Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Illawarra Community Housing Trust v Chatman [2015] NSWCATAP 286 Hearing dates: 27 May 2015 and 11 August 2015 Date of orders: 31 December 2015 Decision date: 31 December 2015 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member S Thode, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: No error of law established – findings not against the weight of the evidence–no substantial miscarriage of justice– leave to appeal refused. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: The Illawarra Community Housing Trust (Appellants) Troy Chatman (Respondent) Representation: Mr Picken on behalf of the appellant Mr Burnside (at the hearing on 25 May 2015) and Ms M. Van De Voorde (at the hearing on 11 August 2015) for the respondent File Number(s): AP 15/13050 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 27 February 2015 Before: S Hennings, General Member File Number(s): RT 14/60286 reasons for decision Introduction 1. The appellant, the Illawarra Housing Trust was a tenant (the tenant) of premises in Wollongong. The tenant entered into a residential tenancy agreement in respect of the premises with the respondent, Mr Chatman, as landlord (the landlord) on 25 August 2010. The tenancy was terminated by consent and the tenant vacated the premises on or about 27 October 2014 . 2. Subsequently, the landlords applied, under s 190 of the Residential Tenancies Act 2010 (NSW) (the RT Act), to the Consumer and Commercial Division of the Tribunal claiming compensation under subs 187(1)(c) of the RT Act. At a hearing on 27 February 2015 the Tribunal ordered the tenant to pay $5375.50 to the landlord. 3. The tenant has appealed part of this decision under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). This is a matter where the appellant requires leave of the Appeal Panel for the appeal to proceed. 4. At the hearing of the appeal the tenant was represented by Mr Picken, and the respondent was represented by Mr Burnside at the first hearing on 27 May 2015 and by Ms Van Der Voorde at the adjourned hearing on 11 August 2015. Neither party was legally represented. 5. For the reasons set out below the Appeal Panel refuses to grant leave to appeal and has decided to dismiss the appeal. The proceedings at first instance 1. The landlord's application was heard on 10 April 2015 and the Tribunal made the following orders: 1. The tenant, The Illawarra Community Housing Trust, 120 Smith Street WOLLONGONG NSW 2500 Australia, is to pay the landlord, Troy Chatman, C/- Raine & Horne Wollongong 226 Corrimal Street WOLLONGONG NSW 2500 Australia, the sum of $5,375.50 on or before 27-Mar-2015. Reasons : •Cleaning $1,125.00 •Blind replacement $660.00 •Painting and repairs $1,750.00 •Compensation for carpet damage $200.00 •Replace light globes $160.00 •Replace fly screens $50.00 •Remove screen door and patch $80.00 •Replace door handle and fix hinge $85.00 •Replace 2 x heat bathroom globes $40.00 •Replace missing blind slat and fix smoke alarm $60.00 •Replacement of bedroom 4 door handle $65.00 •Clean up and repair outside numerous issues $450.00 •Replace missing lattice $390.00 •Kitchen repairs cupboard doors and drawers $260.50 2. The Rental Bond Services is directed to pay the landlord, Troy Chatman, C/- Raine &Horne Wollongong 226 Corrimal Street WOLLONGONG NSW 2500 Australia, the whole bond plus interest of Rental Bond number 0701825-5. Any amount received is to be credited against the money order. 1. Short written reasons for decision were given on 27 February 2015. In those reasons, the Tribunal ordered the landlord's claims for replacing the kitchen door, the toilet seat, the rubber seal on the shower screen and the stains on the driveway be dismissed. 2. It is not in dispute between the parties that oral reasons were also given during the course of the hearing and at the time the Member considered each head of damage. The parties tendered extracts of the transcript that recorded these reasons. The Appeal 1. The landlords lodged a notice of appeal form on 13 March 2015, having received a copy of the orders and reasons for decision on 27 February 2015. The appeal was lodged in time. 2. The applicant originally failed to file any evidence in respect of the appeal. As we understand it, this was because Mr Picken had not understood the direction to file and serve any evidence that he wished to rely upon, including any evidence or transcript from the earlier hearing. He had assumed that any evidence filed before the Tribunal on 27 February 2015, or any recording of those proceedings, would automatically form part of the evidence on appeal. He sought and was granted an adjournment to file further evidence. 3. The matter came before the Appeal Panel again on 11 August 2015. Mr Picken tendered 333 pages of documents, including photographs, emails, tenancy ledgers, quotations, submissions, a recording of proceedings RT 14/60286 and a partial written transcript of those proceedings. 4. The landlord lodged his reply to appeal on 8 May 2015 and in that reply indicated that, he wished to have the orders of the Tribunal affirmed and the appeal dismissed. The reply attachment stated that : From a total claim of $7000 which we requested on application to the Tribunal, the member made orders that the tenants were to pay the owner a total of $5375.50. We do not believe that the tenant has the right to an appeal as there has not been a Denial of natural justice. Orders Challenged and Grounds of Appeal 1. In their appeal documentation, the tenants identified the orders they wished to challenge. 