Roberts v Hardie [2022] NSWCATAP 281

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Roberts v Hardie [2022] NSWCATAP 281 Hearing dates: 31 May 2022 Date of orders: 30 August 2022 Decision date: 30 August 2022 Jurisdiction: Appeal Panel Before: D Robertson, Senior Member S Higgins, Senior Member Decision: 1. Application for leave to appeal refused. 2. Appeal dismissed. Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) - leave to appeal - no issue of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Jordan Roberts and Sophie Roberts (Appellants) Lisa Hardie (Respondent) Representation: Appellants (Self-represented) Respondent (Self-represented) File Number(s): 2022/00093557 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 17 March 2022 Before: J Drennan, Tribunal Member File Number(s): RT 21/50193 and RT 21/51075

Reasons for decision 1. This is an internal appeal by the landlords, Jordan and Sophie Roberts, against an order made in the Consumer and Commercial Division of this Tribunal. The order the subject of the appeal is the Tribunal's order that the tenant, Lisa Hardie, pay the landlords the sum of $2,442.14, which included $750.00 to remediate the carpet of the residential premises. The landlords contend that the Tribunal erred in that, on the evidence before the Tribunal, the Tribunal should have included the cost of replacing the entire carpet and not limited the award in respect of the carpet to the cost of applying a treatment to remediate the smell in the carpet. 2. An internal appeal can be made as of right on a question of law, and otherwise with leave of the Appeal Panel: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 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: (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 their Notice of Appeal, the landlords identified three main grounds of appeal. These are stated to be as follows: Weight of evidence provided was not given fair and equitable consideration. Undue weight was given to tenant opinion over the landlords (sic) evidence from multiple sources. Parties were not given equal opportunity to provide evidence that would influence the decision. The member allowed the tenant to provide further evidence but not the landlord. Member gave consideration to tenant opinion, however did not apply fair and reasonable consideration to landlord evidence and statements on the same matter. 1. If successful in their appeal, the landlords sought an order that the tenants be directed to pay them the cost of replacement of the whole carpet, less 3.5 years depreciation, which they asserted was $5355. 2. As we explained at the hearing of the landlord's appeal, an appeal is not a rehearing of the landlords' case before the Tribunal. It is an appeal on the grounds set out in the landlords' Notice of Appeal. To succeed in their appeal, the landlords must establish that their grounds of appeal, in part or whole: 1. disclose an error with respect to a question of law, or 2. establish that they may have suffered a substantial miscarriage of justice in the terms of cl 12(1) of Sch 4 of the NCAT Act. 1. For the reasons that follow, we find that the landlords have failed to establish that: 1. their grounds of appeal raise a question of law; or 2. they may have suffered a substantial miscarriage of justice on any of the grounds set out in cl 12(1) of Sch 4 of the NCAT Act.