Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Semaan v McIlroy;; McIlroy v Semaan [2017] NSWCATAP 146 Hearing dates: 6 February 2017 Date of orders: 11 July 2017 Decision date: 11 July 2017 Jurisdiction: Appeal Panel Before: M Craig QC, Principal Member S Thode, Senior Member Decision: Semaan v McIlroy (AP 16/47917) 1) Leave to appeal refused. 2) Appeal dismissed. 3) Confirm the decision in proceedings RT 16/29620 so far as it orders that Mofreh Semaan is to pay Nicholas Matthew McIlroy the sum of $1,400 forthwith. McIlroy v Semaan (AP 16/49822) 1) Extend time for appeal to 14 November 2016. 2) Appeal upheld in part. 3) Set aside so much of the decision in proceedings RT 16/29620 as determined that Nicholas Matthew McIlroy was not entitled to an order for the payment to him of electricity charges totalling $1,315.51 nor entitled to an order for refund to him of overpaid rent in the sum of $2,320. 4) Order that Mofreh Semaan pay to Nicholas Matthew McIlroy the sum of $3,635.51, in addition to payment of $1,400 ordered to be paid in proceedings RT 16/29620 on 12 October 2016, making the total sum to be so paid as $5,035.51. 5) Otherwise appeal dismissed. 6) To the extent required, leave to appeal refused. Catchwords: RESIDENTIAL TENANCY – rental bond – landlord's failure to adduce evidence of post tenancy cleaning cost – no entitlement to claim against the rental bond – use of electricity supplied to rental premises by landlord – no request for refund – claim by tenant upheld – entitlement to compensation – overpayment of rent – no written notice to tenant of rental increase – tenant entitled to refund as money had and received – Residential Tenancies Act 2010 ss 38, 41, 43, 47 and 187 Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act 2010 Uniform Civil Procedure Rule 2005 Cases Cited: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 CG Constructions Pty Limited v Hanson Construction Materials Pty Limited [2017] NSWCATAP 130 Collins v Urban [2014] NSWCATAP 17 Knight v Oztrack Pty Limited [2015] NSWCATAP 119 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6) Category: Principal judgment Parties: AP 16/47917 Mofreh Semaan (Appellant) Nicholas Matthew McIlroy (Respondent) AP 16/49822 Nicholas Matthew McIlroy (Appellant) Mofreh Semaan (Respondent) Representation: N. Semaan (Agent) for M. Semaan M. McCabe (Solicitor) for N. McIlroy Solicitors: Salvos Legal for N. McIlroy File Number(s): AP 16/47917 and AP 16/49822 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: - Date of Decision: 17 October 2016 Before: C. Marzilli, Member File Number(s): RT 16/29620 REASONS 1. Mofreh Semaan is the landlord and Nicholas McIlroy is one of the tenants who entered into a Residential Tenancy Agreement on 18 April 2015 (the Tenancy Agreement). That Tenancy Agreement related to premises in Kareela Road, Penrith. 2. On 12 October 2016, Mr Semaan was ordered by the Tribunal to pay Mr McIlroy the sum of $1,400, being the amount of the rental bond paid by Mr McIlroy when entering into the Tenancy Agreement. Further claims made by McIlroy against Mr Semaan, arising from the Tenancy Agreement, were not upheld. The reasons for making the order for payment of the bond and refusing Mr McIlroy's other claims were published by the Member on 17 October 2016 (the Reasons). 3. Each party has appealed from that decision. Appropriately, the appeals were heard together. 4. For the reasons that follow, we have determined that the appeal by Mr Semaan should be dismissed. We have also determined that the appeal by Mr McIlroy should be upheld with a consequential order that Mr Semaan pay him, in aggregate, the sum of $ 5,035.51. 5. Our Reasons for determining each appeal in the manner indicated will be separately stated. However, it is first convenient to summarise those background facts that are common to the determination of each appeal. They are largely uncontentious. Background 1. The Tenancy Agreement was signed by Mr McIlroy on 18 April 2015 and by his co-tenant, then his partner, on 1 May 2015. The Agreement was signed on behalf of Mr Semaan by the real estate agent then retained by him. The nominated term of the tenancy was six months commencing on 18 April 2015. The rent stipulated was $350 dollars per week. 2. A rental bond in the sum of $1,400 dollars was paid by Mr McIlroy at the time of signing the Tenancy Agreement. 3. By an undated agreement between the parties, Mr McIlroy and his co-tenant agreed to allow Mr Semaan, without notice, to access "the premises" for the purpose of constructing a duplex unit adjoining the existing house that was the subject of the Tenancy Agreement. Both parties accept that the agreement was entered into in late April 2015. It is convenient to refer to this agreement as the "Access Agreement". 4. The Access Agreement was handwritten by Mr Semaan's agent. A plan sketched on that Agreement indicated that the land over and upon which access was required for the purpose of construction of a new duplex unit was an unbuilt upon area adjoining the existing house. The fact that use of that area would be required for that purpose was, in effect, foreshadowed by special condition 8 of the Tenancy Agreement that provided: "8 BOUNDARY CHANGES – The tenant/s hereby acknowledges that the landlord will be erecting a dividing fence by 27/04/2015. The landlord will give reasonable notice for access to install the fence. Once the fence is installed the landlord will be able to access the fenced off area at own [sic] discretion without notice given to the tenants or managing agent." 