Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Li v Zhang & Ors [2016] NSWCATAP 268 Hearing dates: 23 November 2016 Date of orders: 21 December 2016 Decision date: 21 December 2016 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member D Robertson, Senior Member Decision: 1. The decision of the Tribunal made on 2 September 2016 in proceedings RT 16/36209 is confirmed. 2. The stay granted on 27 September 2016 in respect of the payment of $475 is lifted. Catchwords: APPEAL: Set aside decision – Whether error on question of law – Adequacy of reasons – Whether decision under appeal should be confirmed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Marko Li (Appellant) Mingdi Zhang, Ran An, Gezhou Xu and Yang Gao (Respondents) Representation: M Li (Appellant in person) M Zhang (Respondent in person) File Number(s): AP 16/40788 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 02 September 2016 Before: P Boyce, Senior Member File Number(s): RT 16/36209 reasons for decision Introduction 1. Marko Li appeals against a decision of the Consumer and Commercial Division of the Tribunal in relation to an application by Mingdi Zhang, Ran An, Yang Gao and Gezhou Xu for return of a rental bond for residential premises at xxx Shoreline Drive Rhodes NSW. In these reasons Mr Li is referred to as the landlord, and the respondents as the tenants. 2. In his Notice of Appeal the landlord stated that he was appealing against the determination made on 2 September 2016 in matter number RT 16/36209, identifying as the order challenged on the appeal: "The stay order is lifted and the landlord is ordered to pay the tenants a sum of $975". 1. Matter number RT 16/36209 was an application made by the landlord on 9 August 2016 to set aside an earlier decision of the Tribunal made on 2 August 2016, in matter number RT 16/29894. In those proceedings, an application by the tenants pursuant to s 175 of the Residential Tenancies Act 2010 (the RT Act) for return of the rental bond paid to the landlord, the Tribunal had ordered that the landlord pay the tenants the sum of $975, being the amount retained by the landlord from the $3,550 rental bond after repayment of $2,575. 2. At the hearing of the appeal the landlord confirmed that he is appealing against the decision of 2 September 2016 in matter RT 16/36209 refusing his application to set aside the original decision of 2 August 2016. 3. The power of the Tribunal to set aside a decision that determined proceedings is conferred by cl 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) (the Regulation). As explained by the Appeal Panel in Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [25]-[40], a decision on an application pursuant to cl 9 to set aside an original decision in the general jurisdiction of the Tribunal within the meaning of s 29(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) is a "decision made … in proceedings for a general decision" within s 32(1) and thus an "internally appealable decision" within the meaning of s 32(4) of the Act. A set aside decision under cl 9 is an "ancillary decision" as defined in s 4 of the Act. Accordingly, the landlord's appeal against the decision on the set aside application falls within s 80(2)(b) of the Act, so that the appeal may be brought as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 4. This appeal is brought from a decision of the Consumer and Commercial Division, and so cl 12 of Sch 4 to the Act applies: 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. The decision the subject of the appeal was a decision made in residential proceedings as defined in rule 3(1) of the Civil and Administrative Tribunal Rules 2014 (the Rules). The appeal was lodged on 9 September 2016, within the 14 day period prescribed for an internal appeal against a decision made in such proceedings. The landlord was respondent to the proceedings in which the original application was made by the tenants, formerly tenants under a residential tenancy agreement for the residential premises owned by the landlord, and the applicant in the set aside application. The Appeal Panel has jurisdiction to determine the appeal. The proceedings at first instance 1. It was not in dispute that the tenants and the landlord were parties to a residential tenancy agreement for a period of 12 months from 31 July 2015 at a rent of $850 per week; that the tenants had paid to the landlord a rental bond of 4 weeks rent ($3,400) and 3 keys bond ($150), a total of $3,550; and that the tenants moved out of the premises on 2 May 2016. It was also not in dispute that the landlord had not lodged the rental bond of $3,550, and had refunded $2,575 on 7 July 2016. 2. The tenants applied on 28 June 2016 for an order pursuant to s 175 of the Residential Tenancies Act 2010 for return of the rental bond. The matter (RT 16/29894) was listed for hearing at 2.15pm, on 2 August 2016. 3. On 2 August 2016 there was no appearance by the landlord. The Tribunal Member refused a request by the landlord for an adjournment, for the following reasons: Reasons: The applicant has sought an adjournment as he is travelling from overseas today. The request was emailed to the Tribunal at 11.13PM yesterday. The applicant stated that he was too unwell to fly to return this morning, but no medical certificate has been provided in support. An adjournment at the landlord's request has already been granted for the first hearing on 18 July 2016. The bond is the tenant's money and the tenants have attended today to have their claim heard. The guiding principle of the Tribunal is to administer just, quick and efficient resolution of proceedings and parties are under a duty to cooperate with this principle (Section 36 of the Civil and Administrative Tribunal Act 2013). The parties are required to attend until such time as the claim is adjourned by Tribunal order. Absent an adjournment order notified before the hearing the landlord ought to have arranged someone to attend on his behalf or provided a written submission in support of his claims on the bond. The tenants have taken time off work to attend the hearing today. In these circumstances the Tribunal considered it just for the matter to proceed today. 