Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kamalesvaran v Ng [2024] NSWCATAP 163 Hearing dates: 13 August 2024 Date of orders: 22 August 2024 Decision date: 22 August 2024 Jurisdiction: Appeal Panel Before: K Ransome, Principal Member D Robertson, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. (3) The stay order made on 9 July 2024 in matter 2024/00154894 is lifted. (4) Possession of the premises is to be given to the landlords 21 days from the date of publication of the orders in this appeal. Catchwords: APPEAL – landlord and tenant – whether termination notice retaliatory – whether denial of procedural fairness – whether relevant considerations not taken into account Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act 2010 Cases Cited: Boreland v Brewis [2024] NSWCATAP 140 Bowers v Karai [2021] NSWCATAP 316 Collins v Urban [2014] NSWCATAP 17 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: Nil Category: Principal judgment Parties: Rajan Kamalesvaran (Appellant) Keith Ng & Kit Ling Catherine Ng (Respondents) Representation: Appellant (self represented) Pudasaini B (Agent) (Respondent) File Number(s): 2024/00154894 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 25 March 2024 Before: D Goldstein, Senior Member File Number(s): 2024/00038454 REASONS FOR DECISION 1. Rajan Kamalesvaran has been a long-term tenant of the landlords, Mr and Mrs Ng, having been in the premises for about 14 years. In May 2023 the landlords served Mr Kamalesvaran with a rent increase notice. The rent was to increase from $500 per week to $550 per week from 31 July 2023. Mr Kamalesvaran challenged the rent increase in the Tribunal and on 17 August 2023 the Tribunal made an order to reflect an agreement reached between Mr Kamalesvaran and the landlords that the rent would increase to $525 per week from 31 July 2023. 2. On 3 January 2024 the landlords issued a Notice of Termination to Mr Kamalesvaran under s 85 of the Residential Tenancies Act 2010 specifying a termination date of 4 April 2024. Such a notice is generally referred to as a no grounds notice. Text messages from the landlords' agent stated that the property would be renovated after Mr Kamalesvaran moved out. 3. On 29 January 2024 Mr Kamalesvaran made an application to the Tribunal seeking the following orders: 1. an order cancelling the termination notice on the basis it was retaliatory; 2. an order that repairs be carried; and 3. an order that consideration and/or compensation (such as a rent reduction) be given for the landlords' failure to carry out repairs and for subsequent health issues caused by this failure. 1. We note that Mr Kamalesvaran subsequently clarified to the Tribunal that in (3) he was seeking a rent reduction under s 44(1)(b) of the Residential Tenancies Act on the basis that the rent was excessive having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises. 2. On 26 March 2024 the Tribunal issued orders that the termination notice issued to Mr Kamalesvaran was not retaliatory. The Tribunal also found that there was no utility making an order that repairs to the premises be carried out as, in accordance with the termination notice, the tenancy was to end on 4 April 2024. The Tribunal also declined to make an order for a rent reduction for the landlord's failure to carry out repairs. Written reasons for the decision were provided on 29 April 2024. 3. Mr Kamalesvaran has appealed against that decision by filing a Notice of Appeal on 26 April 2024 and an amended Notice of Appeal on 8 May 2024. The Tribunal's reasons 1. The Tribunal found that the termination notice complied with the provisions of s 85 of the Residential Tenancies Act. The Tribunal then referred to s 115 of the Residential Tenancies Act which deals with retaliatory evictions. That section provides: (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice — (a) declare that a termination notice has no effect, or (b) refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons — (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant. (3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant. 1. The Tribunal referred to evidence given by Mr Kamalesvaran that issues in the past relationship between him and the landlords were a reason for the notice being retaliatory. The Tribunal was not persuaded that was the case in relation to events which occurred many years ago, as it would be logical that a s 85 notice would have been given soon after the events in question. In relation to the 2023 rent increase proceedings, the Tribunal found that a reduction in the increase of $25 per week was not such a substantial loss to the landlords to lose a longstanding tenant such as Mr Kamalesvaran. Furthermore, if the loss of $25 per week was a reason or motivation to issue the notice, the Tribunal found that it was probable that the landlords would have issued the notice soon after the Tribunal orders of 17 August 2023, rather than some four months later. 