Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Li v Harrap [2024] NSWCATAP 108 Hearing dates: 17 April 2024 Date of orders: 13 June 2024 Decision date: 13 June 2024 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Goldstein, Senior Member Decision: (1) Melissa Fournier is joined as a respondent to the appeal. (2) Appeal allowed in part. (3) Order 1 made by the Tribunal on 1 February 2024 is set aside and in substitution for that order the appellant is to pay the respondents $7,365.00, immediately. (4) Otherwise, leave to appeal is refused and the appeal is dismissed. Catchwords: LEASES and TENANCIES-residential tenancy-landlord's breach of repair obligations-approach to the question of the quantum of compensation-notional rent reduction for discomfort and inconvenience concerning safety issue with backyard and pool-global amount for such loss in relation to other repair items. APPEALS-alleged bias-alleged procedural unfairness due to absence of documentary material from the appellant-no procedural unfairness because appellant had reasonable opportunity to present documentary evidence-adequacy of reasons concerning quantum of compensation-basis for sum awarded not explained-reassessment of quantum of compensation by the Appeal Panel. Legislation Cited: Civil and Administrative Tribunal Act (NSW) (2013) Residential Tenancies Act 2010 (NSW) Cases Cited: CKG v Public Guardian [2014] NSWCATAP 32 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644; 75 ALJR 277; [2000] HCA 63 Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 Nunez v Sampson [2022] NSWCATAP 125 Category: Principal judgment Parties: Marko Li (Appellant) Brendan Harrap (First Respondent) Melissa Fournier (Second Respondent) Representation: Appellant (Self-Represented) Respondent (Self-Represented) File Number(s): 2024/00044432 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 01 February 2024 Before: J Levingston, General Member File Number(s): 2023/00373324 REASONS FOR DECISION 1. In this residential tenancy matter, the appellant, landlord, appeals from orders made in a decision of the Consumer and Commercial Division of the Tribunal on 1 February 2024. There were six orders made in that decision arising out of a dispute between the respondents, tenants, and the landlord about an alleged failure by the landlord to carry out his repair obligations. 2. The orders included orders for 7 items of work to be carried out by 29 February 2024 (Order 2), as well as an order that the landlord pay $14,675 to the tenants as compensation for breach (Order 1) and an order that the landlord pay daily amounts to the tenants by way of continuing compensation until the work order was complied with (Order 6). 3. On 14 February 2024 Principal Member Thode dismissed an application by the appellant for a stay of these orders pending the determination of the appeal. On appeal, there was no suggestion that the work order had not been complied with and, hence, the residual dispute between the parties concerned only the money orders. 4. The principal ground of appeal put forward by the landlord was that he had not received a fair hearing because he had not had an opportunity to present his evidence in response to the tenants' claim. For this reason, he sought an order that the orders be set aside and the proceedings be redetermined either by the Appeal Panel or upon remittal to the Tribunal at first instance based upon evidentiary material he now wished to present. 5. However, as explained below, we reject this ground of appeal because it is clear that the appellant had a reasonable opportunity to present the evidence he wished to rely upon. 6. Nevertheless, there was one aspect of the Tribunal's decision that we consider needs to be redetermined, namely the above amount of compensation of $14,675. One component of this amount was the sum of $175.00 for reimbursement of the cost incurred by the respondents in obtaining an arborist report. This sum remains unpaid and no issue arises about the inclusion of this amount in the award of compensation. 7. The other component of the award was the sum of $14,500.00 as compensation for breach. 8. We consider that the Tribunal provided inadequate reasons as to how it arrived at this latter amount. We also consider we are in a position to redetermine the amount of compensation on appeal based upon the Tribunal's findings in relation to breach, the evidentiary material presented to the Tribunal at first instance and the submissions of the parties made at the hearing of the appeal. 9. As a consequence, we have decided that the appeal should be allowed in part and that the appellant should pay the respondents the sum of $7,365.00 instead of the amount awarded in Order 1. 10. One of the tenants, Ms Fournier, was not named in the Notice of Appeal as a respondent to the appeal. She and her husband, Mr Harrap, were the tenants under the residential tenancy agreement and were the applicants in the proceedings at first instance. The orders appealed from were made in their favour. She must be joined as a respondent to the appeal. Background 1. The parties entered into a written residential tenancy agreement for a fixed term commencing on 14 July 2023 and ending on 11 July 2024, at a weekly rent of $1,600, in respect of premises in Wahroonga, including a pool and gardens. At that time, the landlord was using a real estate firm in Turramurra to manage the tenancy. 2. It was a term of the tenancy agreement that the landlord agreed to maintain the grounds, gardens and pool (Special Conditions 9 and 11; see also the description of the inclusions to the residential premises). 3. Sections 63 and 65 of the Residential Tenancies Act 2010 (NSW) (RTA) provide: 63 Landlord's general obligation (1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. (2) A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises. (3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part. (4) This section is a term of every residential tenancy agreement. 65 Tenants' remedies for repairs—Tribunal orders (1) Orders for which tenant may apply The Tribunal may, on application by a tenant, make any of the following orders— (a) an order that the landlord carry out specified repairs, (b) an order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant, (c) an order that the landlord reimburse the tenant an amount for repairs to a smoke alarm carried out by the tenant under section 64A(3). (2) Orders for repairs The Tribunal may make an order that the landlord carry out specified repairs only if it determines that the landlord has breached the obligation under this Act to maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. ….. (3A) The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair. ….. 