1. "Cleaning, Painting, Replacement of door handle, replace missing lattice". 1. At paragraph 12A of the Notice of the Appeal the tenant asserts that insufficient evidence was tendered by the landlord to justify the making of the orders and that the decision was not fair and equitable. The tenant seeks the leave of the Appeal Panel The tenant says: 1. The Decision was not fair and equitable 2. The decision was against the weight of evidence 3. Significant new evidence has arisen that was not reasonably available at the time of the original hearing 1. More specifically the tenant asserted that: The decision of the NCAT has resulted in the respondent obtaining a benefit to which they are not entitled. 1. In short, the tenant sought to argue that the weight of the evidence was against the making compensation orders for cleaning, painting and replacement of the door handle and hinges and lattice. Consideration 1. The issues raised by the appellant on appeal do not raise questions of law. 2. As the decision appealed against was made in the Consumer and Commercial Division and does not involve a question of law, leave is required and cl 12 of Sch 4 of the Act applies. That clause provides: (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a [Consumer and Commercial} 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. The principles set out in the decision of Collins v Urban [2014] NSWCATAP 17 are relevant to determine whether or not leave should be granted. Relevantly the Appeal Panel said: 76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) …. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 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 - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]. 1. Further, even if the Appeal Panel is satisfied there has been a substantial miscarriage of justice it must also decide whether, as a matter of general discretion, leave should be granted: see Collins at [80] and following. 2. It is convenient to separately deal with the parties submissions and the Appeal Panel's decision in respect of each of the items in dispute. Cleaning 1. The landlord claimed $1125 for cleaning of the property. At the hearing before the Tribunal this claim was supported by evidence in the form of a cleaning invoice, an ingoing and outgoing inspection report and photographs. It was the tenant's submission that the property was already professionally cleaned for the sum of $1690 and that it was unreasonable of the Tribunal to make an award for additional cleaning. The tenant sought to have this finding overturned and reduced to nil. The essence of this ground of appeal was that the Tribunal's finding for $1125 was against the weight of the evidence, and that the evidence produced by the landlord was a quote and not an invoice and that there was no evidence that actual cleaning was ever undertaken. The tenant argued, that by reason of the order, the landlord was unjustly enriched. 2. The tenant submitted that the cleaning as claimed by the landlord was only necessary because of mould formation and mould had formed in the property due to the landlord's failure to remedy the issue. The mould issue was reported by the tenant to the landlord during the tenancy and the landlord had failed to remove the mould. In this regard the appellant referred to "work order" requests forwarded to the respondent's agent: see Exhibit B pages 13-16. 3. The tenant also identified various photographic material in Exhibit A depicting mould in various locations. 4. The substance of the tenant's submissions is that the Tribunal's finding was against the weight of the evidence. 5. In reply, the landlord submitted that: 1. all items were noted in the ingoing report as clean at the commencement of the tenancy; 2. the Tribunal Member looked at each individual item, the ingoing report and the photos prior to making his decision and the photos established that cleaning was required; and 3. the Tribunal Member properly considered the expert evidence of the landlord that the likely cause of mould in the property was due to lack of ventilation. In this regard reliance was placed upon a quotation and report from Homestead Concreting & Property Maintenance Pty Ltd that the type of mould arose from the failure to open windows and properly ventilate the premises and that moisture readings in the ceiling cavity were minimal, being indicative of the failure to properly air the premises; and 4. the tenant had no evidence to establish that cleaning was not required other than the invoice showing that the premises were previously cleaned. 1. The landlord referred the Appeal Panel to the tendered transcript extracts where the Member analysed the issue, made reference to the third party evidence on the cause of the mould and said: Well the best evidence I've got in front of me today is from Homestead Concrete and Property Maintenance which I interpret to say there is not an issue with moisture so it's the tenant's responsibility for not ventilating the property, so I accept that … evidence and I'm going to award the full amount of the cleaning. …Mr Picken I disagree with you, the photographs show me that the tenant clearly breached clause 51(3) [of the RT Act] in that the premises weren't left in a reasonable state of cleanliness and … regard to the condition of the commencement of the property there is a marked difference between the ingoing and outgoing photos and how the property was left, there is a substantial cleaning required. 