Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nguyen v Conley [2023] NSWCATAP 220 Hearing dates: 4 May 2023 Date of orders: 8 August 2023 Decision date: 08 August 2023 Jurisdiction: Appeal Panel Before: C Fougere, Principal Member L Wilson, Senior Member Decision: 1. Leave to appeal refused. 2. Appeal dismissed. Catchwords: APPEAL – Residential Tenancy – Appellant resiling from previous agreements Appeal – Residential Tenancy – Withdrawn at first instance -No reason to allow the appellant to reagitate withdrawn claims Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 McDonald v McDonald [2016] NSWCATAP 252 Mulvenna v Tuan Golden Pty Ltd [2023] NSWCATAP 108 Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: Nil Category: Principal judgment Parties: Hong Nguyen (Appellant) Matthew Conley (First Respondent) Amanda Agius (Second Respondent) Representation: Appellant (Self-represented) Respondents (Self-represented) File Number(s): 2023/00063442 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 10 Feb 2023, amended 13 Feb 2023 Before: N Kennedy, General Member File Number(s): RT 22/46225 REASONS FOR DECISION 1. The appellant is the landlord who rented premises to the respondents from 3 July 2015 until they vacated on 18 September 2022. 2. On 18 October 2022 the appellant lodged a residential tenancy application against the tenants seeking that they pay her $23,915.68 compensation and all of their $2,100 bond. The jurisdictional limit of the Tribunal is $15,000 plus the bond, which the appellant submitted to when the jurisdictional limit was raised at a conciliation and group list hearing on 3 November 2022. 3. On 10 February 2023 the appellant's application was heard by the Tribunal. The appellant's claim was broken down into 17 items listed (a) to (q) by the Tribunal. Four of the items were resolved by consent (items h, I, j and l). Items m and n, which were claims that the tenants should pay the appellant's land tax liabilities, were withdrawn by the appellant. 4. In the end the Tribunal decided one of the contested items in the appellant's favour. This was part of item p which was replacing light globes. The landlord had sought $652 from the tenants; the Member awarded the landlord $50. Added to the items resolved by consent - $450 - the total the tenants had to pay the appellant from their bond was $520. The remainder of the bond was released to the tenants. The 10 February 2023 decision was amended on 13 February 2023 (Decision). It is this Decision that the appellant has appealed. 5. For the reasons set out below, we have decided to refuse leave to appeal and to dismiss the appeal. Grounds of appeal 1. In her Notice of Appeal the appellant repeatedly wrote "Refer to Reasons & Grounds of Appeal" in boxes which asked the appellant to explain the basis of her appeal. Attached to the Notice of Appeal was a four page document entitled "REASONS FOR GROUNDS OF APPEAL FILE NO: RT22/46225". The appellant then lists the 17 items dealt with in the Decision and makes submissions in all but five of the items setting out why the appellant believes she ought to have been awarded more money than the Decision allowed. Some of the items the appellant is seeking to reagitate on the appeal are items which were determined by consent by the parties below or were withdrawn by the appellant. 2. Furthermore, the appellant's claim on the appeal amounts to more than the jurisdictional limit. The Tribunal, including the Appeal Panel, can only award up to $15,000 compensation in residential tenancy matters, plus the bond. The amounts being claimed by the appellant exceed $15,000. She submitted to the jurisdictional limit of the Appeal Panel, which is the same as the Tribunal, at the commencement of the Appeal. 3. With the Notice of Appeal the landlord also applied for a stay of the order made in the Decision. The stay was dismissed as the Appeal Panel noted the order as to the bond had already been paid by the Rental Bond Board and should the appellant be successful in the appeal a money order could be made. 4. The appellant ticked "Yes" when asked if she was asking for leave to appeal in the Notice of Appeal. The appellant left blank the box under the question "Reasons why the NCAT Appeal Panel should grant leave to appeal against the decision/s". When asked in the Notice of Appeal to explain how the Decision was not fair and equitable or how the Decision was against the weight of the evidence the appellant wrote "Refer to Reasons & Grounds of Appeal" and "Refer to documents submitted for the Formal Hearing". 