Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Touski v Mak [2014] NSWCATAP 45 Hearing dates: 6 August 2014 Decision date: 26 August 2014 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President S Westgarth, Deputy President Decision: 1. Time to file the application for leave to appeal is extended to 27 March 2014. 2. Leave to appeal is refused. 3. Appeal dismissed. Catchwords: APPEAL -Civil and Administrative Tribunal (NSW) - residential tenancy - out of time - merits review - whether appellant may have suffered a substantial miscarriage of justice - new evidence Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Tomko v Palasty (No 2) (2007) 71 NSWLR 61 Nanschild v Pratt [2011] NSWCA 85 Gallo v Dawson [1990] HCA 30, 93 ALR 479 Category: Principal judgment Parties: Hossein Touski (Appellant) Jensen Mak (Respondent) File Number(s): AP 14/0052 Decision under appeal Jurisdiction: 150003 Citation: Unreported Date of Decision: 2014-03-06 00:00:00 Before: P Smith, General Member File Number(s): RT 13/64939 reasons for decision Introduction 1This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal made on 6 March 2014 relating to a residential tenancy agreement between the appellant (the tenant) and the respondent (the landlord). The Tribunal ordered the appellant to pay a total of $6,286 to the respondent. This appeal concerns two components of that sum - $2820 which the appellant was ordered to pay as a "break lease" fee and $1800 which was compensation for external roof damage. 2The appellant did not appeal on a question of law. Instead he sought leave to appeal "on any other ground": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b). In relation to appeals from the Consumer and Commercial Division leave can only be granted in the limited circumstances set out in Schedule 4, cl 12: (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied 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). 3The meaning of "substantial miscarriage of justice" was summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [71] and [79]: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - ." Late lodgement of appeal 4An appeal from a decision of the Tribunal made in residential proceedings must be lodged within 14 days from the day on which the appellant was notified of the decision: Civil and Administrative Tribunal Rules 2014 (NSW), cl 25(4). The appellant was notified of the decision on 6 March 2014 and lodged the notice of appeal on 27 March 2014, six days out of time. 5Section 41 of the NCAT Act permits the Tribunal to grant an extension of time: (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 6The Tribunal's power to grant an extension of time in which to lodge an appeal was considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The considerations that will generally be relevant are: the length of the delay, the reason for the delay, the extent of any prejudice suffered by the respondent and whether the appellant has a fairly arguable case on appeal: Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]. The discretion to extend time may only be exercised if strict compliance with the rules will work an injustice on the appellant: Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]. 7A delay of six days is relatively short. Although the appellant's case was not strong, the respondent could not point to any particular prejudice he would suffer if the time were extended. The appellant is no longer occupying the premises so there is no ongoing disadvantage to the respondent such as non-payment of rent. In all the circumstances it would work an injustice on the appellant if he were not able to appeal given the short delay in filing the notice and the lack of any prejudice to the respondent. The time for filing the notice of appeal should be extended to 27 March 2014. Grounds of appeal 8The grounds of appeal are stated as follows: 1. I have forwarded some document which shows the house was not safe. 2. I have sent lots of notices to the respondent about this problem to do maintenance to increase the safety but they had not cared. 3. The real estate breach the agreement and break lease fee is not applicable. 4. I have forwarded documents shows the external roof damage was happened previously before our tenancy. 5. The respondent stated that the ceiling leakage was resulted of external roof damages whereas condition reports shows the problem was happened before our entry date. 9The respondent's reply to the appeal opposes the appellant being given leave to appeal. If leave is granted the respondent submitted that the appellant had not suffered any substantial injustice as a result of the Tribunal's decision. Break lease fee 10The appellant submitted that the first instance decision was not fair and equitable because he should not have been obliged to pay the break lease fee. 11The parties' relationship was governed by a residential tenancy agreement which commenced on 19 April 2013 and concluded on 18 April 2014. Clause 41 of the agreement provided that the tenant agrees that, if the tenant ends the residential tenancy agreement before the end of the fixed term of the agreement, the tenant must pay a break fee. The amount of the break fee is 6 weeks rent if the fixed term is for 3 years or less and if less than half of the term has expired, or 4 weeks rent otherwise. The order at first instance requiring the appellant to pay the sum of $2820 was calculated on the basis that the weekly rent was $470 and the break fee was for 6 weeks rent making a total of $2820. 12The appellant submitted that the break lease fee should not be payable for two reasons. The first was that he had suffered financial hardship because he had lost his job. The second was that the premises were not safe and the landlord had breached his obligation to maintain the premises in a safe and habitable condition. 