Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Thomas v Goldie [2015] NSWCATAP 243 Hearing dates: 08 October 2015 Date of orders: 08 October 2015 Decision date: 08 October 2015 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President at [1]; S Thode, Senior Member at [21] Decision: In relation to proceedings RT 15/40126: 1. The appeal is dismissed. 2. Leave to appeal on grounds other than a question of law refused. In relation to proceedings RT 15/37226: 3. The appeal is upheld in part and dismissed in part. 4. By consent, order 6 is set aside. 5. Orders 1, 3 and 4 are affirmed. Catchwords: RESIDENTIAL TENANCY –tenancy terminated because tenant frequently failed to pay rent – tenancy terminated - claim for rent reduction refused – appeal on grounds of procedural fairness – appeal on merits of rent reduction claim – no breach of procedural fairness – leave to appeal on other grounds refused Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b), s 38(5) Residential Tenancies Act 2010 (NSW), s 44(1) Category: Principal judgment Parties: Aaron Thomas (Appellant) R Goldie (Respondent) Representation: A Thomas (Appellant in person) K Flood (Agent for Respondent) File Number(s): AP 15/48971 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 7 August 2015 Before: R Harris, General Member File Number(s): File No: RT 15/40126; File No: RT 15/37226 ex tempore reasons for decision 1. DEPUTY PRESIDENT HENNESSY: Mr Thomas has appealed against two decisions of the Tribunal made on 7 August 2015. The first decision terminated the residential tenancy agreement he had signed with the landlord, Ms Goldie, for failure to pay rent. The file number in that proceeding is RT 15/37226. The Tribunal was satisfied that Mr Thomas had frequently failed to pay rent, terminated the tenancy agreement and ordered that possession of the premises be given to the landlord on 21 August 2015. The Tribunal also ordered that Mr Thomas pay the landlord $540 on or before 21 August 2015 for removal of rubbish. By consent today the parties have agreed that that order of the Tribunal should be set aside. 2. The second decision was to dismiss Mr Thomas' application for rent reduction. The file number for that matter is RT 15/40126. 3. The appeal against these decisions was expedited and the operation of the termination order has been stayed pending further order of the Tribunal. 4. The grounds of appeal were set out in the Notice of Appeal. Mr Thomas is entitled to appeal on a question of law but must first obtain the Appeal Panel's leave before appealing on any other ground: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b). 5. The first ground of appeal on a question of law was that the Tribunal had breached the rules of procedural fairness in two ways. Mr Thomas said he was unprepared for the hearing in the rent reduction claim (RT 15/40126) and that his advocate was unable to attend due to prior commitments. 6. The second breach of procedural fairness was that the orders for termination of the residential tenancy agreement were made before determining his application for rent reduction. In Mr Thomas' view, had he been properly prepared for the hearing and successfully presented his case, the orders in the first matter may not have been necessary. 7. The Tribunal is bound by s 38(5) of the Civil and Administrative Tribunal Act to afford procedural fairness to parties before it. In particular the Tribunal must take such measures as are reasonably practicable to ensure that the parties understand the nature of the proceedings and have a reasonable opportunity to be heard or otherwise have their submissions considered. 8. The fact that Mr Thomas felt unprepared is not a breach of the rules of procedural fairness on the part of the Tribunal, nor was it a breach that his advocate was unable to attend. He had adequate notice of the hearing and an adequate opportunity to present his case. Being unprepared or not being represented by a lawyer does not constitute procedural unfairness in the circumstances of this case. 9. In relation to the second procedural fairness ground, success in relation to the rent reduction matter would have made no difference to the success or otherwise of the first claim. Mr Thomas admitted that he owed more than $3,000 in rental arrears. Even if the claim for rent reduction had been successful, a non-functioning detergent dispenser in the dishwasher and the absence of screen doors for some four weeks would not have extinguished the amount of $3,000 in rental arrears. Accordingly we find that there has been no breach of procedural fairness on the part of the Tribunal. 