Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tikkun v Leggett [2024] NSWCATAP 89 Hearing dates: 24 April 2024 Date of orders: 21 May 2024 Decision date: 21 May 2024 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member S de Jersey, Senior Member Decision: (1) The time for filing of the appeal is extended to 14 February 2024. (2) Leave to appeal is refused and the appeal is otherwise dismissed. Catchwords: LEASES AND TENANCIES - Boarding house - claim for compensation rejected at first instance - no error of law shown - no basis for granting leave to appeal - no question of principle Legislation Cited: Boarding Houses Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) 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: Tonia Tikkun (Appellant) Elizabeth Leggett (Respondent) Representation: Appellant (self-represented) Respondent (self-represented) File Number(s): 2024/00058790 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 30 January 2024 Before: D Bluth, Senior Member File Number(s): 2023/00366522 and 2023/00458396 REASONS FOR DECISION 1. This is an internal appeal filed on 14 February 2024 under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal dated 30 January 2024 in application 2023/00371676, with the previous file number 23/46151. 2. The Tribunal's decision concerned an application by the appellant, Ms Tikuun against the respondent, Ms Leggett filed under the Residential Tenancies Act 2010 (NSW) (NSW) (the RT Act). Ms Tikuun lived at a property owned by Ms Leggett. 3. For ease of reference in these reasons, the appellant will be referred to as "the Occupant" and the respondent as "the Landlord". 4. Order were made by the Tribunal on 30 January 2024 as follows: 1. A dismissal of the application 2023/00371676 (23/46151). 2. An order varying the order made in 2023/00458396 for the Occupant's occupancy to continue until 5.00PM on 14 February 2024 with no occupancy fee or rental payable. 3. An order that the Landlord return the bond to the Occupant. 1. The Occupant confirmed at the beginning of the appeal hearing that she appealed that part of the decision refusing to make a compensation order, which was the dismissal order, Order 1. The Occupant confirmed she did not seek any other orders on the Appeal. 2. The Occupant had sought in the proceedings before the Tribunal to have the application determined as a claim under the Boarding Houses Act NSW 2012 (the BH Act). The Owner opposed this on the basis that the house was not a boarding house, it was a family home, and the Occupant was living at the house as a boarder/lodger. The Tribunal determined that the BH Act was the applicable legislation and made the orders on 30 January 2024 exercising jurisdiction under that Act. At the appeal hearing the Owner agreed that the BH Act was the appropriate jurisdiction. 3. The Occupant confirmed that the claim for compensation which was her application before the Tribunal which was ultimately dismissed in Order 1, were the claims set out in paragraphs 3 (c) and 3 (d) of her affidavit dated 27 January 2024, a copy of which is contained in the Occupant's submissions filed in this Appeal on 22 March 2024. Those claims were described: "3(c): An order for payment of $4007 (That amount is 100% of the occupancy fee since 12 October when application was submitted to NCAT" and "3(d) An order for compensation of $2000 as that under section 28 of the Boarding Houses Act 2012 the proprietor has failed to meet their obligation to ensure a written occupancy agreement and accordingly substantial time and effort has gone into enforcing this one $2000." 1. The Occupant said she had new additional monetary claims to press against the Landlord. We refused to determine these claims on the Appeal as the appeal hearing is confined to the decision of the Tribunal dated 30 January 2024 and not an opportunity for new claims to be pressed. Background and Tribunal proceedings 1. The property in question is an 8-bedroom house with the bedrooms separately rented to other occupants with common shared facilities of bathrooms and one kitchen and a set of house rules. The Landlord is the owner of the property. The Occupant took up occupancy of one of the bedrooms on about 7 December 2022. Her room was furnished, the agreed occupancy fee was $255 per week, there was no written agreement, just a verbal discussion. The Occupant's room had its own lock and key. Both the Landlord and Mr Salinger regularly attended the property's common shared areas during the Occupant's occupancy. 2. The Landlord did not live at the premises when the Occupant first moved in, but subsequently the Landlord moved into one of the rooms in January 2024 with her husband Mr Salinger. 