Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mao v Nove [2022] NSWCATAP 374 Hearing dates: 7 November 2022 Date of orders: 5 December 2022 Decision date: 05 December 2022 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member D Goldstein, Senior Member Decision: 1. Appeal dismissed. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — alleged breaches by the tenant – findings of fact – no error established in the factual findings – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 12(1)(c) Residential Tenancies Act 2010 (NSW), ss 51(3)(a), 52(1), 52(1B), 63(1) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Texts Cited: Nil Category: Principal judgment Parties: Xiaoyan Claudia Mao (Appellant) Jolyon Emanuel Nove (Respondent) Representation: R Ding (Agent) ( Appellant) No appearance by the Respondent File Number(s): 2022/00268544 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 6 September 2022 Before: S De Jersey, General Member File Number(s): RT 22/27170 REASONS FOR DECISION 1. In this appeal the appellant ("landlord"), assisted by her husband and an interpreter, appeals from the Tribunal's decision dismissing her claim against the respondent ("tenant") for an occupation fee, charges for the reconnection of electricity and the cost of replacement carpet. Plain English Summary for the Parties 1. This is a simple summary of our decision on the main points raised by the Owner on the appeal. 2. Firstly, an appeal is not a second hearing. With one exception, on an appeal the appellant must show that the Tribunal made a mistake in reaching its decision on the evidence which the Tribunal was given. If a mistake was not made, the Appeal Panel does not change the decision. 3. The exception is where new evidence (evidence not given to the Tribunal) is allowed to be given on an appeal. However, a party cannot provide new evidence on an appeal unless that evidence was not reasonably available to that party at the time of the Tribunal hearing i.e. all but impossible to obtain and provide to the Tribunal and the other party for the Tribunal hearing. 4. In this case we were not satisfied that the landlord's new evidence was not reasonably available to her at the time of the Tribunal hearing and therefore did not allow her new evidence on the appeal. 5. In relation to the complaints made about the Tribunal's decision, we were not persuaded that the Tribunal made any mistake on the evidence which it was given. Background 1. It was not in dispute that the parties entered into a residential tenancy agreement for a one-bedroom apartment in Gordon, NSW, commencing on some date in 2020. That agreement is not in the material provided to us, but the Tribunal found that the tenant "moved in" about July 2020. 2. The Tribunal said that due to structural defects with the apartment building, including some cracking, water entered the apartment. There was no dispute between the parties that a substantial amount of water had entered the apartment under the balcony doors. 3. In particular, the Tribunal said that during April 2022 water regularly entered the apartment due to very heavy rainfall events. There was so much water entering the apartment that the tenant stayed elsewhere. 4. The entry of water into the apartment caused much disagreement between the parties the detail of which need not be recited. Suffice to say that the tenancy agreement was terminated after the landlord served a termination notice on the tenant. 5. The background to the issues in dispute, the Tribunal's decision, the landlord's complaints on appeal and our decision in relation to each claimed item are as follows. The Occupation Fee 1. The Tribunal said that the rent was paid to 30 June 2022. 2. The landlord claimed that the last day of the tenancy was 30 June 2022 but that vacant possession was not given until 8 July 2022 being the date on which the landlord said the keys were returned and a rug and toolbox belonging to the tenant were removed. 3. The tenant said that the keys were left inside the premises on 27 June 2022 as arranged with the landlord's managing agent. He said that he had agreed with the agent that the agent would remove the rug, and the toolbox could be left there for the next tenant to use. 4. The Tribunal decided: "12 The claim for the occupation fee of eight days from 1 to 8 July 2022 at $61.42 per day is refused. The tenant says the agent agreed to arrange the removal of the rug and the toolbox was left there to assist the next person. The appropriate compensation claim would be the cost of removing these items. There is no evidence lead by the landlord that they have incurred a cost to have these items removed. The claim is refused." 1. Although not stated by the Tribunal, the initial question posed was whether the tenant had failed to provide vacant possession until 8 July. But the Tribunal's reasons on that issue are a little opaque. 