Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zhang v Pollasky [2023] NSWCATAP 154 Hearing dates: 29 May 2023 Date of orders: 08 June 2023 Decision date: 08 June 2023 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President G Blake AM SC, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is otherwise dismissed. Catchwords: APPEALS — Leave to appeal — Principles governing – leave to appeal refused LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) - Quiet enjoyment – Compensation for breach by the landlord Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 80, 81, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), r 25 Residential Tenancies Act 2010 (NSW), ss 98, 98A, 175, 187 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Xiaoying (Rose) Zhang (Appellant) Mark Lear Pollasky and Heidy Fatima Jameel (Respondents) Representation: Appellant (Self-represented) Respondents Self-represented) File Number(s): 2023/00112048 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 24 March 2022 Before: D Ash, General Member File Number(s): RT 22/43948; RT 22/44193 REASONS FOR DECISION Overview 1. This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 24 March 2023 in two proceedings between the appellant, Xiaoying (Rose) Zhang, who was the landlord, and the respondents, Mark Lear Pollasky and Heidy Fatima Jameel (Ms Jameel), who were the tenants, of premises at Darlinghurst in New South Wales (the premises), in which they sought relief against the other under the Residential Tenancies Act 2010 (NSW) (RT Act). The Tribunal directed Rental Bond Services to pay the landlord the sum of $11,612.71 from the rental bond and any balance of the bond to the tenants. 2. For the reasons that follow we have decided to refuse leave to appeal, and to otherwise dismiss the appeal. The factual background 1. On 8 September 2021, the landlord and the tenants entered into a residential tenancy agreement of the premises for a term of 12 months commencing on 15 October 2021 under which the rent was $3,000.00 per week and a rental bond of $12,000.00 was payable (the tenancy agreement). 2. On 9 September 2021, the tenants lodged with Rental Bond Services a rental bond of $12,000.00 which was allocated the number T092440-3. 3. Various disputes arose between the parties including the duration of building works in the building in which the premises are located. 4. On 14 September 2022, the tenants vacated the premises. The two proceedings between the parties in the Tribunal 1. On 3 October 2022, Ms Jameel as the applicant commenced proceedings RT 22/43948 against the landlord as the respondent by lodging an application in which she claimed an order for the payment of the rental bond under s 175 of the RT Act. 2. On 4 October 2022, the landlord as the applicant commenced proceedings RT 22/44193 against the tenants as the respondents by lodging an application in which she claimed orders for the payment of arrears of rent of $12,112.71, compensation of $5,896 for damage to the premises, and the rental bond pursuant to ss 187(1)(c) and (d) and 175 of the RT Act respectively. 3. On 1 November 2022, the Tribunal made procedural directions for the hearing of the two proceedings including giving Ms Jameel leave to amend her claim in proceedings RT 22/43948 to include a claim for compensation pursuant to s 187 of the RT Act, and directions for the filing of evidence in proceedings RT 22/44193 including: "… 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 15-November-2022. 3. The respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the respondent intends to rely at the hearing by 29-November-2022. IMPORTANT NOTE: For the purpose of these directions "document" means: - Witness statements - Residential tenancy agreement -Ingoing and outgoing condition reports - All notices of termination served by the landlord - Rent ledger - Expert reports - Photographs - Accounts or receipts - Quotations - Any other document to be relied upon And all documents must be legible and in colour (if the original is in colour)." 1. On 23 March 2023, the hearing took place. 2. On 24 March 2023, the Tribunal made orders which were stated to have been made on 23 March 2023 (the 24 March 2023 orders) and published reasons for its decision (the Tribunal Decision). The orders were in the following terms: "1. The Rental Bond Services is directed to pay the landlord, XIAOYING (ROSE) ZHANG, [address omitted] the sum of $11,612.71 from the Rental Bond number T092440-3. 