Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Abdel-Messih v Dai [2017] NSWCATAP 76 Hearing dates: 23 January 2017 and 21 March 2017 Date of orders: 31 March 2017 Decision date: 31 March 2017 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Fairlie, Senior Member Decision: (1) Leave to appeal is refused; and (2) The appeal is dismissed Catchwords: Leave to appeal – Clause 12 Schedule 4 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: Bishoy Abdel-Messih (Appellant) Xiao Dong Dai (Respondent) Representation: Ms Sarah Morris (real estate agent for Respondent) File Number(s): AP 16/47125 Publication restriction: Unrestricted Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 10 October 2016 Before: D Charles, General Member File Number(s): RT 16/25202 reasons for decision Background 1. This is the second decision of this appeal panel, which arises from an appeal from a decision made in the Consumer and Commercial Division of the Tribunal on 10 October 2016 (which we refer to as the "Decision"). Our first decision was published on 1 February 2017 and dealt only with the subtenancy issue. 2. As with our first decision we will refer to the appellant as the tenant and to the respondent as the landlord. 3. As indicated in our first decision, the earlier hearing of this appeal was adjourned because the landlord's son, Mr Dai submitted that all matters the subject of the appeal (other than the matter concerning the subtenancies) had been the subject of an agreement between the parties and had therefore been settled. In addition, there was insufficient time in which to complete the hearing. 4. This decision was reserved following the second day of the hearing of the appeal and on that occasion we heard the parties' submissions with respect to the remaining issues (which we will identify below). 5. It is also necessary to record that the tenant attempted to have us consider further submissions in relation to the subtenancy issue. We refused the tenant's request to reopen the subtenancy issue and have not considered the additional submissions on that subject which were handed to us at the second hearing. In our view, the tenant has had an ample opportunity to make submissions with respect to the subtenancy issue and we have already made our decision known (notwithstanding that formal orders arising out of that issue have not yet been made). 6. The remaining issues concern the tenant's appeal in respect of the following matters: 1. Internet: an amount (to be calculated) is claimed as compensation and was refused in the Decision; 2. An amount of $960.00 is claimed as compensation for the defective dryer and was partly refused in the Decision; 3. An amount of $500.00 is claimed as compensation for noisy showerheads. This was refused in the Decision; and 4. An amount of $175.00 is claimed to compensate the tenant for having pest control treatment undertaken. This was refused in the Decision. 1. We will deal with each of the above claims separately. The Notice of Appeal 1. As recorded in our first decision, the Notice of Appeal states that the Decision was not fair and equitable and was against the weight of evidence. Accordingly, the tenant relies upon the provisions of Sch 4 cl 12 of the NCAT Act as the basis for this appeal. Internet – Tenant's Submissions 1. The tenant submits that the residential tenancy agreement between the parties contained provision for internet services to be provided for and paid by the landlord. The particular clause relied upon (clause 14) states the following: All costs for installation of telephone, internet, pay television and electricity is at the tenant's expense 1. Above the word "internet" the word "Included" has been handwritten and there is underlining under the word "internet". In addition, besides the handwritten word "Included" there is an initial. 2. The tenant made submissions concerning the fact that the landlord had submitted at first instance that he had never authorised the agent to agree to terms which provided for the landlord to provide, at the landlord's cost, internet services to the tenant. The tenant submitted that, even if the landlord had not authorised the agent to enter into such an agreement, the landlord remains bound by the conduct of the agent. 3. The tenant also made submissions concerning the fact that the internet service had initially been provided. Internet services were provided for a period of approximately six months. In the Decision the Member accepted the evidence of the landlord's son to the effect that he had previously occupied the premises and had arranged for internet connection, that such service had continued after he ceased living there, that an earlier tenant had been allowed to use that service in return for paying a higher rent and that the service was discontinued by the landlord's son in early 2016 after the receipt of complaints from the tenant about slow internet connection. The tenant submits that the proposition that the landlord had forgotten about internet service until he was reminded by complaints from the tenant is illogical and that it is absurd to think that the landlord would have not noticed the receipt of bills for that service for approximately six months. 4. The tenant further submits that the Decision is in error in its conclusion that there was no agreed alteration to the tenancy agreement relying for that conclusion on the fact that the alteration to clause 14 was initialled only by the tenant and not by the tenant or the landlord's agent. 5. The tenant further submits that if the correct meaning of the agreement is that internet service was not to be supplied at the landlord's expense, the fact that it was supplied for six months "suggests that the term had been incorporated by course of dealing". Furthermore, the sudden disconnection by the landlord is a breach of s 52(2) of the Residential Tenancies Act, 2010 (The RT Act). That section provides that the landlord must not interfere with the supply of identified services including telecommunication services or other services unless necessary to avoid danger etc. Internet – Landlord's Submissions 1. The landlord submitted that the effect of the tenancy agreement was not to provide for the landlord to provide and pay for internet services. Internet – Our Decision 1. It is our view that clause 14 in its unamended form simply states that all costs for installation of telephone, internet, pay television and electricity is at the tenant's expense. In our view, the addition of the word "Included" merely acts as a notification that installation is unnecessary because that facility has already been provided. The clause in its amended form does not, in our view, carry with it the meaning that the landlord accepts the obligation to pay for internet services utilised by the tenant. It follows that the tenant in our view had to pay for the ongoing costs arising from usage. We can identify no question of law in the Decision and for reasons which we will elaborate subsequently in this decision, are of the opinion that the tenant should not be given leave to appeal. The fact that the internet was available for a period does not mean the agreement between the parties included an obligation for the landlord to continue to provide and pay for it. Dryer – Tenant's Submissions 1. The tenant submitted that the amount awarded in respect of the defective dryer (namely $150.00) was insufficient. The tenant sought an amount of $960.00 as constituting an amount sufficient