1. The Tribunal Member ordered the landlord to pay the tenants the sum of $975, being the amount of the bond retained by the landlord. Her reasons were as follows: Balance of bond retained by the landlord $975.00. RAN AN and GEZHOU XU and MINGDI ZHANG are the named tenants on the residential tenancy agreement dated about 31 July 2015. The full bond was paid in 2 payments on 3 and 11 August 2015. The bond was not lodged. Part of the bond has already been returned by the landlord, who has retained $975. The tenants disputes that the landlord is entitled to retain this amount or any amount at all. The bond is the tenant's money until such time as the landlord has proven a breach by the tenant of the residential tenancy agreement and the bond secures such breach. As the landlord was not in attendance at today's hearing to press a claim, the balance of the bond ought to be returned immediately. 1. On 9 August 2016 the landlord lodged an application to set aside the decision. In his application (RT 16/36209) the landlord stated that he wanted the order that he pay $975 set aside, and that the Tribunal order that the tenants pay the landlord the cleaning bill of $300, a fine issued by building manager ($175) and final bills from Energy Australia (estimated to be $500 for both gas and electricity). His reasons for being absent when the Tribunal made the decision were as follows: I booked my overseas trip long before the notice of hearing which was on the 18th of July, so I sent in an request to have the hearing date changed to the 2nd of Aug. I booked the flight to come back in the early morning of 2nd Aug so I can attend the hearing. When I went to the airport on the 1st of Aug I was feeling unwell and having diarrea and I knew going on a 12 hour flight is just gonna make my condition worse. Therefore, I decided not to risk it and instead came back on the following day. I sent an email request to have the hearing date moved as soon as I got back to the hotel on the 1st of Aug. I also made a phone call to NCAT making sure they have received the email and explaining my situation on the early morning 2nd of Aug. I was told the hearing should be adjourned as I have attached the travel itinerary and that should be sufficient. I would have sent in a doctor certificate at the time if they asked me for it. In fact, I did see a doctor overseas on the 2nd of Aug but I didn't ask for a certificate. However, I am happy to request a copy of the certificate if its require by the Tribunal. 1. The landlord stated the case he would have put to the Tribunal if he had not been absent in the following terms: I would have provided my invoice from the cleaning company which I engaged as the tenants failed to clean the premises to the same state they were moved in. I would have provided invoice from the building manager for a fine issued to the tenants regarding the breach of building management rules. I would also require evidence of all electricity and gas bills been paid in full to the date they moved out as I have been advised by the energy supplier that the final bills haven't been paid. 1. The landlord provided with the set aside application a copy of an invoice for Scogify Cleaning Services Pty Ltd dated 22 May 2016 for $300 for carpet cleaning, and an invoice for $175 for "call out charges for afterhours moving and cleaning for common area foyer". 2. On 2 September 2016 a different Tribunal Member made the following orders: The application is dismissed because: 1. The Tribunal is satisfied that the decision and orders made on 2/8/16 in RT 16/29894 were made in the absence of the respondent landlord. 2. The absence of the respondent landlord on 2/8/16 is explained as being caused by the respondent landlord being out of Australia. The Tribunal notes that there is no evidence to support this contention. 3. The Tribunal is not satisfied that the respondent landlord has not put his case adequately to the Tribunal. 4. The applicant to set aside the decision made on 2/8/16 and the tenant were directed by the Tribunal on 10/8/16 to make submissions concerning the set aside application by 24/8/16 & 31/8/16 respectively. Neither party made submissions. On that basis the only material before the Tribunal is the landlords application to set aside. 