Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Moodini v Free [2023] NSWCATAP 176 Hearing dates: 28 June 2023 Date of orders: 30 June 2023 Decision date: 30 June 2023 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member C Mulvey, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The Stay order made on 3 May 2023 is lifted. 4. Each party is to bear their own costs of the appeal. Catchwords: APPEAL – No question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) - ss 60, 80, 81, Sch 4 cl 12(1) Civil and Administrative Tribunal Rules 2014 (NSW) - rr 25, 38A Residential Tenancies Act 2010 (NSW) - s 26 Residential Tenancies Regulation 2019 (NSW) - s 8 Strata Schemes Management Act 2015 (NSW) - s 106 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 House v The King [1936] HCA 40; 55 CLR 499 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 The University of Wollongong v Metwally [1985] HCA 28 Texts Cited: None cited Category: Principal judgment Parties: Zeu Moodini (Appellant) Vicki Free (Respondent) Representation: Appellant – Self-represented Respondent – P Tassone File Number(s): 2023/000120217 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2023] NSWCATCD Date of Decision: 05 April 2023 Before: M Tibbey, Senior Member File Number(s): RT 22/54538, RT 22/56806 reasons for decision Outline 1. This is an internal appeal, under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), against a decision made in the Consumer and Commercial Division of the Tribunal, in relation to two applications: one by the appellant (the tenant) and the other by the respondent (the landlord). Both applications related to a tenanted strata-titled apartment in Cremorne. 2. Having considered the documents lodged by the parties and their oral submissions, we have determined that the appellant has not established either an error on a question of law or any basis for granting leave to appeal and that each party should bear their own costs of the appeal. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (ie, the permission) of the Appeal Panel: s 80(2) of the NCAT Act. 2. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] listed of questions of law as: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. 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: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. 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 Schedule 4 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. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins, at [84], the Appeal Panel stated that 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. either with or without further evidence, in accordance with the directions of the Appeal Panel. 1. When parties to an appeal do not have legal representation, the which arises is whether the Tribunal should consider whether there is either a ground of appeal or a basis for leave to appeal which has not been raised by the appellant. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), at [13], the Appeal Panel said: 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, 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 Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice". Documents 1. Excluding documents lodged in relation to the appellants' stay application, documents lodged by the parties in respect of this appeal were as set out below: 1. The Notice of Appeal, received on 4 April 2023. 2. The Reply to Appeal, received on 2 May 2023. 3. Landlord's submissions, received on 1 May 2023. 4. Tenant's submissions, received on 24 May 2023. 5. Tenant's submissions in reply, received on 14 June 2023 Time to appeal 1. Orders were made and reasons published on 5 April 2023. As the Notice of Appeal was received on 14 April 2023, the appeal is within time, being the 14-day requirement of r 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules). Grounds of Appeal 1. The Notice of Appeal referred to an attachment for the grounds of appeal and indicated that leave to appeal was not sought. However, under the heading "Grounds of Appeal" in the attachment, there appeared in bold type the words: "The decisions were not fair and equitable. The decisions were against the weight of the evidence." 2. In the body of that attachment the tenant set out, in sixteen paragraphs, what were said to be "Facts established by the evidence at the tribunal hearing". What followed those paragraphs is set out below, as they appear in that attachment: Orders by the member for the appellant to provide access and pay [an] arbitrary amount to the landlord: 1. Disregarded the rights of the tenant under the residential tenancies' legislation. 2. Disregarded the obligations of the landlord under the residential tenancies' legislation. 3. In effect, put the tenant at fault regardless of those rights and obligations. 4. Allowed the landlord to do as they wish regardless of those rights and obligations. 5. Allowed the real estate agent not only to breach tenancies legislation, but also rewarded them for doing so. The landlord, represented by a professional real estate agent, should have been aware of their obligation under s 26(1). If they were not, then they should claim from the real estate agency under professional negligence and not from the tenant. Once it became clear to the landlord that they were in breach of s 26(1) they should have acknowledged the breach and remedied the breach by compensating the tenant for the loss of amenity and enjoyment, including the costs of the move. Instead, together with their real estate [agent] they chose to attempt to pervert the course of justice in the tribunal by making out it was the tenant's fault. On 9 December 2022, by filing their application for access they effectively eliminated any ability to come to an agreement. The landlord should have mitigated all their costs, especially those after filing on 9 December 2022. It was the landlord who breached the contract in the first place, caused their own costs, caused loss of amenity to the tenant and caused further nuisance by leaving the scaffolding in place and putting the tenant through the proceedings. 1. It therefore appears the tenant wishes to (1) raise the five numbered matters quoted above, which could raise an error on a question of law not requiring leave to appeal, and (2) to assert the decision was not fair and equitable and was against the weight of the evidence, which do require leave to appeal. Reply to appeal 1. The Reply to Appeal also referred to an attachment which (1) contended the findings at first instance in relation to compensation were noted, (2) suggested the finding that replacing the windows was required by s 106 of the Strata Schemes Management Act 2015 (the SSMA), (3) submitted there was evidence of the costs incurred by the builder, (4) noted that the tenant requested the orders be stayed, (5) referred to the tenant's claim for $7,250 for loss of enjoyment and amenity, (6) disputed the tenant's claim for $3,000 for moving expenses, (7) opposed the tenant's claim for the difference in rental costs, and (8) maintained that the filing fee incurred by the tenant was not recoverable. Hearing 1. Having identified the relevant documents, the Tribunal proceeded to hear oral submissions in the usual sequence of appellant then respondent, followed by the appellant in reply, so that each party was able to speak un support of their case and to respond to the case of the other party. Tenant's submissions 1. In the documents received on 24 May 2023 sought to rely on evidence given at the hearing, sought leave to rely on additional evidence, and provided a USB device containing a recording the hearing. In relation to the compensation order, it was suggested the Member was not aware of s 26(1) of the Residential Tenancies Act 2010 or of s 8(i) of the Residential Tenancies Regulation 2019 and sought compensation of $11,600. In relation to the access order, the tenant sought a ruling on the question of safety and sought additional compensation to cover moving expenses and the difference in rent. The compensation order made in favour of the landlord was also contested. 