Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lee v Taylor [2023] NSWCATAP 267 Hearing dates: 21 August 2023 Date of orders: 06 October 2023 Decision date: 06 October 2023 Jurisdiction: Appeal Panel Before: I R Coleman SC ADCJ, Principal Member R C Titterton OAM, Senior Member Decision: 1. In so far as the appeal raises questions of law, the appeal is dismissed. 2. In so far as the appeal raises other errors, leave to appeal is refused. Catchwords: APPEAL - whether appellant establishes error on question of law - whether appellant establishes grounds for leave to appeal - whether "new evidence" relied on by appellant was not reasonably available at time of original hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80, cl 12 of Sch 4 Residential Tenancies Act 2010 (NSW), ss 19, 21, 38, 39, 40, 41, 47 Residential Tenancies Regulation 2019 (NSW), cl 34 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Keen, Witchard v Pierpoint (Tenancy) [2012] NSWCTTT 511 Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 Ros v Commissioner of Police [2020] NSWCATAP 70 Saqa v Kashro [2018] NSWCATAP 265 Semaan v McIlroy; McIlroy v Semaan [2017] NSWCATAP 146 Category: Principal judgment Parties: Denise Taylor (Appellant) Annabell Lee (Respondent) Representation: Appellant (self-represented) Illawarra Legal Centre Inc - Tenants Service (Respondent) File Number(s): 2023/00206760 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2023] NSWCATCD Date of Decision: 19 June 2023 Before: M Barnes, Member File Number(s): RT 23/17627 REASONS FOR DECISION Introduction 1. By Notice of Appeal filed 26 June 2023 Annabell Lee (Appellant) appealed against orders made by the Consumer and Commercial Division of the Tribunal on 16 June 2023 in proceedings brought against her by Denise Taylor (Respondent). The Appellant challenged the order of the Tribunal that she pay the Respondent the sum of $965.62 with respect to electricity charges and the decision that the Respondent was not liable to pay the Appellant the sum of $712.00 for water usage in relation to premises owned by the Appellant which the Respondent had rented from her. 2. The Appellant sought that the orders of the Tribunal be set aside and the Respondent's application be dismissed. The Appellant sought leave to appeal, asserting that the decision of the Tribunal was not fair and equitable and that it was against the weight of evidence. The Appellant also sought to rely upon assertedly "new evidence". 3. On 3 July 2023, the Appellant provided the Tribunal with grounds of appeal which were said to have been inadvertently omitted from her Notice of Appeal. 4. On 6 July 2023, the Respondent filed a Reply to Appeal seeking the appeal's dismissal, and that leave to appeal be refused. 5. On 27 July 2023, the Appellant filed a Response to the Respondent's Reply to Appeal. 6. On 11 August 2023, a Tenant's Advocate filed 94 pages of submissions and annexures on behalf of the Respondent. Preliminary Issue 1. At the commencement of the hearing of the appeal, the Appeal Panel raised with the Appellant whether leave should be granted to the Respondent to be represented by a Tenant Advocate. The Appellant opposed the granting of leave, but did not suggest that she was prejudiced if leave were granted. The Appellant informed the Appeal Panel that she would not have obtained legal representation had she known in advance that the Respondent would seek to be represented by a Tenant Advocate. In those circumstances, the Appeal Panel granted leave for the Respondent to be represented by a Tenant Advocate. Reasons for Decision of the Tribunal 1. The Tribunal's reasons for decision were published on 19 June 2023 (Decision). 2. The Tribunal referred to the claim of the Respondent in reliance upon s 47 of the Residential Tenancies Act 2010 (NSW) (RTA) for repayment of electricity and water usage paid by her during the course of her tenancy of the Appellant's Worrigee property. 3. The Tribunal found that the parties first entered into a residential tenancy agreement on or about 29 July 2021 (Agreement). The Agreement was found to have been extended "on a number of occasions". The Tribunal found it to be uncontroversial that the premises consisted of "a main dwelling and what was described as a granny flat". The latter was found to have been rented by the Respondent. The "main house" was found to have been rented by her son, Peter Musson, and his family. The Tribunal also found that the "rental arrangements were subject to separate Residential Tenancy Agreements". None of these matters was controversial in the appeal. 4. The Tribunal recorded that evidence had been given by the Respondent, her son and the Appellant. The Tribunal also recorded that the parties "had an opportunity to ask questions or cross-examine the witnesses about various aspects of the claim". Although the Appellant disputes that finding, she has not produced a transcript of the hearing of the proceedings. In the absence of the transcript, there is no basis for doubting the Tribunal's finding. 