Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Khan & Anor v Zaicos & Anor [2017] NSWCATAP 50 Hearing dates: 23 February 2016 Date of orders: 28 February 2017 Decision date: 28 February 2017 Jurisdiction: Appeal Panel Before: J Harris SC, Senior Member J McAteer, Senior Member Decision: 1. Leave to appeal refused 2. Appeal dismissed Catchwords: Residential Tenancy - Adequacy of reasons - Evidence of application to extend time – Guiding principle Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Cases Cited: Prendergast v The Western Murray Irrigation Ltd [2014] NSWCATAP 69 Cominos v Di Rico [2016] NSWCATAP 5 Collins v Urban [2014] NSWCATAP 17 Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Texts Cited: Nil Category: Principal judgment Parties: Appellants: Rabia Khan & Asghar Khattak Respondents: Paul Zaicos & Jodi Zaicos Representation: M Wasile, Advocate, New England and Western Tenants Advice and Advocacy Service (Appellants) K Martin, Managing agent (Respondent) File Number(s): AP 15/61343 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer & Commercial Division Date of Decision: 27 October 2015 Before: P Harris, General Member File Number(s): RT 15/11402 Reasons for decision 1. This is an appeal from a decision of the Tribunal in its Consumer and Commercial Division made on 27 October 2015. It was a residential tenancy matter. The appellants before the Appeal Panel were the respondents in the proceedings below and the tenants of the residential premises. The application had been brought by the landlords seeking an order for the payment of money pursuant to subsection 187 (1)(c) of the Residential Tenancies Act 2010 (the Act) for what might generally be described as cleaning, repairs and gardening expenses at the termination of the tenancy. The Member granted leave to extend the time for bringing the application and ordered that the appellants pay to the respondents the sum of $2972 within 21 days. 2. The appellants' Notice of Appeal appeals from both the order extending time and the order for the payment of money. 3. The Notice of Appeal makes clear that the appellants seek leave to appeal asserting that the appellants may have suffered a substantial miscarriage of justice. It is asserted that the decision was not fair and equitable and that it was against the weight of evidence. 4. The respondents filed a Reply to the appeal. They supported the orders made and opposed leave being granted to appeal. 5. In accordance with the Tribunal's directions made on 26 November 2015, both parties filed and served documents on which they relied at the hearing of the appeal. 6. We note that at the directions hearing on 26 November 2015 and application by the appellants to renew an earlier stay order was refused and the Deputy President conducting the directions hearing noted "that the Appellants will pay $2972 to the Respondents to be placed in the trust account of the managing agent by 3 December 2015." Hearing 1. The hearing of the appeal was conducted by telephone. Mr Morad Wasile, an advocate from the New England and Western Tenants Advice and Advocacy Service, was granted leave to appear for the appellants and Ms Katie Martin, a representative of the managing real estate agency, was granted leave to appear for the respondents. 2. The essential issues raised by Mr Wasile are twofold. First, he argues that time should not have been extended and that the Tribunal member erred in even concluding that an application for an extension had been made. This issue was clearly raised by the Notice of Appeal. Secondly, he argued that the reasons given by the Tribunal do not disclose how the evidence adduced by the parties was weighed and what was found to have been established and what was rejected; in short, the reasons were silent as to how the member made his determination. This issue was not so clearly raised by the Notice of Appeal. The following passage appears under the heading "Grounds of Appeal": "The Appelant (sic) has suffered a substantial miscarriage of justice because the Tribunal below had not properly decided on the question of 'fair wear and tear' and it was against the weight of evidence." We proceeded with the hearing of the appeal on the footing that the argument that Mr Wasile advanced was raised by this passage from the Notice of Appeal. 1. In developing his first argument, Mr Wasile submitted that he had listened to the sound recording of the whole of the proceedings below and no application had been expressed by the respondents for an extension of time. The appellants' representative had raised the issue in support of a submission that the application should be dismissed. He also submitted that the member's conclusion expressed in paragraph 16 of his reasons that "The dispute between the parties did not become apparent to either party until on or about 6 February 2015, being after the date for filing required by regulation 22 (9)", was not supported by the evidence. This was an important finding because it was the basis of the member's conclusion that there had not been undue delay and no prejudice had been suffered by the appellants. 