Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Katsonis v Al Moussawi [2023] NSWCATAP 318 Hearing dates: 29 November 2023 Date of orders: 01 December 2023 Decision date: 01 December 2023 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member J McAteer, Senior Member Decision: 1. Pellie Katsonis is removed as an appellant. 2. Leave to appeal is refused. 3. The appeal is dismissed. Catchwords: APPEAL – No question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) - s 80, Sch 4 cl 12(1) Civil and Administrative Tribunal Rules 2014 (NSW) - r 25 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Appellant – Frank Katsonis Respondent – Ali Al Moussawi and Soumaya Saleh Representation: Appellant – P Katsonis Respondent – S Saleh File Number(s): 2023/000323051 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2023] NSWCATCD Date of Decision: 25 September 2023 Before: P French, Senior Member File Number(s): RT 23/25363 reasons for decision Outline 1. This is an internal appeal, under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), against a decision made in the Consumer and Commercial Division of the Tribunal, in relation to a claim by the appellant (the landlord) against the respondents (the tenants) which was heard and decided on 25 September 2023. 2. Having considered the documents lodged by the parties, and their oral submissions, we have determined that the appellant has not established either an error on a question of law or any basis for granting leave to appeal. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) of the NCAT Act. 2. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel, at [13], listed questions of law as follows: (1) Whether there has been a failure to provide proper reasons. (2) Whether the Tribunal identified the wrong issue or asked the wrong question. (3) Whether a wrong principle of law had been applied. (4) Whether there was a failure to afford procedural fairness. (5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. (6) Whether the Tribunal took into account an irrelevant consideration. (7) Whether there was no evidence to support a finding of fact. (8) Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins, at [84], the Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. either with or without further evidence, in accordance with the directions of the Appeal Panel. 1. When parties to an appeal do not have legal representation, the issue which arises is whether the Tribunal should consider whether there is either a ground of appeal or a basis for leave to appeal which has not been raised by the appellant. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), at [13], the Appeal Panel said: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice". Documents 1. The Notice of Appeal was lodged on 9 October 2023 and a Reply to Appeal was received on 9 November 2023. Documents lodged by the parties in respect of this appeal were (1) those received from the landlord on 19 and 27 October 2023 and on 14 November 2023, and (2) those received from the tenants on 25 October 2023. Time to appeal 1. Orders were made on 25 September 2023. The 14-day requirement of r 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules) means that a Notice of Appeal should have been lodged by 9 October 2023. As the Notice of Appeal was lodged on that day, the appeal is within time. Grounds of Appeal 1. In the Notice of Appeal, the grounds of appeal were expressed in narrative form. For that reason, before hearing submissions, the landlord was requested to succinctly state what were said to be the errors on a question of law. The response was to the following effect: 1. The landlord was not present at the hearing, their agent was there, and they were not told they could also be there. 2. The residential tenancy agreement was breached, and the presiding member did not take into consideration the tenants' failure to abide by its provisions. 1. Leave to appeal was also sought. The decision was said to be (1) not fair and equitable, (2) against the weight of the evidence, and (3) there was a claim that significant new evidence was available that was not reasonably available at the time of the hearing. 2. It is clear the landlord was pursing this appeal with the aim of obtaining greater compensation of $606 ($2,566 less the rental bond) than he was awarded at first instance, the amount claimed in the application, being the $15,000 jurisdictional limit of the Tribunal. Hearing 1. Having identified the relevant documents, and having clarified the basis of the appeal, the Appeal Panel proceeded to hear oral submissions in the usual sequence of appellant then respondent, followed by the appellant in reply, so that each party was able to speak in support of their case and to respond to the case of the other party. Landlord's submissions 1. The landlord's submissions may be summarised as follows: (1) The decision was not fair and equitable in view of what was referred to as the extra evidence. (2) The tenants breached the residential tenancy agreement and knew what was required by that agreement. (3) Despite knowing that matters would be attended to if the tenants made a request, they did things without permission. (4) The tenants broke things, such as a window, and changed lights. (5) The painting was the most important matter because of what they did when they spray painted. (6) The tenancy lasted for five years, the tenants