2. The Rental Bond Services is directed to pay any balance of the bond to the tenants, MARK LEAR POLLASKY and HEIDI FATIMA JAMEEL, [address omitted]. NOTE: All rental bond payments are made by electronic transfer to a nominated bank account. If you have not already provided bank account details to NSW Fair Trading please contact 13 32 20 or email bondclaims©finance.nsw.gov.au 3. The landlord has permission to uplift from the files the exhibits comprising the copy documents handed up by her at hearing on 23 March 2023, by attending the registry and providing a copy of these orders. NOTE: For the avoidance of doubt, neither party has permission to uplift from the files any other documents lodged by them." The Tribunal Decision 1. In the Tribunal Decision, the Tribunal relevantly: 1. set out introductory matters about the two proceedings, the tenancy agreement, the hearing and its decision not to have regard to additional evidence forwarded by the landlord after the hearing had ended (at [1]-[6]); 2. held that the tenants were liable to the landlord for arrears of rent of $12,112.71 (at [7]-[11]); 3. dismissed the landlord's claim of $3,960 for the patching and painting of nine walls (at [12]-[18]) after consideration of the photographs of the landlord and the tenants. At [14]-[17], the Tribunal said: "14. … The result is that there are photos provided by both parties which provide some but not much assistance. 15. The tenants' photos, which were taken to address outgoing generally, show generally clean and presentable walls. The landlord's photos are close ups of some areas, less than nine, in which a patch and paint has occurred. The Tribunal is satisfied that on close up there are textual differences but not satisfied that there are colour differences. …. 16. The tenants provided a photo of incoming tending to indicate that the paint at that time was by no means new. … 17. Leaving to one side the question of whether the number of photos would justify a quote of this sum in any event, the Tribunal having viewed all the photos is not satisfied that the immediate differences referred to above having regard also to the general state of the walls would lead a reasonable person would say that the reasonable compensation for the loss is the quoted cost of re-patch and re-paint." 1. dismissed the landlord's claim of $550 for carpet steam cleaning and bathroom cleaning (at [19]-[28]) after taking into account the landlord's photograph with respect to the bathroom. At [26], the Tribunal said: "26. In any event, the landlord's caption to her photo of the toilet base is "Marble floor under the toilet, marks could not be removed". The landlord's claim is not founded on damage but on failure to clean and the" caption appears to indicate that the discolouring could not have been cleaned in any event. The Tribunal is not satisfied that this justifies the compensation sought by the landlord." 1. dismissed the landlord's claim of $396 for the replacement of two LED lights in respect of which it accepted the tenants' evidence that the lights were working on 14 September 2022 (at [29]-[31]); 2. dismissed the landlord's claim of $440 for the unblocking of sinks in respect of which it accepted the tenants' evidence (at [32]); 3. dismissed the landlord's claims of $330 for the repair of cabinetry, $770 for the repair of the marble floor, and $7,590 for the replacement of a melamine wall (at [33]-[39]) in respect of which it not which it was not satisfied that the landlord had made out her case. At [38], Tribunal said: "38. The tenants' photos show drilling which the landlord says is drilling done by the tenants. The landlord's case must be that the tenants' evidence, ie their evidence confirming that the photos were at or around incoming, is not to be accepted. In circumstances where handymen had attended, the Tribunal is not satisfied that the landlord has made out her case. …" 1. concluded that the landlord was entitled to arrears of rent of $12,112.71 in proceedings RT 22/44193 (at [40]); 2. noted that the tenants were making four claims for breach of their quiet enjoyment by the landlord (at [41]); 3. dismissed the tenants' claim by reason of the landlord issuing multiple termination notices (at [42]-[48]); 4. dismissed the tenants' claim by reason of the landlord making unfounded complaints about their noise (at [49]-[58]); 5. held that the landlord was liable in the sum of $500 for noise from building works in the building in which the premises are located (at [59]-[65]); 6. dismissed the tenants' claim by reason of the landlord taking photographs during inspections (at [66]-[69]); 7. concluded that the tenants were entitled to compensation of $500 in proceedings RT 22/43948 (at [70]); 8. determined that, after setting off of the amounts owing, the tenants are liable to the landlord in the sum of $11,612.71 (at [71]). The history of the appeal 1. On 6 April 2023, the landlord as the appellant commenced proceedings 2023/00112048 against the tenants as the respondents by filing an application for stay of original decision pending appeal (the stay application) and a notice of appeal (the notice of appeal) containing the following details: 1. in section "5 GROUNDS FOR APPEAL: 1. under the subheading "A ORDERS CHALLENGED ON APPEAL", order 2 of the 24 