Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Neeves v Gaffey [2016] NSWCATAP 135 Hearing dates: 12 October 2015 Date of orders: 17 June 2016 Decision date: 17 June 2016 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member S Higgins, Principal Member Decision: Leave to extend the time in which to lodge the Notice of Appeal is refused. The appeal is otherwise dismissed. Catchwords: Leave to appeal out of time- exercise of discretion Residential Tenancies Act- power to order repayment of water usage charges, obligation on landlord to provide water usage bills. Compensation for failure of facilities provided under residential tenancy agreement Legislation Cited: Civil and Administrative Tribunal Act, 2013 Civil and Administrative Tribunal Rules, 2014 Residential Tenancies Act, 2010 Residential Tenancies Regulation, 2010 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: Nil Category: Principal judgment Parties: Alan Neeves (Appellant) Veronica Neeves (Appellant) Bernadette Gaffey (Respondent) Paul Gaffey (Respondent) Representation: Appellants: Mr Leslight Respondent: Mr Gaffey, in person, for both respondents File Number(s): AP 15/34493 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 24 March 2015 Before: A Morris, General Member File Number(s): RT 14/60294 and RT 14/54910 reasons for decision 1. This is an appeal in respect of orders made by the Tribunal on 24 March 2015 in respect of residential tenancy proceedings RT 14/54910 and RT 14/60294. 2. The orders made by the Tribunal on that day were amended under s 63 of the Civil and Administrative Tribunal Act, 2013 (NCAT Act), the amended orders being published on 7 April 2015. 3. Application RT 14/54910 was a claim made by the tenants, the respondents to the appeal (respondents). In that application they sought orders for the repayment of water charges due to an alleged contravention of s 39 of the Residential Tenancies Act, 2010 (RTA) and an order for compensation because a dishwasher and a clothes hoist which were provided as part of the residential tenancy agreement did not work. 4. Application RT 14/60294 was an application by the landlords, the appellants to the appeal (appellants). Relevantly, the appellants sought orders for unpaid rent, unpaid water accounts totalling $1398.85 and compensation for a downpipe said to have been broken by the respondents ($160.00) and to replace a clothes hoist ($420.00) said to have been removed by the respondents. 5. The proceedings also involved a determination of whether or not the respondents were entitled to a return of the bond provided under the residential tenancy agreement. 6. The Tribunal made an order in favour of the respondents requiring the appellants to pay to the respondents the sum of $2,270.90 being the net amount of the various claims made as follows: Repayment of water charges to respondents $3,601.54 Compensation to respondents for non-functioning dishwasher and damaged clothes hoist $917.00 Total allowed in favour of respondents $4518.54 Less: Unpaid rent $618.55 Unpaid water charges otherwise agreed $1155.00 Cleaning $474.00 Total allowed in favour of appellants $2,247.55 Net amount due to respondents (as per order 3) $2,270.99 1. In addition, the Tribunal made an order that the bond was to be paid to the respondents. Notice of Appeal 1. The appellants lodged a notice of appeal on 25 May 2015. The notice of appeal was dated 20 May 2015 (First Notice of Appeal). A second notice of appeal was subsequently filed on 17 August 2015 (Second Notice of Appeal). The second notice of appeal was dated 13 August 2015. Each of the notices of appeal was substantially in the same terms and referred to residential tenancy proceedings RT 14/60294. 2. Neither notice of appeal referred to the related residential tenancy proceedings RT 14/54910. However, as will be apparent from the grounds of appeal it is the orders made in these proceedings in favour of the respondents (tenants) that are the subject of challenge. Also the subject of challenge in the Notice of Appeal is the alleged failure of the Tribunal to address the appellants claim in proceedings RT 14/60294 seeking orders for compensation in respect of repairs to cupboard doors to an ensuite vanity unit. The Appeal Panel will deal with all issues raised by the appellants despite this irregularity in form. 3. In both notices of appeal the appellants say that notice of the Tribunal's decision dated 7 April 2015 was received on 20 April 2015. What was received was on this date appears to be the amended orders. There were no written reasons accompanying this order. It appears from the appellants submissions that the orders may have been received at the agents office prior to 20 April 2015 but not seen by the appellants agent, Mr Leslight until 20 April 2015 as he was on holidays. 4. The proceedings to which the appeal relates are "residential proceedings" within the meaning of r 3 of the Civil and Administrative Tribunal Rules, 2014 (Rules). The time for filing an appeal in relation to residential proceedings are fourteen days from the day on which the appellants were notified of the decision or given reasons for the decision: see r 25(4)(c), unless the Tribunal grants an extension of time under s 41 of the NCAT Act. 5. Neither party suggested in the appeal that reasons for decision were not given orally by the Tribunal at the hearing on 24 March 2015. Because the appellants say notice of the decision was received on 20 April 2015, leave to appeal out of time is required. 