5. The mere application by the landlord is not sufficient to establish circumstances that enable the Tribunal to exercise its discretion to grant the application. The Appeal 1. In his Notice of Appeal the landlord stated his grounds of appeal as follows: I received following email from the tribunal after lodging the application for a stay order. "The operation of the orders for payment of money made on 2/8/16 in matter number RT 16/29894 are stayed until further order of the Tribunal." I did not receive anything either electronically or by mail asking me to make any submission regarding the application. I have made a number of inquiries over the phone prior to 31st of Aug 2016 after I lodged the application for the stay order and I was advised that I need to wait for the other party to lodge a submission by 24th Aug and if they don't make a submission, the order I was seeking should be granted. I have asked the customer service officer specifically whether I need to make any further submission but I was told that it was not necessary unless the other party makes the submission. I was told to call back on the 25th of Aug to check if there was any submission made by the other party. The advice I was given to me by the customer service officer obviously contradicts the basis of the decision was being made, which is neither party made a submission. I have provided all the supporting evidence in the application explaining why there was a deduction of $975 from the bond and I would assume that forms part of my submission for the members to be considered. The other party has failed to provide any evidence responding to my application/submission. I have spoken to Judy Greening regarding my case and she advised me to lodge an appeal with the fee waiver application. 1. The landlord indicated by ticking the relevant box on the Notice of Appeal that he was not seeking leave to appeal. 2. The supporting documents provided with the Notice of Appeal were a photocopy of the identification page of the landlord's passport, and a page with date stamps, showing he departed China on 3 August 2016; an invoice for $175 for callout charges for afterhours moving; a flight booking dated 1 August 2016 for flights from Wuhan - Hong Kong and Hong Kong- Sydney on 2 August 2016, arriving in Sydney at 10.55am 3 August 2016; an invoice for $300 for carpet cleaning; and a copy of the set aside application and decision. 3. On 27 September 2016 directions were made for the tenants to lodge a Reply to Appeal; for the landlord to lodge by 1 October 2016 all the evidence below on which he intended to rely, any fresh evidence on which he intended to rely, written submissions in support of the appeal, and the sound recording of the first instance hearing if what happened at the hearing was being relied upon; for the tenants to lodge their documents by 8 November 2016; and for the landlord to lodge any written submissions in reply by 15 November 2016. The appeal was listed for hearing on 23 November 2016. The landlord was ordered to pay $500 (being electricity/gas charges) to the tenants within 7 days, and by consent the balance of the order made on 2 August 2016 (now concerning payment of $475) was stayed pending further order. 4. Written confirmation of the directions and the hearing date was sent on 28 September 2016 to the tenants, and to the landlord at his specified address in Killara. 5. The tenants' Reply to Appeal, lodged on 4 October 2016, stated that they disputed the charges. The landlord did not inform them that they needed to tell the building manager when they moved out; if they had known they would have informed the building manager and not had to bear the extra cost. This was not on the rental agreement, and it is the landlord's obligation to inform the building manager. The early termination of the rental agreement on 2 May 2016 was agreed by both parties. They paid $462 for an end of lease cleaning fee. The landlord wanted to remove all the stains in the carpet even though there were existing stains when they moved in. The general exit cleaning for $462 included extra services for oven cleaning, window cleaning and carpet steam cleaning and that made the apartment in a cleaner condition than when they moved in. When the landlord did the last deep stains removing cleaning, the new tenants had already moved in. 6. The supporting documents provided by the tenants were records of bank transfers; an invoice for $462 for exit cleaning; and photographs of the premises on moving in. The hearing of the appeal 1. On 23 November 2016 Ms Mingdi Zhang appeared at the hearing on behalf of the tenants. There was no appearance of the landlord. Following an unsuccessful attempt at 10.30am, at 10.40am the Appeal Panel reached the landlord by telephone. The landlord stated that he had not received written confirmation of the Appeal Panel hearing. He agreed that he had been present at the callover when the hearing date was fixed, however stated that he was waiting for written confirmation. The landlord stated that he did not have his papers with him, as he was in Homebush. He stated that it would take him 45 minutes to get from Homebush to Killara to obtain his papers for the hearing. The Appeal Panel arranged to telephone the landlord again at 11.45am so that the hearing could proceed by telephone. 2. The hearing resumed at 11.45am with the landlord on the telephone. At the request of Ms Zhang, the Appeal Panel was assisted by an interpreter in the Mandarin language, who was also on the telephone. During the course of the hearing the landlord stated that he had not returned to Killara. 3. The landlord and Ms Zhang confirmed that they had provided all the documents on which they wished to rely in the appeal. The landlord relies on the documents provided with the Notice of Appeal and the tenants rely on the documents provided with the Reply to Appeal. The Appeal Panel had available to it at the hearing of the appeal the files relating to the proceedings at first instance and informed the parties of that fact. However the Appeal Panel has not found it necessary to refer to those files and in determining the appeal has limited its consideration to the material provided by the parties in support of, and in opposition to, the appeal. 