Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Habchi v Heys [2024] NSWCATAP 60 Hearing dates: 1 March 2024 Date of orders: 11 April 2024 Decision date: 11 April 2024 Jurisdiction: Appeal Panel Before: R Seiden SC, Principal Member Dr R Dubler SC, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: RESIDENTIAL TENANCY — whether the Tribunal erred in awarding refund of excessive rent paid under the Residential Tenancies Act 2010 (NSW) — no question of law raised — leave to appeal refused Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunals Rules 2014 (NSW) Electronic Transactions Act 2000 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: Nil Category: Principal judgment Parties: Nathalia Habchi (Appellant) Jorden Heys, Francesca Fox & Sophia Redolfi (Respondents) Representation: R Mournehis, Agent for the Appellant (by leave) Respondents (self-represented) File Number(s): 2023/00465574 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 06 December 2023 Before: S C De Jersey, Senior Member File Number(s): 2023/00380427 REASONS FOR DECISION Introduction 1. On 5 December 2023, following a hearing on that date, the Tribunal made orders under the Residential Tenancies Act 2010 (NSW) (RT Act) that the Appellant (the landlord) pay the Respondents (the tenants) $7,704.29 by way of refund of excess rent paid for the period of 15 August 2022 to 14 August 2023 (the Decision). 2. The Tribunal held that it had jurisdiction to determine the dispute under the RT Act and that is not disputed by the parties before us. 3. The landlord appeals the Decision. For the reasons which follow we have decided to refuse leave to appeal and dismiss the appeal. Background and the Decision of the Tribunal 1. The Tribunal set out the background of this matter at [5] and [6] as follows: "[5] The 3 co-tenants moved into the house on about 11 December 2020. A copy of the ingoing condition report is contained in the tenants' evidence. During the tenancy there were a number of issues which the tenants reported to the agency. There was a scheduled routine inspection on 15 December 2021. There was also an attendance by the agent on 17 June 2022 at which a number of issues were discussed. There are no copies of any routine inspection reports in the evidence. The tenancy ended by way of the tenant 's termination notice and the tenants vacated returning the keys on 15 August 2023. An outgoing inspection was done in the absence of the tenants. The full bond has been returned to the tenants. The rent is paid to the last day of the tenancy being 15 August 2023. [6] The tenants sent an email to the agent on 21 October 2022 setting out all the repair issues with the property. The tenants said they did not report any issues after this date and did not file their application earlier as they obtained advice from the Marrickville Legal Centre that there was a risk they could receive a 90 day no grounds termination notice and have to vacate. The tenants were concerned that this would be risky given the rental market and 2 of them were on either casual or part time salaries so they did not communicate any repair issues after the 21 October 2022 email. The agent at the hearing said the agency had not received this email." 1. The Tribunal summarised the tenants' complaints regarding the property at [7] as follows: "(a) Mould in the second bathroom. The tenants say the mould in this bathroom was severe and required constant cleaning off and was an issue for the whole of the tenancy. The issue was not repaired. The tenants say they reported it in an email dated 16 October 2021 as well as at the routine inspection with the agent on 15 December 2021, it was also pointed out by the tenants to the agent when the agent attended on 17 June 2022 and also in the email dated 21 October 2022. The tenants said there was no repair of any issue. (b) Leaks and damage and resultant mould on the first bedroom and second bedroom ceilings. This was first reported at the routine inspection on 15 December 2021, then at the inspection on 17 June 2022 and was also the subject of the email dated 21 October 2022. The tenants say that the issue was not attended to. (c) Wooden window frame in the shower recess of the main bathroom. The tenants say this frame continued to deteriorate over the tenancy becoming spongy and causing the window to be difficult to open. It was first reported to the agent when she attended on 17 June 2022 and then in the email dated 21 October 2022. (d) Cracks. The tenants claim that the extent of cracking increased during the tenancy in all three bedrooms, the lounge, dining, bathroom and kitchen. The cracking was first reported at the routine inspection on 15 December 2021, then when the agent attended on 17 June 2022 and again in the email on 21 October 2022. (e) Bamboo. The tenants complained on a number of occasions that the bamboo was very tall and growing rapidly and causing concern for the neighbours who regularly complained to the tenants. The tenants say they reported