1. The sketch or diagram drawn on the Access Agreement indicated, by hatching, the house area with the words "tenant area only", as well as an area marked "tenant parking only". The sketch also indicated the location of a "Brown Colourbond fence", with the area behind that fence and adjacent to the house marked with the word "duplex here/owners access". In front of that area, shown as bounded by the fence, the words "no parking" have been written. 2. Building work directed to the construction of the duplex commenced in May 2015. Both electricity and water required for that building work were accessed from the utilities connected to the rented premises. Usage of both utilities was separately metred to the rented premises and payable by Mr McIlroy and his co-tenant in accordance with the Tenancy Agreement. A "gentleman's agreement" is said to have been reached between the parties that Mr Semaan would pay "his share of water and electricity". 3. In July 2015, Mr Semaan told Mr McIlroy that the rent payable for the premises would increase from $350 per week to $370 per week as from 17 October 2015. Rent at the increased rate was paid after that date. 4. Shortly after 5 October 2015, Mr Semaan commenced to carry out internal renovations to the rented premises. Mr McIlroy states that he agreed to the renovation of the premises and to pay the increased rent that was sought on condition that the renovations then proposed by Mr Semaan were completed within four days. The carrying out of those renovations was neither the subject of any agreement when the Tenancy Agreement was signed nor was it identified in the Access Agreement. 5. In February 2016, Mr Semaan arranged for the connection of a separate electricity supply to the new duplex unit. However, building workers associated with that project continued to use both electricity and water connected to the rented premises. For the period from 2 February 2016 to 29 April 2016, Mr McIlroy received an account for electricity in the sum of $1,839. 6. While in occupation of the premises, Mr McIlroy experienced functional issues with the water supply to the premises, including leaking taps and a faulty hot water system. In February 2016, he was without hot water for five days. All issues that he experienced were drawn to the attention of Mr Semaan or his managing agent. 7. Mr McIlroy moved out of the premises in late May 2016 following the breakdown of his relationship with his co-tenant. At the time of leaving the premises, the renovation works commenced in October 2015 had not been completed. 8. On 27 June 2016, the Tenancy Agreement was terminated when Mr McIlroy's co-tenant vacated the premises and returned the keys to Mr Semaan's agent. Mr McIlroy returned to the premises on 29 June for the purpose of cleaning them. Application of the Tribunal 1. By an application filed in the Consumer and Commercial Division of the Tribunal on 27 June 2016, Mr McIlroy sought a number of orders under s 187 of the Residential Tenancies Act 2010. That application was later amended or "refined" at the hearing before the Tribunal. With the apparent acquiescence of Mr McIlroy, the Member refined the application by reference to a letter that Mr McIlroy had written to the Office of Fair Trading, indicating that the relief that he sought was: "all our bond back $1,400 half our rent back from time of construction [from May 2015] up until 5th OCT 2015 from 5th October 2015 we seek all the rent back we paid in this period till present some form of compensation for the disruption to our lives electricity payment of $1,315.51 initial bond clean $300." The last claim for the "initial bond clean" was not pursued at the hearing before the Member. The hearing and decision at first instance 1. Mr McIlroy's application was heard on 12 October 2016. He was self-represented. Mr Semaan was represented by his then real estate agent. At the conclusion of the hearing, the order to which we have earlier referred was made, requiring that Mr Semaan pay the sum of $1,400 to Mr McIlroy "immediately". 2. The Reasons are short. In them, the Member found the facts that we have earlier recorded, noting that they were "not in dispute or not contested". He further found that 25 rental payments of $350 and 41 rental payments of $370, totalling $23,920, had been made by Mr McIlroy. 3. Having recorded the findings of fact that were uncontentious, the Member proceeded to address the five heads of claim that were advanced by Mr McIlroy. As is apparent, he upheld the first head of claim, directed to the return of the rental bond, but rejected the four remaining claims that were argued. It is convenient to address the basis upon which those heads of claim were rejected when dealing with Mr McIlroy's appeal. AP 16/47917: Semaan v McIlroy 1. In point of time, Mr Semaan's appeal was the first to be filed. By his Notice of Appeal, he claimed that when the premises were vacated on 27 June 2016 they were "left very dirty, with rubbish and damage". While acknowledging that Mr McIlroy had returned to the premises on 29 June to clean them, Mr Semaan claimed that he had already undertaken the exercise and incurred the cost of both cleaning and rubbish removal. He sought an order in his Notice of Appeal that the bond of $1,400 be released to him for "clean up and removal, of the mess left on the premises." 