5. When asked to explain what significant new evidence is now available that was not reasonably available at the time of the hearing the appellant wrote "Refer to Reasons & Grounds of Appeal". When asked "Why was this evidence (including documents) not available at the time of the hearing?" the appellant wrote "The owner has asked us to submit the following in support of the appeal ROUTINE INSPECTIONS, OPEN HOUSE RECORDS, ADDITIONAL PHOTOS, INVOICE". The appellant's real estate agent, Ms J. Tavener signed the Notice of Appeal but the appellant appeared for herself throughout the appeal hearing, with her agent Ms Tavener seated beside her. 6. The "Reasons & Grounds for Appeal" which was attached to the Notice of Appeal does not address what errors the appellant alleges the Tribunal made. The "Reasons & Grounds for Appeal" simply lists the arguments the appellant made at first instance, which the Tribunal considered on 10 February 2023 and determined on 13 February 2023. No errors on questions of law were raised and therefore it was an appeal which required leave of the Appeal Panel. Scope and nature of internal appeals 1. An appeal to the 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]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, (which may be argued as of right) or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2). 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are constrained by 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; or 2. the decision of the Tribunal under appeal was against the weight of evidence; 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). 1. In Collins v Urban [2014] NSWCATAP 17, 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. As to the principles for allowing fresh or new evidence to be tendered for the first time on the appeal, Mulvenna v Tuan Golden Pty Ltd [2023] NSWCATAP 108 is useful, particularly at [23] to [25]: What the words "not reasonably available" in cl 12 of Schedule 4 of the NCAT Act mean was decided in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [19]-[24]. That decision has been applied in more than 60 appeals in the NCAT and we should follow it in this case. The Appeal Panel decided in Al-Daouk that the test whether evidence was not reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but by applying an objective test and considering whether the evidence in question was unavailable because no person could reasonably have obtained the evidence before the Tribunal hearing. … At the end of the day the test is whether, objectively speaking, no person could reasonably have obtained the new evidence prior to the hearing before the Tribunal on 15 January 2023. 1. The principles applicable to setting aside a consent order were outlined by an Appeal Panel in McDonald v McDonald [2016] NSWCATAP 252: 59. A review of the authorities dealing with when a consent order can be set aside can be found in the recent Appeal Panel cases of Prenc v Stojcevski [2016] NSWCATAP 244 at [43]-[45], [53]-[57] and Yuen v Thom [2016] NSWCATAP 243 at [36]-[54]. From those cases, the following principles can be discerned (omitting authorities): (1) At common law, a consent order may be set aside on the same basis as the underlying agreement may be set aside; (2) Whether the agreement constituting the compromise can be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence and the like; (3) In order to set aside a consent order on one of the above bases, it must be possible to point to some contumelious conduct on behalf of the respondent for instance: (a) with respect to duress, it must be shown that illegitimate pressure was placed on the appellant such that there was no reasonable alternative but for her to submit; (b) with respect to undue influence, not only must there be a source of power to deprive the other person of free and voluntary consent, but it must be shown that the agreement was the result of the actual influence; (4) With respect to mistake: (i) the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract; (ii) a common mistake arises when the mistaken belief is held by both parties; (iii) a unilateral mistake is where one party is mistaken but where there are no other vitiating circumstances, such as misleading or deceptive conduct, fraud or misrepresentation, a unilateral mistake will not generally constitute a basis for setting aside an agreement unless the mistake is a serious mistake in relation to a fundamental term of the agreement and the other party knew of, or contributed to, the mistake. (5) With respect to other doctrines which may be applicable, such as unconscionable dealing, it must be shown that one party to the transaction was at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances that affect their ability to conserve their own interests, and the other party takes unconscientious advantage of the opportunity. It must be emphasised that the disadvantage must be "special" to disavow any suggestion that the principle applies whenever there is some inequality of bargaining power between the parties. What must be present is some disabling condition or circumstance which seriously affects the ability of the innocent party to make a judgment in their own interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party. (6) There may be other factors which arise such as non est factum which defence would arise in very limited circumstances to persons who, through circumstances such as blindness or illiteracy, are unable to have any understanding of the meaning of the document evidencing the agreement and who signed it in the belief it was radically different to what was in fact signed. 