Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kaci v Birch [2018] NSWCATAP 48 Hearing dates: 15 November 2017 Date of orders: 21 February 2018 Decision date: 21 February 2018 Jurisdiction: Appeal Panel Before: L P Robberds QC, Senior Member L Wilson, Senior Member Decision: 1. Application for extension of time in which to appeal is dismissed. 2. Application for leave to appeal is dismissed. 3. Appeal is dismissed. Catchwords: Residential tenancy – premises modified without Council consent – monetary claim by tenant based on lack of Council consent – tenant seeks to rely on submissions as evidence – rejected by Tribunal member – extension of time sought by tenant to appeal – principles applicable – leave to appeal – principles applicable – whether tenant suffered loss or damage Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Environment Planning & Assessment Act 1979 (NSW) Residential Tenancies Act 2010 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: Erana Kaci (Appellant) Nathan Birch (Respondent) Representation: Counsel: E Yin (Respondent) Solicitors: SCB Legal (Appellant) Francom Legal (Respondent) File Number(s): AP 17/35781 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 17 July 2017 Before: C Campbell, General Member File Number(s): RT 17/20629 REASONS FOR DECISION 1. On or about 24 March 2016 Nathan Birch (the landlord) entered into a residential tenancy agreement with Erana Rebecca Kaci (the tenant) in respect of residential premises at Annangrove, NSW (the Annangrove property). The term of the agreement was 26 weeks starting on 24 March 2016 and ending on 28 September 2016. The rent was $420 per week. The tenant received a rent subsidy and paid $205.15 per week towards the rent. Blink Property Pty Ltd ("the agent") managed the premises on behalf of the landlord. 2. On 28 June 2016 the tenant sent an email to the agent requesting it to forward the email to the landlord. The subject of the email was "Breaking lease" and in the email the tenant stated relevantly: It is a big regret to have to break my lease as I have enjoyed my time here and I love your property so much. Unfortunately I have to move due to my mother being sick again. She had my aunty looking after her but she is no longer able to help her anymore and care for her. As I am the eldest my mum is asking me to move back to penrith to help her. 1. On 13 September 2016 the tenant sent an email to the landlord asking if she could please withdraw her notice to vacate. 2. There does not appear to be any direct evidence as to whether the landlord agreed to allow the tenant to withdraw the notice to vacate. However in an affidavit (or proposed affidavit) of Kim Nguyen (a senior manager of the agent) it is stated that from 24 September 2016 the tenant did not sign a new tenancy agreement and was residing at the property on a month to month basis. In that same document Mr Nguyen stated that between 24 March 2016 and 14 February 2017, the agent did not receive any contact or complaints from the tenant about the property being uninhabitable or unsafe or that the property had not been approved by the Council. 3. Mr Nguyen also stated that during the time of the tenant's tenancy, the agent attended the property at least twice and inspected the property as part of the agreement with the tenant's permission. It was said that during these inspections the tenant did not raise any concerns or issues about the property being unsafe, uninhabitable or that the property was not approved by the Council. 4. The above document of Mr Nguyen states that on 14 February 2017 the tenant vacated the property. 5. On 28 April 2017 the tenant filed an application in the Tribunal seeking the following orders pursuant to the following sections of the Residential Tenancies Act 2010 (NSW) (the Act): 1. s47 - an order for repayment of rent made by the tenant contrary to the Act and agreement; 2. s187 (1) (c) - an order for payment of an amount of money; and 3. s187 (1)(d) - an order as to compensation. 1. The application form asked the tenant for the reasons she was asking for those orders and the tenant gave those reasons as follows: Reasons are in the letter sent to the landlord requesting repayment of monies. Attached is the letter. In summary, the premises did not have an occupation certificate and were not found fit for occupation. The landlord was seeking approval of premises. The landlord has already received a fine from Council for this. Council informed the tenant that the premises were not safe – no windows in premises. There was interference with the tenant's right to quiet enjoyment. 1. There were in fact copies of four letters from the solicitors for the tenant attached to the application. The complaints made by those letters can, for present purposes, be summarised as follows: 1. on 16 December 2016 the Hills Shire Council attended the premises to undergo an inspection in relation to the conversion of a garage into a secondary dwelling and garage; 2. at this time a Council member knocked on the tenant's front door in an attempt to locate the tenant's neighbour. The tenant directed him to the bottom of the hill where the main house on the Annangrove property is located. Some 30 minutes later the neighbour knocked on her door and requested the tenant to leave the premises in five minutes to hide from the Council officer. This was a significant inconvenience as the tenant had two young children. 3. the tenant was informed by the Council that the two bedrooms that had no windows were non-compliant due to inadequacy of fire exits; 4. the tenant was informed that an application was made to the Council following the tenant's taking possession of the premises seeking approval to convert the garage into a secondary dwelling. No occupation certificate had been obtained. Until the occupation certificate had been provided, the premises were not approved as being liveable and of acceptable quality; and 5. the tenant was under the belief that the premises were in a liveable condition and approved by Council. At the point in which she became aware of the illegality of the premises and following the interference with her rights to quiet enjoyment, the tenant and her children vacated the premises on 14 February 2017. 