5. The Tribunal referred to a letter of demand from the Respondent to the Appellant claiming the sum of $712.00 as repayment for water usage charges which the Respondent claimed she had paid. The Tribunal recorded that the evidence "established, however, [the Respondent] did not pay for the water usage amounts". Her son was found to have done so. The Respondent's son not having been a party to the proceedings, the Tribunal declined to make any order with respect to the repayment of any sum for water usage. 6. The Tribunal found that, as the Respondent had "not made the payments, she is not entitled to reimbursement. However, she is not liable to pay the sum of $712[.00] as the water was not separately metered". We did not understand the Appellant to actively pursue that part of the Tribunal's decision. Thing to which the Appellant referred us demonstrates error in that regard in any event. The Respondent did not cross-appeal the Tribunal's decision. 7. The Tribunal referred to a "separate" letter of demand of 9 May 2023 claiming reimbursement in the sum of $6,965.62 "relating to electricity". The Tribunal recorded that it was "agreed between the parties that the amount set out in that letter of demand which totalled the sum of $6,965.62 were in fact paid by [the Respondent]". The Appellant disputed that finding in the appeal. 8. The Appellant has not provided the transcript of the hearing before the Tribunal in accordance with the Tribunal's directions. In those circumstances, and in the absence of reference to any source documents demonstrating that the finding of the Tribunal was wrong, and the Appeal Panel has not been referred to any such documents, any challenge to that finding by the Appellant must fail. 9. Not insignificantly, the Tribunal recorded that the Respondent "provided to the Tribunal bank statements confirming payment" of the electricity charges which she sought to have repaid, and that the Appellant "had the opportunity to inspect those statements and ask questions" of the Respondent. 10. The Tribunal recorded that the Appellant "relied on her handwritten statement and in particular, par [5] in which she deposed to a conversation that the [Respondent] and her son took upon the lease agreement with full knowledge that it was not separately metered". The Tribunal found that par [5] of the statement referred "to a Statutory Declaration witnessed by a person called Fred Dawson". The Declaration was by the Respondent's son and stated that "in the event of any difficulties of mum paying rent, I will cover it". The Tribunal recorded, accurately, that there was "no mention of payment of any utilities including electricity or water" and further, and again correctly, that Mr Dawson "merely witnesses" a Statutory Declaration. The Tribunal recorded, accurately, that there was no statement of Mr Dawson filed with the Tribunal and/or served on the Respondent, and that Mr Dawson was not present at the Tribunal to give evidence. The Appellant appeared to challenge the latter finding. As will become apparent, whether Mr Dawson was present at the hearing has no impact on the outcome of the appeal. 11. The Tribunal recorded that the Respondent's son gave evidence and was cross-examined, during which he stated that "the first time he became aware of [the absence of separate metering of the water and electricity at the property] was at a directions hearing in May 2023 at the Tribunal". In the circumstances, the Tribunal was not "persuaded to the degree required that the conversation opposed [sic] to him in par [5] took place in the terms deposed to by (the Appellant)". The Tribunal found the Respondent's son to be an "honest and credible witness" and was "inclined to find in accordance with his evidence". The Tribunal recorded that, even if it was wrong, and the conversation did take place, it did not give rise to any form of estoppel such as to excuse the landlord's failure to comply with the provisions of the RTA. 12. The Tribunal referred in that context to s 38 of the RTA which states: "(1) A tenant must pay the following charges for the residential premises: (a) all charges for the supply of electricity … to the tenant at the residential premises if the premises are separately metered" 1. The Tribunal also referred to s 39 of the RTA which states: "(1) A tenant must pay the water usage charges for the residential premises, but only if- (a) the premise are separately metered" 1. The Tribunal found that that the application of s 47 of the RTA was "not limited to overpayment of rent under invalid rent increases but extends to overpayment of utility charges, bonds, and other amounts to be paid. There is no question that [the] Tribunal has jurisdiction here and [sic] determined this claim". 2. The Tribunal held that the Respondent had properly given notice to the Appellant "in the form of the letters of demand" to which it had earlier referred. The Tribunal referred to s 40 of the RTA which states: "(1) Landlord must pay the following charges for residential premises- … (c) all charges for the supply of electricity … to the tenant at the residential premises that are not separately metered." 1. The Tribunal referred to cl 34 of the Residential Tenancies Regulation 2019 (NSW) which provides "an exemption to the requirement that the landlord pay electricity if the residential premises are not separately metered. None of those provisions apply here". The Tribunal concluded that "for the landlord to insist on payment of the electricity and water usage, such services must be separately metered. It is not for the Tribunal to go behind the clear and expressed intention of the legislation [sic] requirements". 