1. The circumstances in the present appeal are analogous to that described by the Appeal Panel in McDonald v McDonald [2016] NSWCATAP 252 at [63]: "There is no evidence of pressure, threats, or influence which made the appellant's agreement as reflected in the Conciliation Agreement Form involuntary so as to have been made under duress or to be the subject of undue influence. We do not accept that there was any relevant mistake by the appellant in signing the conciliation agreement. The appellant was not at a special disadvantage at the time she made the agreement and had it explained to her by the conciliator. Nor was she of impaired faculties. On the evidence before us, she has not established any circumstance to enable her to seek to set aside the agreement as embodied in the Conciliation Agreement Form and which formed the basis of the consent orders." 1. Further the Appeal Panel recently explained in Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 at [17] to [23]: We shall consider each ground in turn, but we note three matters. The first is that it is not necessary to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, and are often unsupported by any evidence at all, and we have not done so: Liang v University of Technology, Sydney [2018] NSWCATAP 285, Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. The second is that it is important to recognise that the orders made by the Tribunal were made by consent following the tendering of the signed conciliation agreement. Therefore, very few of the issues identified by the tenant in her grounds of appeal were considered by Tribunal. Therefore, they cannot be raised on appeal. As the plurality of the High Court of Australia noted in Coulton v Holcombe (1986) 162 CLR 1 at 8; [1986] HCA 33: . . . 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. (citations omitted) The third matter is a corollary of the second. There are various grounds articulated in the Notice of Appeal. But most cannot arise properly on an appeal as there was no hearing on the merits of the application. To take but one example, the tenant now claims that the water arrears were incorrectly calculated, but as the Tribunal was handed a signed conciliation agreement stating that water arrears were agreed at "$43.34 from 4/12/22", the issue was not raised with the Tribunal. As the Appeal Panel stated in Prenc v Stojcevski [2016] NSWCATAP 244 at [91]: Further, the issues raised … are not relevant or applicable in circumstances where the parties entered into a settlement agreement and the proceedings were determined by consent and not after a full hearing and determination of the matters in issue by the Tribunal. The settlement and the subsequent consent orders obviated the need for the Tribunal to hear and weigh all of the evidence, consider all of the orders sought and receive and consider the submissions of the parties. If the consent orders are not liable to be set aside because the settlement agreement was void or voidable, then it could not be found that the decision in this case was not fair and equitable on the bases relied upon by Mrs Prenc. For similar reasons, the decision was also not against the weight of the evidence. (Emphasis added). Evidence 1. The appellant apparently wanted to rely on some documents which were not filed in the proceedings below, despite filing 168 pages of documents in support of her original claim. As recorded above, in the section of the Notice of Appeal that concerns leave to appeal based on significant new evidence now being available which was not reasonably available at the time of the hearing, it was written "The owner has asked us to submit the following in support of the appeal: Routine inspections, open house record." Then on one Notice of Appeal, but not on other copies, there is a handwritten note "additional photos invoice". 2. Attached to the Notice of Appeal are unnumbered pages of documents. 3. In another version of the Notice of Appeal there are pages numbered 20 to 49. Each of these photographs, the house inspection register and the print out from the Fair Trading website were available at the time of the hearing on 10 February 2023. There is no explanation why the appellant did not, if indeed she did not, file these documents as she was ordered to do in the 3 November 2022 directions. They were reasonably available in November 2022, December 2022, January 2023 and February before the hearing occurred. It is also not clear whether they were tendered below or for the first time in this appeal. Effort to clarify whether the allegedly "new" documents had been put before the Member for the February hearing proved futile. 