did what they wanted when they wanted, and the house was not left in a satisfactory condition. (7) The breaches of the residential tenancy agreement were such that the compensation awarded did not reflect the condition of the premises. (8) The condition of the property was such that it could neither be sold nor rented. Respondent's submissions 1. On behalf of the respondents, reference was made to Council clean-ups, and it was suggested that the landlord was coming back and forth because of a desire to sell the premises. Reliance was made to the messages that were exchanged, which were said to reveal mutual respect, and that the landlord had a property manager. There was also reference to what was done in relation to the floor, to the claim that the tenants were happy to fix things, and to what happened at the end of the lease. Submissions in reply 1. Omitting matters that were not in reply to the submissions made by Ms Saleh on behalf of the tenants, reference was made to what was said to be the condition of the premises at the end of the tenancy, to the outgoing condition report (that was before the Tribunal at first instance), and to the rubbish said to have been left at the premises at the conclusion of the tenancy. Consideration 1. It is important to first note two matters that were brought to the attention of the parties at the commencement of the hearing. First, that an appeal to an Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. That point is made clear by the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) which includes the words: "an appeal is not an opportunity to have a second go at a hearing". Secondly, that it is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome. 2. It is noted that Mrs Katsonis was not named as a landlord on the residential tenancy agreement was not named as a landlord on the application. As a result, she should not have been named as an appellant and the record should be corrected by removing her name as an appellant. However, Mrs Katsonis was permitted to speak on behalf of Mr Katsonis during the hearing of this appeal. 3. The claims of the landlord, in the proceedings at first instance, and the outcomes may be summarised as follows: (1) removal of an internal partition – not in dispute - $680 allowed, (2) rubbish removal - $500 allowed, (3) pest control – not in dispute - $450 allowed, (4) kitchen splashback - $256 allowed, (5) kitchen benchtop - $680 allowed, (6) wiring in the garage – dismissed, and (7) repainting of walls – dismissed. 1. The total of the amounts awarded was $2,566 and deducting the rental bond of $1,960 (not disputed) gave an award of $606 in favour of the landlord. 2. As to the first ground of appeal, if the landlord's agent gave the landlord the impression that he could not attend the hearing, that is not an error of law. The Tribunal proceeded on the basis that the landlord's agent was entitled to represent the landlord. Any failure of the landlord to attend the hearing at first instance is a matter between the landlord and his agent. 3. In relation to the second ground of appeal, it is clear the presiding member did consider what were the breaches of the residential tenancy agreement because of the assessment of the seven claims made by the landlord's agent. 4. It may well be the case that the landlord wishes the agent had made additional claims and/or submitted additional evidence and/or made further submissions but those are not matters which constitute an error on a question of law. 5. The reasons provided for accepting and rejecting both the claims that were made, and the presiding member's assessment of the amount payable in respect of the successful claims, was the combined result of (1) findings based on the evidence before the Tribunal, and (2) a correct application of the relevant legal principles. 6. No error on a question of law has been established and a consideration of the evidence that was before the presiding member does not suggest either that the decision was not fair and equitable or that the decision was against the weight of the evidence. 7. As to the claim that there is significant evidence now available that was not reasonably available at the time of the hearing, the documents provided in support of that claim which pre-date the hearing are documents that could have been submitted and it is not enough for the landlord to say there are documents the agent could or should have submitted because the landlord is bound by the conduct of that agent. 8. Among the documents submitted by the landlord in this appeal, there is no document that post-dates the hearing that could be regarded as significant new evidence that was not reasonably available at the time of the hearing. 9. Applying what was said in Cominos, we have considered whether there is any error on a question of law or a basis for granting leave to appeal which the landlord has failed to identify but have not been able to discern any such error or basis. Orders 1. As we are not satisfied the decision involved any error on a question of law, the appeal must be dismissed. Further, as no basis for granting leave to appeal has been demonstrated, leave to appeal must be refused. For the reasons set out above, the orders that will be made are as follows: (1) Pellie Katsonis is removed as an appellant. (2) Leave to appeal is refused. (3) 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: 01 December 2023