Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Qiu v Capoulade [2022] NSWCATAP 381 Hearing dates: 1 November 2022 Date of orders: 9 December 2022 Decision date: 09 December 2022 Jurisdiction: Appeal Panel Before: S Thode, Principal Member D Goldstein, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. Catchwords: RESIDENTIAL TENANCY – dismissal of compensation claim – no error of law – no issue of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Civil and Administrative Tribunal Rules 2014 (NSW), Cases Cited: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 Collins v Urban [2014] NSWCATAP 17 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Rainy Qiu (Appellant) Jaleela Capoulade (First Respondent) Christian Capoulade (Second Respondent) Representation: Appellant (Self Represented) Respondents (Self Represented) File Number(s): 2022/0168934 Publication restriction: Nil Decision under appeal Court or tribunal: Consumer and Commercial Division Jurisdiction: NSW Civil and Administrative Tribunal Citation: N/A Date of Decision: 30 August 2022 Before: G Bassett General Member File Number(s): RT 22/08754 and RT 22/08191 Reasons for decision Background to appeal 1. The appellant is the landlord and the respondents are tenants of residential premises in Killarney Heights, New South Wales. 2. The parties entered into a written residential tenancy agreement in or about 5 August 2020 for a fixed term of 12 months at a rent of $1800 per week. The parties agreed that the rent would increase to $1900 per week from 19 August 2021. 3. The Tribunal made orders in respect of this application on 16 November 2021 ordering compensation in favour of the tenants and a rent reduction. Written reasons were given. In those reasons the Tribunal found that a condition of the tenancy agreement was that from 19 August 2021 the rent would be reduced to $1900 for 12 months as was reflected in the written residential tenancy agreement. 4. On 21 November 2021 the tenants applied to the Tribunal seeking a declaration that a termination notice was or was not given in accordance with the Act and a declaration that the termination notice has no effect. The tenants were successful in their application (RT 21/47696) and the notice of termination was declared invalid. The landlord's cross-application seeking orders for termination and possession was dismissed (RT 21/48414). 5. On 22 February 2022 the landlord served a further notice of termination. 6. On 24 February 2022 the tenants applied for 11 orders seeking a declaration that a rent increase was invalid; the declaration that a termination notice was invalid; compensation since March 2021 in the sum of $10,200 for failure to carry out repairs; compensation for breach of quiet enjoyment; and an order for the landlord to carry out repairs (RT 22/08191) 7. On 28 February 2022 the landlord again applied for orders seeking a termination of the residential tenancy agreement and vacant possession of the premises; compensation in the sum of $19,224 for damages to an external wall; and compensation for harassment by the tenants (RT 22/08754). 8. Both applications were listed for hearing together on 21 April 2022. The decision of the Tribunal 1. Both applications were listed for hearing on 21 April 2022 and on 6 June 2022 the Tribunal published the following orders and written reasons for decision: 1. the landlord is to pay the tenants the sum of $15,000 immediately. 1. $13,965 for reduced rent; 2. $1035 for breach of quiet enjoyment. 1. The application of the landlord for termination of the residential tenancy based on business use is dismissed. The application of the landlord for compensation for breach of quiet enjoyment is dismissed. The Tribunal orders that the landlord is to carry out the following work before 6 July 2022: details of work order: repair/replace leaking roof. 2. The rent shall not exceed the sum of $1235 per week as from 22 April 2022 to 25 November 2022 or until order 4 has been complied with, whichever occurs first. 3. The matter was listed for final hearing on 30 August . The matter was set down for a 90 minute hearing and was conducted in person. 4. In the tenants' claim, RT the Tribunal ordered the landlord to pay the tenant the sum of $800 immediately. In the particulars for reasons the Tribunal stated the following compensation for quiet enjoyment in relation to unabated ceiling 15 April 2022 to 15 August 2022 $400; compensation for loss of quiet enjoyment in relation to issue regarding stove and Rachel from 4 December 2021 to the end of the tenancy $400.. 1. The critical parts of the written reasons for decision are contained at page paragraph [25] and following. Findings and determination 25 The Tribunal does not accept the tenants were substantially operating the business at the residential premises.… The detective was not available for cross examination and for that reason less weight is given to his statement that the evidence has not been tested.… The landlord had ample opportunity to do periodic inspections for the whole tenancy and never made any mention of a business at the premises, or that such business would be a breach or that there was any in this year of the business during those inspections. 