2. Applying the provisions of s 166(1)(c) of the Residential Tenancies Act, the Member determined that Mr Semaan was required to prove both "the items that are the subject of the claim" and "the quantum claimed for each matter". The Reasons indicate that Mr Semaan had not met the second of those requirements. In the Reasons, the Member said: "As no evidence was put before the Tribunal by the Respondent as to the amount spent on rubbish removal and repairs, the Respondent's claim on the bond is not proven and so the bond should be returned to the Applicant." The requirement for leave to appeal 1. In light of the finding just recorded, the Notice of Appeal filed on behalf of Mr Semaan indicates that leave to appeal is sought. That leave is necessary if Mr Semaan is to succeed. His entitlement to appeal arises under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the Tribunal Act) as the decision of the Member was a "general decision" within the meaning of s 29 of the Act and is therefore an "internally appealable decision" within the meaning of s 32(4). 2. However, by s 80(2)(1)(b) of the Tribunal Act, an appeal as of right is limited to a question of law arising from the Decision, while an appeal on any other ground requires leave. As the appeal arises from a decision given in the Consumer and Commercial Division of the Tribunal, the grant of leave to appeal is circumscribed by the provisions of cl 12 of Sch 4 to the Tribunal Act. It will be necessary to return to that clause in due course. For the present, it is relevant to note that by cl 12(1) leave may be granted in a case of the present kind: "…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. By his Reply to Appeal, Mr McIlroy indicates that he supports the finding and order of the Member. The Reply correctly states that no question of law is raised by Mr Semaan's Notice of Appeal, nor does Mr Semaan's Notice challenge the finding by the Member that no evidence was tendered to prove the cost of cleaning the premises. Mr McIlroy opposes the grant of leave to appeal, correctly recording that the Notice of Appeal has not addressed any of the matters necessary to sustain leave to appeal by reference to cl 12(1) of Sch 4 to the Tribunal Act. 2. We record that an application by Mr Semaan for a stay of the order made by the Member was refused by a differently constituted Appeal Panel. However, nothing before us indicates that Mr McIlroy has sought to enforce that order. Leave to appeal is refused 1. On 22 November 2016, a differently constituted Appeal Panel made directions for the conduct of the appeal. Not only was an order then made for the concurrent hearing of this appeal with the separate appeal commenced by Mr McIlroy, directions then made relevantly required that any amended Notice of Appeal proposed by Mr Semaan be filed and served by 24 November 2016. No amended Notice of Appeal was filed in accordance with that direction. 2. Mr Semaan was also directed to file and serve submissions in support of his appeal together with the documents relied upon before the Tribunal in the original hearing. Those submissions and documents were required to be filed and served by 20 December 2016. 3. Between 20 December and 20 January 2017, Mr Semaan, by his new agent, served a number of documents upon Mr McIlroy, the majority of which were documents that had not been provided to the Member at the original hearing. No differentiation was sought to be made on behalf of Mr Semaan between documents relied upon in support of his appeal and those relied upon for the purpose of responding to Mr McIlroy's appeal. Attempts by the solicitor acting for Mr McIlroy to understand that difference did not yield any meaningful response. 4. Before us, Mr Semaan's present agent neither disputed the requirement that proof of the reasonable cost of cleaning the premises and removing rubbish left behind by the tenant was required in order to establish an entitlement to claim against the rental bond nor did he dispute the finding of the Member that there was no evidence tendered to establish that cost. In what was said to be a written submission in support of Mr Semaan's appeal, it was stated that documents relevant to his case below had been "misplaced" by Mr Semaan's former agent. In particular, Mr Semaan sought to rely upon a receipt issued to him by "I.F.O.C.U.S. cleaning service" for a payment of $1,500. The receipt is dated 28 July 2016. Although it is said to be for "cleaning and removal of rubbish on premises", the document does not, in terms, identify the premises at which the service was provided nor, importantly, does it state the date upon which that service was provided. In the Notice of Appeal, Mr Semaan claimed that the cleaning he undertook occurred before 30 June when Mr McIlroy went to the premises and cleaned them. Significantly, assuming the receipt did relate to the cleaning of the premises, its date indicates that it was issued months prior to the hearing before the Member and therefore able to be produced at that hearing. 