Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McCartney v Wood [2023] NSWCATAP 131 Hearing dates: 27 February 2023 Date of orders: 15 May 2023 Decision date: 15 May 2023 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member J S Currie, Senior Member Decision: (1) The application of the appellants to amend the notice of appeal is dismissed. (2) The appeal is dismissed so far as grounds 4 to 7 in the notice of appeal raise a question of law and otherwise leave to appeal is refused in respect of these grounds. (3) The appeal is otherwise allowed. (4) Order 1 made by the Tribunal on 14 December 2022 in proceedings RT 22/32769 is set aside. (5) The issues of whether the appellants are entitled to compensation for damage to the motor vehicle of the second named appellant, and if so what compensation, are remitted to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the existing evidence and such further evidence as the Tribunal may allow. Catchwords: APPEALS — Point not taken below — Conduct of trial LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord's duty – whether the duty extends to part of the premises which is common property - whether the tenants are entitled to compensation for damage to the motor vehicle in the garage of the premises and if so what compensation Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 62, 80, 81, 83, Sch 4, cl 12, Sch 6, cl 11 Civil and Administrative Tribunal Rules 2014 (NSW), r 25 Residential Tenancies Act 1987 (NSW), ss 22, 25 (repealed) Residential Tenancies Act 2010 (NSW), ss 19, 21, 50, 52, 62, 63, 65 Strata Schemes Management Act 2015 (NSW), ss 106, 226, 232 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Dimunova v Vega [2017] NSWCATAP 5 Fraser v Sperling [2017] VSCA 53 Funfood Pty Ltd v Centura Global Holdings Pty Ltd [2022] NSWCATAP 189 Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 Hill v Green [2022] NSWCATAP 256 Kolodziej v Ali & Anor (Appeal) [2021] ACAT 123 Lee v Fuzessery (Tenancy) [2010] NSWCTTT 205 Meacham v Commissioner of Police [2020] NSWCATAP 107 McSteen v Architects Registration Board of Victoria [2018] VSCA 96 Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Pursell v Eversham Close Ply Ltd [2020] NSWDC 372 Reiss & Anor v Helson & 2 Ors [2001] NSWSC 486 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Sewell v Zvirblis [2022] NSWCATAP 337 Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Texts Cited: NCAT Policy 2, Publishing Reasons for Decisions Category: Principal judgment Parties: Sophie McCartney and Christopher Lever (Appellants) Mark Wood (Respondent) Representation: Illawarra and South Coast Tenants Advice and Advocacy Service (Appellants) Respondent (self-represented) File Number(s): 2022/00388191 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 14 December 2022 Before: D Barnetson, General Member File Number(s): RT 22/32769 REASONS FOR DECISION Overview 1. This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 14 December 2022 in proceedings between Sophie McCartney and Christopher Lever (Mr Lever), who are the tenants, and Mark Wood, who is the landlord, of premises at Wollongong in New South Wales (the premises). The proceedings which are the subject of this appeal were commenced by the tenants, who sought relief under the Residential Tenancies Act 2010 (NSW) (RT Act). The Tribunal relevantly dismissed their claims for compensation for damage to Mr Lever's motor vehicle and for their distress arising of out their loss of enjoyment of the premises. 2. We have decided that the appeal should be allowed on the issues of whether the tenants are entitled to compensation for damage to Mr Lever's motor vehicle, and if so what compensation, and these issues should be remitted to the Consumer and Commercial Division of the Tribunal for consideration, and on the other issues the appeal should be dismissed and leave to appeal should be refused. The factual background 1. The landlord is the owner of a lot in a multi storey residential building comprising lots and common property held under the Strata Schemes Management Act 2015 (NSW) (SSM Act). The basement level contains garages. 2. The landlord's lot within the relevant strata plan, including the garage, constituted the premises which were the subject of the parties' dispute. 3. On or about 20 December 2021, the landlord and the tenants entered into a residential tenancy agreement of the premises for a term of 56 weeks commencing on 20 December 2021 under which the rent was $520.00 per week (the tenancy agreement). The premises are relevantly stated as including "1 x garage". The tenancy agreement includes cl 74 which provides: "Landlord gives no undertaking as to the security and/or waterproofing of any garage and accepts no liability for damage to such garage or anything stored therein." 1. The following disputes arose between the tenants and the landlord as to the condition of the premises: 1. from the commencement of the tenancy agreement the tenants experienced mould, leaking taps, broken fly screens, broken door handles, and a cockroach infestation in the premises together with a inoperative dishwasher; 2. in around March 2022, Mr Lever's motor vehicle which was located in the garage was damaged by leaking residue from the ceiling. The proceedings between the parties in the Tribunal 1. On 20 July 2022, the tenants as the applicants commenced proceedings against the landlord as the respondent by filing an application, which contained 1. the following details under the heading "Order/s Sought": "Section 187(1)(d) - An order as to compensation $1500 Section 44(1)(b) - An order that the rent payable is excessive due to the reduction or withdrawal of any goods, services or facilities provided with the residential premises Section 45 - An order reducing the rent payable where the premises are unusable or uninhabitable or destroyed Section 46 - An order for the repayment of rent paid in excess of an amount specified by the Tribunal Section 65(1)(a) - An order that the landlord carry out repairs" 1. the following details under the heading "Reasons for the Order/s": "Section 187(1)(d) We are seeking compensation for a breach of Section 50(2) of the Residential Tenancies Act 2010. From the start of our tenancy up until now, Chris and I have not enjoyed peace or comfort due to all the issues we have continually experienced. … Section 65(1)(a) We are seeking the landlord to accept a quotation to carry out the repair of Christopher's vehicle from damaged caused by the leaking garage." 1. On 19 September 2022, the Tribunal made procedural directions (the 19 September 2022 orders) which relevantly provided: "2. The applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant intends to rely at the hearing by 03-Oct-2022. The documents are to include a written submission on the orders sought and the legal basis for those orders, including reference to relevant legislative provisions, contractual terms and case law." 1. On 14 December 2022, the Tribunal made orders which were stated to have been made on 12 December 2022 (the 14 December 2022 orders) and published reasons for its decision (the Tribunal Decision). The orders were in the following terms: "1. The landlord, MARK WOOD, [address omitted], is to pay the tenant, SOPHIE MCCARTNEY and CHRISTOPHER LEVER, [address omitted], the sum of $1,335.00 on or before 10-Jan-2023. Failure to pay any instalment in this order by the due date will result in the whole of the balance being payable immediately. 2. The Tribunal orders that the respondent(s): [address omitted] is to cause the undertaking of the following work in a proper and workmanlike manner on or before 20-Jan- 2023. Details of Work order: Undertake the necessary inspection and remedial work on any mould at the property no later than 10 January 2022. 