2. Although the reasons for the Tribunal's Decision are brief, there is no express or implied suggestion that they are inadequate. The parties know why the case was decided as it was. So does the Appeal Panel. The principles governing the appeal 1. The principles governing the appeal are not in doubt. Pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), save with respect to interlocutory decisions, the Appellant may appeal as of right on any question of law or, with leave of the Appeal Panel, on any other grounds. 2. What may constitute a question of law is also not in doubt. In Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at 13 the Appeal Panel recorded a non-exclusive list of "questions of law", being: "(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 has 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 irrelevant considerations; (7) Whether there was no evidence to support a finding of fact; and (8) Whether the decision was so unreasonable that no reasonable decision-maker would have made it." 1. It is difficult to know what, if any, question of law the Appellant's grounds of appeal purported to raise. Consistent with decisions of the Appeal Panel (Ros v Commissioner of Police [2020] NSWCATAP 70) we have not applied an overly legalistic approach to the articulation of grounds of appeal in an appeal by a self-represented litigant with no legal qualifications or experience. The Appeal Panel considers whether it can discern any questions of law as grounds of appeal from the Appellant's Notice of Appeal, her oral and written submissions in support of the appeal, and the reasons for the first instance decision (Ros at [21]). 2. The Appeal Panel endeavoured to explain to the Appellant the nature of the proceedings before it, and the fact that the appeal was not a rehearing of the first instance proceedings, or, a "second go". The Appeal Panel also explained that persuading us that, had the Members of the Appeal Panel constituted the Tribunal at first instance, we may have come to a different decision to that of the Tribunal did not mean that the decision of the Tribunal was wrong in law. It is in the nature of an evaluative determination, such as that made by the Tribunal, that minds may reasonably differ on the same set of facts without erring on a question of law. 3. As the appeal is from a decision of the Consumer and Commercial Division of the Tribunal the provisions of cl 12 of Sch 4 of the CAT Act apply to the Appellant's application for leave to appeal. The principles governing the granting of leave to appeal were succinctly articulated in Collins v Urban [2014] NSWCATAP 17. 4. The granting of leave pursuant to s 80(2)(b) of the CAT Act is discretionary. In order to enliven the discretion to grant leave to appeal, the Appellant must satisfy the Appeal Panel that she "may have suffered a substantial miscarriage of justice" because the decision of the Tribunal under appeal was "not fair and equitable", or was "against the weight of evidence", or that "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)". 5. The Appeal Panel summarised in Collins the general principles emerging from the authorities to which the Appeal Panel referred in the following terms (citations omitted): "(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. (2) 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." The Appellant's grounds of appeal 1. The Appellant's Notice of Appeal articulated six grounds. Rather than attempt to paraphrase the introduction to the Appellant's grounds, we record it in full. The introduction to the grounds asserted that: "The Tribunal overlooked that its power to make an order under s 47 of the Residential Tenancies Act is discretionary. Once it identified the effect of ss 38-40 of that Act and the absence of any estoppel, it treated an order for full repayment of the electricity charges as something which automatically followed - without recognising that it still needed to undertake an assessment of whether or not to exercise its discretion to make the order (and if so, in what amount) having regard to the broader circumstances of the case. Consequently, it failed to consider the following matters, which the Appeal Panel is asked to consider and account for accordingly to refuse or reduce the amount of any order for repayment." Ground 1 1. Ground 1 of the Appellant's Notice of Appeal, which was in the same terms in the further copy grounds of appeal provided on 3 July 2023, asserted that: "The Tribunal needed to consider questions of unjust enrichment prior to making a determination [authorities listed] and ensure its orders would not result in an unfair windfall to the Applicant." 1. The Appellant attached a number of documents to her Notice of Appeal, none of which advanced the articulation of her grounds. 