Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bryleva v NSW Land and Housing Corporation [2017] NSWCATAP 74 Hearing dates: 06 March 2017 Date of orders: 31 March 2017 Decision date: 31 March 2017 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member D Fairlie, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. Catchwords: Appeal – No question of law – Cl 12 Schedule 4 leave grounds not established Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act 2010 Cases Cited: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Stesha Bryleva (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Counsel: In Person (Appellant) D Woods (Respondent) File Number(s): AP 16/53089 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 11 November 2016 Before: S de Jersey, General Member File Number(s): SH 16/32054 reasons for decision Introduction 1. Ms Bryleva has appealed from a decision of the Consumer and Commercial Division of the Tribunal awarding her compensation in the sum of $100 and a rent reduction to $138.02 per week from 23 June 2016 to 28 July 2016 and from 16 August 2016 to 11 November 2016. 2. For the reasons set out below, we have refused leave to appeal and dismissed the appeal. Proceedings in the Tribunal 1. Ms Bryleva and the NSW Land and Housing Corporation (the landlord) are parties to a social housing tenancy agreement. 2. In 2013, Ms Bryleva undertook renovations to the premises, including the installation of new flooring, painting and wallpapering. This work was done without the landlord's consent. 3. On 23 June 2016, a burst water pipe in premises two floors above Ms Bryleva's premises caused water to leak into Ms Bryleva's premises for three days and nights. The leak was fixed after three days and did not recur. 4. After the leak occurred, Ms Bryleva noticed mould on the wallpaper and on the wall underneath the wallpaper. She had to regularly clean the mould from walls and ceilings, but it returned. Ms Bryleva also noticed mould on her personal items. 5. On 12 July 2016, Ms Bryleva lodged an application in the Consumer and Commercial Division seeking orders under the Residential Tenancies Act 2010 for compensation, a rent reduction and repairs. 6. The matter first came before the Tribunal on 18 July 2016. The landlord was not represented at the hearing. The Tribunal ordered the landlord to: Conduct inspection and investigation of the damp, ancillary damages and mould as a result of leaking to the residential premises and perform all necessary rectification work including ceilings, walls and flooring and any electrical items impacted by the leaking. 1. The matter next came before the Tribunal on 10 August 2016. On that date, an order was made by consent for the landlord to have access to the premises between 10.00 am and 11.00 am on 16 August 2016 for the purpose of inspecting the premises for maintenance, repairs, health and safety and fitting or inspecting smoke alarms. Time to comply with the order made on 18 July 2016 was extended to 10 October 2016. 2. The matter came before the Tribunal for formal hearing on 11 November 2016. The landlord failed to appear, although it had filed documents in accordance with directions made by the Tribunal. The Tribunal heard the application in the landlord's absence, having first obtained from Ms Bryleva a list of the items in respect of which she sought compensation. 3. In summary, the Tribunal found that: * The landlord had an obligation to maintain the premises in a reasonable state of repair under s 63 of the Residential Tenancies Act 2010. * The landlord had breached that obligation for two periods, 23 June 2016 to 28 July 2016 and 16 August 2016 to 11 November 2016. * The landlord did not breach the obligation for the period from 28 July 2016 to 16 August 2016, because during that period the landlord had not failed to act with reasonable diligence to have repairs carried out. Rather, during this period, Ms Bryleva had not cooperated with the landlord's efforts to investigate her complaints and only gave access to the landlord after the Tribunal made a consent order requiring access to be given. * There was insufficient evidence to establish that the landlord was liable to pay Ms Bryleva most of the amounts claimed as compensation. * Other losses claimed were not reasonably foreseeable as a result of the landlord's breach. * Ms Bryleva had to purchase additional cleaning supplies to manage the leak and should be allowed $100 of the $300 claimed. * In relation to the rent reduction claim, part of the reduction in the condition of the premises claimed was due to damaged wallpaper and flooring that Ms Bryleva installed without the landlord's consent. * A 33% rent reduction rather than a 50% rent reduction for the two periods during which the landlord was in breach was reasonable. (This resulted in an order that the rent would not exceed $138.02 per week for the relevant periods). * There were no special circumstances warranting an order for costs. 1. The Tribunal noted that Ms Bryleva was not seeking a further order for repairs. Scope and nature of the appeal 1. A party has a right to appeal against an "internally appealable decision" of the Tribunal on any question of law, or with permission ("leave") of the Appeal Panel on any other ground: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). It is not in dispute that the Tribunal's decision is an internally appealable decision. 2. Where, as in this case, the decision appealed against is a decision of the Consumer and Commercial Division of the Tribunal, the Appeal Panel may only grant permission to appeal where the appellant may have suffered a "substantial miscarriage of justice" because the decision under appeal was not fair and equitable, was against the weight of evidence, or significant new evidence has arisen which was not reasonably available at the time the proceedings were being dealt with: cl 12(1) of Schedule 4 to the NCAT Act. Notice of appeal and applicant's submissions 1. The decision which Ms Bryleva has appealed against was made on 11 November 2016 and received by Ms Bryleva on 17 November 2016. The Notice of Appeal was lodged on 30 November 2016, which is within 14 days of notification of the decision. It was therefore lodged within the time limit specified in cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014. 2. A number of documents were attached to the Notice of Appeal, including material that was before the Tribunal when it made its decision and the Tribunal's orders and reasons for decision, which Ms Bryleva annotated. These annotations set out her objections to the Tribunal's decision. 3. Although in her Notice of Appeal Ms Bryleva indicated that she was not seeking permission to appeal, it appears that Ms Bryleva's appeal is based on the three cl 12 Schedule 4 grounds that require the Appeal Panel's permission. 