Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Setyadi v Khoo [2023] NSWCATAP 185 Hearing dates: 5 July 2023 Date of orders: 11 July 2023 Decision date: 11 July 2023 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Charles, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed. Catchwords: LEASES AND TENANCIES-residential tenancy-renewal proceedings-compensation for breach of quiet enjoyment right following work orders made by the Tribunal and incorrect claims for rental arrears-rent reduction order. APPEALS-no foundation for procedural unfairness contention-factual conclusions reasonably open to the Tribunal-no point of principle or other grounds for exercise of discretion to grant leave to appeal. Legislation Cited: Civil and Administrative Tribunal Act (NSW) (2013) Cases Cited: Collins v Urban [2014] NSWCATAP 17 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Cited Category: Principal judgment Parties: Handi Setyadi (Appellant) Selina Khoo (Respondent) Representation: K Karatacas, Agent for the appellant Respondent, Self represented File Number(s): 2023/00147014 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 03 May 2023 Before: S De Jersey, General Member File Number(s): RT 23/05058 REASONS FOR DECISION 1. In this residential tenancy matter, the appellant, landlord, appeals from three of the eight orders made by the Tribunal on 3 May 2023. These orders were made in renewal proceedings commenced by the respondent, tenant, in February 2023 (RT 23/05088) following work orders made by the Tribunal against the appellant on 19 December 2022. 2. There was no appeal from the orders made on 19 December 2022. 3. At the outset, we should outline some relevant aspects of the nature of this appeal and rights of the appellant in respect of such an appeal, including to point out the hurdles that the appellant must overcome in order to succeed and that this is not an occasion for parties to attempt to have their claims and arguments heard and determined afresh. As to this, on the appeal both parties sought to rely upon new material none of which could be said to have not been reasonably available at the time of the Tribunal hearing. 4. The nature of the right of appeal is described in s 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Under that section, a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, as this is, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: …..the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) 1. Furthermore, ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1 issues of principle; 2 questions of public importance or matters of administration or policy which might have general application; or 3 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; 4 a factual error that was unreasonably arrived at and clearly mistaken; or 5 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, See Collins v Urban [2014] NSWCATAP 17 at [84 (2)] 1. As was set out in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, questions of law include whether there was a failure to afford procedural unfairness. 2. In the Notice of Appeal, the appellant sought leave to appeal on the basis that the decision was not fair and equitable and that it was against the weight of the evidence. As to the latter ground, this was based upon the procedural fairness issue to which we refer below and not upon any assessment of the totality of the weight of the evidence presented to the Tribunal. 3. The three orders which the appellant appealed from were: 1. An order that the appellant pay the respondent the sum of $500 immediately as compensation for loss of quiet enjoyment. 2. An order that the rent be reduced by 10% from 20 April 2023 to is 30 June 2023. 3. An order that Order 5B made on 19 December 2022 to replace the dryer in the shared laundry so that it effectively extracts moisture to minimise steam and condensation is extended to 28 May 2023. 1. The appellant contended that each of these orders should be set aside. 2. We can deal immediately and very shortly with the appeal concerning replacement of the dryer. It emerged at the hearing of the appeal that this work had, in fact, been carried out before the hearing of the appeal. Accordingly, there no longer remains any utility in the pursuit of the appeal against this order and it should be dismissed. 3. As to the appeal from the order to pay the tenant the sum of $500, this was one half of the amount claimed by the tenant for breach of the obligation in respect of quiet enjoyment. The Tribunal based this order on two matters. First, that the work orders made on 19 December 2022 necessitated a number of contractors to attend the premises, some work had to be re-done such as grouting and all of this would have caused inconvenience to the tenant. Secondly, the Tribunal accepted the tenant's oral evidence that she had regular follow-ups for rent arrears because the accounting system did not reflect the rent reduction order made on 19 December 2022. As to this, the Tribunal noted that there was little evidence from the agent to dispute this allegation ([25 (c)]). 4. The appellant sought to challenge the correctness and legitimacy of each of these two matters. 5. As to the disturbance by contractors, the appellant submitted that it was not unusual for tradesmen to attend to fix issues, that access could be provided by a spare key held by the landlord's agent if the tenant chose not to be home and that it was unfair to make such an award in circumstances where the work was required to be done under orders made by the Tribunal. 6. However, these submissions take no account of the fact that the work orders were made because of breaches of the landlord's repair obligation, the work orders were quite extensive and to some extent work had to be re-done and that we were concerned with renewal of the proceedings, which the tenant was granted leave to commence. 7. The considerable scope of the repair work is readily apparent from the relevant order made on 19 December 2022 (Order 5A), namely, that the following work be carried out in a proper and workmanlike manner by appropriately qualified contractors: A The recommended work in the AllAces Report as follows: 1. Full top-down sanitation with antimicrobial chemicals of whole premises 2. All carpets to be steam cleaned 3. Blinds attached to the glass door to be bagged and disposed of 4. Grounds in the bathroom to be re-grouted 5. External wall to where moisture readings were elevated is to be investigated and have any faults or leaks which are allowing water to ingress, to be repaired; 6. Exhaust fans to be installed in the bathroom to avoid mould regrowth 7. During above works, air scrubbers and a hydroxyl machine to be installed to filter mould spores and avoid cross contamination of the clean area. 1. As to the disturbance from claims for rent arrears, the appellant contended that the rent ledger did show the rent reduction credit being applied, that the ledger was not readily available at the time of the "initial" hearing and thus should not have been allowed to be presented at the renewal proceedings hearing, and that, furthermore, at the renewal proceedings hearing the landlord's representative (an employee of Raine & Horne) was not given any time to present any evidence or reply to the tenant's alleged false accusations about this. 2. If there was any foundation to the submission about a lack of opportunity to present evidence or respond to the tenant's allegations, then this would raise a question of procedural fairness and, hence, a question of law in respect of which the appellant has a right of appeal. 