it on 5 April 2022, 23 May 2022, 10 June 2022, 15 June 2022, 26 July 2022 and 21 October 2022. (f) Sagging corner in the kitchen. The photo shows that there is a side of the kitchen ceiling which has dropped down and the tenants say this became worse during the tenancy. The tenants say they reported it on the 15 December 2021 at the routine inspection and also in the email dated 21 October 2022. (g) Back fence. The tenants claimed that parts of the back fence had deteriorated and was not sitting straight and they reported this on 6 October 2021 and again on 26 October 2021. A contractor attended on 29 November 2021 to assess it but no work was done to repair the fence. It was reported again to the agents at the routine inspection on 15 December 2021 and in the email dated 21 October 2022." 1. The Tribunal summarised the landlord's reply to the tenants' contentions. In particular, the agent denied receiving the email dated 21 October 2022 and contended that, had the agent received the email, he could have responded to the complaints. Further, and in particular, the Tribunal summarised that the landlord's main contention was that in any event the issues complained of did not make the premises uninhabitable and that bearing in mind that the rent was consistent with the nature of the property at that time which included such things as cracks and old window frames, there should not be any finding of breach of s 44(1)(b) of the RT Act such as to justify any refund of excessive rent paid. 2. The Tribunal then set out its findings and decisions at [9]–[13] as follows: "[9] Based on the documentary and oral evidence I make the following findings; (a) All of the above issues as reported above, were not repaired either adequately or at all during the tenancy; (b) From time to time contractors and/or the landlord's husband attended the premises but except for a roof repair, and cutting back the bamboo once, I find that the other repairs were not attended to; (c) The stained ceilings in the 2 bedrooms were not remediated and they appear to be in poor and unacceptable condition from the tenants' photos; (d) The mould in the bathroom was never addressed and from the photos the bathroom ceiling appears to be substantially mouldy and in an unacceptable condition; (e) The bathroom window has clearly deteriorated in the photos and is in unacceptable condition; (f) Bamboo is a rapid growing plant, the height was not brought under control and as such it was the landlord's responsibility to maintain it and not the tenant's; (g) The cracks in the house were significant, unsightly and worsening during the tenancy which the landlord did not attend to; (h)The back fence is clearly deteriorating from the photos and ought to have been repaired; (i) The sagging ceiling in the kitchen is established from the tenants' photos, it was not repaired and as such reasonably caused the tenants concern; (j) Given the exchange of emails between the tenants and the agent on 14 and 17 October 2022 particularly where the agent says in the email dated 17 October 2022 to send a list of issues, I am satisfied on the balance of probabilities that the email dated 21 October 2022 was received by the agency; (k) No repairs were done after 22 October 2022 and the tenants continued to live in a property with substantial repair issues. [10] I am satisfied that the tenants regularly reported these issues and in a final email dated 21 October 2022 a full list summarising all issues was comprehensively set out, including confirmation as to when all the issues had previously been reported. I am satisfied on the balance of probabilities that the email of 21 October 2021 was received by the agency and I reject the agent's oral evidence that it was not received. [11] I am satisfied that the landlord is in significant breach of her obligations under the Act to keep the premises repaired and maintained (section 63) and she has repeatedly failed to comply with that obligation during the tenancy including the last 12 months of the tenancy. As a result I find that the landlord withdrew the overall standard of amenity which the tenant was entitled to expect for the rent agreed. [12] I am satisfied that the tenants' quiet enjoyment of the premises was significantly impacted upon by all the above issues and reduced amenity in the use of the bathroom with mould, the bedrooms with water stained ceilings, the window in the bathroom, the regular complaints from neighbours about the bamboo and so on. [13] I find the 20% reduction a reasonable rent reduction in all the circumstances and allow it and order the rent refund of $7704.29." The Notice of Appeal 1. The landlord's Notice of Appeal was lodged and received by the Tribunal on 22 December 2023. In respect of appeals from decisions under the RT Act, the appeal must be lodged within 14 days either from the day on which the Appellant was notified of the decision appealed against or the day on which reasons were first given (either orally or in writing), whichever is the later: Civil and Administrative Tribunals Rules 2014 (NSW) (NCAT Rules) r 25(4)(b). 