2. The Tribunal found, more importantly, that the evidence showed that the premises were in poor condition and in need of renovation. It accepted the evidence of the landlords that they intended to renovate the premises. The Tribunal noted there had been correspondence between the landlords in November and December 2023 and a contractor who had stated that it was able to commence work in the last week in January 2024 and advised that the work could only be carried out with vacant premises. Further planning for the renovation of the leased premises was undertaken after the s 85 notice had been served. The Tribunal found that the s 85 notice had been issued because the landlords wanted vacant possession to renovate the premises and was not issued for a retaliatory purpose, including any desire to retaliate against Mr Kamalesvaran for his actions or conduct during the term of the tenancy. 3. In relation to the order sought that repairs be undertaken to the premises, the Tribunal found that there would be no utility in making such an order as Mr Kamalesvaran was obliged to give vacant possession on 4 April 2024. In relation to the application for a rent reduction, the Tribunal referred to the consent order in relation to the rent increase which was made on 17 August 2023. The Tribunal noted that the order was made under s 44 of the Residential Tenancies Act in response to proceedings initiated by Mr Kamalesvaran and that he was aware the rent would be fixed for one year. The Tribunal found there was therefore no basis upon which a rent reduction could be made as the Tribunal was bound to give effect to s 44(6) of the Residential Tenancies Act which provided that the order made by the Tribunal on 17 August 2023 was to have effect for 12 months. Scope and nature of internal appeals 1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) provides that an internal appeal from a decision of the kind in this appeal can be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 2. 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 Sch 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 the Appeal Panel set out the principles applicable when considering whether leave should be granted. 2. As the Appeal Panel noted in Bowers v Karai [2021] NSWCATAP 316 at [11] and Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]: "An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal with the opportunity to run their case again." Grounds of appeal 1. In his amended notice of appeal Mr Kamalesvaran states that he is seeking leave to appeal on the basis that the decision was not fair and equitable because: 1. he was not allowed to question the landlord's representative; 2. the Senior Member referred to his statements as "nonsense"; and 3. the Senior Member prevented him from giving oral evidence because he had not provided an affidavit or statutory declaration. 1. Mr Kamalesvaran also states that the Senior Member showed bias towards the landlord by joking with the landlord's representative: "well I won't note that, because the landlord will get very angry with you if they do". He also states that the decision was against the weight of the evidence as some of his evidence was not taken into account. 2. In his written submissions lodged prior to the appeal hearing Mr Kamalesvaran identifies the following grounds of appeal: 1. Whether there was a failure to afford procedural fairness; 2. Whether the Tribunal failed to take into account relevant (that is, mandatory) considerations. 1. At the appeal hearing Mr Kamalesvaran clarified that the appeal grounds as set out in his written submissions, which we understand were prepared by a solicitor, were the grounds he was arguing. The landlord's representative was content to proceed with the hearing on the basis of those grounds. 2. The grounds put forward by Mr Kamalesvaran raise questions of law: Italiano v Carbone & Ors [2005] NSWCA 177 at [85]-[87] (Basten JA); Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]. Was there a denial of procedural fairness? 1. Procedural fairness requires that parties have an adequate opportunity to put their case and test the case against them. In accordance with s 38(5)(c) of the NCAT Act, the Tribunal is required to take such measures as are reasonably practicable "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings". Justice Basten stated in Italiano v Carbone at [88]: An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment," as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. 1. In his written submissions Mr Kamalesvaran submits that he was denied procedural fairness as he did not know that witness evidence was to be provided by way of affidavit or statutory declaration. He said that the directions that were made at an earlier hearing on 20 February 2024 merely stated that he was to file "the documents" he relied on by 5 March 2024. He states that as a self-represented litigant he interpreted the direction to mean documents already in existence such as reports, photos, invoices, correspondence, rather than evidence that he intended to rely upon. We note that Mr Kamalesvaran filed over 300 pages of documents with the Tribunal. 