Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gibbons v Macutay [2023] NSWCATAP 255 Hearing dates: 2 August 2023 Date of orders: 08 September 2023 Decision date: 08 September 2023 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Ziegler, Senior Member Decision: 1. The appellant's application for an extension of time in which to lodge the appeal is refused. 2. The appeal is dismissed. Catchwords: LEASES AND TENANCIES-residential tenancy-proceedings in relation to rental bond and other claims by the tenant after the end of the tenancy-order made in earlier proceedings in favour of landlords for rental arrears-award of compensation to tenant for loss of quiet enjoyment resulting from repair and mould issues-compensation awarded less than the amount sought by the tenant-net amount still owing to the landlord. APPEALS-whether to grant an extension of time to lodge the appeal-no error of law as to whether the Tribunal misunderstood the landlords' claim in respect of the rental bond - other issues raised on appeal concerned challenges to findings of fact-no arguable case of appealable error. Legislation Cited: Residential Tenancies Act 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: None cited Category: Principal judgment Parties: Angela Gibbons (Appellant) Michael Macutay (First Respondent) Francisca Macutay (Second Respondent) Representation: Appellant (Self-Represented) Thai Duong (Agent) (First and Second Respondent) File Number(s): 2023/00175176 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: N/A Date of Decision: 3 May 2023 Before: S De Jersey, General Member File Number(s): RT 23/03776 REASONS FOR DECISION Background 1. The appellant (the tenant) appeals from a decision of the Consumer and Commercial Division of the Tribunal concerning the amounts to be paid following the termination on 20 January 2023 of a residential tenancy agreement. 2. A written residential tenancy agreement for a 6 month fixed term had been made between the respondent landlords and the appellant and Jacob Pennel, as tenants, on 10 February 2022. Upon expiry of that fixed term, the tenancy had continued as a periodic tenancy, pursuant to s 18 of the Residential Tenancies Act 2010 (NSW) (RTA). 3. The orders the subject of the appeal were made in proceedings brought by the appellant against the landlords, after the tenancy had ended (the Tenant's Proceedings). The orders made provision for a sum of money to be paid to the landlords from a rental bond paid at the commencement of the tenancy and for the balance of that bond to be paid to the appellant. Otherwise, the appellant's claims were dismissed. 4. These were orders made on 3 May 2023, after a hearing that day. The Tribunal making these orders was not made aware of earlier consent orders made by a differently constituted Tribunal on 6 February 2023 in related proceedings. 5. These related proceedings (RT 23/02504) were commenced by the landlords on 18 January 2023 seeking termination of the tenancy for failure to pay the rent (the Landlords' Proceedings). Two days later, the tenants provided vacant possession of the premises and the tenancy came to an end, pursuant to s 81 (2) and s 110 (1) of the RTA. 6. Shortly after the premises were vacated, the appellant, on 25 January 2023, commenced the Tenant's Proceedings (RT 23/03776) in which she sought a variety of orders, including an order for return of the rental bond, and compensation for breach by the landlords of the residential tenancy agreement. 7. At a first hearing of the Landlords' Proceedings, on 6 February 2023, by which time the landlords' claim for a termination order had been overtaken by the vacation of the premises, the following order was made, along with an order that the application for termination and possession was dismissed: 1. By consent, the tenant, ANGELA GIBBONS and JACOB PENNEL,…. is to pay the landlord, MICHAEL MACUTAY and FRANCISCA MACUTAY,…the sum of $3,700.00 by instalments of not less than $700.00 per fortnight, first payment 22-Feb-2023. Failure to pay an instalment in this order by the due date will result in the whole of the balance being payable immediately. Reasons: ● rental arrears up until 20 January 2022 $3700.00 1. The Notice of Order containing these orders went on to note that the Tenant's Proceedings remained listed for hearing on 15 February 2023. Conduct of the Tenant's Proceedings 1. At the first hearing of the Tenant's Proceedings on 15 February 2023, directions were made for the parties to provide their written material and the hearing was adjourned to a date to be fixed. The Notice of Order contained a notation that "The landlord is claiming the bond towards the rental arrears $3700". There was also a notation that "The tenant is seeking compensation for both economic and non-economic losses due to the landlord's failure to maintain the premises in the amount of $9000." 2. The rental bond paid by the tenant at the start of the tenancy was the amount of $2800. 3. Relevantly, under s 175 of the RTA, the Tribunal may, on application by a landlord or tenant, make an order as to the payment of the amount of the rental bond. In this case, each party made such a claim. 4. The position of the landlords that they were claiming the bond towards the rental arrears was repeated in a written statement provided by them in the Tenant's Proceedings on 1 March 2023. 5. The same position was also apparent from a more detailed written statement provided on behalf of the landlords in the Tenant's Proceedings, dated 21 April 2023, which statement also responded to various issues raised by the appellant. In this statement, the landlords stated that they were owed a total amount of $3807.50 and, hence, after the payment of the bond to them the tenant still needed to pay them the amount of $1007.50. They went on to give short reasons why the tenant's claims should be rejected. 