2. The Tribunal made no finding of fact as to when the keys were returned, made no finding of fact whether there had been the agreement between the tenant and the agent as alleged by the tenant and made no finding as to whether vacant possession was not given until 8 July 2022. 3. The last two sentences of the Tribunal's reasons quoted above suggest the Tribunal was of the view that the removal of the rug and toolbox were not relevant to the question of vacant possession, but could only be relevant to the question whether the tenant had breached s 51(3)(a) of the Residential Tenancies Act 2010 (NSW) (the "RTA") which requires tenants to remove all the tenant's goods from the residential premises on giving vacant possession. 4. On that question, which seems to have been addressed as an alternative case posed by the landlord against the event the Tribunal found vacant possession had been given on 30 June, the Tribunal found that there was no evidence of any cost being incurred to remove the items, and so the claim was refused. 5. On the appeal no mistake was shown in the Tribunal's statement that there was no evidence of a cost being incurred, and so the challenge to that part of the Tribunal's decision must fail. 6. As to vacant possession, the Tribunal explicitly accepted other evidence given by the tenant (see below in relation to the electricity) as being "truthful", and (inferentially) accurate, and the agent did not give any evidence to contradict that of the tenant in relation to the alleged agreement with the agent. A fair reading of the Tribunal's reasons, aided by listening to the sound recording of the hearing, persuades us that the Tribunal was satisfied that there was the agreement between the agent and the tenant that the tenant alleged. 7. This is corroborated by the agent's email to the landlord dated 30 June 2022 in which the agent said: "The tenant also did leave a rug in the property which we are working on getting removed with them ASAP, as (the tenant) was unable to carry this himself when departing the last goods from the unit." 1. That sentence is more consistent with the tenant's version of events, particularly considering the tenant was 85 or 86 years of age at the time. 2. Therefore, there was no error made by the Tribunal in accepting the tenant's evidence. The Tribunal heard and saw the tenant give evidence, the agent did not give any contradictory evidence and the tenant's version is consistent with the email we have quoted above. It follows that vacant possession was given on 30 June 2022, the two items had been left on the premises with the agreement of the agent and there was no breach of the lease by the tenant in doing so. Therefore, no occupation fee was payable. 3. It follows that the appeal on this point must fail. The Reconnection Charges 1. The landlord said that the electricity was disconnected because the tenant had failed to pay his electricity bill. The landlord claimed $12.29 as the reconnection fee and the agent's fee of $220 charged in relation to the agent's attendance at the rented premises to allow for the reconnection to occur. 2. The tenant gave evidence that the landlord's agent arranged for the electricity to be disconnected on his behalf because the water entering the premises posed a danger vis-à-vis the electrical circuits within the apartment. 3. The Tribunal decided: "13 Energy Australia reconnection fee of $12.29. The tenant disputes this claim for the reason that the agency disconnected the electricity because of the amount of water that had entered the property during the April storms and it was dangerous to leave it on. I accept this evidence as truthful and dismiss the landlord's claim. 14 The agent's fee to attend at the property for six hours waiting for Energy Australia to reconnect the electricity of $220. This claim is refused as I have found above that there is no breach by the tenant in relation to the electricity being disconnected." 1. The landlord complained that the Tribunal had failed to consider evidence to the effect that the electricity had been disconnected because of the tenant's failure to pay his electricity bill. The landlord had provided to the Tribunal a poor photograph of a disconnection tag showing the electricity had been disconnected on 19 May 2022 and the following hearsay statement: "Energy Australia reconnected the electricity on 5 July 2022 and confirmed on 5 July 2022 the disconnection was due to unpaid bill." 1. There was also an email from the agent to the landlord dated 21 July 2022 in which the agent gave the following response to the following question from the landlord: "Q: Whether the tenant inform you the electricity cut off on 19 May 2022 by Red Energy? A: No nor were we notified of any utility connections for any tenancy as it's the responsibility of the tenant." 1. It would have been better if the Tribunal had referred to this evidence explicitly in its reasons because the landlord was entitled to know why she had lost her case, and in this instance, why her evidence was not preferred or why it was not thought to be convincing. 