Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kamel v Marr [2022] NSWCATAP 298 Hearing dates: 31 August 2022 Date of orders: 12 September 2022 Decision date: 12 September 2022 Jurisdiction: Appeal Panel Before: R Dubler SC, Senior Member A Boxall, Senior Member Decision: The appeal is dismissed Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — Landlord's rights to enter residential premises LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) — Termination — Orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) section 80, Schedule 4 Civil and Administrative Tribunal Rules 2014 (NSW) clause 25 Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: Adel Kamel (Appellant 1) Jeanette Botros (Appellant 2) Heather Marr (Respondent 1) John William Marr (Respondent 2) Representation: Appellant 1 (Self Represented) Appellant 2 (Self Represented) Respondent 1 (Self Represented) Respondent 2 (Self Represented) File Number(s): 2022/00199850 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2022] NSWCATAD Date of Decision: 05 July 2022 Before: P French, Senior Member File Number(s): RT 22/15222 RT 22/19391 reasons for decision Background 1. On 24 March 2021, the Appellants and the Respondents entered into a residential tenancy agreement (the Agreement) under which the Appellants (also referred to in these reasons as the Landlords) agreed to lease to the Respondents (who are correspondingly also referred to in these reasons as the Tenants) a residential property at St Clair NSW (the Property) owned by the Appellants. The Agreement provided for a fixed term tenancy beginning on 24 March 2021 and ending on 22 March 2022 at a weekly rental of $500. The Tenants paid a rental bond of $2000 which was deposited with Rental Bond Services. 2. On 31 January 2022 the Landlords' agent issued the Tenants with an End-of-Fixed Term termination notice which required them to return possession of the Property on 22 March 2022. The Tenants returned possession of the Property by delivering all keys (except one) to the Landlords' agent on 16 March 2022, and the remaining key on 18 March 2022. 3. On 6 April 2022, the Landlords lodged an application (RT 22/1522) with the Tribunal under the Residential Tenancies Act 2010 (the RT Act), seeking orders that: 1. The Tenants pay $428.57 in rent and rent in lieu of notice; 2. The Tenants pay $5072.00 in compensation for loss occasioned by intentional or negligent damage to the Property; and 3. Rental Bond Services pay the whole of the Tenants' rental bond to the Landlords; this was subsequently varied to relate only to an amount of $428.57. 1. On 3 May 2022, the Respondents also lodged an application (RT 22/19301) with the Tribunal under the RT Act, seeking orders that: 1. Rental Bond Services pay them the whole of the rental bond; and 2. The Landlords pay compensation of $2875.00 for economic and non-economic loss which they said they suffered because of the Landlords' interference with their quiet enjoyment and failure to maintain the Property in a reasonable state of repair. 1. Attempts at conciliation were unsuccessful, and on 1 July 2022 both applications were heard together by the Tribunal. 2. On 5 July 2022, the Tribunal issued its decisions in both matters and written reasons for decision: 1. In the Landlords' application, it ordered that: 1. the Tenants pay $142.86 by way of rent; and 2. the rental bond be repaid in full to the Tenants. 1. In the Tenants' application, it ordered that the Landlords pay the Tenants $2780.00. 2. It further ordered that the two amounts be set-off, so that a net amount of $2637.14 only be paid immediately by the Landlords to the Tenants. 1. On 8 July 2022, the Landlords filed with the Tribunal: 1. A notice of appeal, which appealed against the order that $2637.14 be paid by the Landlords to the Tenants; and 2. An application seeking a stay of the original decision pending this appeal. 1. On 27 July 2022, the Tribunal: 1. Dismissed the stay application; 2. Made orders listing the appeal for 31 August 2022, and providing certain directions as to the timetable for the parties to provide: 1. Their respective written submissions, 2. a copy of the hearing transcript (if relevant to the determination of the appeal), 3. the evidence at the original hearing on which they intend to rely, and 4. such further evidence (if any) as they intend to seek leave to rely upon at the appeal. 1. On 16 August 2022, the Tribunal: 1. Considered and dismissed an application by the Appellants: 1. to join their former managing agent as a party to the appeal; and 2. to vary the timetable to allow an extension of time for the provision of material in the appeal; and 1. provided in its order dismissing the application brief written reasons, to which these reasons will return below. Scope and nature of internal appeals 1. Before proceeding any further, it is appropriate to record some general principles concerning the scope and nature of internal appeals in the Tribunal. 2. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (the NCAT Act). 3. 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: 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 v Urban), 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 v Urban, 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. Mr Kamel, on behalf of himself and the other Landlord, raised again the question of joining their former managing agent as a party to the appeal. The Appeal Panel referred him to the brief reasons given on 16 August 2022, and explained that: 1. since the appeal related to the outcome of proceedings between, on the one hand, the Landlords and, on the other, the Tenants to which the estate agent was not a party, it was logically and procedurally entirely unjustifiable for the agent to become a party to the appeal; and 2. if the Landlords consider that they have a claim of some kind relating to the agent's conduct then that is a matter for them to pursue against the agent independently of this appeal. Mr Kamel appeared to accept the logic of this position. 1. Mr Kamel informed the Tribunal that his mother tongue is Arabic, and more precisely the Egyptian dialect of that language. An Arabic interpreter engaged by the Tribunal participated in the hearing to assist linguistically Mr Kamel and the Tribunal as required. Mr Kamel noted that the interpreter spoke the Lebanese dialect of Arabic and expressed concern as to how useful interpretation into that dialect might prove for him. In the event, Mr Kamel's command of English proved during the hearing to be fluent, functional and highly expressive. He participated fully and at length in the proceedings with only occasional recourse to the interpreter. The Appeal Panel was alert to Mr Kamel's initial concerns but saw no evidence to suggest that any differences between Mr Kamel's Arabic dialect and that of the interpreter disadvantaged him in putting his case. Submissions and evidence 1. In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal lodged on 8 July 2022 and attachments constituting some of the evidence filed before the Member below; 2. The appellant's written submissions filed and served on 8 July 2022 along with the Notice of Appeal; 3. Evidence submitted by the Appellants on 15, 21 and 25 July 2022; 4. A further written submission by the Appellants dated 15 August 2022, together with certain attachments to it, to which these reasons will return later; 5. The Respondents' Reply to Appeal and their written submissions lodged along with it; 6. A written response dated 31 August 2022 by the Respondents to the Appellants' written submission and attachments referred to in (4) above, together with various attachments; and 7. The oral submissions made by and on behalf of the parties at the appeal hearing. Notice of Appeal 1. The Notice of Appeal was lodged on 8 July 2022, which is within the time prescribed by cl 25(3) of the Civil and Administrative Tribunal Rules 2014 (the Rules). Grounds of Appeal 1. The Notice of Appeal identifies in Section 5B (Grounds of Appeal) the following grounds of appeal: 1. The decision made by the member was unfair and against the wave [sic] of evidence; 2. He gave weight to verbal evidence presented by the respondent more than physical evidence that I presented; and 3. I also became stressed and flustered during the hearing as the member was undermining many of my points. 1. The Notice of Appeal also seeks leave to appeal in Part 6 of the Notice, on the basis that: 1. The decision was not fair and equitable, for reasons set out in Part 6 Section B(I) of the Notice of Appeal, and in some detail in attachment APP 1 to the Notice of Appeal; 2. The decision was against the weight of evidence, because the Tribunal did not give proper consideration to (or place appropriate weight on) the written evidence provided by the Appellants; this is set out in Section B(III) of the Notice of Appeal, which: 1. refers to some 34 pieces of documentary evidence, and 2. also refers to difficulties which Mr Kamel considered that he had in presenting the Landlords' case because of stress, occasioned both by the member's approach and the Arabic interpreter being disconnected from the hearing at one point; and 1. New evidence was available, being certain documents marked B1 to B14 (inclusive) appended to the Notice of Appeal. Reply to Appeal 1. The Reply to Appeal was filed on 25 July 2022. Since there was no evidence as to when the Respondents were notified of the appeal it cannot be concluded that this fell outside the 14-day period for filing a reply fixed under Rule 26(5)(b). In any event, there is no allegation that the Reply to Appeal was out of time. 2. The Respondents say that: 1. They support the orders made; 2. Both sides had a fair time to put their respective cases, although Mr Kamel at times spoke out of turn; 3. The presiding member noted the interpreter's disconnection, and offered Mr Kamel an adjournment until the connection could be restored; Mr Kamel declined this offer; 4. Their case was supported by documents and other evidence; and 5. Mr Kamel "... has a tendency to claim discrimination and/or unfair treatment". Consideration Questions of law 1. The first question is whether the appeal raises a question of law on the basis of which the Appellants may appeal without the Tribunal's leave, as outlined in paragraphs [11] and [12] above. 