Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tancred v Millar Properties Pty Ltd [2016] NSWCATAP 222 Hearing dates: 26 September 2016 Date of orders: 06 October 2016 Decision date: 06 October 2016 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Fairlie, Senior Member Decision: (1) The time for filing the Notice of Appeal is extended to 8 July 2016; (2) Leave to appeal refused; and (3) The appeal is dismissed Catchwords: APPEAL – leave – clause 12 Schedule 4 Legislation Cited: Residential Tenancies Act, 2010 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Matthew Tancred (Appellant) Kellie Nagel (Appellant) Millar Properties Pty Ltd (Respondent) Representation: Appellant: Miss Nagel Respondent: Miss Soemardi File Number(s): AP 16/31799 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 16 June 2016 Before: K Holwell, General Member File Number(s): RT 15/54811 reasons for decision Background 1. This is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal on 16 June 2016. The Tribunal made an order that the appellants were to pay to the respondent the sum of $2,863.71 and the appellants appeal that order. 2. The dispute between the parties arose out of a residential tenancy agreement. We shall refer to the appellant's as the "tenants" and to the respondent as the "landlord". 3. The tenancy agreement came to an end on 20 August 2015 and the landlord then commenced proceedings against the tenants for compensation arising out of alleged damage to the property, the subject of the tenancy. 4. The decision which is the subject of this appeal (which we will refer to as "the Decision") records that the landlord made claims for compensation in respect of 53 items which were the subject of a report prepared by the landlord and headed "Schedule of Issues". The Decision found the tenants liable to the landlord for some items and not liable for other items. In respect of those items for which the Tribunal found the tenants liable the following summary is helpful in understanding the background to this appeal: Items Amount allowed by the Tribunal Cleaning (items 1, 2, 4, 5, 26, 38, 47 and 48) $84.00 Smoke alarm (items 3 and 35) $71.50 Replacement of blinds (items 16 and 49) $375.83 Painting (items 15, 17, 19, 25, 31, 33, 37, 40, 41 and 43 $606.21 Carpet replacement (items 11 and 32) $1,516.67 Replacing light bulbs $159.50 Repairs (items 6 and 7) $50.00 Total: $2,863.71 1. The schedule referred to in the Decision listing 53 "complaints" contains the items referred to above. 2. At the hearing the tenants indicated they would not pursue the appeal in respect of the award concerning the smoke alarms ($71.50), the light bulbs ($159.50) or items 6 and 7 ($50.00). Through Ms Nagel (who represented herself and the other tenant) the tenants acknowledge that the landlord was entitled to some compensation for painting but not the amount claimed or awarded and, similarly, they acknowledged some liability for blinds but not the amount claimed or awarded. The other claims were objected to in their entirety. Grounds of Appeal 1. Before we described the grounds of appeal it is relevant to mention the following chronology which appears to be accepted by both the tenants and the landlord: 1. The landlord conducted an inspection of the premises on 23 July 2015 and sent an email to the landlord's agent on the same day. The email states that during an inspection "we noticed a few things that we will require rectified when the tenants vacate in September". Then follows mention of holes drilled in a wall in connection with the installation of a Foxtel dish. In addition there is reference to damage arising by reason of curtain rods having been drilled into a wooden celling and beams; 2. On 25 August 2015 the landlord's agent (Lois Buckett) forwarded to the tenants an "exit inspection report" together with a covering email of the same date. The email listed a number of items required "to be attended to" by 27 August 2015; 3. The tenants then undertook some remedial work to the premises; and 4. In early September 2015 the landlord took physical possession of the property and based on an inspection which occurred on 5 September 2015 prepared its own list of items requiring attention. This list became the Schedule of Issues containing 53 items together with accompanying photographs. The tenants say they first received the schedule and photographs on or about 7 October 2015. 1. The tenants submit that the exit inspection report which required them to rectify certain items by 27 August 2015 did not contain many of the items which were included in the Schedule of Issues received on 7 October 2015. The tenants say they were not aware of, or given, any opportunity to inspect the premises or to rectify the items which appeared in the second report but which were not in the exit inspection report; 2. The tenants refer to s 29 of the Residential Tenancies Act, 2010 (RT Act) which states that upon the termination of a residential tenancy agreement, the landlord or landlord's agent and the tenant must complete a copy of the condition report retained by the landlord or the tenant under this section in the presence of the other party. The tenants say (as stated above) that they were under the understanding that the exit inspection report contained the obligations which they were required to comply with but that they had no opportunity to assist in the preparation of the subsequent Schedule of Issues and nor were they given an opportunity to remedy any defects contained in that document. 