Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Corbett v City West Housing [2024] NSWCATAP 133 Hearing dates: 19 April 2024 Date of orders: 11 July 2024 Decision date: 11 July 2024 Jurisdiction: Appeal Panel Before: R Dubler SC, Senior Member A Boxall, Senior Member Decision: (1) The appeal is dismissed. (2) The decision under appeal is confirmed. Catchwords: LEASES AND TENANCIES – Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited. Category: Principal judgment Parties: Jodi Corbett (Appellant) City West Housing (Respondent) Representation: Appellant (Self Represented) Ms J Barnes (Agent for Respondent) File Number(s): 2024/00051412 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 28 January 2024 Before: P Millar, General Member File Number(s): 2023/00375510 reasons for decision Background 1. This is an appeal against a decision of the Tribunal's Consumer and Commercial Division, made on 25 January 2024. 2. The decision concerns the Appellant's lease (the Lease) of residential premises in Pyrmont NSW (the Premises), which is one of several apartments in a block owned by the Respondent. 3. It is uncontested that: 1. in June 2023 the Respondent undertook certain refurbishment work at the Premises, that involved relevantly the refitting of the kitchen in the Premises and in particular the replacement of the gas oven and cooktop with electrical appliances; 2. the replacement of the gas appliances with electrical ones was contrary to the Appellant's preferences, as was the installation of a new electrical metering system, described as a "smart meter", with which the Appellant had concerns as a potential source of electromagnetic radiation; and 3. on 16 September 2023, the Appellant filed an application with the Tribunal seeking orders that: 1. the Respondent replace the electrical appliances with gas ones; and 2. she not be connected to or required to use the smart meter. 1. On 25 January 2024, the Tribunal dismissed the Appellant's claims (the Decision). 2. On 9 February 2024, the Appellant lodged with the Tribunal a Notice of Appeal against the Decision. 3. On 14 February 2024, the Respondent lodged its Reply to the appeal. 4. On 23 February 2024, the Tribunal made certain directions for the conduct of the appeal. 5. On 15 March 2024, consistently with those directions, the Appellant lodged her submissions in support of the appeal together with certain written material. 6. On 4 April 2024, again consistently with those directions, the Respondent lodged its submissions and certain written material. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. 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: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e. mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of 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: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Submissions and evidence 1. In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal lodged on 9 February 2024; 2. The Respondent's Reply to Appeal lodged on 14 February 2024; 3. The Appellant's and the Respondent's respective written submissions; 4. The written materials respectively filed by the Appellant and the Respondent; and 5. The oral submissions made by and on behalf of the parties at the appeal hearing. Notice of Appeal 1. The proceedings are residential proceedings within the meaning of the Civil and Administrative Tribunal Rules 2014 (the Rules), being proceedings arising under the Residential Tenancies Act 2010 (the Act). The Notice of Appeal was thus required under cl 25(4)(b) of the Rules to be filed within 14 days after the later of the day on which decision under appeal was notified to the Appellant, and the day on which reasons for decision were provided. The date on which that event occurred is excluded from the fourteen-day period: cl 6(2) of the Rules. The Decision was notified and reasons were provided on 25 January 2024, and the Notice of Appeal was filed on 9 February 2024. This was the fourteenth day, as so calculated, and in consequence the Notice of Appeal was filed within time. Grounds of Appeal 1. The Appellant's grounds of appeal can be discerned from her Notice of Appeal and her supporting written and oral submissions, although they are not articulated in a way that conforms to the principles outlined above. However, the Panel adopts the views expressed by an earlier Appeal Panel in Cominos v Di Rico [2016] NSWCATAP 5 which observed at [13] that, in the case of appeals by self-represented appellants, a pragmatic approach should be taken in identifying the basis of appeal: [13] It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.' 1. This informs the Appeal Panel's approach in the present case. 2. The Appeal Panel considers that the Appellant identified the following questions of law for purposes of her appeal against the Decision: 1. Did the Tribunal conduct the hearing in a way that was procedurally unfair to the Appellant, particularly by: 1. Frequently interrupting the Appellant's arguments with questions; and 2. Failing to make ensure that the Appellant was able to introduce oral evidence from her witnesses? 1. Did the Tribunal correctly find that the replacement of the gas appliances with electrical ones was not a prohibited interference under section 50(2) of the Act with her quiet enjoyment of the Premises? 2. Did the Tribunal correctly find that the installation of the new electrical metering system was not a prohibited interference under section 50(2) of the Act with her quiet enjoyment of the Premises? 3. Did the Tribunal fail to give appropriate consideration to the question whether the replacement of gas appliances, or the installation of the new electrical metering system was an interference with the supply of gas or electricity to the Premises which was prohibited under section 52(2) of the Act? Reply to Appeal 1. The Respondent supports the decision at first instance, observing that the Tribunal's decision was consistent with the Act. The Respondent says that: 1. The refurbishment works were consistent with the Respondent's obligations to maintain the Premises. 