Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Paparizos v St George Community Housing Ltd [2023] NSWCATAP 84 Hearing dates: 14 March 2023 Date of orders: 24 March 2023 Decision date: 24 March 2023 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President G Burton SC, Senior Member Decision: (1) Appeal dismissed. Catchwords: APPEAL- failure to satisfy onus of proof - procedural unfairness - no error of law or other ground of appeal established. Legislation Cited: Civil & Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Category: Principal judgment Parties: Michael Paparizos (Appellant) St George Community Housing Ltd (Respondent) Representation: Appellant (self-represented) S Saward, Senior Tenancy Manage (Respondent) File Number(s): 2023/00008833 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: N/A Date of Decision: 9 December 2022 Before: S Hennings (General Member) File Number(s): SH 22/40322 REASONS FOR DECISION Background 1. This appeal arises out of a decision published by the Tribunal in the Consumer & Commercial Division on 9 December 2022, by which the Tribunal made an order dismissing the Appellant's application. The Appellant is a tenant under a residential tenancy agreement in which the Respondent is the landlord. The Tribunal was exercising its jurisdiction under the Residential Tenancies Act 2010 (NSW) (the RT Act). 2. In the application the Appellant sought an order under s 187(1)(d) of the RT Act for compensation totalling $6,520.80. The application contained a description of the facts leading to the Appellant's claim as summarised below. 3. On 5 August 2022, the Appellant was driving his vehicle out of the carpark of the building in which he resides. While approaching the exit and going under the roller door, he turned and waved at a neighbour and, as he continued, the roller door started coming down automatically and hit the roof of his vehicle, damaging it. He was not able to see the roller door coming down. The application attached a quotation supplied by a repairer for the damage caused to the vehicle. The Appellant claimed that the Respondent had an obligation as a landlord to pay the above amount as compensation. 4. The application also stated that for a number of weeks prior to the incident on 5 August the exiting roller door had been kept open so as to permit entry and exit during a period in which the other roller door was out of order. First Instance Decision 1. The hearing at first instance occurred on 9 December 2022 and the record of that decision discloses that the application was dismissed because the Tribunal was not satisfied "at the civil standard of proof" that the "grounds required to make the orders sought have been established". In addition, the record set out the relevant background and reasons for the dismissal. These reasons may be summarised as follows: 1. The repairs on the roller door that had been out of order were completed on 4 August 2022. The Appellant was exiting the garage on 5 August 2022 and was waving at a neighbour when the roller door started to come down automatically, colliding with the roof of his motor vehicle. The Appellant obtained a quotation from Super Smash Repairs for the cost of repairing the vehicle. That amounted to $6,520. The Respondent claimed that it had repaired the garage door as required, that the Appellant was distracted and was not paying attention and the fact that the vehicle was hit by the garage door was due to the Appellant's own fault. The Respondent also doubted the "credibility" of the quotation because Super Smash Repairs is under external administration and because the Appellant's daughter works there. 2. The Tribunal referred to s 63 of the RT Act which requires the landlord to provide and maintain residential premises in a reasonable state of repair and that the Respondent had conducted repairs to one of the roller doors. The roller doors were returned to full operation on 4 August 2022. The decision records that the Appellant submitted that the Respondent should have informed him that the repairs were completed and that the doors were operational again. 3. The Tribunal stated with respect to the quotation from Super Smash Repairs that it contained reference to a number of repairs to various areas of the motor vehicle which were not areas related in any way to where the Appellant stated that his vehicle had been damaged. The Tribunal recorded that the Appellant could not provide an explanation for that "situation". The Tribunal agreed with the Respondent that there were "some real credibility issues with the quotation" which raised "doubts about the accuracy and reliability of such evidence". 4. The Tribunal found that the Appellant had not established any breach of s 63 of the RT Act in respect of the incident. The Tribunal found that there was no evidence to establish that on 5 August 2022 the doors were not operating as expected in a normal manner or that the relevant door malfunctioned. 5. The Tribunal found that it was the Appellant's responsibility to "focus, pay attention and drive his motor vehicle in a safe manner and in such a way that avoids obstacles". The Tribunal found "on the balance of probabilities in this situation that it was the tenant [ie. the Appellant] who was distracted by his neighbour, and in waving to them, not paying appropriate attention, and not looking in the direction that he was travelling, put his motor vehicle in the position where the roller door was closing, and the impact occurred". The Tribunal found that it was the Appellant who was responsible for the damage that occurred to his vehicle and the Tribunal was not satisfied that the Respondent had any responsibility in the matter. Notice of Appeal 1. The Appellant lodged a Notice of Appeal on 10 January 2023. The notice stated that the decision under appeal was received by him on 21 December 2022. The only ground of appeal identified in the notice was to this effect: "failed to follow judicial procedural fairness". The Appellant sought an order that the proceedings be transferred to the District Court. 