2. In her responding document filed 27 July 2023, the Appellant set out the substance of her unjust enrichment complaint. The Appellant there said that the Respondent was: "aware from the outset of her agreement that the utilities were on one meter and had no objection to this until they vacated and subsequently faced loss of the bond. Up until that time there had been NO issue as to the one meter as it was family affair. Once the bond had been forfeited the Respondent saw an opportunity to enrich herself at the expense of the Appellant. In fact, the gran [sic] children of the Respondent were living in the Granny flat and the Respondent had moved, in fact it is doubtful that she ever resided in the granny flat as she is named as one of the eight (8) occupants of the original lease for the main residence. The Tribunal failed to see this as a possibility when looking at the claim and the Appellant notes that the verbal evidence of Fred Dawson was not taken into account as the Appellant was not aware that he could attend and give sworn testimony at the original hearing. Fred Dawson is with me today." 1. The Appellant reiterated that: "This claim for the payment of electricity for the entire complex, which housed, at least eight (8) people is an attempt at enrichment by the Respondent needs to be [sic] needs to be seen in the light of the evidence. At some time over the course of the lease, the occupants had a caravan parked at the property plugged into the power at the address for a period of at least three (3) months. Over the term of the lease, neighbours to the property at [XXXX], complained about the amount a [sic] vehicles parked in the cul-de-sac overnight as the occupants spent some time weeks at the house. This is evidenced by the living room having a room divider in it, with a bed and the garage having two (2) made up double beds in it. These were sighted during an inspection." 1. The Appellant emphasised that, in the manner she alleged, the Respondent was "attempting to enrich herself" at the Appellant's expense, and that the absence of separate metering of the property for electricity or water had "never been an issue" until long after the first of the numerous lease agreements had been entered into. The Appellant submitted that there were "plenty of precents [sic] that relate to enrichment" in the rulings to which she referred in her submissions. 2. The Appellant made a number of submissions about the Respondent's asserted failure to prove that she had made the payments with respect to electricity which were the subject of the Tribunal's order. As recorded earlier, and contrary to the standard procedural directions in appeals, the Appellant did not produce the transcript of the hearing before the Tribunal at first instance. We have referred earlier to the Tribunal's findings and the two bases of those findings, they being that it was not in issue that the Respondent had made the payments which were the subject of the reimbursement order and that, quite apart from the Appellant's concession in that regard, there was source documentation evidencing the payments. In the absence of the transcript, we are unable to accept challenges to the Tribunal's finding of fact with respect to the payment for electricity by the Respondent which was the subject of the Tribunal's order. 3. The Respondent's submissions engaged extensively with this ground. It is unnecessary for us to refer extensively to those submissions. We agree with the submissions of the Respondent that the Tribunal decisions to which the Appellant referred do not advance this ground. 4. Unless some basis for disturbing the Tribunal's findings of fact is demonstrated, it is unnecessary to consider the principles of unjust enrichment or the authorities with respect to them. Put bluntly, unless the Appellant demonstrates, pursuant to other grounds of her appeal, or pursuant to leave to appeal that the Tribunal's decision was erroneous on a basis recognised by the law, no question of enrichment of the Respondent, unjust or otherwise, arises. If the decision of the Tribunal is not disturbed, the Respondent will be entitled to receive the monies to which the Tribunal found her entitled. Pursuant to the decision of the Tribunal, repayment of those monies does not constitute enrichment, simply the reimbursement to the Respondent of monies which the Tribunal found she was not liable to pay. 5. Unless the Appellant establishes a basis for appellate intervention, there can be no question of the Appeal Panel exercising some undefined residual discretion to intervene in reliance on the "broader circumstances of the case". 6. The Appellant has not demonstrated that any material finding of fact made by the Tribunal was "wrong". Other findings may have been open to the Tribunal, but that does not mean that the Tribunal erred in finding as it did. The Appellant has not demonstrated that the Tribunal failed to have regard to any relevant matter, had regard to irrelevant matters, mistook the law or made a decision which no reasonable decision maker would have made. 7. As we have earlier recorded, the Appellant has not produced a transcript of the hearing. To what extent, if any, the Appellant agitated a case in reliance upon unjust enrichment at first instance is not apparent or discernible. Irrespective of whether, as the Respondent asserted, the Appellant raised, or failed to raise an unjust enrichment claim at first instance, nothing to which she has referred in support of this ground demonstrates error, or any basis upon which leave to appeal in reliance upon those submissions has been established. 