March 2023 orders; 2. under the subheading "B GROUNDS OF APPEAL": "1. The tenants inspected the apartment twice before they signed the lease in Aug&Sep,2021 and started the lease in Oct 2021 when Sydney was locked down. The cladding work and top level renovation work were easily seen from internal and external of the building and the apartment and they were started about 1 year ago but not during their lease. I explained to them clearly and they knew about it as their friends living in the building. They did not mind about it. I had NEVER SAID that work would be finished in two weeks because no one knew when Covid-19 would be end, when Sydney could be reopen and the construction work could be allowed. It is illogical. They lied in the hearing. Another reason, they had never complained about it during their 11 months stay and applied to renew with me, moved to another apt in the same building after being rejected because they enjoyed living here. They did not apply any about it in their first two applications. They changed the compensation content from Removal cost and income deduction to Lost enjoyment which was copied from the previous tenant who broke the lease at beginning of the Iockdown and lost bond, made stories to seek compensation. They built a team and came back to me. The work started before their moving in BUT NOT during the lease, they had all the knowledge which would not bother that much as the special layout and well organized work. I DO NOT need to sign any Disclosure Statement to them. If it happened during the lease, I needed. 2. Regarding all my claims which were all rejected. The tenants abandoned the premises with outstanding rent $12112 and did not notice when they would vacant until I got the messages from concierge on Sunday night when we moved out of the building already. They did not want to do the final inspection because they did know what they did in the premises in the last few days before dropping the keys. Heidy seek to quarrel and fight with me and made super illogical stories to frame me on the night of 14/9/2022 and made super noise, police was called by me and attended at 1:21am 15/9/22 when they were living in. All the agents and landlords will be scared by her behaviour. The priority is the safety so that I booked with a few third parties as witness at the first entry 2pm 19/9/2022 to carry the inspection by them but not me. Photos and videos were taken. While the member relied on their fake photos which were pointed by me in the hearing. Most damage photos were taken on the last two routine inspections 29/7/22 & 8/8/22 during their stay, such as the marble floor damage, biggest pantry damage etc. which were included in the first Application I submitted to NCAT on 17/8/2022 for URGENT HEARING. Ingoing report was compared with the outgoing and routine inspection photos, that is how to identify whose responsibility. If it was damaged during their stay by nature, they should report to me but those were not damaged by nature and they were damaged after my second routine inspection 22/4/22 and matched the drilling noise area. Especially I applied the URGENT Tenancy Application on 17/8/22 when I finished the last routine inspection and comparation of the photos just because I found those damage intentionally made by them and the damaged area matched the place where the drilling and Banging noise occurred. I had complained and reminded them many times of those noise since Feb 2022 but not only once or twice. We totally lost our peace underneath of their apartment and we had to stay out of home for my son's study many times and had to move out after 16/9 when I had not received any vacant notice and my Urgent Application for Vacant Possession was dismissed on 13/9/2022 because of their absence and it meant they could keep stay if they paid the rent to recover the outstanding part. We were scared. 3. No any common wall with any other neighbours where the noise from so it is unreasonable to investigate anyone else." 1. under the subheading "C ORDERS SOUGHT": "1. Withdraw the order and request them to refund: the compensation to the tenants $500 because of their dishonest and lying during the hearing and in their declaration. 