Walsh v Gibson [2017] NSWCATAP 207

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Walsh v Gibson [2017] NSWCATAP 207 Hearing dates: 25 October 2017 Date of orders: 31 October 2017 Decision date: 31 October 2017 Jurisdiction: Appeal Panel Before: K O'Connor, AM, ADCJ, Deputy President Appeals D Charles, Senior Member Decision: (1) Leave to appeal out of time granted.

(2) Leave to extend appeal to other grounds refused.

(3) Appeal dismissed. Catchwords: RESIDENTIAL TENANCY – malfunctioning septic system – reduction of amenity – appeal against order for rent reduction – no error of law – no substantial miscarriage of justice – appeal dismissed. Legislation Cited: Residential Tenancies Act 2010 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Category: Principal judgment Parties: Aida Walsh (Appellant) Hope Gibson (Respondent) Representation: In person (Appellant) No appearance (Respondent) File Number(s): AP 17/28564 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Gibson v Walsh [2017] NSWCATCCD Date of Decision: 14 July 2017 Before: M Gilson, General Member File Number(s): RT 17/13773

REASONS FOR DECISION 1. This is an appeal by a landlord against certain orders made under the Residential Tenancies Act 2010 (RTA) in favour of her tenant. The appeal is brought pursuant to s 80(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. On 11 July 2015 Ms Walsh leased a dwelling on a farm property that she owned near Taree to Ms Gibson (12 months lease, as renewed July 2016). As at March 2017 the weekly rent was $360. The dwelling is one of two on the property. The other is also rented out, to a Ms Palesy. The two dwellings shared certain facilities, of relevance to this case, the septic system. 3. On 23 March 2017 Ms Gibson applied to the Tribunal for an order for reduction of rent because the premises were unusable or uninhabitable; an order for repayment of rent paid in excess of the reduction specified by the Tribunal; and an order that Ms Walsh carry out repairs. 4. The Tribunal undertook a preliminary examination of the application on 28 March 2017 (the conciliation and group list hearing) and gave directions for the hearing of the matter. It proceeded to hearing at Taree on 5 June 2017. 5. The Tribunal found proven that the septic tank and system serving the premises had not functioned satisfactorily since November 2016, and the hot water system had not been usable for a period in October 2016. . Ms Gibson, was present in the hearing room, and gave oral evidence. Ms Walsh, participated by telephone from her solicitor's office in Wyong, and gave oral evidence. The Tribunal gave oral reasons for decision at the conclusion of its hearing and made orders. The following orders are in issue in this appeal: 1. [The landlord] is to cause the undertaking of the following work in a proper and workmanlike manner on or before 19 June 2017 Details of work order a. Have the septic system fully assessed and repaired as necessary. b. Have the septic system pumped out. The cost of the pump out is to be paid for by the landlord as the septic system is serving at least two premises. 2. It is ordered that the rent shall not exceed the sum of $240 per week as from 1 November 2016 to 31 October 2017, or until the septic system is fully rectified, whichever occurs first. Having regard to the reduction by the landlord of the following services or facilities fro the following period [sic]. Defective water system It is determined by the Tribunal that the current rent is excessive in accordance with the Residential Tenancies Act 2010. 4. The landlord is to apply a further rent credit in the sum of $100, being determined compensation arising from the failure of the hot water system. 1. On 9 June 2107, Ms Walsh's solicitor requested written reasons for the decision. They were supplied on 14 July 2017. In the meantime, on 27 June 2017 Ms Walsh's solicitor had filed a notice of appeal on her behalf. Ms Walsh's solicitor filed a second notice of appeal on 11 August 2017, after receipt of the written reasons. 2. The rule in relation to a residential tenancy appeal is that the appeal must be lodged within 14 days 'from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later)': Civil and Administrative Tribunal Rules 2014, cl 25(4)(c). This time line is an exception to the usual rule which requires appeals to be lodged within 28 days of the applicable notification. 3. There is a brief statement in each notice of appeal referring to the lateness in lodgement of the appeal. The first gave the date of notice of the orders as 5 June. The second notice of appeal used as the starting date, 16 July 2017, the date given as the date of receipt of the written reasons. 