Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kostadinovic v Milder [2016] NSWCATAP 237 Hearing dates: 11 July 2016 Date of orders: 08 November 2016 Decision date: 08 November 2016 Jurisdiction: Appeal Panel Before: J. Harris SC Senior Member S Thode Senior Member Decision: (1) The decision under appeal is set aside. In lieu thereof we make the following order: (2) The tenant Ms Sanela Kostadinovic shall pay to Dan Milder the sum of $303.58 immediately Catchwords: APPEAL - Residential Tenancies - Legislation Cited: Residential Tenancies Act 2010 Category: Principal judgment Parties: Sanela Kostadinovic (Appellant) Dan Milder (Respondent) Representation: Solicitors: Sanela Kostadinovic (Appellant in person) Tenant Advocate, K Flaifel (Respondent) File Number(s): AP 16/20215 Decision under appeal Court or tribunal: NSW Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Date of Decision: 14 April 2016 Before: F Holles, Tribunal Member File Number(s): RT 15/66121 Court or Tribunal: NSW Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Date of Decision: 14 April 2016 Before: F Holles, Tribunal Member File Number(s): RT 15/66121 Reasons for decision 1. The applicant appeals from a decision of the Consumer and Commercial Division of the Tribunal made on 14 April 2016 and amended pursuant to section 63 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) on 18 April 2016. The orders of the Tribunal at first instance were that the appellant (the tenant at first instance) pay to the respondent (the landlord at first instance) the sum of $633.58 on or before 29 April 2016 and that the Rental Bond Board be directed to pay to the respondent the whole of the bond plus any interest with any amount received to be credited against the money order referred to above. 2. The amount of the money order was arrived at as follows: (1) Rental arrears $978.58 (2) Flea treatment $165.00 (3) Cleaning $440.00 (4) Rubbish removal $330.00 (5) Less amount recovered from bond $1280.00 (6) Balance $633.58 1. The Notice of Appeal is expressed as an appeal for which leave is required. No error of law is specified and leave is sought. The grounds of appeal are as follows: "The Member did not place sufficient weight on my evidence as to the claim of damages by the landlord – the Member did not view my video and the member did not fully consider my oral evidence. The member did not consider comments I made on the ingoing condition report." 1. Both parties filed bundles of documents and submissions which essentially reproduced the documents filed at first instance. 2. Section 80 of the NCAT Act makes clear the nature of Internal Appeals. Subsection 80 (2) (b) permits an appeal as of right on a question of law. The applicant here does not apply on that basis. Alternatively, if grounds other than a question of law are relied upon, there is no right of appeal and leave is required. Schedule 4, Clause 12 of the NCAT Act provides relevantly that the Appeal Panel will have a discretion to 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, or 2. the decision of the Tribunal under appeal was against the weight of evidence". 1. In this regard we would refer to the decision of the Appeal Panel in Collins v Urban [2014] NSWCATAP 17, particularly at paragraphs 80 to 81 and 84. 2. The Notice of Appeal in this instance is instructive. It is an example of what is not permissible, i.e., to try to run the case again in the hope that a differently constituted Tribunal will place greater weight on one's evidence the presentation of which may be improved and supplemented following the first instance experience. 3. Nonetheless, at the heart of the appellant's appeal is a complaint that a video which she had taken herself on the day that she vacated for the purpose of recording the state of the premises was not viewed by the member at first instance. She had sought that it be viewed and the member declined. Before us, there was disagreement as to the basis of his refusal. The respondent said it had not been served and there was no objective evidence of when it was taken. The appellant said it was served. We have not been favoured with either an audio recording or a transcript of the 1st instance proceedings so we can only note that it could not be viewed as the member records in his reasons. Why that was so was not disclosed. Nonetheless, it is clear that the member did consider whether he ought received the video as evidence and he decided that he ought not. 4. Despite the unsatisfactory presentation of the appeal, it seemed to us that it may have been that an error of law could have been demonstrated in the decision not to consider the video had the appellant had the benefit of advice informed by the record of what happened at first instance. 