2. Make the order for my claimed items supporting by evidence, total $13486 …" 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 reasons under the subheadings "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": 1. under the subheading "Decision not fair and equitable": "… 2. The tenants provided the fake photos which were taken after Aug 2022 but not taken before their moving in, while they were accepted by the member … 3. I would like to apply to provide my original digital photos and videos, … 4. My printed photos need to be reviewed. …" 1. under the subheading "Decision of the Tribunal against the weight of evidence", she referred to the following evidence she gave at the hearing before the Tribunal: "1. Cleaning claim $550: I provided the invoice and photos … 2. Light issue $396, I provided the tax invoice and photo. … 3. Blocked sink $440, I provided photos and tax invoice. … 4. Cabinet fix claim $330, photo and invoice being provided… 5. Marble floor claim $770, photo and quote were provided … 6. Painting and patch, photos and quotes were provided … 7. Biggest pantry drilling damage $7590, photos and quotes were provided … 8. Regarding the Order No.2 $500 was paid to the tenants as compensation without any sense. …" 1. under the subheading "Significant new evidence is now available that was not reasonably available at the time of the hearing": "Videos and photos I took on 19/9/2022 at the first entry with third parties as witness…. In the [conciliation] on 1/11/2022, I asked the member whether I could provide the digital photos and videos which could indicate the taking time to show the fact easily? I got the answer In the hearing is: NO because the member did not have time to watch it. The tenants in the hearing both laughed at this. Then they took the full advantages to produce the fake photos and made stories." 1. On 17 April 2023, the tenants filed a reply to appeal in which they supported the 24 March 2023 orders for the reasons given by the Tribunal (the reply to appeal). 2. On 21 April 2023, the Appeal Panel constituted by a Principal Member dismissed the application for a stay of the 24 March 2023 orders and made procedural directions for the hearing of the appeal including that a typed transcript of the relevant parts of the hearing be provided by the landlord (the 21 April 2023 orders). The hearing of the appeal 1. On 29 May 2023, we heard the appeal. The landlord and the tenants represented themselves. 2. The landlord relied on the following documents: 1. the stay application; 2. the notice of appeal; 3. the USB stick filed on 14 April 2023; 4. the three bundles of documents comprising 79 pages, 166 pages (numbered as pages 1 to 58 and 1 to 108 with two unnumbered lists of contents and an unnumbered statement of the landlord), and 89 pages (numbered as pages 1 to 37 and 1 to 50 with two unnumbered lists of contents) and the USB stick filed on 12 May 2023; 5. the sound recording notes and photographs filed on 16 May 2023. 1. The tenants relied on the following documents: 1. the reply to appeal and accompanying documents; 2. the email of Ms Jameel sent on 17 April 2023 to the Appeals Registry and the landlord attaching documents of the tenants in opposition to the stay application; 3. their submission and photographs filed on 26 May 2023. 1. Before the hearing of the appeal, we viewed the USB stick filed by the landlord on 14 April 2023. It contained the following eight files: 1. "1 appeal the order 500" comprising six photographs with the date "14/04/2023"; 2. "2 appeal wall fix and paint claim" comprising 23 photographs with the latest date "5/10/2022", one video file with the date "19/09/2022", and seven documents; 3. "3 appeal cleaning claim 550" comprising 11 photographs with the latest date "14/10/2022"; 4. "4 appeal blocked sinks claim" comprising four video files with the date "19/09/2022"; 5. "5 Light replacement claim" comprising one photograph with the date "14/10/2022" and one video file with the date "29/09/2022"; 6. "6 appeal pantry door floor fix claim" comprising eight photographs with the latest date "14/10/2022" and three documents; 7. "All My provided documents" comprising nine documents; 8. "Sound recording 20221101 202303 23" which was empty. 1. Each of the landlord and the tenants made oral submissions. The landlord during part of her oral submissions was assisted by an interpreter in the Mandarin language. 2. During the hearing the landlord made an application to amend the notice of appeal to rely on pages 42 to 45 of the bundle of documents comprising 79 pages filed on 12 May 2023 as significant new evidence that is now available and was not reasonably available at the time of the hearing. We dismissed the application and delivered oral reasons for our decision. 3. At the conclusion of the hearing, we reserved our decision. The scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law and otherwise with leave of the Appeal Panel: s 80(2)(b) of the NCAT Act. 2. 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. The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to an orders that the appeal is to be allowed or dismissed: s 81(1)(a) of the NCAT Act. 2. 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. 3. 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]. 4. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the appeal in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. 