Civil and Administrative Tribunal New South Wales Medium Neutral Citation: George Papazachariou v Michael Antoun [2015] NSWCATAP 157 Hearing dates: 24 July 2015 Date of orders: 24 July 2015 Decision date: 30 July 2015 Jurisdiction: Appeal Panel Before: J Redfern, Principal Member K Rosser, Senior Member Decision: Leave to appeal refused, appeal dismissed Catchwords: APPEAL – residential tenancy agreement – no substantial miscarriage of justice – leave to appeal refused Legislation Cited: Civil and Administrative Tribunal Act 2013 NSW Cases Cited: Collins v Urban [2014] NSWCATAP 17 Khan v Kang [2014] NSWCATAP 48 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: George Papazachariou, appellant Michael Antoun, respondent Representation: Nil File Number(s): AP 15/30343 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 16 April 2015 Before: C Xuereb, Member File Number(s): RT 15/00393 REASONS FOR DECISION Background 1. This is an internal appeal from a decision of the Consumer and Commercial Division of the Tribunal made on 16 April 2015. The appeal arises out an application made by the appellant, Mr Papazachariou, for orders against his landlord, Mr Michael Antoun. Mr Antoun is the respondent to the appeal and the original application. 2. In summary, Mr Papazachariou alleged breaches of the residential tenancy agreement between him and Mr Antoun in respect of the landlord's obligations to maintain the leased premises in a reasonable state of repair and to provide the tenant with quiet enjoyment. He made complaints about seven matters and also claimed a rent reduction. 3. Orders were made in Mr Papazachariou's favour on a number of the complaints but no rent reduction was ordered. Mr Papazachariou did not succeed on all of his claims and it is in respect of four of these matters that Mr Papazachariou lodged his appeal. 4. Prior to the appeal being listed for hearing, Mr Papazachariou also made an application to the Consumer and Commercial Division to renew the original proceedings. He contends Mr Antoun did not comply with three of the orders made on 16 April 2015. This is in dispute. 5. In an attempt to resolve all issues in dispute between the parties, the renewal proceedings were listed before the Appeal Panel for hearing at the same time as the appeal. The parties were also directed to file and serve an outline of written arguments and any material on which they wished to rely concerning the appeal in accordance with a timetable set by the Appeal Panel. There were no directions made about the exchange of evidence in respect of the renewal proceedings. 6. Mr Papazachariou did not file and serve any further material concerning his appeal and Mr Antoun therefore did not file and serve any material in response. Neither party filed or served material concerning the renewal proceedings. Accordingly, the renewal application did not proceed but the issues in dispute were identified and further directions were made about the preparation of the renewal application for hearing. The renewal application was adjourned to a date to be fixed to be heard by the Consumer and Commercial Division. 7. The appeal proceeded on the basis of the notice of appeal, the material provided by Mr Papazachariou as part of his original application and the written reasons for decision provided by the Tribunal at first instance, which were dated 16 April 2015. The parties also made oral submissions. 8. The appeal was dismissed and orders were made on the day of the hearing. Our reasons, which were reserved, follow. The decision at first instance 1. In his original application to the Consumer and Commercial Division, Mr Papazachariou made complaints in relation the replacement of a cooktop in the kitchen, the alarm system, the state of the blinds, the lights in the driveway (which were alleged to be faulty), the storage of tiles in the carport, impeded access to the garage on the property, pest control of the common areas and the cleaning of the common areas, including leaves and rubbish. 2. The Tribunal ordered Mr Antoun, within 21 days of the orders, to: 1. take all necessary steps to ensure that the alarm to the premises was operational; 2. repair (or replace if repair was not practical or cost effective) any blinds on the premises that were not in proper working order or which showed signs of deterioration; 3. repair the driveway lights; 4. remove a disused blue bucket from the driveway; and 5. remove indoor ceramic tiles from the carport. 1. The Tribunal rejected Mr Papazachariou's claim in relation to the replacement of the cooktop, alleged impeded access to the driveway, leaves and rubbish in the driveway (or cleaning of the common areas more generally), pest control treatment for the common areas and removal of roof tiles from the carport. 2. Mr Papazachariou appealed against the decision to reject his claims in relation to the cooktop, the storage of roof tiles in the carport, access to the garage and the cleaning of the common areas. 