4. Ms Walsh appeared in person at our hearing. We were informed, after making contact with the solicitor's firm at the beginning of the hearing, that the firm no longer acted for Ms Walsh in the matter. Ms Gibson did not appear. She is not bound to appear. It is the appellant's appeal. 5. It will be seen that the conduct of the matter shifted during the course of the preparation of the appeal from a solicitor to Ms Walsh personally. Because of the withdrawal of her solicitor, we were not in a position to obtain a complete explanation of any possible reasons for the lateness in filing, which might, for example, have been affected by a misunderstanding of the shorter time period that applies to lodgement of appeals from decisions made under the RTA. We permitted Ms Walsh to proceed with her appeal. 6. A party has a right to appeal against a decision of the Tribunal on 'any question of law'. In addition a party may appeal 'with the leave of the Appeal Panel, on any other grounds': NCAT Act, s 80(2)(b). In this instance, the notice of appeal does not raise on its face any questions of law. It is in essence an appeal on non-question of law grounds and therefore may only proceed if leave is given by the Appeal Panel. The notice of appeal addresses the special rule (NCAT Act, Sch 5, cl 12) that applies to grants of leave to appeal on other grounds from decisions of the Consumer and Commercial Division of the Tribunal, i.e.: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision 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). Note: Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. 1. The notice of appeal (for this purpose we refer to the second notice of appeal) made submissions responding to each of the three alternative criteria set out in cl 12. 2. At hearing, Ms Walsh advised us that the tenancy had ended on 10 September 2017 when Ms Gibson vacated the property, as a result of a 90 day no grounds notice of termination. There were rent arrears. She had taken action under the RTA in the Tribunal, and received an order in proceedings RT 17/34550 at Taree on 19 October 2017 in the amount of $5897.15. The order she showed us did not reveal the basis upon which it was calculated. She said that the amount had been calculated taking into account the reduction in rent set by the order made on 5 June 2017, using as the period for that purpose 1 November 2016 to 10 September 2017.. 3. Ms Walsh made submissions as to the unfairness of the orders made in relation to the septic system issue and for a reduction of rent. The two are interlinked. 4. As previously noted, the Tribunal found proven Ms Gibson's case that the septic system was defective and had not worked properly for some time. It made orders in the nature of orders for specific performance (order 1), and an order for a reduction of rent (order 2), choosing 1 November 2016 as the date when the amenity of the property was reduced by the malfunctioning septic system and the stench that resulted and persisted. 5. Ms Walsh's notice of appeal attached a number of the documents that had been before the Tribunal at its hearing on 5 June 2017. They included handwritten statements from Ms Gibson and from the occupant of the other dwelling on the property, Ms Palesy. In her statements Ms Gibson had asserted that the septic system serving the two dwellings had not worked properly since September 2016. Ms Palesy in her statement (undated, but we assume prepared shortly before the hearing), described the system as not working properly 'for 6 months now'. Ms Walsh's material included an invoice from Lapinskas Holdings dated 29 March 2017 (the day after the Tribunal's preliminary examination of the case, conducted 28 March 2017).. The invoice noted that the septic pump out contractor, MidCoast Liquid Waste, who had gone to the property the previous day had identified a leak in the sewage system. The author of the invoice confirmed that observation. The invoice described the problem as follows: 'The 25mm pipe connecting the two sewage systems [serving the two dwellings] was leaking from a fracture on the top of the pipe at the entry to the second tank.' The invoice noted 'The pipe between the two tanks was replaced and 20mm blue metal placed under and around the replaced pipe.' 6. It is apparent from Ms Walsh's written statement placed before the Tribunal in those proceedings, from the written reasons provided by the member, and from assertions made on her behalf in the notice of appeal, that she believes that the disruption of the sewage system was attributable to conduct of Ms Gibson in disposing of items such as nappies into the system. In her view, Ms Gibson should have been held responsible for attending to the problem and fixing it. It is apparent from the Ms Gibson's statement and Ms Palesy's statement that, in their opinion, the work done 29 March 2017 had not completed the problem, and, at least, the problem of stench continued. 