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. Having regard to the principles set out in Cominos at [13], we have discerned from the 24 March 2023 orders, the Tribunal Decision, the notice of appeal, and the material provided by the landlord, the following issues arise for determination in this appeal: 1. issue 1: whether the notice of appeal raises a question of law; 2. issue 2: whether the landlord should be granted leave to appeal against order 2 of the 24 March 2023 orders, and if so the appeal should be allowed and that order should be set aside. Issue 1: whether the notice of appeal raises a question of law 1. We are not satisfied that the grounds of appeal in the notice of appeal raise a question of law as a matter of form or substance. The three grounds of appeal are directed to challenging factual findings made by the Tribunal. It follows that the landlord does not have a right of appeal in respect of these grounds of appeal. Issue 2: whether the landlord should be granted leave to appeal against order 2 of the 24 March 2023 orders, and if so the appeal should be allowed and that order should be set aside Introduction 1. We invited the landlord to address her submissions in the same order as items 1 to 8 in [13(2)(b)] above. The landlord made oral submissions as to items 2, 3, 6, 7 and 8. 2. In making her submissions, the landlord in substance sought to run her case again in contending that the Tribunal made errors in dismissing her claims for compensation for damage to the premises and accepting the tenants' claim for compensation for loss of their quiet enjoyment. We advised the landlord on several occasions that the principles applied for determining whether to grant leave to appeal are set out in Collins v Urban [2014] NSWCATAP 17 (Collins). 3. In dealing with this issue, it is convenient to address the following questions: 1. whether significant new evidence has arisen (being evidence that was not reasonably available at the time of the hearing before the Tribunal); 2. whether the Tribunal Decision was not fair and equitable; 3. whether the Tribunal Decision was against the weight of evidence; 1. Before dealing with this issue, it is necessary to set out the applicable legal principles. The applicable legal principles Leave to appeal under s 80(2)(b) of the NCAT Act 1. In Collins at [76], the Appeal Panel stated 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 at [77], the Appeal Panel, 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 (Al-Daouk) 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 at [84], the Appeal Panel 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." Whether significant new evidence has arisen (being evidence that was not reasonably available at the time of the hearing before the Tribunal) 1. We are not satisfied that the digital photographs and video files sought to be relied on by the landlord constitute significant new evidence (being evidence that was not reasonably available at the time the proceedings before the Tribunal were being dealt) that has arisen within the meaning of cl 12(1)(c) of Sch 4 of the NCAT Act as explained in Al-Daouk at [23]. The digital photographs and video files were taken by the landlord on various dates on or prior to 14 October 2022 We do not accept the explanation by the landlord as to why she did not give these digital photographs and video files as part of her evidence at the hearing before the Tribunal as it is inconsistent with order 2 when read with the important note of the procedural directions made in proceedings RT 22/44193 on 1 November 2022. 2. Even if we had decided that the digital photographs and video files of the landlord constituted significant new evidence (being evidence that was not reasonably available at the time the proceedings before the Tribunal were being dealt), we would not have decided that the landlord may have suffered a substantial miscarriage of justice within cl 12(1) of Sch 4 of the NCAT Act. The digital photographs and video files do not substantiate the claims of the landlord. For example, the video files only showed water flowing from a tap into a sink and did not show water not emptying from the sink after the tap was turned off. Nor did the media show any blockage for which the tenants could be held responsible. 3. As to the other photographic material provided by the landlord which was new evidence, again this material did not demonstrate any error in the evaluative process undertaken by the Tribunal concerning the state of the premises at the end of the tenancy such to warrant a grant of leave. Whether the Tribunal Decision was not fair and equitable 1. The contentions of the landlord in the notice of appeal in substance were that her printed photographs should have been accepted because the photographs of the tenants were "fake". Further, she should be able to rely on her digital photographs and video files. 2. There is no evidence to substantiate this assertion that the evidence of the tenants was "fake". 