3. It is ordered that the rent shall not exceed the sum of $494.00 per week as from 02-Feb-2022 to 01-Feb-2023." The Tribunal Decision 1. In the Tribunal Decision, the Tribunal relevantly provided the following reasons: "… Loss of use of the garage provided with the premises. There is no dispute that the underground garage at the property has a crack which leaked during the extremely heavy rain earlier in 2022. As a result of this, the tenants' car, which was parked in the garage was damaged by "efflorescence" from this leak. Photos show the damage. The tenants claim a rent reduction on the basis that the garage was not able to be used for a period of time because of this issue. They claim an amount of 15% of the weekly rent for 39 weeks, a total of $3042.00. The evidence indicates that they brought the issue to the attention of the landlord in February 2022 when it first occurred. The landlord asked them not to use the garage on 24 March 2022. They then bought tarps and straps to protect the car on 26 March 2022 as there was no suitable alternative parking. There is also no dispute that the garage ceiling is common property and the Owners Corporation is responsible for the repair of it. This has not been done, though the leak is no longer occurring as the weather has improved. The Tribunal is satisfied that the tenants have lost the amenity of the garage for a period of time, because of the leak and risk of damage to their car. However, the Tribunal is not satisfied that this is due to a breach by the landlord, as the garage is the responsibility of the Owners Corporation. However, the tenants are entitled to an abatement of rent, under s45, as the premises have become partly uninhabitable. The Tribunal is of the view that the garage is fully usable while the weather is mild and partly usable when wet, as there is no evidence of a recurrence of the leak. Consequently the reduction in rent is set at 5% of the weekly rent for the period from February 2022 ongoing. Compensation for damage to car As noted above, the tenants' car was damaged by "efflorescence" from the garage leak. The tenants are claiming the cost of repairs as compensation from the landlord. Any claim for compensation arises from a breach by the other contracting party. However, as the Tribunal is satisfied that there is no breach by the landlord, there is no basis in law for a claim for compensation against him. This claim is not allowed. … Ventilation and mould issue: The tenants claim that the extractor fans in the two bathrooms were inadequate and that their replacement took time and they are still inadequate. They assert that this led to the mould issue at the property. The landlord conceded that the fans were and probably still are inadequate. The evidence from both parties shows that the exhaust fans are common property and it is the Owners Corporation which has replaced the original ones. He also concedes that the premises were affected by mould. The agent was notified of this on 17 January 2022. Steps were taken to remedy this by engaging "Pure Protect" mould and damp specialists to clean the premises. The ceilings were then repainted. The landlord also gave the tenants a dehumidifier to assist with the issue. This work was completed in seven weeks, by about 23 March 2022. The evidence from the landlord indicates that the rainfall in January and February 2022, when the mould developed, were exceptionally wet. The assessment from Pure Protect dated 6 March 2022 states that the visible mould existed in several areas and on goods. Issues identified were the kitchen exhaust not being vented externally and the lack of any air conditioning to assist in temperature/relative humidity control. The recommended remediation works were carried out by the landlord. There was no record of mould in the routine inspections of 10 May 2022 or 14 September 2022. The tenants have not provided any evidence that the mould issue remains and there is no evidence of the need for any further remediation work as asserted. The Tribunal is of the view that the cause of the mould was largely caused by the poor or lack of ventilation in the property. This is a breach by the landlord for which the tenants are entitled to compensation by way of a rent reduction for the relevant period, being 17 January 20022 to 23 March 2022, a period of 9 weeks and 2 days. The Tribunal is of the view that a reduction of 20% of the weekly rent for this period is reasonable. The amount of $935.92 is calculated as the total amount. The tenant has submitted photos which indicate that mould has developed on the lower wall and floor of a shower recess as at 11 November 2022. The Tribunal orders the landlord to undertake the necessary inspection and remedial work on any mould at the property no later than 10 January 2022. … General condition of the property at the start of the tenancy The tenants moved into the property on 20 December 2022 and notified the landlord of some issues, being vermin, the dryer, exhaust fans, damaged flyscreens, broken toilet and leaking taps, broken door handles and damaged garage door, on 7 January 2022. The documents from the landlord indicate that the following work was undertaken: Repair toilet and taps 18 January 2022; Repair flyscreen in sliding door and latches and replaced one mesh in on bedroom. The Tribunal is of the view that the breaches by the landlord (in relation to the toilet and taps and the door and mesh and latches, were repaired in a reasonable period of time and without any loss of amenity to the tenant. Consequently, the tenants are no entitled to compensation for these issues. No information regarding the treatment of vermin (which appears to be cockroaches). The evidence indicates that the problem eased after the prolonged heavy rain, a period of about 5 months. There is no evidence before the Tribunal that the cockroaches were anything other than a chronic issue resulting from the h weather conditions at the time and so are not the responsibility of the landlord. Consequently no compensation is due to the tenants in relation to these issues. The other issues have been addressed previously above. Non-economic loss The tenants claim an amount of $2000.00 for non-economic loss for loss of quiet enjoyment; they have been frustrated by the many elements of the rental agreement and have had to go out of their way many times to rectify issues personally. There is no more detailed legal submission on this issue and no indication as to how the amount claimed was calculated. The Tribunal is not satisfied that the tenants have established, on the balance of probabilities, that they have suffered such a loss and that compensation of warranted. …" The history of the appeal 1. On 18 November 2022, the tenants as the appellants commenced appeal proceedings 2022/00348362 against the landlord as the respondent by filing a notice of appeal (the notice of appeal). The notice of appeal relevantly: 1. contained the following details under the heading "5 GROUNDS FOR APPEAL: 1. under the subheading "A:ORDERS CHALLENGED ON APPEAL": "1) The landlord, MARK WOOD, [address omitted], is to pay the tenant, SOPHIE MCCARTNEY and CHRISTOPHER LEVER, APARTMENT [address omitted], the sum of $133500 on or before 10-Jan -2023." 1. under the subheading "B: GROUNDS OF APPEAL": "Decision 1: Rent Abatement for Loss of Garage Ground 1. Error of Fact - Error in finding the landlord partial uninhabitability was not due to a breach of the landlord The Tribunal erred in holding the reduction or withdrawal was not due to the landlord. The landlord breached their duty to repair the premises and provide the premises in a state fit for habitation. However, the Applicant concedes leave to appeal this decision should not be granted as Applicant would submit that the order should just be varied to an order under s 44(l)(b) rather than s 45. Decision 2: Compensation for damage to vehicle in garage Ground 1: Error of Law - Error in statutory application by holding the landlord under no obligation to repair all 'common property' The Tribunal erred at law by finding the landlord is not responsible for the state of repair of common property, even where it affects the residential premises. Ground 2: Error of Law - Failure to provide reasons as to why the Tribunal fund there was no breach by the landlord. The Tribunal erred at law by failing to provide reasons as to why the tribunal found the landlord had not failed in their duty to repair the residential premises or failing to provide the residential premises in a state fit for habitation. Ground 3: Error of Fact - In finding the landlord had not breached the residential tenancy agreement The Tribunal erred by making its ultimate finding that the landlord had not