6. In the First Notice of Appeal the appellants sought an extension of time. In the Second Notice of Appeal no request for extension of time was made: see Item 13 of each of the notices of appeal. Notwithstanding this fact, the Appeal Panel receive submissions in relation to granting leave to appeal out of time in respect of the appeal. Grounds of appeal 1. As indicated above, it is the orders made in favour of the respondents requiring the appellants to reimburse the respondents water usage charges and to compensate the respondents for a non-functioning dishwasher and a damaged clothes hoist which are the subject of this appeal, as well as the alleged failure of the Tribunal to address the appellants claim in respect of damage to cupboard doors of the ensuite vanity unit. The grounds of appeal are set out 11B of the Notice of Appeal as follows: 1 Vanity Doors – Issue was not addressed in the Order. 2 Compensation was awarded for the dishwasher despite evidence of repairs and no contradictory evidence from the Tenant. 3 Compensation was awarded for the clothes hoist despite evidence of no records in Maintenance Book all communication from Tenant. 4 Reimbursement of water usage monies was made to the tenant. I am unable to find or identify a provision requiring this. 1. Leave to appeal was also sought. In summary, the appellants contends for the following orders: 1. All water accounts should be paid by the tenant, therefore the order for refund should be set aside; 2. There should be no compensation for the non-functioning dishwasher as it was repaired on 4 occasions; 3. There should be no compensation for the clothes hoist; and 4. The issue of the removal of the vanity door should have been addressed and compensation awarded to the appellants in the sum of $319. 1. In the First Notice of Appeal the appellant also said at item 11C the respondent should pay to the appellant compensation for damage caused to a downpipe in the sum of $160. Reply to appeal 1. The respondents filed a reply to appeal dated 20 August 2015. 2. The respondents' position can be summarised as follows: 1. an amount in respect of the vanity doors was included in the allowance of $474 in favour of the appellant, this total being made up of $155 in respect of mowing and cleaning and $319 in respect of the vanity unit; 2. the clothes hoist was broken because plastic hinges had deteriorated and was "useless" for more than two years and became extremely dangerous and needed to be removed, the costs of which were covered by the tenants; 3. in respect of the clothes hoist and the dishwasher, the landlord had not inspected the premises for a three-year period, as a result of which these defects had not been actioned; 4. the tenants did not receive water bills from 1 March 2011 until 1 July 2013 and did not receive any water bills for "quite a long time" after advising the real estate agent of this fact. Consequently the money for water rates should not have been deducted. In this regard the respondent say that it was not until after the tenancy was entered that they became aware of their "real rights under the tenancy agreement." Appellants' reply to the respondents' Reply to appeal 1. The appellants say they cannot identify any reference to the vanity doors in the orders made by the Tribunal. They also say that the claims in respect of carpet cleaning and the downpipe repairs totalling $410 were not addressed by the Tribunal. 2. In respect of the claim in connection with the clothes hoist, the appellants say that no evidence has been provided by the respondents to substantiate the claim. 3. In relation to the order for reimbursement of water charges, the appellants say that there is no power to make such an order and that the "Tenant's undue delay in seeking relief" in effect prevent such a claim from being made. Submissions 1. Various documents were provided by the parties as part of the appeal material. These documents included various invoices in respect of water usage and rent, the residential tenancy agreement, ledger statements relating to the payment of rent and other expenses, condition reports and photographs. 2. However, neither party provided a copy of the audio recording for the hearing on 24 March 2015. 3. The parties also provided various documents, some of which we have referred to above, setting out submissions in support of their respective positions. These submissions also dealt with the delay in filing the Notice of Appeal. It is convenient to deal with the respective submissions of each party in respect of the identified issues. Leave to appeal out of time 1. At the hearing, the appellants were represented by Mr Leslight. He was the agent for the landlords and responsible for managing the residential tenancy agreement with the respondents. Mr Gaffey, one of the respondents appeared in person. 2. Mr Leslight informed the Appeal Panel that on 20 April 2015 he first became aware of the orders made on 7 April 2015. He said he had been away overseas and did not see the orders until 20 April 2015. He indicated his agency was a large operation and the delay in lodging a Notice of Appeal was due to his oversight. He indicated there was a substantial amount of paperwork requiring his attention on return from leave. 