4. In addition to the Notice of Appeal and the documents attached to it, Ms Bryleva provided a further bundle of documents which included: * New claims not before the Tribunal in the original proceedings; * Evidence including photographs, reports and invoices that were before the Tribunal at the time of the original proceedings and * New evidence in the form of a report concerning a damaged television and a number of invoices that were not before the Tribunal at the time of the original proceedings. Consideration Documents 1. In making a decision on the appeal, we have considered: * The Notice of Appeal; * The landlord's Reply to Appeal; * The bundle of documents filed by Ms Bryleva as submissions; * The landlord's written submissions; * The oral submissions made at the hearing by Ms Bryleva and Ms Woods. Issues 1. Ms Bryleva did not clearly articulate the grounds of appeal, either in the Notice of Appeal or at the hearing. At the hearing, she indicated that her objection to the Tribunal's decision was, in effect, that the Tribunal did not make the decision that she asked for. 2. Given that Ms Bryleva was self-represented before the Tribunal, we have considered the material she and the landlord have provided to see whether a question of law is raised on the appeal, or whether any of the grounds requiring permission to appeal have been established. 3. As noted above, Ms Bryleva provided material concerning new claims which were not before the Tribunal previously. In her written submission, Ms Bryleva described these new claims as follows: Following the original compensation claim, I also would like to add the following amounts to that - $405 for NCAT appeal fee. $40 for CD recording fee. $192.50 for electrical report for damaged TV. $447.81 (fast print services) + $542.28 (officeworks) for printing / document preparation. $15,000 for physical and psychological inconvenience ….. 1. Some of those amounts constitute costs, either in respect of the original hearing or the appeal. As Ms Bryleva has not been successful on the appeal, we do not need to consider the costs of the appeal. Costs associated with the Tribunal proceedings will be considered below. In relation to the claim for $15,000 for "physical and psychological inconvenience", that claim was not made in the original proceedings. Claims that were not before the Tribunal cannot be raised in an appeal. We have therefore not dealt with this claim. Does the appeal raise a question of law? 1. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) considered the requirements for establishing a question of law giving rise to a right to appeal and noted at [11] that, in circumstances where appellants are not legally represented, "it is apposite to approach the issue by looking at the grounds of appeal generally". The Appeal Panel found that it necessary to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the landlord. 2. At [12] the Appeal Panel in Prendergast set out a non-exhaustive list of possible questions of law, including: 1. Whether there has been a failure to provide proper reasons 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. There is nothing in the Notice of Appeal, in the written submissions or in Ms Bryleva's oral submissions which suggests that the appeal raises an arguable question of law. Ms Bryleva did not submit that she was denied procedural fairness and the material before us – and in particular the transcript of the hearing – demonstrates that Ms Bryleva was given a fair hearing. In the reasons for decision, the Tribunal Member correctly identified the issues for determination and made relevant findings of fact, which were supported by evidence. The material before us does not support a conclusion that the Tribunal Member applied the law incorrectly or failed to properly exercise any discretion. 2. This is true not only in relation to the substantive issues dealt with by the Tribunal, but also in relation to Ms Bryleva's claim for items such as postage, administrative expenses and photocopying, which were properly characterised as costs. We discern no error in the Tribunal's conclusion that no special circumstances warranted an order for costs. 3. In addition, the Tribunal Member provided reasons for decision sufficient to meet the requirements of s 62(3) of the NCAT Act, which provides: (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. 1. Overall, we conclude that no question of law is raised on the appeal. This means that Ms Bryleva requires the Appeal Panel's permission to appeal. Is the decision not fair and equitable? 1. A decision can be described as not fair and equitable if there has been a denial of procedural fairness: Collins v Urban [2014] NSWCATAP 17 at [77] citing Hutchings v CTTT [2008] NSWSC 717 at [35] and Atkinson v Crowley [2011] NSWCA 194 at [12]. 2. We have already found above that Ms Bryleva was not denied procedural fairness. An examination of the transcript of the hearing supports this conclusion. 3. We accept that Ms Bryleva feels aggrieved because the Tribunal did not make the decision she wanted, However, Ms Bryleva has not established that the decision was not fair and equitable. Is the decision against the weight of evidence? 1. A decision under appeal can be said to be "against the weight of evidence" where the evidence in its totality is so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable tribunal member could reach: Collins v Urban [2014] NSWCATAP 17 at [77], citing Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42 and Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 2. In this case we are satisfied that there was ample evidence to justify the conclusions reached by the Tribunal. To the extent that aspects of Ms Bryleva's compensation claim were refused because of a lack of evidence to support the quantum of the claim, we conclude that the Tribunal was correct in its conclusion about the lack of evidence. 3. Ms Bryleva has not established that the decision is against the weight of evidence. Has significant evidence arisen that was not reasonably available at the time the proceedings were being dealt with by the Tribunal? 1. The new evidence Ms Bryleva sought to have considered by the Appeal Panel consists of: 1. A report dated 15 December 2015 from Ace Electrical, which concerns damage to Ms Bryleva's television and 2. Various invoices. 1. At the hearing, Ms Bryleva confirmed that she could have obtained each of these documents and provided them to the Tribunal in the original proceedings, but did not do so. In these circumstances, we conclude that these documents were reasonably available at the time of proceedings were being dealt with by the Tribunal. They do not constitute significant evidence that has arisen since that time. Ms Bryleva has therefore not established this ground. Conclusion 1. As a question of law does not arise on the appeal and Ms Bryleva has not established any of the three grounds set out in cl 12 of Schedule 4 of the NCAT Act, we have refused leave to appeal and dismissed the appeal. Orders 1. Leave to appeal is refused. 2. 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: 31 March 2017