2. Mr Kamalesvaran refers to the following exchange at the hearing: Senior Member: Look, if you're just giving evidence from the bar table, you can't just... Mr Kamalesvaran: oh, I'm sorry. Senior Member: It's all got to be in your documents. If you wanted to say that there'll be an affidavit, statement or statutory declaration explaining all of that. Mr Kamalesvaran: Sorry, I didn't... Senior Member: That's the process that this tribunal follows and it should have been explained to you on the last occasion, but basically all of your evidence is supposed to be contained in your documents or whatever. That's not simply a backwards and forwards on the day Mr Kamalesvaran: Sorry, senior member. Senior Member: That's all right. You don't understand. 1. Mr Kamalesvaran states that he therefore lost all opportunity to provide any evidence that was not in documentary form and therefore lost the opportunity to put forward his case as to the reasons why the termination notice was retaliatory under s 115 of the Residential Tenancies Act. 2. The above exchange occurred some 1 hour and 53 minutes after the hearing began. The transcript of the hearing provided by Mr Kamalesvaran shows that he commenced presenting his case at 00:23:30 and concluded at 1:32:08. Mr Pudasaini, the landlords' agent, then began making his submissions in relation to the application. Mr Pudasaini first made submissions about whether the notice was retaliatory and referred to documentary evidence filed about the landlords' plans to renovate the unit. Mr Pudasaini then addressed the claims for repairs and a rent reduction. At 1:47:32 he began addressing the water damage and mould issue. At 1:52:09 Mr Pudasaini referred to a document setting out, among other things, why the bathroom renovation did not proceed in 2018. It was stated that this was because Mr Kamalesvaran "was uncooperative and did not want to be disturbed during his stay from July to October 2018." 3. At this point Mr Kamalesvaran interjected and said: Sorry. I was going to say at that time when the leak first happened that water damage, that mould and that water damage did not appear, that did not appear until sometime well after that. So in other words, at the time, the damage that you see, for example on exhibit B, page 40, the damage that you see in the mould that you see was not visible in 2018 when that renovation was proposed. Please bear in mind [Mr Pudasaini] of that, the renovation for that bathroom, the cheaper alternative was approved by the owner's corporation because as I understand it, it was a few hundred dollars as opposed to thousands of dollars. And my understanding is that at the time there was no definitive proof that the water leak was the result of unit 18. As it turned out, obviously it was unit upstairs, but at the time they couldn't guarantee that my...this unit was the cause of the leak. Does that make sense? 1. It was then that the exchange with the member as set out above occurred. 2. There may be some merit in Mr Kamalesvaran's submission that he was denied procedural fairness because he was prevented by the Tribunal from presenting evidence. There is no doubt that prior to the hearing he was directed by the Tribunal to file all documents in support of his case and that there was no reference to affidavits, statements or statutory declarations. 3. The Tribunal's procedure is determined by s 38 of the NCAT Act and the Civil and Administrative Tribunal Rules 2014. Relevant provisions in s 38 are as follows: (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. … (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) 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. (6) The Tribunal — (a) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and .... 1. We note that fact sheets published by the Tribunal titled "Preparing for hearing" and "Tenancy and social housing" both state that evidence and supporting materials provided for a hearing "may include", among other things, "Statements, statutory declarations or affidavits from witnesses or other interested persons." The fact sheets are not directive and, in any event, cannot override the general obligations of the Tribunal set out in s 38. As noted, Mr Kamalesvaran was not specifically directed by the Tribunal to provide a statement of any sort of evidence he wished to give. 2. The Senior Member's statement that Mr Kamalesvaran's evidence was to be contained in an affidavit, statement or statutory declaration may amount to a denial of procedural fairness in circumstances where Mr Kamalesvaran was self-represented, where he had not previously been directed to file evidence in that format and was not given an opportunity to either provide the evidence orally or seek an adjournment to provide the evidence. 3. We are not, however, satisfied that Mr Kamalesvaran was prevented from providing this evidence. The background to the claims he made is as follows. 4. In a document titled "Brief Summary & Overview" included in documents filed with the Tribunal and tendered at the Tribunal hearing Mr Kamalesvaran stated that the termination notice was retaliatory because: 1. he had applied to the Tribunal for an order that a rent increase was excessive; 2. he proposed to take other actions under the Residential Tenancies Act about repairs not being carried out; and 3. a Tribunal order had in fact been made about the excessive rent increase. 