2. The documents lodged in reply, received on 14 June 2023, began by referring to the application of the landlord for an order for costs of the hearing. 3. However, it appears that directions were made on 23 May 2023 to enable any such application to be considered and any issue relating to the costs of either or both applications determined at first instance is a matter for the Member to consider. It is not for an appeal panel to usurp that role. 4. Any decision in relation to costs could become the subject of a separate appeal but, since a decision as to costs involves the exercise of discretion, an appellant would need to bring any challenge to a costs order within one of the categories set out in House v The King [1936] HCA 40; 55 CLR 499 at 504-505. 5. The other topic raised in the tenant's submissions in reply was under a heading "Mitigation of costs by the landlord" but that involved re-running the hearing, based on post-hearing documents, which cannot be justified unless the tenant establishes that the first instance decision should be set aside and the subject matter reconsidered, either by this appeal panel or at a rehearing. 6. The oral submissions of the tenant involved repeating matters of fact and making submissions as to what it was contended should have been the outcome at the first instance hearing. As such, the tenant was seeking to re-run the hearing. 7. To the extent that the same arguments were raised, they do not favour allowing the appeal unless an error on a question of law or a basis for granting leave is demonstrated. To the extent that different arguments were raised, it is a consequence of not re-running the hearing that an appellant cannot raise matters on appeal for the first time (The University of Wollongong v Metwally [1985] HCA 28 at [7]): such matters could and should have been raised during the first instance hearing. Landlord's submissions 1. The landlord's documents, received on 1 May 2023, comprised a copy of the Reply to Appeal, and copies of (1) a 1 May 2023 email, (2) licence documents, and (3) insurance documents. No additional submissions were provided. 2. When provided with an opportunity to make oral submissions, the respondent's representative (Mr Tassone) indicated that he relied on the documents submitted for the respondent. Submissions in reply 1. The tenant's submissions in reply did not raise either an error on a question of law or a matter warranting a grant of leave to appeal. Consideration 1. It is important to first note two matters that were brought to the attention of the parties at the commencement of the hearing. First, that an appeal to an Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. That point is made clear by the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) which includes the words: "an appeal is not an opportunity to have a second go at a hearing". 2. Secondly, that it is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: an appellant must demonstrate either that an error was made on a question of law or that there is a basis upon which leave to appeal should be granted. 3. The suggestion that the Member was not aware of s 26(1) of the Residential Tenancies Act 2010 or of s 8(1)(i) of the Residential Tenancies Regulation 2019 is contradicted by the fact that the reasons, published on 5 April 2023 and subsequently amended, refer to both those provisions. A reading of those reasons does not support either of the tenant's claims: that the rights of the tenant were disregarded and that the obligations of the landlord were disregarded. Taking the approach suggested in Cominos, we are unable to detect any error on a question of law in the decision of reasons now challenged. 4. As it is not necessary to refer to any matter which seeks to rerun the case or which does no more than seek a different outcome, it only remains to consider (1) whether the decision was fair and equitable, (2) whether the decision was against the weight of the evidence, and (3) if either of those two matters are established, whether leave to appeal should be granted. 5. A close review of the reasons does not suggest the decision was anything other than fair and equitable. A claim that the decision was against the weight of the evidence would require the tenant to place before the us all the evidence that was before the Member which does not appear to have been done. Based on (1) the documents which have been provided, (2) the recording of the hearing, and (3) the published reasons, the tenant has not persuaded us that the decision was against the weight of the evidence. 6. Even if it could be said that the decision was not fair and equitable and/or that the decision was against the weight of the evidence, the tenant would still require leave to appeal. Having regard to the five situations listed in Collins (set out at [8] above), the tenant has failed to demonstrate that this case is of a kind that warrants granting leave to appeal. 7. As the tenant has not established either an error on a question of law or a basis upon which leave to appeal should be granted, it follows that the appeal must be dismissed. Noting that a stay order was made on 3 May 2023, that order should now be lifted. 8. The tenant sought an order for costs of the appeal. That order cannot be justified for two reasons. First, the tenant has not succeeded in this appeal. Secondly, r 38A of the Rules provides that the costs of this appeal are to be determined by reference to the costs provision that applied at first instance which, in this case, was s 60 of the NCAT Act. The effect of that section is that each party is to bear their own costs unless there are special circumstances which warrant an order for costs. Neither party has indicated any such circumstances and we are unable to see any such circumstances in this instance. Orders 1. For the reasons set out above, the orders that will be made are as follows: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The stay order made on 3 May 2023 is lifted. 4. Each party is to bear their own costs of the appeal. ********** 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: 30 June 2023