3. Mr Leslight also indicated he was not at the original hearing due to other commitments and that an adjournment request he had made had been refused. Consequently he sent another representative of his firm to attend the hearing. He indicated the landlords were aware of but did not attend the hearing as they were located in Sydney. 4. In reply, the respondent said that they contacted the agent about 2 weeks after the decision to enquire as to when they were going to receive the money which they were owed pursuant to the orders. Mr Gaffey said he made enquiries about what was happening and no one rang back or told him they were appealing. Further, no one said to Mr Gaffey at this time that Mr Leslight was away on leave. Mr Gaffey was unable to contact the landlords personally as he had no contact details for them. 5. In relation to what occurred at the original hearing on 24 March 2015, the respondent indicated there was some agreement about various issues. However, the respondents challenged the claim in respect of water and sought compensation in respect of the dishwasher and clothes hoist not working. Water usage 1. In relation to the provision of the water usage accounts, it was common ground that the respondent had in fact paid various amounts in respect of water usage which had been received by the appellants being the amount of $3601.54 awarded by the Tribunal. The appellants appear to accept that the information required in respect of claims for water usage charges had been provided late but submitted that there was no entitlement for the Tribunal to make an order for reimbursement. In this regard the appellant submitted that neither section 39 nor section 47 of the RT Act gave the Tribunal power to order repayment of the water usage charges. 2. The respondents referred to a letter from the appellants' agent apparently sent in November 2013 (document 14 in the respondents' bundle) which encloses the water usage bills, some dating back to 2011, which reflect the amount the Tribunal allowed. The respondent also said that until the residential tenancy agreement was terminated they did not realise that there was no obligation to pay water usage charges in the absence of the landlord providing the Notice required by section 39 of the RT Act. Dishwasher and clothes hoist 1. In relation to the dishwasher, the appellant indicated that maintenance had been carried out on at least five occasions in 2009 and 2011. The appellant pointed to invoices (item 26 and the appellants bundle). The maintenance schedule (item 20 of the appellants bundle), confirms the dishwasher was not working on numerous occasions. 2. The respondent said that the dishwasher had not worked since about 2 weeks after the commencement of the residential tenancy, the first agreement being dated 3 August 2009. The effect of this submission was that the dishwasher failed to operate correctly and was not available for use various times throughout the residential tenancy. 3. In reply, the appellant accepted there were ongoing problems with the dishwasher and did not dispute that some compensation would be appropriate. 4. In relation to the clothes hoist, the appellants said it was removed by the respondents and that there was no evidence that the appellants' agent had been contacted in relation to the clothes hoist. The appellants said their application was to recover the cost to replace the clothes hoist which was there at the start of the tenancy agreement. 5. The Appeal Panel's attention was drawn to the incoming inspection report (respondent bundle item 19) which recorded the clothes line as "working but has cord broken". There was no outgoing inspection report to which the Appeal Panel was referred and the appellant accepted that no such report was prepared. 6. The respondents submitted that the clothes hoist had been broken for a period of two years, that contact had been made with the real estate agent, and that if inspections had been carried out the issue would have been acted upon. The respondents referred to the maintenance manual which showed that nothing was done after 2011. Consideration 1. The present appeal was lodged on 25 May 2015. The date the appellant received the decision, as recorded in the notice of appeal, was 20 April 2015. 2. Pursuant to section 80 (2) of the NCAT Act, the appellant has a right of appeal on a question of law and otherwise requires leave of the Appeal Panel. In this regard, because the proceedings relate to a decision of the Consumer and Commercial Division of the Tribunal, clause 12 of Schedule 4 of the NCAT Act provides that the Appeal Panel may only grant leave to appeal if satisfied that the appellant may have suffered a substantial miscarriage of justice. This clause requires the appellant to satisfy the Appeal Panel that: 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). 