3. As to the digital photographs and video files, we have already determined at [41] above that they do not constitute significant new evidence (being evidence that was not reasonably available at the time the proceedings before the Tribunal were being dealt) that has arisen within the meaning of cl 12(1)(c) of Sch 4 of the NCAT Act. 4. As to the landlord's printed photographs, the Tribunal considered them in the context the landlord's claims for the patching and painting of nine walls and bathroom cleaning. The fact that the Tribunal did not accept them as establishing the landlord's claim does not establish that the decision on these claims was not fair and equitable, On the contrary, the findings of the Tribunal about the landlord's photographs was consistent with the warning by the New South Wales Court of Appeal that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes and their usefulness may depend on their nature and quality: Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72 at [42] (Sackville AJA with Ward JA at [1] and Garling J at [72] agreeing). 5. Finally, as happened, it was open to the Tribunal to view the competing photographic evidence and what the tenants said in determining the actual state of the premises. In doing so, the relevance of the outgoing inspection report and the absence of the tenants being invited to attend the inspection for the purpose of the preparation of that report was a matter relevant to evaluating whether the decision was fair and equitable and/or against the weight of evidence. 6. It follows that we are not satisfied that the Tribunal Decision was not fair and equitable within the meaning of cl 12(1)(a) of Sch 4 of the NCAT Act. Whether the Tribunal Decision was against the weight of evidence 1. The landlord did not seek to analyse the evidence in respect of each of her claims and the tenants' claim for compensation arising from their loss of quiet enjoyment arising from noise occasioned by the building works in the building in which the premises are located so as to demonstrate that the evidence in its totality preponderated 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 as explained in Collins at [77], 2. We pointed out to the landlord that we could not evaluate whether the findings made by the Tribunal were against the weight of evidence with cl 12(1)(b) of Sch 4 of the NCAT Act because she had not complied with the 21 April 2023 orders by providing a typed transcript of the relevant parts of the hearing before the Tribunal. The sound recording notes filed by the landlord on 16 May 2023 were not a typed transcript of the relevant parts of the hearing before the Tribunal. They comprised three type written pages with a transcription of parts of the hearing with the first time entry as "10:55" minutes and the last time entry as "2:21:23". Several entries include commentary by the landlord which were not words spoken at the hearing. 3. The absence of a complete transcript on each of factual disputes raised prevents the evaluative task required for the grant of leave from being undertaken. 4. It follows that we are not satisfied that the Tribunal Decision was against the weight of evidence within the meaning of cl 12(1)(b) of Sch 4 of the NCAT Act. 5. Finally, we should note the appellant made submissions about the operation of ss 98 and 98A of the RT Act. These sections respectively deal with the right of the tenant to terminate on notice for breach and to terminate the residential tenancy agreement where the landlord has contravened s 26 of the RT Act (which relates to information disclosure in connection with a proposed tenancy). 6. This submission was made in the context of the Tribunal's award in favour of the tenants of $500 compensation. 7. The problem with this submission is that the Tribunal made the award on the basis that there had been a breach of quiet enjoyment due to building works being carried out for an extended period of time. Consequently, these sections were irrelevant in considering whether the Tribunal's award was correct. 8. The Tribunal was entitled to consider what had been said at the commencement of the tenancy concerning proposed building works. However, it was the fact that they continued for a significant period time that formed the basis of the award. 9. Consequently, no error is established on this basis. Conclusion 1. Since none of the criteria in cl 12(1) of Sch 4 of the NCAT Act has been satisfied, we are not satisfied that the landlord may have suffered a substantial miscarriage of justice. It follows that leave to appeal against order 2 of the 24 March 2023 orders should be refused. Orders 1. We make the following orders: 1. leave to appeal is refused; 2. the appeal is otherwise dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 08 June 2023 - Legislation Cited - Residential Tenancies Act 2010 (NSW), ss 98, 98A, 175, 187 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: 08 June 2023