3. By text dated 11 October 2023 the Landlord gave notice to the Occupant to vacate the premises. The Occupant filed proceedings in the Residential Tenancy List of the Consumer and Commercial Division of the Tribunal RT23/46151 on 12 October 2023 against the Landlord seeking orders under the RT Act for an order that she be declared a tenant under the RT Act, an order for a written tenancy agreement to be provided and an order for compensation for a range of breaches by the Landlord. 4. The Landlord sent an email to the Occupant on about 11 November 2023 seeking for the Occupant to vacate and made an offer of 4 weeks free rent until 29 December 2023. By email dated 12 October 2023 the Occupant refused this offer. 5. The Landlord filed proceedings RT23/51260 in the Residential Tenancy List on 16 November 2023 against the Occupant seeking a termination order of the tenancy under section 92 of the RT Act. Tribunal orders dated 8 December 2023 record that this application was dismissed on the ground that it was withdrawn by the Landlord after the parties' conciliation discussions at the Tribunal. 6. On about 14 December 2023 the Landlord gave the Occupant 2 weeks' written notice to terminate the occupancy and vacate the premises. The Occupant's occupancy is referred to in that notice as a "lodgement". 7. On 18 December 2023 the Tribunal made orders on an application by the Occupant against the Landlord in 2023/00458396 dismissing a request by the Occupant for an urgent hearing but made an interim order under section 188 of the RT Act against the Landlord not to interfere with the tenant's right to peaceful enjoyment and not to change the locks to the premises until further order. 8. The Landlord and Mr Salinger moved into the house after they returned from a holiday in about mid January 2024. The Occupant corresponded with the Landlord concerned that they were staying at the property and asked them not to. A degree of personal tensions ensued between the Occupant, the Landlord and Mr Salinger over the course of the following weeks which culminated in Mr Salinger filing an application for an apprehended personal violence order against the Occupant about mid January 2024. 9. The Occupant's application 2023/00371676, was heard by the Tribunal on 30 January 2024. On that date, the Tribunal ordered: 1. A dismissal of the application 2023/00371676; 2. An order varying the order made in 2023/00458396 for the Occupant's occupancy to continue until 5.00PM on 14 February 2024 with no occupancy fee or rental payable; 3. An order that the Landlord return the bond to the Occupant. 1. The Occupant vacated the premises on about 14 February 2024 and returned the keys. The full bond was returned by the Landlord to the Occupant. 2. An application for a stay was made by the Occupant in these Appeal proceedings which was noted in paragraph 7 of the callover directions dated 23 February 2024 as being dismissed on the grounds of the stay application being withdrawn. 3. The call-over directions dated 23 February 2024 required any party who was seeking to reply on any oral reasons or what happened at the hearing at first instance in the appeal, to provide a typed transcript of the relevant parts of the hearing together with the sound recording of the hearing. The Occupant has attended to this as part of her submissions and a full transcript has been provided. Submissions and evidence on the appeal 1. In deciding the appeal, we have had regard to the following: 1. The Tribunal's decision and reasons dated 30 January 2024; 2. The Notice of Appeal lodged on 14 February 2024; 3. The respondent's Reply to Appeal lodged on 29 February 2024; 4. The appellant's submissions received on 22 March 2024; 5. The respondent's submissions received on 20 February 2024, 22 February 2024, and 5 April 2024; 6. The procedural directions made at the call-over on 23 February 2024; 7. The two applications to the Tribunal filed by each of the parties; 8. The transcript of the hearing which was provided by the Occupant as part of her submissions dated 22 March 2024 at Tab 11; 9. The oral submissions made by the parties at the appeal hearing. 1. We asked the parties to identify from their materials that they have filed in the Appeal, the documents which were before the Tribunal at first instance. The Occupant identified her bundle of documents as the documents contained in Tab 10 of her submissions dated 22 March 2024. The Owner was unable to identify the specific bundle of documents she relied upon at the hearing before the Tribunal. Scope and nature of internal appeals 1. An appeal is not an opportunity for the party who was unsuccessful before the Tribunal to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. As stated in Guideline 1, Internal Appeals (which is published on the Tribunal's website), "an appeal is not an opportunity to have a second go at a hearing". 2. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) NCAT Act. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law, which includes matters such as a failure to afford procedural fairness or the application of a wrong principle of law. 3. For the Appeal Panel to grant leave to appeal from decisions made in the Consumer and Commercial it must be satisfied under Clause 12(1) of Schedule 4 of the NCAT Act that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if the appeal from a decision of the Consumer and Commercial Division has satisfied the requirements of clause 12(1) of Schedule 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 v Urban, the Appeal Panel stated at [84] that 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 5. 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. Notice of Appeal 1. The Notice of Appeal was lodged on 14 February 2024. For residential tenancy matters the time limit for filing an appeal is 14 days as specified in clause 25(4)(b) of the Civil and Administrative Tribunal Rules. However, as this was determined as an application under the BH Act , the applicable time limit would be 28 days. The Landlord, appropriately in our view (as there was no prejudice identified by the Landlord for the short delay) did not object to the late filing of the Appeal by 1 day. Accordingly, if leave for an extension of time for filing is required, the Tribunal grants leave to extend time under s 41 of the NCAT Act. 2. The Occupant states in the Notice of Appeal that the orders of the Tribunal which she challenges are: 1. The order to terminate the tenancy based on the termination of residence letter dated 14 December 2023; 2. The order not to compensate the Occupant; 3. The finding that no breach of quiet enjoyment occurred; 4. Orders in the application were not addressed. 1. The grounds of appeal in the Notice of Appeal are summarised as follows: 1. That the Tribunal's decision to terminate the occupancy was in contravention of the BH Act; 2. New evidence provided by the Landlord at the hearing was given more weight than the evidence already submitted by the Occupant; 3. The Occupant was not given the opportunity to respond to evidence of Mr Salinger who is the Landlord's husband; 4. The verbal agreement between the parties was not an Occupancy Agreement; Issues 1. As noted above, the Occupant now only appeals that part of the decision to dismiss the following compensation claims as set out in her Affidavit dated 27 January 2024: "3(c): An order for payment of $4007 (which is 100% of the occupancy fee paid by the Occupant since 12 October 2023 when the application was submitted to NCAT" and "3(d) An order for compensation of $2000 as that under section 28 of the Boarding Houses Act 2012 the proprietor has failed to meet their obligation to ensure a written occupancy agreement and accordingly substantial time and effort has gone into enforcing this one $2000." 1. We will refer to the first of these as "the $4,007 Claim" and the second as "the $2,000 Claim". The Occupant confirmed that: 1. the $4,007 Claim was a compensation claim referable to breaches by the Landlord who the Occupant claims disturbed her right to quiet enjoyment of the premises, by way of continual access by the Landlord and Mr Salinger without requisite notice; the Occupant calculated the quantum of her loss arising from these claimed breaches as a full refund of all occupancy fees she paid to the Landlord for the duration of her occupancy; 2. the $2,000 Claim was a compensation claim described by the Occupant as being referable to the claim that the Landlord breached the BH Act by failing to provide a written occupancy agreement; the loss of time and inconvenience caused to the Occupant as a result of that breach, she quantifies the loss at $2000. 1. The issues to be decided in this Appeal are: 1. Has the Occupant established that the Tribunal in dismissing the compensation claim made an error on a question of law? 2. Has the Occupant established a basis for leave to appeal the Tribunal's decision to dismiss the compensation claim? 3. If yes to (2), should leave to appeal be granted? Consideration 1. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided on the appeal 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: see Cominos v Di Rico [2016] NSWCATAP 5 at [13]. We have undertaken that consideration in this case. Has the Occupant established that the Tribunal made an error on a question of law? 1. The Occupant has a right to appeal on a question of law. The Notice of Appeal with respect to the issue of the compensation claim does not identify any questions of law. 2. We are satisfied that it was within the Tribunal's jurisdiction to determine the Occupant's compensation claim under the BH Act. No party made a submission that there was no such power. 