Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Saqa v Kahshro [2016] NSWCATAP 273 Hearing dates: 5 December 2016 Date of orders: 23 December 2016 Decision date: 23 December 2016 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member R Hamilton SC, Senior Member Decision: 1 Patricia Tukana and Atunaisa Saqa are added as applicants in application RT 16/38922. 2 Patricia Tukana and Atunaisa Saqa are added as appellants in this appeal. 3 Leave to appeal is refused and the appeal is otherwise dismissed. Catchwords: Rent- order for return of overpayment. Leave to appeal- no error disclosed, leave refused Legislation Cited: Civil and Administrative Tribunal Act, 2013 Residential Tenancies Act, 2010 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Metuisela Saqa, Patricia Tukana and Atunaisa Saqa (appellants) Samantha Kahshro (respondent) Representation: Metuisela Saqa, in person for the appellants Mr C Nader (Agent for the respondent) File Number(s): AP 16/42453 Publication restriction: Unrestricted 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: 14 September 2016 Before: G Sarginson, General Member File Number(s): RT 16/38922 reasons for decision 1. The first appellant (tenant) entered into a residential tenancy agreement with the respondent (landlord) in respect of residential premises at Georges Hall. The agreement was dated 6 February 2016 and provided for a commencement date of the residential tenancy on 6 February 2016. The rent was $1,050.00 per fortnight in advance. 2. The residential tenancy agreement also included Patricia Tukana and Atunaisa Saqa as tenants. 3. On 28 August 2016, the appellant filed application RT 16/38922 in the Tribunal seeking an order under section 47 of the Residential Tenancies Act, 2010 (RT Act) for repayment of rent paid by the tenant to the landlord contrary to the provisions of the RT Act or the residential tenancy agreement. The appellant said he had been incorrectly charged rent from 5 February 2016 rather than 6 February 2016, that the respondent's agents ledger was incorrect and that he was entitled to a refund of overpaid rent. 4. The application was heard by the Tribunal on 14 September 2016. The Tribunal found that the appellant had paid rent commencing on 5 February 2016, the day before the residential tenancy commenced and was entitled to a refund for an amount equivalent to one days rent. Accordingly, the Tribunal made an award in favour of the appellant in the sum of $75.00. Otherwise, the Tribunal found there was no discrepancy in the rent ledger and therefore made no further orders. 5. The appellant filed his Notice of Appeal on 22 September 2016. The appeal was made within 14 days from the date of the Tribunal's decision and therefore was filed within time. 6. The Appeal Panel made directions for the provision of evidence and submissions by each of the parties. The appeal was heard on 5 December 2016. The first appellant appeared in person and the respondent was represented by Mr C Nader, the landlord's agent. 7. At the outset of the appeal, the Appeal Panel identified that all of the tenants were not named as parties in the original proceedings nor in the appeal. By consent, the parties agreed to orders joining the other tenants, Patricia Tukana and Atunaisa Saqa, as applicants in the original proceedings before the Tribunal and as appellants in this appeal. Notice of Appeal and submissions 1. In the Notice of Appeal, the appellant identified his grounds of appeal as follows: 1. The Tribunal made an error calculating the money the landlord owes me for overpaid rent; 2. I didn't get the keys on Friday, 5 February 2016; 3. Accordingly, they shouldn't have counted 12 February 2016 as the first day of the second week because it was only my seventh day in the property. Each week I was overcharged one day's rent, which means I should have been paid $75 for every week I was in the property. 1. In section 5C of the Notice of Appeal, the appellant sought the following order: The Tribunal should make orders for the landlord to refund me $75 for each Friday of (the week) I had possession of the property 1. The appellant filed written submissions and provided oral submissions at the hearing. Similarly, the respondent provided bundles of documents and made oral submissions at the hearing. 2. The appellant's document included copies of receipts, a copy of the "Tenant Trust Ledger Report" (Ledger) prepared by the respondent's agent and a copy of a calendar highlighting "discrepancies" which identified the days on which the appellant asserts he overpaid rent. However, the appellant did not provide a copy of the sound recording nor a typed copy of any of the oral evidence provided at the original hearing. 