1. This transcript tendered by the parties shows that the Tribunal Member considered and weighed the evidence before arriving at a finding that lack of ventilation by the tenant was the probable cause of mould, and made the award accordingly. 2. The incoming inspection report (Exhibit D page 4 and following) does not record any mould at the start of the tenancy. This supports the conclusion that the mould arose as a result of the tenant's use of the premises. Further, the fact that complaints were made by the tenant about mould does not establish the cause was due to the premises having a high moisture content, rather than the failure of the tenant to air the premises. Finally, the tenant did not seek to adduce any evidence in reply to the landlord's evidence about the cause of the mould and the moisture levels otherwise in the premises. 3. In the circumstances, the Appeal Panel is not satisfied that the decision of the Tribunal below in relation to the cleaning bill was against the weight of the evidence. 4. Consequently we are not satisfied that the appellant may have suffered a substantial miscarriage of justice. 5. Accordingly leave to appeal in respect of this item is refused. Painting 1. The tenant alleges that the Tribunal, erred in making an award in the sum allowed as the ingoing condition report clearly states that paint was flaky, patchy, marked and cracked in a number of the rooms at the commencement of the tenancy. The ingoing report (Exhibit B page 2 and following) indicates that the premises were not freshly painted and Mr Picken submits that the tenant, a social housing provider, should not be held liable for the costs or repainting the premises. 2. Reference was made to photographs in Exhibit A pages 179 to 242 which the appellant says demonstrate that the damage to the paint was not beyond what might be considered "reasonable wear and tear" within the meaning of s51(3) of the RT Act. While Mr Picken conceded that some of the dents on door jambs are attributable to the tenant, the award of $1750 was unreasonable and against the weight of the evidence. 3. In reply, the landlord submitted that doors and frames had been damaged, the incoming inspection report showing no damage. The landlord also submitted that there was evidence that walls and ceilings had been patched and painted with incorrect shades of paint. Finally, the landlord said that there had been various damage to paintwork of walls and skirting boards. In this regard the landlord relied on photographic evidence as well. 4. The Appeal Panel notes that the landlord obtained a quote to paint the premises for $4895. At the hearing the landlord only sought compensation in the sum of $2,447.50, reducing by 50% the cost of re-painting. 5. Section 51 of the RT Act requires the tenant: 1. Not to intentionally or negligently cause or permit any damage to the residential premises; 2. To keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy; 3. 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. 1. After considering evidence and submissions from both sides, the Tribunal found the tenant liable for the damage, but further reduced the amount sought, based on a finding that the tenant had patched the walls in mismatched colours. The Tribunal took into account the tenant's submission that the ingoing inspection report showed demonstrable wear and tear before the tenancy commenced, and on that basis reduced the amount sought. The Tribunal made the following findings (recorded in the transcript-Exhibit C at page 4): Alright, I've looked at the evidence again .., in this case certainly again the timber work, the walls there is certainly in my view some damage to the property and the paintwork which exceeds any normal fair wear and tear again the tenant has breached the tenancy agreement by failing to return the premises to the landlord in the same condition, less fair wear and tear but I have noted that .. there are some issues on the ingoing report which perhaps would indicate there needs to be a bit more depreciation with respect to the amount claimed…. In this matter I'm going to reduce the amount claimed from $2447.50,.. I'm going to reduce it to $1750.00. I have taken on board what Mr Picken has said about some of those issues. 1. It is clear from the above that the Member evaluated the relevant evidence, determined the tenant was responsible for some of the damage to the residential premises, made allowance as required by s 51 of the RT Act for fair wear and tear and made an assessment of damages based on the evidence presented. 2. There is nothing to suggest this determination was wrong, let alone demonstrably so. Accordingly, we are not satisfied that the tenant has suffered a substantial miscarriage of justice and leave to appeal should be refused. 3. This ground of appeal is also dismissed. Door handle and hinges and Lattice award 1. At the hearing of the appeal the tenant withdrew its appeal in respect of the amounts awarded for the door handle and hinge and the lattice. Orders 1. The appellant has failed to demonstrate it may have suffered a substantial miscarriage of justice. Indeed, the Appeal Panel is satisfied that the determinations made by the Tribunal were reasonably available to it on the evidence that was presented. 2. Accordingly, the Appeal Panel makes the following orders: 1. Leave to appeal is refused. 2. 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: 31 December 2015