Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ghavamzadeh v Semaan [2024] NSWCATAP 143 Hearing dates: 15 July 2024 Date of orders: 25 July 2024 Decision date: 25 July 2024 Jurisdiction: Appeal Panel Before: Balla ADCJ, Principal Member S Thode, Principal Member Decision: The appeal is dismissed Catchwords: LEASES AND TENANCIES — Tenant's liability for electricity usage charges — Tenant's liability for repairs at end of tenancy Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80 Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 The Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: None Category: Principal judgment Parties: Tania Ghavamzadeh (Appellant) Milad Semaan(Respondent) Representation: Western Sydney Tenants' Advice and Advocacy Service (Appellant) N Semaan (Agent for Respondent) File Number(s): 2024/00169009 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 3 May 2024 Before: P Millar, General Member File Number(s): 2024/00011475 REASONS FOR DECISION 1. The appellant tenant rented a granny flat from the respondent landlord. That granny flat was situated behind a house which was rented to other tenants. 2. The lease commenced on 6 January 2020 for a fixed term of six months after which the tenancy became periodic. The landlord served a termination notice in September 2023. On 2 January 2024 the tenant vacated the premises and on 4 January 2024 returned the keys to the landlord. 3. These proceedings were commenced on 10 January 2024 when the landlord sought orders for the tenant to pay arrears in rent and utility charges as well as the cost of various end of tenancy works. 4. The application was heard in the Consumer and Commercial Division of this Tribunal on 3 May 2024 and the Tribunal made Orders to the following effect: 1. The tenant to pay the landlord the sum of $10,064.41 immediately. 1. That money order was comprised of: 1. Rent arrears - $499.59. 2. Electricity usage arrears - $6,409.32. 3. End of tenancy costs - $3,155.50. 1. The Rental Bond Board was directed to pay the bond plus interest to the landlord and that sum was to be credited against the money order. 1. The tenant has appealed from that decision. She was represented by the Western Sydney Tenants' Advice and Advocacy Service. The landlord was represented by the managing agent of the granny flat. The Law 1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2). 2. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to The Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong." 1. As this is an appeal from a final decision made in the Consumer and Commercial Division, there is a further qualification to the possible grant of leave in that we may only go on to consider a grant of leave if we are first satisfied that the elements of cl 12(1) of Sch 4 of the NCAT Act are made out. This provides that leave should only be granted when the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal was not fair and equitable; or 2. the decision of the Tribunal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence not reasonably available at the time the proceedings under appeal were being dealt with). 1. We agree with the Appeal Panel in Collins v Urban where it said, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: ... [T]here 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. We may decide to conduct a new hearing if we are satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning": Yuen v Thom [2016] NSWCATAP 243 at [17]. Neither party sought a new hearing. We were not satisfied the grounds of appeal warranted us proceeding in that way. The Appeal The outstanding rent 1. The tenant did not dispute the finding by the Tribunal that she was liable to pay the outstanding rent of $499.59 for the period 22 December 2023 to 4 January 2024. Electricity usage 1. The landlord claimed that he was owed $6,409.32 for the cost of the electricity provided to the granny flat from April 2020 to September 2023. 2. The tenant acknowledged she was provided with electricity but says she is not required to pay for it. 3. The Residential Tenancies Act 2010 (NSW) (RTA Act) relevantly provides: 3 DEFINITIONS (1) In this Act … "separately metered" means that there is, in respect of residential premises, a meter-- (a) that satisfies an Australian Standard prescribed by the regulations (if any) dealing with electrical, gas, oil or water metering equipment, and (b) that has been installed in accordance with the manufacturer's instructions for installation or industry practice, and (c) that measures the quantity of electricity, gas, oil or water that is supplied to, or used at, only those residential premises, and (d) that enables a separate bill to be issued by the supplier for all charges for the supply and use of the electricity, gas, oil or water at those residential premises, and (e) if the meter is to measure the supply of electricity--in respect of which an NMI, within the meaning of the National Energy Retail Law (NSW), has been assigned, 1. Section 38 of that Act then provides: 38 UTILITY CHARGES PAYABLE BY TENANT (1) A tenant must pay the following charges for the residential premises-- (a) all charges for the supply of electricity, gas (except bottled gas) or oil to the tenant at the residential premises if the premises are separately metered. 1. Section 40 of that Act then provides: 40 PAYMENT OF RATES, TAXES AND CERTAIN UTILITY CHARGES BY LANDLORD (1) A landlord must pay the following charges for the residential premises-- (c) all charges for the supply of electricity, gas (except bottled gas) or oil to the tenant at the residential premises that are not separately metered. 1. There was in evidence before the Tribunal a letter from a licensed electrician dated 25 February 2024 stating that a private meter had been installed at the granny flat. The meter was isolated from the house at the front of the property, it only measured electricity consumption at the granny flat, the meter was "as per Australian standards" and the electrician had tested the meter while the tenant was living in the premises. 2. The agent for the landlord explained to the Tribunal that the landlord received invoices from the provider, AGL, for the total owing for both the main premises and the granny flat. The agent would then, sometimes accompanied by the tenant, read the meter for the granny flat which showed how many kilowatts had been used. He then calculated how much was payable by the tenant by reference to the charge per kilowatt on the invoice. 