2. Rule 13(4)(d) of the NCAT Rules identifies the time of receipt of a document, unless the contrary is proved. So far as service by electronic means is considered, ordinarily, the Electronic Transactions Act 2000 (NSW) too is relevant. 3. The landlord, in his Notice of Appeal states he only received the Decision on 16 December 2023. The tenants dispute this and say it was emailed to the landlord; and this accorded with the documents attached to the Reply to Appeal. 4. Nevertheless, the agent who appeared for the landlord repeated to us at the hearing that no such Notice or Decision was provided or received, and the landlord had to contact the Tribunal to ascertain the Decision made. We are prepared to accept the landlord's statement as to when he received notice or became aware of the Decision. Accordingly, we are prepared to assume for the purposes of this appeal that the appeal was lodged within time. 5. 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: see the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) at s 80(2). 6. In deciding whether or not to grant leave, the Appeal Panel will often consider whether the matter involves issues of principle, questions of public importance or a clear injustice. In addition, the Appeal Panel may take into account the costs to the parties and whether it is proportionate to the importance and complexity of the subject matter of the proceedings. 7. General principles in relation to granting leave to appeal were considered in Collins v Urban [2014] NSWCATAP 17 (Collins v Urban) at [80]–[84]. 8. Further, in the case of an appeal from the Consumer and Commercial Division, such as in this case, where leave is required, clause 12, Schedule 4 of the NCAT Act provides that leave can only be granted if the Appeal Panel is satisfied that the Appellant may have suffered a substantial miscarriage of justice because: 1. The decision was not fair and equitable; 2. The decision was against the weight of the evidence; or 3. Significant new evidence has arisen (that was not reasonably available at the time of the original hearing). 1. The landlord sought leave to appeal the Decision on the basis that it was not fair and equitable and the Decision was against the weight of the evidence. 2. Generally, the landlord sought to reagitate the merits of the case previously argued before the Tribunal below. 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]. 3. In our view, none of the grounds, which we detail below, give rise to any question of law and leave to appeal is required. The landlord's additional evidence 1. The landlord as part of his submissions provided to the Appeal Panel evidence that was not before the Tribunal at first instance in the form of statements of comparable rents, photographs of the property, property data relating to comparable rents. Additionally, the landlord provided what he claimed was an IT expert "report" consisting of various print outs of data said to be retrieved in respect of the email server of the landlord's agent. This additional evidence was sought to be tendered in support of the appeal. 2. We note that the tenants accepted that the photographs formed part of their bundle of documents before the Tribunal at first instance and hence did not constitute additional evidence. 3. The other material can be described as additional evidence. This included a list of five "comparable properties", one for the period prior to the rental increase on 22 October 2022 and four for the period after this date. 4. The IT expert "report" sets out data but does not include commentary or a report in the nature of an expert report explaining what is the significance of the data produced. We note the IT report was intended to prove that the email of 21 October 2021 was not received. 5. In any event, the landlord was not able to provide any explanation for why this material and the other additional evidence could not have been made available with reasonable diligence at the time of the hearing at first instance. Accordingly, it does not ground an application for leave to appeal under clause 12(c), schedule 4, referred to above. 6. We are not satisfied that the additional evidence constitutes significant new evidence which has arisen and that was not reasonably available at the time of the original hearing. 7. Accordingly, we decline to grant leave to permit the landlord to rely upon this additional evidence. The landlord's submissions 1. The thrust of the landlord's submission was to ground a contention that the Member did not take adequately into consideration the landlord's verbal response to the claim on the day of the hearing. 