1. Under s 187 (1) (d) and (2) of the RTA the Tribunal may make an order for compensation for breach of a residential tenancy agreement. 2. On 24 July 2023 the tenants sent an email to the landlord's managing agent which included a list of items for repair (along with other items for information only). The items for repair included items the subject of the work order made by the Tribunal, namely toilet seat to be fixed or replaced, electrical wire coming out of wall in the upstairs landing to be fixed, and dishwasher to be affixed. 3. Not long afterwards, the tenants informed the landlord's managing agent that there were 4 large trees in the backyard that appeared to have been poisoned, their health was deteriorating and a larger than normal amount of debris from these trees was accumulating adding to the pre-existing debris that needed to be removed. 4. In the period from late July 2023 to the commencement of the Tribunal proceedings on 3 October 2023, there were various communications between the tenants and the landlord's agent about the state of the premises. In one email from the managing agent to the tenants sent on 12 September 2023 it was said that the landlord had breached his agreement with the agent "by not taking on our suggestions and maintaining the property to appropriate standards. When this happens we have the right to terminate the agreement, and if required we may take on additional legal remedies…" 5. In an email sent by the tenants to the managing agent on 20 September 2023, amongst other matters, it was said that a large branch had just fallen off one of the poisoned trees, this was a serious safety concern which needed to be addressed and it was now not a safe place where the tenants' children could play. 6. In another email sent by the managing agent to the tenants on 21 September 2023 it was stated that they had emailed the landlord raising all of the urgent issues and requested instructions as to who they were passing the management to since they would cease to manage the property in 8 days' time. The various issues raised or to be raised with the landlord were outlined in the email, including branches falling from the, apparently, poisoned trees at the back of the property which were a safety concern. 7. From on or about 29 September 2023, to the knowledge of the tenants, the managing agent ceased to act for the landlord. 8. On 3 October 2023, the tenants commenced proceedings in the Tribunal. The address for the appellant given in the application form was the address of the managing agent that had ceased to act for the appellant. 9. In those proceedings it was contended that garden and pool maintenance had not been carried out, various notified repairs were still outstanding and 4 gum trees in the backyard had been poisoned and were now dropping branches creating a safety concern. Amongst other things, the tenants sought an order that the rent be paid into the Tribunal until the repairs were carried out by a licensed and qualified person and that there be a reduction in the weekly rent from $1600 to $1300 "to accommodate for the garden and pool maintenance and the damage to the natural environment, unusable facilities and the general appeal of the place". The tenants also sought an order for termination of the tenancy agreement for breach by the landlord in the event that the rent reduction could not be agreed. 10. After the Tribunal proceedings were commenced, the tenants obtained an arborist report from Murray Bolan of Bolans Residential & Strata Tree Services, dated 24 October 2023. This report stated that from an inspection of the property on that day it was found that 3 eucalypts in the back yard were dead and another was in poor condition. For reasons given, it was said that it was safe to assume the trees had been poisoned. The report also included: The current state of the 3 dead Eucalypts will demand immediate attention, small branches have commenced falling, with larger branches expected to fail throughout summer. The target area for these dead limbs covers the pool area, as well as a large section of the backyard. This will restrict residential movement throughout the backyard and pool area, as the risk factor for significant tree failure has massively increased. As a duty of care to my Clients, I am submitting this letter to invite the Owner of the above-mentioned property to exercise his duty of care to maintain the structural integrity of the 3 subject trees. Failure to do so will see the endangerment of his tenants, should they venture into the backyard or utilise the amenities that the house provides." 1. A first hearing in the Tribunal took place on 18 October 2023. The appellant says that he was not notified of that hearing. Nevertheless, it is uncontroversial that he was telephoned by the Tribunal and by that means participated in the hearing on that occasion. 2. On that occasion the proceedings were adjourned to a date to be fixed and directions were made by the Tribunal for the conduct of the proceedings, including a direction that the appellant was to provide a copy of the documentary material he relied upon (defined to include witness statements, expert reports and photographs) by 8 November 2023. It was stated that failure by a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on the documents at the hearing. 3. On this occasion it was also ordered that the tenants' application was amended to seek various orders, including compensation in an amount to be itemised in the tenants' submissions. It was noted that the tenants no longer sought a termination order. 4. It was also noted that the landlord was now managing the tenancy and these proceedings. An email address for the landlord was stated in another direction. 5. A notice of these directions and orders was sent to the parties, including to the appellant to the email address referred to. 6. Despite these directions, no evidentiary material was provided by the appellant for the hearing at first instance. The hearing at first instance and the Tribunal's decision 1. By notice of hearing in person dated 24 October 2023, the parties were notified of the hearing of the proceedings on 1 February 2024 at 9:15 a.m. This notice was sent to the above email address for the appellant. The notice included the following under the bold heading "Important information": ● To learn more about what happens on the hearing day visit [website document specified concerning prepare for your hearing] ● If you do not attend the matter may be finalised in your absence. 