1. The application was dismissed by the Tribunal because it was not satisfied that the grounds required to make out the orders sought had been established. The Tribunal gave the following reasons. There was a "dismissal on no evidence grounds". The Tribunal's reasons record that the only document relied on by the tenant was the amended written submissions of the tenant and that the tenant was present throughout the hearing but declined to give evidence. There was no statement, sworn affidavit nor statutory declaration from the tenant. There was no email, photograph, letter, telephone record or any other contemporaneous document from the tenant before the Tribunal in support of the application. Because the tenant declined to give evidence and made no statement or swore an affidavit, the landlord was precluded from cross-examining her. The amended written submissions were just that, they do not go to prove any of the allegations made by the tenant. Written submissions are argumentative, they are not probative and are not capable of establishing necessary facts. In the present case the tenant has not put before the Tribunal any evidence. The Tribunal member found the amended written submissions were not evidence and in the absence of any evidence from the tenant, the application was dismissed. 2. For completeness the Tribunal member then dealt with the claims made by the tenant in the amended submissions. These claims were based on ss47, 52(3), 26 and 187 (1) (c) of the Act. Section 47 of the Act 1. This section is in the following terms: 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 the 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 repayment 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. The Tribunal member dealt firstly with the claim based on this section. lt was the tenant's claim that the landlord was to refund all rent paid for the entire duration of the tenancy agreement as the premises did not have Council approval. It was submitted that the agreement was unlawful from the start and accordingly this rendered the residential tenancy agreement void ab initio. 2. The Tribunal member rejected that submission stating that the tenant got what she bargained for and that there was no evidence that the tenant had anything but exclusive possession of the premises during the entire currency of the tenancy. Section 52 (3) of the Act 1. This section is in the following terms: 52 Landlord's general obligations for residential premises (1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. (2) A landlord must not interfere with the supply of gas, electricity, water, telecommunications services or other services to the residential premises unless the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. (3) A landlord must comply with the landlord's statutory obligations relating to health or safety of the residential premises. Note. Such obligations include obligations relating to swimming pools under the Swimming Pools Act 1992. (4)This section is a term of every residential tenancy agreement. 1. The Tribunal member's reasons recorded that the tenant submitted the landlord was in breach of his obligations pursuant to s 52 (3) of the Act by failing to comply with his statutory obligations relating to the health and safety of the premises. In support of this alleged breach the tenant relied upon the purported conversation with the Council on 16 December 2016 when she was told it was illegal to have a bedroom without a window as this poses a risk in the event there was a fire. The Tribunal member repeated that there was no evidence from the tenant in relation to this telephone conversation with the Council. 2. It was submitted that the first time the tenant knew the premises were not approved was in a telephone call she received from the Council on 14 February 2017. This was the day she was vacating in accordance with her own notice of termination. The Tribunal member stated that there was no evidence before the Tribunal from which an inference could be drawn to suggest the tenant vacated on 14 February 2017 as a matter of urgency due to becoming aware in a telephone conversation on 16 December 2016 that the premises were unsafe or posed a fire risk. The Tribunal member stated that the only evidence in relation to the termination of the tenancy was in the tenant's notice of termination, which made no reference to any urgency to vacate. Rather, the tenant waited for three weeks after giving the notice before she vacated. 3. The affidavit or proposed affidavit of Mr Nguyen stated that on or about 24 January 2017 the tenant sent a notice to vacate to the agent. A copy was attached to the affidavit and it stated "may I please advise that I will be giving 3 weeks notice as of today." This was sent by email on 24 January. Section 26 of the Act 1. This section relevantly provides: 26 Disclosure of information to tenants generally (1) False representations A landlord or landlord's agent must not induce a tenant to enter into a residential tenancy agreement by any statement, representation or promise that the landlord or agent knows to be false, misleading or deceptive or by knowingly concealing a material fact of a kind prescribed by the regulations. … (4) Information statement to be given A landlord or landlord's agent must give a tenant an information statement in the approved form before the tenant enters into the residential tenancy agreement. Maximum penalty: 20 penalty units. 1. The tenant submitted that the landlord was in breach of s26 by not disclosing there was no occupation certificate issued by the local council for the premises at the commencement of the tenancy. 2. The Tribunal member held that there was no evidence the landlord or his agent falsely or deceptively or knowingly concealed any information from the tenant at the commencement of the tenancy. The first notice received by the landlord from the Council was a letter dated 1 April 2016 and as deposed to in his sworn affidavit the landlord received the letter on 4 April 2017. The receipt of this letter was after the parties signed the residential tenancy agreement on 24 March 2016. (This date 4 April 2017 appears to refer to the wrong year.) Section 187 (1)(c) and (d) of the Act 1. This section relevantly provides: 187 Orders that may be made by Tribunal (1)The Tribunal may, on application, by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders: …. (c) an order for the payment of an amount of money, (d) an order as to compensation, … (2)Without limiting the Tribunal's power to make an order as to compensation, the Tribunal may order compensation to be paid for the following: … (a) loss of rent, (b) any other breach of a residential tenancy agreement, … . 