3. The written reasons for decision, comprising 80 paragraphs, are comprehensive. They deal with each of the complaints made, the evidence and submissions presented at the hearing and the reasons why the claim was either accepted or rejected. 4. The Tribunal rejected the claim for the cost incurred by Mr Papazachariou in replacing the cooktop at [72] to [79] because it found Mr Antoun had purchased a replacement cooktop, had attempted to have it installed and Mr Papazachariou, in circumstances where there was delay not necessarily of Mr Antoun's making, had installed a replacement cooktop incurring an expense that did not justify Mr Papazachariou withholding rent. 5. The Tribunal rejected the claim about the storage of the roof tiles at [69] to [71]. There were two sets of tiles which were the subject of complaint, indoor and roof tiles. According to the reasons (and this does not appear to be in dispute), both sets of tiles were in the carport at the time Mr Papazachariou entered into the lease. The roof tiles were stacked in "two neat piles". The Tribunal directed the indoor tiles be removed but made no order in respect of the roof tiles. 6. The Tribunal rejected the claim about access to the garage at [61] to [63]. Mr Papazachariou alleged that a neighbouring tenant "almost always" parked in front of their garage making it very difficult for Mr Papazachariou to reverse out of the driveway from his garage. According to the reasons, the Tribunal examined photographs of the driveways and was not satisfied that the position of the neighbouring tenant's car would have impeded Mr Papazachariou's access. The Tribunal also found that Mr Antoun had written to the managing agent requesting that the agent deal with the matter but did not have control over the adjoining owner or his tenants in any event. The Tribunal therefore declined to make any order. 7. The Tribunal rejected Mr Papazachariou's claim about cleaning the common area in the driveway of leaves and rubbish at [64] to [67]. The Tribunal found there was no evidence as to who owned the driveway. In addition, the Tribunal noted that the substance of the complaint was about leaves in the driveway and this was a naturally occurring phenomenon which did not warrant an order. Grounds of appeal and submissions of the parties 1. In the notice of appeal, Mr Papazachariou contended that the decision was wrong. He set out four grounds and made oral submissions expanding on the grounds, to the following effect: 1. Mr Papazachariou did not agree that he should have to pay for the cooktop because the owner would get the benefit of the cooktop and it was his obligation, not Mr Papazachariou's, to install the replacement; 2. The carport belonged to him, because he was renting the property and it was not fair that Mr Antoun be allowed to continue to store the roof tiles there; 3. The neighbours had a lock up garage and the tenants could park their car in the garage; it was difficult for him to reverse with the other car in the adjoining driveway; and 4. The complex must have strata management to clean the common areas and Mr Antoun should be required to ensure the common areas are clean. 1. Mr Antoun stated that he agreed with the decision made by the Tribunal on 16 April 2015 and submitted that the appeal should be dismissed. Consideration 1. The Civil and Administrative Tribunal Act 2013 (the Act) sets out the basis upon which appeals from decisions of the Consumer and Commercial Division may arise under s 80 of the Act. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). 2. The grounds of appeal, as expressed in the notice, do not raise any identifiable question of law. Furthermore, Mr Papazachariou did not seek leave to appeal in the application. In response to the question about whether he was seeking leave, Mr Papazachariou ticked the box "no". 3. The Tribunal must give effect to the guiding principle when exercising functions under the CAT Act, which is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 36(1)). This is reinforced by s 38(4) which provides that the Tribunal is required 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." 4. The Appeal Panel is mindful that it may be difficult for self-represented appellants to clearly express their grounds of appeal or, even more challenging, identify a question of law. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the reasons 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: Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. 