1. The website document referred to included information that the Tribunal decides cases on the evidence presented at the hearing and that after each party had given their evidence the Tribunal will make a decision based on the evidence and in accordance with the law. 2. As was noted by the Tribunal in its reasons and not disputed on appeal, all parties appeared in person on 1 February 2024 and the application was contested, although the appellant was about 30 minutes late for the hearing. 3. The appellant did not provide a transcript of any part of the hearing at first instance, as he was required to do, to the extent that he relied upon what happened at the hearing (see direction 2 (d) made on 14 February 2024). Hence, we are not able to identify what, if anything, the appellant told the Tribunal about his presence at the hearing or his understanding of the nature of the hearing. Nor are we able to identify the details of what he told the Tribunal about the absence of his documentary material for the purpose of the hearing, other than what appeared from the reasons for decision, which the appellant did not take issue with on the appeal. 4. For the purpose of the appeal, it is sufficient to note some, but not all, of the orders made after the hearing that day, as follows: 1 The [appellant]…. is to pay the [respondents] the sum of $14,675.00, immediately Details of the money order: Compensation for breach of the Agreement and RTA s63 as more fully set out in the reasons $14,500.00; and Reimbursement of the cost of Mr Bolan's Report $175.00. 2 The Tribunal orders the [appellant]…. to carry out the following work by 29 February 2024 in a proper and workmanlike manner. The details of the work order are: (1)Repairs to the water damage to ceilings in the dining room and upstairs bedroom; (2)Toilet seat to be fixed or replaced; (3)Electrical wire coming out of wall in the upstairs landing to be fixed; (4)External light on balcony to be made operational; (5)Dishwasher to be affixed so it does not tilt forward when the door is open; (6)All garden waste (e.g. branches) and building debris (tiles etc) to be removed from backyard; (7)Application to be made to the local Council for consent to remove the 4 poisoned trees in order to make the backyard safe. ….. 6 The [appellant] is to pay the [respondents] continuing compensation calculated per day from 2/2/24 until the repair works are completed, as more fully described in the Reasons. Details of the compensation order: $15 per day until the repair works are completed (other than the backyard-trees and pool area is made safe); and $35 per day until the backyard and pool are declare (sic) safe to use as more fully set out in the Reasons. 1. Relevantly, the Tribunal's written reasons included the following: 5 At the outset the matter got off to a shaky start as Mr Li objected to the tenants' evidence as he contends: he was not aware of the proceedings; he did not receive the tenants' evidence by 25/10/23; and he was not aware he had to file his evidence by 8/11/23. 6 I reject these contentions as: the Tribunal file clearly shows that Mr Li appeared by telephone on 18/10/23 and provided his contact details-I formed the opinion that Mr Li was not being truthful about this matter and gave him an opportunity to explain why I was wrong in finding he was telling a lie to the Tribunal about this matter. I was not so persuaded in the face of the clear documentary record on the Tribunal file; the Tribunal Orders made 18/10/23 were sent to Mr Li's email address on that date; and by Order 3 required Mr Li to file and serve any evidence by 8/11/23-he has not done so; the tenants sent their evidence on 25/10/23 by email to the Agent's email address in the tenancy agreement, and I find they received the evidence on behalf of Mr Li, as his Agent. 16 …. (1)… There has been an accumulation of dead branches in one corner of the garden about 5m x 3m, and there is other pile of things spread over about 10m consisting of garden waste, garden pots, tile roof tiles… buckets, two x white poly boxes. These have never been cleared away. Mr Li contends the tenants' obligation was top (sic) do the day-to-day garden maintenance and his obligation was to do ongoing maintenance. He also contends the twigs and falling branches are normal for this area. This does not explain the poisoning-and Mr Li asked an arborist who advises they will take 2 to 3 years to die. I find that in the meantime until they are removed (subject to council consent) they make the backyard dangerous for the tenants' use. The tenants' evidence is that they engaged an arborist Mr Boland (sic) who investigated the 3 trees and opined they had been poisoned, 3 dead and one dying. They require immediate attention as small branches have begun falling and larger branches can be expected to fall over summer-including the pool area and a large section of the backyard-restricting residential movement as there is a risk factor for significant tree failure. …. 30 Mr Li disputes the tenant's claims as he says they have been using the swimming pool and backyard. He disputes the other claims as he contends the tenants did not cooperate. He disputes the claim for Mr Bolan's fee of $175 as there is no invoice. …. 32 In Reply, the tenants provided evidence of Mr Bolan's tax invoice… dated 25/10/23. I'm satisfied this claim is proved. ….. 37…. The Premises have been significantly renovated in recent years and the rent is $1,600 per week. The condition of the Premises should be commensurate with those matters, and the repairs should have been promptly done. They were not, and as I've said there was unreasonable delay. There is telling evidence in the email from the Agent that Mr Li did not accept the Agent's recommendations to carry out repairs. 38 There is also evidence from Ms Giugni, a neighbour to the Premises, that in or about late June or early July 2023 she observed Mr Li and other persons under Mr Li's supervision, apparently speaking Mandarin, and who drilled holes in the 4x trees in the backyard of the Premises, and about one month later she observed leaves were browning and dropping off the said trees. I find this is consistent with Mr Bolan's report that the trees have been poisoned… For the purposes of this claim I'm satisfied on the balance of probabilities that it is more probable than not that Mr Li has caused persons to poison the trees. I find that by doing so he has made the pool and backyard unsafe and unusable by the tenants and the two children, and the backyard and pool continue to be unusable until the dead trees are removed or otherwise the area is made safe so there is no danger of tree branches falling in the backyard or into the pool area. ….. 