3. However, the factual basis for the submission was disputed by the tenant, who told us that the hearing proceeded in a conventional manner, including opportunities to give oral evidence and make submissions. The appellant did not provide the required proof to the contrary. As to this, the appellant was required by directions made in respect of the conduct of the appeal on 19 May 2023 to provide a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing, if what happened at the hearing was being relied upon in the appeal. No such transcript was supplied to establish this alleged lack of opportunity. 4. As to the rent ledger itself, the alleged unavailability of the ledger at the "initial" hearing, which must be a reference to the hearing in respect of the orders made on 19 December 2022, has no relevance to the presentation of the rent ledger at the hearing of the renewal proceedings (on 28 April 2023) in respect of an issue that concerned events after 19 December 2022. 5. Furthermore, the Tribunal's directions for the conduct of the renewal proceedings, made on 28 February 2023, expressly referred to the provision of the rent ledger (if relevant) amongst the documents to be provided by the parties before the hearing on 28 April 2023. It emerged at the hearing of the appeal that it was uncontroversial that the respondent had come to present a version of the rent ledger, along with banking documents concerning her rental payments, in the papers she presented before the renewal proceedings hearing. It was not, clearly, established when this had occurred, but at the hearing of the appeal, it was uncontroversial that a version of the rent ledger was provided amongst papers supplied by the respondent after 11 April 2023 (the date for the provision of the appellant's material in response to the earlier date for the provision of the respondent's material) and before the hearing on 28 April 2023. The appellant's representative told us that because of the late provision by the respondent of this material it was decided that the issues concerning the ledger would be responded to at the hearing on 28 April 2023 and no versions of the ledger would be supplied to the Tribunal by the appellant before that hearing. 6. Nevertheless, it is plain from this explanation that the appellant had ample notice of the issues arising concerning the ledger prior to the hearing on 28 April 2023. 7. Accordingly, we reject this submission concerning a lack of procedural fairness. 8. At the hearing of the appeal, the appellant's representative took issue with the finding about the rent ledger being inaccurate. She sought to do so by reference to a printout of the ledger attached to the Notice of Appeal. However, the printout states that it was generated on 8 May 2023, which is after the hearing of the renewal proceedings, and there is no basis for concluding that the relevant information was not reasonably available to the appellant for the hearing on 28 April 2023. Accordingly, we do not accept that this version of the ledger should be considered by us on the appeal. 9. As to the challenge to the rent reduction order, the Tribunal rejected the tenant's claim for a greater reduction, but allowed a reduction of 10% on the basis (at [22]): 1. I extend a rent reduction of 5% for inadequate heating as found in paragraph 31 of my orders dated 19 December 2022; 2. I extend a reduction of 5% for the noisy fan next door as found in paragraph 35 of my orders dated 19 December 2022 (as I am satisfied that the issue has not been satisfactorily resolved as the fan systems are still linked and causing a nuisance to the tenant). 1. As to the issue concerning heating, the appellant contended that a heater which the tenant had purchased on her own accord was in fact adequate heating for the size of her unit and that the tenant had not brought to the landlord's attention that the heater she purchased was inadequate and it was not justifiable to issue a 5% reduction for an issue they were not aware of. 2. However, a threshold obstacle that the appellant faced in respect of these contentions was that they were at odds with the Tribunal's decision on this subject made on 19 December 2022, which had not been the subject of an appeal. In that decision, in support of the order the Tribunal made for a 5% rent reduction concerning this heating issue, the Tribunal made findings that the central heating system, which was not working properly, was superior to the stand- alone heater that the tenant had purchased (at [25] and [31]. 3. As to the issue concerning a noisy fan, in its decision in the renewal proceedings the Tribunal made findings that since the orders made on 19 December 2022 the exhaust fan in the neighbouring unit had been adjusted but not replaced, the issue was with the kitchen exhaust, which was electrically linked to the exhaust fan system in the neighbouring premises, the noisy fan issue had not been satisfactorily resolved as the fan systems were still linked and causing a nuisance to the tenant-the latter finding based upon the tenant's evidence. 4. The appellant contended that this was a consequence of how the complex was built for dual occupancy and also that multiple tradesmen had entered the tenant's unit on multiple occasions and had failed to hear the noise. It was said that they were happy to get an electrician to take a decibel reading of the sound and that they had never had a problem with previous tenants about the noise in circumstances where the property had remained the same since being built. The appellant also sought to rely upon statements in an invoice that Happy Air issued on 14 February 2023, which had not been presented to the Tribunal. 5. On appeal, the only evidentiary material seeking to contest the tenant's case about the noisy fan which the appellant sought to present to us was the Happy Air invoice. Otherwise, the appellant's position did not rise above the making of assertions. We were not supplied with the totality of the evidence on this issue that was presented to the Tribunal. 6. The problem the appellant faced with the Happy Air invoice was that, plainly, it was available to be presented to the hearing on 28 April 2023, but this did not occur, as was also the case with any decibel readings evidence. 7. Overall, in respect of both of these grounds of appeal, we consider that the conclusions of the Tribunal in issue were, at the very least, reasonably open to it and we are not persuaded that the conditions for the grant of leave to appeal under cl 12 of Sch 4 of the NCAT Act are satisfied or that, in any event, the appeal raises any point of principle, or that any plain error of significant fact has been established, or that any of the other matters in relation to the exercise of the discretion to grant leave to appeal have been established. ORDERS 1. For the above reasons, we order 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: 11 July 2023