2. On 15 February 2023 the Respondent filed a Reply to Appeal. In that document the Respondent contended: 1. That the Appellant was afforded procedural fairness. 2. The Tribunal reached its decision following "due and careful consideration of the evidence presented and the submissions made by the parties". Submissions 1. On 17 February 2023 the Appellant filed a document setting out particulars of the contention that he had not been afforded "judicial procedural fairness". The document may be summarised as follows: 1. The Tribunal accused the Appellant of submitting false evidence. 2. The Respondent accused the Appellant's daughter and the Appellant of trying to defraud them by deception with no evidence. 1. The balance of the document is not relevant to our consideration of the merits of the appeal. 2. On 22 February 2023, the Appellant lodged further material. This included a statutory declaration dated 10 October 2022 sworn by the Appellant. It included the statement that he wanted the Respondent to provide to the Tribunal the CCTV footage as to how the incident occurred. He also stated that he wanted the Respondent to provide evidence as to the date and the time the roller door was fixed. 3. The further material included the Appellant's statement dated 7 September 2022. That statement included evidence that a St George manager (known as Stephanie) witnessed the incident and indicated immediately afterwards that St George would fix the damage. The statement said that subsequently another St George employee stated that the Appellant's claim should be directed to his insurer. 4. The material also attached a copy of the quotation from Super Smash Repairs. 5. Attached to the Appellant's material lodged in support of the appeal was a statement from the Respondent dated 28 October 2022 which contained the assertion that the Appellant was "not taking precautions when exiting the car park. He did not attempt to press the button that opens the door to exit as he was waving at a neighbour". The statement referred to the Appellant's contention that an employee of the Respondent agreed that the Respondent would fix the damage. That was denied. The statement also contended that Super Smash Repairs was under administration and that the Appellant's daughter was an employee of that business. 6. In addition, the material included an email from Amanda of the Respondent, dated 11 August 2022, in which she stated that the incident had been witnessed by a staff member of the Respondent who was on site at the time. Further, there was a statutory declaration dated 26 September 2022 sworn by Zach Gregory who stated that he witnessed the incident. The statutory declaration stated that the Appellant did "not stop at the point to press the exit button to let the doors up and just drove through". The declaration states that the garage door was closing as a tenant had just exited the car park. 7. The Respondent lodged material in opposition to the appeal. That material contended that the appeal has raised no question of law and that there was no basis for transferring the Appellant's application to the District Court (as the Appellant requested in the Notice of Appeal). The Appeal Hearing 1. At the appeal hearing, the Appellant contended that the hearing at first instance was not conducted in a way that was fair or in a way that a "judge would behave". We were not provided with any particulars of this contention and we were not provided with a transcript of the first instance hearing. We note that on 8 February 2023 the Tribunal made directions with respect to the preparation of the appeal. Those directions included the requirement that if "what happened at the hearing, at first instance, is being relied upon by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing" should be lodged and served on the Respondent. 2. The Appellant also contended that regard should have been made to the CCTV footage. We note that neither party provided that footage either at first instance or in this appeal, nor has the Appellant made an application for the Tribunal to issue a summons requiring the Respondent to provide such footage. 3. The Appellant further contended that, at a directions hearing prior to the first instance hearing, he was informed by a Tribunal member that he only needed to provide one quotation. No supporting evidence has been provided by the Appellant. We note that the directions made by the Tribunal on 4 October 2022 required the Appellant to provide copies of all documents to be relied upon. The directions contained a description of what is meant by "document" and it includes "expert reports", "photographs", and "quotations". There is no record of the Tribunal informing the Appellant that he could rely on a single quotation. 4. The Appellant acknowledged that, at the date of the incident, the roller door was working as it normally would, but said that he did not know if the work on the other roller door had then been completed. He described the circumstances as an "accident waiting to happen". Consideration 1. Appeals from decisions made in the Consumer & Commercial Division of the Tribunal are regulated by s 80 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and by cl 12 sch 4 to the NCAT Act. Essentially, that means that an appeal lies as of right on a question of law and with leave on the grounds set out in cl 12, which provides as follows: 12 LIMITATIONS ON INTERNAL APPEALS AGAINST DIVISION DECISIONS (1) 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). Note: Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if-- (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. The Appellant's contention that he suffered procedural unfairness in the way the hearing was conducted raises a question of law and leave is not required with respect to that ground. 