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. Background 1. In July 2018, the landlords entered into a 26 week residential tenancy agreement (the tenancy agreement) with Ms Hardie and three other persons for residential premises owned by the landlords. 2. Clause 43 of the tenancy agreement provided that the tenants agree not to keep animals on the premises without obtaining the landlords' consent. 3. We understand that the tenants (or at least Ms Hardie) remained in possession of the premises until 21 November 2021 and that at no time did the tenants seek the landlords' consent to keep animals on the premises. 4. On 8 December 2021, the tenant, Ms Hardie, lodged an application with the Tribunal, in the Consumer and Commercial Division, seeking an order for the payment, to her, of the rental bond plus interest (RT 21/50193). The tenant's reason for seeking the order is stated to be: The landlord would like to claim dollars saying the business that cleaned, sprayed and carpets cleaned wasn't up to his standards. He is very unreasonable. 1. On 15 December 2021, the landlords lodged an application with the Tribunal, in the Consumer and Commercial Division, seeking an order, under s 187(1)(d) of the Residential Tenancies Act 2010 (NSW) (RT Act), for compensation in the amount of $11,968.48 (RT 21/51075). The reason for seeking the order included: … [compensation] for damage caused by an unapproved pet at the property. Carpets are needing to be replaced (sic) to the odor (sic) and dog hair stuck in the pile. Damages to multiple areas of the home form (sic) the dog and more than wear and tear. … … Carpet replacement minus depreciation: $4636.44 (total was $8239.00) 1. On 28 January 2022, both applications were listed in the Consumer and Commercial Division Group Conciliation/ Hearing list. As no agreement had been reached between the parties and an agreement appeared to be unlikely the Tribunal Member referred both applications to the Consumer and Commercial Division Registry for the allocation of a hearing date. 2. Both applications were listed for hearing on 23 February 2022. At the conclusion of the hearing that day, the Tribunal adjourned both applications for further hearing on a day to be fixed by the Registrar. The Tribunal also made the following order: 2. The Tenant is to send to the Tribunal and the agent a hard copy of the text messages to and from the agent with regard to the key return process on or before 8 March 2022. No further evidence is to be submitted by either party. 1. It is apparent that on this occasion the Tribunal determined a number of claims made by the landlords and gave oral reasons for that determination but did not at that time make orders concerning those items. 2. Both applications were then listed for a further hearing on 17 March 2022. On this day the Tribunal reserved its decision in regard to the items remaining for determination, being the landlords' claims for the cost of replacement of the carpet and for two days further rent. 3. On 22 March 2022, the Tribunal provided the parties with its decision and written reasons for decision. The orders made by the Tribunal included: 1. An order that the tenant pay compensation to the landlords in the amount of $2442.14, one element of which was an amount of $750 in respect of the remediation of the carpet; 2. that the Rental Bond Service pay the whole of the bond plus interest to the landlords; and 3. the dismissal of the landlords claim for two days rent. The Tribunal's decision 1. At [3]–[4] of its reasons for decision the Tribunal noted the following concerning the landlords' carpet replacement claim: 1. the landlord said: 1. the carpets were new when the tenancy commenced; 2. there were animals at the premises during the tenancy and as a result there is urine in the carpet and dog hair in the carpet; 3. ChemDry determined in their report that the carpet had numerous areas that were affected by pet urine and recommended their pet urine removal treatment; 4. ChemDry visited the premises on 20 January 2022 and provided a quote for $750 to remove the pet urine (with no guarantees). ChemDry scheduled to undertake the removal treatment on 8 February and said that sometimes they needed to return and apply more product at extra cost; 1. The tenant said that: 1. the animals that visited were only at the premises a short time and the damage alleged could not have been attributable to the visiting pets who did not have white coats; and 2. she had the carpets cleaned and the landlords' agent should have asked her carpet cleaner to come back so as to minimise costs. 1. At [5] to [18] of its reasons for decision the Tribunal set out its consideration and findings concerning the landlords' carpet claim. In summary, at [5] to [14], the Tribunal said: 1. the tenant was in the premises for three years. The tenancy ended and the final inspection was carried out on 26 November 2021; 2. ChemDry assessed a repair option on 20 January 2022 and were scheduled to undertake that work on 8 February 2022; 3. on 31 January 2022, the landlords wrote to their agent declaring that they believed the best option was to replace the carpets; 4. there was no report from ChemDry that they undertook the scheduled work; or whether the works were successful or not successful; 5. the ingoing report (including the tenant's comments) concurs with the landlords account that the carpet was new at the beginning of the tenancy – it had no pulls or tears and there was no mention of smells; 6. the tenant's photos do not show close ups of the carpet and cannot show smell; 7. nothing given to the Tribunal 'dissuades [it] that what is on the outgoing [condition report] is incorrect'; 8. 