Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Langford-Smith v Harris [2017] NSWCATAP 198 Hearing dates: 3 July 2017 Date of orders: 10 October 2017 Decision date: 10 October 2017 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member R Titterton, Principal Member Decision: (1) The time for the filing of the Notice of Appeal be extended to 5 April 2017. (2) Leave to appeal be granted in respect of the date on which the tenant gave the landlord vacant possession of the premises and the tenant's first ground of appeal and the appeal allowed in part. (3) Order (1) of the Decision be varied so as to order the landlord to pay the tenant the sum of $6,560.97. (4) The appeal otherwise be dismissed. Catchwords: Residential Tenancy Agreement – leave to appeal – no question of principle. Application for leave to appeal – where matters not argued previously raised on appeal. Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Cases Cited: BHP Billiton Ltd v Dunning [2013] NSWCA 421 v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 Collins v Urban [2014] NSWCAT AP 17 Coulton v Holcombe [1986] HCA 33 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: John Langford-Smith (Appellant) Danielle Harris (Respondent) Representation: Self Represented (Appellant) Self Represented (Respondent) File Number(s): AP 17/15798 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 9 March 2017 Before: W Priestley, General Member File Number(s): RT 16/50767 and RT 16/47458 REASONS FOR DECISION 1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 9 March 2017 (the Decision). The Tribunal ordered the respondent landlord to pay the appellant tenant the sum of $4,562.26. 2. The appellant has appealed from the Decision. For the reasons that follow, we have decided: 1. To extend the time the filing of the Notice of Appeal; 2. To grant leave to appeal in respect of the date on which the tenant gave the landlord vacant possession of the premises and the tenant's first ground of appeal and to allow the appeal in part; 3. To vary order (1) of the Decision so as to order the landlord to pay the tenant the sum of $6,560.97; and 4. Otherwise to dismiss the appeal. First preliminary matter - extension of time 1. The Notice of Appeal was filed on 5 April 2017. The tenant states in the Notice that he received the Decision on 9 March 2017. As this is a matter involving a residential tenancy matter, the tenant should have lodged his appeal within 14 days of receiving the Decision, that is, on or before 23 March 2017. Accordingly, it was filed 13 days late. By letter to the Tribunal dated 20 May 2017, the tenant provided a long explanation as to why the Notice of Appeal was not filed until 5 April 2017. In short, the tenant says that he understood that he had 28 days in which to file his appeal. In addition, he says Tribunal did not explain either during the hearing or in the Decision what his appeal rights were, and that there was an obligation to file an appeal within 14 days. 2. The tenant's application for leave to extend the time for filing the appeal is not opposed by the landlord. As the parties have agreed on the second preliminary matter, and that the order of the Tribunal has to be varied to reflect that matter, it follows that we should extend the time for the filing of the Notice of Appeal. Second preliminary matter – date of vacant possession 1. At various points throughout the Decision, the Tribunal refers to the tenant as handing the keys back to the landlord's agent on 24 October 2016 (see for instance par [27]; see too par [2] where the Tribunal states that the tenant removed his possessions from the premises on 17 October 2016, but handed the keys back on 24 October 2016). At the hearing, it was common ground that the Tribunal erred in so finding, and that in fact the tenant vacated the premises on 17 October 2016. Accordingly, the parties agreed that, whatever amount the tenant was to have paid in rent (which the Tribunal calculated using the methodology outlined in par [41] of the Decision) should be determined by a vacant possession date as at 17 October 2016. Therefore, the parties agreed that the quantum of the compensation owed to the tenant ought to be increased by the equivalent of eight days of rent, namely $658.71. The Decision 1. There were two matters before the Tribunal. The first (application RT 16/47458), was lodged by the landlord Ms Harris (to whom we will now refer to as the landlord). She sought payment of three weeks' rent from the bond. The other application (application RT 16/50767) was made by the tenant Mr Langford Smith. He sought payment of the whole of the bond and compensation totalling $18,535.40. The background to the claims was summarised in par [2] of the Decision as follows: On 10 December 2013 the parties entered into a residential tenancy agreement ("the agreement") regarding a four bedroom house in Lennox Heads ("the premises"). Initially the rent was $575 per week. At the end at the tenancy it was $600 per week. On 18 December 2015, the dishwasher was removed, causing flooding and consequent damage to wooden flooring, kickboards and carpet. In July 2016, the landlord carried out repairs to the water damaged areas, and had the wooden floors in the premises re-sanded and re-sealed The tenant claims fumes from the product used to re-seal the wooden flooring caused him to become ill, and made the premises uninhabitable. He moved himself and his family to alternative accommodation. On 17 October 2016 he removed his possessions from the premises, and on 24 October 2016 he handed back the keys to the landlord's agent. 