5. Alternatively, it may have been that a basis for finding a miscarriage of justice may have been disclosed by the bundles of documents sought to be relied upon by the appellant and for those reasons we decided we should receive the bundles submitted on the appeal and consider them. They were marked as exhibits on the appeal respectively 1 and 2 for the appellant and A for the respondent. Rental Arrears 1. As for the finding that the appellant should pay rental arrears up to the time of termination (19 December 2016) of $978.58, the appellant's submission was that the calculation was incorrect by one day and should be reduced. The respondent submitted that rent was payable in advance and that the calculation was based on the rent ledger which was in evidence and that it was correct. This ground of appeal concerns an error of fact and leave is required. We are unable to discern an error and we are not persuaded that there has been a miscarriage of justice in this regard. Flea Treatment 1. As for the finding that the appellant should pay $165 for the premises to be treated for fleas, the appellant's submission was that the respondent's evidence should not have been accepted as reliable, that it was not established that a flea treatment was necessary and that in any event, $165 was excessive. The appellant argued that she had never kept a pet in the premises and there was no need for a flea treatment. The respondent pointed to evidence which was before the member to the effect that she had kept a rabbit. The evidence was to be found in letter from one Ramin Mithun dated 26 November 2015 which was reproduced before us in Exhibit 1 at page 51. The evidence may be described as not strong and we concede that minds may differ as to whether it was established that she had kept a pet rabbit. However, the law is clear and has been recently stated by the appeal panel in Collins v Urban (supra) at paragraph 84 as follows: "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 bone fide challenge to an issue of fact". 1. In other words, demonstrating that minds may differ is not enough. 2. The appellant pointed to the invoice from Corporate Pest Management Pty Ltd which was tendered before the member by the respondent. It is dated 22 January 2016. She submitted that the respondent's evidence had been that the flea treatment was carried out on 22 January 2016 whereas the invoice specified that it had been done on 6 January 2016. Thus, she argued, the respondent's evidence was erroneous as to the date of the service and should have been given no weight. The respondent submitted that he may have erred as to the date but the treatment was undertaken and the cost incurred. 3. The appellant further argued that the charge was excessive and sought to refer us to a quotation she had obtained for $90 for a comparable flea treatment dated 28 April 2016. Clearly this was not in evidence before the member at first instance. The appellant has not demonstrated why this evidence was not reasonably available at the time of the first instance hearing. Whilst we have received the quote, it does not persuade us that the $165 awarded by the member gave rise to an error. 4. We are not persuaded that any reason is disclosed for concluding that there has been a miscarriage of justice with respect to the finding and this ground of appeal is also dismissed. Cleaning 1. That brings us to that part of the member's order which concerned the respondent/landlord's claim for a cleaning charge of $440. The appellant's argument is that she left the premises clean, that her video showed that that was so and that the member's decision not to receive the video or view it was unfair and led to a decision which should be regarded as against the evidence. She referred to the ingoing inspection report dated 26 September 2012 which was reproduced before us in exhibit B at page 1. She also referred to the invoice for cleaning reproduced in exhibit 1 at page 12, i.e., an invoice from Aladin's Cleaning Services (NSW)P/L dated 19 January 2016. The appellant argued that it did not particularise what cleaning was actually done and that it appeared to conflict with the evidence given by the agent to the effect that the cleaning had been carried out on 28 December 2015. For these reasons, she argued, the evidence was unreliable and that the evidence of her video should have been received and preferred with the effect that the tribunal ought to have concluded that no cleaning was required. 2. The Appeal Panel decided to view the video. The wide angled footage taken on the appellant's phone did not offer close ups of areas where dirt or dust may be found. Whilst it showed that the premises appeared to be tidy and not obviously in need of cleaning, in our opinion it was not sufficiently detailed to enable us to conclude that the items in the Aladin's Cleaning invoice were not required. 3. In the result therefore, whether or not there was an error of law in not receiving the video into evidence, we have now viewed it and we are not convinced that on all of the evidence the conclusion arrived at by the member was against the weight of the evidence or was not fair and equitable. We are not satisfied that there may have been a miscarriage of justice. Rubbish Removal 1. The next award challenged was a charge of $330 for rubbish removal. There were two limbs to the appellant's argument. 2. With the assistance of a member of the Tenants Support Service, the appellant argued that she left no rubbish at all in the unit. This is supported by the video evidence. She had left some items of used furniture on the nature strip adjacent to the land which the premises occupied. She said that was by arrangement with her neighbours so that they could take the items of used furniture at their convenience over the weekend. 