4. Throughout the appeal, the Appeal Panel explained that it refused to allow the appellant to rely upon this fresh evidence or evidence in addition to evidence received by the Tribunal at first instance. This is because each of the documents the appellant wanted to rely upon, apparently for the first time on the appeal, were readily available at the time of the 10 February hearing. The appellant merely wanted to bolster the case she presented in February by supplementing it with further or better evidence for the Appeal Panel. As was extensively explained to the appellant during the appeal hearing, the role of the Appeal Panel is not to give the appellant a second chance to argue her case; it is only to identify appealable errors. 5. The appellant relied upon the 168 pages she had tendered before the Tribunal below and the respondents relied upon the 97 pages they tendered before the Tribunal below. 6. The appellant filed unpaginated documents with the Notice of Appeal and leave was not granted for her to rely on any of these documents which were not part of her 168 pages of original documents filed in the proceedings below. 7. Inexplicitly, on 26 April 2023, the appellant filed a bundle of documents in this appeal which made some submissions about items (c) and (d) as well as about (m) & (n) which was the claim for the tenants to pay the landlord's land tax obligations. This two page document also included a "Conclusion" which made various submissions that the tenants breached the tenancy agreement and sought the appellant's 'legal costs' of the appeal in the amount $1,520 including the appellant's own time preparing the appeal which amounted to $600 for 15 hours. Attached to these two pages of appeal submissions were a variety of photocopied documents with pagination that was difficult to follow. 8. The appellant was unable to clarify whether these oddly paginated documents filed on 26 April 2023 were before the Tribunal below or if she relied on them as fresh evidence. Certainly the quotation appears to be new evidence as it is dated April 2023 which is after the 10 February 2023 hearing. To the extent that any of the documents were not filed upon by the appellant in the proceedings below, she was refused leave to rely on them in the appeal as they were reasonably available on or before 10 February 2023, or the appellant has not established why they were not reasonably available at the time of the original hearing. 9. Despite an order to do so – Order 2(d) of 15 March 2023 – the appellant did not provide a typed transcript of relevant parts nor a sound recording of the entire hearing on 10 February 2023. 10. The respondents filed a Reply to Appeal on 27 March 2023. Consideration 1. The appellant was unable to articulate any proper grounds of appeal for the Appeal Panel to adjudicate in this matter. She appeared fixated on having a re-hearing of the 10 February 2023 hearing. The appellant was advised several times that the Decision would not be disturbed unless the Appeal Panel is satisfied 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; or 2. the decision of the Tribunal under appeal was against the weight of evidence. 1. We have already concluded that no significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 2. The appellant made no submissions addressing why she should be granted leave to bring this appeal. 3. There was no allegation by the appellant that the consent orders should be set aside because they were impacted by illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or any other proper basis to set aside a consent order. 4. In reality, all that the appellant did, both in the annexure to her Notice of Appeal and subsequent submissions, was to argue for a higher monetary figure to be awarded to her than the Member decided below, or that the parties consented to during the original hearing. Taking these submissions at their highest, we will consider whether any of them establish that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable or the decision of the Tribunal under appeal was against the weight of evidence. 