2. Having said that, the Tribunal said that it accepted the tenant's evidence as truthful and (impliedly) as accurate. The Tribunal saw and heard the tenant give evidence and was in a position to assess his demeanour. 3. The problem for the landlord's evidence quoted above at [29] is that it was hearsay. That is, the person spoken to did not give evidence, he or she was not identified by name and he or she was not available for cross-examination so that the tenant could test the proposition that the electricity was disconnected for a failure to pay his bill. 4. Although the evidence of the conversation was admissible (because the Tribunal is not bound by the rules of evidence) it was not of great weight given its hearsay nature. Added to that mix of considerations is the fact that the agent did not give evidence contradicting the tenant's evidence. 5. The fact that the tag showed that the electricity was disconnected on 19 May is neither here nor there. There is nothing in the evidence of which we are aware, or was drawn to our attention, to show that that date was more consistent with the non-payment of bills than it was with the agreement between the tenant and the landlord. 6. The email from the agent quoted at [30] above was of greater weight, but the agent did not give evidence in person or by way of a more comprehensive statement and was not available for cross-examination. 7. In those circumstances there was no error made by the Tribunal in accepting the tenant's evidence in preference to the evidence led by the landlord. The parties gave competing evidence, but the Tribunal decided the tenant's evidence had the greater weight and should be preferred. No error in forming that view has been established. The Carpet 1. The Tribunal's decision, which includes a recitation of the tenant's evidence, was: "15 Cost of replacement carpet in the living of $1430. The tenant's evidence is that due to the amount of water that had entered the apartment in the living room and kitchen area through the storms earlier this year; the carpet had been regularly drenched and was mouldy and smelt. The carpet was first drenched about 18 months earlier; and the tenant's case is it was a regular event due to the combination of large storms and building defects and the carpet deteriorated over time and became mouldy. The tenant's daughter removed part of the carpet in late April 2022 to relieve the strong odour of the mould, which she referred to as a "gas" and so her elderly father would not be so affected by it. The landlord has in her evidence an email from Chem-Dry dated 19 July 2022 which states: 'The carpet had already been removed prior to our attendance. We attended to treat the subfloor and some of the mould affected contents to mitigate further damage. At this level of mould growth, the general practice for water damage situations would be to remove the affected areas with mould growth in the carpet or relocate the occupants. From the inspection of the carpet that was removed, it would have been negligent to have been left in place and would have caused mould growth to other contents and the structure ...'. 16 There is no evidence or suggestion that the tenant did anything to the carpet to cause its demise through regular water ingress events. I am satisfied that the carpet was beyond repair and given the amount of mould posed a substantial health risk for the tenant. I find that the tenant's daughter acted appropriately by removing the carpet when she did. I find that there is no breach by the tenant in relation to the living room carpet and this claim is refused." 1. No evidence was provided by the landlord other than that by Chem-Dry who attended on her behalf and which the Tribunal quoted in its reasons set out above. 2. The landlord's complaint about the Tribunal's decision on this point was to the effect that the landlord had not been consulted about the removal of part of the carpet. The landlord said that the tenant required permission to remove the carpet and he had not sought that permission. 3. Whilst the Tribunal, at least impliedly, accepted that no permission to remove the carpet was sought or obtained ahead of time, the Tribunal also found that the carpet was beyond repair and (given the amount of mould) posed a substantial health risk for the tenant. The landlord does not challenge that factual finding on the appeal. 4. The Tribunal did not address the parties' legal obligations which were relevant to the carpet issue, but it appears from the sound recording that the Tribunal had in mind the landlord's obligation to provide habitable premises [s 52(1) of the RTA] and the obligation to provide and maintain the residential premises in a reasonable state of repair [s 63(1) of the RTA]. Landlords are also obliged to provide structurally sound premises, and premises are not structurally sound when floors are subject to significant dampness, and the roof, ceilings and windows allow water penetration into the premises [s 52(1B) of the RTA]. 