Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sutevski v Safa [2017] NSWCATAP 165 Hearing dates: 14 July 2017 Date of orders: 02 August 2017 Decision date: 02 August 2017 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President DAC Robertson, Senior Member Decision: 1. Application for leave to appeal refused. 2. Appeal dismissed. Catchwords: APPEAL – Residential Tenancies - claim for repayment of water usage charges – water efficiency measures – whether decision against the weight of evidence – whether application brought within time Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 1987 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies (Residential Premises) Regulation 2006 (NSW) Residential Tenancies Regulation 2010 (NSW) Cases Cited: Australian Education Union v Victoria (Dept of Education and Early Childhood Development) (2015) 239 FCR 461 Collins v Urban [2014] NSWCATAP 17 Government of Penang v Oon [1972] AC 425 Texts Cited: Heydon, Cross on Evidence (looseleaf) Category: Principal judgment Parties: John Sutevski and Valentina Sutevski (Appellants) Ahmad Safa (Respondent) Representation: M Michailou, Property Agent (Appellants) A Safa (Respondent) File Number(s): AP 17/20342 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Date of Decision: 7 April 2017 Before: G Kinsey, Tribunal Member File Number(s): RT 16/54840 REASONS FOR DECISION 1. This is an appeal and application for leave to appeal against the decision of a Tribunal Member dated 7 April 2017 ordering the appellant landlords to reimburse to the respondent tenant the sum of $7,916.05 paid by the tenant in respect of water usage charges from 22 November 2011 to 8 June 2016. 2. The landlords were represented at the hearing of the appeal by Mr M Michailou, a principal of their managing agents. The tenant was represented by his son, Mr Ali Safa. Background 1. The tenant rented a property at Bexley from the landlords between December 2005 and October or November 2016. Up to 30 January 2011 the relationship between the landlords and the tenant had been governed by the Residential Tenancies Act 1987 (NSW) ("the 1987 Act"). Section 19 of the 1987 Act and regulation 11 of the Residential Tenancies (Residential Premises) Regulation 2006 (NSW) regulated the entitlement of landlords to charge tenants for water usage. Those provisions are not relevant in these proceedings. 2. On 31 January 2011 the Residential Tenancies Act 2010 (NSW) ("the RTA") and the Residential Tenancies Regulation 2010 (NSW) ("the Regulations") came into force. One change brought about by the enactment of the RTA related to the circumstances in which landlords were entitled to require tenants to pay water usage charges. 3. Section 39 of the RTA provides: Water usage charges payable by tenant (1) A tenant must pay the water usage charges for the residential premises, but only if: (a) the premises are separately metered or the premises are not connected to a water supply service and water is delivered to the premises by vehicle, and (b) the premises contain water efficiency measures prescribed by the regulations for the purposes of this section, and (c) the charges do not exceed the amount payable by the landlord for water used by the tenant. (2) A tenant is not required to pay the water usage charges unless the landlord gives the tenant a copy of the part of the water supply authority's bill setting out the charges, or other evidence of the cost of water used by the tenant. (3) A landlord must give the tenant not less than 21 days to pay the water usage charges. (4) A tenant is not required to pay the water usage charges if the landlord fails to request payment from the tenant within 3 months of the issue of the bill for those charges by the water supply authority. (5) Subsection (4) does not prevent a landlord from taking action to recover an amount of water usage charges later than 3 months after the issue of a bill for those charges, if the landlord first sought payment of the amount within 3 months after the issue of the bill. (6) A landlord must ensure that the tenant receives the benefit of, or an amount equivalent to, any rebate received by the landlord in respect of any water usage charges payable or paid by the tenant. (7) This section is a term of every residential tenancy agreement. 1. The water efficiency measures prescribed by the Regulations are set out in regulation 11 which provides: The prescribed water efficiency measures that residential premises are required to contain before a tenant can be required to pay water usage charges for the premises are as follows: (a) all showerheads on the premises must have a maximum flow rate of 9 litres per minute, (b) all internal cold water taps and single mixer taps for kitchen sinks or bathroom hand basins on the premises must have a maximum flow rate of 9 litres per minute, (c) there must be no leaking taps on the premises at the commencement of the residential tenancy agreement or when the water efficiency measures are installed, whichever is the later. 1. That regulation has not been amended since 2011. 2. On 2 December 2016 the tenant's solicitor sent a letter to the landlords demanding payment of the amount of water usage charges paid to the landlords by the tenant since 2011 in the amount of $7,916.05 together with the sum of $272.04 being the cost of obtaining a report from a plumber. 3. On 19 December 2016 the tenant filed an application in the Tribunal seeking an order pursuant to s47 of the RTA "for the repayment of rent or other payments made by the tenant contrary to the Act or the Residential Tenancy Agreement". 4. Section 47 of the RTA 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 that the rent or amount was not required to be paid by the tenant under this Act or the residential tenancy agreement. 