Civil and Administrative Tribunal New South Wales Medium Neutral Citation: St George Community Housing v Kaya [2014] NSWCATAP 64 Hearing dates: 28 August 2014 Decision date: 16 October 2014 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President S Westgarth, Deputy President Decision: Leave to appeal is refused Catchwords: Civil and Administrative Tribunal (NSW) -Internal appeal - whether substantial injustice because against the weight of evidence or decision not fair and equitable Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Collins v Urban [2014] NSWTCATAP17 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 Category: Principal judgment Parties: St George Community Housing (Appellant) Nevin Kaya (Respondent) File Number(s): AP 14/46469 Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-07-07 00:00:00 Before: M Eftimiou File Number(s): SH14/21670 reasons for decision Background 1St George Community Housing (the appellant) has appealed against a decision of the Consumer and Commercial Division of the Tribunal to dismiss its application against a former tenant, Ms Kaya (the respondent). The appellant claimed that Ms Kaya had breached the tenancy agreement and should pay compensation of $1965.73. 2The respondent has lived in the premises since 1991, initially with her husband who was the tenant pursuant to a residential tenancy agreement. When she and her husband separated in 2008, she signed a residential tenancy agreement in her own name. She gave vacant possession to the appellant landlord on 9 April 2014. The appellant's application to the Tribunal was for the respondent to pay compensation for the repair costs it said she caused the appellant to incur by building a fence around a garden bed and installing concrete in the yard during the period of her tenancy. Both parties agreed that the critical factual issue for the Tribunal was whether the fence and concrete had been installed by the respondent since her tenancy began in 2008. Tribunal hearing and decision 3The respondent gave sworn evidence that she had not made any additions or alterations to the property since she commenced the tenancy in 2008. She said that the fence, garden beds and concrete were built or installed by her ex-husband before that time. That assertion was supported directly or indirectly, by statements from three other witnesses. 4The Tribunal gave the following reasons for dismissing the appellant's application; The landlord alleges that the tenant breached the terms of the tenancy agreement by: a)Failing to return the premises in as near as possible the same condition as the ingoing inspection report except for fair wear and tear b) In addition the landlord alleges that the tenant has made additions or alterations to the premises without the landlord's consent. The landlord now seeks compensation of $1965.73 to repair the damage caused by the tenant's alleged addition of a fence around the garden bed, the removal of concrete that was allegedly added by the tenant and to return the premises to their original condition. . . . The tenant has given sworn evidence that she did not make any additions or alterations to the property. The evidence of the tenant is that the fence, garden beds and cement were part of the agreement which she commenced the tenancy in 2008. . . The Tribunal determines that the ingoing inspection report is ambiguous as to the condition of the concrete paving and gardens and grounds. The Tribunal is not satisfied that the landlord is able to rely on that document to establish that the items in question were not there at the commencement of the tenancy. The landlord's representative was not present at the commencement of the tenancy and he did not complete the ingoing inspection report. No sworn evidence was provided by the landlord from any representative who may have completed the ingoing inspection report to confirm whether the items in dispute were not present at the commencement of the tenancy. In contrast the Tribunal has sworn evidence from the tenant who has told the Tribunal that the additions were made by her ex-spouse during his tenancy. This evidence of the tenant is supported by statements from neighbours and friends as to the condition of the property at the commencement of the tenancy. The Tribunal places greater weight on the sworn evidence of the tenant. The appeal 5The appellant did not appeal on a question of law but sought leave to appeal "on any other grounds": 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 Sch 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). 6The issue for the Appeal Panel to determine is whether leave to appeal should be granted because there has been a substantial miscarriage of justice. The two grounds on which the appellant relied were that the Tribunal's decision was not fair and equitable and that it was against the weight of evidence. 7The 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 - . 8The basis for the appeal was that the evidence did not support the finding of fact that the fence and concrete had not been installed by the respondent during her tenancy. As well as the evidence of witnesses, there was documentary evidence which, according to the appellant, should have led the Tribunal to find that the work had been carried out after March 2008. Each of those documents had been before the Tribunal but in its reasons it only referred to the "ingoing inspection report" also known as the "incoming condition report". The other documents were: (1)two relocation questionnaires dated 15 September 2007 and 12 March 2009; (2)Annual Home Visit Questionnaire dated on various dates in October 2013; (3)photographs taken in 2014; and (4)the outgoing condition report. 9The Tribunal must make findings on the civil standard, that is, the balance of probabilities. Findings or inferences must be supported by some probative material or logical grounds: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [147] (Gummow J). The onus is on the appellant landlord to prove its case. Incoming condition report - 10 March 2008 10The Tribunal referred to the incoming report as "ambiguous" and, in effect, as failing to give rise to an inference that the fence and concrete had been installed during the period of the respondent's tenancy. The report was signed by the parties when the tenancy commenced. It describes "grounds/garden" and "concrete paving" as being "clean", "undamaged" and "working". The appellant's submission was that since there was no express reference to the fence around the garden it was reasonable to infer that that item had been installed after the commencement of the tenancy on 10 March 2008. Referring to the photographs taken in April 2014, the appellant says that because the fence around the garden and the concrete in the yard are damaged, they must have been installed after March 2008 otherwise there would have been an express reference to them in the report. 