1. The Tribunal member stated that the tenant made a claim for compensation pursuant to s 187 (1) (c). The Tribunal member accepted that there was a visit by a Council officer at the property on 16 December 2016 and that the tenant was not provided with any notice of that inspection. The Tribunal member accepted that the unannounced meeting at the premises would have interfered with the tenant's quiet enjoyment of the premises while she had to vacate with her children for the duration of the meeting. The Tribunal member stated that there was no evidence as to the duration of that meeting or for how long the tenant and her children were asked to stay away. 2. The Appeal Panel has not been able to find the source of this evidence but notes that page 3 of the transcript relied upon by the landlord contains references to events of 16 December 2016. There was no dispute on the hearing of the appeal as to the findings made by the Tribunal member at paragraphs 50 and 51 of her reasons. Those paragraphs are set out in paragraph 22 above and we intend to proceed on the basis that those findings are agreed between the parties. 3. The Tribunal member referred to the fact that the tenant's application was filed on 3 May 2016 and that the breach by the landlord of the tenant's right to quiet enjoyment occurred on 16 December 2016. The Tribunal member held that in accordance with regulation 22 (9) of the Residential Tenancies Regulation 2010 the prescribed period for making a claim for compensation was within three months of becoming aware of the breach. The Tribunal member therefore held that the claim for compensation for the breach of quiet enjoyment was out of time and was accordingly dismissed. We agree with the Tribunal member's reasoning and with her dismissal of the claim. Appeal hearing - sections of the Act relied upon 1. During the hearing of the application before the Tribunal member, the tenant relied upon ss 47, 52 (3), 26 and 187 (1) (c) of the Act. On the hearing of the appeal additional sections of the Act were relied upon by the tenant namely ss 49, 50, 57 and 109. Section 49 of the Act 1. This section relevantly provides: 49 Occupation of residential premises as residence (1) A landlord must take all reasonable steps to ensure that, at the time of entering into the residential tenancy agreement, there is no legal impediment to the occupation of the residential premises as a residence for the period of the tenancy. …… (3)This section is a term of every residential tenancy agreement. Section 50 of the Act 1. This section relevantly provides as follows: 50 Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. Maximum penalty: 10 penalty units. ….. (4) This section is a term of every residential tenancy agreement. 1. Section 57 of the Act provides for limits on entry by landlords or others without consent. Section 109 1. This section relevantly provides: 109 Agreement frustrated – destruction of, or uninhabitable, premises (1)This section applies if residential premises under a residential tenancy agreement are, otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable or cease to be lawfully usable as a residence or are appropriated or acquired by any authority by compulsory process. (2)The landlord of the tenant may give the other party a termination notice. …… Internal appeals 1. Section 80 (2) of the NCAT Act provides as follows: 80 Making of internal appeals (1)An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2)Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance – with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance – as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. ….. Leave to appeal principles 1. In Collins v Urban [2014] NSWCATAP 17 an appeal panel stated that the general principles derived from the cases which they reviewed could be summarised as follows: (1) in order to be granted leave to appeal, the applicant must demonstrate something more than 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; (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 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. $1000 claim for removalist fees 1. The tenant claimed $1000 for removalist fees as she alleged that she had to vacate urgently. The Tribunal member was not satisfied that the tenant vacated with any urgency. The Tribunal member concluded that to vacate three weeks after serving notice of termination was not evidence of urgency. Furthermore there was no tax invoice from a removalist before the Tribunal in relation to the claim. The Tribunal member therefore dismissed the claim for compensation for the costs associated with removalist fees. 2. For the same reasons the Tribunal member dismissed the claim for compensation associated with the inconvenience of having to relocate as a matter of urgency. Compensation claim for deceit 1. The tenant claimed compensation for being deceived and misled by the landlord, the real estate agent and the landlord's legal representatives. The Tribunal member held that there was no provision in the Act for a tenant to claim compensation from a real estate agent or a landlord's lawyer. The Tribunal member held that the claim for compensation against the agent and the lawyer was misconceived and accordingly was dismissed. 2. For the previous reasons given by the Tribunal member she was not satisfied the tenant was misled or deceived by the landlord. And even if she were misled or deceived by any statement, representation or promise there was no evidence as to any loss sustained by the tenant as a result. Accordingly the Tribunal member dismissed the compensation claim against the landlord. Notice of appeal 1. On 15 August 2017 the tenant filed a notice of appeal. For present purposes the grounds of appeal may be summarised as follows. The Tribunal member erred in finding that the amended submissions were not evidence. The severity of the breaches by the landlord of the orders from the Council was such that some form of compensation and/or damages would be warranted. 2. The notice of appeal also stated that it would be fair and equitable for the Appeal Panel to order reimbursement of the rent paid to the value of $10,000, reimbursement for urgent removalists to the value of $1000, compensation for the inconvenience in having to immediately relocate to the value of $1500 and compensation for being misled and deceived by the landlord, the landlord's agent and the landlord's legal representatives to the value of $2500. Leave to appeal 1. In the notice of appeal the tenant also sought leave to appeal. The reasons given for seeking leave to appeal were as follows. The tenant was waiting on a response from the Council's representative, namely David Hunt. The tenant also believed that the appeal was to be lodged within 28 days from receiving the judgement. The judgement she received did not inform the tenant of her rights to appeal. She did not receive a response from the Council representative until 3 August 2017. A grant of leave to appeal was sought as procedural fairness had not been afforded under the current judgement because the current judgement was not fair and equitable. The judgement was not fair and equitable because the Tribunal member did not take into consideration the amended written submissions as forming evidence. The amended written submissions annexed independent evidence which should have been given significant weight. 