Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lin v Duce McKay Hunt Investments Pty Ltd [2017] NSWCATAP 142 Hearing dates: 23 May 2017 Date of orders: 28 June 2017 Decision date: 28 June 2017 Jurisdiction: Appeal Panel Before: PR Callaghan SC, Principal Member J McAteer, Senior Member Decision: (1) The application for leave to appeal is dismissed. (2) The appeal is dismissed. Catchwords: APPLICATION FOR LEAVE TO APPEAL – no substantial miscarriage of justice – questions of fact – evidence at and conduct of hearing adequate for findings. APPEAL – no question of law identified – no question of law discernible. Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 Fair Trading Act 1987 Residential Tenancies Act 2010 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Chang Yu Lin (Appellant) Duce McKay Hunt Investments Pty Ltd T/As First National Rod Jones (Respondent) Representation: S Zeng (Appellant) M Van Damme (Respondent) File Number(s): AP 17/10991 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Nil Date of Decision: 08 February 2017 Before: M Eftimiou, General Member File Number(s): GEN 16/47039 REASONS FOR DECISION Consumer and Commercial Division Proceedings 1. By Application filed in the Consumer and Commercial Division of this Tribunal ("CCD") the applicant sought an order that the respondent pay to him $2,600. The orders sought were expressed as being under s187(1)(c) for an order for the payment of an amount of money, $2,600, and under s187(1)(d) for an order as to compensation of $2,600. The sections referred to are provisions of the Residential Tenancies Act 2010. 2. At the hearing, however, it was apparent that the applicant's claim was appropriately categorised as one under s60 of the Australian Consumer Law (applicable by virtue of s28 of the Fair Trading Act 1987), being a claim by the owner of a leased residential property against his managing agents. The claim has thus been dealt with as one alleging a breach of s60 of the Australian Consumer Law which provides that: If a person supplies in trade or commerce services to a consumer there is a guarantee that the services will be rendered with due care and skill. 1. In the Application the Reasons for the Orders sought were given thus: We appointed a real estate agent for our rental property, agreeing to a rent of $1100 per week, as reflected in the advertisement for the rental property. We were told that $1100 was market value for the property. The real estate agent violated authority by leasing rental property at $1050 to the tenant. We were never given notice that the rent was changed and we have never given approval for the rent to be changed. Only after we were given the tenancy agreement, did we discover that the rent was $1050. We are seeking compensation for the rental income we have lost – a total of $2600 (52 weeks x $50/per week). 1. At the hearing in the CCD the applicant appeared in person with the assistance of an interpreter and the respondent company which trades as First National Rod Jones was represented by Ms M. Van Damme, a property manager of the respondent, who was assisted by Ms K. Bremmer, another property manager of the respondent. CCD Decision 1. The CCD decision was published in the form of a Notice of Order including reasons on or shortly after the date of the hearing, 8 February 2017. The Tribunal dismissed the application, stating that this was because "having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established". Having regard to the way in which the grounds of appeal and the grounds for leave to appeal have been expressed in the Notice of Appeal, which we will explain below, it is convenient to set out the reasons for decision in full: "Reasons for decision: By application filed on 25 October 2016 the applicant sought an order that the respondent pay to him $2600.00. The applicant signed an Exclusive Management Agreement with the respondent on 30 April 2016. The applicant now alleges that the respondent rented his property to tenants at a rent of $1050.00 contrary to instructions from the applicant to rent the premises at $1100 per week. The Managing Agency Agreement has now been terminated and the applicant is seeking $2600.00 being his loss of rent due to the lower amount of rent that the property was rented for by the respondent. Both parties appeared before the Tribunal and advised that they were ready to proceed to hearing. The Tribunal was assisted by an interpreter. Jurisdiction The Tribunal is satisfied that the applicant is a consumer and that the Tribunal has jurisdiction to hear and determine the dispute pursuant to section 79E of the Fair Trading Act. The application is within time and within the jurisdictional limit of the Tribunal. The Tribunal is satisfied that it has jurisdiction under s79J of the Act. The Australian Consumer Law (ACL is contained in Schedule 2 of the Competition and Consumer Act (Cth) 2010. The provisions of the ACL apply in NSW by virtue of the provisions of its adoption by s28 of the Fair Trading Act. Facts The parties signed an Exclusive Management Agency Agreement on 30 April 2016. On 15 June 2016 a Residential Tenancy Agreement was entered into between the applicant and a tenant. The agreement is for 12 months with the rent being $1050 per week. The applicant terminated the Exclusive Management Agency Agreement with the respondent on 10 July 2016. Issue Often when parties are not represented the cause of action is not identified in their submissions. It appears from the material provided that the applicant has brought his claim as a breach of section 60 of the Australian Consumer Law guarantees. In particular the applicant appears to be arguing that the respondent has not exercised due care and skill in the provision of the service and as a result the applicant has suffered a loss. Law Section 60 of the ACL provides as follows: If a person supplies in trade or commerce, services to a consumer there is a guarantee that the services will be rendered with due care and skill. Consideration The applicant has the onus of establishing the claim. The Tribunal is not satisfied on the evidence before it that the respondent has breached the Australian Consumer Law Guarantee found at s60. The applicant has not satisfied the Tribunal