8. If the Tribunal had made the findings of fact which the Appellant submitted that it should have made, questions of unjust enrichment may have required consideration, but, having found as the Tribunal did, and no error in doing so having been demonstrated, the Appellant's case at first instance, and on appeal, could not succeed on that basis. Grounds 2, 3 and 5 1. It is convenient to deal with grounds 2, 3 and 5 together as they involve essentially the same complaint. 2. Ground 2 asserted that: "Even accepting the Tribunal's factual finding that there had been no prior conversation about the premises not being separately metered, the Applicant (Respondent) knew the premises were in fact not separately metered at least from the time she opened (and commenced paying) an electricity account for both premises." 1. Ground 3 provided: "Whatever knowledge or discussions occurred prior to commencing the tenancy, the parties conduct shows they had consistently conducted themselves throughout the duration of the tenancy on a common understanding that the cost of electricity was not included in the rent and would be paid by the tenants of the two premises." 1. Ground 5 provided: "The application was made after a long and unexplained delay, to the detriment of the (Appellant). The (Respondent) willingly connected the electricity for both premises in her own name and willingly paid the electricity account for the entire tenancy without comment, without seeking repayment and without notifying the (Appellant) that she would seek repayment - allowing the (Appellant's) liability to accumulate, while taking the benefit of the electricity used but not factored into the rent, and depriving the (Appellant) of the opportunity to seek to have the premises separately metered or to factor the additional expense into the rent." 1. In support of these grounds, the Appellant relied on her submissions in support of her unjust enrichment ground. The Appellant also submitted that the Respondent "subsequently entered into a lease for the granny flat", and that she understood "that the Granny Flat was rented for the teenage gran [sic] children of the Respondent as 'they needed their space'". The Appellant submitted that "as such the Respondent lived in the main residence which had the electric meter for the entire property. The Respondent was aware of this. It didn't become an issue until the Appellant claimed the bond on the property leased by her son and partner, with an order against them". 2. The Respondent made extensive submissions in opposition to these grounds, most of which we agree with. Although we have reservations about whether the principles governing appeals against discretionary judgments apply to these grounds, nothing turns on whether the decisions challenged pursuant to these grounds involved evaluative or discretionary determinations. 3. The absence of the transcript of the hearing, or the Appellant referring the Tribunal to any evidence to which the Tribunal was directed, or should have directed itself, render success of these grounds problematic. With respect to her, other than strongly expressing her disagreement with the Tribunal's findings, and asserting that the Tribunal should have made other findings which were favourable to her, nothing to which the Appellant has referred establishes error on a question of law, or on any other basis. The reason why the Appeal Panel clearly directs parties to produce a transcript of the hearing of proceedings at first instance if they dispute what happened at first instance is that, without the transcript, other than in cases involving the failure to consider evidence which clearly was before the Tribunal, the Appeal Panel cannot proceed on the assumption that the Tribunal failed to consider any relevant fact or circumstance. 4. As we have also earlier recorded, although the reasons of the Tribunal at first instance were relatively brief, there has been no challenge to their adequacy. The Tribunal's reasons make sufficiently clear why the case was decided in the way it was. Quite simply, although the Appellant may have had a case based on estoppel by conduct, she has not directed the Appeal Panel to any evidence which was before the Tribunal which it should have, but failed to consider. The Appellant has not suggested, and the Appeal Panel has not discerned anything for itself to suggest that the Tribunal at first instance took into account irrelevant considerations in reaching its decision. Importantly, to the extent that the Appellant has identified any evidence which was before the Tribunal, the Tribunal considered that evidence and made findings with respect to it. 5. Importantly, the Tribunal was not satisfied on the balance of probabilities that the conversation referred to in the Statutory Declaration which Mr Dawson witnessed "took place in the terms deposed to" by the Appellant. The Tribunal expressly found that even if it was wrong, and the conversation did take place, it did not give rise to any form of estoppel such as to excuse the Appellant's failure to comply with the provisions of the RTA. Nothing to which the Appellant has referred the Appeal Panel establishes that any finding of fact made by the Tribunal at first instance in relation to this issue was not open to it. Nor has anything to which the Appellant has referred the Tribunal established that any finding of fact made by the Tribunal, or alternative finding which it may have made rendered erroneous its finding that the Appellant did not make out a case in estoppel. 