2. We consider that the first submission can be dealt with shortly. Subsection 36(1) of the Act establishes the guiding principle that the Tribunal is to facilitate the "just, quick and cheap resolution of the real issues in the proceedings". Subsection 38(4) commands that the Tribunal "... Is to act with as little formality as the circumstances of the case permit" and "... without regard to technicalities or legal forms". 3. Mr Wasile correctly conceded that the Tribunal had power to grant an extension of its own motion but, as he submitted, that was not what the Tribunal purported to do. At paragraph 15, the member said: "Although lacking precision, the Tribunal accepts that the applicants made an oral motion to extend the time for bringing the application. After preliminary submissions on the issue in which the applicant submitted that there was no prejudice suffered by the respondent, and the respondent argued there was prejudice due to the time delay, leave was granted to extend the time for the commencement of the application in the Tribunal to the date of filing, …". 1. We accept Mr Wasile's submission to the effect that there was no proper basis for the conclusion that the applicants made an oral motion to extend. However, given that the member could have dealt with the real issue of his own motion, i.e., without any application, we are disinclined to conclude that we ought to set aside the extension of time on that basis. To do so, in our opinion, would be to ignore the statutory commands of subsections 36(1) and 38(4) to which we have referred above and to take an inappropriately technical approach to the issue. 2. As we followed Mr Wasile's argument, it was to the effect that the dispute had become apparent at the latest on 4 November 2014, on the evidence, not on 6 February 2015 as the member found. 3. The member considered the issue at paragraphs 15 and 16 of his reasons. We conclude that whilst it may be open to say that it may have been open on the evidence to conclude that the dispute had become apparent by 4 November 2014 rather than 6 February 2015 as the member found, that is quite different to finding that the evidence can only reasonably allow of that result or that the member's reasoning process is clearly flawed. In our opinion, the member's finding was open on the evidence and the reasoning disclosed in paragraphs 15 and 16 is adequate. 4. The appellants' second essential argument, as noted above, is to the effect that the member's reasoning was inadequate in dealing with the issue of what amount of money the appellants should have been ordered to pay to the respondents. 5. At paragraph 19 of his reasons, the member set out his consideration of this issue. He said: "The issue to be determined is that of quantum, i.e., what amount of money should the respondents be ordered to pay the applicants. The respondents admitted that some compensation owed (sic)". 1. It is not clear to us whether on the appeal the appellants accepted that they owed some compensation. However, on considering the evidence which was before the member and which was also before us, it seems clear enough that a conclusion that some compensation was owed is inescapable whether agreed by the appellants or not. We agree that the real issue was quantum. 2. Before us, the appellants argued the issue as one requiring leave, i.e., not a ground constituting an error of law but rather that the member's conclusion was against the weight of evidence. The Notice of Appeal also expressed the ground as one requiring leave. As decisions such as Prendergast v The Western Murray Irrigation Ltd [2014] NSWCATAP 69 make clear, a failure to provide adequate reasons will constitute an error of law. Whilst it is not accurate to say that the appellants were not represented we nonetheless do bear in mind what was said by the Appeal Panel in Cominos v Di Rico [2016] NSWCATAP 5 at [13] as follows: 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. It seems to us to be appropriate to examine the arguments advanced by the parties and if we conclude that there is an error of law established by a failure to give adequate reasons, we should deal with the matter as an error of law rather than declining to consider it on the technical basis that the Notice of Appeal does not categorise the ground as an error of law. We consider that causes no unfairness to the respondent. The Notice of Appeal clearly notifies the substance of the ground, i.e., a complaint about the adequacy of the reasons. 2. We consider this approach to be consistent with the guiding principle expressed in section 36 of the Act and with subsection 38 (4) in particular. 