1. The Tribunal dismissed the landlord's claim for the bond. In relation to the tenant's claim, the Tribunal found that the tenant's health was at a real risk of being adversely and seriously affected while the vapour from the sealant continued to be present in the house (see par [21]), and that the tenant's losses arose from the landlord's breach of ss 50 and 63 of the Residential Tenancies Act 2010. Section 50 provides for a tenant's right to quiet enjoyment, and s 63 provides that a landlord must maintain residential premises in a reasonable state of repair. 2. The tenant claimed compensation of $18,535.40 being: 1. Refund of rent for the period 6 July to 2 September 2015; 2. Power used by the landlord during renovations which was billed to the tenant, $33.26; 3. Compensation for emergency accommodation costs, $10,945.00; 4. Lost income from being unable to work the afternoon of the hearing held on 25 November 2016, $2,500; and 5. Costs (unquantified). 1. The Tribunal approached its task, having found that the landlord had breached her obligations, in the following way (see par [41]): In the Tribunal's view the correct way to calculate the tenant's loss is to determine the difference between what he would have paid if there had been no breach by the landlord, from 10 July (when he vacated to allow the repairs to be done) to the end of the tenancy, and the costs that he actually incurred plus the rent he paid. To compensate the tenant, as he suggests, by refunding him the rent while not able to live in the premises, and compensating him for the costs of alternative accommodation, would be "double dipping". 1. Following that approach, for the reasons explained in pars [43] to [47] of the Decision, the Tribunal concluded that the tenant was entitled to compensation in the sum of $4,562.26. The Tribunal also decided that the landlord was not entitled to be compensated for legal fees incurred or for lost income. The Notice of Appeal 1. The Notice of Appeal filed by the tenant challenges the quantum of compensation awarded to him by the Tribunal, and the failure of the Tribunal to compensate him for legal fees or lost income. The tenant's written submissions attached to the Notice of Appeal may be summarised as follows. 2. First, the Decision was not fair and equitable in that: 1. The Tribunal failed to award him some $1,340 in relation to accommodation costs incurred when the tenant had to move out of the subject premises. The tenant says that he only received the receipts after the hearing, but that he tendered bank statements at the hearing showing that the expenses had been incurred. The tenant submits that the Tribunal accepted that evidence but appears to have overlooked it; 2. The Tribunal disallowed $280 of a claim of $680 for second work trip to Rockhampton. The tenant says that this was not fair and equitable when the Tribunal specifically accepted that the costs of short term accommodation were higher in school holidays; 3. The method used by the Member to calculate the loss was not fair and equitable in the circumstances, especially for those periods where he made no claim on extra accommodation costs. The Tribunal failed to award him $514.29 relating to accommodation costs incurred when he went on a "road trip" with his family from 26 September to 2 October 2016, when he only claimed the regular weekly rent of $600; 4. The Tribunal failed to award him $771.43 for costs he did not claim for the period 8 October to 17 October 2016 for living in East Ballina; 5. Even if the Tribunal was correct, it was in error in calculating 16 weeks and two days for the period 10 July to 24 October 2016 at par [42] of the Decision. The tenant states that this period is 106 days, not 114 days. Therefore he submits that the Tribunal should have awarded him an additional $685.61; 6. The Tribunal's method of calculation awarded the landlord three weeks rent that while claimed was later dropped, in circumstances where the Tribunal deducted $600 per week for the period 26 September to 17 October 2016 from his accommodation costs. The tenant claims that an additional $1,800 should have been awarded to him; 7. The deduction from the claim for compensation of full rent of $600 per week from 10 July 2016 was the wrong method to use in the circumstances and the Tribunal should have awarded him an additional $8,485.71 for the period 10 July to 17 October 2016. 