'if there had been a report from the Expert that they were unable to remove the smell the outcome may have been different'. 1. The Tribunal's findings and conclusions are at [15] to [18] as follows: 15 Having considered all of the above and the tenant's evidence that the animal/s were not living at the premises, only visiting, and considering the ingoing and outgoing evidence and the expert report from Chemdry I find that there was some remediation required to rid the carpets of dog odour. 16 I consider that the tenant needs to pay for the remediation of the carpet. Not its replacement. There is no evidence before me that the carpet cannot be remediated. 17 I do not accept the evidence of the tenant that the visiting dog did not have white fur. … Despite the fact that the tenant had the carpet deodorised and sanitised on 18 November 2021 a strong smell of dog persisted. 18 … [I] think the expert evidence of Chemdry is helpful and that it is more probable than not that they remediate the carpet smell for the $750 quoted. There is no evidence to support the assertion that the carpet needs replacing. The Appeal 1. The appeal was heard on the afternoon of 31 May 2022 and the parties appeared by telephone. The landlords' evidence and submissions 1. In support of their appeal, the landlords provided a tabulated bundle of documents which included further written submissions in addition to those contained in their Notice of Appeal and a typed transcript of a section of the sound recording of the hearings before the Tribunal on 28 January 2022 and 17 March 2022. The landlords bundle included the following documents which we understand were before the Tribunal at the heating: the ChemDry report of 20 January 2022, facebook screen shots of photographs of a dog (which we understand were not admitted into evidence), the residential tenancy agreement, the incoming and outgoing condition reports, a June 2018 invoice for the installation of carpet to the premises and a 1 December 2021 quote for the replacement of the carpet. 2. Included in the bundle was a further report from ChemDry, dated 29 March 2022, which post-dated the 17 March 2022 hearing. 3. The landlords also provided a USB that contained a copy of the entire recording of the hearing before the Tribunal on 28 January 2022 and 17 March 2022. 4. In their submissions, the landlords contend that they suffered a substantial miscarriage of justice for the following reasons: 1. the decision was not fair and equitable because: 1. the Tribunal Member did not allow them to provide further evidence about the ChemDry treatment not being successful, whereas the Tribunal Member had given the tenant the opportunity to provide further evidence after the first hearing, which influenced the Tribunal's decision in regard to their rent claim; 2. the Tribunal Member gave consideration to the tenant's opinion, but did not apply fair and reasonable consideration to the landlords' evidence and statements on the same matter. Even without a further report they had provided statements and oral evidence to show that the carpet needed replacing and could not be remediated. In this regard the Tribunal also had before it the report of ChemDry which noted dog urine and stench in the carpet in all rooms and their statements that the remedial work undertaken by ChemDry did not work and the 'foul stench remains'; 1. the decision was against the weight of evidence because undue weight was given to the tenant's opinion over the landlords' evidence from multiple sources. In this regard the landlords again pointed to the Tribunal giving consideration to the tenant's verbal evidence that the dogs were there only for a short time, whereas they had provided photographic evidence of the tenant's dog being present at the premises. More weight should have been given to their evidence, including the rejected facebook screen shot photos which they assert should have been accepted; and 2. significant new evidence is now available that was not reasonably available at the time of hearing: the new evidence is the ChemDry report of 29 March 2022. In their submissions, the landlords explained: In the first hearing [28 January 2022] the member said that the landlord needs to provide evidence of dog urine, and this is important to her decision. She also said that dog urine is a big problem as it soaks through to the underlay and cannot be removed by cleaning. We provided a report from ChemDry showing dog urine in the carpet. We were instructed by NCAT not to submit further documents following the second hearing. The carpet was not heard until the third hearing. We were made aware on 22 March (NCAT hearing notes) that a report from ChemDry stating that the work had been carried out and was not successful in removing the dog urine and urine odour was required and would have influenced the decision. We are providing this now. The tenant's evidence and submission 1. In her Reply to Appeal, the tenant said she supported the orders made by the Tribunal on 17 March 2022. 