7. In our view, the findings made by the Tribunal adverse to Ms Walsh were clearly open to it on the evidence. There was evidence of a problem as from about September 2016. There was evidence of the attempted repair works undertaken on 28 and 29 March 2017. The Tribunal was not satisfied that the problem had been satisfactorily resolved (para [15] of its reasons). There was evidence that the problem of the stench, at least, had not fully abated by the time of the proceedings. The Tribunal noted that it had no evidence in relation to the allegation that the problem was due to Ms Gibson's disposal practices, and that the allegation was 'refuted by the tenant' (see [15]) from whom it had heard orally. There was no substantial miscarriage of justice. 8. The order for reduction of rent (order 2) was made under s 44(1)(b) of the RTA which provides, relevantly to this case: 44 Tenant's remedies for excessive rent (1) Excessive rent orders. The Tribunal may, on the application of a tenant, make any of the following orders: … (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount. (5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive: … (d) the state of repair of the residential premises, (e) the accommodation and amenities provided in the residential premises, … (6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent: (a) has effect for the period (of not more than 12 months) specified by the Tribunal, and (b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable. 1. In our view, an order of this kind was clearly appropriate in relation to the circumstances of this case, as found by the Tribunal. Ms Walsh submitted to us that the date of commencement of the reduction was wrong. In our view, the Tribunal had regard to the dates given in Ms Gibson's and Ms Palesy's statements as to when the problem commenced. Ms Gibson dated it around September 2016 (15 months after she and her family took up residence) and Ms Palesy set it at 6 months before the making of her statement, which we take to be about December 2016. In our view, there was evidence to support the Tribunal's choice of 1 November 2016 as the start date for the loss of amenity. There was no substantial miscarriage of justice. 2. She also referred us to a further statement that she had received from a contractor on 22 June 2017, shortly after the date in order 1 for the further work to be done on the problem. In that statement Mr Leigh Halloran of Tanks2Go, waste water treatment contractor, Taree advised that the system was currently functioning satisfactorily, and there are no smells in the system. He said that the 'system has obviously been pumped out at some stage not too long ago as solids in the septic were not heavily built up and again, were satisfactory'. 3. She submitted that the system was by that date fully compliant, and therefore the condition set out in order 2 had been met with the result that she had by that point became entitled to have the rent returned to its usual level of $360. We advised her that this was a matter that could have been raised in the other proceedings that led to her award for rental arrears. It was not apparent from scrutiny of the terms of the orders whether this submission had been made, whether the contractor's statement of 22 June 2016 had been provided to the Tribunal for consideration or whether it had been taken into account in its ultimate order. 4. The final matter was the order for $100 made against Ms Walsh in relation to the failure of the hot water system. Ms Gibson had been without hot water from 24 October 2016 to 30 October 2016, which the Tribunal stated [at 18] 'caused her to expend money on travelling to shower, and buying take away meals as she could not cook effectively'. In addition she 'had to replace the tank water that she had lost' as a result of the failure of the system. She had claimed $360 for the various expenses incurred, but did not provide any receipts of invoices. The Tribunal noted that Ms Walsh had already given her a rent credit of $100 for this inconvenience. 5. Ms Walsh submitted to us that that adjustment had been made in full settlement of the inconvenience caused. The Tribunal decided to award Ms Gibson a total of $200 by way of 'economic compensation' for the losses incurred by Ms Gibson. It took into account the $100 already credited to her, and thus made an order for a further payment of $100. In our view, it was clearly open to the Tribunal to proceed in that way. Ms Gibson's statement referred for example to the petrol costs she had incurred travelling back and forth to her in-laws over those days, to enable her and her children to wash, and to cook. There was no substantial miscarriage of justice.