5. Other than to assert that the former agent had "misplaced" unspecified documents, presumably including the cleaning receipt, no other explanation is given for the failure to produce that receipt at the hearing below. No explanation is given of attempts made to locate the document prior to the original hearing; of the failure to explain to the Member that the receipt had been misplaced; of attempts made to have the cleaner issue a duplicate invoice or receipt or of attempts made to identify other documents, such as bank statements, that may have assisted in establishing payment for cleaning services. Moreover, evidence given to the Member by Mr Semaan's agent was that he did not have any receipts for cleaning and rubbish removal. So much is recorded in the transcript in a context that does not add any qualification to that statement. 6. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel addressed the principles applicable to the grant of leave under s 80(2) when the grant of leave is circumscribed by the provisions of cl 12(1) of Sch 4 to the Tribunal Act. At [84] the Appeal Panel stated that in order to be granted leave "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". The Appeal Panel continued at [84] by stating: "(2) 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 of 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 of 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 interest of justice for it to be reviewed … ." 1. Having regard to the events that we have outlined, we are far from satisfied that the circumstances in which Mr Semaan seeks leave to appeal engage the principles just identified. The absence of an adequate explanation for the failure to adduce the evidence that the Member found wanting in relation to the cleaning costs claimed by Mr Semaan, coupled with the inadequacies of the "receipt" now sought to be relied upon to establish the cost said to be incurred by Mr Semaan, militate against the grant of leave to appeal. As the Appeal Panel said in Knight v Oztrack Pty Limited [2015] NSWCATAP 119 at [44], cl 12(1)(c) to Sch 4 "does not permit the losing party to simply address shortcomings in or bolster the evidence on which they relied in the original proceedings." 2. Leave to appeal is refused. This has the consequence that Mr Semaan's appeal must be dismissed. AP 16/49822: McIlroy v Semaan Extension of time to appeal 1. Mr McIlroy's Notice of Appeal was filed on 14 November 2016. Given that the Reasons were published on 17 October 2016, any appeal from that decision was required by r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 to be lodged within 14 days, that is by 31 October 2016. The Notice of Appeal filed by Mr McIlroy was therefore 14 days out of time. 2. The time limit imposed by the rule is expressed to be subject to any extension of time granted by the Tribunal under s 41 of the Tribunal Act. Mr McIlroy seeks an extension of time pursuant to that section. He states that when he received the Reasons on about 17 October 2016, he was relieved to see his proceedings finalised despite the fact that he had not obtained orders for all that he had sought to have paid by his application. However, when he received Mr Semaan's Notice of Appeal on about 4 November, he reconsidered his position, given that finality had not been achieved. He sought advice, as a result of which his Notice of Appeal was prepared and filed on 14 November. Neither the Tribunal Act nor the rules made under it make provision for the filing of a cross-appeal in response to an appeal from a decision commenced by another party to the original proceedings (cp. r 51.17(2)(b) of the Uniform Civil Procedure Rule 2005). 3. No reply to Mr McIlroy's Notice of Appeal was filed by Mr Semaan. Relevantly, Mr Semaan neither consented to nor opposed the extension of time sought by Mr McIlroy. Given that the extension of time sought is only for 14 days and that, in the circumstances, no prejudice is occasioned to Mr Semaan by acceding to the application, we propose to exercise our discretion under s 41 by extending the time for appeal to 14 November 2016. The grounds of appeal 1. Mr McIlroy's entitlement to appeal also arises under s 80(2)(b) of the Tribunal Act. That entitlement is also subject to the provisions of cl 12 of Sch 4 to the Act pertaining to the grant of leave on a ground other than a question of law. The grounds of appeal upon which Mr McIlroy relies are, in their essence, directed to those four issues agitated before the Member but upon which he was unsuccessful. However, the grounds are framed in a manner that identifies them as questions of law, thereby entitling Mr McIlroy to agitate the questions arising as of right without the necessity for leave to be granted. That statement assumes that the questions raised do truly identify questions of law, a matter to which we will turn when considering each ground. 