26. The Tribunal are satisfied that the notice was also retaliatory. It immediately followed and improper notice of 10 February 2022 for rent arrears…. 27 The Tribunal finds the landlord carried out no effective repairs on 26 November 2021 until the date of the hearing. The roof leak is serious and ongoing. It led to the tenants losing significant amenity in the home and loss of use of the daughter's bedroom. An order is made for repairs. 28 … The Tribunal is satisfied that rent ought to have been reduced by 35% from 26 November 2021… Rent from 26 November 2021 until 25 November 2022 would be reduced by 35% being weekly rent of $1235 per week. This is a daily rate of reduction of $95. Compensation for overpaid rent from 26 November 2021 to hearing date of 21 April 2022 is for a period of 147 days and $95 per day being the sum of from 22 April 2022 until 25 November 2022 or until repairs are carried out, whichever occurs first. 29. The Tribunal is satisfied the landlord has continually breached the quiet enjoyment of the tenants throughout the tenancy. From the outset the tenancy was poorly handled with rent and fixed terms being unclear.… An order for compensation of a further $1035 to the Tribunal limit of $15,000 is made. 1. The landlord has appealed both the decision to dismiss her application for termination and possession and the award of damages made in favour of the tenants. The Notice of Appeal 1. We refer to the Notice of Appeal filed on 10 June 2022 and annexures. 2. The critical grounds of appeal are set out at page three of the Notice of Appeal and in written submissions. 3. It is convenient to set out the appellants' ground of appeal in full: There has no outstanding repairs works for what they had reported but remain not yet carried out (sic) she has been misleading the Tribunal. 1. In the section entitled "orders the NCAT Appeal Panel should make" the appellant states as follows: a warranty for vacant possession (sic). A 14 days termination notice. Order the tenant provide me with these documents: - where is the evidence of they runs business (sic), copy of the lease, delivery dockets/receipts that showing the address for both receiving and sending of the goods, and correspondences showing where they meet their clients as proof they are not running business from the premises. Therefore I could have my insurance reinstated immediately Reply to Appeal 1. In their Reply to Appeal the respondents support the orders made on 6 June 2022. Applicable legal principles governing appeals 1. Section 80 of the CAT Act provides as follows: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made — (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may — (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances." 1. Clause 12 of Schedule 4 to CAT Act states: "An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (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. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as examples of error of law: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable. 1. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]–[79] and [84(2)] as follows: "74 Accordingly, it should be accepted that 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. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where 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]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. 84 The general principles derived from these cases can be summarised as follows: … (2) 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. Even if the appellant establishes that he may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the CAT Act, the Appeal Panel has discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Appeal Panel's consideration of whether or not to exercise that discretion. 2. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal." The appellant's submissions 1. The appellant was present in person and she was accompanied by a support person. 2. We proceeded on the basis that the appellant brings her appeal on the basis that the findings of the Tribunal were against the weight of evidence, as such the grounds of appeal are such that leave of the Appeal Panel is required. 3. We have had regard to the appellant's "Appeal Summary" and the grounds set out therein. As best we can we ascertain the grounds of appeal are as follows: Ground 1 - "Leak from Roof" 1. The appellant refers to this ground of appeal as "leak from roof". It is submitted that the Tribunal erred when it made a finding that the landlord had failed to repair a longstanding leak in the roof. In addition the Tribunal erred when it ordered a rent reduction. The appellant contends that the rent reduction should be set aside and in lieu thereof the tenants should be ordered to pay rent in accordance with the residential tenancy agreement. Ground 2 – "Illegal Business Use" 1. The appellants' submissions refer to this ground under the heading "tenant illegally uses the premises for business". The appellant alleges the Tribunal erred in finding that the tenants are not conducting their furniture business from the premises. As a result of this the Appeal Panel should find that the notice of termination dated 22 February 2022 alleging a breach of the residential tenancy agreement is valid and the tenancy should be terminated and possession should be given to the landlord immediately. Ground 3 – "Damage to external Wall". 