3. While the tenant conceded at the Tribunal hearing in May 2024 that she had been supplied with electricity during her tenancy, she submitted that she was not liable to pay for it because she had never been provided with an invoice from the supplier of the electricity. 4. The Tribunal took into account that there was no requirement in the legislation for the landlord to give to the tenant an invoice from the supplier unlike the requirements for water usage charges in s 39 of the RTA. The Tribunal also took into account that the tenant did not challenge the method used by the agent to calculate the amounts payable. The Tribunal found that the separate meter as described in the agent's evidence would enable a separate bill to be issued by AGL and determined that the claim was payable by the tenant. 5. The tenant submitted to us that the Tribunal's decision was wrong and the private meter did not enable a separate bill to be issued by AGL for the supply and use of the electricity at the granny flat. It was submitted that while the Tribunal was technically correct in there being no requirement for the landlord to provide a bill from AGL to the tenant, the Tribunal should have taken into account that the landlord had not provided such a bill after the tenant had asked for such a bill on numerous occasions. This was, it was submitted, "ipso facto" evidence that AGL could not issue a separate bill for the granny flat. In addition the document from the electrician failed to indicate the name and expertise of the person who had inspected the meter and failed to specify which Australian Standard had been met. 6. Lastly, it was submitted that a meter installed by the landlord without the knowledge, approval or capacity to be monitored by AGL could not fulfil the definition of "separately metered" in the legislation. We do not accept this submission. We were not taken to any evidence to support the proposition that the meter had been installed by the landlord without the knowledge of, approval of or capacity to be monitored by AGL. 7. We are not persuaded that there was any error in the reasoning of the Tribunal. There was, as the Tribunal found, no obligation on the landlord to serve a bill from AGL to the tenant setting out the amount payable by the tenant. We do not agree that the landlord's failure to do so is evidence that AGL could not have issued a separate bill. Nor do we accept that the Tribunal should not have relied on the uncontested evidence from the electrician who had installed the meter at the granny flat. We can find no error in the Tribunal's finding that the private meter which had been installed would have enabled AGL to prepare such a bill thus complying with the definition of "separately metered". 8. There are circumstances in which the construction of legislation is a question of law so that leave to appeal is not required. However, as we have not found any error in the decision of the Tribunal relating to the claim for electricity charges, we do not consider it necessary to consider whether the submissions by the tenant did raise an error on a question of law. End of tenancy costs 1. The Tribunal found that the tenant was liable to pay to the landlord for end of tenancy costs which were the treatment of pests, grass cutting and seeding, the reinstatement of fly screen mesh, new curtains, rectification work necessary as a consequence of the tenant installing and later removing an air conditioning unit and an end of lease clean. 2. The Tribunal found that the need for pest control treatment was necessary because the tenant kept dogs at the premises. In relation to the other items, the Tribunal accepted that a comparison of photographs taken at the time the tenant entered into the lease and photographs taken just after the tenant had vacated the granny flat, showed that the work was needed. It did not accept the evidence of the tenant when she said she had arranged for some of the work to be done as that oral evidence was not supported by any other evidence, such as an invoice from the contractor, and was inconsistent with the photographs in evidence. 3. The primary submission made by the tenant to us was that the Tribunal had failed to take into account reasonable wear and tear as required by the RTA. 4. We reject the submission. It is clear from the Tribunal's decision that the Tribunal Member was aware of the relevant principle and took it into account. At para 14 the Tribunal said: "[P]ursuant to section 51(3) of the Act, the tenant is to remove their goods, return the keys to the landlord and leave the premises as nearly as possible in the same condition, fair wear and tear excepted and in a reasonable state of cleanliness… Matters that may be the subject of rental bond claim are set out in s 166 of the Act and include the reasonable cost of repairs to or the restoration of, the residential premises or goods leased with the premise, as a result (other than fair wear and tear) caused by the tenant and the reasonable cost of repair, having regard to the condition of the premises at the commencement of the tenancy." 1. At para 37 the Tribunal said "The Tribunal is also satisfied that these end of tenancy costs are not attributed to fair wear and tear but rather the tenant breaching obligations under section 51 of the Act." 1. We do not accept that the Tribunal failed to take into account the issue of fair wear and tear nor has the tenant shown, in respect of any one of the items, how the work that was needed was due to fair wear and tear. Application for leave to rely on additional evidence 1. The tenant sought leave to rely on a statutory declaration prepared by her father on 15 May 2024. 2. We refuse to grant that leave. The statutory declaration relates to matters such as odd jobs done at the granny flat during the tenancy and an asserted failure by the landlord to fix issues with water entry to the granny flat during the tenancy. These matters are not relevant to any issue to be determined by us. Outcome 1. We make the following order: 1. 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. 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