2. As argued before us, the grounds were: 1. the Member erred in law in that he failed to address the correct test when determining that Mr McIlroy was not entitled to a refund of $1,315.51 for electricity charges incurred by him when Mr Semaan's workmen used electricity separately metered to the rented premises; 2. the Member erred in law in that he failed to address the correct test when determining that Mr McIlroy was not entitled to a refund of rent overpaid at the rate of $370 per week when the rental increase from $350 per week sought by Mr Semaan had not been imposed in accordance with the provisions of the Residential Tenancies Act; 3. the Member erred in law in determining that Mr McIlroy was not entitled to be compensated by either a reduced rent or an abated rent for two separate periods because of the disruption in use of the premises occasioned by the work carried out on Mr Semaan's behalf and by reason of reduced services available in the premises. 1. It is convenient to address each of these grounds in turn. Recoupment of electricity charges 1. The Reasons record evidence "candidly" given by the agent then acting for Mr Semaan that, in carrying out renovations to the premises, Mr Semaan's workmen used electricity metered to Mr McIlroy and not electricity separately metered to Mr Semaan. The Member then stated in the Reasons that the failure to provide a separate meter for the electricity used by those workmen was contrary to s 38(1)(a) of the Residential Tenancies Act. 2. Section 38(1)(a) imposed an obligation upon a tenant to pay charges for the supply of electricity "if the premises are separately metered". Although expressed somewhat cryptically, we interpret the Reasons to be intending that Mr McIlroy was only obliged to pay for charges incurred by him as a tenant and for which a separate electricity meter was provided. To the extent to which electricity was used by Mr Semaan for his own purposes, the charge for that electricity was not for electricity separately metered to the premises and thus was not payable by Mr McIlroy. 3. Notwithstanding the Member's finding of fact as to the use of electricity connected to the premises and his application of that finding to the provisions of s 38(1)(a), as he discerned its operation and intent, he denied Mr McIlroy's entitlement to recover the charges claimed from Mr Semaan. The Member did so because no evidence was provided by Mr McIlroy that he had sought "repayment in writing as required by section 47(1) of the Act". 4. On the hearing of the appeal, Mr Semaan sought to deny that his workmen had used electricity metered to the premises when carrying out renovation work. He claimed that all equipment they used was "cordless". That claim was contrary to the evidence given before the Member by Mr Semaan's agent that the workmen had used electricity from the premises until a separate meter was installed for Mr Semaan in about February or March of 2016. The transcript records that evidence to have been given following a discussion between Mr Semaan and his agent in the course of the hearing. The transcript also records the agent's evidence, said to repeat what Mr Semaan told him, that "on a couple of occasions" Mr Semaan paid cash to Mr McIlroy's partner for water and electricity and on one occasion he had paid cash to Mr McIlroy for the same purpose. 5. Having regard to the material before us and the findings of the Member in this regard, we place no store on the assertion now made that electricity separately metered to and charged to the premises was not used by Mr Semaan's workmen between May 2015 and June 2016. The evidence given before the Member and accepted by him should stand for the purpose of determining this appeal. Indeed, Mr McIlroy's evidence that the workmen continued to use his utilities, including electricity, even after the meter was installed in the duplex was not challenged before the Member. 6. Section 47 of the Residential Tenancies Act, being the section relied upon by the Member to deny Mr McIlroy's claim, provides: "47 Tenant's remedies for repayment of rent and excess charges (1) Requests to landlord A tenant may make a written request to the landlord that the landlord repay to the tenant any rent, or other amounts, paid by the tenant that are not required to be paid under this Act or the residential tenancy agreement. (2) A request may be made during or after the termination of a residential tenancy agreement. (3) A landlord must, within 14 days of a written request by a tenant, repay to the tenant the amount of any rent or other amount paid in excess of the amount payable by the tenant under this Act or the residential tenancy agreement. (4) Tribunal orders A tenant may apply to the Tribunal for an order for the repayment of rent or any other amount paid by the tenant if a written request by the tenant for payment is not complied with by the landlord within 14 days. (5) The Tribunal may order that rent or any other amount be repaid to the tenant if it finds the rent or amount was not required to be paid by the tenant under this Act or the residential tenancy agreement." 1. Mr McIlroy submits that the Member misinterpreted the section by determining that the power to make an order was only engaged if a written request for repayment had first been made. He points to the provisions of subsection (5), identifying the power of the Tribunal to make an order for repayment in terms that do not qualify the exercise of the power by reference to a prior written request. 