1. The proceedings to which the appeal relates are residential proceedings within the meaning of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules). Accordingly, rule 25 (4) (B) requires the appeal to be lodged within 14 days of the day on which the appellant was notified of the decision, unless the Appeal Panel grant an extension of time to appeal under section 41 of the NCAT Act. On the assumption that the amended orders were received on 20 April 2015, as stated in the notice of appeal, the time to lodge the appeal was 4 May 2015. Therefore the appeal was lodged three weeks late. 2. The principles in relation to the grant of an extension of time were set out in the decision of the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The Appeal Panel said at [22]: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal),- Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. Length of the delay 1. This case was heard by the Tribunal on 24 March 2015. At that time the appellants were represented by their agent No suggestion has been made to the Appeal Panel that the appellants did not have an opportunity to present their case. While the typed form of orders was subsequently amended by the Tribunal, no suggestion was made to the Appeal Panel that the Tribunal did not advise the parties at the hearing of all orders which had been made nor was any suggestion made that the Tribunal did not provide reasons for its decision. 2. Despite the directions from the Appeal Panel, the sound recording of the hearing on 24 March 2015 has not been placed in evidence as part of the appeal. In the absence of the sound recording it is not possible to evaluate the adequacy of the reasons of the Tribunal. Further, as no request for written reasons was made by either party, there is no basis for the Appeal Panel to infer that reasons were not given. 3. The First Notice of Appeal was filed on 25 May 2015. Even if it is accepted that the appellants received Notice of the Decision on 20 April 2015. The appeal was lodged 21 days out of time and was significantly late having regard to the 14 day period prescribed by Rule 25(4)(b) of the NCAT Rules. 4. This fact counts against the granting an extension of time. The reason for the delay 1. The appellant sought to explain the delay in filing the appeal because Mr Leslight, the agent who appeared at the hearing of the appeal (but not at the original hearing) had been away on leave when the amended orders had been received and had a backlog of paperwork. Counter to these facts is that the Tribunal made orders on 24 March 2015 (albeit the typed version published after the hearing were subsequently amended) and that the respondents had contacted the appellant's agent within two weeks of the hearing to enquire when they would be paid the amount of $2,270.99 awarded by the Tribunal. 2. In circumstances where the appellant had a representative at the original hearing and in circumstances where the respondents had contacted the appellants' agent seeking payment of the amount ordered by the Tribunal some two weeks after the decision, in our view the appellants have failed to adequately explain the reason for the delay in filing the Notice of Appeal in relation to a matter that was otherwise heard and determined on 24 March 2015. 3. This is a matter that counts against granting leave to extend the time to appeal. The appellant's prospect of success 1. The appellants say that the Tribunal's orders failed to deal with the door to the vanity units and the downpipes, being claims of the landlord that were not mentioned in the orders. The problem with this submission is that it was unnecessary for the Tribunal to make any orders in relation to claims by the landlord which the Tribunal was not allowing and Order 2 makes clear what amounts were being allowed in favour of the appellant in respect of the claims and for what items. In the absence of the appellants providing the sound recording and/or requesting written reasons in respect of the decision there is no basis to conclude the Tribunal did not consider all claims by the appellants in making orders on 24 March 2015. 2. This matter counts against the grant of an extension of time. 3. In relation to carpet cleaning, the appellants' original application seeks $250 for carpet cleaning and $155 for mowing and edges and cleaning, a total of $305. An award was made in favour of the appellants for cleaning in the sum of $474. The submission that the Tribunal did not consider the claim for cleaning is not made out and no relevant error is shown. 4. The prospects of success in relation to the water usage accounts and the award in respect of the dishwasher and clothes hoist need to be considered separately. Water usage 1. The obligations of a tenant in respect of the payment of water usage charges are regulated by s39 of the RT Act. This section is a term of every residential tenancy agreement. It is appropriate to set this section out in full. 39 Water usage charges payable by tenant (1) A tenant must pay the water usage charges for the residential premises, but only if: (a) the premises are separately metered or the premises are not connected to a water supply service and water is delivered to the premises by vehicle, and (b) the premises contain water efficiency measures prescribed by the regulations for the purposes of this section, and (c) the charges do not exceed the amount payable by the landlord for water used by the tenant. (2) A tenant is not required to pay the water usage charges unless the landlord gives the tenant a copy of the part of the water supply authority's bill setting out the charges, or other evidence of the cost of water used by the tenant. (3) A landlord must give the tenant not less than 21 days to pay the water usage charges. (4) A tenant is not required to pay the water usage charges if the landlord fails