3. During the course of the hearing before the Appeal Panel, the appellant indicated that he was claiming a total of $4,575.00. He explained that he had paid a cash holding deposit of $525.00 to the agent on 22 January 2016 and cash of $3,150.00 to the agent on 5 February 2016. He also said he was not given a receipt on that day, the receipt subsequently provided dated 5 February 2016 (attached to the appellant's bundle) being incorrect. In this regard he also said he received further receipts on 10 February 2016 which were also wrong. Copies of receipts issued on 10 February 2016 are found in the respondent's bundle. 4. It was also explained that a total of $2,100.00 was paid for the rental bond. Of this amount the appellant had paid $525.00, the balance of $1,575.00 being provided by Housing New South Wales in the form of rental assistance: see letter from Family & Community Services dated 6 February 2016 in the respondent's bundle. That is the appellant only contributed $525.00 towards the bond, a matter relevant to the consideration of the rent ledger, what amount had been paid by the appellant and whether or not there had been an overpayment of rent. 5. It should be noted that the residential tenancy agreement recorded an amount of $2140.00 was payable in connection with the bond. However, it was agreed between the parties that a total of $2,100.00 only was payable for the bond because the RT Act prevents the amount of the bond being greater than four weeks rent, the rent in the present agreement being $1050.00 per fortnight: see s 159(1) of the RT Act. 6. In oral submissions, the appellant said that he had paid various amounts in cash up until 11 March 2016. Thereafter payments were made by direct deposit. In relation to the amounts of cash paid between 5 February 2016 and 11 March 2016 the appellant said that the amounts paid were incorrectly recorded and that he had in fact paid more. He said he had paid $3150.00 cash on 5 February 2016 which had not been correctly recorded, this amount being in addition to the sum of $525.00 which had originally been paid as a holding deposit on 22 January 2016 (see receipt in appellant's bundle). The appellant said these cash payments, together with the fact that he commenced paying rent on 5 February 2016 (one day before the tenancy in fact commenced) meant that he had substantially overpaid the rent. 7. In reply, the respondent relied upon the Ledger and said it correctly recorded the payments made. The respondent agreed that direct debit payments commenced on 11 March 2016, the cash payments made prior to 11 March equating to the proportion of the bond payable by the appellant ($525.00) and the rent due from 6 February 2016 until 11 March 2016 (5 weeks at $525.00 per week). 8. The respondent did not challenge the order for repayment of the amount of $75.00. 9. The respondent said that even if rent was paid one day early, rent was still payable for the two week period 6 February 2016 – 19 February 2016 and on every second Saturday after 6 February 2016. The respondent also said the payments made, other than the one day in advance of the tenancy commencing, namely Friday 5 February 2016, were correctly applied as rent payable on Saturday 20 February 2016 and following. 10. The respondent's agent said he had attempted to explain these matters to the appellant and that the appellant was in error in claiming back rent paid for each Friday after the residential tenancy at commenced on 6 February 2016. Otherwise, the respondent said that the tenant ledger correctly recorded payments made and the respondent said there was no evidence to support the submission by the appellant that additional amounts of cash had in fact been paid. 11. The respondent agreed that the cash payments previously made meant the appellant had paid for rent up until 11 March 2016 and thereafter the parties had arranged for payments to be made by direct debit two weeks in advance commencing on 11 March 2016. Consideration 1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal. Consequently, the appellant has a right of appeal on a question of law and otherwise requires leave of the Appeal Panel. The Appeal Panel may only grant leave if it is satisfied that the appellant may have suffered a substantial miscarriage of justice: see s(80)(2)(b) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act), Sch4 cl 12 of the NCAT Act. The principles applicable to the grant of leave are set out in Collins v Urban [2014] NSWCATAP 17. 