6. The Tribunal referred to the provisions of s 38 of the RTA which provide that a tenant "must pay" all charges for the supply of electricity to the tenant at the residential premises "if the premises are separately metered". As the Appellant's submissions make clear, she was aware that the premises were not separately metered and, knew that, as a result, she risked effectively paying for the tenant's electricity, which she could have reflected in the rent which was payable by the Respondent, or by entering into an agreement with the Respondent which averted that risk. 7. Section 39 of the RTA, to which the Tribunal also referred, was in similar terms with respect to water usage. The Appellant's remedy, as she again recognised, assuming that she did not wish to separately meter the premises for electricity and water usage, was to reflect the risk that she would incur significant expense for water usage by the tenants in the rent which was paid, or by entering into an agreement with the Respondent which averted that risk. 8. The Tribunal's rejection of the Appellant's contention that, long before the Respondent ceased to occupy the premises she, and her son, were aware that the premises were not separately metered for water and electricity, and, expressly or impliedly assumed liability for them was fatal to the Appellant's case. Having declined to reject the Respondent's case that the first that she and her son became aware that the premises were not separately metered for water and electricity was in May 2023, the factual basis of any estoppel or other claim which the Appellant may have advanced before the Tribunal dissolved. There is no merit in these grounds. 9. The statutory scheme created by ss 38 and 39 is clear and consistent - if premises are separately metered for electricity and/or water, the tenant must pay for those services. Having regard to the undisturbed findings of fact of the Tribunal, it did not err in any of the ways asserted by these grounds by failing to find that the Respondent was liable to make the disputed electricity payments. Ground 4 1. Ground 4 asserted that: "The amount the (Respondent) paid for electricity was in part for supply to her premises (for which s 47 is intended to provide repayment), and in part the knowing and voluntary payment of her son's expenses for his own premises (which is not a matter s 47 is intended to provide for)." 1. In support of this ground, the Appellant relied upon the submissions to which we have earlier referred. The difficulties which confront the potential success of this ground have been referred to earlier and do not need to be restated. 2. The Respondent made a number of submissions with respect to the meaning and operation of s 47 of the RTA. Section 47 of the RTA is headed "Tenants remedies for repayment of rent and excess charges" and provides: "(1) Requests to landlord A tenant may make a written request to the landlord that the landlord repay to the tenant any rent, or other amounts, paid by the tenant that are not required to be paid under this Act or the residential tenancy agreement. (2) A request may be made during or after the termination of a residential tenancy agreement. (3) A landlord must, within 14 days of a written request by a tenant, repay to the tenant the amount of any rent or other amount paid in excess of the amount payable by the tenant under this Act or the residential tenancy agreement. (4) Tribunal orders A tenant may apply to the Tribunal for an order for the repayment of rent or any other amount paid by the tenant if a written request by the tenant for repayment is not complied with by the landlord within 14 days. (5) The Tribunal may order that rent or any other amount be repaid to the tenant if it finds that the rent or amount was not required to be paid by the tenant under this Act or the residential tenancy agreement." 1. The Respondent relied on decisions of the Tribunal Semaan v McIlroy; McIlroy v Semaan [2017] NSWCATAP 146 and Saqa v Kashro [2018] NSWCATAP 265 in support of her contention that water and electricity charges fell within the ambit of "other amounts" for the purpose of s 47 of the RTA. We accept that to be the case. 2. The Respondent submitted that s 47 of the RTA provided no express or implied restriction requiring a payment to be made unknowingly or involuntarily and submitted that there was no "purposive reason" to read in a restriction as suggested by the Appellant. The Respondent submitted that the legislation "clearly works to balance the rights of parties in a situation where there may be an imbalance of power in the contractual relationship, and agreements contrary to the Residential Tenancies Act are void" pursuant to s 21 of the RTA. 3. It was further submitted by the Respondent that the construction of s 47 urged by the Appellant "may also have the effect of exempting the landlord from liability for the omission of failing to pay the electricity charges in accordance with s 40 of the RTA Act and would thus be prohibited pursuant to s 19(2)(c) of the RTA". 