41 I find that Mr Li has been in breach of the Agreement and RTA s63 from 24/7/23 when the tenants first gave email notice to the Agent of disrepair in the Premises. I find that Mr Li failed to comply with his obligation to repair under RTA s 63. I reject his contention that the delay was caused entirely by the tenants' refusal to allow unqualified persons attend the Premises to carry out electrical work, and Mr Harrap ordered him off the Premises. There is no explanation at all from Mr Li why he did not employ qualified trades to do the repair works in a timely manner. As I have said, Mr Li's delays are inexcusable, and I find that the tenants have received far less than they bargained for as the Premises were handed over in an unacceptable condition, not being in a reasonable state of repair having regard to their age, the rent payable and the prospective life of the Premises. ….. 44 The tenants have several remedies for: rent reduction (which in this matter is to be determined as compensation and leads to the same monetary remedy); termination of the Agreement (but I'm not satisfied that the facts justify termination); Orders for repairs under RTA s65…. Additional remedies are available under RTA s187 (1) (c) (payment of an amount of money for the cost of the Bolan Report) and (D) (order as to compensation for the many breaches of the Agreement and RTA s63 by the landlord). ….. 49 The landlord is to immediately pay the tenants $14,500 as compensation to the tenants for the Disrepair in the Premises and what is an inexcusable delay in carrying out repairs which have been carried out, and in failing to carry out the remaining repairs, to date. The nature of the appeal 1. Under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: …..the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], namely. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1 issues of principle; 2 questions of public importance or matters of administration or policy which might have general application; or 3 an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4 a factual error that was unreasonably arrived at and clearly mistaken; or the Tribunal having gone about the fact- finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, Grounds of Appeal 1. The following grounds of appeal emerge from the Notice of Appeal: 1. The Tribunal was biased (Ground 1). This raises a question of law. 2. Procedural unfairness because he was said to be unaware of the requirement to submit his evidentiary material before the hearing on 1 February 2024, he was unaware that the hearing on that occasion would be a formal hearing concerning the making of final orders and, in any event, the Tribunal proceeded in the absence of any documentary material from the appellant (Ground 2). This also raises a question of law. It was also put forward as a reason why leave to appeal should be granted on the basis that the decision was not a fair and equitable. 3. The decision was against the weight of evidence (Ground 3). Leave to appeal is required in respect of this ground. 4. There was significant new evidence now available that was not reasonably available at the time of the hearing (Ground 4). Leave to appeal is required in respect of this ground. 1. Furthermore, since the appellant was an unrepresented litigant, we should approach the grounds of the appeal on the basis set out in Cominos v Di Rico [2016] NSWCATAP 5. As already mentioned, we have identified a question about the adequacy of the reasons concerning the amount of compensation, which also raised a question of law (Ground 5). It is related to a specific criticism about this aspect of the Tribunal's decision which the appellant made in his written submissions on appeal. 2. In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including that the decision under appeal be set aside and for another's decision to be substituted for it; s 81 (1) of the NCAT Act. Consideration-Ground 1 (Bias) 1. In the section of his Notice of Appeal concerning leave to appeal on the basis that the decision was not fair and equitable the following was stated: The tribunal member formed the opinion that I was not being truthful and he refused to listened (sic) to my explation (sic) and as a result the decision and orders he made was biased and not fair and equitable. In addition, the Tribunal member did not take into account any documents, expert report and witness statement from my side in making those orders and decision therefore is not fair and equitable. 1. We must deal, firstly, with the allegation of bias, whether the allegation be one of actual or apprehended bias, or both. 2. As to actual bias, what needs to be established is some "preponderating disposition or tendency "in favour of a party by "anything which turns a man to a particular course, or gives the direction to his measures": per Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [183]. Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the Tribunal Member was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Jia Legeng at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). It needs to be established by cogent evidence and a party alleging actual bias carries a heavy onus to discharge: per French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Jia Legeng at 520. 3. As to apprehended bias, the question is whether a fair-minded lay observer might reasonably apprehend that the Tribunal Member might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644; 75 ALJR 277; [2000] HCA 63. 4. We see no basis for a conclusion of bias of either kind in respect of the Tribunal's decision. 5. The appellant did not say anything more about the above bias allegation contained in the Notice of Appeal in his written or oral submissions. Indeed, the bias allegation was not repeated in the appellant's written submissions when he stated: …. The Tribunal member then made the order purely based on the evidence provided by Mr Harrap. The tribunal member also formed an opinion that I was not being truthful to him about the matter therefore I believe the decision was not made fair and equitable… 1. Nor did the appellant provide us with any part of the transcript of the hearing to support his allegation and to provide context in respect of the bias question. 