2. As is evident from the party submissions, the issues raised in the appeal are questions of fact, namely whether the Tribunal erroneously calculated what, if any, rent was overpaid. Therefore leave is required. 3. At the commencement of the hearing, it was unclear to the Appeal Panel what payments the appellant asserted he had in fact made. Accordingly, the appellant was asked to prepare a list of the payments he said he in fact made and the date of those payments. That document was marked for identification and became MFI 1 in the appeal. 4. It also became apparent to the Appeal Panel that the appellant was seeking to make submissions about oral evidence given at the hearing of the appeal. The Appeal Panel explained that it did not have a copy of the sound recording and that it could not deal with issues about what was said at the original hearing without the sound recording. The Appeal Panel explained that the appellant was entitled to request an adjournment so that the sound recording could be obtained and asked the appellant if he wanted to adjourn the hearing. The appellant decided to continue with the appeal without the sound recording. 5. It is common ground that rent payments were made by direct debit on and from 11 March 2016. It is also common ground that it was agreed that the residential tenancy agreement would be varied so that payments of rent would be made by direct debit fortnightly in advance on 11 March 2016 and subsequently for the period of the residential tenancy agreement. Finally, there was no dispute that the residential tenancy in fact commenced on 6 February 2016. Therefore, no rent was payable by the tenants for Friday, 5 February 2016. 6. The only issue for determination on appeal was whether or not the appellant had overpaid the rent for the period from 6 February 2016 until 11 March 2016. 7. A resolution of this issue requires the Appeal Panel to evaluate the evidence presented on appeal to determine: 1. What rent was payable from 6 February 2016 until 11 March 2016; 2. What rent was in fact paid by the tenant; 3. Was there an overpayment 1. In making this calculation it needs to be borne in mind that the parties agreed that on and from 11 March 2016 the residential tenancy agreement was to be varied so that rent was payable fortnightly in advance commencing on 11 March 2016, which meant rent was paid for the 14 day period from 11 March 2016 to 24 March 2016 inclusive and thereafter for each fortnightly period. Consequently, in calculating rent payable for the period from 6 February 2016 until the residential tenancy was varied, 11 March must be excluded from the calculation as rent for this day was paid as part of the direct deposit on 11 March 2016. 2. The rent payable from 6 February 2016 until 10 March 2016 is 4 weeks and 6 days. That is for the following periods: 1. 2 Weeks from 6 February 2016 to 19 February 2016; 2. 2 weeks from 20 February 2016 to 4 March 2016; and 3. 6 days from 5 March 2016 to 10 March 2016. 1. The fortnightly rent is $1050.00 per fortnight (or 525.00 per week) being a daily rent of $75.00. Therefore the total rent payable for this period is: 1. 4 weeks rent @ $525.00 per week $2,100.00 2. 6 days rent $ 450.00 3. Total rent due $2,550.00 1. The amount paid by the tenants according to the Ledger was: 1. Holding deposit (22 January 2016) $ 525.00 2. Cash payment (5 February 2016) $2,625.00 3. Less: Bond paid ($ 525.00) 4. Total rent paid $2,625.00 1. The difference between the amount of rent actually paid for the period from 6 February 2016 until 11 March 2016 and the rent due is $75.00 ($2,625.00- $2,550.00). This was the amount awarded by the Tribunal. 2. The appellant says he actually made payments of $525.00, $3,150.00 and $525.00 on 22 January 2016, 5 February 2016 and 26 February 2016 respectively (see MFI 1). 3. The problem with this submission is that there is no evidence to support this conclusion. While it is clear from the Ledger that various entries of rent were made and then reversed, an analysis of the Ledger shows that the total cash received from the appellant in the period 22 January 2016 up until 11 March 2016 (but excluding the direct debit payment made on 11 March 2016) was only $3,150.00 in total. 