1. For convenience, we will refer to these grounds as the first, second, and up to seventh grounds of appeal. 2. Secondly, the Decision was against the weight of the evidence in that the date the tenant vacated was in error, and inconsistent with the evidence; the landlord had agreed to pay rent and extra accommodation costs for the period 10 July to 2 August (24 days); and in deducting $600 per week for the period 10 July to 3 August 2017 the Tribunal failed take into account evidence that the landlord had been compensated by the insurer. The Tribunal should have awarded the tenant an additional $2,057.14, being 24 days at $600 per week rent. (We shall refer to this as the eighth ground of appeal.) 3. Thirdly, in relation the failure of the Tribunal deciding that the landlord was not entitled to be compensated for legal fees incurred or for lost income, the tenant submitted that that decision was not fair and equitable because the Tribunal did not permit him to present a statement he had prepared which addressed s 60 of the Civil and Administrative Tribunal Act 2013 (the Act). (We shall refer to this as the ninth ground of appeal.) Reply to Appeal 1. The landlord filed a Reply to Appeal on 2 May 2017. The Reply attached detailed submissions dealing with each of the tenant's submissions. In summary, the landlord submits: 1. As to the first ground of appeal, that amount was not included by the tenant in the original application, and she relies on the findings of the Tribunal; 2. As to the second ground of appeal, the landlord relies on the findings of the Tribunal; 3. As to the third and fourth grounds of appeal, the tenant never made these claims in his original application; 4. As to the fifth ground of appeal, this amount was an overpaid amount and not owed to the tenant and in fact owed to the landlord; 5. As to the sixth ground of appeal, this rent was never paid by the tenant and so cannot be refunded; 6. As to the seventh ground of appeal, that this amount was refunded to the tenant when he was not in occupation of the property; and 7. As to the $2,057.14 claimed, that this amount has already been credited to the tenant. 1. As to the claims in relation to costs and lost income, the landlord submits that the Tribunal clearly explained to the tenant during the hearing that he was not entitled to compensation for lost income. In relation to legal fees, the landlord submits that at no time did the landlord provide any evidence of any costs associated with legal fees. Nature of an appeal 1. The basis upon which appeals from decisions of the Consumer and Commercial Division is set out in s 80 of the Act. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds. Error of law 1. 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: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. At [13] of that decision the Appeal Panel set out a non-exhaustive list of questions of law that might arise from Tribunal decisions. In summary, the questions of law identified are whether there has been a failure to provide proper reasons; whether the Tribunal identified the wrong issue or asked the wrong question; whether a wrong principle of law had been applied; whether there was a failure to afford procedural fairness; whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; whether the Tribunal took into account an irrelevant consideration; and whether there was no evidence to support a finding of fact; and whether the decision is so unreasonable that no reasonable decision-maker would make it. 2. We have examined the grounds of appeal and the tenant's lengthy submissions carefully. We have identified no arguable errors of law. In particular, the tenant has not established an error in the method used by the Tribunal to determine his actual loss. Accordingly, in our view, the tenant requires leave to appeal in respect of any other claimed error. Error other than an error of law 1. Clause 12 of Sch 4 of the Act says that an Appeal Panel may grant leave only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable, or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel of the Tribunal conducted a review of the relevant cases at [65]-[79] and concluded at [84] that: 1. 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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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. Consideration The first ground of appeal 1. We are satisfied that leave should be granted in respect of this ground. We are satisfied on the basis of the material presented to us, which included the materials before the Tribunal, that the tenant had provided the bank records to the Tribunal as claimed. We are satisfied that these materials were before the Tribunal, that they were the subject of discussion, and that the Tribunal's overall decision in relation to the compensation to be paid to the tenant is against the weight of the evidence. We grant leave to the tenant in respect of this ground and allow this ground of appeal. It follows that any compensation to be paid to the tenant by the landlord should be increased by $1,340. The second ground of appeal 1. We do not accept the tenant's submission that the Tribunal specifically accepted that the costs of short term accommodation were higher in school holidays (a reference to par [43](f) of the Decision). In our view, this matter is dealt with adequately, albeit briefly, in par [43](f) of the Decision. The tenant confirmed at the appeal hearing that he had not told the Tribunal that it was school holidays. Leave in respect of this ground is refused. The third, fourth, sixth and eighth grounds of appeal 1. The third, fourth seventh and eighth grounds of appeal may be dealt with together. 