2. We have set out above the Tribunal's findings about the appellant's untruthfulness (at [5] and [6] of the reasons). It seems to us that the Tribunal's conclusion as to untruthfulness concerning the particular issue it was addressing was a conclusion that was reasonably open to it on the material it referred to. Furthermore, the reasons for decision do not suggest that the finding of untruthfulness concerning the lack of documentary material from the appellant was material to the Tribunal's conclusions about the merits of the respondents' claim. 3. The apparent contention that there was bias because the Tribunal made its decision without taking account of any evidentiary material from the appellant must be rejected, first, because the appellant failed to provide any such material for the hearing and, secondly, because, as appears in more detail below, it was reasonable for the Tribunal to proceed to conduct the hearing in the absence of any written evidentiary material from the appellant. 4. We consider that the bias allegation did not rise above anything other than an unsubstantiated assertion. 5. Accordingly, we reject Ground 1 of the appeal. Consideration-Ground 2 (Procedural unfairness) 1. The Tribunal is bound to accord procedural fairness to the parties - an obligation derived from the common law and reinforced by ss 38 (2) and (5) (c) of the NCAT Act: see CKG v Public Guardian [2014] NSWCATAP 32 at [14]; Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41 at [62]. 2. Section s 38 (5) (c) of the NCAT Act, provides: The Tribunal is to take such measures as are reasonably practicable- …. (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 1. The application of s 38 (5) of the NCAT Act must be considered in the context in which "the concern of the law is to avoid practical injustice": per Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]. 2. In that regard, we see it is a relevant consideration that under s 36 (3) of the NCAT Act a party to proceedings in the Tribunal is under a duty to co-operate with the Tribunal to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 36 (1)). 3. In his Notice of Appeal, the section concerning Grounds of Appeal contained the following: The property was previously managed by Stone Real Estate Linfield and the original NCAT notice was sent to their office that the agent didn't pass it onto me as I terminated the management agreement with them so I was unaware of the first hearing on 18/10/23. I received a phone call from the Tribunal member on the day and that was when I found out about the first hearing. I didn't receive NCAT notice to submit written evidence and supporting documents for the second hearing as I suspect it might gone (sic) to my junk mail and got deleted after 30 days which has happened to me in the past. I was under the impression the hearing on 5th of Feb would be similar to the first hearing when both parties attend for a reconciliation (sic) because I was absent at the first hearing. I had no idea the hearing on 1st Feb 24 is a formal hearing where the orders are made by the member based on the documents submitted to the tribunal [emphasis added]. 1. In the section of the Notice of Appeal concerning the issue whether the decision was against the weight of the evidence, in answer to the question what evidence he gave at the hearing and what documents he showed the Tribunal it was stated: There was no written evidence provided to the tribunal as I was unaware that I need to submit the (sic) such documents therefore there is zero consideration from my side [emphasis added]. 1. A different version of the circumstances concerning the absence of evidence from the appellant in respect of the final hearing and his attendance at the final hearing was given in his written submissions on appeal. Relevantly, these stated: The first hearing took place in my absence on 18th of Oct, I was contacted by the Tribunal member over the phone during the hearing however I didn't really know what she was talking about at the time because I had no prior knowledge of the hearing and I was in fact at the hospital receiving treatment. The tribunal member made an order that the first hearing which includes the tenant to submit their evidence by 25th Oct and I was given until 8th Nov to respond. I spoke to the property manager David Mai at the time and made a complaint that Stone had failed to inform me about the NCAT hearing and the orders were made in my absence. He then agreed to prepare the evidence on my behalf and submit to NCAT. I forwarded the NCAT order and relevant documents to him but he didn't file any documents on my behalf and I only found out before the second hearing when I called him to attend on my behalf. As a result, I was not able to submit any evidence and supporting documents by the due date required by NCAT [emphasis added]. The second hearing took place on 1st of Feb 2024 the property manager from Stone Real Estate, David Mai, originally agreed to attend on my behalf but decided to pulled (sic) out the last minute as he was no longer employed for the agency. He also informed me that he didn't file any documents on my behalf so I went to the second hearing on my own and didn't have anything prepared… 1. This account contains implicit admissions that the appellant did receive the Notice of Order to provide his documentary material by 8 November 2024 and did receive the Notice of Hearing on 1 February 2024. 2. That this was so, is confirmed by a statement from David Mai, dated 26 March 2024, which the appellant relied upon on appeal. This statement included that Mr Mai had been contacted by the appellant in October 2023 when he was on leave from the managing agent firm and that the appellant was quite upset because he had not been notified by the new property manager about the hearing and: … so I agreed to assist him with the Tribunal hearing and requested him to forward all the relevant documents to me. I also promised Mr Li I will attend the hearing on 1st February however due to family member pass away and other important matter I wasn't able to get back to work therefore I resigned from Stone Real estate and was not able to attend the hearing on behalf of Mr Li. I'm terribly sorry to put Mr Li in this situation but please give Mr Li a chance to review his side of evidence…. 