4. We have earlier referred to the provisions of ss 38 and 39 of the RTA upon which the Tribunal at first instance relied. Section 40 of the RTA, to which the Tribunal also referred, provides that the landlord must pay a number of charges for residential premises, including "all charges for the supply of electricity … to the tenant at the residential premises that are not separately metered" (s 41(c)). The provisions of the RTA are thus clear, and fair with respect to the liability of the landlord and tenant when electricity and water supplies to premises are separately metered, and when they are not. As the provisions of the RTA apply, the consequence is that "amounts" paid by the tenant that are not required to be paid under the RTA or the residential tenancy agreement must be repaid to the tenant upon the giving of notice pursuant to s 47 of the RTA. We also agree that the term "repay" in s 47 of the RTA is not limited to money paid directly to the landlord (see Keen, Witchard v Pierpoint (Tenancy) [2012] NSWCTTT 511). 5. Nothing to which the Appellant has referred the Appeal Panel establishes this ground. Ground 6 1. Ground 6 asserted that: "The rationale underlying ss38-40 that a tenant should not have to pay (or accept an arbitrary apportionment of) the cost of utilities consumed by others, has no bearing on the special circumstances of this case where the parties sharing the cost of utilities were family members who shared expenses anyway (having regard to Mr Musson's agreement to cover the (Respondent's) rent when needed and the arrangement between the (Respondent) and Mr Musson where one paid the electricity and the other paid the water for both premises." 1. As with her earlier challenges, the Appellant relied on the matters which we have set out earlier in these reasons. Inferentially, the Appellant's submissions with respect to the sum ordered to be repaid to the Respondent for electricity charges having not been paid formed part of the substance, if not the terms of this challenge. The Appellant submitted in that regard that "[i]n a civil case, the Respondent would be required to prove that she made all the payments. This was not shown at the first hearing". The Appellant further submitted that "[a]s stated previously anyone can have a card with their name on it, but attached to a third parties [sic], account." The Appellant submitted that "[t]o prove that she made the payment, the Respondent should provide the account statements from the power provider and also provide the bank statements in her name that show the corresponding debit when the payment was made from her account and not a third parties [sic] using a card issued on the third parties [sic] account". 2. This was submitted to be "basic accounting" and to be "required if the Respondent is to show that she made all payments". The Appellant submitted that "[i]n her tendered papers to the Tribunal (the Respondent) has not done this. The Respondent has not shown that she has in fact personally paid for the utilities, but only shown her card number". It was thus submitted that "[a]s such, the Tribunal cannot and also has the power to disallow any payment the [sic] that the Respondent cannot prove she made. If the claim the Respondent made is allowed the Respondent has enriched herself at the expense of the Appellant". 3. As we have earlier recorded, the Tribunal recorded that it was "agreed between the parties that the amounts set out in the Respondent's letter of demand of 9 May 2023 totalling $6,965.62 "were in fact paid by Ms Taylor". Nothing to which the Appellant has referred us suggests that the Tribunal erred in recording that agreement, or that the Appellant's agreement was based on any misunderstanding of fact or law or erroneous belief with respect to the payments having been made. Notwithstanding the agreement which it recorded, the Tribunal recorded that the Respondent had provided "bank statements confirming payment" which the Appellant had the opportunity to inspect and ask questions about. Nothing to which the Appellant has referred establishes that anything thus recorded by the Tribunal was erroneous or that any documents produced by the Respondent did not support the finding made by the Tribunal with respect to payments for electricity which the Respondent made. 4. There is no basis on which, whether pursuant to this or any other ground, the Appellant's complaints with respect to the Tribunal's finding that the Respondent had made electricity payments in the sum which was awarded to her was erroneous. 