breached the agreement, as the landlord failed to comply with their obligation to repair and their failed to ensure the premises is fit for habitation. Decision 5: That the claim for Non-Economic Loss is not Established Ground 4: Error of Law - Failure to decide / Failure to provide reasons as to a breach of Clause 15 of the Residential Tenancy Agreement The Tribunal failed to decide the issue as to whether the landlord had breached the Tenant's rights under Clause 15 of the Agreement (the Tenants' right to Quiet Enjoyment). Ground 5. Error of Law - Taking into account Irrelevant Considerations The Tribunal erred in taking into account whether the Tenants had made 'detailed legal submissions' as a reason for making the determination not to allow a claim for breach of Quiet Enjoyment. Ground 6: Error of Law - Error in Statutory Application that difficulty in assessing damages allows the Tribunal to find no amount of damages is made out The Tribunal erred by allowing a difficulty in assessing damage to the Tenants' peace, comfort and privacy, to defeat the Tenants' claim. While the Tribunal is not permitted to assist the Tenants to the level of proving their case, the Tribunal has failed to provide sufficient allowance for the Tenants' lack of legal expertise, and should have taken into account standard measures for calculating non-economic loss (such as comparison to similar cases, of which the Member had access). Ground 7: Error of Fact - In finding the landlord had not breached Clause 15 of the Residential Tenancy Agreement and that no loss had arisen. The landlord had breached the Tenants' quiet enjoyment by unreasonably omitting to carry out repairs, failing to defend the Tenants' rights with strata and failing to properly repair the property. This failure resulted in discomfort, distress and frustration, including requiring the tenants to undertake cleaning in excess of what a reasonable property would require." 1. under the subheading "C ORDERS THE NCAT APPEAL PANEL SHOULD MAKE": "1) Leave to appeal is granted. 2) The appeal is allowed. 3) Order (1) of the decision under appeal is set aside and the following order is substituted for order (1): The landlord, MARK WOOD, [address omitted], is to pay the tenant, SOPHIE MCCARTNEY and CHRISTOPHER LEVER, [address omitted], the sum of $6,331.39 on or before a date to be determined by the Tribunal." 1. under the heading "6 LEAVE TO APPEAL" showed a cross in the box "Yes" adjacent to the question "Are you asking for leave?" and provided the following explanation together with detailed reasons under the headings "Decision not fair and equitable", "Decision of the Tribunal against the weight of evidence" and "Significant new evidence is now available that was not reasonably available at the time of the hearing": "The Appeal Panel should grant leave to appeal for the following reasons: Decision that the Landlord was not in breach of any obligations: - Issue of Principle: The Tribunal's finding effectively removes responsibility on the landlord for any part of the residential premises, if it can be considered part of 'common property', which is only mentioned in the Act in reference to locking devices. - Factual Error & Reasonably Clear Injustice: The Residential Premises included the garage, as explicitly stated in the contract. Only the Respondent can seek compensation for damages from the Owners Corporation under the Strata Management Act. Decision that the Non-economic loss claim was not made out: - Question of principle: It was contrary to the principles of the Tribunal to make a finding of fact on the basis detailed legal submissions were not provided by unrepresented litigants. - Unorthodox fact finding process: The Tribunal made findings of fact based upon failure to provide legal arguments. The Tribunal also considered the question of damages as a part of, or before, considering if a breach had occurred." 1. On 17 January 2023, the landlord filed his reply to appeal (the reply to appeal), in which he supported the 14 December 2022 orders. 2. On 10 February 2023, the tenants filed their Appeal Bundle in which they sought leave to amend the notice of appeal to appeal against order 2 of the 19 September 2022 orders by adding the following ground of appeal in section 6.B: "Ground 8- Failure to Properly Exercise Jurisdiction" The hearing of the appeal 1. On 27 February 2023, we heard the appeal. The tenants were represented by Jackson Cocks, a tenant advocate of the Illawarra and South Coast Tenants' Advice and Advocacy Service. The landlord represented himself. 2. At the commencement of the hearing, the tenants applied for leave to amend their notice of appeal to add ground 8. We reserved our decision on this application. 3. The tenants relied on the notice of appeal and their written submissions (the tenants' appeal submissions) and accompanying documents filed on 10 February 2023. The tenants also made oral submissions which in substance repeated parts of their written submissions. 4. The landlord relied on his written submissions (the landlord's appeal submissions) and accompanying documents filed on 24 February 2023. The landlord also made oral submissions which in substance repeated parts of his written submissions. 5. At the conclusion of the hearing, we reserved our decision. The scope and nature of internal appeals 1. Internal appeals against an internally appealable decision may be made in the case of an interlocutory decision with leave of the Appeal Panel, and in the case of any other kind of decision (including an ancillary decision) as of right on a question of law, or with the leave of the Appeal Panel, on any other grounds: s 80(1) and (2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. 3. In Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 (Thomas and Naaz AP) at [58]-[59] the Appeal Panel stated in respect of an appeal under s 80(2)(b) of the NCAT Act: "58 A Notice of Appeal is required to properly identify the questions of law which are the subject matter of the appeal. As the Court of Appeal stated in Ferella v Chief Commissioner of State Revenue (2014) 96 ATR 875; [2014] NSWCA 378 ("Ferella") at [22] in respect of an appeal from the Administrative Decisions Tribunal to the Appeal Panel (per White J, Barrett JA and Leeming JA agreeing): "As the notice of appeal to the Appeal Panel purported to bе ап appeal оп questions of law, it was necessary for the notice of appeal to identify precisely the particular question or questions of law. It was those questions, if there were any, that should have formed the subject matter of the appeal to the Appeal Panel unless leave were sought and obtained for a merits review (TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; 19 ATR 1067 at 1070; В & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481; Соlbу Corporation Pty Ltd v Commissioner of Taxation [2008] FCAFC 10; (2008) 165 FCR 133 at [13]; Osland v Secretary to the Department of Justice (No. 2) [2010] НСА 24; (2010) 241 CLR 320 at 333, [21]; Ное v Manningham City Council [2011] VSC 37 at [4]-[5]; Smalley v Secretary, Department of Health and Ageing [2011] FCA 302 at [10] ff)." 59 It is not enough to simply assert (as the appellant did), that the Tribunal erred in its construction and application of certain provisions of the PTA without also identifying how that purportedly occurred. Further, as Leeming JA stated in Ferella at [6], "it is not possible, merely by the device of asking whether the Tribunal erred in law in doing something or failing to do something, to circumvent the statutory limitation on the scope of the appeal". What is required is that a particular question of law be identified for determination on the appeal." 1. The principles identified in Thomas and Naaz AP at [58]-[59] were cited with approval by the New South Wakes Court of Appeal in Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 (Thomas and Naaz CA) at [26] (Leeming JA) (with Meagher JA at [1] and Griffiths AJA at [75] agreeing). 2. The same principles apply on an appeal from the Tribunal to the Supreme Court of New South Wakes under s 83(1) of the NCAT Act with leave on "a question of law": Thomas and Naaz CA at [32] (Leeming JA) (with Meagher JA at [1] and Griffiths AJA at [75] agreeing); Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 (Hanave) at [45] (Chen J). 