2. There are difficulties with that submission if, consistent with the ordinary cannons of statutory construction, all of the provisions of the section are read as an harmonious expression of a tenant's remedies for repayment of rent or "other amounts" in the form of excess charges. The obligation of the landlord in subsection (3) to repay rent or other amounts and the entitlement to apply to the Tribunal for an order under subsection (4) are each, in terms, predicated upon "a written request by ['a' or 'the'] tenant". If, as is the case, a tenant's entitlement to apply to the Tribunal under subsection (4) is predicated upon a written request for payment not having been complied with, it would lead to an odd result if, when exercising the power provided in subsection (5), the making of a written request for payment was irrelevant. The better view is that subsection (5) is silent as to the need for a prior written request for payment because the Tribunal's jurisdiction is only engaged under subsection (4) if such a request has been made but not complied with by the landlord within the requisite time. 3. However, without finally deciding the matter upon the proper interpretation of s 47, the alternate basis upon which Mr McIlroy contends the Member was in error on this issue has a surer foundation. In seeking to identify the specific provisions within Div 2 of Pt 3 of the Residential Tenancies Act that give rise to a claim, the Member appears to have overlooked the fact that in his application to the Tribunal, Mr McIlroy had relied upon the general powers of the Tribunal found in ss 187-190 of the Residential Tenancies Act. By s 187, the Tribunal has power to make an order "as to compensation" in any proceedings under the Act. 4. As the Member accepted, Mr McIlroy was liable to AGL, the electricity supplier, for electricity used at the premises during the currency of the tenancy. By dint of the Tenancy Agreement and the "gentleman's agreement" reached with Mr Semaan, informed by s 38(1)(a) of the Residential Tenancies Act, Mr McIlroy was entitled to be compensated for the electricity charges that he had incurred but for which, as against Mr Semaan, he was not liable. The Member failed to address the claim made by Mr McIlroy in that way and therefore failed to engage with the case that he sought to make. There was legal error in failing to do so (CG Constructions Pty Limited v Hanson Construction Materials Pty Limited [2017] NSWCATAP 130 at [33]). 5. Given the finding by the Member that Mr Semaan's employees had used electricity connected to the premises for Mr Semaan's purposes and that, in acknowledgment of such use, cash payments had been made to Mr McIlroy or his partner, it was appropriate that we determine the payment to be made on this account (cf s 36 of the Tribunal Act). 6. We do not understand the quantum claimed by Mr McIlroy to be challenged. Indeed, if, by analogy, s 38(1) of the Residential Tenancies Act is applied, the entitlement of Mr McIlroy may have been to have refunded by Mr Semaan the entirety of the outstanding account received from AGL, as there was no identifiable component of that account that was separately metered to him. However, rather than seek the full amount outstanding of $1,839 owed to AGL, he has been content to claim $1,315.51. That is the amount we propose should be refunded to him by Mr Semaan. Rent overpayment 1. The Member recorded that no document was tendered by Mr Semaan giving notice of the increase of rent from $350 per week to $370 per week, effective from 17 October 2015. Nonetheless, Mr Semaan claimed that written notice of the increase had been given but no copy had been kept. As the Member also recorded, Mr McIlroy denied that he had ever been provided with a written notice of increase. In the result, the Member found that the evidence "does not support finding [sic] that a valid rent increase notice was given". 2. The Member's reference to a "valid rent increase notice" is, as the Reasons make apparent, an intended reference to s 41 of the Residential Tenancies Act. That section relevantly provides: "41 Rent increases (1) The rent payable under a residential tenancy agreement may be increased only if: (a) the tenant is given written notice by the landlord or the landlord's agent specifying the increased rent and the day from which it is payable and (b) the notice is given at least 60 days before the increased rent is payable. (2) This section extends to an increase in the rent payable under a residential tenancy agreement on renewal of the agreement as if the increase were an increase during the term of the agreement. (3) A rent increase is not payable by a tenant unless the rent is increased in accordance with this section or the rent is increased by the Tribunal. … (8) Subsections (1)-(7) are terms of every residential tenancy agreement. (9) A landlord or landlord's agent must not contravene this section. Maximum penalty: 20 penalty units. … ." 