5. The Appellant has not referred to any statutory provision, principle or authority which establishes that the provisions of the RTA do not have universal operation, or that their application is in any way dependent upon, or varied by, reference to the identity of or relationship between the occupants of leased residential premises. Leave to appeal 1. No ground of appeal with respect to a question of law having been made out, it is necessary to consider whether the Appellant should be granted leave to appeal. Decision not fair and equitable 1. The Appellant asserted that the decision of the Tribunal was not fair and equitable. In support of that claim the Appellant submitted that "[t]he Tribunal assumed the "main dwelling" and "granny flat" were two separate "residential premises", but (that) the two residential tenancy agreements were each for the non-exclusive occupation of the whole of the property at [XXX] Worrigee". The decision of the Tribunal was asserted to be not fair and equitable "because the Tribunal failed to consider matters of fairness and equity in the exercise of its discretion, for the reasons stated in the grounds of appeal", the decision of the Tribunal being submitted to "allow for the unfair enrichment of the Respondent". 2. The absence of success of any of the Appellant's grounds of appeal renders problematic any success on the basis that the decision was not fair and equitable. The fact that a party does not consider a decision fair or equitable does not, without more, establish that it was not. 3. The Appellant having failed to establish that the Tribunal erred in making its order with respect to its repayment order pursuant to s 47 of the RTA, the scope for finding the decision was not fair and equitable on any unidentified independent basis is difficult to suggest. Nothing to which the Appeal Panel has been directed establishes that the decision of the Tribunal, which was not erroneous on a question of law, produced a result which was not fair and equitable in law. Having rejected the Appellant's grounds of appeal on questions of law, and in the absence of any identified basis upon which it could do so, the Appeal Panel cannot make the findings necessary for leave to be granted on this basis. Decision against the weight of the evidence 1. The Appellant also sought leave to appeal on the basis that the decision of the Tribunal was against the weight of evidence. The Appellant raised two matters in support of this challenge. The first, to which we have referred in the context of our consideration of her grounds of appeal, was that the Tribunal could not find that the Respondent had proved that she made the payments for electricity which the Tribunal ordered the Appellant to repay to her. It is unnecessary to reiterate our consideration of those matters, save to record that nothing to which the Appellant has referred the Appeal Panel establishes that the findings of the Tribunal with respect to the Respondent's payments for electricity was against the weight of evidence. 2. The Appellant also complained in this context that "I didn't have the opportunity to bring my witness Fred Dawson who could have provided rebuttal evidence to the claims by Musson. Furthermore I was unable to obtain legal advice due to the short lead time which was over the King's birthday weekend". 3. The Appellant acknowledged that Mr Dawson's evidence was available to her at the time of the hearing. More importantly, the Appellant did not suggest that Mr Dawson's evidence went beyond his witnessing of the Statutory Declaration to which the Tribunal referred and made findings. None of those findings has been shown to have been erroneous or against the weight of evidence. Nothing to which the Appellant has referred the Appeal Panel suggests that anything recorded by the Tribunal with respect to the conduct of the hearing, and the opportunity for the Appellant to have called Mr Dawson as a witness was inaccurate. 4. To the extent that the second complaint is in substance an alleged denial of natural justice by not allowing the Appellant an adjournment to obtain legal advice, nothing to which the Appeal Panel has been referred advances that claim. In the absence of a transcript, we cannot assume that the Appellant sought an adjournment of the proceedings, much less that the Tribunal erroneously declined to grant her such adjournment, or that the Tribunal erroneously refused to allow the Appellant to call Mr Dawson to give evidence, assuming, which has not been established, that the Appellant sought to do so. Significant new evidence 1. The new evidence upon which the Appellant sought to rely comprised "witness testimony from Fred Dawson" and "legal precedents detailed at 5(b)". Mr Dawson's evidence was available at the time of the hearing before the Tribunal at first instance. It could not give rise to a grant of leave to appeal. We have earlier referred, albeit briefly, to the legal precedents to which the Appellant referred before the Appeal Panel and recorded our agreement with the submissions of the Respondent that those decisions did not assist the Appellant's case. Conclusion 1. No ground of appeal or basis for leave to appeal having been established, the appeal will be dismissed. Order 1. The Appeal Panel orders: 1. In so far as the appeal raises questions of law, the appeal is dismissed. 2. In so far as the appeal raises other errors, leave to appeal is refused. ********** 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 Amendments 19 February 2024 - paragraph 64 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: 19 February 2024