13On 1 September 2013, the appellant gave notice of his intention to vacate the premises. He served a "Tenants Vacating Notice" in which he wrote that the reason for vacating the premises was: "I have lost my job/financial hardship." There is no provision in the lease or the Residential Tenancies Act 2010 (NSW) which would enable the appellant to terminate the tenancy and be relieved of the break lease fee because of financial hardship. In those circumstances, it cannot be said that the appellant may have suffered a substantial miscarriage of justice because of the failure of the Tribunal to take financial hardship into account when calculating that fee. 14At the appeal panel hearing the appellant stated that the main reason that the break lease fee should not be paid is because the premises were not safe enough to continue the tenancy. The appellant stated that he sent notices to the respondent's agent complaining about "problems". In particular, he had told the respondent's agent in an email on 20 June 2013 that the premises were unsafe: "The kitchen bench top in front of the stove has been cracked today!!! Also, the ceiling crack is becoming more than before (Find attached photos). What should we do now??? It may be get worse and worse... When we are walking in the house, sometimes we hear some noises like something is cracking!! Please advise ASAP". 15According to the appellant, the respondent did not respond to his concerns about the state of the premises. He moved out towards the end of August 2013. At the first instance hearing the appellant tendered the email and gave oral evidence of his concerns about the safety of the premises. The vacating notice dated 1 September 2013 was also before the Tribunal. 16The Tribunal at first instance was aware of the appellant's concerns about the safety of the premises. The Tribunal was not satisfied that the appellant was justified in vacating the premises on safety grounds. Although the appellant complained about the state of the premises in late June 2013 he did not leave until late August 2013 at the earliest. The fact that the appellant stayed in possession for a further two months after sending the email suggests that safety was not of immediate concern. In addition, the only reason he gave on the vacating notice was financial hardship. 17It was open to the Tribunal to find that the appellant terminated the tenancy because of financial hardship. In those circumstances a break lease fee is payable. External roof damage 18The Tribunal decided that, on the balance of probabilities, that the landlord had established that the damage to the roof had been caused by the tenant climbing on to the roof to install a shade awning. The Tribunal accepted the amount of compensation to be $1800 that is the amount which a plumber had quoted for the repair of the roof, less an amount for depreciation. 19The appellant submitted that this aspect of the Tribunal's decision was against the weight of evidence for two reasons. Firstly, the Tribunal did not have regard to the incoming condition report which stated that there was a leak through the ceiling when the tenancy commenced. Secondly, the photographs of the roof show damage to the entire roof, not just the area where the sunshade was installed. 20On the basis of: the original incoming condition report; the original outgoing condition report; and a letter to the Tribunal from the respondent's agent dated 20 November 2013 attaching photos, the appellant submitted that the Tribunal should have drawn the inference that the roof damage was not caused by the installation of the sunshade. The incoming condition report records water leakage in the ceiling of bedroom 1 suggesting that the roof was leaking at the commencement of the tenancy in areas other than where the sunshade had been installed. 21The respondent submitted that the quote from the plumber indicates that repairs were needed to "two thirds of the roof area." The photographs do not clearly show the location or extent of damage to the roof but the quotation from the plumber suggests that it was extensive. As the appellant had climbed on the roof to install the sunshade, it was reasonable to conclude that that was the cause of the roof damage. In relation to the ceiling having water leakage in bedroom 1, the respondent said that that does not mean that it is reasonable to conclude that the roof was damaged at the commencement of the lease. 22The incoming and outgoing condition reports refer to a leak in the ceiling of one bedroom 1 but not to the condition of the roof. We do not accept that there was evidence before the Tribunal that gives rise to an inference that there was some roof damage in one area because of a leak in the ceiling of bedroom 1. There are other possible explanations as to how water could penetrate a ceiling other than roof damage. 23While there is some conflicting evidence about the extent and cause of roof damage, we are not satisfied that appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was against the weight of evidence. New evidence 24The appellant submitted that evidence is now available that was not reasonably available at the time of hearing. He stated that a Ms Hamzehnezhad can give evidence and that she was not available at the time of the first instance hearing "because of her job". The appellant did not identify the nature of this evidence or why the witness was not available at the time of the hearing. The appellant could have submitted a statement from that witness or applied for a hearing date suitable to that witness. Accordingly, the fact that she is now available to give evidence is not a ground on which leave to appeal should be granted. 25The appellant also sought leave to file fresh evidence in the form of an independent expert's report on damage to the premises. Again, this evidence could have been obtained by the appellant prior to the hearing. There was ample time to do so. The appellant filed the application with the Tribunal on 13 December 2013 and the hearing did not take place until 6 March 2014. The evidence of an expert is not significant new evidence which was not reasonably available at the time of the first instance hearing. Accordingly, this ground for leave to appeal has not been established. Orders (1)Time to file the application for leave to appeal is extended to 27 March 2014. (2)Leave to appeal is refused. (3)Appeal dismissed. 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. Principal 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: 26 August 2014