6. The landlords' statement of 21 April 2023 set out three components of the total said to be owing to them of $3087.50. Oddly, despite the order made on 6 February 2023 for rent arrears in the sum of $3700.00, the rent arrears component was specified as being $3650.00. The other two components were specified as water arrears totalling $157.50. 7. In written materials provided by the appellant in April 2023, in support of her claims in the Tenant's Proceedings, it was said that she was seeking the maximum compensation amount the Tribunal could order for breaches of the tenancy agreement leading to "loss of the irreplaceable belongings to dampness, mould in the garage and house Mould exposure caused serious ongoing detrimental health issues." Compensation was sought for "economic and non-economic loss, pain and suffering, inconveniences, peace disturbance." Four items of actual costs incurred were also referred to. 8. The Tenant's Proceedings came on for final hearing on 3 May 2023. As appears from part of the transcript of that hearing provided on the appeal, near the commencement of the hearing, Mr Thai Duong, agent for the landlords, stated that the landlords' claim was "capped" at the amount of the bond. 9. As we expand upon further below, and consistent with the Tribunal's reasons and determination, it does not seem to us that, in so stating, the landlords were saying anything other than once the various money entitlements of each party were finally determined in the Tenant's Proceedings, they would not seek to recover more than the amount of the bond. 10. Given their specification, in this context, of a rental claim for $3650.00, rather than the judgement amount of $3700, we consider that the landlords must be taken to have abandoned their rights in respect of the larger amount. The Tribunal's decision in the Tenant's Proceedings 1. The Tribunal decided that the outcome of the competing claims was a net liability of the tenant to the landlords in the amount of $2129.25. It made an order (Order 1) that the appellant was to pay this sum to the landlords immediately and another order (Order 2) which directed the Rental Bond Services to pay this amount to the landlords and the balance of the bond to be paid to the appellant. It dismissed the balance of the appellant's application (Order 3). 2. In detailed written reasons, the Tribunal set out how it had arrived at the sum of $2129.25 and the reasons why it had done so. It outlined that this amount was the net amount after concluding that the landlords were entitled to a total amount of $3809.25, made up of $3650 rent arrears, $107.50 water usage arrears and $51.75 final water usage. In favour of the tenant, it concluded that she was entitled to a total amount of $1680, made up of $480 reimbursement for air-conditioning service and $1200 compensation for loss of quiet enjoyment. 3. As to the appellant's claim in respect of mould and leaks at the property, the Tribunal made it clear that it placed greater weight on the objective evidence, rather than the disputed oral evidence of the parties. In this regard, the Tribunal placed emphasis upon a number of documents, including a report from MouldMen, dated 22 November 2022, a report from a routine inspection by the landlords' agent in early June 2022 and various emails between the parties. These documents were not consistent with the appellant's contentions as to the extent of the dampness and mould problems, including that the premises were not fit for habitation (in breach of s 52 of the RTA; see, in particular, ss 52 (1A) and (1B). 4. Having analysed the documentary material and made factual findings in relation to it, including that the documentary material did not establish that the mould issue was as extensive as the appellant contended, but that "mould was taking its hold by November 2022" (at [25]), the Tribunal concluded: 23. I find that there was a breach of the landlord's obligation in relation to the air con issue, the unsatisfactory screens, the mould in the exhaust fans, the issues of mould after the MouldMen report and that the tenant suffered a loss of quiet enjoyment in relation to these issues because except for the screens which were replaced by the tenant, the other issues were not addressed before the end of the tenancy. I am not satisfied on the evidence that the tenant's loss of quiet enjoyment was significant, she continued to live at the premises with her children; she was not constantly following up the issues and the photos she relies upon do not establish extensive repair or mould issues. …. 25. I am satisfied that a number of issues had to be followed up; a number of issues were not acted on sufficiently quickly; there is objective evidence that Mould was taking its hold by November 2022…. 1. In referring to the appellant having continued to live at the premises, no doubt the Tribunal had in mind that it was open to the tenants to terminate the periodic tenancy by giving 21 days' notice: see s 97 (2) of the RTA. There was some inconsistency between the absence of such a step being taken by the tenants and the appellant's case about extensive repair and mould issues, including that the premises were not fit for habitation. 2. Two of the claims for reimbursement of specific repair costs were rejected on the basis that the landlords were not informed of the problems and given the opportunity to repair before the expenditure was incurred: ss 64 and 65 of the RTA. 3. The Tribunal rejected the claim for damage to personal possessions for lack of proof, including that there was insufficient photographic evidence of the damage to personal possessions and that there was no evidence of the cost of purchase or age of the possessions or the estimated cost to replace any of them. Nature of appeal 1. Under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), 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. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], namely. 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 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, 1. A decision under appeal can be said to be against the weight of evidence 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: Collins v Urban at [77]. 2. In respect of a self-represented, non-legally trained appellant, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised (Cominos v Di Rico [2016] NSWCATAP 5 at [13]). Late appeal 1. The appellant was 14 days late in lodging the appeal. In accordance with rule 25 of the Civil and Administrative Tribunal Rules 2014, the appeal was required to be lodged within 14 days of the 3 May 2023 decision, but was not lodged until 31 May 2023. The appellant sought an extension of time in which to bring the appeal. 2. As explained below, whilst the appellant provided an explanation for the delay, we consider that her prospects of success on appeal were insufficient to warrant the grant of the required extension. Grounds of appeal 1. In the section of the Notice of Appeal which invited a short summary of each reason why it was considered the Tribunal was wrong when it decided to make the orders appealed from, it was stated: Respondent was claiming the Bond amount only ($2800) stated in the hearing. Supported evidence the mould existed pre-occupancy with photo (200 photos) emails, reports. Support that the Respondent breached the agreement of long-term lease. Breach that the property was habitable structure. 1. In the Notice of Appeal, the appellant sought leave to appeal on the basis that the decision was not fair and equitable, was against the weight of evidence and that there was significant new evidence now available that was not reasonably available at the time of the hearing. Alleged error of law- whether the Tribunal misunderstood the landlords' claim in the Tenant's Proceedings 1. In this section, we deal with the matter raised by the first sentence of the Grounds of Appeal section in the Notice of Appeal referred to in paragraph 32 above. 2. Plainly, as a matter of law, the landlords were bound by the case they presented to the Tribunal in the Tenant' Proceedings in respect of the rental bond and the Tribunal was required to address that case only, as a matter of procedural fairness. 3. However, as we have already mentioned, we do not consider that the Tribunal addressed and determined any different case than the one that the landlords specified in the Tenant's Proceedings. 4. So far as rental arrears were concerned, in the Landlords' Proceedings the landlords had already obtained an order in their favour for the payment of rental arrears in the amount of $3700. Those proceedings had not been concerned with any claims for relief in respect of the rental bond. Such claims became part of the Tenant's Proceedings and came to provide the landlords with an opportunity to obtain a straightforward means of recovery of the rental arrears judgement debt, along with the recovery of alleged water usage arrears. 5. In this situation, there was a clear difference between the landlords' rights to be paid particular amounts of money and the amount which, as a matter of practicality, the landlords would look to actually recover from the tenants. As to the latter, by the time of the hearing of the Tenant's Proceedings, it was also the case that the appellant had put forward her case for money amounts to be paid to her. 6. In this context, we do not consider that the Tribunal erred by addressing claims by the landlords for amounts of money that exceeded the amount of the rental bond, in arriving at its conclusions concerning the amounts to be paid out of the bond. By way of illustration, in view of the statement by the landlords' agent about capping their claim at the amount of the rental bond, we consider that the Tribunal would have erred if it had ordered that an additional amount be paid to the landlords over and above the amount of the rental bond, as a consequence of any conclusion, which the Tribunal did not reach, that the net amount owing to the landlords exceeded the amount of the rental bond. 7. As we have already mentioned, it appears the Tribunal in the Tenant's Proceedings was not aware of the earlier order in favour of the landlords for the payment of rental arrears. In view of that order, the liability for rental arrears had already been determined and it was not open to the Tribunal to determine that liability for itself. To the extent it did so, there was an error of law. 8. However, we consider that any such error was inconsequential. This is because it was open to the Tribunal in the Tenant's Proceedings to make orders in respect of the payment out of the rental bond and, in doing so, to act upon a lesser amount in respect of arrears of rent than the amount the subject of the judgement debt (unknown to the Tribunal), given that the landlords had stated the lessor amount was the amount owing to them and must, therefore, as we have said, be regarded as having abandoned their right to the larger sum. Alleged errors of fact 1. We have considered the various matters put forward by the appellant in the Notice of Appeal and written submissions in support of her contentions that the decision was based upon significant factual errors. We have also considered the extensive oral submissions that the appellant made at the hearing of the appeal. 