1. The Tribunal erred in dismissing the tenant's claim for compensation in favour of the landlord in the sum of $19,224 for damage caused to the residential premises by the tenants who drilled holes into the external cladding to connect two internet or satellite dishes. Ground 4 – "Rent outstanding" 1. The appellant complains that the tenant has not paid rent for a significant amount of time. Consideration Ground 1 1. The findings of fact that are asserted by the appellant to be made in error are contained in her submissions attached to the notice of appeal. The tenant attached about 200 pages of documents which were helpfully paginated. 2. In respect of Ground 1, the appellant alleges that the Tribunal erred in finding that roof repairs were not carried out for nine months and that roof leaks into the property continued throughout that period. The appellant seeks leave to rely on fresh evidence in particular a letter of LC Roofing and Carpentry stating that a roofer attended the property on 10 January 2022 and 24 February 2022 to repair roof leaks as well as a tax invoice dated 28 February 2022 also issued by LC Roofing and Carpentry. These documents were not tendered before the Tribunal below and were objected to by the respondents. No explanation was given why the evidence of roof repair was not tendered before Member Bassett at the hearing of 21 April 2022. The respondent object to the tender of the document on appeal and also submits the documents have been altered by appellant. 3. It is necessary to consider whether the appellant can rely on the undated letter from roof repairer Ludovic Chaumont, created in support of the appeal and filed on 18 July 2022. This letter was not in existence and the appellant obtained this letter with the benefit of hindsight after receiving the written reasons for decision. This is a letter which the appellant could have obtained from Mr Chaumont before the proceedings were heard on 21 April 2022. It, therefore, cannot be admitted as evidence on the appeal as it is evidence that could reasonably have been obtained before the Tribunal hearing. 4. In the absence of any reasonably explanation why these documents could not have been obtained before the hearing, we are not satisfied that this was evidence that was not reasonably available to be tendered at the first hearing. The Member was correct in accepting that the tenants' application RT 22/08191 was a fresh application seeking damages for a leaking roof from 26 November 2021. The previous orders made in favour of the tenants expired on 26 November 2021 and the Member accepted that new evidence had been provided supporting the contention that the tenants continued to bring the leaking roof to the landlord's attention. The Member accepted the tenants' photographs as evidence of water leaking from a ceiling light fitting and accepted that the house was "completely flooding". The tenants conceded that a roofer had attended to "fix" the roof in February 2022 but they were told by another roofer in March 2022 that the roof needed replacing. The landlord provided written submissions that blamed the tenants for the water ingress by walking on the roof or by leaning on an "unauthorised ladder" against the roof (see appeal summary document page 3) however, these submissions were not supported by evidence before the Tribunal below. 5. The Tribunal was correct in reaching its finding that "the landlord carried out no effective repairs from 26 November 2021" and "the roof leak is serious and ongoing". "It led to the tenants losing significant amenity in the home and loss of use of the daughter's bedroom. An order is made for repairs". The Tribunal continued to consider "It is a discretionary consideration of the tribunal as to the amount of rent areas and backdated compensation to be ordered". In its discretion the Tribunal ordered a rent reduction from 26 November 2021 until 25 November 2022, reducing the rent by 35% being a weekly rent of $1235 per week. The appellant offered no alternate calculation nor did she explain why the Member erred in the exercise of his discretion. 6. We are not satisfied the Member's decision was against the weight of evidence. We are also not satisfied the decision was not fair and equitable. No basis for leave to appeal under cl. 12 of Sch. 4 of the NCAT Act has been established by the landlord, and we do not grant leave in respect of this ground of to appeal in accordance with the principles set out in Collins v Urban. Ground 2 1. The appellant alleges the tenants' "illegally" use the residential premises for business purposes. This contention was rejected by the Member because the primary witness, a private investigator whose attendance at the hearing was requested, was not made available for cross-examination. As a result the investigator's witness statement was rejected by the Member. The appellant alleges the Member erred when he found that there was no business operating from the residential premises because "there is no evidence of goods coming to and from the property". We consider that the appellant alleges that this finding is against the weight of evidence and accordingly the leave of the Appeal Panel is required. 