3. The tenants submit that the Decision is therefore unjust in making them liable for items which were not contained in the exit inspection report. 4. The tenants submit that they should have leave to appeal on the basis that they have suffered a substantial miscarriage of justice arising by reason of the Decision not being fair and equitable and further arising because the Decision was against the weight of evidence. In particular the tenants submit that more weight should have been given to the exit inspection report, particularly as it was given by a third party (i.e. the agent) at the end of the tenancy. In addition, more weight should have been given to the provisions of s 29 of the RT Act referred to earlier. 5. There other grounds (namely concerning fraudulent use of photographs, a claim for cleaning and a claim for painting) which were raised as well. 6. The Notice of Appeal was filed on 8 July 2016. The tenants state that they received the Decision on 22 June 2016. The deadline for filing the Notice of Appeal was therefore 6 July 2016 (see r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the Rules). However, time can be extended. Reply to appeal 1. The landlord supports the original Decision and submits that leave for the tenants to appeal should be denied. 2. The landlord states that there has been no breach of obligations under s 29 of the RT Act. An exit inspection report was carried out by Lois Buckett Real Estate on 24 August 2015 and that report was provided to the tenants. 3. In the Reply the landlord states that items additional to those identified in the exit inspection report were discovered upon an inspection of the premises by the landlord on 5 September 2015 and that these were items which were missed by Lois Buckett Real Estate. The landlord submits that there is no provision in the RT Act that restricts a landlord's claim against a tenant for damages to the matters contained in the exit inspection report. The landlord refers to s 30(1) of the RT Act which states that a condition report that is signed by both the landlord and the tenant is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the day specified in the report. The reference to "evidence to the contrary" is, so it is submitted by the landlord, illustrative of the fact that a landlord may produce further evidence for consideration by the Tribunal in addition to the evidence contained in the exit inspection report. Appeal hearing 1. At the hearing of the appeal both parties amplified on their respective positions as outlined above. Decision 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (the Act) provides that an appeal against an internally appealable decision may be made to an Appeal Panel and that such an appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. This provision is modified by cl 12 of Sch 4 of the Act which provides as follows: 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). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if: (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. The only question of law identified by the tenants is whether s 29 of the RT Act has been breached by the landlord, and if so, whether the landlord is precluded from relying upon the report prepared by the landlord (i.e. the Schedule of Issues and photographs) and which became the evidentiary basis for the landlord's application against the tenants. In our view, the fact that the parties did not comply with s 29(4) of the RT Act by completing the copy of the condition report after the termination of the tenancy did not preclude either party from relying upon evidence produced by either of them in support of their respective positions. In this case there was no jointly signed condition report prepared at the termination of the tenancy. Rather, the landlord's agent produced a report and submitted it to the tenants. Subsequently, after the end of the tenancy, the landlord sought to rely upon further evidence (which the landlord had itself prepared) as the basis for its claim against the tenants for compensation. In our view, there is nothing in the RT Act which preludes the landlord from undertaking such steps. A tenant is, of course, free to put forward his or her own evidence in opposition to the landlords evidence and such evidence may include the earlier report prepared by the landlord's agent. In this case, we understand the tenants drew to the attention of the Tribunal the existence of the exit condition report and also gave oral evidence. 2. Insofar as the appeal is based upon cl 12 of Sch 4 it is necessary for us to explain how that clause has been interpreted by Appeal Panels of this Tribunal. The key decision in this respect is the decision in Collins v Urban [2014] NSWCATAP 17. The relevant and essential elements of that decision are as follows: 1. The Tribunal may grant leave to appeal if it is satisfied that the appellant may have suffered a substantial miscarriage of justice. What constitutes a "substantial miscarriage of justice" is a case in which there has been a failure in the way the case was conducted or decided which deprived the appellant of a chance which was fairly open to him (or her) of achieving a better outcome than the outcome which occurred. If any of the circumstances referred to in cl 12(1)(a), (b) or (c) have occurred such that there is a significant possibility or a chance which was fairly open that a different and more favourable result would have been achieved for the appellant (in this case the tenants) had the relevant circumstances set out in paragraphs (a,) (b) or (c) not occurred then there may have been a substantial miscarriage of justice. 