11In addition the appellant submits that the fence around the garden was an unsafe fence. Had the fence been in place in 2008 the incoming condition report would have noted it as unsafe. The fact that the incoming condition report did not describe it in that way leads to the conclusion that they were installed after 2008. 12The respondent submitted that the incoming condition report did not specifically refer to the fence around the garden or to the concrete because neither the appellant nor the respondent thought it necessary to identify them expressly. 13We agree with the Tribunal that the incoming condition report is "ambiguous" in the sense that it does not constitute direct evidence that the fence and concrete were erected after March 2008, nor does that document allow such an inference to be drawn. Bonnyrigg Relocation Questionnaires - 15 September 2007 and 12 March 2009 14The appellant referred to documents headed "Bonnyrigg Relocation Questionnaire" one of which was completed before the respondent's tenancy commenced and the other after it had commenced. The appellant submitted that the first of these reports was prepared for the purpose of considering whether the former husband could be relocated and the second for the purpose of considering whether the respondent could be relocated to another tenancy. On the forms there is provision for the tenant to list items constituting improvements to be considered for reimbursement or relocation. Neither document referred to the fence or the concrete 15The appellant submitted that as there was there no reference in the 2007 questionnaire to the fence around the garden or to the concrete it was reasonable to infer that those items were not there at the time. If they had been, the landlord would have listed them on this document in case the tenant intended to seek reimbursement or request they be relocated. The appellant also submitted that because this document identified that there was a garden shed that had been installed by the previous tenant, the failure to mention the fence and concrete must be because they were not installed by the previous tenant but by the respondent. Similarly the fact that they were not referred to in the later report meant that the fence and concrete were installed by the tenant after March 2009, the date of the second questionnaire. 16The respondent submitted that the omission of any reference to the fence and concrete can be explained by the fact that if the tenant did not seek reimbursement or relocation of those items there would be no need to refer to them. That submission is logical and we accept it. The questionnaires do not constitute probative evidence that the respondent erected the fence or installed the concrete. Annual Home Visit Questionnaire 2013/2014 17The appellant referred to a document headed "Annual Home Visit Questionnaire 2013/2014" dated on various dates between 25 to 29 October 2013, which had been signed by the appellant's representative and by the respondent. That form states that the tenant agrees to "remove fencing and bars". The appellant submits that that document constitutes evidence that the respondent acknowledged that she was obliged to remove the fencing. During the appeal hearing the appellant acknowledged that the effect of its submissions was that the fence must have been constructed between 2008, when the tenancy commenced, and October 2013 when this Questionnaire was completed. The appellant further acknowledged that another effect of its submissions was that the concrete was installed after October 2013 and before the end of the tenancy in April 2014. 18With respect to the document dated 26 October 2013 containing the note "remove fencing and bars" the respondent submitted that it is not clear what fencing is being referred to. 19The reference to 'fencing' suggests that, at the time, the respondent accepted some obligation in relation to that matter. That does not necessarily mean that she agrees that she erected the fencing. Her sworn evidence was to the contrary. 20One consequence of the inferences the appellant seeks to draw is that the concrete must have been installed after the date of the Annual Home Visit Questionnaire in 2013. In our view that is highly unlikely given that the respondent had foreshadowed at that time that she would be leaving the premises and she did leave in April 2014. The appellant also relied on photographs taken in April 2014 which the appellant submitted depicted the damaged concrete and the unsafe fence. The photographs suggest that the concrete had been there for a considerably longer period than 7 months. Outgoing condition report 21An outgoing condition report was prepared in 2014 but was not signed by the respondent. It contained notations to the following effect: there was fencing around the garden, the grounds / garden and concrete paving which were not clean, undamaged or working and that the concrete was a "trip hazard". There was no dispute between the parties that when the tenancy ended in 2014 the fence around the garden and the concrete remained in place. 22The respondent submitted that the outgoing condition report was not signed because she did not agree with the notations on that report concerning the fence and concrete. The respondent also referred to an email she wrote to the appellant dated 24 October 2013 in which she complained about damage to the concrete having been caused by the appellant's workmen knocking down the car port. The respondent submitted that that may explain why the outgoing condition report described the concrete as damaged. Reasoning and conclusion 23The appellant has not persuaded us that the Tribunal's decision was against the weight of evidence. The oral and written evidence from witnesses was to the effect that the respondent had not erected the fence or laid the concrete. None of the documentary evidence, either alone or in combination, directly contradicted that evidence or give rise to an inference that the witnesses' evidence was wrong. 24The appellant did not put any basis on which it could be said that the decision was not fair and equitable other than by reason of the documentary evidence. There has been no substantial miscarriage of justice and leave is refused. 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: 16 October 2014