to request payment from the tenant within 3 months of the issue of the bill for those charges by the water supply authority. (5) Subsection (4) does not prevent a landlord from taking action to recover an amount of water usage charges later than 3 months after the issue of a bill for those charges, if the landlord first sought payment of the amount within 3 months after the issue of the bill. (6) A landlord must ensure that the tenant receives the benefit of, or an amount equivalent to, any rebate received by the landlord in respect of any water usage charges payable or paid by the tenant. Note. Tenants under social housing tenancy agreements may be subject to different provisions in relation to the payment of charges for water usage (see Division 3 of Part 7). (7) This section is a term of every residential tenancy agreement. (6) A landlord must ensure that the tenant receives the benefit of, or an amount equivalent to, any rebate received by the landlord in respect of any water usage charges payable or paid by the tenant. Note. Tenants under social housing tenancy agreements may be subject to different provisions in relation to the payment of charges for water usage (see Division 3 of Part 7). (7) This section is a term of every residential tenancy agreement. 1. As is evident from s39 (2) of the RT Act, a tenant is not required to pay water usage charges unless the tenant is given a copy of the part of the water supply authority's bill setting out the charges or other evidence of the costs of the water used. Section 39 (4) of the RT Act provides that the tenant is not required to pay water usage charges if the landlord fails to request payment within 3 months of the issue of the bill. 2. It is common ground that the relevant bills were not provided to the respondents until a considerable period of time after payment had been made. Further, the appellants did not appear to dispute in the appeal that there was no obligation for the respondents to pay the water usage charges. Rather, the appellants said that the water usage charges had in fact been paid and the point raised on appeal was that there was no power of the Tribunal to order repayment. 3. In our view there are two reasons why the appellants challenge to the power of the Tribunal to make an order for repayment should be rejected. 4. First, as made clear by s 39 (7) of the RT Act, the obligations of a tenant to pay water usage charges is regulated by section 39 of the RT Act which is a term of the residential tenancy agreement. In requiring payment of water usage charges and failing to comply with its obligations under s39 of the RT Act by providing water usage bills a landlord breaches this term of the residential tenancy agreement. A tenant is entitled to compensation for such breach or an order for restitution. 5. Secondly, s47 of the RT Act gives the Tribunal power to make an order requiring a landlord to repay to a tenant any amounts for rent or excess charges which are not required to be paid under the RT Act or the residential tenancy agreement. Section 47 is in the following terms: 47 Tenant's remedies for repayment of rent and excess charges (1) Requests to landlord A tenant may make a written request to the landlord that the landlord repay to the tenant any rent, or other amounts, paid by the tenant that are not required to be paid under this Act or the residential tenancy agreement. (2) A request may be made during or after the termination of a residential tenancy agreement. (3) A landlord must, within 14 days of a written request by a tenant, repay to the tenant the amount of any rent or other amount paid in excess of the amount payable by the tenant under this Act or the residential tenancy agreement. (4) Tribunal orders A tenant may apply to the Tribunal for an order for the repayment of rent or any other amount paid by the tenant if a written request by the tenant for payment is not complied with by the landlord within 14 days. (5) The Tribunal may order that rent or any other amount be repaid to the tenant if it finds that the rent or amount was not required to be paid by the tenant under this Act or the residential tenancy agreement. 1. The request for repayment can be made by the tenant "during or after the termination of a residential tenancy agreement": see 47(2). A tenant may apply to the Tribunal for an order for repayment if the request is not complied with by a landlord 14 days after it is made in writing: see s47(2). 2. No suggestion was made nor is any evidence adduced in the appeal that a relevant written request had not been made. 3. It is clear from the terms of Order 2 that the Tribunal had regard to the provisions of s39(2) and (4) of the RT Act which form the basis of the order for repayment of water usage charges. It follows that the submission that the Tribunal had no power to make an order for reimbursement in the present circumstances has no reasonable prospects of success. 4. This is a matter that counts against the grant of an extension of time. Dishwasher and clothes hoist 1. The final issue to deal with is the compensation award in respect of the dishwasher and the clothes hoist. 