4. The Appeal Panel summarised the grounds which might constitute a question of law as stated in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, and asked the landlord to explain his reasons as to why the decision involved an error of law. The landlord stated that the original decision had been made in his absence because he was overseas and the Tribunal had obviously not received his side of the evidence as to why the amounts of $500, $300 and $175 were owing. He had good reason why the tenants owed him money. 5. The landlord stated that he thought he would be entitled to make submissions in respect of his set aside application, and that when he called the Tribunal to ask if he needed to make submissions he was told that he did not need to make submissions if the other party did not do so. He had, after receiving notice of the decision, sent to the Tribunal a number of emails complaining. The Appeal Panel asked the landlord about the statement on the set aside application form that: "This application may be determined on the papers, without an oral hearing. Provide as much information and documentation supporting your application as possible. Attach additional pages to this application if needed." 1. The landlord stated that at the time he lodged the application he had provided all the relevant documents which he could think of to support the application. He provided his itinerary in a separate email to the Tribunal and sent a copy of his passport to show he was overseas at the time. He sent the itinerary in a separate email, so maybe it was not before the Tribunal Member who determined the set aside application. The landlord submitted that the Tribunal member made the decision without taking into account the evidence and his submissions provide further evidence of the steps he took to show he was definitely overseas. 2. The Appeal Panel outlined the grounds in cl 12 of Sch 4 to the Act on which leave could be granted for an internal appeal against a decision of the Consumer and Commercial Division, and asked the landlord to identify whether he considered any of those grounds applied. The landlord stated that the set aside order had not taken into account enough evidence because he was not present at the hearing. If he had been there or provided the evidence there would have been a different outcome. That outcome would be that he would be paid the $175 fee, and the $300 for carpet cleaning. The landlord stated that the obligation to pay the $175 fee for after hours moving out was not a term of the residential tenancy agreement, however it was agreed between the tenants and the building manager. The building manager had chased him for payment of the fee. The landlord did not dispute that the tenants had paid $462 for cleaning, however he had paid the additional $300 because the carpet stains were not removable by normal cleaning and needed specialist cleaning. He could not remember when the additional cleaning was done, it was a few days after the tenants moved out. He had been to the premises in April and they were very dirty. 3. The tenant stated that they had moved out in May because the landlord was in a rush to sell the property and gave them 48 hours notice. There was a lot of dirt and stains when they moved in. New tenants moved in only a few days after they moved out, and the extra cleaning was done after the new tenants moved in. They did not know they had to pay the $175 fee when they moved out. Consideration 1. The decision under appeal is the decision made on 2 September 2016 to refuse the landlord's application to set aside the decision of 2 August 2016 in which orders were made that the landlord pay the remainder of the rental bond to the tenants. Clause 9 of the Regulation specifies the circumstances in which a decision that determines proceedings can be set aside: 9 Additional power to set aside or vary decision determining proceedings In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. 1. As held in Ozzy Car Sales at [64]-[65], before the Tribunal has the power to set aside a decision that determines proceedings, the Tribunal must be satisfied that: 1. The decision was made in the absence of a party; and 2. That absence resulted in the party's case not being adequately put to the Tribunal. 1. If those two requirements are satisfied, the Tribunal then has a discretion to set aside or vary the decision. The central question in that regard is whether there is a real likelihood that it would be unjust to let the decision sought to be set aside stand: Ozzy Car Sales at [76]. Relevant considerations would include why the party was absent and whether that party had a reasonable opportunity to be heard or have its submissions considered in the proceedings, and whether the absent party had an arguable defence or an arguable case that a different decision could have been reached: Ozzy Car Sales at [78]-[80]. 2. As noted above, the grounds on which the landlord can appeal from the set aside decision are on a question of law as of right, or, with leave of the Appeal Panel, on other grounds as provided in cl 12 of Sch 4 to the Act. 3. The parties are self-represented. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel said: 12 The Appeal Panel must give effect to the guiding principle when exercising functions under the CAT Act, which is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 36(1)). This is reinforced by s 38(4) which provides that the Tribunal is required to act with "as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." 