2. The notice of appeal also claimed that evidence of confirmation had been received from the Council's representative since the hearing and that this was fresh evidence which confirms the substance of the tenant's evidence in the amended written submissions. It was said that this fresh evidence confirmed the substance of the tenant's evidence in the amended written submissions and her evidence in an affidavit sworn on 14 August 2017. 3. The notice of appeal stated that an extension of time was required. It was said that the tenant believed that the appeal time was 28 days instead of the 14 days for residential tenancies. Reply to appeal 1. The landlord filed a reply to the appeal which was to the effect that there was no evidence from the tenant to support the relief sought and the appeal was out of time. Directions 1. Directions were given to the parties by the Appeal Panel on 6 September 2017. They included directions that the parties were to lodge with the Tribunal all the evidence provided to the Tribunal below on which they intended to rely and any fresh evidence on which they intended to rely. 2. The tenant did not, pursuant to those directions or at all, lodge with the Tribunal a copy of the amended written submissions provided to the Tribunal below and which were the subject of the reasons of the Tribunal. 3. At the commencement of the hearing of the appeal the parties were informed by the Appeal Panel that the Panel wanted to know what documents the parties were proposing to put before the Panel. 4. The solicitor for the tenant identified the documents she proposed to put before the Appeal Panel as the tenant's appeal submissions dated 26 September 2017 and 31 October 2017 and the tenant's affidavit dated 14 August 2017. The solicitor was asked by the Appeal Panel whether she was proposing to put before the Appeal Panel the tenant's amended submissions (which the tenant attempted to use as evidence before the Tribunal member but which were rejected by her because she was of the view that they were only submissions and not evidence). 5. The solicitor for the tenant stated that she did not rely on the amended submissions which were before the Tribunal member. After further questioning by the Appeal Panel the solicitor changed her mind and stated that she did rely upon those amended submissions. The Appeal Panel then informed the solicitor that those amended submissions had not been put before the Appeal Panel. At no time during the balance of the hearing did the solicitor for the tenant put those amended submissions before the Appeal Panel or attempt to tender them as evidence. 6. Counsel for the landlord informed the Appeal Panel that the only evidence he intended to rely upon was the transcript and audio recording of the proceeding before the Tribunal member and the evidence used below namely the affidavit of Mr Birch dated 10 July 2017 and the affidavit of Mr Nguyen dated June 2017. Counsel stated that there was no fresh evidence on which he sought to rely. Relevant time periods Time to lodge an application for breach of the Act 1. Section 190 (1) of the Act provides that: (1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations. 1. Regulation 22 (9) of the Residential Tenancies Regulation 2010 provides that: For the purposes of section 190 (1) of the Act, the prescribed period for making an application for an order in relation to a breach of a residential tenancy agreement or proposed agreement is within 3 months after the applicant becomes aware of the breach. Time to lodge an appeal against the Tribunal orders made on 17 July 2017 1. Rule 25 (4) of the Civil and Administrative Tribunal Rules 2014 provides: (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged ….. (b) in the case of an internal appeal against a decision made in residential proceedings – 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)…. 1. The proceedings before the Tribunal were residential proceedings – see the definition in rule 3 (1) of the rules. The filing of the notice of appeal 1. During the hearing of the appeal it was agreed between the parties' legal representatives that the notice of appeal was lodged 12 days late. Extensions of time 1. Section 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides: (1)The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. Early in the hearing of the appeal the solicitor for the tenant confirmed that the tenant was seeking an extension of time in which to appeal. 2. One of the relevant issues on the application for an extension of time to file a notice of appeal is why was the notice of appeal not filed within 14 days. The tenant could have tendered evidence before the appeal panel on that issue including evidence from the tenant's solicitor. No such evidence was tendered by the tenant even though she swore and filed an affidavit dated 14 August 2017. An agreed fact 1. During the hearing of the appeal there was a discussion whether the Appeal Panel would be entitled to draw the conclusion, from paragraph 1 of the tenant's written submissions dated 26 September 2017, that during the 14 day period for an appeal, the solicitors for the tenant were acting for her in relation to an appeal from the Tribunal's decision. Each of the legal representatives of the parties agreed that the Appeal Panel could draw that conclusion. The Appeal Panel is of the view that that conclusion can be drawn from paragraph 1 of the tenant's written submissions dated 26 September 2017. That paragraph is in the following terms: Before filing the notice of appeal, we were waiting on fresh evidence and confirmation from Council's representative, namely Daniel Hunt. There has been a delay in receiving the requested information. Given the Tribunal member held that no evidence was before the Tribunal despite the amended submissions annexing all independent evidence, we sought further evidence from Council including requesting an affidavit. Given the application was already out of time and we did not receive all requested material within the time limit, we decided not to wait to receive an affidavit from Daniel; we filed the Notice of Appeal to avoid further delay despite not having the evidence. 