5. Under "Introduction" in the Decision is written the list of claims made by the appellant against the respondents: The claims the landlord is making for compensation are for: a. Repair of broken back wall $4400; and b. Repair of cracked tiles in the bathroom $4950; and c. Repair of cracked kitchen tiles above sink $2200; and d. Repair of driveway $6600; and e. Replacement of broken or missing venetian blind and carpet $7700; and f. Repair or replace missing tiles on front steps $165; and g. Repair or replace laundry floor tiles $550; and h. Carpet cleaning of lounge, dining room and bedroom $300; and i. Cleaning of kitchen, windows, toilet and bathroom $550; and j. Trim edge of driveway $120; and k. Trim hedges $660; and l. Trim weeds $120; and m. Land Tax interest 9 May 2022 $2171.88; and n. Land Tax interest 10 May 2022 $236; and o. Repairs to laundry wall and floors $1815; and p. Replacement of 3 light globes $652.80; and q. Compensation due to the tenants refusal to give reasonable access for open inspections $735. The landlord has withdrawn the vacate land tax claims at the hearing. The parties have made a consent agreement in relation to the following items: Carpet cleaning (item h), the tenant to pay the landlord $150; and End of lease cleaning (item i), the tenant to pay the landlord $200; and Driveway trimming and weeding (items j & l), the tenant to pay the landlord $120. 1. We turn to consider, to the extent we are required, each of the grounds of appeal raised about each of the items in the landlord's original claim: 1. a. Repair of broken back wall $4400; the appellant's submissions on appeal repeat the submissions she made at the original hearing which the Member recorded and assessed in the Decision. The appellant points to the quotation at page 97 of her evidence filed below which shows a cost of $2,980 to repair the wall because the wall contains asbestos. The Member concluded she was "not satisfied on the evidence before me that the tenant has breached section 51(3) of the RT Act in relation to damage to the back wall as per the photograph provided by the landlord dated 10 October 2022". We do not find the Member's Decision was not fair or equitable and we do not find the Decision was against the weight of evidence, as fairly described by the Member. We do not find the appellant may have suffered any miscarriage of justice from this part of the Decision, especially as the appellant had claimed $4,400 for damage which her own evidence estimated would cost $2,980 to repair. The appellant raised an offer made by the tenants in settlement discussions which the appellant refused to accept. Such settlement discussions do not give rise to any appealable errors. 2. b. Repair of cracked tiles in the bathroom $4950; The Member considered the evidence raised by the parties about this item and then concluded in her Decision "The exit inspection bond photographs taken on 19 September 2022 do not show the claimed tile damage. The tenants have noted damaged tiles in the ingoing condition report and supplied a photograph of cracked tiles in the shower dated 7 July 2015, within 4 days of the commencement of the tenancy. There is insufficient evidence before me that the tenant has not left the bathroom tiles of the premises in as nearly as possible to in the same condition as receiving the premises, fair wear and tear excepted. I am not satisfied on the evidence before me that the tenant has breached section 51(3) of the RT Act in relation to damage to the bathroom tiles as per the photographs provided by the landlord dated 10 October 2022". The appellant's appeal submissions were merely a repeat of the submissions below which the Member did not accept. We do not find the Member's Decision was not fair or equitable and we do not find the Decision was against the weight of evidence, as fairly described by the Member. We do not find the appellant may have suffered any miscarriage of justice from this part of the Decision. 3. c. Repair of cracked kitchen tiles above sink $2200; in the Decision the Tribunal held "The ingoing photographs supplied by the landlord do not show the kitchen splashback tiles. The tenant's have noted cracks in the ingoing condition report. The landlord has supplied a photograph from after the end of the tenancy showing a cracked tile on the kitchen splashback above the sink. There is insufficient evidence before me that the tenant has not left the kitchen splashback of the premises in as nearly as possible to in the same condition as receiving the premises, fair wear and tear excepted. I am not satisfied on the evidence before me that the tenant has breached section 51(3) of the RT Act in relation to damage to the kitchen splashback tiles as per the photographs provided by the landlord dated 10 October 2022". In her annexure to the Notice of Appeal and in her reply submissions the appellant repeats submissions made at the hearing below. To the extent her submissions were not made at the hearing below, they ought to have been and she cannot raise new submissions about the evidence previously filed at the appeal. We do not find the Member's Decision was not fair or equitable and we do not find the Decision was against the weight of evidence, as fairly described by the Member. We do not find the appellant may have suffered any miscarriage of justice from this part of the Decision. 