4. Further, there was no dispute between the parties that a holding deposit of $525.00 was paid on 22 January 2016. This payment is recorded in receipt number 066892, a copy of which both parties have provided in the bundle of documents. 5. The only issue is what amount was paid on 5 February 2016 and whether a second payment of $525.00 was made on 26 February 2016. 6. The payment made on 5 February 2016 was initially recorded as $2,625.00 in the Ledger being receipt 67106: see Ledger entry. The receipt is not in evidence in the appeal however the entry was subsequently reversed, the Ledger recording on 5 February 2016 that "lease date entered incorrectly". 7. The second receipt for this payment was receipt number 067107, dated 5 February 2016. This receipt is found in the appellant's bundle and the respondent bundle. The receipt records cash received of $2,625.00, a deposit of $525.00, the total receipt being for an amount of $3,150.00. The Ledger shows that this receipt recorded rent received of $1,050.00 and a residential bond of $2100.00. The Ledger records this transaction was reversed on 10 February 2016 because there was a "Need to receipt money as rent not bond": see Ledger reversal entry 10 February 2016. 8. It is clear to the Appeal Panel that this receipt (067107) incorrectly recorded rent of only $1,050.00 and a bond of $2,100.00 being paid. However this receipt corroborates the respondent's submission that only $2,625.00 "cash" was received on 5 February 2016, the amount of $525.00 being the "deposit" previously received on 22 January 2016. 9. Finally, a third receipt was issued by the respondent's agent dated 10 February 2016 being receipt number 67183. This receipt is in the respondent's bundle only. The receipt records rent received of $2,625.00 and the residential bond of $525.00. Again it records two payments were made, one being described as "Direct Deposit $2,625.00", the other being "$525.00 deposit". 10. Neither party suggested in this appeal that $2,625.00 had ever been paid by direct deposit (rather than by cash) in the period between 5 February 2016 and 11 March 2016. In these circumstances it seems clear to the Appeal Panel that the reference to "Direct Deposit" is incorrect. However, receipt 67183 is otherwise consistent with the respondent's position that only $2,625.00 was paid by the appellant on 5 February 2016 although the receipt incorrectly records that this money was received on 10 February 2016 (see in top line of the receipt the words "Rcvd 10/02/16") and incorrectly records that it was received by direct debit. 11. Save for these documents, the appellant did not provide on appeal any evidence from the original hearing to corroborate his assertion that $3,150.00 rather than $2,625.00 was paid on 5 February 2016 nor did the appellant provide evidence from the original hearing that a second payment of $525.00 was made on 26 February 2016. 12. In its decision, the Tribunal concluded that it was "not satisfied that there is any discrepancy in the rent ledger other than the tenant being charged for 1 days rent on 05-Feb-2016, when the tenancy commenced on 06-Feb-2016. Further, the Tribunal said it was "not satisfied the tenant has proved the landlord has overcharged for rent (i.e. the tenant has paid for rent in excess of fortnightly rent payable for the premises) or that the tenant has made any payments to which the landlord is not entitled…". 13. In our opinion, on the evidence before the Appeal Panel, the Tribunal was correct to reach this conclusion and the appellant did not suffer a substantial miscarriage of justice. While receipt number 67183 incorrectly categorises the payment as a direct debit payment rather than cash and incorrectly records the date received is 10 February 2016, the other evidence to which we have referred and indeed the statements made by the appellant, accepted by the respondent, are to the effect that cash was in fact paid on 5 February 2016. However, there is no evidence to suggest that the amount of cash actually paid was $3,150.00 rather than $2,625.00 as recorded in the receipt. 14. Further there is no evidence to suggest a second payment of $525.00 was made on 26 February 2016. 15. Accordingly, leave to appeal should be refused and the appeal should be dismissed. Orders 1. The Appeal Panel makes the following order: 1. Patricia Tukana and Atunaisa Saqa are added as applicants in application RT 16/38922. 2. Patricia Tukana and Atunaisa Saqa are added as appellants in this appeal. 3. Leave to appeal is refused and 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: 23 December 2016