3. Before proceeding to the arguments advanced by the parties, we think it appropriate to refer to what was said by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [57]: "A number of propositions can be derived from the authorities concerning the nature and extent of the duty to give of reasons as follows: (1) notwithstanding that there have been many cases (some of which are collected in De Iacovo v Lacanale (1957) VR 553, at pp 558-559 in which it has been held that it is the duty of a judge, magistrate or other relevant decision maker to state reasons, that does not mean that a decision maker must give his or her reasons in every case. There is no "inflexible rule of universal application" that reasons should be given for judicial decisions. Whilst it is no doubt right to describe the requirement to give reasons as "an incident of the judicial process", it is subject to the qualification that it is a normal but not a universal incident – Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667 per Gibbs CJ; (2) the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision – Wainoho v New South Wales (2011) 243 CLR 181 at [56] per French CJ and Kiefel J; (3) the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance – Resource Pacific Pty Ltd v Wilkinson[2013] NSWCA 33 at 46 per Basten JA; (4) not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at 48 per Basten JA." 1. We have referred to paragraph 19 of the member's reasons above where he defined the issue to be decided as the quantum of the sum to be paid. Thereafter, the member set out his understanding of the "case" presented by each of the parties. 2. With reference to the respondents' case he said at paragraph 21: "The Applicants' case relied on evidence in 13 statutory declarations, some with annexures and copies of other correspondence, invoices, 60 pre—tenancy condition photographs and an ingoing inspection report signed by the respondents on 23 July 2012, and 100 photographs taken after outgoing on 25 October 2014, with an outgoing inspection report unsigned by the respondents. It also relied heavily on what it submitted was the respondent's agreement to be liable for cleaning and repair costs in the email communication of 27 October 2014 referred to at paragraph 14 above." 1. With reference to the appellants' case, he said at paragraph 22: "The respondents relied on statutory declarations from each of the two respondents and copies of communication messages and invoices from the period during the term of the tenancy for cleaning. " 1. The member divided the Respondents' case into six "heads of claim" and dealt with each "head of claim" or "item" separately. 2. The first related to "Repairs to premises" in respect of which $1,355 was claimed. In all there were some 21 separate "repairs" undertaken. There was dispute on the facts as to whether all "repairs" were the responsibility of the appellants as the tenant. Different arguments were presented in support of the appellants' position in respect of those which were disputed. For example, in some it was argued that they were instances of fair wear and tear. 3. The Appellants argued before us that none of the separate 21 repairs was considered individually by the member with the result that the Appellants' arguments were not addressed. For example, in respect of the cracked tile repair, it was not possible for the appellants to discern from the reasons whether its argument that it constituted fair wear and tear had been accepted or rejected. 4. At paragraph 24 of his reasons, the member said: "Item 1: Repairs to premises. Amount of claim: $1,350.00. Invoice of Steve Murison dated 8 May 2015 421 repair items to premises. The applicant's case relied on the email from the applicant's agent to the respondents of 27 October 2014, which attached 5 pages of repair and maintenance items requiring attention including the invoiced items, and the respondent's reply dated the same day in which the respondents stated: 'I am happy for you to do the repairs etc. you can send me the invoices and I will pay for it ..... I was not able to do the repairs as my husband is overseas from last six weeks. I do apologise about it'. The applicant further relied on the ingoing condition report signed by both respondents and a further email from the applicants of 4 Nov 2014 confirming that 'as per your list, the following repairs were supposed to be done'. They also relied on the statutory declaration of the repairing tradesperson Steve Murison dated 14 May 2015, which I accept and which described the repair items as 'not normal wear and tear ... but damage caused by tenants'. 1. At paragraph 25 of his reasons, he dealt with an attack on the reliability of Mr Murison and then at paragraph 26 he said: "I find for the applicant on this head of the claim in the sum of $(sic) $1,355.00 as claimed." Consideration 1. It seems to us that, although economically expressed, what the member concluded was that the applicant was given the detailed list of items repaired, she responded saying she was "happy" for the respondent to do the repairs and that she "will pay for it" and in reliance on that the respondent went ahead. In effect, he held it was too late to resile from her response after the work had been done. Although arguments were advanced to the member attempting to counter this conclusion, to the effect that the applicant was asking for further details, it seems to us that the member was entitled on the evidence to analyse the matter as he did with the effect that it was not necessary for him to turn to consider each of the twenty one "repairs" individually. Had he concluded that the applicant's response did not bind them, it would then have been necessary to weigh the evidence in respect of each of the separate items of repairs to determine the