4. d. Repair of driveway $6600; for this item the Member outlined the parties' submissions and evidence then concluded "There is insufficient evidence before me that the tenant has not left the driveway of the premises in as nearly as possible to in the same condition as receiving the premises, fair wear and tear excepted. I am not satisfied on the evidence before me that the tenant has breached section 51(3) of the RT Act in relation to damage to the driveway cracks as per the photographs provided by the landlord dated 10 October 2022." In the appeal submissions the appellant claimed $8,000 – notably more than the $6,600 claimed at first instance – for the damage to the driveway and repeated submissions made to and rejected by the Member below. We do not find the Member's Decision was not fair or equitable and we do not find the Decision was against the weight of evidence, as fairly described by the Member. We do not find the appellant may have suffered any miscarriage of justice from this part of the Decision 5. e. Replacement of broken or missing venetian blind and carpet $7700; this was not appealed. 6. f. Repair or replace missing tiles on front steps $165; The Member explained there was no evidence of the condition of the tiles on the front stairs onto the front porch. She then concluded there was insufficient evidence to prove the tenants had not left the relevant stair tiles in as nearly as possible the same condition as they were at the commencement of the tenancy, fair wear and tear excepted. She found no breach of s.51(3). In the appeal the landlord increased the claim to $545 and repeated the submissions she had made to the Member below which focussed on the ingoing inspection report dated 2 July 2015 stating "undamaged" in relation to an unidentified item in that report. Specifically the landlord wrote "The comments on the Ingoing state undamaged, to which the tenant agreed." The Member considered this submission and the ingoing inspection report. The Member noted that the "ingoing condition report does not directly address the front stairs onto the front porch. The ingoing condition report has a general staircase and railing section but there is no detail offered beyond that description. The landlord's ingoing photographs do not show the front entrance stairs to the front porch." We do not find the Member's Decision was not fair or equitable and we do not find the Decision was against the weight of evidence, as fairly described by the Member. We do not find the appellant may have suffered any miscarriage of justice from this part of the Decision. 7. g. Repair or replace laundry floor tiles $550 and (o) Repairs to laundry wall and floors $1815; these items were dealt with together by the Member and not appealed. 8. h. Carpet cleaning of lounge, dining room and bedroom $300; the parties settled this item in the hearing by agreeing to $150. On the appeal the appellant sought $300 for this item. She had no basis to do so. She did not allege the consent agreement was tainted by illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. She did not provide the transcript of the hearing. It is noted in the Decision and confirmed by the appellant and her agent who sat with her throughout the appeal hearing that "Partway through the hearing the landlord requested that the landlord's agent, Ms Tavener, represent the landlord for the remainder of the hearing." It is not known whether it was the landlord or her agent who reached agreement about the four settled items or withdrew the claims for the tenants to pay the landlord's land tax obligations. There was no suggestion that Ms Tavener did not properly represent her principal, the appellant. There is no suggestion that if Ms Tavener consented to certain items, rather than the landlord in person, that this was done without authority. There is no basis upon which the Appeal Panel would go behind the parties' agreement in relation to this item. 9. i. Cleaning of kitchen, windows, toilet and bathroom $200; the parties settled this item in the hearing by agreeing to $150. On the appeal the landlord sought $300 for this item. She had no basis to do so. She did not allege the consent agreement was tainted by illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. She did not provide the transcript of the hearing. It is noted in the Decision and confirmed by the appellant and her agent who sat with her throughout the appeal hearing that "Partway through the hearing the landlord requested that the landlord's agent, Ms Tavener, represent the landlord for the remainder of the hearing." It is not known whether it was the landlord or her agent who reached agreement about the four settled items or withdrew the claims for the tenants to pay the landlord's land tax obligations. There was no suggestion that Ms Tavener did not properly represent her principal, the appellant. There is no suggestion that if Ms Tavener consented to certain items, rather than the landlord in person, that this was done without authority. There is no basis upon which the Appeal Panel would go behind the parties' agreement in relation to this item. 10. J. Trim edge of driveway $120; This item was not appealed. 