13 It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice." 1. The Appeal Panel has had regard to these principles in considering the landlord's stated grounds of appeal, to determine whether the landlord has established an error on a question of law. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel summarised the appropriate approach to identifying questions of law in the following terms: 12 In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent. 13 Without expressing exhaustively possible questions of law, they include in no particular order: (1) Whether there has been a failure to provide proper reasons: Stoker v Adecco Gemuale Constructions Pty Ltd [2004] NSWCA 449 per Santow JA at [41]; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444 per Meagher JA; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56] per McColl JA (Ipp JA and Bryson AJA agreeing); Qushair v Raffoul [2009] NSWCA 329 at [52] and the following paragraphs, per Sackville AJA (Campbell JA and Bergin CJ in Eq agreeing). Section 62 of the Act requires the Tribunal to furnish reasons. This requirement was earlier reflected in s 49 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). Recently, the Appeal Panel (Wright J, President; G Walker, Senior Member; and M Bolt, General Member) in Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 said in relation to the similar provision in s 89 of the Administrative Decisions Tribunal Act 1997 (NSW) at [32]: 32 Notwithstanding the words in the chapeau to subs (5), there is no reason as a matter of principle why the requirements set out in that subsection do not apply equally to reasons for decision which were not given as a result of a request under subs (3). Further, given the right of appeal from a decision of the ADT to the Appeal Panel under s 113 of the ADT Act and from the Appeal Panel to the Supreme Court on a question of law under s 119 of that Act, the Tribunal's obligation to give reasons should be commensurate with that of courts whose decisions are subject to appeal to the Supreme Court - see generally the discussion of principles in Campbelltown City Council v Vegan (2006) 67 NSWLR 372. As this matter was not the subject of any substantial submissions by the parties, however, it is inappropriate to deal with the topic in more detail and it can be accepted for the purposes of this appeal that the Tribunal was obliged to give proper reasons for its decision. Such reasons would include making findings on material questions of fact, referring to the evidence on which those findings were based, setting out the Tribunal's understanding of the applicable law and explaining the reasoning processes that lead the Tribunal to the conclusions it made. In assessing such reasons, however, it is appropriate to bear in mind the High Court's endorsement of the view that in the case of administrative decision makers this assessment is not best approached with an "eye keenly attuned to the perception of error": see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. (2) Whether the Tribunal identified the wrong issue or asked the wrong question: Craig v State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]. (3) Whether a wrong principle of law had been applied: Chapman v Taylor [2004] NSWCA 456 at [33], per Hodgson JA (Beazley and Tobias JJA agreeing). (4) Whether there was a failure to afford procedural fairness: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]. Section 38 of the Act prescribes the procedure of the Tribunal generally. Relevantly, s 38(2) expressly requires the Tribunal's procedures to accord with natural justice. Sub-sections 5 and 6 also embody aspects of procedural fairness. These rules were previously reflected in s 28 of the Consumer, Trader and Tenancy Tribunal Act (NSW). Procedural fairness concerns the fairness of the proceedings and not the decision: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th Ed; (2009) Lawbook Co at [7.20]. (5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. This was recently the subject of consideration by the Appeal Panel in Director General, Department of Finance & Services v Porter. It was said at [26] to [29] as follows: 26 Failure to take into account a relevant consideration which the decision maker was bound to take into account is an error of law (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24 at 39 per Mason J). 27 Determining what is to be taken into account when making a decision is a matter of construction of the statute conferring power. Where the relevant matters are not expressly set out those matters are determined by implication from the subject matter, scope and purpose of the conferring statute: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39-40 per Mason J. What weight the Tribunal should give to those considerations is, however, generally a matter for the Tribunal (at 41 per Mason J). 28 Whilst the question of weight is one for the Tribunal, the Tribunal will not have given adequate attention to a relevant consideration where its process is merely a formulaic reference: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with Santow and Ipp JJA agreeing). Instead what is required can be described as a proper, genuine and realistic consideration of the relevant consideration: Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ. However, as Basten JA warned in Azriel at [51] referring to Spigelman CJ in Bruce at 186, assessing whether the decision-maker has given a proper, genuine and realistic consideration to a mandatory matter must be approached with caution, with care to avoid an impermissible reconsideration of the merits of the decision. 