1. For the purposes of this appeal the Appeal Panel does draw that conclusion. It is relevant and admissible on the issue of why the notice of appeal was not filed within 14 days. 2. The Appeal Panel is also of the view that we should proceed on the basis that that paragraph is evidence on the extension of time application and that we should accept that evidence as proof of the matters stated in that paragraph. 3. The tenant was called by the Appeal Panel to give evidence. She was questioned as to when she learned that the appeal had to be lodged within 14 days. She said she did not know (remember) when it was, but it was before she lodged the documents (notice of appeal). The notice of appeal shows that it was dated 14 August 2017 and was lodged at the Penrith office of the Tribunal on 15 August 2017. 4. The conclusion to be drawn is that the solicitor for the tenant knew by 14 August 2017, at the latest, that the appeal period was 14 days. If she was aware of that appeal period before it expired, then she should have filed the notice of appeal before that expiration date. Relevant principles for appeal extension of time 1. There have been a number of instances where the Appeal Panel has considered these principles. For present purposes they were sufficiently stated by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] as follows: (1) The discretion to grant an extension of time can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant; (2) The discretion is to be exercised in light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right' to retain the benefit of that decision and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal). (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable. The tenant's rejected amended submissions 1. One of the issues which the Appeal Panel is called upon to decide is whether the Tribunal member was in error in rejecting the tenant's amended submissions. In order for us to do so, we would normally need to see the submissions. In this case the submissions have not been provided to us by the parties. Counsel for the landlord had no need to do so. We do not understand why the solicitor for the tenant did not provide us with a copy during the hearing of the appeal. Normally that would mean that we would be unable to rule on this issue. However the tenant swore and served an affidavit dated 14 August 2017. It is relied upon by the tenant as fresh evidence. At page 7 of the tenant's submissions dated 26 September 2017 it is stated: Given that the Tribunal member held that the amended written submissions were not evidence, we submit that the affidavit of Erana Kaci sworn on 14 August 2017, whilst annexing all material available at the first hearing, can be considered fresh evidence given it was held that no evidence was available. As such, this evidence is fresh evidence which likely would have resulted in a different outcome; pursuant to Clause 12 (1) (c), Schedule 4 of the NCAT Act. 1. We do not agree with that submission. In our view that material is clearly not fresh evidence. The tenant had possession of that evidence at the time of the hearing before the Tribunal member. During the hearing of the appeal counsel for the landlord disputed that the documents were fresh evidence. He said that the documents were before the Tribunal and submitted that there was no new evidence that should be taken into account on the application for the extension of time to appeal. Were the amended submissions evidence 1. It appears that the amended submissions comprised submissions to which were annexed the Council documents which are described below. It is clear from the transcript that the solicitor for the tenant was attempting to use the amended submissions as evidence. The Council documents were not evidence proved by the rules of evidence. But the Tribunal is not bound by the rules of evidence (s 38 (2) NCAT Act) and is required to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 38 (4) NCAT Act). We are of the view that the Tribunal member should have treated the Council documents as evidence from which the member was entitled to draw appropriate conclusions of fact - for example that the Council had not approved the dual occupancy of the flat. We are therefore of the view that the Tribunal member erred in not admitting into evidence these Council documents. 2. However as the tenant did not place the amended submissions before the Appeal Panel nor attempt to tender them on the hearing of the appeal, we are of the view that the tenant has failed to show that the Tribunal member erred in rejecting the balance of the amended submissions. Analysis of those documents 1. For present purposes the following is a summary of most of those documents: 1. On 1 April 2016 Mr David Hunt, a land use officer of the Hills Shire Council wrote to a company apparently associated with the landlord stating that given the use of the flat (occupied by the tenant) as a dual occupancy or secondary dwelling was unauthorised and cannot be permitted, the Council instructed the company to cease use of the detached flat as an unauthorised dual occupancy and to remove the unauthorised kitchen and other specified items which were in the flat. 2. On 11 April 2016 a solicitor emailed Mr Hunt informing him that he had been asked by "my client" to deal with this matter with Council. 3. On 14 April Mr Hunt emailed the solicitor and informed him that the previous owner had been directed to cease use of the structure as a habitable dwelling and was informed that it did not have approval for use as a dual occupancy. The solicitor was asked to contact the Council's duty town planner and discuss his options and steps to be taken. The email went on to say that Council would provide eight weeks for the solicitor to lodge the development application. 4. On 10 June Mr Hunt again emailed the solicitor and confirmed the conversion and use of the garage as a detached dual occupancy was never approved by Council and was therefore illegal. The email concluded by informing the solicitor that Council would progress in issuing a notice of intention to give an order pursuant to section 121H of the Environmental Planning & Assessment Act 1979 (EPA Act). 