2. The landlord responded to each of the alleged complaints of the tenants. Cracks in walls 1. The submission of the landlord was as follows: "This property is approximately 70 years old and built near a train line which leaves it open to settlement and movement. To repair walls or simply to paint the property is close to impossible for an occupied property. The cracks in mention are clearly only hairline cracks and not structural nor unsafe. It does not affect the living in the property. The owner did attempt to repaint these areas and had been turned away." Leaks in second bedroom 1. The submission of the landlord was as follows: "There was no water leaking through the ceiling in the second bedroom only discoloration on the ceiling. This was not mould. The roof issue that caused the discoloration was repaired immediately and therefore the stain did not get worse." Rotting window frame in bathroom 1. The landlord submitted the following: "It took the tenants 10 months to report the mould growing on the window sill. The mould on the window sill was due to the tenants not drying it after a shower and was to be kept dry at all times. This mould was not due to any external elements and purely by the tenants and their use of the area and leaving water to age. The window pane that was missing was on a different window and this was left for ventilation. None of this has reduced the property rented or allowed any area not to be used. The owner and painter arrived to repair this area however was turned away." Overgrown Bamboo 1. The landlord's submissions were as follows: "The tenants reported in their Chronology from Jan - Mar 2022 they tried to keep the bamboo under control. This bamboo doesn't grow in one day and over time the tenants allowed it to get out of control due to their lack of maintenance on the yard. Whilst the owner was happy to assist where he could this is definitely the tenants' responsibility to maintain. This matter did not reduce the property rented in anyway." Sagging Ceiling in Kitchen 1. The landlord submitted the following: "This was inspected by a professional and deemed to be safe. This is an entire timber panel ceiling with skylight that has been like this for many years prior to the tenants moving in. The tenants just never noticed it. Image attached from prior to the tenancy. Screenshot of properties included." Leaning back fence 1. The landlord's submission in this regard was as follows: "The leaning fence was in fact the side fence and was inspected and deemed by a professional to be safe. This was completed the following month. The fence was leaning outwards and was not of any impact to the tenants nor allowing the property to be reduced in any way." 1. Lastly, the landlord made submissions regarding the rental rate. The landlord submitted that the rental rate during the tenancy was low and well below market value for other properties that were newly renovated and perfect. 2. Reference was made to the fact that at the time of the increase in rent there were properties renting for between $100 to $150 more for better quality and that therefore the rental price that it was asked for was reflective of the condition of the property. 3. We note in this regard that the landlord's submissions relied upon evidence of comparable rentals which consisted of additional evidence which we have not allowed to be received on appeal. 4. The landlord contended that based upon the nature of the rent being charged and the nature of the alleged defects in the property, a rent reduction was not warranted. 5. Further, the landlord continued to press the contention that the agent did not receive the email dated 21 October 2022. Consideration 1. We have carefully considered all of the landlord's detailed and thorough written submissions and oral submissions. 2. We find ourselves unable to be satisfied that the landlord may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, or the decision was against the weight of the evidence. 3. We are mindful that the requirement that the landlord show a "substantial miscarriage of justice" is a significant hurdle to overcome. The Appeal Panel in Collins v Urban considered at [71] that: "The substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred." 1. In our view the Decision of the Tribunal cannot be characterised as either not fair and equitable or against the weight of the evidence. The collective documentary and oral evidence rationally supported the conclusion reached by the Tribunal at first instance. For example, it was open to the Tribunal on the evidence before it to find that the email of 21 October 2022 was received, and that the landlord did not respond to the complaints contained in that email. Cracks in the walls 1. It was open to the Tribunal to find that the cracks in the walls were reported to the agency on 15 December 2021, 17 June 2022 and 21 October 2022. 2. We note that the tenants in their documents at first instance provided photographs of the cracks in conjunction with the unevenness of the floorboards which justified a conclusion that the tenants held a reasonable concern that the cracks that had appeared on the walls were not merely the result of movement in an old house. Such evidence made it open for the Tribunal to find at [9(g)] "the cracks in the house were significant, unsightly and worsening during the tenancy which the landlord did not attend to." The leaks and mould in the front two bedrooms 1. Again, the evidence before the Tribunal made it open for the Tribunal to find that the leaks and mould in the front two bedrooms were reported to the landlord's agent 15 December 2021, 17 June 2022 and 21 October 2022. 