29 In assessing a purported failure to take into account a relevant consideration a mere failure to refer expressly to a matter will not necessarily justify an inference that there has been a failure to take into account a relevant consideration. Despite this, such an inference is still open to be drawn by the Tribunal in those circumstances: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 per Burchett J. In determining whether or not to draw the inference that failure to deal at all or in detail with a relevant consideration gives rise to an error by the decision-maker, the extent to which the facts and circumstances of the particular matter engage that consideration will be relevant and often determinative. Further, in the context of an appeal from a decision of an administrative review tribunal, such as this appeal, the nature and scope of the submissions put to the tribunal at first instance may also inform that process of determination. (6) Whether the Tribunal took into account an irrelevant consideration, as explained in Peko-Wallsend per Mason J at 40: In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ... (7) Whether there was no evidence to support a finding of fact: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 138. (8) Whether the decision is so unreasonable that no reasonable decision-maker would make it: Associated Provincial Picture Houses Ltd v Wednesday Corp (1947) 45 LGR 635; Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at [10]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. 1. It was not in dispute that the decision of 2 August 2016 was made in the absence of the landlord, meeting the first requirement of cl 9(1)(b). In his reasons the Tribunal Member addressed the second requirement, whether the landlord's absence resulted in his case not being adequately put to the Tribunal, concluding that he was not satisfied that the landlord had not put his case adequately to the Tribunal. The Tribunal Member noted that neither party had provided submissions on the set aside application in accordance with the directions referred to in paragraph 4 of his reasons. 2. The Tribunal Member also addressed the question of the exercise of discretion. As noted in Ozzy Car Sales, the potential for injustice that is central to the exercise of the discretion conferred by cl 9 requires consideration of all relevant matters, including why the party was absent from the hearing, and whether the party seeking to set aside the decision has an arguable defence or an arguable case that a different decision could have been reached. The Tribunal Member noted that the only material before him was the landlord's application to set aside, and that the mere application was not sufficient to establish circumstances that might enable the Tribunal to exercise its discretion to grant the application. 3. The Appeal Panel is satisfied that the Tribunal Member addressed all the requirements of cl 9, and the reasons do not indicate that he took into account an irrelevant consideration, or failed to have regard to a relevant consideration. 4. In considering whether there was a failure to afford procedural fairness in the determination of the set aside application, the Appeal Panel notes that the parties were provided with the opportunity to make submissions on the set aside application, as required by cl 9(4) of the Regulation. At the hearing of the appeal the landlord stated that he had provided with the set aside application all the material he had considered necessary to support his application. In that circumstance, there would be no need for the landlord to provide any further submissions unless in reply to any submissions made by the tenants. As found by the Tribunal Member, there were no such submissions. 5. The set aside application form (which the landlord completed) states that the application may be determined on the papers and that the applicant should provide as much information and documentation supporting the application as possible, and notes that an applicant should complete an attached statutory declaration. The statutory declaration made by the landlord verified the information provided in the application, including the information provided as his reasons for being absent from the hearing and the case he would have put had he been present (as set out in full at [12] and [13] above), but provided no further details. The landlord provided no flight or other travel details; and attached no documents or submissions other than the invoices for $300 and $175. The landlord had the opportunity at the time he lodged his application to provide confirmation of his travel overseas and other documents and submissions in support of the matters he would have put to the Tribunal and those matters otherwise relevant to the exercise of the discretion under cl 9. The Appeal Panel is satisfied that there was no denial of procedural fairness. 