3. The approach of courts where there is an appeal on a question of law is not to read a notice of appeal narrowly, and to address questions of law that are identified in the notice of appeal as a whole and perhaps also from surrounding circumstances: Fraser v Sperling [2017] VSCA 53 (Fraser) at [56] (Maxwell P, Santamaria and McLeish JJA); McSteen v Architects Registration Board of Victoria [2018] VSCA 96 (McSteen) at [32]-[34] (Maxwell P, Priest and McLeish JJA). 4. In Thomas and Naaz CA the notice of appeal elaborated a large number of bases upon which, so it was said, the Appeal Panel had erred and fell short of squarely identifying a question of law. The Court of Appeal examined the key finding which was the subject of the appeal and found that that there was no error in the finding and that no question of law arose from the finding: at [34]-[58] (Leeming JA) (with Meagher JA at [1] and Griffiths AJA at [75] agreeing). 5. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable (cl 12(1)(a)); or 2. the decision of the Tribunal under appeal was against the weight of evidence (cl 12(1)(b)); 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) (cl 12(1)(c)). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act 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." (emphasis in original) 1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated 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" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act 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. 1. The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. 2. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. 3. In Collins, the Appeal Panel at [84] summarised the general principles which govern the granting of leave to appeal: "[84] The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there." 1. An interlocutory decision a decision made by the Tribunal under legislation concerning any interlocutory issue before the Tribunal: para (i) of the definition of "interlocutory decision" in s 4(1) of the NCAT Act. 2. The principles in Collins at [84] apply to the granting of leave to appeal against an interlocutory decision under s 80(2)(a) of the NCAT Act as well as any other kind of decision under s 80(2)(b) of the NCAT Act: Funfood Pty Ltd v Centura Global Holdings Pty Ltd [2022] NSWCATAP 189 at [69]. 3. The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of orders that the appeal is to be allowed or dismissed, the decision under appeal is to be quashed or set aside, and the whole or any part of the case is to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel: s 81(1)(a), (c) and (e) of the NCAT Act. 4. Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that in the case of an appeal from a decision of the Tribunal in proceedings under the RT Act an internal appeal must be lodged within 14 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision. The issues 1. We are satisfied that the appeal was commenced within the time of 14 days prescribed under r 25(4)(b) of the NCAT Rules. 2. The following issues arise for consideration and determination in this appeal: 1. whether grounds 4 to 7 in the notice of appeal can be raised in this appeal; 2. whether the notice of appeal raises any questions of law; 3. whether the Tribunal made an error of law or other error in its decision that the tenants were not entitled to compensation for damage to Mr Lever's motor vehicle; 4. whether the Tribunal made an error of law or other error in its decision that the tenants were not entitled to compensation for their loss of enjoyment of the premises; 5. whether the tenants should be granted leave to amend the notice of appeal to appeal against order 2 of the 19 September 2022 orders, and if so whether leave to appeal should be granted against that order, and if so whether the appeal against that order should be allowed. Whether grounds 4 to 7 in the notice of appeal can be raised in this appeal Introduction 1. Grounds 4 to 7 in the notice of appeal relate to the claims of the tenants for non-economic loss. 2. The tenants in the tenants' appeal submissions relevantly made the following submissions as to the amount of compensation to which they are entitled for their loss of enjoyment of the premises: "83. … If the Panel elects to deal with the matter by way of rehearing, it is submitted that the appropriate amount of damages should be calculated as follows: a. Non-economic loss for loss of parking: $500.00 b. Non-economic loss for continuing mould issues: $1,250.00 (see Ko v Perossa (Tenancy) [2008] NSWCTTT 1457) c. Non-economic loss for vermin issues: $750.00 (Achar v Goodman [2012] NSWCTTT 227) d. 20% reduction of the total amount to the claimed amount of $2,000.00" 1. Before considering this issue, it is appropriate to set out the relevant submissions of the tenants before the Tribunal. The relevant submissions of the tenants before the Tribunal 1. In their submissions dated 3 October 2022 the tenants made the following submissions in respect of their claim for non-economic loss: "Breach of quiet enjoyment of the lease From the commencement of the tenancy Chris and I have not enjoyed the peace or comfort due to all of the issues we have continually experienced. We have experienced the following issue; 1. Mould and suspected illness 2. leaking taps 3. Broken Flyscreen 4. Cockroach infestation As outlined in out tenancy agreement, chris and I have been frustrated by many elements of our rental agreement and have had to go out of the way many times to rectify issues personally Amount seeking: $2,000" Consideration 1. In Coulton v Holcombe (1986) 162 CLR 1 at 8; [1986] HCA 33 (Coulton) the plurality of the High Court of Australia (Gibbs CJ, Wilson, Brennan and Dawson JJ) noted the following principle: "… in a recent decision of six Justices of this Court (University of Wollongong v. Metwally [No. 2]) the Court said: "it is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."" (citation omitted) 1. The principle in Coulton has been applied by the Appeal Panel on many occasions: see, for example, Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 at [21]. 2. As can be seen from their submissions dated 3 October 2022 before the Tribunal the tenants did not raise any claim for non-economic loss "for loss of parking" and for non-economic loss "for continuing mould issues". As at 3 October 2022 there was no claim being pursued by the tenants in respect of ongoing mould in the premises. The Tribunal Decision referred to the tenants' evidence of mould as at 11 November 2022, and the making of a work order as to the inspection of the premises and remedial work on any mould. 3. Having regard to the principle in Coulton, we are satisfied that the tenants should not be permitted to raise these claims in this appeal. 4. The remaining claim for non-economic loss "for vermin issues" is predicated on the landlord having breached the tenancy agreement by reason of the presence of vermin in the premises. In circumstances where the Tribunal found that the landlord had not committed any such breach and the tenants have not appealed against this part of the Tribunal Decision, the tenants cannot challenge the Tribunal's rejection of this claim. 5. It follows that the tenants cannot raise grounds 4 to 7 in the notice of appeal in this appeal, and the appeal should be dismissed so far as these grounds raise a question of law and otherwise leave to appeal should be refused in respect of these grounds. Whether the notice of appeal raises any questions of law 1. Contrary to the requirements in Thomas and Naaz AP at [58]-[59] and Thomas and Naaz CA at [26] the grounds of appeal in the notice of appeal do not identify the questions of law raised. 2. We have considered whether the second ground 1 and ground 2 in the notice of appeal raise a question of law having regard to the principles in Fraser at [56] and McSteen at [32]-[34], and the approach of the Court of Appeal in Thomas and Naaz CA. 3. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (Azzopardi) Glass JA said at 156-157 (with Samuels JA at 157 agreeing): "A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; 57 WN 53 at 55… … Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer-General (at 138; 55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found." 