11. k. Trim hedges $660; The Member found the hedged had grown during the seven year tenancy but that they were left "neat and tidy" and thus there was no breach of s.51(3). In the appeal submissions the appellant repeated her submissions made to the Member below, which the Member had rejected. We do not find the Member's Decision was not fair or equitable and we do not find the Decision was against the weight of evidence, as fairly described by the Member. We do not find the appellant may have suffered any miscarriage of justice from this part of the Decision. 12. l. Trim weeds $120; This item was not appealed. 13. m. Land Tax interest 9 May 2022 $2171.88 and n. Land Tax interest 10 May 2022 $236; This part of the appellant's original claim concerned, in part, an "overdue land tax" invoice issued to the appellant sent to the appellant's rental premises, the premises the subject of these proceedings. The invoice was issued on 23 May 2022, some seven years into the respondents' tenancy. It had "interest included" in the amount $2,171.88: page 167 appellant's evidence. During the hearing below the appellant withdrew these items of her claim. Had she not they inevitably would have been dismissed because, as the Member noted under the heading "Consideration", s.40(1)(a) of the RT Act is: "A landlord must pay the following charges for the residential premises rates, taxes …" There is no basis upon which the Tribunal would order tenants to pay a landlord's land tax or interest incurred on unpaid or late paid land tax. Land tax is a landlord's responsibility. On the appeal the appellant stated that she was "seeking $2,407.88 as compensation". This part of the landlord's claim against the tenants had been withdrawn by her. She has provided no submissions addressing why her withdrawal of these items should be set aside. We have no basis upon which we would set aside those withdrawn parts of the landlord's claim, especially in circumstances that should the claims be made again, they would have invariably failed. 14. o. Repairs to laundry wall and floors $1815; as noted above, both items (g) and (o) were not appealed. 15. p. Replacement of 3 light globes $652.80; the Member outlined the evidence, including the oral evidence of the tenant's, about faulty light fittings in the premises which the agent confirmed were reported by the tenants. The appellant chose not to attend to repairing the faulty lights during the tenancy. In respect of the fluorescent light the Member did not accept the tenant's evidence that they reported this as faulty to the landlord. The Member awarded the landlord $50 for the replacement of two globes as her the appellant's itemised invoice. On the appeal the appellant pressed for $652.50 which she had unsuccessfully claimed at the Tribunal below. There is no basis upon which the Appeal Panel would overturn the Member's decision on this item. We do not find the Member's Decision was not fair or equitable and we do not find the Decision was against the weight of evidence, as fairly described by the Member. We do not find the appellant may have suffered any miscarriage of justice from this part of the Decision. 16. q. Compensation due to the tenants' refusal to give reasonable access for open inspections $735; on the appeal the appellant made the same submissions that the tenants pay the appellant eight days of rent "that the owner feels the property was untenanted." The Member included s.55(2)(e) and (f) in the Decision. The Member set out the uncontested evidence that the tenants agreed on access to show the premises five times in the last 14 days of the tenancy. The Member considered reasonable access when a landlord is selling the premises (which is twice in any week) and considered five times in 14 days to be a "reasonable number of times" to satisfy s.55(2)(e). There was no breach of s.55 found by the Member. We do not find the Member's Decision was not fair or equitable and we do not find the Decision was against the weight of evidence, as fairly described by the Member. We do not find the appellant may have suffered any miscarriage of justice from this part of the Decision. 1. This appeal is entirely without merit. Costs 1. The landlord sought her legal costs, and some costs which are not considered legal costs, such as her own time preparing the appeal (said to be 15 hours). As the landlord has been entirely unsuccessful, she is not entitled to a cost order in her favour. Orders 1. We refuse leave to appeal and we dismiss the appeal with no order as to costs. 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: 08 August 2023