2. The Appeal Panel considers that the Appellants' claims that Mr Kamel's ability to present their case was impaired by: 1. Stress occasioned by the presiding member's questioning; and 2. The Arabic interpreter being disconnected for some time from the hearing, are arguments to the effect that there is a question of law underlying the appeal. The particular question of law involved, amongst those listed in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, would appear to be whether there was in consequence of these circumstances a failure to afford procedural fairness. 1. The Appellants have provided neither a sound recording nor a transcript of the hearing at first instance. There is therefore no evidence on the issue other than: 1. The Appellants' assertion, and 2. The Respondent's countervailing statement, that both sides had a fair time to put their respective cases. The Tribunal is not, therefore, in a position to conclude that the hearing was conducted by the presiding member in a such a way as to disadvantage the Appellants in the presentation of their case. 1. The absence of a transcript in turn makes it impossible for the Appeal Panel to conclude that temporary breaking of the telephone or video connection with the Arabic interpreter disadvantaged the Appellants. Mr Kamel's impressive and functional command of English during the appeal hearing reinforces this conclusion. 2. The Appeal Panel is not satisfied therefore that there is any question of law sufficient to support the appeal. Grounds for leave 1. The next question is whether the appeal discloses any basis on which the Tribunal may give leave to appeal as outlined in paragraphs [13] to [16] above. 2. In order to do so, the Appeal Panel must be satisfied that: 1. Any of the circumstances set out in clauses 12(1)(a), (b) or (c) of Schedule 4 to the NCAT Act apply; and 2. That in consequence, the Appellants may have suffered a substantial miscarriage of justice which, as Collins v Urban indicates, happens 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 Were the Appellants at risk of substantial miscarriage of justice because the decision was unfair or inequitable? 1. The Tribunal's Reasons for Decision disclose a painstaking and systematic engagement by the Tribunal at first instance with: 1. The arguments made by the Landlords and the Tenants in their respective applications; and 2. The evidence provided by the parties, and the managing agent, concerning the various claims. 1. All of the major substantive issues raised at length by the parties in their written and oral submissions on appeal were considered and addressed by the Tribunal in its Reasons for Decision. These were primarily: 1. The Tenants' obligation to pay rent for the entire term of the Agreement, and the effect of certain observations by the Managing Agent purportedly reducing the quantum of that obligation; 2. The consequences of the driveway being soiled by oil dripping form the Respondents' car, and their efforts to have the oil marks cleaned off; 3. The controversy concerning the Property's gas heater, and the installation of an additional gas fitting at the Property; 4. The replacement of an internal lock on an urgent basis; 5. The issues of broken guttering, damp and mould at the Property, and their consequences for the Tenants' amenity well-being and certain of their personal property; and 6. The frequency and lawfulness of Mr Kamel's attendances at the Property. 1. The outcome of the Tribunal's consideration of these issues may not have been to the Appellants' taste, but there is nothing in the Reasons for Decision or in the materials provided by either party to indicate that the Tribunal's findings on these matters were either unfair or inequitable. The Tribunal's reasons for decision are in the Appeal Panel's assessment consistent with it having reached its conclusion by means of a reasonable, systematic and thorough analysis of the evidence and submissions, such that there is no significant possibility of a different or more favourable result for the Appellants. Were the Appellants at risk of substantial miscarriage of justice because the decision was against the weight of evidence? 