1. Having regard to the principles in Azzopardi at 156-157, we are satisfied that the second grounds of appeal 1 in the notice of appeal raises, and the tenants can appeal as of right in respect of, the question of law of whether the failure of a landlord to repair part of the residential premises under a residential tenancy agreement governed by the RT Act which constitutes common property of a strata scheme under the SSM Act can a constituted a breach of the term of the residential tenancy agreement corresponding to s 63(1) of the RT Act. 2. In New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr) two members of the New South Wales Court of Appeal raised but did not decide the question of whether there is any duty, whether statutory or otherwise, for the Tribunal to give reasons for a decision in the absence of a request from a party under s 62(2) of the NCAT Act: Bell P at [54], Ward JA at [110-[114]. Bell P at [55] observed that it is not unreasonable to suppose that s 62(3) of the NCAT Act supplies important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request for reasons pursuant to s 62(2) of the NCAT Act, and that the balance of his reasons proceeded on that basis. 3. Even though there is no other express statutory duty to give reasons set out in the NCAT Act (other than pursuant to cl 11 of Sch 6 which related to decisions of the Tribunal in the Guardianship Division), the Tribunal nonetheless endeavours, as a matter of good practice, to provide reasons for final or contested decisions: NCAT Policy 2, Publishing Reasons for Decisions, at [5]-[6]. 4. Since Orr, the Appeal Panel has proceeded on the basis that an appeal on the ground of the failure to provide adequate reasons where there was no request for reasons raises a question of law: Meacham v Commissioner of Police [2020] NSWCATAP 107 (Meacham). 5. Having regard to the approach in Meacham, we are satisfied that ground 2 in the notice of appeal raises a question of law. Whether the Tribunal made an error of law or other error in its decision that the tenants were not entitled to compensation for damage to Mr Lever's motor vehicle Introduction 1. This issue involves consideration of the second ground 1 and grounds 2 and 3 in the notice of appeal. 2. Before considering this issue, it is appropriate to set out the applicable statutory provisions and summarise the submissions of the parties. The applicable statutory provisions RT Act 1. Part 2 Division 2 (ss 19-22) contains provisions relating to the terms of residential tenancy agreements. Section 19 deals with prohibited terms, and relevantly provides: 19 Prohibited terms (1) A residential tenancy agreement must not contain a term of a kind set out in this section or prescribed by the regulations for the purposes of this section. (2) Terms having the following effects must not be included in a residential tenancy agreement— … (c) exempting the landlord from liability for any act or omission by the landlord, the landlord's agent or any person acting on behalf of the landlord or landlord's agent, … 1. Section 21 deals with the effect of inconsistent and prohibited terms, and relevantly provides: 21 Inconsistent and prohibited terms void (1) A term of a residential tenancy agreement is void to the extent to which it— … (b) is prohibited by this Act or the regulations. … 1. Part 3 Division 3 (ss 49-54A) contains provisions relating to the occupation and use of residential premises. Section 50 deals with the right of the tenant to quiet enjoyment of the premises, and relevantly provides: 50 Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. … (4) This section is a term of every residential tenancy agreement. 1. Section 52 deals with the landlord's general obligations for residential premises, and relevantly provides: 52 Landlord's general obligations for residential premises (1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. … (4) This section is a term of every residential tenancy agreement. 1. Part 3 Division 5 (ss 62-65) contains provisions relating to repairs to residential premises. Section 62 contains definitions, and relevantly provides: 62 Definitions In this Division— residential premises includes everything provided with the premises (whether under the residential tenancy agreement or not) for use by the tenant. … 1. Section 63 deals with the general obligation of the landlord for repairs to residential premises, and relevantly provides: Landlord's general obligation (1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. … (4) This section is a term of every residential tenancy agreement. 1. Section 65 deals with remedies for repairs to residential premises available to tenants in the Tribunal, and relevantly provides: 65 Tenants' remedies for repairs—Tribunal orders … (2) Orders for repairs The Tribunal may make an order that the landlord carry out specified repairs only if it determines that the landlord has breached the obligation under this Act to maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. (3) In deciding whether to make an order under this section, the Tribunal— … (b) may take into consideration whether the landlord failed to act with reasonable diligence to have the repair carried out. (3A) The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair. … SSM Act 1. Part 6 Division 1 (ss 106-108) contains provisions dealing with the management of common property. Section 106 deals with the duty of an owners corporation to maintain and repair property, and relevantly provides: 106 Duty of owners corporation to maintain and repair property (1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation. … (5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation. (6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss. … 1. Part 12 Division 3 (ss 226-228) contains provisions dealing with the procedures for the making of applications to the Tribunal. Section 226 specifies the category of "interested persons", and relevantly provides: 226 Interested persons (1) The following persons are interested persons for the purpose of making an application to the Tribunal under this Act— … (d) an owner of a lot in the scheme, a person having an estate or interest in a lot or an occupier of a lot, … 1. Part 12 Division 4 (ss 229-238) contains provisions dealing with the orders that may be made by the Tribunal. Section 232 deals with orders that may be made to settle disputes or rectify complaints, and relevantly provides: 232 Orders to settle disputes or rectify complaints (1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following— (a) the operation, administration or management of a strata scheme under this Act, … The submissions of the parties The submissions of the tenants 1. In the tenants' appeal submissions, the tenants made the following submissions: 1. the landlord was in breach of the terms of the tenancy agreement corresponding to ss 50(1), 52(1) and 63(1) of the RT Act; 2. the Tribunal found that the garage was a part of the premises; 3. they referred to the following cases supporting the existence of a duty of the landlord to repair common property that is part of residential premises, or to personally pursue the owners corporation to protect the tenant's peace, comfort or privacy: 1. Lee v Fuzessery (Tenancy) [2010] NSWCTTT 205 (Lee); 2. Reiss & Anor v Helson & 2 Ors [2001] NSWSC 486 (Reiss); 3. Dimunova v Vega [2017] NSWCATAP 5 (Dimunova); 4. Pursell v Eversham Close Ply Ltd [2020] NSWDC 372 (Pursell); 5. Kolodziej v Ali & Anor (Appeal) [2021] ACAT 123 (Kolodziej); 6. Sewell v Zvirblis [2022] NSWCATAP 337 (Sewell); 1. the landlord is under an obligation to maintain the garage which includes its ceiling. This duty is mandatory, and is not abrogated by the landlord's lack of control. The Tribunal therefor erred in allowing the owners corporation's concurrent duty to repair the ceiling of the garage to interfere with the tenants' claim against the landlord for failing to repair the garage; 2. clause 74 of the tenancy agreement is void pursuant to ss 19(2)(c) and 21 of the RT Act; 3. Hill v Green [2022] NSWCATAP 256 (Hill) supports the tenants' position that the Tribunal erred in finding, or appearing to