1. Mr Kamalesvaran also stated that the landlords were motivated to give the termination notice for the following reasons: 1. An incident where the owners corporation proposed to renovate his bathroom to fix a water leak coming from the unit above which would have left him without a toilet and shower for a significant period. He states that he proposed an alternative solution of resealing the shower above which was accepted by the owners corporation. (This occurred in 2018 and is the evidence he states he was prevented from submitting to the Tribunal.) 2. A pattern of behaviour whereby the landlords were not diligent in attending to urgent repairs. He referred to a damaged fuse box which left him without power and a leaking hot water system caused by a failure to use proper pipes. The fuse box issue occurred in 2011 and the hot water tank leak in 2017. 3. Some rent arrears issues occurring in the months before the termination notice was sent. 1. At the commencement of his evidence Mr Kamalesvaran addressed the question of why he believed the termination notice was retaliatory. He referred to: 1. an issue with mould in the bathroom due to a water leak from the unit above and stated the owner was provided with an opportunity at the time in 2018 to renovate the bathroom but this didn't go ahead; 2. his application to the Tribunal concerning the 2023 rent increase and a request for repairs to be carried out. 1. The bathroom mould issues were also raised by Mr Kamalesvaran as relevant matters in his claim for repairs and for a rent reduction based on a reduction or withdrawal of goods, services or facilities provided with the premises. In the rent reduction claim he claimed a period from 26 May 2023 to the date of the hearing in relation to water damage and mould. 2. During the course of his evidence and submissions Mr Kamalesvaran spoke extensively about the mould in the bathroom and referred to photographs. At 00:26:27 and at 00:28:27 he referred to the bathroom renovation not proceeding at the time of the leak and water damage because an alternative solution was proposed. This was the evidence he submits he was prevented from providing at the Tribunal hearing. At the appeal hearing Mr Kamalesvaran acknowledged that he given the relevant evidence at the Tribunal hearing prior to the exchange with the Senior Member which he now states prevented him from providing this evidence. 3. As Mr Kamalesvaran had addressed the Senior Member about the issues with the water damage and mould, including the fact that previous renovations had not proceeded as an alternative solution had been found at the time in 2018, it cannot be said that he was prevented from providing this evidence. 4. In any event, even if we were to find that Mr Kamalesvaran was denied procedural fairness, that is not the end of the matter. As was recently stated by the Appeal Panel in Boreland v Brewis [2024] NSWCATAP 140 at [62]: Where there has been a breach of the requirement to afford the appellant procedural fairness, the question arises whether that error was material to the Tribunal's decision. A breach of procedural fairness will constitute jurisdictional error, if the error is material to the Tribunal's decision: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [1], [33] (Kiefel CJ, Keane and Gleeson JJ). Materiality is established if the procedural unfairness deprived the appellant of a realistic possibility of a different outcome on the application lodged in the Consumer and Commercial Division. 1. The primary problem for Mr Kamalesvaran is that the evidence he sought to provide being evidence about why bathroom renovations did not occur in 2018, was not relevant to a determination under s 115 of the Residential Tenancies Act of whether the termination notice was retaliatory. 2. When asked at the appeal hearing to specify the evidence he was not able to present at the Tribunal, Mr Kamalesvaran referred to documents at pp 203 and 207 of Exhibit A of the materials which were before the Tribunal. Page 207 is a quote for bathroom renovation in 2018 and p 203 is the landlords' comment that Mr Kamalesvaran was uncooperative and didn't want to be disturbed by the renovations. He stated that this demonstrated the landlords were resentful of him which led to the issuing of the s 85 termination notice. 3. There was, however, no evidence before the Tribunal that would bring the mould issue within s 115 of the Residential Tenancies Act such that it could be said that the termination notice was retaliatory. Section 115 is specific in relation to the circumstances which must apply in order for a notice to be found to be retaliatory. There was no evidence in relation to the mould issue (or indeed any of the other past matters raised by Mr Kamalesvaran such as rent arrears and other repairs), that he had applied or proposed to apply to the Tribunal for an order, or that he had taken or proposed to take any other action to enforce a right under the residential tenancy agreement, the Residential Tenancies Act or any other law, or that an order of the Tribunal was in force in relation to the landlord and tenant. The Tribunal therefore could reach no other conclusion in relation to what it described as "past events" than that these events, which included the events of 2018, were not a proscribed cause of the termination notice being issued in January 2024. There was thus no realistic possibility of a different outcome on the application lodged in the Consumer and Commercial Division on the basis that the termination notice was retaliatory in respect of these past events. 