3. On our review of the material before us on this Appeal in relation to the compensation claim, including the transcript of the hearing, we cannot discern any grounds that may raise a question of law on the compensation claim. Has the Occupant established a basis for leave to appeal? 1. In the Notice of Appeal, the Occupant seeks leave to appeal on all three bases set out in clause 12(1) of Schedule 4 of the Civil and Administrative Tribunal Act (NSW )2013, which, as noted above, are: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). The ground of fair and equitable 1. In relation to the decision not being fair and equitable, this ground for leave to appeal is concerned with process rather than with outcome. The Occupant contends that Mr Salinger's oral evidence given at the hearing was assumed to be the truth and she was not provided an opportunity to respond. Having considered the transcript we are satisfied that the presiding member gave the Occupant more than sufficient opportunity to present her evidence and to make submissions. We are also of the view having reviewed the transcript that whilst Mr Salinger was giving evidence, the Occupant asked him questions, was permitted to make interjections, and made submissions. 2. We consider the process was fair and leave to appeal ought not be granted on this basis. The ground of decision against the weight of evidence 1. In relation to the decision being against the weight of evidence, has the Occupant established that the decision made by the Tribunal was not available to it on the evidence provided? The Occupant claims that in making its decision the presiding member gave more weight to the evidence presented Mr Salinger at the hearing than the Occupant's evidence which she submitted in her case documents. 2. A decision can be against the weight of the evidence if the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that it was not one a reasonable Tribunal member could have reached (Collins v Urban at [77]). 3. We note in the transcript that the Tribunal specifically asked the Occupant at 12.44pm to 12.57PM how it was that the Occupant's quiet enjoyment of the shared facilities was impeded by the Landlord. Her answer was they don't live there. To which the Member noted: Just because they don't live there doesn't mean they don't have a right to go there. The Occupant answered: They do have a right to. I just understand that there would be some common understanding that would be within what would be considered reasonable. The Member said: That's all. Correct. So, to inspect for maintenance, for cleaning, all that kind of stuff. The Occupant said at 13.23: Correct. That's principle number five. Inspections and repairs. The presiding member said at Transcript 13.28PM: Yeah. A proprietor is entitled to enter the premises at a reasonable time, on reasonable ground, to carry out inspections or repairs and for other reasonable purposes. So that's what we're here about today, is it? The Occupant answered: Pretty much, yeah, I think so. 1. The Senior Member said: at Transcript 13.41PM; So you say, excluding your room because it appears to be no interference with your room, you say that the landlord is not adhering to principle number five because you say there're entering the premises not at reasonable times, or not on reasonable grounds, and not for other reasonable purposes. The Occupant says in response: Yeah, I'm saying they've got unreasonable, yeah. 1. The Occupant confirmed at Transcript 14.52PM that another resident moved out of their room on about 6 January 2024 to return to China and about 6 days later the Landlord moved in with Mr Salinger, which the Occupant said she understood it to be a temporary move not a permanent move. 2. At the hearing the Occupant also claimed that security cameras in the shared facilities areas were a breach of her privacy and quiet enjoyment. The Occupant gave evidence that she did not consent to being filmed and there was no notice or sign up in the common areas to warn about the security cameras. 3. The Occupant submitted that there should have been a committed cleaning date and time; cleaning should have been once a week like other cleaners, and not daily without notice. 4. The Occupant conceded at Transcript 48.31PM that maintenance, gardening, reasonable inspections, and cleaning were all reasonable reasons for the Landlord and Mr Salinger to attend the property. However, the Occupant submitted that the Landlord and/or her representative coming over 5 days a week was not reasonable and the Landlord's husband working on his truck in the parking area at the front garden of the house was not acceptable. 5. The Landlord's husband started giving evidence at Transcript 49:17. Mr Salinger said in his oral evidence that he would feed the fish, do the gardening and mopping, cleaning. The Occupant said that Mr Salinger would snigger at her when she came home. Mr Salinger gave evidence that he applied for an apprehended violence order out against the Occupant (Transcript 51:33). 