2. We accept the landlord's submission that these matters were never raised in the tenant's application. We do not think it fair to consider them now. As the plurality of the High Court of Australia noted in Coulton v Holcombe [1986] HCA 33 at [9]: "in a recent decision of six Justices of this Court - University of Wollongong v. Metwally (No. 2) [1985] HCA 28; (1985) 59 ALJR 481, at p 483; [1985] HCA 28; 60 ALR 68, at p 71 - the Court said: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so". 1. In the circumstances, we do not consider that leave should be granted to allow the tenant to agitate these matters on appeal. The fifth ground of appeal 1. We consider that there is substance in the landlord's submission that this amount was overpaid and not owed to the tenant at all, but rather should be reimbursed to the landlord. However, as the landlord has not filed her own appeal, and did not otherwise seek an order for this amount, we propose to make no order in relation to this ground of appeal. In the circumstances, leave in respect of this ground is refused. The seventh ground of appeal 1. This ground relates to the tenant's claim for the reimbursement of his rent in the period from 26 September to 2 October 2016 (6 days), when he was on a road trip with his family "to avoid the toxic environment in the house". We accept the landlord's submission that this claim has already been considered and in fact accepted by the Tribunal, and reimbursed to the tenant, by reason of the Tribunal's methodology in calculating the tenant's claim for compensation, that is, the Tribunal calculated the compensation by reference to the rent paid by the tenant to (the now agreed) date of 17 October 2016. In the circumstances, leave in respect of this ground is refused. Costs 1. There is no reference to costs in the Decision, other than in par [47] where the Tribunal states that the tenant is not entitled to whatever legal fees he may have incurred. As we have noted, the tenant claims that he was not given the opportunity to present his prepared statement in support of his application for costs. In written submissions relied on in the appeal, the tenant sets out a number of grounds as warranting an award of costs. Correctly, he refers to s 60(3) of the Act as the relevant provision, and he accepts, or appears to accept, that he must establish special circumstances as warranting an award of costs. In this respect, we note that s 60 relevantly provides: (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. 1. In summary, the matters relied on by the tenant in his claim for costs include: the conduct of the landlord in including "without prejudice" correspondence in its materials filed with the Tribunal; the landlord's failure to paginate its materials; the landlord filing a frivolous and vexatious claim; the landlord's failure to accept his settlement offers, and offers to settle; the time he spent in preparing his claim, and by incurring legal costs. 2. We are not satisfied these matters are established on the evidence before us. Even if we were, we do not consider that, either individually or cumulatively, they establish special circumstances. Whether or not the Tribunal provided reasons for his refusal to award costs, having regard to the detailed submission by the tenant to the Appeal Panel, there is no basis for disturbing the Tribunal's conclusion. 3. As to the claim for lost income, we do not know what the Tribunal Member told the tenant during the hearing. But assuming that a claim for lost income could be considered to be a cost for the purpose of the Act, a matter about which we express no view, as we have rejected the claim for costs, it follows that any claim for lost income is also rejected. Conclusion 1. For the reasons given above, we order that: 1. The time for the filing of the Notice of Appeal be extended to 5 April 2017; 2. Leave to appeal be granted in respect of the date on which the tenant gave the landlord vacant possession of the premises and the tenant's first ground of appeal and the appeal allowed in part; 3. Order (1) of the Decision be varied so as to order the landlord to pay the tenant the sum of $6,560.97; and 4. The appeal otherwise be 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. 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