2. A feature of the appellant's submissions on appeal was to put forward her own assertions of factual matters leading to her disagreement with the Tribunal's findings, as if she was seeking to have a second go at presenting her case. This is not the role of an appeal. In taking this approach, we were unable to identify any clear and significant error of fact made by the Tribunal based upon the factual material presented to the Tribunal. This was so, even though at the hearing of the appeal we drew the appellant's attention to the importance of seeking to establish an error of such a nature. 3. A prominent aspect of the appellant's submissions on appeal was her reliance upon photographic evidence. However, we could detect no clear error in the Tribunal's assessment that such evidence did not establish extensive repair or mould issues. To the extent that the appellant sought to challenge the Tribunal's assessment of this evidence on the basis of new evidence that she supplied on appeal showing the dates of the photographic evidence, we do not accept that such evidence fell within the requirement that such information was not reasonably available at the time of the hearing. Plainly, the date stamps that she supplied on the photographic evidence on appeal could quite reasonably have been provided for the hearing at first instance. 4. In her oral submissions on appeal, the appellant criticised the Tribunal for not referring to an email from MouldMen to the landlords' agent on 16 January 2023, sent in response to the appellant's email of 13 January 2023. The email from MouldMen referred to proposed treatment of Master Bedroom windows, window frames and the garage ceiling and that fabric materials referred to by the appellant were not treatable by them. However, these emails are not inconsistent with the Tribunal's findings, including its reliance upon the MouldMen report and conclusion that mould was taking hold by November 2022, and with its conclusions about the lack of proof from the appellant about the extent of damage to personal possessions. 5. We also note the prominence in the appellant's materials to problems with the garage ceiling, including her reference in oral submissions on appeal to an email to her from Expert Roof Painting, sent on 2 March 2023, and an associated invoice, dated 10 January 2023. It seems to us that such references concerning the garage, which is not a living area, are consistent with the Tribunal's conclusion that it was not satisfied that the tenant's loss of quiet enjoyment was significant. 6. In her oral submissions on appeal, the appellant submitted that the Tribunal had ignored her case that the air-conditioning had caused health issues to the family. However, there was no proper proof of such a consequence presented to the Tribunal and this lack of proof was not overcome by a short statement from the family doctor, presented to the Tribunal, with dates of consultations and a statement that she could be called to clarify any details or concerning the nature of the consultations. 7. With further regard to the assessment of $1200 loss of quiet enjoyment, the appellant submitted that the Tribunal had overlooked that it was intended that the tenancy would be a long-term tenancy, as revealed by the special condition in the tenancy agreement that "If there is no breaches during the term of lease, the tenancy lease will be renewal (sic)". However, the Tribunal was correct in finding that the tenancy agreement came to an end on 20 January 2023, without any breach by the landlords concerning such termination, and there was no legitimate basis for any challenge to that conclusion. 8. As to the water usage amounts that the Tribunal found were owing to the landlords, the appellant submitted that she could not see where on the landlords' ledger an amount of $100 paid by the tenants towards future water usage had been credited towards rent, as the Tribunal had found. However, the ledger does show a credit for this amount toward the rent due for the period from 18 to 24 April 2022 (see on page 30 of the appellant's bundle of materials lodged on 13 July 2023). We can discern no clear error in relation to this. 9. As to the final water usage bill, the appellant submitted that she had never received such a bill. However, the Tribunal found that the relevant account (from which it derived in apportioned amount) had been received by the appellant through the provision of the landlords' evidence (at [26]). In so finding, no doubt the Tribunal had in mind s 39 (2) and (3) of the RTA. Again, we can discern no error by the Tribunal concerning this aspect. Application for extension of time to appeal refused 1. As mentioned previously the appeal has been lodged 14 days late. 2. The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, including that the discretion to extend time can only be exercised in favour of the applicant upon proof that strict compliance with the rules will work an injustice upon the appellant. 3. We have considered the factors that, generally, should be considered concerning the application for an extension of time, as outlined in Jackson, including the appellant's explanation for delay and the supporting evidence from a medical practitioner concerning health conditions of her children. 4. However, we do not consider that refusal of an extension of time will work an injustice to the appellant. This is because, for the reasons we have outlined above, we do not consider that the appellant has an arguable case on appeal. 5. For the same reasons, even if we had granted an extension of time to lodge the appeal, we would have refused leave to appeal, to the extent that such leave was required. Orders 1. Accordingly, we make the following orders: 1. The appellant's application for an extension of time in which to lodge the 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: 08 September 2023