Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Madden v LeClercq [2017] NSWCATAP 228 Hearing dates: 06 December 2017 Date of orders: 13 December 2017 Decision date: 13 December 2017 Jurisdiction: Appeal Panel Before: G K Burton SC, FCIArb, Senior Member S Thode, Senior Member Decision: (1) Leave to appeal out of time granted. (2) Appeal dismissed. Catchwords: Residential tenancy – return of bond Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: Nil Category: Principal judgment Parties: Donna Madden and Ian James Dalgleish (Appellants) Greg LeClercq (Respondent) Representation: Self-represented (Appellants) K Fulton, managing agent (Respondent) File Number(s): AP 17/42724 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 8 August 2017 (written reasons 11 September 2017) Before: J A Ringrose, General Member File Number(s): RT 17/20732 Decision under appeal reasons for decision 1. The appellants were the tenants and the respondent was the landlord under a written residential tenancy agreement of premises in Warriewood NSW dated 21 May 2012 for a fixed term of 12 months commencing 30 May 2012. The tenants vacated on 20 April 2017. 2. On the tenants vacating, the landlord's managing agent conducted an outgoing inspection on 23 and 26 April 2017 and prepared a report which was added to the ingoing inspection report at time of leasing. 3. The landlord then arranged cleaning of premises, some electrical repairs and repair of a lock, which were invoiced along with other matters totalling $1,529. The landlord as applicant claimed these costs from the bond in the primary application lodged 8 May 2017 with the female tenant as respondent, under s 175 of the Residential Tenancies Act 2010 (NSW) (RTA). The male tenant was later added as co-applicant. 4. The primary member heard the application on 8 August 2017. The landlord was only partly successful; the primary member ordered that $440 be paid out of the bond to the landlord and said the landlord had not proved his case on the other claims as one to be paid out of the bond. This represented about 44% of the cleaning invoice including GST. The primary member also ordered paid out of the bond $22 which was 25% of the electrical repair invoice including GST. 5. The tenants asked for written reasons which were provided to the parties on about 11 September 2017 (the date of the reasons). Extension of time 1. The appeal was lodged on 4 October 2017 which was 10 days beyond the time prescribed for lodging the appeal (Civil and Administrative Tribunal Rules 2014 (NSW) rule 25(4)(b)). The notice of appeal acknowledged that the reasons were provided on 11 September 2017, sought leave, and said the first available date to meet with Northern Sydney Tenancy Advocacy Service was 2 weeks from that date. During the appeal hearing the tenants said they had only a brief telephone conversation with the tenants' advocate. 2. The preliminary issue for determination was whether the appellants should be given an extension of time to lodge the appeal. 3. The relevant considerations in exercising the discretion to extend time for the filing of an appeal have been summarised by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and the authorities cited at [18] – [22]. In summary, the key issue is whether strict compliance with the rules would work an injustice on the appellant in circumstances where the respondent has already obtained a decision in its favour and therefore has a "vested right". Generally, relevant matters that should be considered are the length of delay in lodging the appeal, the reasons for the delay, the prospects of success, namely does the appellant have a fairly arguable case, and the extent of any prejudice suffered by the respondent. 4. The Appeal Panel determined that the appellants should be given the opportunity to present their case and that to deny them the opportunity to do so would have worked an injustice. Therefore the Appeal Panel extends the time for the appellants to lodge the appeal. 5. However, for the reasons given below we shall dismiss the appeal. Grounds of Appeal 1. The only matters raised in the appeal notice were said to be points of law. 2. The first was that the $990 cleaning invoice was misaddressed to the managing agent at the wrong real estate agency and was dated a month after the vacate date. 3. We are not persuaded the mere fact that the invoice was addressed to the incorrect agency raises an error of law. The residential premises were identified correctly, there is nothing unusual about a delay in issue of an invoice, the invoice narrative was fully itemised as to the acts of cleaning. The presence of the wrong real estate agency name did not destroy the inference that the invoice related to the identified premises. We were told by the tenants that the primary member drew that inference when the issue was raised during the primary hearing. 4. One of the managing agent's statutory declarations also identified the cleaning company and date of cleaning (27 April 2017). 5. To the extent the invoice identification involves a question of law, of which we are doubtful, it does not display error. 