5. These obligations are strict in the sense that they bind the landlord even if those problems arise through no fault of the landlord. 6. In other words, what the Tribunal had in mind was that the landlord had breached those obligations, and removal of part of the carpet by the tenant was an act which minimised the damage to the tenant in terms of health (the mould) and loss of amenity. 7. We asked the landlord during the appeal what she would have done if permission had been sought to remove the carpet. The answer was that the carpet might possibly have been saved. But that is mere speculation and is contradicted by the evidence of Chem-Dry. 8. In all of those circumstances we do not agree that the Tribunal erred in relation to the carpet. New Evidence 1. The landlord sought to tender new evidence on the appeal. By new evidence we mean evidence that was not given to the Tribunal. Much of that new evidence concerned issues other than the occupation fee, disconnection fee and carpet, and so can be ignored because an appeal only deals with the matters in the decision appealed from. 2. On an appeal such as this new evidence is only allowable if that new evidence is "significant" and if it was "not reasonably available" to the party at the time of the Tribunal hearing – cl 12(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW). 3. What the words "not reasonably available" mean is that, looked at objectively, no person could have reasonably obtained that evidence at the time of the Tribunal hearing - Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. 4. In relation to the electricity disconnection, the new evidence was a clearer photo of the connection box with a red disconnection notice over the apartment's connection dated 19 May 2022 and hearsay evidence of two conversations with people apparently employed by the Red Energy, said to be the electricity supply company as distinct from Energy Australia. The first conversation was said to have been had with the tradesperson who disconnected and reconnected the electricity supply, and the second was with a person the landlord spoke to on the phone. Both are alleged to have said that the electricity was disconnected due to unpaid bills. 5. The appellant said this evidence was not obtained for the hearing before the Tribunal because she only knew of the tenant's explanation for the first time at the hearing. 6. We note that there were some problems with the service of the parties' evidence before the Tribunal hearing. The Tribunal described those problems, and resolved that issue as follows: "7 As it transpired neither party had received the other parties' documents before the hearing. Although the landlord's documents were emailed to Mr Nove he said he had not reviewed the documents but a family member had. Mr Nove agreed that he had not sent his bundle dated 12 August 2022 to the landlord. The landlord confirmed he had received Mr Nove's bundle dated 9 August 2022. 8 I offered the parties an adjournment of the hearing to another date so they would have an opportunity to serve their evidence on each other. Both parties reviewed the other party's evidence before the oral evidence began and both confirmed that they did not seek an adjournment but preferred to have the matter proceed to hearing. 9 Accordingly, the documentary evidence before the Tribunal is as follows: a) The landlord's evidence bundle dated 2 August 2022; b) The tenant's evidence bundles dated 9 and 12 August 2022." 1. We were not given a copy of the tenant's evidence bundles, and so we do not know whether the tenant's version was contained in his documents or was given for the first time in his oral evidence. 2. Be that as it may it was for the landlord to prove that the tenant owed that money. Therefore, it was for the landlord to come to the Tribunal with proof as to why the electricity was disconnected, with proof that it was caused by the tenant and that this disconnection resulted from a breach of the tenancy agreement. The landlord was not entitled to allege that the disconnection was caused by the tenant, then wait and see what the tenant said, and only then seek and obtain evidence to the contrary. The landlord must have been aware of the requirement to obtain her own evidence before the hearing because she did lead the evidence we have referred to earlier. It seems that, unhappy with the result of the case, she simply sought more evidence on the same issue. 3. Therefore, we do not accept that this new evidence was not reasonably available to the landlord at the time of the Tribunal hearing and therefore do not admit it on this appeal. 4. There does not appear to be any relevant new evidence concerning the occupation fee and the carpet. Orders 1. We make the following order: 1. 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: 05 December 2022