Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Khoury v Frasier [2023] NSWCATAP 180 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. Catchwords: APPEAL – No question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) - ss 80, Sch 4 cl 12(1) Civil and Administrative Tribunal Rules 2014 (NSW) - r 25 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Mario Khoury (Appellant) Roland Frasier (Respondent) Representation: B Taylor (Agent) (Appellant) Respondent (Self-Represented) File Number(s): 2023/000133876 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 11 April 2023 Before: P Smith, General Member File Number(s): RT 22/55175 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 an application by the appellant (the landlord) against the respondent (the tenant) which related to a tenanted property in Winston Hills. 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. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, 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. Documents lodged by the parties in respect of this appeal were the Notice of Appeal and accompanying documents, received at the Tribunal's Parramatta registry on 24 April 2023. No Reply to Appeal was lodged nor were any further documents submitted in response to directions made on 12 May 2023. Time to appeal 1. Orders were made on 11 April 2023. As the Notice of Appeal was received on 24 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. In the Notice of Appeal, the grounds of appeal were expressed as follows: It is a very subjective reasoning as to what is considered 'excessive'. If these are the prices that the tradespeople have provided & charge[d], a subjective response does not suffice. The property was brand new when given to the tenant, and the evidence clearly shows a discrepancy between the ingoing and final inspection. It is not fair, nor consistent for a subjective reasoning to be provided on tradespeople costs- that the member & client have no control over. It is also unfair that the member considered the tenants quote as preference- the tenant should have done this before he vacated. 1. As to what orders the landlord contended should now be made, it was suggested that the gardening and maintenance quotes be re-evaluated. 2. Leave to appeal was also sought on the basis that (1) the decision was not fair and equitable, (2) the decision was against the weight of the evidence, and (3) significant new evidence was now available that was not reasonably available at the time of the hearing. No reasons were provided as to why leave to appeal should be granted. 3. Accompanying the Notice of Appeal were 40 pages of documents with an index plus a schedule which set out details of the additional amounts now claimed. At the outset of the hearing of the appeal, Mr Taylor indicated that those 40 pages were some of the landlords' documents that were present before the Tribunal at first instance. 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. Landlord's submissions 1. In relation to the garage door, it was said that it was new at the commencement of the tenancy, damaged at the end of that tenancy, and that the tenant asked no questions at the hearing in relation to that door. It was said that a text message had been provided at first instance, but a "proper quote" had now been obtained. As to the cleaning, it was said that the property needed cleaning, it was close to Christmas, that there was no choice but to have the property cleaned, that a professional cleaner was used, and that there was an invoice for the incurred cost of $450. Likewise, it was said that there was a need for trimming and weeding and that there was an invoice for $418 which was the amount the landlord was required to pay for that work. Tenant's submissions 1. The tenant said he did sufficient cleaning, provided evidence for the first instance hearing, obtained a quotation, and that, as he had usually paid between $80 and $100, the claim for $200 was exaggerated. In relation to the garage door, it was said that the tenant obtained a different quotation, for a lesser amount. He indicted that he was happy with the first instance decision. Submissions in reply 1. The response for the landlord was that the photographs taken at the end of the tenancy suggested the garden had not been maintained for more than two weeks, that there was no communication from the tenant after he vacated the premises, and that it was necessary to act quickly because of the new tenant whose tenancy was said to have commenced on 14 December 2022. 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. At first instance, the tenant was ordered to pay the landlord an amount of $6,570.12. 4. The components of that amount were (1) $3,188.56 for arrears of rent, (2) $2,700.00 for a break lease fee, (3) $125.00 for water usage, (4) $120.00 in respect of the $450.00 claim for cleaning, (5) $200.00 in respect of $418.00 claim in respect of the lawns and gardens (gardening), and (6) $236.56 for a claim in respect of lights. The first three of those components were by consent. Claims of $950.00 for repair of the garage door and $1,100.00 for cleaning the garage floor were rejected. 5. The schedule which accompanied the Notice of Appeal reveals a desire to revisit the claims in respect of (1) the garage door, (2) the garage floor, (3) cleaning, and (4) gardening. 6. The landlord has not identified any error on a question of law, which would not require leave to appeal and, applying what was said in Cominos, we are unable to detect any such error. Accordingly, it only remains to consider the claims which do require leave. 7. It is convenient here to note that, when a party makes a claim for compensation, that party bears the onus of proof and must satisfy the Tribunal (1) that there is a basis for the claim, which is often referred to as the liability issue, and (2) the amount that is recoverable, commonly referred to as the quantum issue. There can be a situation where there is sufficient evidence as to liability but not as to quantum or where there is sufficient evidence as to quantum but not in relation to liability. In either of those situations, the claim fails. 8. Also, it is not sufficient to supplement a text message at first instance with a "proper quote" on appeal when there is no reason why such a quotation could not have been obtained and submitted as part of the landlord's evidence at first instance. 9. In relation to the claim that the decision was not fair and equitable, it was contended that the Member's decision on the contested items was not based on fact or evidence. 10. However, the landlord was not entitled to recover the actual cost, only a reasonable amount, and that required the Member to assess what was considered reasonable. That was done and the reasons for the outcomes were indicated. There is nothing that indicates the Member's decision was not fair and equitable. 11. In support of the claim that the decision was against the weight of the evidence, the landlord listed the documents provided at first instance in the Notice of Appeal. However, copies of those documents were not provided for our consideration despite a direction, namely Order 3(a) made on 3 May 2023, for that to be done. We were only provided with 40 pages said to be some of the documents provided for the first instance hearing. Plainly, we are unable to find that a decision was against the weight of the evidence when the evidence upon which the landlord relies in support of that assertion has not been provided. 12. The additional evidence upon which the landlord now wishes to rely was said to be "Quotations/Invoices on a letterhead from the tradespeople" but there is nothing to suggest such documents could not be obtained prior to the hearing. 13. Even if it could be said (1) that the decision was not fair and equitable and/or (2) that the decision was against the weight of the evidence and/or (3) that there was evidence now available that was not reasonably available at the time of the hearing, the landlord would still require leave to appeal. 14. The landlord has not provided any reason(s) why leave to appeal should be granted and, having regard to the five situations listed in Collins (set out at [8] above), we are not satisfied that this case warrants a grant of leave to appeal. 15. It is clear, from the documents submitted by the landlord, and by the oral submissions made during the hearing of the appeal, that the landlord is seeking to have his claims re-assessed. However, as indicated earlier, an appeal does not provide an opportunity to rerun the case and it is not sufficient to suggest there should have been a different outcome. Orders 1. The landlord has failed to either raise any error on a question of law or demonstrate any basis for a grant of leave to appeal. As a result, the orders that will be made are as follows: 1. Leave to appeal is refused. 2. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2023