Civil and Administrative Tribunal New South Wales Medium Neutral Citation: St John v Hall [2024] NSWCATAP 175 Hearing dates: 14 August 2024 Date of orders: 09 September 2024 Decision date: 09 September 2024 Jurisdiction: Appeal Panel Before: S de Jersey, Senior Member J Connelly, Senior Member Decision: (1) Leave to appeal is refused. (2) Appeal dismissed. Catchwords: LEASES AND TENANCIES – bond claim – compensation - decision against the weight of evidence - significant new evidence Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act NSW 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Category: Principal judgment Parties: Sandra St John (Appellant) Cynthia Hall (Respondent) Representation: Appellant (Self-Represented) Respondent – no appearance File Number(s): 2024/00204585 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer Commercial Division Date of Decision: 20 May 2024 Before: G Bassett, General Member File Number(s): 2023/00374718 REASONS FOR DECISION 1. This is the hearing of an internal appeal filed pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) from a decision of the Consumer and Commercial Division of the Tribunal dated 20 May 2024 made pursuant to the Tribunal's jurisdiction under the Residential Tenancies Act 2010 (NSW) (the RT Act) in application 2023/00374718 (the Tribunal Proceedings). 2. These reasons refer to the appellant as "the landlord" and the respondent as "the tenant" for ease of reference. 3. The Tribunal made orders on 20 May 2024 as follows (the Decision): 1. The tenant to pay the landlord $443.00; 2. Rental Bond Services distribute $443.00 from the bond to the landlord to be credited to the above amount; 3. The balance of the bond to be paid to the tenant. 1. The Decision was published with reasons (Reasons). 2. The landlord filed an appeal from the Decision on 3 June 2024, which was within the time limit of 14 days as prescribed by cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW). 3. At the callover of the appeal, on 19 June 2024, the landlord's application for a stay of the Tribunal's orders was dismissed as it was withdrawn by the landlord. BACKGROUND 1. We summarise the background as follows: 1. The parties entered into a 12-month fixed term tenancy agreement for premises in NSW which commenced on 2 August 2022 at a rental of $450 per week; 2. A bond of $1800 was paid by the tenant and lodged by the landlord with rental bond services; 3. An ingoing condition report in the prescribed format under Sch 2 of the Residential Tenancies Regulation 2019 (NSW) was in the evidence before the Tribunal which had the tenant's comments on it regarding the condition of the property at the beginning of the tenancy; 4. Routine inspections were done during the tenancy; 5. At some stage at least one dog was kept at the premises; the evidence suggests that permission was granted on the basis that the dogs were kept outside, but the landlord relies on photographic evidence to establish that the tenant allowed the dogs inside; 6. Vacant possession was returned by the tenant to the landlord on 9 September 2023 on the basis of it being the end of the fixed term period; 7. An outgoing inspection was done by the agent for the landlord on about 10 September 2023; 8. The tenant did not attend the outgoing inspection; 9. There is no outgoing condition report in the evidence in the form prescribed by Sch 2 of the Residential Tenancies Regulation 2019 (NSW); 10. The landlord made a number of end of tenancy claims from the tenant and filed an application in the Tribunal to press th0se claims; 11. The Decision records the following claims were considered: 1. Painting $600 2. Repairs $2177 3. Cleaning $900 4. Carpet replacement $6007.80 5. Scratches to seals and windows (no amount is specified in the member's reasons) 6. Door replacement and repair $2720 7. Cleaning of blinds $310. 1. In the Reasons, the member notes that the tenant agreed to pay the cost to repair the screen door of $143.00 and the cost to repair some holes in the back garden at $290. These 2 amounts total $443.00 and an order was made for this amount to be paid from the bond. 2. The balance of the landlord's claims were disputed and in effect dismissed by the Tribunal as no further amounts were awarded above what the tenant had agreed to. DOCUMENTS 1. The following materials have been filed for this appeal: 1. Notice of Appeal filed by the landlord on 3 June 2024 with some documents attached and labelled Annexure B which the landlord said were new documents; 2. Documents filed by the landlord on 7 June 2024; 3. Four separate bundles filed by the landlord on 10 July 2024; 4. Two USBs provided by the landlord on 16 July 2024. 1. Of the bundles filed on 10 July 2024, one of them contained the documents relied upon by the landlord in the Tribunal Proceedings. Another bundle was marked by the landlord as "Extra Evidence" which she confirmed was new evidence. Other bundles contained documents and a large number of photos. Documents marked "Annexure B" contained new evidence. 2. The tenant has not provided any submissions nor a Reply to the Appeal. NOTICE OF APPEAL 1. In Section 5B of the Notice of Appeal, the landlord states the grounds of appeal to be: 1. The Tribunal was given misleading information from the tenant and she had lied about the presence of the dogs inside the house; 2. The final water bill was unpaid; 3. The house was left dirty and damaged with rubbish left outside. 1. Section 5B notes that more detail is provided in Annexures A and B attached to the Notice of Appeal. 2. The landlord states in paragraph 5C of the Notice of Appeal that orders should be made as follows: 1. Painting $600 2. Repairs $2177 3. Cleaning $900 4. Carpet replacement $6007.80 5. Scratches to seals and windows (no amount is specified) 6. Door replacement and repair $2720. 