that the service provided by the respondent has not been rendered with due care and skill. The Tribunal on the evidence finds as follows: ● The applicant purchased the property around March/April 2016 with settlement due in June 2016. ● Soon after purchasing the property the applicant received a letter from one of their neighbours advising of a prospective tenant. ● In May 2016 the applicant had a conversation with the respondent confirming that the rent would be $1100.00 per week for the premises. ● Between the 11-12 May 2016 the applicant contacted the prospective tenant and discussed the property. On 26 May 2016 the applicant met the prospective tenant and showed them the floor plan of the premises. ● Around 27 May 2016 the applicant notified the respondent of the prospective tenant and advised it to contact the tenant and accept a holding deposit from him. ● On 31 May 2016 the prospective tenant completed a Tenant Application Form. ● On 9 June 2016 the applicant together with the prospective tenant attended a pre property inspection. ● On 15 June 2016 a Residential Tenancy Agreement was entered into between the applicant and the tenant. The terms of the agreement were for 12 months commencing on 17 June 2016 and ending on 16 June 2017. The rent being $1050.00 per week. The issue in dispute between the parties is that the applicant states that consent was never given to the respondent to reduce the rent to $1050.00 per week. The respondent has given evidence that it telephoned the applicant on 31 May 2016 and went through the Tenant Application Form with him. The respondent stated that it discussed with the applicant the fact that the tenant had written on the form that they had a dog and the applicant had confirmed that it was not an issue. The respondent further stated that the tenant had written on the application form rent of $1050 has been agreed with owner. The respondent also outlined the tenant's employment situation. The respondent gave sworn evidence that after going through the Tenant Application Form with the applicant he approved the tenancy and on that basis the residential tenancy agreement was entered into. The applicant denies having a conversation with the respondent on 31 May 2016 where the tenant's Application Form was discussed. The applicant states that the only conversation that he has had with the respondent regarding the rent of the property was on 6 May 2016. The applicant denies that he had a conversation with the tenant where he agreed that the rent would be reduced to $1050.00. This is contradicted by the tenant's email dated 3 July 2016 where he states that in all his discussions with the applicant the rent was ever only $1050.00 per week. The applicant seeks to rely on his telephone records to indicate that he did not receive a telephone call from the respondent on 31 May 2016 to go through the Tenant's Application Form. The applicant's phone records only show calls made from the respondent's land line to the applicant and do not show any calls that may have been made from a mobile number. The Tribunal does not accept that the respondent only ever called the applicant from a land line. It is also possible that the respondent made an error as to the date of the call and it may have been made on a different date in May or June 2016. The applicant has not been able to satisfy the Tribunal that he was not advised by the respondent that the rent was reduced to $1050.00 per week. The Tribunal finds it difficult to accept that applicant's evidence that the only discussion he had with the respondent in relation to the rent was on 6 May 2016. The Tribunal does not accept that the applicant would not have raised the question of the rental amount after this date with the respondent. The applicant has also not been able to satisfy the Tribunal as to why the tenant believed that his discussions with the applicant indicated that the rental amount is $1050.00 per week. The Tribunal accepts that the respondent telephoned the applicant before entering into the agreement and went through the Tenant's Application Form with him. This is evidence from the applicant raising the question regarding the tenant's employment history. The applicant would not have been aware of the employment history if he had not been told by the respondent. The Tribunal notes that it is the respondent's usual practice to email the owner and the tenant a confirmation email regarding the terms of the agreement. However, due to the applicant having introduced the tenant to the respondent and the private meetings and conversations that they had this normal protocol was not followed. The applicant has not been able to satisfy the Tribunal that the services provided by the respondent were not rendered with due care and skill. The Tribunal finds that the applicant had agreed with the tenant that the rent would be $1050.00 per week. If the Tribunal is wrong in relation to this finding, the Tribunal finds that the applicant has not mitigated any loss he may have suffered. The applicant has not taken any reasonable steps to confirm with the respondent before entering into the agreement, the rental amount agreed upon between all parties. The Tribunal finds that only having one conversation on 6 May 2016 regarding the rental amount and not raising this issue again with the respondent until after the tenancy agreement was signed on 16 June 2016 is not reasonable. The applicant spoke to the respondent on many occasions between 6 May 2016 and the 16 June 2016 regarding this tenancy and the Tribunal finds it unreasonable that the applicant would not have sought to confirm with the respondent the rental amount. The application must fail." Appeal 1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") provides that an internal appeal may be made in the case of a decision of this kind of the Tribunal at first instance as of right on any question of law, or with leave of the Appeal Panel on any other grounds. 2. A helpful, but not exhaustive, list of potential questions of law was given in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]: 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 a relevant (mandatory) consideration. 