to compensate the tenant for the erratic functioning of the dryer. No question of law has been identified by the tenant. Rather, the tenant submits that the Decision was against the weight of evidence and was not fair and equitable. Again for reasons which we will elaborate below, we are not satisfied that the tenant should be given leave to appeal with respect to this claim. Showerheads – Tenant's Submissions 1. The tenant submits that the showerheads in the premises were noisy and should have been replaced. The tenant submits that replacement showerheads were provided to the building's manager but never given to the tenant. The tenant submitted that the landlord was obliged to repair the premises and the landlord was not entitled to simply leave the replacement showerheads for the tenant to collect and install himself. Showerheads – Landlord's Submissions 1. The landlord sought to rely upon an exchange of emails between the landlord and the tenant in April 2016. In one email sent on behalf of the landlord it is stated that fresh showerheads will be left at the building management office. The tenant replied by email to the effect that he would collect them (see the tenant's email of 4 April 2016 at 11:52am). Showerheads – Our Decision 1. It was not clear to us whether the two emails referred to above were part of the evidence put before the Tribunal at first instance. If they were, it is clear that the tenant has accepted that the landlord's obligation is sufficiently discharged by providing the showerheads for the tenant to collect. In those circumstances, it is our view that the tenant has no further basis for complaint. If those two emails were not provided by the landlord in the evidence before the Tribunal, the position can be resolved by reference to the Decision. In the Decision, the Tribunal finds that it is not satisfied that there has been any reduction or withdrawal of service or facility at the premises by reason of the state of the showerheads. This finding does not raise any question of law and in our view, does not justify the granting of leave to appeal. Again, as stated above, we will explain in further detail subsequently in these reasons the basis for our refusal to give leave. Cockroaches – Tenant's Submissions 1. The tenant appeals the Decision in rejecting the tenant's claim for the cost of acquiring pest treatment, namely $175.00. The Decision relied upon the ingoing condition report which made no reference to pest infestation. The Decision also relied upon the landlord's evidence, including that of the landlord's son who resided in the premises at various times between 2008 and 2015 to the effect that the premises had no issues with pests. The Decision acknowledged that occupiers of the premises had reported to the tenant instances of sightings of cockroaches shortly after the commencement of the agreement but also found (which the tenant acknowledged) that the tenant had not reported the issue until 25 February 2016. The Decision concluded that the Tribunal was not satisfied that the presence of cockroaches is attributable to any failure on the part of the landlord to keep the premises in a reasonable state of cleanliness. 2. The tenant submitted that the landlord had an ongoing obligation to maintain the premises in a state of cleanliness and fitness for habitation and gave some evidence concerning his efforts to deal with the cockroaches. Cockroaches – Our Decision 1. In our view, the Decision does not demonstrate any question of law or any basis for granting leave to appeal. The Decision was based upon a finding that the tenant had failed to discharge the onus of proof of establishing on the balance of probabilities that the infestation of cockroaches was attributable to a breach by the landlord of the landlord's obligations. The Decision gave reasons for that view and it displays, in our view no error. General Comment with Respect to the Grounds of Appeal 1. Appeals from decisions of the Consumer and Commercial Division of the Tribunal are governed by the provisions of s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). In summary, an appeal lies as of right on any question of law or with leave on any other grounds. Clause 12 of Sch 4 provides that an Appeal Panel may grant leave under s 80(2)(b) against a decision made in the Consumer and Commercial Division only if the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable, or 2. The decision of the Tribunal under appeal was against the weight of evidence, or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In this case, the tenant based submissions upon the "not fair and equitable" ground and on the "against the weight of evidence" ground referred to above. 2. In a decision of an Appeal Panel in Collins v Urban [2014] NSWCATAP 17 the Appeal Panel drew attention to the fact that even if the Appeal Panel is satisfied that the applicant for leave to appeal may have suffered a substantial miscarriage of justice on one of the grounds identified in cl 12, the Appeal Panel must still consider whether it should exercise its discretion to grant leave. It is not a case where the Appeal Panel must grant leave, but rather a case where the Appeal Panel may grant leave. In Collins v Urban, the Appeal Panel dealt with the principles which govern the granting of leave. They may be summarised as follows: 1. In order to be granted leave, the appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact (par 84); 2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve, issues of principle, questions of public importance or matters of administration or policy that might have general application, or where there is an injustice which is reasonably clear in the sense of going beyond merely what is arguable or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral; and 3. A factual error that was unreasonably arrived at and clearly mistaken or a case where the Tribunal has gone about the fact finding process in such an unorthodox manner or in such a way that was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. In our view, the Decision does not give rise to any consideration of the kind described above. There are no issues or principle, or matters having general application. There is no injustice which is reasonably clear in the sense of going beyond what is arguable. The other considerations identified above also do not apply in this case. 2. Rather, the Decision of the Tribunal may be summarised in these terms: 1. The internet decision was based upon construing the terms of the agreement between the parties. As stated, we can identify no error; 2. The dryer was the subject of compensation and the only issue for dispute was the amount; 3. The issue with respect to the showerheads dispute was whether the landlord had discharged his obligations by leaving new showerheads to be collected. In the circumstances of this matter, the Decision found no reduction or withdrawal or services; and 4. In respect of the claim for the costs of pest treatment, the Decision was based upon a finding of fact namely, that there was insufficient evidence to establish that the infestation of cockroaches was attributable to the landlord. 1. As stated above, in our view, the tenant has not established that this is an appropriate case for the granting of leave to appeal. 2. Accordingly, the appeal will be dismissed. Orders 1. The Tribunal makes the following orders: 1. Leave to appeal is refused; and 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