2. The tenant also rejected the broad assertions contained in the landlords' grounds of appeal and submitted that the landlords were merely seeking to re-litigate the issue about the carpet needing to be replaced. 3. In her written submissions, the tenant submitted that the landlords' appeal must be rejected and that the grounds of appeal do not warrant a new hearing. In this regard, the tenant noted that: 1. the ChemDry report of 29 March 2022 was evidence that was reasonably available to the landlords at any time after 8 February 2022 and before the final hearing on 17 March 2022; 2. it was some 11 weeks after she had vacated the premises, on 21 November 2021, that ChemDry attended the premises to do the remedial work; and 3. the ChemDry report of 29 March 2022, was prepared seven weeks after they had attended the premises on 8 February 2022. 1. The tenant also provided a typed transcript of the section of the sound recording of the hearing on 17 March 2022 in which the Tribunal Member questioned the landlords' agent about the carpet having been cleaned at the time of the exit condition report and a report from ChemDry after its attendance at the scheduled 8 February 2022 Treatment. Our Decision 1. We have listened to the USB recording provided by the landlords and note the following: 1. there was a 20 minute hearing on 28 January 2022, where the Tribunal asked both parties what their respective applications were about and whether they had endeavoured to reach some agreement. The Tribunal did not specifically deal with either claim, but provided an explanation of the Tribunal's processes, the relevant statutory obligations of a tenant and a landlord and where the onus of proof lay. In this case, as no agreement had, or could be reached between the landlords and the tenants, and the Tribunal Member referred both applications to the Consumer and Commercial Division Registry for the allocation of a hearing date for both applications; 2. there was a one and a half hour hearing on 17 March 2022. This was the second day of hearing where the Tribunal dealt with the landlords' claim for two days rent due to the keys not having been returned and for cleaning, before it dealt with the landlords' claim for the carpet replacement. During the course of the hearing, the Tribunal found that the landlords were entitled to half of the amount claimed for cleaning. At the conclusion of the hearing the Tribunal reserved its decision in regard to the landlord's claim concerning the replacement of the carpet and the two days for loss of rent; 3. on both occasions the landlords were represented by their leasing agent and the tenant represented herself. On the information before the Appeal Panel, neither the landlords or the landlords' leasing agent are legally qualified. and 4. there is no evidence of the Tribunal having favoured the tenant over the landlords' representative. 1. In accordance with the principles expressed in Prendergast v Western Murray Irrigation Ltd [2014) NSWCATAP 69 at [12], we have carefully examined the landlord's grounds of appeal and are satisfied that they do not raise any question of law. 2. The essence of the landlords' grounds of appeal is an application for leave to appeal on the grounds that they have suffered a substantial miscarriage of justice on the bases set out in cl 12(1) of Sch 4 of the NCAT Act. 3. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel, at [76], considered the meaning of the term 'a substantial miscarriage of justice', as it appears in cl 12(1) of Sch 4, and said: … a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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. The first ground of appeal – decision not fair and equitable 1. We are not satisfied that the landlords have established that the decision of the Tribunal was not fair and equitable. 2. On 28 January 2022, the Tribunal pointed out that onus was on the landlords to prove their claim. That is, they were required to provide evidence that supported every aspect of their claim. The Tribunal found, after having heard from the parties concerning the landlords' carpet claim on 17 March 2022, that the landlords had failed to prove that the carpet needed to be replaced. 3. The Tribunal did however accept that the condition of the carpet was as described in the ingoing and outgoing condition reports. The Tribunal also accepted that the condition of the carpet was as described in the 20 January 2022 ChemDry report and noted their recommended Pet Urine Removal Treatment (Treatment) which was scheduled for 8 February 2022. What the Tribunal did not accept, in our opinion correctly so, was that the assertions/opinions of the landlords as proof of the asserted fact that the ChemDry Treatment did not work and the carpets needed to be replaced. 4. During the hearing on 17 March 2022, the Tribunal specifically asked the landlords' leasing agent a number of questions about whether there was a further report from ChemDry to say that the Treatment had been undertaken as scheduled, that it did not work and that the carpet needed to be replaced. The leasing agent responded by referring to the assertions of the landlords that it did not work, the exit condition report which included reference to smells in several areas and the 20 January 2022 ChemDry report that confirmed there were smells and that their Treatment was not 100% guaranteed. However, at no time did the leasing agent seek to provide a further ChemDry report or say that a further report had not been obtained because it was the understanding of the landlords that the Tribunal's orders, made on 23 February 2022, prevented them from doing so. 5. In our opinion, as the onus was on the landlords to prove their claim, the Tribunal's questioning of the leasing agent was entirely appropriate. 