5. With this in mind, the Tribunal questioned Mr Papazachariou about the basis for his appeal. Mr Papazachariou was asked whether he made any complaint about the conduct of the hearing and, in particular, whether he had any concerns about the opportunity he was given to present his case to the Tribunal. Mr Papazachariou said he had no complaints about this. Mr Papazachariou also said that he had read and understood the reasons but did not agree with the findings of the Tribunal in relation to the four matters he had raised in his appeal. He did not agree he should have to pay for the cooktop, he did not understand why Mr Antoun should be allowed to leave the roof tiles in the carport, he believed Mr Antoun had an obligation to stop the neighbour from parking in front of their driveway and he could not understand why the common areas should not be cleaned by the body corporate. In relation to the last matter, it is relevant to note that the specific complaint before the Tribunal at first instance was about the leaves in the driveway and a blue bucket in the common area and both matters were dealt with in the reasons and Tribunal orders. 6. Having regard to the notice of appeal, Mr Papazachariou's oral submissions and the written reasons for decision, which the Appeal Panel examined closely, we are not satisfied Mr Papazachariou's appeal raises a question of law. Nor could we discern any error of law in respect of the four matters Mr Papazachariou now seeks to challenge. Accordingly, Mr Papazachariou requires leave to appeal. 7. As already noted, Mr Papazachariou did not make an application for leave in his notice of appeal. When the Appeal Panel explained the nature and scope of the right to appeal, Mr Papazachariou nonetheless indicated a desire to proceed with his appeal. Mr Antoun also stated that he wanted the appeal to proceed. The Appeal Panel therefore treated this as an oral application and considered the question of whether Mr Papazachariou should be given leave to appeal. 8. Schedule 4, cl 12 of the Act states 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 (cl 12(a)), or 2. The decision of the Tribunal under appeal was against the weight of evidence (cl 12(b)), or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceeding under appeal was being considered) (cl 12(c)). 1. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at par [71] and par [79] as follows: [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 . . . 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." 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban an Appeal Panel of the Tribunal conducted a review of the relevant cases at pars [65]-[79] and concluded at par [84]: 84. The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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. 1. We are not satisfied that a substantial miscarriage of justice may have occurred. The Tribunal made findings there were reasonably open on the available evidence. There is no suggestion that the Tribunal made factual errors that were mistaken or unreasonably arrived at or that the Tribunal went about the fact finding process in an unorthodox manner. The Tribunal conducted a hearing, reviewed evidence and made findings based on the evidence. Mr Papazachariou does not agree with those findings and he contends the Tribunal should have reached a different outcome. The Tribunal considered a number of different complaints made by Mr Papazachariou. The Tribunal accepted some and rejected others. 2. For instance, the Tribunal declined to make orders about access to the driveway based on evidence that Mr Papazachariou's access was not unreasonably impeded but also having regard to the fact that Mr Antoun had no direct control of an adjoining property. This is clearly correct. The Tribunal also declined to make orders about removing the roof tiles, having decided to make orders about the removal of the other tiles stored. It is apparent the Tribunal declined to order that all tiles be removed, first, because there was evidence the tiles were stored in the carport at the time the lease was entered into and, secondly, because the Tribunal determined to adopt a compromise approach, which was open given the Tribunal had discretion in respect of the relief that could be ordered. While the Tribunal did not allow Mr Papazachariou a rent reduction for the cost of the cooktop, Mr Papazachariou would be entitled to take the cooktop with him if he leaves the premises, subject to notifying Mr Antoun of any damage caused by its removal and either repairing that damage or compensating Mr Antoun for his reasonable expenses of doing so: s 67 of the Residential Tenancies Act 2010. As such, there is no apparent unjust benefit in favour of Mr Antoun. 3. The Tribunal is therefore not satisfied there has been an injustice that is reasonably clear or that it would be unjust to allow the decision to stand. This is a case where the Tribunal at first instance made a number of findings that were reasonably open based on the evidence and after a contested hearing. Mr Papazachariou does not agree with some of these findings or orders but this is not enough to justify leave to appeal. Conclusion 1. For these reasons, the Appeal Panel refused leave to appeal and dismissed the appeal. 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: 30 July 2015