1. These reasons now turn to the question whether the decision under appeal was against the weight of evidence. The meaning of this expression is that the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach: Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 2. The Tribunal's reasons for decision indicate that in considering the major issues outlined above it both: 1. had regard to, and 2. analysed and weighed, the evidence placed before it, such that it cannot reasonably be concluded that its decision was against the weight of evidence, or that there was a significant possibility of a different or more favourable result for the Appellants. That the Tribunal may not have referred in its Reasons for Decision expressly or in detail to each particular piece of evidence provided does not detract from this conclusion: see New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [65] to [77], and in particular at [73] to [74] per Bell P, with Ward JA agreeing. Were the Appellants at risk of substantial miscarriage of justice because significant new evidence has arisen that was not reasonably available at the time of the hearing? 1. As for the question whether there is new evidence which was not reasonably available at the time of the hearing, the Appeal Panel has considered: 1. the documents B1 to B14 referred to by the Respondents in the Notice of Appeal; these documents were variously dated (or in the case of documents B1 and B2, a statement dated 5 July 2022 from the former managing agent) and able to be obtained before the hearing; and 2. the material attached to the Appellants' submissions filed on 15 August 2022; of these: 1. Document C1, a statement by the Respondents' current tenants as to Mr Kamel's efficiency and amiability, is irrelevant to his relationship with the Respondents; 2. Documents C2 to C4, an inspection report of the Property as at 22 July 2022, is similarly irrelevant to matters as between the Appellants and the Respondents; 3. Document C5, the report of a roof inspection of the Property made on 5 August 2022, could have been obtained before the hearing and is thus not new evidence which was not reasonably available at the time of the hearing; 4. Document C6, being part of an inspection report by The Mould Doctor dated on or about 8 October 2021, is equally evidence which could have been available for the hearing; 5. Document C7 is the statement from the former managing agent dated 5 July 2022 referred to above; as noted there, it could have been obtained before the hearing, and so is not new evidence which was not readily available; attached to it appear to be several photographs that were attached as documents B5 and B6 referred to above and predate (or were readily obtainable before) the hearing; 6. Document C8, an email from the Respondents to the then managing agent; it is dated 1 July 2021 and is thus not new evidence which was not reasonably available at the time of the hearing; 7. Document C9 is an email dated 10 August 2022 to the Tribunal, concerning the proposal to join the former managing agent as a party to the appeal; it is clearly of no relevance to the appeal, in view of the Tribunal's decision of 16 August 2022 referred to above; 8. Document C10 is an undated quotation for cleaning the driveway at the Property; a quote of this kind was reasonably available before the hearing; 9. Document C11 is an email from the Respondents to the then managing agent; it is dated 22 April 2021, and is thus not new evidence which was not reasonably available at the time of the hearing; and 10. Documents C12 to C16, which appear to be photographs of the driveway at the Property and were thus readily obtainable before the hearing. 1. These documents are, in the Appeal Panel's view, either: 1. not new evidence in the sense contemplated by Schedule 4 Clause 12(1)(c), being evidence not readily available before the hearing; or 2. evidence which was not so available, but which is not significant new evidence. In any case, that these documents may not have been available to the Tribunal does not lead to the conclusion that there was a significant possibility of a different or more favourable result for the Appellants. Exercise of the Appeal Panel's discretion 1. Even if the Appeal Panel is incorrect in one or more of those conclusions: 1. it does not consider that any of the factors set out in Collins v Urban and summarised at paragraph [16] above, which should normally be taken into account in exercising the Tribunal's discretion to grant leave to appeal, are satisfied in the present case; and 2. accordingly, it is disinclined in any event to exercise its discretion so as to grant leave to appeal. Orders 1. The Appeal panel orders that: 1. Leave to appeal be refused; and 2. The appeal otherwise be 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: 12 September 2022