find, that they were required to make an application under the SSM Act against the owners corporation which would be subject to time limits that would likely be exceeded by any potential litigation before making an application under the RT Act against the landlord. The submissions of the landlord 1. In the landlord's appeal submissions, the landlord made the following submissions: 1. the Tribunal ruled correctly; 2. the tenants had standing to make, and should have made, an application against the owners corporation in the Tribunal about its failure to repair the ceiling of the garage, and referred to Hill. The second ground 1 in the notice of appeal The relevant authorities 1. In Lee, the predecessor of the Tribunal relevantly made the following finding in relation to residential premises governed by the Residential Tenancies Act 1987 (NSW) (the repealed RT Act): "It is the responsibility of the landlord to provide the tenant with properly habitable premises. By 1 April 2009, when the second water entry occurred, it was clearly becoming apparent that this was not the case, however the landlord relied only on tardy inspections and repairs arranged by the strata managing agent. As the strata managing agent was, even by that time, clearly not acting diligently, the landlord had a duty to take steps to compel those repairs, by for instance an application for adjudication under the Strata Schemes Management Act 1996, ordering those repairs." 1. In Reiss, Harrison M considered the breach of ss 22 and 25 of the repealed RT Act (which are the predecessors of ss 50 and 63 of the RT Act) in circumstances where the defect was in the common property of a strata scheme and relevantly said at [17], [34]-[35], and [40]: "[17] There is an obvious tension between the lot owner's/landlord's obligations to provide quiet enjoyment of the unit to the tenant and to on the one hand maintain the residential premises in a reasonable state of repair and on the other the owners corporation's obligation to maintain the common property. …" "[34] The tribunal member, at 10.27, stated "it is common to the evidence that that the flooring is common property. However the duty of a landlord to repair is not avoided by a defence based on the owners corporation doing nothing". The tribunal member noted that his decision was in accordance with Blackmore, Jewell and Scazmi, in that there was failure by the landlord to take reasonable steps to ensure that the owners corporation remedy the defect and that this failure to act disentitles the landlord to state the breach of s 22 is caused by defective common property. [35] The Residential Tenancy Act at s 22 provides that the tenant has a right to quiet enjoyment of the premises without interference by the landlord and that the landlord, by act or omission, shall not interfere or cause or permit any inference with the reasonable peace, comfort or privacy of the tenant (s 22(1)(b)). The Tribunal held that the plaintiffs had permitted the noise and vibration caused by inadequate floor joists to interfere with the tenants (sic) peace, comfort and privacy. Hence the landlords were in breach of s 22. The Tribunal made a finding in accordance with the natural meaning of the wording of s 22(1)(b). It is my view that the Tribunal member did not err in law in deciding that the plaintiffs were in breach of s 22(1)(b) of the Residential Tenancies Act. [36] At para 10.29 the Tribunal made his decision in relation to s 25. He stated that: "Clearly, there is the factual link. It is common evidence that the floor joists are inadequate. It is common to the evidence that such vibrations and noise would be caused. The landlords knew about this in 1997 and wrote to the owners corporation. No further action was taken. It was clearly within the contemplation of the landlord that a tenant can experience noise and vibration from residing in that strata unit. The loss of enjoyment of that unit and the complaints made by the tenants flow from inadequate flooring. The casual connection is very clear. There is no question of remoteness of damage; the landlords knew about the problem. It is clearly within the contemplation that the person who suffers from the floor being inadequate will also suffer a reduced use of the premises. The tenants would not have suffered but for the flooring being inadequate. The landlords sought no orders against the owners corporation between 1997 and 2000 to get repair. The landlords, as such, failed to provide the premises in a reasonable state of repair contrary to section 25(1)(b) of the Act." [37] By finding that there was a factual link, the Tribunal member is saying that the noise suffered by the tenants was caused by the inadequate floor joists and inadequate flooring. [38] The Tribunal member at paragraphs 9.1 to 9.10 gave his reasons in relation to s 25. He referred to Day v Hartland & Wolff Ltd (1953) 2 All ER 387 at 388 where Pearson LJ referred to the obligation of a landlord to carry out repair work in anticipation of likely defects rather than waiting for them to occur. No particular kind of repair is excluded - see London Transport Executive v Betts [1959] AC 213 at 232-233. The Tribunal member pointed out that the obligation to repair does not involve an obligation to renew or improve the premises although replacement of the structure from time to time may be necessary depending on the facts of the case and it appears to be a question of degree whether the amount of work required can properly be described as repair - see Graham v Market Hotel Ltd (1936) 67 CLR 567 at 579. The Tribunal member adopted the reasoning in Jewell that the landlords are responsible for the maintenance and repair of defective common property if they fail to take reasonable steps to ensure the owners corporation rectify the problem. [39] In view of the foregoing authorities, does carrying out work such as installing steel or timber beams into the floor structure at mid span fall within the landlords duty to provide and maintain the premises in a reasonable state of repair? It appears that the Tribunal member did not make a finding in this regard. The Tribunal member held that the landlords had breached s 25(1(b) of the Act as they had failed to maintain the premises in a reasonable state of repair. His reasons relied in part on the fact that the landlords sought no orders against the owners corporation between 1997 and 2000 to get repairs. The Tribunal member cited a passage from Gummow J (referred to earlier in this judgment) and held that the landlord failed to carry out the necessary works with reasonable expedition. [40] However, as the landlords were in breach of s 22, it is unnecessary for me to finally determine whether the Tribunal member's decision the landlords were in breach of s 25 was correct. I have some doubts that the foreshadowed work falls within the definition of "maintaining the premises within a reasonable state of repair"." 1. In Dimunova, the Appeal Panel allowed an appeal where there had been water inundation to the residential premises in a strata scheme and the Tribunal found that the water pipe which burst causing inundation was not attributable to any act or omission of the respondent landlord. The Appeal Panel at [31]-[33] found: "[31] However, in our view, it was necessary for the Tribunal to consider whether the respondent had breached the obligations set out in s 63 to provide and maintain the residential premises in a reasonable state of repair. The Tribunal found that the burst water pipe did not occur through any act or omission of the respondent and therefore there was no breach of the residential tenancy agreement. In our view that analysis discloses an error of law. In our view, the obligation set out in s 63 is mandatory (subject to s 65(3)), and is not conditional upon the landlord having it within the landlord's own power the ability to take steps to provide and maintain the residential premises. The fact that another unit owner or the strata committee of the body corporate must take steps to fix the burst pipe does not excuse the landlord of his or her obligations under s 63. The only qualification to these statements is that the duty set out in s 63 is, in our view, modified by s 65(3) which provides that the Tribunal must