1. As we have earlier recorded, the Member found that the total rent paid by Mr McIlroy from April 2015 until the lease was terminated in June 2016 was $23,920. Having found that there was no valid increase in rent payable by Mr McIlroy, the Member determined that the total rent payable under the lease for the period of occupation was $21,600. An overpayment of $2,320 had therefore been made. However, the Member held that Mr McIlroy was not entitled to an order for payment of the latter sum as he had not made a written request to Mr Semaan for that amount, as required by s 47 of the Residential Tenancies Act. 2. At the appeal hearing before us, Mr Semaan sought to rely upon a copy of a handwritten document, purportedly addressed to Mr McIlroy and his co-tenant, indicating a rent increase from $350 to $370 per week. The explanation offered for the unheralded emergence of this document at the appeal hearing was unsatisfactory. The form of the document, which appeared to be struck through; the apparent redaction or alteration of the date from which it was said to operate; why, if it existed, it was not available at the hearing before the Member and how its existence could be rationalised with the evidence before the Member that no copy had been kept, were all matters that neither Mr Semaan nor his present agent could rationally explain. 3. Moreover, Mr McIlroy maintained before us, as he had before the Member, that no written notice of an intention to increase rent had been received. When shown the document upon which Mr Semaan sought to rely, Mr McIlroy stated that he had never seen that document before, even though it purported to be addressed to him. 4. In the circumstances that we have briefly outlined, we are not prepared to allow Mr Semaan to rely upon his purported notice. In the result, Mr McIlroy has paid more rent than he was required by the Tenancy Agreement to pay, noting that the requirement for rent increases to be made only in accordance with the provisions of s 41 are provisions that were terms of the Tenancy Agreement: s 41(8). 5. Mr McIlroy again challenges, as being legally erroneous, the Member's reliance upon the absence of a written request for the overpaid rent to be refunded by Mr Semaan conformably with s 47, as the basis for denying an order requiring the amount to be paid to him. By parity of reasoning given when addressing the claim for refund of electricity charges, we doubt that recovery of overpaid rent can be ordered under s 47(5) in the absence of prior written request for payment. 6. However, for reasons earlier expressed when addressing the electricity refund claim, we are of the opinion that the Member did err by failing to appreciate the power available under s 187 to make an appropriate order. Given that payment had been made by Mr McIlroy in the mistaken belief that he was bound to make the payment when, in law, he was not so bound, the quantum of the overpayment was recoverable on a common money count for money had and received. By s 187(1)(e), the Tribunal has the power to make an order "for the payment of an amount of money" in proceedings brought under the Residential Tenancies Act. Had the Member properly appreciated the power he was being asked to exercise, there can be no doubt, having regard to his findings of fact, that an order requiring Mr Semaan to refund that overpayment would have been made. We did not understand Mr Semaan to challenge the amount of overpayment if we did not sustain his contention that written notice of the intended increase had been given to Mr McIlroy. 7. We propose to order that a refund of the overpaid rent be made by Mr Semaan to Mr McIlroy. Rent reduction and compensation for disruption 1. Mr McIlroy's appeal under this head has been identified in various ways. The grounds of appeal attached to his Notice of Appeal identified two grounds under this general head. First, Mr McIlroy contends that the Member took into account irrelevant considerations when determining his claim both for a 50% reduction in rent from May to October 2015 and also for an abatement of rent (described as a 100% reduction) in the period from 5 October 2015 to 27 June 2016. The first legally irrelevant consideration, said to have been brought to bear by the Member upon these claims, was his reliance upon the Access Agreement when that agreement was void and therefore of no legal effect. The second irrelevant consideration relied upon was a misinterpretation of the Access Agreement by the Member. 2. The second ground of appeal identified under this head is a contention that the Member made findings on the claims for rent reduction and abatement "in the absence of evidence". However, the particulars provided for this ground suggest that the determination made by the Member was against the weight of evidence rather than the absence of evidence. If that be the correct characterisation of this ground, it does not raise a question of law (Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155-156). 3. The Member addressed these grounds together in the following way: "The Applicant's evidence on these matters was not of sufficient specificity to justify a finding that the Applicants quiet enjoyment of the Premises had been interfered with. General and vague assertions as set out in the second paragraph of appendix B of the Applicant's documents are insufficient. This is especially the case when the Applicant acknowledged that construction work would be carried on during the period of the tenancy as set out in subparagraph 8(d) above. The Applicant also sought, as part of the numerous orders variously sought by him, orders that (a) the rent increase was excessive: paragraph 41(a) of the Act, (b) the rent was excessive: paragraph 41(b) of the Act; and, rent abated: subsection 43(2) of the Act. Dealing with each of these matters: the Tribunal has not accepted that the rent increase was valid; no evidence was put forward addressing in detail what goods, services or