6. We have not been provided with a copy of the transcript or recording of the hearing before the Tribunal on 23 February 2022. However, from the material provided, it would appear that on this occasion the Tribunal dealt with the landlords' claims, other than their claim for cleaning and the replacement of the carpet. It appears that the Tribunal did begin to deal with the landlords' claim for loss of rent for the two days the tenant had failed to return the key to the landlord's leasing agent. It would seem that the tenant, who did not bear an onus in regard to that claim, did raise in defence of that claim that she had text messages which did not support the claim made by the landlords. We assume that the Tribunal allowed the tenant to provide a copy of these text messages because this claim of the landlords had not been finalised at the hearing on this day and that the outstanding matters were to be adjourned for another day of hearing, the Tribunal allowed the tenant to provide a copy of these text messages. It would appear that it was in this context that the Tribunal made its order for no further evidence to be filed by either party. That is, no further evidence, other than the text messages, concerning the landlords' claim of two days loss of rent was to be provided. 7. 17 March 2022 was the second and final day of hearing of the landlords' claim. In our opinion, in the absence of the landlords seeking an adjournment to provide further evidence, there was no obligation on the Tribunal to give them the opportunity to do so. As we have already noted, on 28 January 2022 the landlords were expressly informed that they bore the onus to prove every aspect of their claim, including their claim that the carpet needed to be replaced. 8. Accordingly, we find that the landlords have failed to establish that the decision of the Tribunal was not fair and equitable. The second ground of appeal – decision against the weight of evidence 1. In our opinion, it was open to the Tribunal to reject the screen shots the landlords had taken from a facebook page. The tenant explained that these screen shots were from her daughters facebook page, and that the majority of the photographs in the screen shots were not taken at the residential premises. 2. In any event, the Tribunal accepted that there was a dog present at the premises and that there was dog hair and urine on the carpet at the premises. The facebook screen shots would have added nothing to those conclusions. 3. Again, we find that the landlords have failed to establish that the decision of the Tribunal was against the weight of evidence. On the contrary, we find that, on the material before the Tribunal, it was open to the Tribunal to find that the dog visited and was not permanently at the premises. The third ground of appeal – significant new evidence 1. For the reasons we have given above, we do not accept the landlords' explanation as to why the ChemDry report of 29 March 2022 was not reasonably available prior to the hearing of their carpet claim. 2. The evidence is that, as early as 1 December 2021 and well before the original ChemDry report, the landlords said they wanted to have the carpet replaced. On 31 January 2022, three days after the original ChemDry report, the landlords wrote to their leasing agent and said they believed the best option was to replace the carpet. 3. We accept that this belief may have been genuinely held by the landlords, however, as was explained to the landlords at the 28 January 2022 Conciliation/hearing, this belief was not a belief independently held or based on any relevant expertise. Hence, it was not evidence of sufficiently probative value to establish that the carpet did in fact require replacing. At the same time, what was before the Tribunal was the original expert ChemDry report, which recommended that the carpet be remediated with their special Treatment. Yet no further report was provided by ChemDry or any other independent expert to show that the treatment did not work, and the carpet needed replacing. Why a report of this kind was not obtained, when it clearly could have been obtained prior to the 17 March 2022 hearing, has not been explained. 4. Accordingly, we find that the landlords have failed to establish that there is significant new evidence that was not reasonably available at the time of hearing. Conclusions 1. For the reasons set out above, we find that the landlords have failed to establish that: 1. the decision of the Tribunal raises a question of law; 2. they may have suffered a substantial miscarriage of justice on the basis of one or more grounds set out in cl 12(1)(a)-(c) of Sch 4 of the NCAT Act. 1. Accordingly, it is appropriate to make an order refusing to grant the landlords leave to appeal and other wise dismiss the appeal. Orders 1. For the reasons set out above we make the following orders: 1. Application for leave to appeal refused. 2. Appeal 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: 30 August 2022