not determine that a landlord has breached the obligation (that is the obligation which, by virtue of s 65(2), refers back to s 63(1)), unless the Tribunal is satisfied of two matters. The first matter is that the landlord had notice of the need for repair or ought reasonably to have known of the need for repair. The second matter is that the landlord failed to act with reasonable diligence to have the repair carried out (s 63(3)(b)). [32] In the context of residential premises in a strata scheme, what constitutes a failure to act with reasonable diligence will involve a consideration of what steps the landlord is able to take to encourage or force the strata committee to take appropriate practical steps having regard to the fact that the common property is not property owned by the landlord and generally the other lot properties will not be owned by the landlord. This view is supported by the fact that the landlord's obligation to reimburse the tenant for urgent repairs excludes, by the way "urgent repairs" is defined, work needed to repair premises that are owned by a person other than the landlord (see s 62). [33] In our view, the Tribunal has asked itself the wrong question or taken into account an irrelevant question in coming to the conclusion it came to by finding that because the water inundation was not attributable to any act or omission of the respondent there was no breach. Rather, the Tribunal should have considered whether the landlord had breached his obligations under s 63. Accordingly, the Tribunal has, in our view, erred in law (see Holley v Evatt [2014] NSWCATAP 72)." 1. In Pursell, Hatzistergos DCJ considered the question of whether the landlord of the residential premises in a strata scheme had a duty under cl 18.3 of the residential tenancy agreement (being the term corresponding to s 63(1) of the RT Act to repair common property that was part of the premises, referred to Reiss at [36]-[40], and found at [180]-[181]: "[180] Although her Honour expressed some doubt as to whether s 25(1)(b) and clause 18.3 were breached this was on the basis of whether the foreshadowed repairs fell within the terms of "maintaining the premises within a reasonable state of repair." It is implicit that her Honour otherwise accepted that the terms of these provisions extended to oblige the landlord to be responsible for the maintenance and repair of defective common property [181] Whilst there may be room to doubt that common property is included in the obligation under clause 18.3, I am inclined to accept that it does, following the decision in Reiss v Helson. To hold otherwise would provide a narrow interpretation of residential premises that would enable the landlord to hide behind the Strata in circumstances where the landlord has to ensure that the residential premises meet the requirements of clause 18.1." (footnote omitted) 1. In Kolodziej, the ACT Civil and Administrative Tribunal considered the obligation of the landlord appellant of a lot in a strata scheme to the tenant respondent in a respect of a faulty intercom which was agreed to be part of the premises under the residential tenancy agreement which was governed by the Residential Tenancies Act 1997 (ACT). The Tribunal at [28] rejected the proposition that compliance with clause 58, which concerned repairs to the common property, excused the appellant from her obligation to maintain the unit in a reasonable state of repair under clause 55. Further, the Tribunal relevantly held at [34]: "[34] The difficulty with [the landlord appellant's] submission is that there was no dispute between the owners corporation and the respondent regarding repairs to the intercom. The respondent, appropriately, engaged only with the appellant's property manager who managed the tenancy between him and the appellant. I struggle with the idea that the respondent is somehow at fault by not entering into a dispute with the owners corporation or the strata manager who managed the owners corporation's responsibilities on its behalf. I accept that a tenant, faced with difficulties regarding their rented premises, should first take their difficulties to the lessor or, as in this case, the appellant's property manager as he did." 1. In Sewell, the Appeal Panel considered the question of whether a security gate on common property fell within the definition of "residential premises" in s 62 of the RT Act, and found at [31]-[32] and [39]-[40]: "[31] However, we do not agree that Dimunova is applicable. In Dimunova the premises themselves, or rather part thereof, required repair because of a burst water pipe on common property. The point in that case was whether the landlord's obligation to repair the rented premises was removed or diminished or altered by reason of the fact that the cause of the damage was on common property. In other words, there was no dispute that what needed repair included the rented premises. The water pipe also required repair to prevent future damage, but the question in the case was not whether the water pipe was part of the residential premises, but whether the obligation to repair the premises extended to taking or encouraging or forcing the strata committee to take appropriate steps to repair the water pipe, it being the cause of the damage. [32] In the present case the item requiring repair was itself on, and formed part of, the common property. This is quite different from Dimunova in that it was not part of the issues arising for decision in Dimunova whether common property (or part thereof) was provided with the premises for use by the tenant within the meaning of "residential premises" in s 62 of the RTA." "[46] We note that Parliament provided tenants with rights against body corporates in relation to the maintenance of common property. Parliament enacted the Strata Schemes Management Act 2015 (NSW) (the "SSMA") and its predecessors to govern the relationship between lot owners (including landlords) and body corporates. Under the SSMA body corporates have obligations toward lot owners for the maintenance of common property. But tenants also have rights against body corporates under the SSMA in relation to common property. [47] A person having an estate or interest in a lot (which would include a tenant under a residential tenancy agreement) or an occupier of a lot (which would also include a tenant) is an "interested person" as defined in s 226 of the SSMA. {48] An "interested person" is entitled to commence proceedings against the body corporate in the Tribunal under s 232 of the SSMA and ask the Tribunal to make an order to settle a complaint or dispute about a number of matters including the operation, administration or management of a strata scheme under the SSMA and the exercise of, or failure to exercise, a function conferred or imposed by or under SSMA, either of which would extend to a body corporate's statutory obligation under s 106 of the SSMA to properly maintain and keep in a state of good and serviceable repair the common property. [49] In all of those circumstances we consider that s 62 is confined to things expressly or tacitly provided, supplied or made available by a landlord "with the premises" and for the use of the tenant. An example might be a car space or storage locker which was not included in the residential tenancy agreement, or things like washing machines and dryers, either in the leased premises or perhaps provided for the exclusive use of the tenant by the landlord but located on common property (in a shared laundry room). Common property, in our view, does not fall within the definition of "residential premises" in s 62 of the RTA. [50] Our conclusion is fortified by the fact that, given the definition of "urgent repairs" in s 62 – which excludes work needed to repair premises that are owned by a person other than the landlord or a person having superior title (such as a head landlord) to the landlord - a landlord is not required under s 64 to reimburse a tenant for the reasonable costs of making urgent repairs to, amongst other things, common property. It would seem incongruous to exclude a landlord from liability for urgent repairs to common property and yet include such a liability for landlords in relation to non-urgent repairs in s 63." 