1. In this case, the Decision relied upon the Schedule of Issues prepared by the landlord containing 53 complaints. The Decision demonstrates that the Tribunal carefully considered each of the 53 items. Some items were resolved in favour of the landlord, others dismissed and some items were reduced in amount but otherwise incorporated into the order made in favour of the landlord. In our view there has been no denial of procedural fairness and it was not impermissible for the Tribunal to consider the landlord's evidence notwithstanding the fact that an earlier exit condition report had been prepared by the landlord's agent. Accordingly, in our view the Decision cannot be described as not fair and equitable. 2. Where it is said that a decision is against the weight of evidence, the decision in Collins v Urban states that it is necessary for the Appeal Panel to decide that 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". We are not satisfied that the Decision ignores or fails to take account of any evidence which when considered with the landlord's evidence leads to the conclusion that the evidence in its totality preponderates so strongly against the conclusion actually found by the Tribunal. The Tribunal had before it the landlord's Schedule of Issues, the earlier less detailed exit condition report and the tenants' evidence. There is nothing to suggest that the Decision could be described as one which a reasonable Tribunal Member could not reach. 3. In Collins v Urban the Appeal Panel also stated that if an Appeal Panel is satisfied that the appellant seeking leave to appeal may have suffered a substantial miscarriage of justice on one of the grounds identified in cl 12(1)(a), (b) and (c) then the Appeal Panel may grant leave but is not obliged to do so. The principles which would require the Appeal Panel to grant leave in such circumstances are these: 1. The appellant must demonstrate something more than 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. Ordinarily it is appropriate to grant leave only in matters that involve: 1. Issues of principle; 2. Questions of public importance or matters of administration or policy which might have general application; 3. 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 unjust to allow the finding to stand; 4. A factual error that was unreasonably arrived at; or 5. The Tribunal having gone about the fact finding process in such an unorthodox manner or in a way that it was likely to produce an unfair result so that it would be in the interests of justice for the decision to be reviewed. 1. Here, the only relevant consideration is whether an injustice has occurred, being one which is reasonably clear so that it would be unjust to allow the finding made by the Tribunal to stand. The matters identified above (a), (b), (d) and (e) are not relevant. 2. We are of the opinion that the decision could not be characterised as producing an injustice or an error that is plain and readily apparent. Rather, the Decision is reasonable having regard to the evidence put before and considered by the Tribunal. 3. We are therefore of the view that the tenants have not suffered a substantial miscarriage of justice. 4. We refer to the other grounds identified in the Notice of Appeal concerning photographs, cleaning and painting and make the following comments: 1. The tenants also submitted that the landlord has been fraudulent by using photographs taken prior to the tenants undertaking remedial work. The landlord disputes this and has provided evidence that the photographs relied upon were taken on 5 September 2015. The tenants were not able to disprove that assertion and accordingly we do not regard this submissions as one which the tenants are able to successfully make out; 2. The tenants also submitted that the landlord's claim for cleaning was fraudulent and referred to an email from Paradise Cleaning. In our view, the email does not support the tenants' submission. The amount claimed was consistent with that company's invoice; and 3. The tenants also submitted that the landlord used a painting quote fraudulently because the painter acknowledged that "there was a workmanship issue". The Decision made it clear that this issue was drawn to the attention of the Tribunal and accordingly the amount awarded was reduced. There is therefore no basis to the tenants' submission. 1. Accordingly, we propose to dismiss the appeal and to the extent the appeal relies upon cl 12, to refuse leave. 2. The appeal was filed two days out of time. We are able to extend the time for filing the appeal: see s 41 of the Act. The delay is very short and there is no prejudice to the landlord in extending time. Orders 1. Accordingly the Appeal Panel makes the following orders: 1. The time for filing the Notice of Appeal is extended to 8 July 2016; 2. Leave to appeal refused; and 3. 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: 06 October 2016