Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nguyen v Schneider [2015] NSWCATAP 85 Hearing dates: 15 April 2015 Decision date: 08 May 2015 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President R Titterton, Senior Member Decision: Appeal dismissed Catchwords: Tenants obligations under Residential Tenancies Act 2010,s 51(3) and (5) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Category: Principal judgment Parties: Appellant: Hong Kieu D Nguyen Respondent: Tina Schneider and Matthew Honey Representation: Appellant: self represented Respondent: self represented File Number(s): AP 15/07499 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Before: S Hennings, General Member File Number(s): RT 14/60924 REASONS FOR DECISION 1. On 27 January 2015 the Tribunal sitting in its Consumer and Commercial Division heard and decided a dispute between the appellant and the respondents concerning a residential tenancy agreement. The Tribunal ordered the respondents (the tenants) to pay to the appellant (the landlord) the sum of $2,310.49 but, in addition, the Tribunal rejected other claims which the appellant had made against the respondents for compensation. This appeal concerns the claims which the Tribunal had rejected. 2. The appellant filed a notice of appeal on 10 February 2015. The appellant firstly appeals the decision to reject the appellant's claim for damages in the sum of $8,520.00. Secondly, the appellant appeals the decision of the Tribunal to reject the appellant's claim for allegedly unpaid rent from 3 November 2014 to 9 November 2014 in the sum of $535.00. Thirdly, the appellant appeals the decision to reject the appellant's claim for the sum of $1,300.00 for rent with respect to the period of 30 days from the date the respondents gave notice of vacating the premises. Fourthly, the appellant appeals the decision rejecting the appellant's claim for the cost of lawn mowing of $450.00. Finally, the appellant claims legal costs. 3. At the hearing of the appeal the appellant withdrew the appeal in respect of the claim for $1,300.00. The Appeal Panel had expressed the opinion that as the appellant had been successful in obtaining an award for the break lease fee it did not seem possible for the appellant to also claim the sum of $1,300.00 for 30 days rent from the date the respondents gave notice of an intention to vacate. Accordingly in light of the withdrawal the hearing of the appeal dealt only with the other three matters referred to above and costs. 4. Both the appellant and the respondents acknowledge that there was a residential tenancy agreement between them which commenced on 9 September 2013 and that two further tenancy agreements were entered into between them during the time that the respondents were in possession of the premises. The last of these agreements was signed on 17 August 2014. The respondents vacated the premises on 9 November 2014. The parties acknowledge that a condition report had been prepared when the tenancy commenced in September 2013 but no condition report had been prepared on the occasion of the entry into the final tenancy (ie the one signed on 17 August 2014). The decision below found that there was no adoption or agreement by the parties of the original condition report into the subsequent tenancy agreements. The grounds of appeal and appellant's submissions 1. The grounds of appeal are set out below and are taken from the notice of appeal: Question of law: Sec 29. This is continuing lease, we had provided entry condition report to tenants on 8/9/13 when the original lease started. All parties agreed to use this report on next renewal leases. What if the tenants broke my garage within the first 6 months of lease, and the law request me to do conditions report on 8/3/14 showing garage broken at 8/3/14, then renew the lease for another 6 months, it means on 8/9/14, tenants when vacated, they are not held liable because garage broken at start of renewal lease 8/3/14. Interlocutory decisions: Member S Hennings on 27/1/15 didn't rely on evidence & documents, but had bias order in favour of Aussie born. His order made in accordance of what tenants misled. 1. In the notice of appeal the appellant stated that the appeal panel should make the following orders: 1. Tenants to compensate me $9365-00 to fix the gyprock garage walls which was broken by them 2. Tenants to pay me $545 for unpaid 1 week rent from 3/11/14 to 9/11/14 3. Tenants to pay me $1300 for failing to provide 30 days notice per term 49 of the lease they signed on 17/8/2014 4. Sec 60 (1) tenants to pay for my legal costs incurred since 1st hearing until this case was closed upon my request at 14 hours x $200 = $3080 1. At the appeal hearing, at the request of the appeal panel the appellant explained the apparent discrepancy between the claim for damages of $8,520.00 mentioned in paragraph 11A of the notice of appeal compared with the claim for $9,365.00 mentioned in paragraph 11C of the notice of appeal. The last sum was made up as follows: 1. The claim for $8,520.00 is evidenced by a quotation dated 8 November 2014 from a George Tomassian, licenced electrician and builder. 2. The claim for $450.00 is evidenced by a receipt from Michael lawn mowing. 3. The claim for $395.00 is evidenced by an invoice from Vu's gardening services dated 14 November 2014 which appears to be in respect of internal cleaning. 1. The appellant's submissions in respect of the various claims are set out in the following paragraphs. 2. In respect of the rejection of the appellant's claim for rent for the period from 3 to 9 November 2014, the appellant submitted that the decision below was wrong because it preferred the evidence of the respondents over the evidence of the appellant. The decision below relied upon a receipt which the respondents had tended as evidence of their payment. The appellant submitted that the receipt was not evidence of payment and that she had not signed the receipt. She said that she had given a receipt to the respondents because an earlier decision of the Tribunal had required her to issue receipts, which was a practice that she had not previously followed and further, that the document relied upon by the respondents was merely a template or example of receipts which the appellant proposed to issue. 