5. On 29 June 2016 Mr Hunt emailed the solicitor expressing concern about the nature and scope of activities being undertaken at the property. It was said that Council would like to inspect the property to determine what works were being undertaken and that all further works were to cease until further notice. 6. On 1 July Mr Hunt again wrote to the company informing it that circumstances now existed for Council to issue a notice of intention to give an order seeking cessation of the use of the garage as a detached dual occupancy. The letter then gave notice that the Council intended to give an order no.1 pursuant to section 121B of the EPA Act. Attached was a copy of the order the Council proposed to give. On the reverse side of that document were notes concerning penalties. They showed that the EPA Act carried a maximum of $1,100,000 and a maximum daily penalty of $110,000 for breaches of the Act. "In addition, the Council may also choose to exercise its powers pursuant to section 121ZJ of the EPA Act to do all such things that are necessary or convenient to give effect to the order and recover all costs incurred as a debt due back to the Council." The note stated that the relevant penalty infringement notice for this offence provided for a penalty amount of $3000 for an individual and $6000 for a corporation. 7. On 19 July 2016 Mr Hunt wrote to the company informing it that as no representations had been received from the company, it had been determined by the Council that a modified order be given. A copy was attached. The order required the company to cease the unauthorised use of the premises for the purpose of a dual occupancy (detached); required the company to remove the unauthorised kitchen including various items contained therein; and required the company to restore the use of the dual occupancy to a garage as approved or to non-habitable storage facility. All works to give effect to the order were to be completed by no later than 16 August 2016. 8. On 10 August the solicitor wrote to Mr Hunt seeking an extension of the deadline in the order which had been made. A further two months until 10 October 2016 was sought. 9. On 12 August Mr Hunt wrote to the company informing it that the period of compliance with the modified order was now 10 October 2016. 10. On 23 September 2016 the solicitor wrote to Mr Hunt and in part of the letter stated: "We are instructed that our client wishes to apply for a development application to approve the use of the subject dual dwelling as habitable. In this sense, we believe that it is unreasonable to damage the contents of the dwelling through the removal of the contents referred to in request "2' above, before a Development Application has been submitted and a fair exercise of rights has been given to our client." 11. On 3 November Mr Hunt emailed the solicitor and the landlord and part of that email stated that should a DA be lodged before the end of the period for compliance of the order No.2, the order would be held in abeyance until the DA was determined. 12. On 6 December Mr Hunt emailed the solicitor and requested he advise on the progress as all works relating to both orders were to be completed by 2 December 2016. 13. On 27 January 2017 Mr Hunt emailed the landlord and the solicitor and part of that email was as follows: As you are aware, a site inspection of (the property) was conducted on 16 December 2016. During the inspection, it was noted that the works being undertaken with regards to our Order No.2 (animal enclosure and retaining wall) were compliant with the exempt criteria. With regards to our Order No.1 access to the garage/dual occupancy was not provided by the tenant. It is advised that the order No.1 has expired and that the required works were to have been completed by now. A review of Council records also shows that a development application has not been lodged for use of the structure as a habitable dwelling in any form. As a result, Council would like to arrange a site meeting at the property within the next two weeks so as to provide you an opportunity to discuss your options prior to enforcing the order or commencing further legal action and/or issuing fines. 1. On 3 February the solicitor emailed Mr Hunt requesting approximately two weeks to get their application finalised. On 6 February Mr Hunt replied stating that Council was prepared to provide a further two weeks provided the application referred to was to address the unauthorised dual occupancy (e.g. a DA for a granny flat/secondary dwelling). The email went on to say that the application was to be lodged no later than 20 February and that should the DA not be lodged by that time, the previously mentioned actions would occur. 2. Paragraph 34 of the tenant's affidavit describes documents annexed and marked "N". They are described as a copy of the fire status in late 2016 and early 2017, indicating a fire in early 2017 was out of control. The source of these documents is not disclosed in the documents. They appear to record the status of fires in Everett Place Annangrove on 28 November 2016 and 3 January 2017. The status recorded for 28 November 2016 was "under control" and the status recorded for 3 January 2007 was "out of control". The type of fire disclosed for 28 November 2016 was a grass fire and the type of fire for 3 January 2017 was a bushfire. 3. On 5 May 2017 Mr Hunt emailed the tenant and referred to her recent request for written advice concerning whether approval had been granted by the Council for the development of a detached dual occupancy at the property address. Mr Hunt confirmed that Council had received a complaint in March 2016 concerning unauthorised development at the property. The email continued: An inspection of the interior of the structure was not undertaken following this, due to the occupant stating that they were unaware of the planned inspection organised between Council and the owner. Nevertheless, subsequent investigations confirmed that an existing double garage had been converted to a dual occupancy (detached). A search of Council's records had been unable to locate any development consents, construction certificates or building approvals which authorise the development or use of a dual occupancy (detached) on the above property…… . The above property is located in a Zone RU6 Transition area, where the development of a "dual occupancy (attached) is prohibited under the LEP. Accordingly regulatory action was commenced under the Environmental Planning & Assessment Act 1979, with an order being issued to cease the prohibited use and restore the dual occupancy to a non-habitable structure. A Development Application was subsequently lodged with Council on behalf of the owner on 14 February 2017 seeking approval to convert the garage into a secondary dwelling. Further information has been requested from the applicant with regards to compliance with Building Code of Australia standards, fire safety, bushfire protection and waste water disposal. The abovementioned regulatory action is being held in abeyance until the development application is determined. 