1. The Notice of Appeal attached a number of documents marked Annexure B (being new documents): 1. A tax invoice from Specialised Homes Services Company for carpet cleaning dated 7 September 2023 and addressed to the tenant, stating that the invoice has been paid; 2. A 1 page document called a condition report on the letterhead of BMW Flooring dated 29 May 2024, which sets out the condition of the carpet at an inspection on 29 May 2024; 3. An undated email from "Glen" containing 3 sentences, no details of the address of the property are provided or the date that any work was carried out; 4. A water usage account from the Nambucca Valley Council due to be paid by 31 October 2023 and addressed to Ms S G Green, being the tenant's former name, in respect of the leased premises. 1. The water usage claim was not a claim made in the Tribunal Proceedings and we explained to the landlord that it could not be the subject of the appeal. 2. The landlord withdrew the appeal with respect to the painting claim. 3. In Section 6 of the Notice of Appeal the landlord stated that she was not seeking leave to appeal. As noted below, the landlord changed her position on this during the hearing. SCOPE AND NATURE OF INTERNAL APPEALS 1. An appeal is not an opportunity for the party who was unsuccessful before the Tribunal to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. At the beginning of the hearing we explained to the landlord the bases upon which she could appeal the Decision or seek leave to appeal the Decision, which we have summarised below. 2. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) NCAT Act. 3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law, which included whether the Tribunal had identified the wrong issue or asked the wrong question; whether a wrong principle of law had been applied; whether there was a failure to afford procedural fairness; whether there was no evidence to support a finding of fact; whether the decision was so unreasonable that no reasonable decision-maker would make it. 4. Cl 12(1)(b) of Sch 4 of the CAT Act, provides that for the Appeal Panel to grant leave to appeal from decisions made in the Consumer and Commercial Division, it 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 Sch 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 Sch 4 of the CAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. APPELLANT'S SUBMISSIONS 1. The landlord did not identify to us an error on a question of law and confirmed that she sought leave to appeal because: 1. for a number of the claims, the Decision was against the weight of evidence before the Tribunal; and 2. for other claims, there was significant new evidence that was not reasonably available at the time of the hearing before the Tribunal, mainly because the landlord's agent had not obtained it. 1. The landlord submitted for each of the claims that as her real estate agent believed she had sufficient evidence for the Tribunal hearing, the agent did not obtain additional evidence that was available at the time, such as the photos the landlord had taken in September 2023 and a statement from a contractor regarding the condition of the carpet. 2. The landlord conceded at the hearing of the appeal that she understood the member's decision to dismiss most of the claims because of the lack of evidence that was available at the hearing but submitted that if the member had had the benefit of the new evidence, the Decision would have been different. Repairs $2177. 1. This claim involved a range of repair items totalling $2177. The landlord did not press the appeal in relation to the vanity. 2. In terms of other repair issues the landlord submitted: 1. The member did not have a sufficient number of the better quality photos to show damage to the door jambs and the landlord relied on new photos marked as Annexure B; 2. The clothesline was damaged by the tenant as it was detaching from the wall and although the tenant may have changed one line, she did not replace the whole clothesline; 3. The member did not have a sufficient number of better quality photos to show the damage done to the skirting boards during the tenancy and the landlord relied on new photos marked as Annexure B; 4. The landlord conceded that the decision to dismiss the claim for the cost of rubbish removal was not an error. Cleaning $900. 1. The landlord claimed that the premises were left in a filthy condition and she relied on new evidence being a set of photos she had taken herself dated variously in September 2023 and marked as Annexure B. The landlord confirmed that except for an invoice for cleaning of the oven for $100, there was no quote or invoice for the cleaning because she had done the work herself. The landlord conceded that there was a lack of evidence before the member because he did not have before him the photos that she relies upon as new evidence. Carpet and vinyl replacement $6007.80. 1. The landlord contended that the dogs were kept inside in breach of the tenancy agreement and that the tenant had "lied" to the member about this fact. The landlord also submitted that the agent had made an error by informing the Tribunal that the carpet and vinyl were about 18 months old at the commencement of this tenancy, when in fact it was 6 months old. 2. The landlord submitted that the Decision in respect of this item was against the weight of evidence because: 1. The tenant lied to the member about having the dogs inside; 2. There were photos to establish that the dogs were kept inside; 3. Three breach notices had been issued to the tenant in relation to the issue of the dogs being inside; 4. In paragraph 29 of the Reasons, the member noted that the agent gave sworn oral evidence that there was a strong smell of animal urine in the carpet when she did the outgoing inspection; 5. There was new evidence from BMW Flooring dated 29 May 2024 to establish that the carpet had a pronounced odour of animal urine. Scratches to seals and windows. 1. The landlord said she had varnished the sills 7 years before the tenancy began. She said the tenant had started to sand back the sills at the end of the tenancy but did not complete the task. Although this item did not have an assigned amount in the Decision, the landlord directed the Appeal Panel to evidence which was before the Tribunal, being the agent's list of monetary claims which indicated that the estimated cost to repair the sills was $310. The landlord referred us to some photos which were before the Tribunal such as pages 153-156 in addition to new evidence at pages 36-37 of the bundle filed on 10 July 2024 which were photos dated 12 September 2023 and marked "Annexure B". Door replacement and repair $2720. 