2. We note that the tenants' documents included photographs of stains on ceilings and that it was open to the Tribunal at first instance to be satisfied that they were due to evident water leaks and not merely "discolouration" on the ceiling as contended by the landlord. 3. The evidence before the Tribunal at first instance was consistent with these issues never being assessed by any trades persons nor were any of the roof repairs undertaken. The submission of the landlord to the contrary was not supported by evidence at first instance. 4. In conclusion, the evidence before the Tribunal meant it was open for the Tribunal to find at [9(c)] that "the stained ceilings in the two bedrooms were not remediated and they appear to be in poor and unacceptable condition from the tenants' photos". The rotten wooden window frame 1. The evidence meant it was open to the Tribunal to be satisfied that this issue was reported to the landlord's agent on 17 June 2022 and 21 October 2022. 2. The evidence before the Tribunal included evidence that a trades person had advised when attending the property that the window frame should be replaced. 3. In our view, the collective evidence before the Tribunal at first instance meant it was open to the Tribunal to find at [9(e)] that "the bathroom window has clearly deteriorated in the photos and is in unacceptable condition". Overgrown bamboo 1. The evidence before the Tribunal showed extensive correspondence exchanged between the landlord's agent and the tenants regarding the height of the bamboo, the complaints of neighbours regarding the invasive impact on their property and the request for the landlord's assistance. 2. The nature of the height and volume of the bamboo was evidenced in photographs provided by the tenants. Overall, the evidence before the Tribunal meant it was open for the Tribunal to find at [9(f)] that as the "bamboo is a rapid growing plant, the height was not brought under control and as such it was the landlord's responsibility to maintain it and not the tenants." Sagging ceiling in the kitchen 1. Again, the evidence meant it was open for the Tribunal to accept that the issue of the sagging ceiling in the kitchen was reported to the landlord's agent on 15 December 2021, 17 June 2022 and 21 October 2022. The evidence before the Tribunal from the tenants was that they were aware of the existing sagging of the ceiling upon occupying the property, but the issue was the realisation that its condition was worsening. The evidence before the Tribunal revealed that trades people had looked at the sagged ceiling and advised that they would return to undertake repair and maintenance but that did not occur. A trades person had indicated after visiting that a quote would be prepared for the landlord to affect the repairs required to the sagging ceiling. 2. The assertion by the landlord in his submission to us that "this was inspected by a professional and deemed to be safe" does not seem to be brought out by the evidence at first instance. 3. The state of the ceiling was set out in photographs tendered by the tenants at the hearing. 4. Overall, the evidence before the Tribunal meant it was open for the Tribunal to find at [9(i)] that "the sagging ceiling in the kitchen is established from the tenants' photos, it was not repaired and as such reasonably caused the tenants concern". The leaning fence 1. The evidence before the Tribunal meant it was open to the Tribunal to be satisfied that the landlord's agent was advised of the issue on 6 October 2021, 26 October 2021, 15 December 2021 and 21 October 2022. Photos of part of the back fence and its further state of deterioration leaning on to the side road throughout the tenancy were before the Tribunal. 2. Again, the evidence indicated the tenants were advised by a trades person that he would prepare a quote for the landlord to effect necessary repairs to the fence. This did not occur. 3. The submission of the landlord that the leaning fence was in fact the side fence and "was inspected by a professional and deemed to be safe" is not brought out by any of the evidence that was before the Tribunal at first instance. 4. Overall, the evidence before the Tribunal meant it was open for it to find at [9(h)] that "the back fence has clearly deteriorated from the photos and ought to have been repaired". 5. In conclusion, for the reasons given above, we decline to grant leave to the landlord to appeal the Decision and the appeal will be dismissed. Disposition 1. The orders of the Tribunal are: 1. Leave to appeal refused. 2. Appeal dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2024