3. She argued that by placing items on the nature strip, she had complied with her obligations under subsection 51 (3) of the Residential Tenancies Act to remove her goods or any rubbish from the "residential premises"; therefore, the respondent/landlord had no right to require her to pay for its removal. 4. The second limb of her argument was that the evidence did not establish that any rubbish that had been removed from the nature strip was in fact hers. Whilst the appellant did not deny that some of the items requiring removal were hers, the landlord's photographs tendered against her showed that over the course of the weekend other items had been placed on the nature strip that did not belong to her. 5. Aladin's Cleaning Services (NSW) P/L invoice dated 19 January 2016 in the sum of $330 for rubbish removal was in evidence. It did not specify when the work was actually performed. The respondent/landlord's evidence had been that he engaged Aladin's to remove rubbish on 21 December 2015, had taken photographs of the rubbish on that date which were reproduced in evidence before the member and before us in Exhibit 1 and that the rubbish was removed on 23 December 2015. 6. In reply, the appellant submitted that photographs relied on by the landlord's agent could not have been taken on the dates alleged, and that Council records showed that some rubbish had been removed early in the New Year but the records were not capable of proving that the rubbish was not hers. In particular the appellant denies having left a sofa chair on the nature strip and in support of her argument tendered two photographs of a sofa in her current residential premises. 7. Section 51(3) of the Residential Tenancies Act 2010 is set out as follows: On giving vacant possession of the residential premises, the tenant must do the following: (a) remove all the tenant's goods from the residential premises, (b) 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, (c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy, (d) remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy, (e) return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant. (4) In this section: "residential premises" includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant. 1. It is the submission of the appellant that the member erred at law when he ordered damages for costs incurred for removal of rubbish left on the nature strip. 2. Whilst this is not articulated as such, we consider that the appellant's argument has raised two possible errors. First, the member erred in law when he found the tenant liable for a breach of the residential tenancy agreement for rubbish left outside the residential premises on the footpath. 3. In order for the landlord to succeed there must be a finding that rubbish left on the nature strip constitutes a breach of the residential tenancy agreement. Considering the residential tenancy agreement, the only provision touching on the removal of rubbish is contained in clause 17: 17. The tenant agrees, when this agreement ends and before giving vacant possession of the premises to the landlord: 17.1 to remove all the tenant's goods from the residential premises, and 17.2 to leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy, and 17.3 to leave the residential premises reasonably clean, having regard to their condition at the commencement of the tenancy, and 17.4 to remove or arrange for the removal of all rubbish from the residential premises, and 1. The member's reasons did not identify the relevant clause of the residential tenancy agreement or the nature of the breach found. We are satisfied that the failure to identify the breach constitutes an error of law. Further, in light of the restrictive wording of clause 17 we are of the view that no breach of the agreement could be established on the facts as the nature strip does not form part of the residential premises. 2. The definition of residential premises is contained in section 3 of the Act "residential premises" means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence. 1. A broader or additional definition of "residential premises" is contained at s 51(4): (4) In this section: "residential premises" includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant. 1. We consider that the nature strip was not for use by the tenant, and did not form part of the residential premises, whether under agreement or not. 2. In light of these findings we are satisfied that an error of law has been established. Rather than remitting the application to the Tribunal for further consideration we are satisfied on the evidence that the landlord's claim for damages in respect of the rubbish removal has not been established and that the order made by the member should be varied pursuant to s 81(1)(c) of the Civil and Administrative Tribunal Act 2013. Orders 1. The decision under appeal is set aside. In lieu thereof we make the following order: 2. The tenant Ms Sanela Kostadinovic shall pay to Dan Milder the sum of $303.58 immediately. 3. For these reasons, the appeal is allowed, and the decision under appeal is quashed and another decision as set out in 34 above is substituted for it. . ********* 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. 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