1. The landlord relied on new evidence being photos dated 8 September 2023 and marked as "Annexure B" to submit that the doors had a large number of scratches on them but the member was only taken to photos which showed deterioration at the bottom of the doors, which the landlord said was pre-existing damage. The landlord conceded that the member did not have the correct photos before him to establish that the scratches were done during the tenancy and she understood the decision he made in respect of this claim. CONSIDERATION 1. It may be difficult for a self-represented appellant to clearly express their grounds of appeal. In such circumstances it is appropriate, subject to the requirements of procedural fairness, for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided on the appeal and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: see Cominos v Di Rico [2016] NSWCATAP 5 at [13]. We have followed that process in this case. 2. The landlord did not identify an error on a question of law and on our understanding of the submissions and grounds of appeal put forward, we do not consider that the member has erred on a question of law. We are satisfied that the member has correctly identified and applied the relevant legal provisions under the RT Act for end of tenancy and bond claims against the tenant; that the member has afforded procedural fairness to the parties; and that the member has given detailed reasons for his decision in respect of each of the claims, referring to the evidence before him at the hearing. 3. The landlord stated in her Notice of Appeal that she did not seek leave to appeal. However, during the course of the hearing she confirmed that she sought leave because she may have suffered a substantial miscarriage of justice on 2 bases: 1. that the Decision was against the weight of the evidence; and 2. that there was significant new evidence that was not reasonably available at the time of the Tribunal proceedings. Was the Decision against the weight of evidence? 1. In respect of the application for leave to appeal because the Decision was against the weight of evidence, this question is to be decided on of the basis of the evidence that was before the member at the time of the hearing. For each of the claims which were dismissed, we consider that the member has reasoned his decision according to the oral and documentary evidence before him and we are satisfied that the findings for each of the claims were available to him. 2. In respect of the substantive item of the carpet and vinyl replacement, we make the further comment that it is clear from the Decision that the member was not satisfied that there was sufficient reliable evidence before him to establish a breach by the tenant, because there was insufficient evidence to establish that the carpet itself was affected by animal urine and needed to be replaced. On our review of the evidence and the Decision, we are satisfied that this finding was available to him. 3. We are not satisfied that the Decision was against the weight of evidence. Is the new evidence significant new evidence that was not reasonably available at the time of the hearing? 1. In respect of the application for leave to appeal on the basis of new significant evidence which was not reasonably available at the time, for all the "new" photographs of the premises at the end of the tenancy which the landlord seeks to rely on in this appeal, most of them were dated September 2023 and were available at the time, and could have been included in the landlord's evidence for the hearing on 1 March 2024. The fact that the agent may have omitted them from the landlord's evidence, is not a proper basis to claim that it is significant new evidence which was not reasonably available at the time. The evidence was available to be filed. This basis for leave to appeal is rejected. 2. In respect of the "new" evidence of the report of BMW Flooring dated 29 May 2024, we accept that this report was not available at the time of the hearing as it was not prepared until an inspection was done by BMW Flooring on 29 May 2024. We are not satisfied that this report qualifies as significant new evidence which was not reasonably available at the time, because evidence from an "expert" could have been obtained at the time of preparing the landlord's evidence. In any event, a report obtained so many months after the end of the tenancy could not be said to be reliable evidence as to the state of the flooring at the end of the tenancy. 3. We understand from the landlord's submissions that she is dissatisfied with the Decision and how the evidence for the Tribunal hearing was prepared on her behalf. However, the landlord said on a number of occasions during the appeal hearing that the decision was "not the member's fault". An appeal is not an opportunity to have another attempt at the hearing. The onus is on the landlord as appellant to establish that there was an error on a question of law or that leave ought be granted to appeal because she may have suffered a substantial miscarriage of justice for one of the bases set out in cl 12(1) of Sch 4 to the CAT Act. Even if one of the bases can be established, whether leave is granted or not is still discretionary and subject to the principles set out in Collins v Urban at [76] and [84] as referred to above. 4. The landlord did not identify an error on a question of law. Nor has the landlord satisfied us that she may have suffered a substantial miscarriage of justice on the two identified limbs, being the Decision was against the weight of evidence or that there was significant new evidence not reasonably available at the time of the Tribunal proceedings. Accordingly, leave to appeal is refused. 5. It follows that the appeal should be dismissed. ORDERS 1. The Appeal Panel makes the following Orders: 1. Leave to appeal is refused. 2. Appeal 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: 09 September 2024