6. The Transcript establishes that the presiding member contested a number of the evidentiary statements of Mr Salinger. For example at Transcript 54.57 when Mr Salinger tried to justify regularly attendances because it was the family home, the presiding member said: That had nothing to do with it. Most [boarding] houses were once a family home. When Mr Salinger said he could come and go as he wanted to – Transcript 55.09 the presiding member responded to him that it was subject to the Boarding Houses Act. The presiding member said at Transcript 55:18 : It is not a family home. It's not your family home because your family home is in Avalon. 1. At Transcript 1.21 the presiding member says: "…on one view, they are no different to any other lodger living in that room and sharing the facilities in common with you.." 2. At Transcript 1:53:12 the Senior Member states that he has made his decision and he reads it to the parties. In essence he finds that there have been some breaches of various occupancy principles by the Landlord probably for the reason that the Landlord was operating under the impression, possibly on legal advice, that the property was not a boarding house. 3. The Senior Member held that the non-compliances were of a minor scale and the Occupant was not entitled to any compensation. The Senior Member noted that the major complaint related to breaches of quiet enjoyment which he found were not maintained. The presiding member ordered that, in light of the breaches of the occupancy principles, the date for vacant possession in 2023/00458396 be varied to permit the Occupant to continue the occupancy until 14 February 2024 without paying an occupancy fee. 4. Having considered the Transcript we consider that the Occupant's claims for compensation were dismissed because: 1. there was no loss of quiet enjoyment or breaches of the occupancy principles in relation to the area that the Occupant had exclusive possession over, which was her room; 2. any loss of quiet enjoyment was with respect to common property areas only; 3. any breaches of the occupancy principles by the Landlord or Mr Salinger on her behalf were minor. 1. We consider there was sufficient evidence to establish that the main reasons for the attendances by the Landlord and her husband at the common shared areas of the property were for cleaning and attending to the arrangements of managing a large property with a large number of occupants all under differing occupancy agreements. 2. We are satisfied that the Tribunal's findings that the breaches by the Landlord were of a minor scale were open to the member on the evidence of both the Landlord, the Occupant and Mr Salinger presented at the hearing. These findings were not against the weight of evidence. 3. Leave to appeal ought not be granted on this basis. The ground of significant new evidence 1. In relation to the ground for leave to appeal on the basis of significant new evidence, this ground is relevant to circumstances where the appellant seeks to rely on new evidence that was not available at the hearing before the Tribunal and that evidence was not reasonably available at the time of the hearing. In the Notice of Appeal the Occupant does not identify any such new evidence and as such leave to appeal cannot be granted on this basis. Other factors 1. It follows that the Occupant has not established any one of the bases for leave to appeal under Clause 12(1) of Schedule 4. But even if she had been able to do so, we do not consider the principles set out in Collins v Urban and noted above have been met for the following reasons. 2. First, the matter involves no issue of principle or question of public importance or policy which might have general application. 3. Secondly, the Tribunal decision as recorded in the Transcript makes plain that the Tribunal has considered the available evidence when making its decision. Nothing in the Occupant's submissions satisfies us that the findings of the Tribunal were not reasonably open to it. In other words, the reasoning process of the Tribunal and the conclusion arrived at does not demonstrate a factual error that was unreasonably arrived at, nor one that was clearly mistaken. 4. Finally, there is nothing before us to suggest that the Tribunal has 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. 5. For these reasons, leave to appeal must be refused and the appeal should be dismissed. Orders The Appeal Panel makes the following orders: 1. The time for filing of the appeal is extended to 14 February 2024. 2. Leave to appeal is refused and the appeal is otherwise 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: 21 May 2024