1. Based upon the totality of the evidence concerning the provision of the appellant's documentary material for the hearing at first instance and the circumstances concerning his attendance at that hearing, we conclude: 1. The appellant was given a reasonable opportunity to provide documentary evidence (including, witness statements, expert reports, photographs and invoices) in support of his defence of the respondents' claim. As to this, we find that the appellant did receive the Notice of Order setting out the orders and directions made on 18 October 2024, on or about that date, and that even if it be the case that Mr Lai agreed to prepare such documentary material, it was incumbent upon the appellant to ensure that the order was complied with, if he wished to defend the claim. 2. The appellant did receive the Notice of Hearing on 1 February 2024, on or about the date of that notice. It was incumbent upon the appellant to ensure that he understood the nature of that hearing, what was likely to occur at the hearing and that his case was presented at that hearing, if he wished to defend the claim. 1. We note that the appellant does not contend that he was not given an opportunity to say what he wished to say orally at the hearing on 1 February 2024. 2. We also note that it is uncontroversial that at the hearing on 1 February 2024 the appellant made no application for an adjournment. Nor does the appellant contend that he should have been offered an adjournment. The evidentiary basis for any such contention was not provided to us. 3. Accordingly, we reject Ground 2 of the appeal. Consideration-Ground 3 (the decision was against the weight of the evidence) 1. A decision under appeal can be said to be "against the weight of evidence" where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach: Collins v Urban [2014] NSWCATAP 17 at [77]. 2. Ground 3 must be founded upon the totality of the evidence that was actually presented to the Tribunal but as appears from the Notice of Appeal in respect of this ground the appellants based the contention upon new evidence that he wished to rely upon. 3. Accordingly, we reject Ground 3 of the appeal. Consideration-Ground 4 (new evidence) 1. In the Notice of Appeal the appellant made only a general reference to the new evidence that he now sought to produce, namely "expert reports, emails, photos, witness statements and other supporting documents". 2. As to why this material was said not to be available at the time of the hearing, he stated: I was unaware of the first hearing and didn't receive the NCAT notice to submit written evidence and supporting documents. 1. We have already made a finding to the contrary of this last statement. 2. The new evidence that the appellant sought to rely upon was referred to in his written submissions document headed "Reasons for Appeal" lodged on 6 March 2024. This consisted of: 1. An email from the appellant to the respondents sent on to 2 November 2023 concerning terminating the lease early. 2. A report from an arborist, Mr Sutton from Ezigrow Trees and Landscaping, dated 11 February 2024. The report followed a site visit to the residential premises on 9 February 2024. 3. Two photographs of the backyard. 4. 4 invoices, dated 6 October 2023 and 1 December 2023 (concerning pool maintenance) and 17 October 2023 and 15 November 2023 (concerning garden maintenance). 5. An email from the appellant to Mr Harrap sent on 28 November 2023 concerning an incident that day. 6. Written statements about the repair issues contained in the appellant's written submissions on appeal, dated 6 March 2024. 1. Having regard to the content of this evidence and our conclusions concerning Ground 2, it is plain that all of this evidence was reasonably available before the hearing on 1 February 2024. 2. Accordingly, we reject Ground 4 of the appeal. Consideration-Ground 5 (adequacy of reasons concerning amount of compensation) 1. In his written submissions on appeal the appellant stated: Mr Harrap sought $300 per week in rental reduction in his original application and lease termination under section 103… but the tribunal member had awarded $14,500 in compensation plus $350 per week in rental reduction during the second hearing on 1st of Feb. This is significantly higher than the amount they originally sought and having taken no consideration that I was disadvantaged by not attending the first hearing and did not submit any supporting documents. In addition, I offered on multiple occasions in Nov 2023 and the lease agreement early with no penalty but it was refused by the tenant (Appendix 4). It appears to me that Mr Harrap enjoyed the stay at the property but doesn't want to pay the full rent so that look for reasons to obtain rental reduction. 1. There is a problem with the Tribunal's reasons insofar as they concern the quantum of the award of compensation. The situation is not unlike that referred to in Nunez v Sampson [2022] NSWCATAP 125 at [34] and [67]-[85]. 2. There is no explanation for how the sum of $14,500 is arrived at. The reasons at [44] (see above) indicate that the Tribunal may have determined the amount of compensation by a combination of a notional reduced weekly rental plus additional compensation but this approach is not expressed, nor are the components identified, along with some indication as to how the amounts of any such components were arrived at. 3. To illustrate the problem, if the $300 ($43 per day) notional rental reduction measure sought by the respondents was adopted and applied from, say, 20 September 2023 (when the safety concern from the backyard trees was first mentioned) then the resulting compensation as at the date of the hearing (a period of 19 weeks and 2 days) would be about $5800.00. Even if the $300 notional rental reduction measure was adopted from 24 July 2023 (when the first repair items were notified to the landlord's agent, albeit not including any safety issue about the backyard trees) then the resulting compensation would be about $8,300.00. 4. If the $350 ($50 per day) actual weekly rental reduction awarded by the Tribunal from the date of the hearing to completion of repairs was applied historically, even as far back as from 24 July 2023, then the resulting compensation would be about $9,600.00. 