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 was so unreasonable that no reasonable decision- maker would make it. 1. Clause 12(1) of Schedule 4 of the NCAT Act provides that an application for leave to appeal from a decision of the CCD may be granted: …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. In relation to that clause, in Collins v Urban [2014] NSWCATAP 17 at [76] an Appeal Panel of this Tribunal, after a review of a number of cases and by way of summary of relevant general principles, said that: Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstance referred to in cl 12(1)(a), (b), or (c) where there is a "significant possibility" or "a chance which was fairly open" that a different or more favourable result would have been achieved for the appellant had the circumstance referred to in para (a) or (b) not occurred or if the fresh evidence at para (c) had been before the Tribunal as first instance. And similarly at [84] the Appeal Panel said that: In order to be granted leave to appeal, the applicant 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 .. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters or administration or policy which might have general application; or (c) 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, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 1. As was pointed out in Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22] it is "necessary for the Notice of Appeal to identify precisely the particular questions of law." Here the Notice of Appeal, as we will explain below, does not fulfil this requirement. Nevertheless, it is also appropriate to bear in mind the consideration expressed in Prendergast v Western Murray Irrigation Ltd at [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. Notice of Appeal 1. The Notice of Appeal brings an appeal and also an application for leave to appeal. 2. The Grounds for Appeal are specified by way of an opening paragraph stating that "In considering the evidence, the Tribunal Member neglected key evidence provided by the appellant. The following relates to the notice of order and summarises key reasons an appeal is being made". That is followed by nearly two pages of closely typed comments on the evidence and the treatment of the evidence in the CCD decision. No specification of any question of law is included. 3. The application for leave to appeal is expressed to be on all the available grounds: that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, because the decision was against the weight of evidence and because significant new evidence is now available that was not reasonably available at the time of the hearing. 4. The ground alleging that the decision was not fair and equitable is introduced in an opening paragraph: The decision was not fair because it failed to properly consider all evidence. It is clear there existed a bias towards the respondent as the respondent's lack of concrete written evidence, reliance on spoken word and clear inconsistencies were still deemed to be of more value than the applicant's written records and evidence. The judgment also relied heavily on false assumptions which were neither validated or in some cases, were not supported by the respondent's evidence. There follow five paragraphs of details. 1. The ground alleging that the decision was against the weight of evidence contains details extending over a page and a half, the bulk of those details being in response to the questions "What evidence should the Tribunal have given more weight to? Why?". Those details commence: The Tribunal should have based judgment on written and recorded evidence. Instead, the Tribunal made a decision based on the spoken words of the respondent. The applicant feels that written evidence from concrete sources should supersede any spoken words from either the applicant or respondent in a legal hearing. The Tribunal should have given more weight to the following evidence. … There follow details extending for a page. 1. Attached to the Notice of Appeal are about 80 pages of documents. These apparently comprise material placed before the CCD hearing by the appellant supplemented by 20 pages or so of new material and material placed before the CCD hearing by the respondent. 2. In support of the ground alleging that significant new evidence is now available that was not reasonably available at the time of the hearing, the appellant relies on that supplementary material. It is identified in the Notice of Appeal, essentially as a record of phone calls on the appellant's mobile phone on and between 27 May 2016 and 7 June 2016, together with a business card from Ms Van Damme, showing her mobile telephone number, and also a chain of emails between the parties between 23 December 2016 and 3 March 2017 relating to copies of the tenancy application form which had been signed by the tenants of the property. 3. In relation to the material relating to the mobile telephone, included in the details included in the Notice of Appeal relating to this ground, are these comments: The applicant's mobile phone record showing a record of phone calls for the date 31 May 2016 are now produced along with the respondent's (Monique) business card with mobile phone listed… This is to negate the Tribunal Member's belief that the respondent may have called the applicant from their mobile phone, instead of solely using the landline. It is clear from this new evidence that no phone call was made by the respondent on landline or mobile phone on 31 May 2016. 1. In respect of the emails relating to the tenancy application form, the appellant included these details: The applicant had sought to obtain the original email with the original tenant application form from the respondent multiple times, but the respondent has refused to give this crucial evidence… In another attempt by the applicant to obtain these documents, the respondent has revealed dishonest and inconsistent behaviour. The applicant feels this is a crucial piece of new evidence that should be included to allow for a fair judgment. 1. A Reply to Appeal was lodged by the respondent and, among other things it attached a copy of the material which the respondent had placed before the CCD hearing (another copy of that material was also attached to the Notice of Appeal). 