3. The appellant's submission with respect to the rejection of her claim for damages was that she had supplied ample evidence of damage in the form of photographs, quotations and invoices and that the decision below ignored her evidence. Respondents' submissions 1. The respondents submitted that the premises had not been damaged by them and that when the tenancy commenced the property was in a condition consistent with its age. They also submitted that the decision below was correct and should not be set aside or varied. The jurisdiction of the Appeal Panel 1. The Civil and Administrative Tribunal Act 2013 (the Act) contains provisions relevant to appeals from decisions from the Consumer and Commercial Division of the Tribunal. Section 80 of the Act provides that an appeal may be made as of right on any question of law or with leave on any other grounds. The grounds relevant to appeals from the Consumer and Commercial Division are set out in clause 12 of Schedule 4 of the Act and, in summarised form, clause 12 provides that an appeal panel may grant leave only if the appeal panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 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). Decision of the Appeal Panel 1. In respect of the appellant's appeal concerning the rejection of her claim for unpaid rent totalling $535.00, no question of law has been identified. The Appeal Panel is of the view that none of the three grounds set out in clause 12 (summarised above) have been satisfied in this case. The decision below cannot be said to be against the weight of evidence and nor can it be said to be not fair and equitable. There is no suggestion of significant new evidence arising which was not available at the time the proceedings under appeal were dealt with. The member had the competing evidence of the parties together with the unsigned receipt and in the opinion of the appeal panel the decision of the Tribunal was reasonably available. 2. In respect of the claims for damages (namely the claims for $8,520, $450 and $395) the appellant completed paragraph 11B of the Notice of Appeal by stating that there was a "Question of Law". However, the appellant has not identified the question of law she sought to have the appeal panel consider. 3. The decision below in so far as it concerned the claim for damages, lawn mowing and cleaning was considered pursuant to s51(3), (b) and (c) of the Residential Tenancies Act 2010 (the RTA). The Tribunal found that the appellants claim "could not succeed as for the reasons set out above, there was no condition report applicable to the premises when the recent new agreement was entered into and that there was no other evidence capable of persuading the Tribunal as to the condition of the premises at that time and/or for the Tribunal to be able to access (sic) any fair wear and tear". 1. The reference to "the reasons set out above" refers to the finding that there was no condition report applicable to the condition of the premises when the last tenancy agreement commenced. 2. The decision below went on to say that in respect of s 51(3)(c) of the RTA there was no condition report when the last agreement was entered into and "very limited other evidence capable of persuading the Tribunal as to the condition of the premises at that time". The Tribunal added "Overall, the Tribunal found on the balance of probabilities that the premises was left in a reasonable state of cleanliness". 3. Section 51(3)(b) and (c) of the RTA requires the tenant on giving vacant possession to: 1. (b) leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into", and 2. (c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy. 1. In addition, s 51(5) provides that s 51 is a term of every residential tenancy agreement. 2. In this case the respondents occupied the premises as tenants from 2013 and had there been one tenancy agreement for the whole of their period of occupation it would have been possible for the appellant's claim to have been assessed by reference to the state of the premises when the tenants commenced occupation in 2013. However, here the parties entered into more than one agreement. The respondents' obligations as tenants under s 51(3) are required to be assessed by reference to the condition of the premises when the last agreement was entered into (which in this case was August 2014). The last agreement is the relevant agreement because that was the agreement which the respondents allegedly breached. 3. Here the appellant's case against the respondents was based on an alleged breach of the tenancy entered into in August 2014. There was no evidence before the Tribunal as to the condition of the premises or its state of cleanliness when that tenancy commenced. Accordingly, there was insufficient evidence to determine whether the respondents had breached their obligations under s 51(3) (b) and (c). 4. Accordingly, in the opinion of the Appeal Panel the decision below does not contain an error of law. 5. The appellant also submitted that the decision below was not fair and equitable and against the weight of evidence. The appellant's submissions on the first of these grounds asserted that the member below "discriminated" against the appellant and the decision constituted an "abusement of Australian Law". The Appeal Panel cannot see any reason whatsoever for that submission. On the second ground the appellant was not able to point to any evidence as to the state or condition of the premises when the last tenancy commenced. Accordingly, the Appeal Panel finds that the appeal must fail. 6. The appellant's grounds of appeal sought to argue that in a situation where the tenants enter into a new tenancy following an initial tenancy, they will not have to pay for damage occurring during the initial tenancy because the condition report prepared at the beginning of the second tenancy will disclose the damage occurring during the initial tenancy. While it may be true that the landlord is bound by that condition report and cannot assert a breach of the second tenancy, the landlord could have brought a claim alleging a breach of the initial tenancy. Such a claim would need to be brought after the end of the initial tenancy even though the tenants might remain in occupation under the second tenancy. In the opinion of the Appeal Panel the appellant's concern is misconceived. 7. In the opinion of the Appeal Panel the decision did not contain an error of law and that leave to appeal on the grounds set out in clause 12 of Schedule 4 should not be given. The appeal will be dismissed. There will be no order concerning costs. 8. For these reasons, the Appeal Panel makes 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. 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: 08 May 2015