspects, (2) a correct understanding the relevant law, and (3) the reasoning process that led to the decision made. 2. Having carefully considered the reasons provided on 4 May 2022, we are satisfied that the reasons, although somewhat abbreviated, provided did meet the minimum standard required having regard to the volume of evidence provided by the parties. Importantly, the reasons identified the deficiencies in the tenant's case which formed the basis for the dismissal of the tenant's application. Conclusion 1. Since the tenant has failed to satisfy us that (1) the Decision was not fair and equitable, or (2) that the Decision was against the weight of the evidence, or (3) that there is fresh evidence that was not reasonably available at the time of the first instance hearing, there cannot be said to have been any miscarriage of justice with the result that there is no basis for granting leave to appeal. 2. Consequently, the appeal must be dismissed which will serve to confirm the Decision. Simply stated, having reviewed the evidence, considered what occurred at the hearing, examined the reasons provided at first instance, and considered the written and oral submissions made by both parties, we are unable to find any basis for the Decision to be overturned. 3. For the reasons set out above, the orders that will be made to finalise this appeal are as follows: 1. Leave to appeal is refused. 2. As a result, 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: 20 July 2022