2. The appellant has also lodged a short submission attaching what is said to be extracts from the audio tape of the hearing in the CCD, together with an index to the documents from the applicant and the respondent. The transcript extracts include various comments, including in one instance an allegation that the interpreter was guilty of an error in translating a piece of evidence by the appellant concerning a conversation between the parties on 6 May 2016 which conversation was mentioned in the Member's reasons. 3. We have given consideration to all this documentary material including the allegations of the parties, and also to what was said during oral addresses at the Appeal hearing. In doing so, one of the considerations we have borne in mind is whether there may be a question of law relevant to the appeal somewhere within this material, particularly such as whether there had been a denial of procedural fairness or whether a major fact-finding error had occurred, such as a finding of fact where there was no evidence to support it, or a finding of fact which was so unreasonable that no reasonable decision maker would make it. 4. The appellant has presented numerous complaints in this appeal in writing and orally at length and in a discursive way. This presentation constitutes, in effect, an attempt to re-argue the claim which he prosecuted in the CCD. Principal among those complaints appear to be ones which concern first, whether there was a telephone conversation between the parties on 31 May 2016 and secondly, whether the respondent had failed to give the appellant a proper copy of the tenancy application form. It will suffice, in our opinion, to confine our coverage of details in this decision to those two complaints as they are at least representative of the quality of the other complaints. 5. 31 May 2016 was the date of the tenancy application form. As to the 31 May 2016 telephone conversation, the reasons in the CCD decision noted that the respondent (evidently Ms Van Damme) had given evidence of a telephone discussion on that date during which the tenancy application form was gone through, but also that it was "possible that the respondent made an error as to the date of the call and it may have been on a different date in May or June 2016". Also included in the reasons were findings that on 9 June 2016 the prospective tenants attended a pre-settlement inspection of the property by the appellant and that the Residential Tenancy Agreement was entered into on 15 June 2016. 6. There are included in the respondent's material which was placed before the CCD hearing, details of telephone discussions involving the respondent (evidently Ms Van Damme), the appellant and the prospective tenant after that inspection concerning the intentions of each of the appellant and the prospective tenants to proceed with the tenancy and the payment on 15 June 2016 by the tenants of one week's rent. A copy deposit slip in respect of the payment of $1,050 by the tenants on that day is included in the material. 7. The reasons for decision include a finding that "the applicant spoke to the respondent on many occasions between 6 May 2016 and 16 June 2016". During the appeal hearing Ms Van Damme emphasised that outgoing calls by the respondent's office went through on a number of outgoing landlines and not just on the published number for the office. She also emphasised that the tenants would have been unlikely to confirm their intentions concerning the property until they had inspected it, which occurred on 9 June 2016 according to the Member's findings. In respect of the tenancy application form we note in particular that there are attached to it copies of the male tenant's passport, driver's licence and other material. Ms Van Damme pointed out that the tenants had to get all this material to the respondent for final approval of the tenancy and that while the tenancy application form was dated 31 May 2016, there was a likelihood that this material or parts of it came in after that date. All this material is suggestive that the conversation with the appellant where the tenancy application form was gone through in detail, was after 31 May 2016. 8. The chain of emails added to evidence by the appellant relates to a continuing or renewed pursuit by the appellant for the original or a coloured copy of the tenancy application form. It hardly constitutes significant new evidence that was not reasonably available at the time of the CCD hearing but it was discussed during the appeal hearing and we will deal with it. The email chain included the statement or repetition by the respondent of an explanation that first, the documentation had been emailed by the prospective tenants to a person who was then, but soon afterwards ceased to be, on the respondent's staff and the respondent no longer has access to his email records; and secondly, that what the respondent still had, and what they had copied to the appellant, was a complete, but black and white, copy of the form and attachments. That explanation was repeated by Ms Van Damme during the appeal hearing. We see that explanation as credible and we accept it. 9. As we sought to explain to the appellant during the appeal hearing, the Appeal Panel is not engaged in a fresh hearing as to the facts and the appellant's contentions concerning them, but is required to determine whether any relevant error had occurred relating to the hearing process or the decision. We can see no such error. 10. Our consideration has led us to conclude: 1. No question of law has been identified to us and we have been unable to discern any. In particular there is nothing to suggest rationally that there was any denial of procedural fairness in the CCD hearing or decision whether in respect of the opportunity for the appellant to be heard or otherwise; nor is there anything to suggest rationally that the decision involved any finding which was unsupported by any evidence or which was so unreasonable that no reasonable decision maker would make it. 2. We are not satisfied that the appellant may have suffered any substantial miscarriage of justice. Decision 1. The Appeal Panel orders that 1. The application for leave to appeal is dismissed. 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: 28 June 2017