6. The second point of law raised by the appellants was that the tenants believed that all 3 statutory declarations by the managing agent employees were "deliberate false statements made for financial gain". The tenants had not produced a transcript of the primary hearing, they said for reasons of cost and that they did not understand they could transcribe it themselves and provide a copy to the other party for validation. The tenants said the primary member had not given them the opportunity to ask questions or put this allegation to the declarants. The primary member had said to at least one of the declarants words to the effect that he thought her statements were exaggerated compared with the photographic evidence before him and that exaggeration would not assist the landlord's case. 7. It is difficult to resolve the matters raised by the tenants without a transcript. However, in this case there is no need to do so. As pointed out to the tenants during the appeal hearing, the primary member expressly disavowed at primary reasons (PR) [18]-[20] reliance upon the oral evidence of both parties. The primary member said that evidence was exaggerated in addressing the cleaning issue. He also said the statutory declarations were of little assistance. Accordingly, the impugned evidence played no role in the primary member's decision. 8. That should be the end of the appeal as that was all that was raised on the notice of appeal. The areas of the notice relevant to a grant of leave to challenge findings of fact and findings of mixed fact and law were left blank. 9. However, the tenants advocated during the appeal hearing that findings of fact in relation to cleaning matters, and the electrical repair, were against the weight of evidence. We understand the appellants now seek leave to appeal on any other ground (see s 80(2) (b) of the Civil and Administrative Tribunal Act 2013 (NSW)). For the reasons that follow we are not of the view that leave should be granted. 10. In Collins v Urban the Appeal Panel stated at [77(2)] The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach – Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at [41]-[42], Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 1. So far as the electrical repair was concerned, the primary member at PR [10]-[11] gave full reasons for discounting the claimed amount by 75% and there was nothing said on appeal that indicated such finding was against the weight of evidence or anything other than fair and equitable. 2. So far as cleaning was concerned, the primary member at PR [20]-[27] did not use the witness statements or statutory declarations of either party and relied upon a comparison of the photographs and on the condition reports. The landlord, at the hearing below and again on appeal, relied on a series of photographs as well as the ingoing and outgoing condition reports. It was clear from the incoming condition report that the tenants had not made good their claim that the premises were in an unclean state when they took possession of the premises. The absence of any comment by the tenants relating to cleanliness in the incoming condition report was addressed at the primary hearing. The primary member said at PR [16]: "This broad assertion was not established by the tenants' comments on the ingoing report…" The member went on to "look at the objective matters such as photographs" (at PR [20]). His comparison of the photographs was detailed. The primary member then referred to the cost of cleaning, the items identified as needing further cleaning, and those which could be identified as the costlier items to clean. 3. We also have looked at the photographs taken by the tenants on leaving the premises, the photographs taken by the managing agent within a short period after the end of the tenancy and the inspection reports. We have particularly compared the reports with the tenants' photos and the primary member's findings. 4. The primary findings which were sought to be overturned contained at PR [22] among others that the venetian blinds appeared to be dusty. In respect of this head of damage, the primary member relied on image 11 of "venetian blinds which appear to be in need of cleaning". The photograph appears before us and we are of the view that the picture allows for that conclusion or that the conclusion was at least open to the member. 5. The primary findings which were sought to be overturned at PR [23] also included the kitchen area. The primary member's conclusions were justified by the images to which he referred. 6. The evidence we have mentioned also showed extensive dirt in the kitchen cupboards, a smear stain on the floor and dirt or marks around power points and on wall edges. 7. We have come to the same conclusion on cleaning as the primary member did. We have also come to the conclusion that the primary member's findings were well within the range of reasonable outcomes on the available evidence and certainly not against the weight of evidence or not fair and equitable. 8. Accordingly, we dismiss the appeal. Orders 1. Leave to appeal out of time granted. 2. Appeal dismissed. *********** ​ I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2017