6. The Tribunal Member's reasons do not explain how he reached the conclusion that he was not satisfied that the absence of the landlord meant that his case was not adequately put to the Tribunal. The reasons of 2 August 2016 indicate that in the absence of the landlord to press a claim to the bond money, the balance of the bond, being the tenants' money, was to be returned. The landlord's set aside application had identified the three matters which he would have put to the Tribunal, namely the cleaning company invoice, the building manager's fine, and the electricity and gas bills. The reasons of the Tribunal Member focus primarily on the landlord's explanation as to why he was absent from the hearing, which is, as discussed in Ozzy Car Sales, a matter relevant to the exercise of discretion rather than to the finding required by cl 9(b) of the Regulation. The Appeal Panel is not satisfied that adequate reasons were given for the finding that the landlord's absence did not result in his case, namely his claim that the tenants should pay the amounts of $175, $300 and $500, not being adequately put before the Tribunal on 2 August 2016. 7. A failure to provide adequate reasons is an error of law and the landlord has therefore established an error on a question of law. However, for the following reasons, the Appeal Panel does not consider that it is appropriate to set aside the decision and remit the matter for further consideration, and the Appeal Panel considers that the appropriate outcome of the appeal is that the decision under appeal should be confirmed. 8. Section 81 of the Act provides: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal. 1. The landlord identified in the set aside application the three matters which he asserted established his entitlement to retain $975 from the rental bond, and he provided invoices for two of these claims, namely the invoice for the $175 fine issued by the building manager, and the $300 cleaning invoice. The landlord stated in his grounds of appeal that he had provided all the supporting evidence why there was a deduction of $975 from the bond, and he provided further copies of those two invoices. The tenants addressed in their Reply to Appeal the reasons why they considered they are not required to pay those amounts. In his submissions to the Appeal Panel, the landlord explained his reasons why he considered that he is entitled to those amounts. The invoice for $175 was a fee charged by the building manager for failure to give notice of moving out. The landlord acknowledged that there was no term of the residential tenancy agreement that required the tenants to pay that fee. The landlord confirmed the tenant's position as to the $300 cleaning fee, agreeing that this reflected carpet cleaning done after the tenants moved out, and after they had paid $462 for the cleaning done before they vacated the premises. Given the agreed position that the cleaning was done after a new tenant had moved in, there would have been no sound evidentiary basis on which the tenants would have been required to pay for the additional cleaning. The $500 claimed for unpaid electricity and gas bills was resolved by the tenants proving that they had paid the bills, as directed at the Appeal Panel callover. 2. The substantive matters in dispute were canvassed in the Notice of Appeal and Reply to Appeal, and in the submissions on the hearing of the appeal. Taking all those circumstances into account, the Appeal Panel is satisfied that there would be no proper basis on which the Tribunal could require payment by the tenants to the landlord of the claimed $175, $300 or $500 or, in the circumstances of this case, not order the landlord to repay the tenants those sums which the landlord had purported to withhold from the rental bond. Accordingly, notwithstanding any inadequacy of the reasons given on the set aside application, there would be no utility in setting aside the decision on that application and remitting either the set aside application or the substantive proceedings for further consideration. 3. For completeness, and having raised the issue with the parties, the Appeal Panel notes that even if it were appropriate to consider, having regard to the approach discussed in Cominos, whether there would be any possible basis for a grant of leave to appeal in the landlord's grounds of appeal, it could not be said that the landlord may have suffered a substantial miscarriage of justice for any of the reasons provided in cl 12 of Sch 4 to the Act. 4. The meaning of "substantial miscarriage of justice" was elucidated in Collins v Urban [2014] NSWCATAP 17 at [71] and [79]: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [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 . . . 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." 1. Having regard to those principles, and on the material before it, the Appeal Panel would not have granted leave to appeal. There is no basis in the material before the Appeal Panel for a finding that the decision under appeal was not fair and equitable, or against the weight of evidence. Even if the landlord's evidence establishing that he was overseas at the time of the initial hearing was not provided to the Tribunal Member with the set aside application, that evidence was reasonably available at the time the set aside application was being dealt with. Conclusion 1. The outcome of the appeal against the set aside decision of 2 September 2016 is that the decision of the Tribunal made on 2 September 2016 is confirmed. The order made on 2 August 2016, was stayed on 27 September 2016 to the extent of $475, pending further order. That stay should be lifted. 2. The orders of the Appeal Panel are: 1. The decision of the Tribunal made on 2 September 2016 in proceedings RT 16/36209 is confirmed. 2. The stay granted on 27 September 2016 in respect of the payment of $475 is lifted. ********** 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: 21 December 2016