4. This ground of appeal is therefore not made out. Failure to take into account relevant considerations 1. The basis of this ground of appeal is difficult to make out as the written submissions are somewhat opaque in this regard. The submissions state that the error of the Tribunal in preventing Mr Kamalesvaran from providing evidence that was not already in documentary form led the Tribunal to misunderstand his argument. The submissions then refer to [11] in the written reasons of the Tribunal where the Tribunal found that the notice of termination was not retaliatory on the basis of the past events referred to above. The Tribunal then said: If the applicant was correct that past events were relevant it is logical that a section 85 notice would have been given soon after the event which the applicant states was important. 1. The submissions state that this was a complete misunderstanding of the case. It is submitted that the fact that a s 85 notice was not provided in light of these past events until following the excessive rent increase proceedings in which orders were made on 17 August 2023, is supportive of a finding that the landlords' action was retaliatory in relation to the rent increase proceedings brought by Mr Kamalesvaran. 2. We cannot discern, and Mr Kamalesvaran did not provide any further insight at the appeal hearing, how the alleged denial of procedural fairness led the Tribunal to misunderstand his case. It is not in dispute that an order of the Tribunal was in force between Mr Kamalesvaran and the landlords in relation to the 2023 rent increase and that the existence of such an order was one of the bases under s 115 of the Residential Tenancies Act upon which a termination notice might be found to be retaliatory. But it was necessary for Mr Kamalesvaran to establish that the existence of the order was at least in part a reason for the issue of the termination notice. The finding of the Tribunal was that the termination notice was issued because the landlords wanted vacant possession in order to renovate the premises. This was a conclusion that was clearly open to the Tribunal on the basis of the evidence before it and one which was not connected to any past conduct of Mr Kamalesvaran during the term of the tenancy agreement (in relation to which it was said there was a denial of procedural fairness). 3. On that basis this ground of appeal is not made out. In any event, we have found that there was no denial of procedural fairness upon which this ground is said to rest. Other matters 1. While not raised in the written submissions, Mr Kamalesvaran referred at the appeal hearing to some other matters which, for the sake of completeness, we will address. 2. Mr Kamalesvaran states that he agreed to the amount of the rent increase on 17 August 2023 on the understanding that repairs would be carried out. The consent orders made that day do not record any agreement about repairs. Neither the Tribunal nor the Appeal Panel therefore have any role to play in enforcing any such informal agreement between Mr Kamalesvaran and the landlords. 3. In relation to repairs, assuming that repairs were required, we agree with the Tribunal that there was no utility in making such an order, as the tenancy was to end shortly after the Tribunal made the orders dismissing the proceedings in relation to the termination notice. Similarly, we see no error in the Tribunal dismissing the rent reduction claim. Consent orders had been made on 17 August 2023 fixing the rent at $525 per week. Those orders were made in light of the condition of the premises at that time. Mr Kamalesvaran was questioned at the hearing by the Senior Member and could not identify any matter which had arisen after 17 August 2023 which would justify a rent reduction under s 44(1)(b) of the Residential Tenancies Act. 4. For the above reasons the appeal must be dismissed. As noted above, at the hearing Mr Kamalesvaran limited his appeal to the grounds stated in his written submissions. Those grounds raised questions of law which we have rejected. We note, for completeness, that, for the reasons set out above, we do not consider that the decision was against the weight of evidence or not fair and equitable or that Mr Kamalesvaran may have suffered a substantial miscarriage of justice. Accordingly, to the extent that Mr Kamalesvaran's notice of appeal seeks leave to appeal, leave to appeal must be refused. Orders 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The stay order made on 9 July 2024 in matter 2024/00154894 is lifted. 4. Possession of the premises is to be given to the landlords 21 days from the date of publication of the orders in this appeal. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 22 August 2024