facilities were reduced; and how the Premises became wholly and partly uninhabitable otherwise than as a result of a breach of agreement: paragraph 43(2)(a) of the Act." 1. We do not discern the "irrelevant considerations" identified by Mr McIlroy as being fundamental to the Member's decision. Essentially, we read his Reasons for rejecting the claims by Mr McIlroy as being the absence of persuasive or sufficiently specific evidence in support of them. So much is apparent from the first sentence in the first of the two paragraphs that we have quoted. The third sentence of that paragraph, making reference to the Access Agreement (that being the reference in "subparagraph 8(d) above") does not, on a fair reading of the Decision, identify the basis upon which the first and second sentences are expressed. It is illustrative only of the findings made in the first two sentences. To subject the reasons to the "fine tooth comb" analysis for which Mr McIlroy contends would be contrary to principle (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; [1996] HCA 6). 2. The first sentence of the second of the two quoted paragraphs correctly identifies the fact that the Residential Tenancies Act makes provision for reduced rent to be sought or rent to be abated, albeit that the relevant sections are referred to as "paragraphs" and section numbers are wrongly stated. However, it is apparent from the Reasons that the correct substantive provisions were addressed. The second sentence of the same paragraph again identifies a factual finding that the evidence adduced by Mr McIlroy had not persuaded the Member that the power to reduce or abate rent should be exercised. 3. So understood, the appeal grounds identified under this head of claim do not identify questions of law. They raise only questions of fact. Leave to address them is therefore required. 4. We have earlier identified the provisions of the Tribunal Act that circumscribe the grant of leave. Applying the principles applicable to the grant of leave as articulated in Collins v Urban, we are not satisfied that leave to appeal in respect of these grounds should be given. 5. Clearly, there was evidence before the Member as to the inconvenience occasioned to Mr McIlroy and his partner by the presence from time to time of Mr Semaan's workmen carrying out renovations to the premises. There is also evidence of inconvenience occasioned when facilities offered did not operate and required repair. However, we were not directed to the detail of evidence showing factual error or omissions on the part of the Member that clearly provided the "specificity" appropriate to found a breach of quiet enjoyment or "the detail" appropriate to establish that "goods, services or facilities" were reduced for the period claimed or that the premises were "wholly or partly uninhabitable otherwise than as a result of a breach of agreement". 6. Even if we were persuaded that the Member was arguably wrong in concluding that the evidence lacked the specificity and detail required, that, of itself, would not be sufficient to found the grant of leave. No issue of principle or question of public importance is raised by these grounds of appeal (Collins v Urban at [84]). 7. For these Reasons, we refuse to grant leave to appeal to agitate these grounds of appeal. Conclusion and orders 1. As Mr Semaan has not been successful in his appeal, Mr McIlroy is entitled to retain the order made on 17 October 2016 that he be paid $1,400 by way of refund of his bond. In addition, we have determined that Mr McIlroy is entitled to be paid a refund of electricity charges for electricity used by Mr Semaan's workmen and also to have refunded to him the rent that he overpaid. 2. For completeness, we record that no issue was raised before the Member or before us as to any time limitation arising under the Residential Tenancies Act upon Mr McIlroy's entitlement to agitate the claims upon which he has succeeded. 3. As a consequence of our determination, Mr Semaan is required to pay Mr McIlroy the following amounts: bond refund $1,400.00 electricity account contribution $1,315.51 rent overpaid $2,320.00 Total $5, 035.51 1. Accordingly, we make the following orders in these appeals: Proceedings AP 16/47917 1. Leave to appeal refused. 2. Appeal dismissed. 3. Confirm the decision in proceedings RT 16/29620 so far as it orders that Mofreh Semaan is to pay Nicholas Matthew McIlroy the sum of $1,400 forthwith. Proceedings AP 16/49822 1. Extend time for appeal to 14 November 2016. 2. Appeal upheld in part. 3. Set aside so much of the decision in proceedings RT 16/29620 as determined that Nicholas Matthew McIlroy was not entitled to an order for the payment to him of electricity charges totalling $1,315.51 nor entitled to an order for refund to him of overpaid rent in the sum of $2,320. 4. Order that Mofreh Semaan pay to Nicholas Matthew McIlroy the sum of $3,635.51, in addition to payment of $1,400 ordered to be paid in proceedings RT 16/29620 on 12 October 2016, making the total sum to be so paid as $5,035.51. 5. Otherwise appeal dismissed. 6. To the extent required, leave to appeal refused. ********** 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 Amendments 11 July 2017 - Paragraph 20, typographical error 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: 11 July 2017