1. At the hearing of the application the landlords, represented by Ms Whitbread, an employee of the landlords' managing agent, relied upon a document on the letterhead of Beverley Park Plumbing in the following terms: Water efficiency certificate John and Valentina Sutevski Property address: *** Bexley NSW 2207 This is to certify that the above property address has been installed with efficiency restrictions in all tap ware as listed. All restrictors were installed in January of 2011. Main Bath: Vanity, shower, bath tub and toilet Ensuite: Vanity, shower and toilet Laundry: Basin, shower and toilet Kitchen: Sink Regards Lazo Rostankov Plumber 1. The document bore a signature, presumably of Mr Rostankov. 2. Ms Whitbread informed the Tribunal that she did not know when the certificate was given. 3. The tenant relied upon an affidavit sworn by the tenant's wife, Mrs Mona Safa. In that affidavit Mrs Safa stated that she had lived at the premises with the tenant from 2005 to 2016. She stated that "I always stayed in the house during daytime". 4. Paragraphs 11 and 12 of the affidavit were as follows: "11. To the best of my recollection I do not recall an occasion where the managing agent requested access to the property by a Mr Rstankov [sic] nor any trade person for the purpose of the owner's complying with the water efficiency regulations. 12. To the best of my recollection I say that during my stay in the property I did not notice any trade person from the owners behalf coming into the property and changing any taps or shower heads." 1. Mrs Safa annexed to her affidavit a report from Chiswick Plumbing dated 10 October 2016. That document was headed "Safety Inspection Report", identified the property, and recorded the results of an inspection undertaken by "Alex". The document is not signed. The report stated: next to the heading "Main bathroom", "shower 15L per min" and "bath 18L per min"; next to the heading "en suite bathroom", "basin 19L per min" and "shower 5L per min"; and next to the heading "Laundry", "15L per min". The Decision under Appeal 1. As the Tribunal Member noted: The real issue in these proceedings is whether the tenant was required to pay water usage charges. Section 39 of the Act provides that a tenant must pay water usage charges for the residential premises but only if certain conditions are met. If those conditions are not satisfied the landlords cannot require the tenant to pay water usage charges. 1. The only evidence before the Tribunal Member concerning that issue was the two certificates and the evidence from Mrs Safa that she had not observed anyone attending the property to change taps or showerheads. 2. The Member stated: The Tribunal has been presented with 2 very different certificates from Chiswick plumbing and Mr Rostankov. The parties did not call either plumber to give evidence or tender a statement from them. The Tribunal has considerable reservations about the certificate supplied by Lazo Rostankov. The landlords tendered a copy of the certificate but not the original document. The certificate is undated. Ms Whitbread says she does not know when the certificate was given. Her real estate agency did not arrange for the certificate and does not know when the inspection of the premises was undertaken by Mr Rostankov. The certificate was provided by the landlords who arranged the inspection. Mr Rostankov does not state in the certificate the date of inspection nor the results of his testing. The certificate provides no details of any tests performed by him to determine the flow rates. The Tribunal cannot determine from that certificate whether the flow rates of the showerhead and the basins satisfied the water efficiency measures in Regulation 11. Whilst I accept that restrictors may have been installed in January 2011, there is no evidence from the landlords that the showerhead and coldwater tap in the basin satisfied the prescribed water efficiency measures. Mona Safa's evidence was she had no recollection of Mr Rostankov attending the property to carry out an inspection. She told the Tribunal she was always at home as she did not work. Further she says that the tapware and showerhead in the property is original and that since the commencement of the tenancy, the landlords have not changed it. This suggests that the results of Chiswick Plumbing are consistent with tapware and a showerhead which were installed prior to January 2011 and have not been replaced. I am not satisfied on the evidence that the rented premises contained water efficiency measures prescribed by Regulation 11 for the purposes of section 39 of the Act. I accept the calculations in the report of Chiswick Plumbing as to the flow rates and find that the flow rates of the showerhead and the coldwater tap in the bathroom handbasin exceeded that flowrate of 9 litres per minute prescribed by Regulation 11. I find that between 22 November 2011 and 8 June 2016, the property was not fitted with the water efficiency measures. 1. The Tribunal Member accepted that the tenant had complied with the requirements of s47 of the RTA and was entitled to recover all moneys paid to the landlord for water usage since 2011. The Appeal 1. The landlords filed their Notice of Appeal on 3 May 2017. Although the decision under appeal was dated 7 April 2017 the landlords stated on the Notice of Appeal that notice of the decision was only received on 21 April 2017. On that basis the Notice of Appeal was filed within the time limited by s25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) ("the Rules"). The tenant does not dispute that the Notice of Appeal was filed within time. 2. The landlords' rights of appeal are limited by s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act") which provides that an appeal against a decision other than an interlocutory decision of the Tribunal may be made: As of right on any question of law, or with the leave of the Appeal Panel, on any other ground. 1. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of sch 4 of the NCAT Act, leave may only be granted under s 80(2)(b): 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 Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at [71] and [79] as follows: [71] [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred… [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred." Grounds of appeal 1. The landlord's grounds of appeal set out in the Notice of Appeal are as follows: The landlord did comply with Section 39 of the Residential Tenancies Act 2010 and Regulation 11 of the Residential Tenancies Regulation 2010. Water efficiency measures were taken on 17 January 2011, certificate was provided upon request. There was never any issue about water usage by the tenant until a 90 day no grounds termination notice was served upon the tenant; the tenant was clearly upset about having to vacate the property therefore commencing legal action which appears to be in retaliation to the termination notice. 1. These grounds do not appear to us to raise any question of law. 2. The landlords also sought leave to appeal on the ground that the decision was not fair and equitable and on the basis that the decision was against the weight of evidence. In respect of the application for leave to appeal on the ground that the decision was not fair and equitable the landlords stated: The tribunal member has not acknowledged the landlords water efficiency certificate. The tribunal member has acknowledged the tenants plumbers report. The tenant's plumbers report clearly states that the taps are water efficient within the premises except for the shower head & wash basin. The fact that there are taps stated on the tenants plumbers report that are clearly water efficient is further evidence that the landlord did carry out water efficiency measures and clearly appears that the taps that were not efficient at the time of this report have most probably been tampered with. For the tribunal member to grant the tenant water usage charges for the past 6 years is grossly unfair. The tenant has never disputed paying water usage charges or any water efficiency issues until the end of the tenancy which is well beyond the 3 month period for any water usage disputes. 1. In respect of the application for leave to appeal on the ground that the decision was against the weight of evidence, the landlords stated: The tribunal should have acknowledged the landlords plumbers water efficiency certificate. The tribunal should have taken into consideration why it took the tenants 6 years to complain about the water usage charges being that there have never been any previous complaints until the end of the tenancy regarding water usage. The tribunal should have taken into consideration that the plumbers report provided by the tenant did indicate that there were taps which did comply with the water efficiency laws therefore confirming that the landlord did implement water efficiency measures of 17/1/11. 1. Although the landlords did not, in the Notice of Appeal, expressly seek leave to appeal on the ground that there was significant new evidence now available, the landlords did seek to rely upon an affidavit from Mr Rostankov, who had signed the Beverley Park certificate, to the effect that he had installed water efficiency restrictors at the premises on 17 January 2011 "so that the premises would comply with Section 39 of the Residential Tenancies Act 2010 and Regulation 11 of the Residential Tenancies Regulations 2010" and an affidavit from Ms Valentina Sutevski to the effect that she had arranged for Beverley Park Plumbing to install water efficiency restrictors at the premises on 17 January 2011. 2. The tenant submitted that that evidence was available at the time of the hearing. Mr Michailou did not suggest the evidence was not reasonably available at the time of the hearing. We did not formally receive the evidence and will not further consider it. 3. Mr Michailou's oral submissions at the hearing of the appeal largely revolved around the proposition that it was unfair and unreasonable that a landlord could not rely upon a certificate which stated that the required water saving devices had been fitted. He asked rhetorically whether a landlord was required to test the water efficiency devices every six months. He submitted that it did not seem right that a tenant could say nothing for years and then seek repayment of water charges. Determination 1. In our view Mr Michailou's submissions did not point to any error of law and did not establish either that the decision was against the weight of evidence or that it was not just and equitable. 2. The Member had before him three relevant pieces of evidence, the Beverley Park certificate, the Chiswick Plumbing certificate and the evidence of Mrs Safa. There was no challenge to the accuracy or reliability of the Chiswick Plumbing certificate which, although not signed and not expressed in an ideal form, did explicitly identify that the flow rate in the main bathroom shower and the en suite basin exceeded the standards fixed by the regulation. On the basis of that evidence, taken in conjunction with the evidence of Mrs Safa that she had seen no one attend to change taps or shower heads while she was at the premises, the Member was entitled to conclude that the taps and shower heads had not complied with the regulation throughout the whole time since 2011 and that the Beverley Park certificate was not reliable and did not establish that the flow rates in the main bathroom shower and en suite bathroom did comply with the regulation in 2011 or at any time subsequently. 