2. In relation to the dishwasher, the material before the Appeal Panel is sufficient to demonstrate that the dishwasher had not worked at numerous times throughout the residential tenancy agreement and had been subject to repairs. From the submissions made it appears there was competing evidence as to the frequency of the failure of the dishwasher in respect of a tenancy which had been in existence since at least November 2009 (see for example appellants' spreadsheet setting out maintenance work to the residential premises and respondents' submissions referred to above). However all evidence was not provided to the Appeal Panel: eg the sound recording. 3. Be that as it may, there is no dispute the dishwasher was a facility provided as part of the residential tenancy agreement. It follows that if it failed to work the respondents were entitled to have it rectified and/ or claim compensation in respect of their inability to use the dishwasher. It is clear from the fact an award was made in favour of the respondents that the Tribunal considered they had suffered loss and damage and made an award in respect of the fact that the dishwasher could not be used. 4. Similarly, in the case of the clothes hoist, the common evidence discloses that the clothes hoist was broken at the commencement of the tenancy: see the incoming inspection report referred to above. It is also common ground that the tenants removed the clothes hoist because, they said, it further deteriorated over the life of the tenancy and constituted a dangerous hazard. 5. The respondents' submission is supported by a statement of Melissa Kavanagh dated 28 January 2015, being item 21 of the respondents' bundle. No suggestion was made by the appellants that this evidence was not before the Tribunal at the original hearing. In that statement Ms Kavanagh says: During the past 4 years I have visited 82 Maloneys drive, Maloneys Beach and have witnessed during these visits the damage to the clothesline. From what I saw the clothesline broke due to the plastic hinges perishing and becoming brittle making them unable to hold the weight of the attached arm. The hinges breaking made the clothesline useless and dangerous. 1. Again, in the absence of the sound recording of the original hearing it is unclear what, if any evidence the appellants provided in response to this material. There is no evidence before the Appeal Panel to the contrary. However, what is clear is that the Tribunal evaluated this evidence and made an award in favour of the respondents because the clothes hoist, which was also a facility provided as part of the residential tenancy agreement, could not be used. 2. The appellants submitted that the Tribunal did not take account of the fact that the clothes hoist had been removed and that the landlord should be compensated for this fact. However, in the absence of the sound recording setting out any reasons for decision and in the absence of a request for written reasons it is not possible for the Appeal Panel to conclude that such a failure has occurred. 3. Further, on the basis of the evidence before the Appeal Panel there is no reason to conclude that an order for compensation would have been made in favour of the appellants in respect of the clothes hoist. While the appellants claim the cost of a new clothes hoist, the evidence before the Appeal Panel discloses the existing clothes hoist that was removed had significantly deteriorated, was dangerous and needed to be replaced. Consequently, the claim as made by the appellants is unlikely to succeed as the Appeal Panel and/or the Tribunal would be unlikely to make an award for compensation equivalent to the cost of replacement of the clothes hoist. 4. The conclusions of the Appeal Panel in respect of the dishwasher and the clothes hoist count against the grant of an extension of time 5. One final matter which needs to be dealt with is whether or not the respondents' claims before the Tribunal were made in time. 6. During the course of the appeal, the Appeal Panel drew the parties' attention to regulation 22(9) of the Residential Tenancy Regulation, 2010 (the RT Regulation). This regulation requires applications for breach of the residential tenancy agreement to be brought within 3 months of the breach. 7. The breaches identified appear to have occurred over the life of the residential tenancy agreement. While there may be a series of continuing breaches, to the extent that any awards for damage arose from breaches occurring more than 3 months before the application was filed, such claims could not be pursued unless the Tribunal made an order extending the time to do so. 8. Again, in the absence of the sound recording or any written reasons, the Appeal Panel is unable to conclude whether or not this issue was considered by the Tribunal in making its award for compensation and/or whether an order was made extending time. 9. On balance, and in circumstances where there is no real dispute concerning the fact the dishwasher and clothes hoist were defective at various times throughout the tenancy and having regard to the fact that the amount of compensation awarded was $915 we are not satisfied that there is any substantial issue in dispute which warrants the Appeal Panel extending the time in which to file the Notice of Appeal. 10. Accordingly, leave to extend the time to appeal is refused. Orders 1. The Appeal Panel makes the following orders: 1. Leave to extend the time in which to lodge the Notice of Appeal is refused. 2. The appeal is otherwise 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: 17 June 2016