1. In Hill, the tenant appellant appealed against the refusal of the Tribunal to award compensation against the landlord respondent for his breaches of the residential tenancy agreement which had resulted in water entering the premises. The Appeal Panel at [13] noted the relevant part of the decision of the Tribunal, and at [32] and [34] rejected the findings of the Tribunal: "[13] The Tribunal declined to award the tenant any compensation for the landlord's breaches additional to the reduction in rent. In relation to the claim for compensation the Tribunal said: … 169 In addition to nominating the landlord as an "interested person" s 226(1)(d) of the SSM Act also nominates that "a person having an estate or interest in a lot or an occupier of a lot" is an interested person. The applicant is an occupier of the premises. Through being a tenant under the tenancy agreement, she also has (and has had at all material times) an estate or interest in the premises that gave her standing to bring proceedings against the owners corporation in the Tribunal under s 232 of the SSM Act. However, as far as the evidence before the Tribunal discloses, the applicant has not at any stage pursued her complaints directly with the owners corporation or brought any such proceedings against the owners corporation either separately or In conjunction with the proceedings that she has brought against the landlord in order to resolve her complaints about the repairing of the common property around the premises to correct the water leaks. In my view, it would not be appropriate for the Tribunal to order that the landlord pay compensation to the applicant in circumstances where the applicant has not taken those steps to pursue the matter directly with the owners corporation." "[32] An injured person is not obliged to mitigate their loss by embarking on uncertain litigation as the Tribunal in this case implicitly held." "[34] It is tolerably clear that any proceedings the appellant brought against the body corporate would have been uncertain as to outcome, complicated (at least factually) and difficult (for a non-legally qualified and unrepresented person)." Consideration 1. We are satisfied that, on the proper construction of s 63(1) of the RT Act and the term corresponding to this subsection in the tenancy agreement and in the circumstances where the garage was part of the premises, the landlord had the duty to provide and maintain the garage in a reasonable state of repair. The decision in Reiss at [46] in relation to s 25 of the repealed RT Act, which concerned a floor covering which was clearly part of the residential premises, as explained in Pursell at [180], supports the existence of this duty. The decision in Kolodziej at [28] in relation to the cognate term under the Residential Tenancies Act 1997 (ACT), which concerned an intercom which was part of the residential premises, supports the existence of this duty. The dicta in Sewell at [49] also supports the existence of this duty. As held in Dimunova at [31], the obligation set out in s 63(1) of the RT Act is mandatory subject to s 65(3) and (3A) of the RT Act), and is not conditional upon the landlord having it within the landlord's own power the ability to take steps to provide and maintain the residential premises. 2. It is unnecessary in the circumstances of these proceedings to consider the differences in Dimunova, Pursell and Sewell as to the existence of this duty in relation to common property which is not provided as part of the residential premises. 3. As recognised by the decisions referred to in Reiss at [34], and Hill at [32] and [34], the availability to the tenant of residential premises of rights under ss 226(1)(d) and s 232(1)(a) of the SSM Act in respect of a failure of the owners corporation to maintain and repair the common property in performance of its statutory obligation under s 106(1) of that Act does not abrogate the duty of the landlord under s 63(1) of the RT Act and the term in the residential tenancy agreement corresponding to this subsection or provide any defence to proceedings by the tenant against the landlord for breach of this subsection and term. 4. The Tribunal proceeded on the basis that because the owners corporation had the obligation under s 106(1) of the SSM Act to properly maintain and keep in a state of good and serviceable repair the common property the landlord could not be in breach of s 63(1) of the RT Act, and in so finding made an error of law. 5. We do not accept the submission of the landlord that, because the tenants had standing under s 226(1) of the SSM Act to make an application to the Tribunal under s 232(1)(a) of that Act to settle a dispute or rectify a complaint with the owners corporation about its failure to comply with its obligation under s 106(1) of that Act to maintain and repair the ceiling of the garage, he did not have any duty to repair the ceiling under s 63(1) of the RT Act. Grounds 2 and 3 in the notice of appeal 1. As we have upheld the second ground 1 in the notice of appeal, it is unnecessary to consider ground 2 in the notice of appeal and whether leave to appeal should be granted in respect of ground 3 in the notice of appeal. Whether the Tribunal made an error of law or other error in its decision that the tenants were not entitled to compensation for their loss of enjoyment of the premises 1. As we have determined that grounds 4 to 7 in the notice of appeal cannot be raised in this appeal, this issue does not arise for determination. Whether the tenants should be granted leave to amend the notice of appeal to appeal against order 2 of the 19 September 2022 orders, and if so whether leave to appeal should be granted against that order, and if so the appeal against that order should be allowed 1. As we have upheld the second ground 1 in the notice of appeal, there is no utility in considering proposed ground 8, and accordingly we have decided to refuse leave to the tenants to amend the notice of appeal by adding this ground. The disposition of the appeal 1. In Dimunova at [34] the Appeal Panel said: "This conclusion above does not mean that the respondent has necessarily breached his obligations under s 63. Indeed, on the evidence to which we were taken, it was not obvious that the respondent was in breach. However, the Tribunal did not evaluate the evidence or make findings concerning the performance or breach of the landlord's obligations under s 63. The only appropriate course is to remit the proceedings back to the Division for rehearing." 1. The considerations in Dimunova at [34] are equally applicable in this appeal. It will be necessary for the Tribunal to make findings concerning the performance or breach by the landlord of his obligations under s 63(1) of the RT Act and the term of the tenancy agreement corresponding to this subsection, and whether the landlord can exclude any liability for any breach of this subsection and term pursuant to cl 74 of the tenancy agreement by reason of the operation of ss 19(1) and (2)(c) and 21(1)(b) of the RT Act, and if not what amount the tenants are entitled to as compensation for damage to Mr Lever's motor vehicle. 2. In view of our findings, we have decided to allow the appeal in part and remit the issues of whether the tenants are entitled to compensation for damage to Mr Lever's motor vehicle, and if so what compensation, to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the existing evidence and such further evidence as the Tribunal may allow. Orders 1. We make the following orders: 1. the application of the appellants to amend the notice of appeal is dismissed; 2. the appeal is dismissed so far as grounds 4 to 7 in the notice of appeal raise a question of law and otherwise leave to appeal is refused in respect of these grounds; 3. the appeal is otherwise allowed; 4. order 1 made by the Tribunal on 14 December 2022 in proceedings RT 22/32769 is set aside; 5. the issues of whether the appellants are entitled to compensation for damage to the motor vehicle of the second named appellant, and if so what compensation, are remitted to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the existing evidence and such further evidence as the Tribunal may allow. ********** 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: 15 May 2023