5. From these amounts it can be seen that a substantial additional amount has been added by the Tribunal. However, it is not apparent what this additional amount is referable to, particularly, when discomfort, inconvenience and stress form the rationale behind a notional rental reduction measure, as was identified in Nunez in the following passages: 72 We consider that it is appropriate to assess quantum by determining a notional rent reduction referable to the relevant breaches. This accords with the approach accepted by the Tribunal at first instance (not challenged on the appeal in that case) in Bhandari v Laming [2015] NSWCATAP 224 (see at [16]) in which compensation in respect of smoke infiltration of residential premises was quantified by the Tribunal as a percentage of the rent for the period that such inconvenience and discomfort was experienced. 73 This also accords with the guidance provided by the English Court of Appeal in English Churches Housing Group v Shine [2004] EWCA Civ 434 ("English Churches"), referred to in Anforth, Christensen & Adkins, (cited above) at 2.187.7. In that case, the Court approved the remarks by Morritt LJ in Wallace v Manchester City Council (1990) 30 HLR 1111 as follows: First, the question in all cases of damages for breach of an obligation to repair is what sum will, so far as money can, place the tenant in the position he would have been in if the obligation to repair had been duly performed by the landlord. Secondly, the answer to that question inevitably involves a comparison of the property as it was for the period when the landlord was in breach of its obligation with what it would have been if the obligation had been performed. Thirdly, the periods when the tenant remained in occupation of the property notwithstanding the breach of the obligation to repair the loss to him requiring compensation is the loss of comfort and convenience which results from living at the property which was not in the state of repair it ought to have been in if the landlord had performed his obligation. … Thus the question to be answered is what sum is required to compensate the tenant for the stress, inconvenience experienced because of the landlord's failure to perform his obligation to repair. Such sum may be ascertained in a number of different ways, including but not limited to a notional reduction in the rent. Some judges may prefer to use that method alone…; some may prefer a global award for discomfort and inconvenience… And others may prefer a mixture of the two… 74 The Court of Appeal in English Churches went on to say: 104 Whilst we accept that the guidelines helpfully set out by Morritt LJ… are not to be applied in a mechanistic or dogmatic way, and whilst we equally accept that there will be cases in which the level of distress or inconvenience experienced by a tenant may require an award in excess of the level of rental payable, we take the view that the plain inference of Morritt LJ's judgement, and the figures identified in the case itself, demonstrate that if an award of damages for stress and inconvenience arising from the landlord's breach of the implied covenant to repair is to exceed the level of rental payable, clear reasons need to be given by the court for taking that course, and the facts of the case-notably the conduct of the landlord-must warrant such an award. 105 It must, we think, always be remembered that an award of damages under LTA 1985 section 11 is an award for a breach of contract with the landlord, not for a tort committed by the landlord. It is, accordingly in our judgement logical that the calculation of the award of damages for stress and inconvenience should be related to the fact that the tenant is not getting proper value for the rent, which is being paid for defective premises….. 1. Accordingly, we uphold Ground 5 of the appeal. New assessment of the amount of compensation 1. As occurred in Nunez (see at [70]) and for the same reason, we consider that we should reassess the amount of compensation ourselves and do so on the basis of the relevant findings of the Tribunal, the documentary material that was before the Tribunal and oral submissions of the parties at the hearing of the appeal made on the basis that we may decide to reassess compensation ourselves. 2. The appellant opposed this course and submitted that we should remit the question as to the amount of compensation payable back to the Tribunal for redetermination, including on the basis that he be permitted to present new evidence, particularly, concerning the impact of the state of the 4 gum trees on the use of the backyard and pool areas. In this regard, he repeated his position in respect of the whole of the appeal, namely, that it was unfair for a decision to be made in circumstances where he had been denied the opportunity of presenting documentary material. 3. We do not agree. The appellant had his opportunity to present his evidence and did not do so in circumstances where he ought to have ensured that this occurred, if he wished to defend the claim. We do not consider it would be in accordance with the guiding principle in s 36 (1) of the NCAT Act and that it would be unfair to the respondents to now permit the appellant to have a second chance to present his documentary material. For the same reason, even if we had decided that the appropriate course was to remit the question as to the quantum of compensation to the Tribunal for redetermination, we would have done so on the basis that this issue be decided upon the evidentiary material presented to the Tribunal and not by reference to any new documentary material that the appellant wished to rely upon. 4. Whilst he continued to oppose a reassessment without further evidence, the appellant indicated that the correct amount of compensation should be in the order of $2,500-$2,750 on the basis of a period of about 26 weeks at a daily amount of about $15 as found by the Tribunal in respect of the outstanding repair amounts other than inability to use the backyard and swimming pool because of the poisoned trees. The appellant opposed the award of any amount in respect of this latter question but his opposition was founded upon the new evidence concerning this issue. 5. The respondents sought to, at least, uphold the compensation amount of $14,500.00 by various contentions. 6. In the first place, the respondents referred us to a one-page table they had presented to the Tribunal (page 150 of Exhibit A). This was not a document or an analysis referred to by the Tribunal. 7. This document contained two components-first a claim for compensation in an amount of $3,000 consisting of 3 one-off items concerning failure to clear yard debris, pool paint and debris and inconvenience, frustration and time invested, including multiple follow-ups on repairs and maintenance and time to put evidence together for the Tribunal case (for this third item an amount of $1000 was sought). The second component was a calculation of a rent reduction of $300 per week, which appeared to be for the duration of the one- year lease-an amount of $15,600.00. This calculation was founded upon an estimated cost to carry out the required repairs and maintenance reduced to a weekly amount over a 52 -week period. 