1. On 8 May 2017 Mr Hunt emailed the tenant. The email is in the same terms as the email dated 5 May 2017 except that the following two sentences were added: "The dual occupancy is also situated within bushfire prone land as defined in Council's Bushfire Prone Land Map 2012" and, "The proposed alterations involve the addition of two windows to the structure, including one to a bedroom that currently does not have a window (refer to the attached floor plan)". 2. On 24 July 2017 the tenant emailed Mr Hunt stating that the court has requested extra evidence in regards to this address may I please ask for a letter from you stating that, "you had knocked on my door on December 16 but at this stage I did not know the information that you had explained to me about the illegality of the granny flat until Feb 2016 when I had moved out. Also can you note that I had tried a numerous amount of times to get in contact with you starting December after the inspection – feb and it wasn't until feb 24th when I had got in contact with you and found out all the details about the granny flat being illegal and the windows etc. I am asking for this letter because the member at ncat didn't accept the letter you had sent to me in May because it had no evidence of the phone call between me and you and this is what they need as proof that I did make enquiries following the unannounced inspection and to confirm that telephone conversation on the date of 24th Feb when I immediately vacated after our phone call." 3. On 3 August 2017 Mr Hunt emailed the tenant stating that he could confirm that he "knocked on the door of the unauthorised granny flat on 16 December 2016 in order to conduct an inspection. The female occupant denied Council access at the time, stating that she was unaware of the inspection, which had been organised with the owner. My call logs show that I called your mobile number on 15 Feb 2017 and again on 16 Feb 2017, both of which no conversation was made. The only call I have from your mobile number on my landline call log is from 12:11 PM on 16 Feb 2017, with conversation lasting nearly 12 minutes. I cannot find records of any other calls from you, including on 24 Feb 2017, as call log on my mobile does not go that far back. .." Tenant's submissions dated 26 September 2017 1. These submissions comprised 22 pages. Without going into all the details of the submissions they may be summarised as follows. 2. The Tribunal member erred in finding that the amended written submissions were not evidence and for that reason the tenant sought leave to appeal pursuant to s80 of the NCAT Act. There had been a substantial miscarriage of justice. 3. If that submission was rejected by the Appeal Panel, leave to appeal was sought pursuant to s 80 (2) (b) of the NCAT Act. 4. The evidence provided in the amended submissions in relation to the Council documents prove that the landlord had breached numerous sections. There was no denial by the landlord that the breaches did in fact occur. The landlord acknowledged in his affidavit that the dwelling was unauthorised. At no point did the tenant decline to give evidence. 5. There was sufficient evidence available to the Tribunal to make a decision that was just and equitable. The finding by the Tribunal member was merely a matter of form over substance. A fair and just decision would have been to have relied on the material before the Tribunal without giving nil weight to the evidence. 6. There was evidence available from the Council which was annexed to the amended submissions that the property was unauthorised and that the dwelling was not to be occupied. The landlord failed to take any steps to rectify the issue. The tenant was not aware prior to February 2017 of the illegality of the dwelling. 7. The tenant may not have suffered economic loss but this does not mean that the illegality of the dwelling and the breach of the legislation should be dismissed purely because she did not suffer economic loss. There was significant risk of injury given that the dwelling had not been deemed safe and failed to comply with the fire standards. 8. The property was rented at market value despite the property not being authorised. 9. The tenant actually believed that she was paying for property authorised at market value, without any legal impediments. However, in fact the tenant did not get what she bargained for, such as the rent should have been reduced to an amount below market value. 10. There would be no unjust enrichment should the tenant be compensated for the breaches. The landlord has significantly benefited from renting the dwelling at market value despite having knowledge that the premises were unauthorised and not deemed safe especially given the high-risk rating. 11. At the hearing, there was evidence before the Tribunal member in relation to misleading and deceptive conduct contained in the amended written submissions. The substance of the misleading and deceptive conduct has now been provided in the affidavit of the tenant sworn on 14 August 2017. 12. The tenant had been making reasonable enquiries with Council from 16 December 2016 and only gave notice to terminate due to the suspicion, though unaware of the actual illegality of the property until February 2017. 13. The risk of loss as opposed to actual loss is of relevance. There were serious risks associated to the property, including but not limited to fire, injury and /or death. 14. The decision of the Tribunal member was against the weight of the evidence. Overall, the orders made were not just and equitable and the orders made have resulted in a significant miscarriage of justice. 15. Procedural fairness has not been afforded under the orders made, that is the orders made were not fair and equitable. They were not fair and equitable because the Tribunal member failed to consider the amended written submissions as forming evidence pursuant to clause 12 (1) (a), schedule 4 of the NCAT Act. Those amended written submissions annexed independent evidence and should have been given significant weight. 