10. The second ground of appeal was that the Tribunal failed to give reasons for dismissing the second application. The Tribunal gave extremely brief written reasons which were as follows: "The application is dismissed because, having considered the material placed before it, the Tribunal is not satisfied, at the civil standard of proof, that the grounds required to make the orders sought have been established." 1. The Tribunal is required to give adequate reasons for its decision. On their face, the written reasons were not adequate but the parties disagreed as to the extent to which the Tribunal gave oral reasons for dismissing the second application. Ms Goldie said that the Tribunal gave reasons at the time. The onus is on Mr Thomas to make out his case. Even though he was directed by the Appeal Panel to file and serve any sound recording or transcript of the hearing at first instance on which he relied, he failed to do so. He said that he did not think he would have sufficient time, but in our view he made no attempt to apply for such a transcript. More significantly, Mr Thomas did not request written reasons for the decision as he was entitled to do under s 62 of the NCAT Act. In those circumstances we are not satisfied that Mr Thomas has proven that the Tribunal failed to give adequate reasons for its decision. 2. The remaining grounds of appeal were not on questions of law. They were grounds for which leave is required. Schedule 4, cl 12 of the Civil and Administrative Tribunal Act limits the grounds of appeal from decisions of the Consumer and Commercial Division. In particular the Appeal Panel is restricted to granting leave only where an appellant may have suffered a substantial miscarriage of justice for a number of reasons. The reasons which Mr Thomas relies on are that the decision was not fair and equitable and that the decision under appeal was against the weight of evidence. 12 Limitations on internal appeals against Division decisions (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). 1. In relation to Mr Thomas' application for rent reduction, the relevant provision is s 44(1)(b) of the Residential Tenancies Act 2010 (NSW) which provides that: 44 Tenant's remedies for excessive rent (1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders: (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount 1. At the first instance hearing Mr Thomas relied on his own statutory declaration dated 10 July 2015, a letter to the agent dated 16 June 2015, a letter from the agent dated 18 June 2015 and a statutory declaration by Nicholas Franklin dated 29 June 2015. 2. On appeal, the landlord, Ms Goldie, sought to adduce fresh evidence of her assertion that the dishwasher was working and had been serviced in January 2015. We have not taken that fresh evidence into account. Our job in assessing Mr Thomas' grounds of appeal is to look at the evidence that was filed before the Tribunal below and to determine whether or not that evidence was sufficient to justify the Tribunal's decision to dismiss the application. 3. There was no dispute that the dishwasher still worked. The only conflict in the evidence was as to the functioning of the detergent dispenser. Even if the automatic detergent dispenser was not functioning that was a minor inconvenience. It would not have justified a rent reduction of any significant amount. 4. The second basis for Mr Thomas' claim related to screen doors. As far as we are aware the only evidence in relation to that matter was the statutory declaration of Nicholas Franklin dated 29 June. In that declaration Mr Franklin states as follows: "On 14 April 2015 I measured up two screen doors but the tenant insisted on security screen grills being replaced instead of plain security mesh. As the door size was not standard these frames had to be made and were installed 16 May 2015." 1. We understand that any inconvenience to Mr Thomas would have been for the period of approximately four weeks when he was without the kinds of security screen doors that he requested. Again, even if the Tribunal had found that Mr Thomas had been without that facility for that period of time, that finding would not have justified an order under s 44(1)(b) for rent reduction in any significant amount. 2. In those circumstances we refuse leave for Mr Thomas to appeal on the ground that the Tribunal's decision was not fair and equitable or that it was against the weight of evidence. Orders 1. In relation to proceedings RT 15/40126: 1. The appeal is dismissed. 2. Leave to appeal on grounds other than a question of law refused. In relation to proceedings RT 15/37226: 1. The appeal is upheld in part and dismissed in part. 2. By consent, order 6 is set aside. 3. Orders 1, 3 and 4 are affirmed. 1. SENIOR MEMBER THODE: I agree. ********** 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 November 2015