2. Although the Respondent's notification of the refurbishment and electrical works to the Appellant was less than ideal, the Appellant consented to the works being undertaken. 3. That the Appellant prefers gas appliances to electrical does not mean that the installation of the latter is a failure to provide her with quiet enjoyment of the Premises. 4. The Appellant is not obliged to use the smart metering system and can continue to access mains electricity without doing so. 5. Gas remains available to the residential block, since some residents continue to use gas heaters. 6. The Appellant was invited on multiple occasions if she had anything to add but did not take the opportunity to question her witnesses. 7. The hearing was conducted correctly. 8. The Respondent submitted copies of the evidence provided at the hearing. Consideration Procedural fairness 1. No party to the Appeal provided a transcript of the hearing. Without such a transcript, at least of the relevant parts of the hearing, it is practically difficult for the Appeal Panel to go beyond the Reasons for Decision in order to assess the relative merits of the Appellant's claims of procedural unfairness, and the Respondent's assertions to the contrary. 2. The Reasons for Decision themselves indicate: 1. At paragraphs [5] to [7], that the Tribunal considered the Appellant's claim that the replacement of the appliances was inconsistent with her right to quiet enjoyment of the Premises; 2. At paragraphs [9] to [10], that the Tribunal considered the Appellant's claim that the installation of the new metering system was inconsistent with her right to quiet enjoyment of the Premises; 3. At paragraphs [5] to [7] and [10], that the Tribunal considered the Appellant's claim that the operation of the new metering system was inconsistent with her right to quiet enjoyment of the Premises; 4. At paragraphs [9], [10] and [15], that the Tribunal considered the continuing availability to the Appellant of electricity and gas supplies, despite the refurbishment works and the change in metering arrangements; 5. At paragraphs [12] to [14], that the Tribunal considered the Appellant's claim that the way in which notice was given of the replacement of the appliances and the installation of the new metering system was inconsistent with her right to quiet enjoyment of the Premises; and 6. At paragraph [13], the Tribunal gave consideration to the views of certain other tenants who accompanied the Appellant to the hearing, and whose views were referred to by the Appellant. 1. The Reasons for Decision indicate that the Tribunal considered the Appellant's evidence and arguments and the views of her fellow tenants. Nothing in the Reasons for Decisions, which are the best evidence that the Tribunal has concerning the conduct of the hearing, supports the Appellant's contention, that Tribunal conducted the hearing in a way that was procedurally unfair. Quiet enjoyment: change of appliances 1. The Tribunal found that the Respondent's conduct in replacing the appliances did not infringe the Appellant's right to quiet enjoyment of the Premises since: 1. There was no suggestion that the installation works were defective, 2. The replacement of the appliances was "aligned with" the Respondent's obligations as landlord concerning the quality and habitability of the Premises, 3. The installation of the new appliances caused the Appellant at worst an inconvenience, 4. Although the Respondent had provided only one week's notice of its intention to undertake the replacement works, notice of this length was not a breach of the Appellant's right to quiet enjoyment of the Premises. 1. The Appeal Panel can identify no error in the Tribunal's decision on this point. Quiet enjoyment; change of metering 1. The Tribunal in its Reasons for Decision records that: 1. The Appellant provided no evidence to support her assertion, that the installation of the new metering system caused a health risk from electro-magnetic radiation; and 2. The unchallenged evidence from the Respondent was that: 1. the Appellant could only access electricity generated by solar panels using the smart metering by inserting a unique identifying number, but that she still remained able to (and did) access mains electricity in the traditional way but through the new meter; and 2. the Appellant's concern that the smart meter could result in the provision of her personal information to third parties other than her electricity supplier was thus unfounded. 1. On the basis of these findings, it dismissed her claim that the change in metering arrangements adversely affected her right of quiet enjoyment of the Premises. 2. Again, the Appeal Panel can identify no error in the Tribunal's decision on this issue. Interference with the supply of electricity or gas 1. The Tribunal records in its Reasons for Decision: 1. The uncontested evidence from the Respondent, that the Applicant remained able to access mains electricity supplies; and 2. The Appellant's evidence that she retained the gas meter in order to facilitate reinstallation of a gas stove, and concludes that there was no interference with the supply to the Premises of electricity or gas. 1. Again, the Appeal Panel can identify no error in the Tribunal's decision on this issue. Leave to appeal 1. To the extent the Appellant seeks leave to appeal, she offered no satisfactory basis to support granting leave: 1. The matters summarised in the preceding paragraphs address any suggestion that the decision under appeal was not fair and equitable, or that it was against the weight of evidence; and 2. None of the material provided by the Appellant to the Tribunal in connection with the appeal was not reasonably available at the time of the hearing. Orders 1. The Appeal Panel orders that: 1. The appeal is dismissed; and 2. The decision under appeal is confirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 15 July 2024 - 1 In [19], delete "present" where it first appears. 2 In [24], Line 3: "Reasons" (plural) rather than "Reason" (singular). 3 In [30], delete the numbering from paragraph (3) and move the start of that block of type to the left. 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: 15 July 2024