3. We do not consider that any inference that water efficiency devices had been installed in the premises arises from the fact that Chiswick Plumbing found that some taps met the flow requirements. That inference could only arise if there were some basis to conclude that without efficiency devices all taps would exceed the flow rates prescribed in the regulation. There is no basis in the evidence which was before the Tribunal Member upon which that conclusion could be drawn. 4. The consequences of the upholding of the Member's decision predicted by Mr Michailou, that landlords will be compelled to test water efficiency devices every six months, need not necessarily follow from that conclusion. Although the regulation requires that the specified flow rates be maintained at all times, in circumstances where it is established by reliable evidence that the required water efficiency measures have been installed and that taps and shower heads complied with the specified flow rate at a particular time, it would ordinarily be presumed that that continued to be the case in the absence of evidence that something had changed. This process of reasoning is referred to in the law of evidence as the "presumption of continuance" or the "presumption of continuity". (See Heydon, Cross on Evidence (looseleaf) [1125]; Australian Education Union v Victoria (Dept of Education and Early Childhood Development) (2015) 239 FCR 461 at 563 [441]; Government of Penang v Oon [1972] AC 425 at 434G). 5. The Member determined, in light of the other evidence before him, that the Beverley Park certificate was not reliable. There was no error of law in his so finding, nor can it be said that that finding was not just and equitable or against the weight of evidence. 6. There is one possible further issue which might be said to be raised by the landlords' Notice of Appeal. We refer to the statement made by the landlords in relation to the application for leave to appeal on the ground that the decision was not fair and equitable: "The tenant has never disputed paying water usage charges or any water efficiency issues until the end of the tenancy which is well beyond the 3 month period for any water usage disputes." 1. It is not clear whether the reference to a three month period for water usage disputes is a reference to s39(4) of the RTA or a reference to regulation 22(9) of the Regulations which provides that an application in relation to a breach of a residential tenancy agreement must be brought within 3 months after the applicant becomes aware of the breach. However, the statement may be taken as an assertion that the time within which the tenant was able to seek recovery of water usage charges had expired. 2. The Regulations set out in regulation 22 the times prescribed under the RTA for making applications under various provisions of the RTA. 3. As noted above, pursuant to regulation 22(9) the period within which an application under s190 of the RTA for an order in relation to a breach of a residential tenancy agreement must be brought is 3 months after the applicant becomes aware of the breach. 4. To the extent that s39(7) of the RTA makes s39 a term of any residential agreement, it would follow that the landlords' billing of the tenant for water usage charges was a breach of the tenancy agreement. 5. The time for making an application founded upon such a breach would expire three months after the tenant first became aware of the breach, that is, after the tenant became aware that the premises did not comply with regulation 11. The Tribunal Member made no finding in relation to when the tenant became aware of the breach. 6. It might be inferred that the tenant first became aware when he received the report from Chiswick Plumbing, that is, on or about 10 October 2016, but there was no evidence before the Member specifically directed to that issue. 7. However, the application by the tenant was not founded upon breach of the residential tenancy agreement. The application by the tenant was founded upon s47 of the RTA. 8. That provision provides that an application may be made to the Tribunal if the landlord does not comply with a request by the tenant, for repayment of rent or other amounts that were not required to be paid, within 14 days of the request. 9. There is no period for the bringing of such an application set out in the RTA or prescribed in regulation 22. By virtue of s40 of the NCAT Act and rule 23(3)(b) of the Rules the time for bringing an application pursuant to s47 of the RTA is: "within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application." 1. That 28 day period commenced 14 days after the service of the request for repayment. The Member found that the request pursuant to s47 was sent on 2 December 2016. Accordingly the tenant became entitled to bring his application pursuant to s47(4) on 16 December 2016. 2. The application was filed on 19 December 2016, well within 28 days after the tenant became entitled to make his application. 3. There is no time limitation in s47 of the RTA on how long after an unjustified payment a tenant can make a request for repayment. Although it may seem incongruous that a tenant should be able to demand repayment at any time of moneys paid years earlier, that is the effect of the legislation, at least insofar as it applies in this case. In fact s47(2) expressly states that a request for repayment may be made "during or after the termination of the tenancy". 4. Accordingly the application for leave to appeal will be refused. The appeal will be dismissed. Orders 1. Application for leave to appeal refused. 2. Appeal dismissed ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ********** 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: 02 August 2017