2. We have had regard to the written and oral submissions by the appellant at page 8 of the appeal summary document. It is submitted by the appellant that she informed her insurer that the tenants are "running a business" from the residential premises and the insurer informed the appellant by email dated 8 February 2022 "we will not be able to continue cover if your tenant is running a business from the property". 3. First, the letter from the insurer is not probative of the contention that the tenant is running a business from the premises. Secondly the Member was presented with a plethora of submissions, not evidence, by both sides and concluded on balance "that the landlord had ample opportunity to do periodic inspections for the whole tenancy and never made any mention of a business at the premises or that such a business would be a breach or that there was (sic) any indicia of a business during those inspections." Ultimately the Tribunal was not satisfied that the respondents were conducting a business from the premises and accordingly arrived at a conclusion that the notice of termination citing a breach on the basis of an illegal use of the premises was misconceived and dismissed the landlord's application for termination and possession. The appellant failed to explain why, in the absence of probative evidence of illegal use of the premises, the Member fell into error. 4. This aspect of the decision was not against the weight of evidence and was clearly open to the Tribunal. It was fair and equitable. It does not suggest that substantial injustice might have occurred. This ground of appeal must fail. Ground 3 1. The respondents installed two satellite disks to the external wall cladding of the premises without permission from the landlord. The appellant claims compensation in the sum of $19,224 to fill "in excess of ten holes drilled into the wall". The respondents submit they rectified damage to the wall and the landlord's claim for $19,224 is based on a quote procured by the appellant based on photographs taken before the wall cladding was repaired. This was explained to the Member at first instance. The Tribunal declined to determine the claim for the wall cladding as the Member found that the claim for compensation is more appropriately dealt with at the end of the tenancy. The appellant submits that the Member erred when he considered that the tenant's claim for compensation for damage to the wall was an amount claimed of $1900 instead of $19000. We are of the view that the reference to $1900 was clearly a typographical error and we do not consider that any error of law or an error for which the leave of the appeal panel is required has been established. 2. This claim was addressed by the Member at [31] of the written reasons where he concluded that the claim for compensation for repairs is a claim "more relevant to a claim on the bond and or for compensation at the end of the tenancy when the landlord has had an opportunity to make a final inspection and the tenants have had an opportunity to make good". 3. We have had regard to the submissions at page 8 of the appellant's summary document. The appellant submits "that the tenant's bond has not sufficient fun (sic) to cover the $19224 claims". The appellant's submission do not raise an error of law nor has an error for which the leave of the Appeal Panel is required. The fact that the bond may not be sufficient to cover the appellant's claim for compensation is irrelevant to the issue on appeal. The Member declined to determine the claim for compensation as it is more appropriately dealt with at the end of the tenancy because the tenants have an opportunity and indeed a duty to return the premises to the state it was in at the beginning of the tenancy, fair and tear excepted, see section 51(3) of the RT Act. The tenants claim they have already made good the affected part of the wall cladding. In our view the appellant has failed to demonstrate an error in the Tribunal's reasoning, and has failed to establish why the issue of compensation for damage to the wall cladding should not be deferred to the end of the tenancy. 4. In respect of Ground 4 we refer to the appellant's submissions at page 9. It is alleged that the tenants stopped paying rent on 2 June 2022 and "used the order to offset their rent arrears". This complaint does not refer to an error of law or an error for which the leave of the Appeal Panel is required. We make no finding in respect of this ground of appeal. If the tenants have failed to pay rent in accordance with the residential tenancy agreement the landlord may consider her remedies under the Residential Tenancies Act 2010. Conclusion 1. We are not satisfied the Member's decision was against the weight of evidence. We are also not satisfied the decision was not fair and equitable. No basis for leave to appeal under cl. 12 of Sch. 4 of the NCAT Act has been established by the landlord, and we do not grant leave to appeal in accordance with the principles set out in Collins v Urban. Orders 1. The orders that we accordingly make are as follows: 1. Leave to appeal is refused. 2. 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: 09 December 2022