8. We do not see how this second aspect, in particular, approaches compensation in a way that is consistent with assessment of loss for breach of the repairs obligation, as outlined above. It was not an approach that was pressed upon us by the respondents in their submissions concerning the reassessment of quantum of compensation. 9. The respondents also contended that compensation in the amount of about $15,000 was warranted on the basis that, first, the $50 daily rate ($350 per week) awarded by the Tribunal should apply historically for the period from 24 July 2023 to 1 February 2024. To this, they sought to add an amount of about $6400.00 for their time spent of about 40 hours at a rate of $160 per hour in dealing with the repairs issues-this included time in preparing the Tribunal case and at the hearings themselves. 10. However, as we pointed out at the hearing, the approach based upon time spent preparing the Tribunal case and at the hearings was not sustainable. 11. The respondents then argued that the $15 daily rate component awarded by the Tribunal was inadequate for the historical loss because it took no account of a number of repair items that had been outstanding for a considerable period of time but had been resolved by the date of the hearing. These were 6 items as to which the following defects were uncontroversial: 1. Dimmer for the light in the entrance to the living room made a loud this buzz noise-notified in 24 July 2023 email, not fixed until 22 September 2023. 2. A chandelier light in the living room stayed on even when the light was switched off-notified in 24 July 2023 email, not fixed until 29 January 2024. 3. The robot cleaner in the pool not working-notified in 20 September 2023 email, not fixed until 13 November 2023. 4. Heat lamp bathroom working-notified in 24 July 2023 email, not fixed until 21 October 2023. 5. Kitchen lights (3) needing replacement-notified in 24 July 2023 email, not fixed until late October 2023. 6. Broken door handle on sliding study door-notified in 24 July 2023 email not fixed until late October 2023. 1. Four of the items included in the Tribunal's $15 daily rate assessment were notified in the 24 July 2023 email and remained outstanding at the date of the hearing, namely toilet seat to be fixed, electrical wire coming out of wall to be fixed, dishwasher to be affixed and backyard waste and debris to be removed. The remaining two items forming part of the $15 daily rate had been outstanding since, at least, late November 2023. One of these was to repair water damage to ceilings in the dining room and upstairs bedrooms. 2. We start from the position that the respondents did not take issue with the $35 daily rate amount determined by the Tribunal as the actual rental reduction amount attributable to inability to use the backyard and swimming pool. We note that this equates to an amount of $245 per week, being about 15% of the weekly rental. When applied historically to the period from 20 September 2023 (on the basis we have already referred to) to the date of the hearing this results in a compensation amount of $4,690.00. 3. We consider that an appropriate measure of the loss relating to the other repair items (all those additional to the poisoned trees issue) is to award the sum of $ 2,500.00 in respect of them. We do so by taking the approach of awarding a global amount for discomfort and inconvenience in respect of these items rather than a notional reduction of rent approach. This approach seems to us to be a more appropriate one, doing the best we can on the available material, in circumstances where such an amount was consistent with the level of loss accepted by the parties (when compensation for time spent on the NCAT case is excluded), where there was a considerable quantity of relatively minor repair items and there were varying periods for which the problems were experienced. 4. In arriving at this amount of $2,500, we have given particular weight to the following matters: 1. In our view, viewed individually each of these items were minor repairs, but in total provided a material, although relatively modest, subtraction from the value that the respondents had contracted to obtain, even when one has regard to the differences in the periods the problems were experienced and the substantial contractual rent reflecting the size and quality of the property. 2. Taking a broad view, this amount is a little over 5% of the contractual rent for the duration of the tenancy up until the date of the hearing and about 5.6% of the contractual rent from 24 July 2023 (when a number of needed repairs were first notified to the landlord) to the date of the hearing. We see this as consistent with our assessment referred to in (1). 3. The amount is consistent with the compensation amount of $3,000.00 set out in the respondents' table presented to the Tribunal (page 150 of Exhibit A), which amount not only included an amount for inconvenience and frustration relating to the repairs, but, incorrectly, also included an amount for time spent on the NCAT case. The amount is also consistent with the amount put forward by the appellants (referred to above). 1. We should mention that the appellant sought to argue that the amount of compensation should be reduced because he offered the respondents early termination of the lease. However, the respondents had no obligation to agree to such a course as part of their duty to mitigate their loss. 2. Accordingly, we consider that the amount of $7,190.00 (being the addition of $4,690.00 and $2,500.00) should be awarded to the respondents in substitution for the Tribunal's award of $14,500.00. 3. To this amount of $7,190.00 there must be added the amount of $175.00 in respect of the cost of Mr Bolan's report which remains unpaid. Orders 1. For the above reasons, we make the following orders: 1. Melissa Fournier is joined as a respondent to the appeal. 2. Appeal allowed in part. 3. Order 1 made by the Tribunal on 1 February 2024 is set aside and in substitution for that order the appellant is ordered to pay the respondents $7,365.00, immediately. 4. Otherwise, leave to appeal is refused and 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: 13 June 2024