2. However, there is no evidence that the Appellant suffered procedural unfairness in the way the hearing was conducted or otherwise. Indeed, the decision records the evidence and submissions of both parties which would reflect (in the absence of contrary evidence) that the hearing was conducted in conformity with the requirements of procedural fairness. This ground is rejected. 3. To the extent that the Appellant's complaint about procedural fairness was in fact intended to constitute objections to the way in which the Tribunal considered the evidence or made findings of fact, we set out in the following paragraphs our consideration of such objections. 4. It is relevant to state that, generally in proceedings of this kind, the applicant (in this case, the Appellant) who is seeking to obtain orders from the Tribunal must produce sufficient evidence to support the case being made so that the Tribunal can be satisfied on the basis of evidence that, on the balance of probabilities, the Applicant should have the orders being sought. In other words, the applicant has the onus of proving the case. 5. In this case, the Appellant needed to establish that the Respondent breached a legal obligation owed to the Appellant and that, because of the breach of such obligation, the Appellant suffered loss. The Appellant was required to provide evidence of the amount of the loss, such as a quotation providing an estimate of the cost of fixing the damage that was reasonably assessed to have been caused by the Respondent's breach of its legal obligation. 6. Here, the Tribunal found that the Appellant did not prove that the Respondent had breached any legal obligation owed to the Appellant. The roller door was working, but it appears that the Appellant thought that it was not working and that his belief may have been occasioned by the fact that it had been left open for some weeks earlier for the purposes of enabling entry and exit during the period when the other roller door was being fixed. 7. The Tribunal found that the incident occurred because of the inattention of the Appellant, rather than because of any breach of obligation owed by the Respondent to the Appellant. In our view that finding was open to the Tribunal on the basis of the evidence. No error of law has been identified in the way the Tribunal went about its reasoning. Nor does the Tribunal's decision demonstrate an injustice which might be the basis for granting leave to appeal under cl 12. 8. Even if the Appellant had been able to establish a breach by the Respondent of its legal obligations to the Appellant, the Appellant would not have obtained an order for compensation because of shortcomings in the evidence as to the amount of the loss. In particular, the Tribunal identified shortcomings in the quotation from Super Smash Repairs. 9. The first shortcoming was that the quotation was provided by a company that employed the Appellant's daughter. That raised the question of whether the quotation was provided by a supplier who was independent of the Appellant. The relationship between the Appellant and the repairer constituted by the fact that the Appellant's daughter was employed by the repairer meant that the Tribunal was entitled to question the reliability of the quotation because of that lack of independence. 10. The second concern of the Tribunal was that the quotation contained items that were not clearly related to where the motor vehicle was damaged. The Tribunal gave the Appellant an opportunity to explain how those areas requiring repair related to the incident, but the Appellant was not able to provide any explanation, nor was any explanation offered to us during the hearing of the appeal. The quotation itself did not explain the relationship between some items and the collision to the roof of the vehicle. It is clear from the Tribunal's reasoning that this issue of unexplained areas in the quotation also led to the Tribunal doubting the quotation's reliability. On its own this would have been sufficient justification for the Tribunal's conclusion that the quotation did not establish the extent of any loss arising from the alleged breach. 11. In short, the Tribunal came to the conclusion that the Appellant had not provided sufficiently reliable evidence to satisfy the onus on him to prove his case. He had to satisfy the Tribunal, on the balance of probabilities, that the damage claimed was reasonable and related entirely to the incident which occurred when the roller door came down on the roof of the vehicle. The Tribunal found that he had failed to do so. In our view there was no error in the Tribunal's reasoning or in the findings made by the Tribunal which were open to be made having regard to the evidence. 12. We refer to the Appellants ground concerning fraud or deception. There was no finding by the Tribunal that the Appellant had provided fraudulent evidence or that there had been an attempt by the Appellant to defraud or deceive the Respondent. Rather, the Tribunal found that the evidence was insufficient to discharge the Appellant's onus of proof. As stated above, in our view the findings of fact made by the Tribunal with respect to the quotation were open on the evidence and no error of law has occurred. Nor is there any basis for granting leave to appeal. 13. The Appellant has sought an order transferring the application to the District Court. This is refused because we have no authority to do so. 14. For the above reasons, we order we make the following order: 1. Appeal dismissed. 1. As an addendum we note that it is possible that the appeal may have been lodged out of time. Since the Respondent has not made any submissions in that respect it is not a matter which we have considered. ************ 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: 24 March 2023