merits in each case; but that was not necessary given his conclusion on the exchange between the parties before the work was done. 2. Thus, we consider that in respect of the first "head of claim", Repairs to premises, the appeal ground is not made out. We are not able to discern that the appellants have made out that there may have been a substantial miscarriage of justice because the decision of the member below was not fair and equitable or against the weight of evidence and thus the statutory warrant for the exercise of the discretion to grant leave is not enlivened. The issue of the repairs was clearly raised, was the subject of extensive evidence from both parties, there was cross examination on it, the evidence was considered by the member, although not in the way or to the result that the appellants would have preferred, and the member reached a conclusion that in our opinion followed logically from his expressed consideration of the issues and evidence. There is no denial of procedural fairness demonstrated in our opinion, nor any other reason for concluding that the decision was not fair and equitable. In our opinion, there is no basis for concluding that the decision is against the weight of the evidence in the sense discussed by the Appeal Panel in Collins v Urban at [77], referring to the decision of the High Court of Australia in Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42. 3. Furthermore, we do not consider that an error of law is disclosed in the approach adopted by the member which we have discussed above; in particular, by relying on the evidence of the appellant's communication that she was "happy" for the respondents to proceed with the repairs and that she would "pay for it". 4. Although it is not apparent that the matter is raised by the appellants' Notice of Appeal, we allowed Mr Wasile to put a submission that the member's finding at paragraph 29 was erroneous in that he proceeded on the basis that the item referred to as "The carpet mats" was not opposed by the appellants whereas the appellants' contention was that it was opposed. This is an item in respect of which the member awarded the respondents the sum of $152.00. The member provided reasons for his decision in which he considered the evidence as well as cross examination on the issue and the considered the issue of fair wear and tear and depreciation. He applied an Australian Tax Office Ruling to reduce the amount claimed allowing for depreciation. He did not merely proceed to allow the claim on the basis that the item was not opposed. 5. We bear in mind subsection 36(4) of the Civil and Administrative Tribunal Act 2013. We consider the member's decision and reasons had regard to that subsection. If he was wrong in his observation that the item was not disputed, we nonetheless consider that the evidence justified his conclusion and it would have been no different whether disputed in the way referred to by Mr Wasile or not. We reject Mr Wasile's argument as a basis for upholding this appeal. 6. The appellants argued through Mr Wasile that the reasons disclosed in paragraph 32 of the member's decision are inadequate. Again, it is not immediately apparent that this arises as a ground of appeal in the appellant's Notice of Appeal but we allowed it to be argued. This aspect of the respondents' original claim related to "Garden maintenance. The appellants claimed $660.00 and the member allowed $585.00. The member set out the evidence that he considered, and in particular the photographs to which he had had regard. He referred to the evidence of both parties and the evidence giving rise to the deduction from the claim which he made. We consider his reason to be proportionate and adequate having regard to the complexity of the issue and the value of the amount in dispute. We consider that his reasoning is sufficiently explained for the appellants to understand it. We reject this argument as a basis for upholding the appeal. 7. The appellants raised a similar argument attacking the decision at paragraphs 35 - 37 in relation to the item described as "Driveway, footpath and wall cleaning". The same observations apply. We would add that as Mr Wasile developed the argument, it became apparent that what was really sought was a rehearing of the issue before us. He sought to invite us to consider photographs taken before the tenancy and after, which had been before the member, and arrive at a different conclusion. We observe that an appeal is not an occasion for a re-hearing. We refer again to the observations of the Appeal panel in Collins v Urban as to the nature of an internal appeal. 8. Finally, the appellants raised a similar argument in relation to the member's reasons at paragraphs 38 – 40 where he dealt with the item described as "Window screen replacement". After weighing the evidence, he allowed $319.00 in favour of the landlord/applicant before him. We would make the same observations with the same result. This is not an occasion for a re-hearing on the merits. We reject the argument. Conclusion 1. For these reasons, the orders will be that leave to appeal is refused and 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: 28 February 2017