16. The landlord has breached the Hills Local Environment Plan 2012 (L E P) and the EPA Act. The relevance of those breaches is that they provide a contextual background and support the breaches of the Act which say that the property must be free from legal impediment. 17. The Tribunal member should have given more weight to the severity of the breaches under the Act by the landlord. 18. Based upon the landlord's and the landlord's agent's statements, representations and promises, the tenant had believed that the property was approved and of a habitual state to reside in as per Council approval. Effectively the landlord and the landlord's agent have severely misled and deceived the tenant. They knowingly put the tenant and her two young children at severe risk of endangerment, life-threatening risk. The tenant relied upon these submissions to support a breach of s 26 of the Act. 19. The landlord was in breach of s 49 (a) of the Act as the landlord had failed to take all reasonable steps to ensure that there was no legal impediment to the occupation of the residential premises as a residence for the period of the tenancy. The landlord had failed to obtain the necessary approval from the Council prior to the tenant signing the tenancy agreement. As it was not brought to the tenant's attention that the property was in fact prohibited under the LEP prior to the time the tenant entered into the tenancy agreement, the landlord had not taken all reasonable steps to ensure that there was no legal impediment to the occupation of the property. If the landlord had knowledge, then he had directly misled and deceived the tenant at the time of executing the tenancy agreement. 20. The landlord and his agent were in breach of s 50 of the Act as they failed to take all reasonable steps to ensure that the tenant's right to reasonable peace, comfort and privacy were not interfered with. The landlord's brother interfered with the tenant's right to reasonable peace, comfort and privacy. Her peace, comfort and privacy were also interfered with by a representative of the Council when that person unexpectedly knocked on her front door while she was in the shower. Her peace, comfort and privacy were also interfered with by the landlord's brother knocking on her door and demanding she immediately vacate the property with her two young children. 21. The landlord was in breach of s52 of the Act by the mere fact that the property had not been approved by Council. The landlord should have known that he had not taken all reasonable steps to ensure that at the time of entering into the residential tenancy agreement, there was no legal impediment to the occupation of the residential premises as a residence for the period of the tenancy. 22. Under s 52 of the Act the landlord should have informed the tenant prior to her executing the tenancy agreement that the property had been affected by flooding or bushfire in the previous five years and it was situated in a suburb which was classified as a high-risk bushfire area. The landlord should have informed the tenant prior to executing the tenancy agreement that the property was not Council approved nor fit for habitual state. 23. The landlord and his agent were both in breach of s 57 of the Act as they had failed to obtain the tenant's consent to a representative of the Council attending the property. 24. The landlord was in breach of s 109 (1) of the Act because he was aware that the property was uninhabitable and ceased to be lawfully usable. 25. Upon the tenant finding out that the property was not fit for habitation state, the tenant vacated the property immediately and resided with her mother until she could obtain alternate suitable living arrangements. The removalist was not able to attend the property until approximately one week later, in which case, the tenant had to pay for urgent removalists and was inconvenienced by not having her and her two young children's belongings. If it were not for the breach of the tenant's right to quiet use and enjoyment of the property she would not have terminated the tenancy agreement and been required to leave the property in a hurry without being able to take all of her and her two young children's belongings. 26. The tenant did obtain a benefit from residing in the property, however there was a significant risk to her and her two young children's lives. 27. The tenant seeks the sum of $15,000 as being a just and equitable resolution of the matter. The compensation awarded should be as a means of deterring the landlord, the agent and his solicitor from engaging in further illegal and dishonest behaviour (specific deterrence) and should be awarded as a means of making an example of them (general deterrence). 28. While the amended written submissions were not in affidavit form, this is merely a matter of substance and not form, the substance of the evidence was available. No prejudice would have been caused to the landlord as the landlord had full knowledge that the tenant sought to rely upon the material in the amended submissions. No objection was taken and it was unlikely that cross examination would have been required given that the landlord conceded in his own evidence that the property was unauthorised and illegal. The landlord's submissions dated 17 October 2017 1. For present purposes these submissions can be summarised as set out in the following paragraphs. 2. There was no evidence of loss or damage as a result of any breach. There was no evidence of the tenant having to vacate the property as a matter of urgency and there was no evidence of any representation made by the landlord or his agent at the time the tenancy agreement was entered into. 3. There was no error of law and the tenant did not suffer any prejudice or miscarriage of justice. 4. The tenant declined to give evidence, made no statement and the landlord was precluded from cross-examining her. 5. There was nothing unfair in holding the tenant to the decision of her legal representative. There was no miscarriage suffered by the tenant, even though it was conceivable that other decisions may have worked better, namely orally adducing evidence from the tenant at the hearing. The tenant was bound by the decision of her legal representative at the hearing. 6. The submissions referred to relevant authorities on the question whether an extension of time should be granted. It was submitted that the statement that the tenant did not know the 14 day time limit and believed she had 28 days to appeal, was unsatisfactory and that the tenant had not provided any reason or explanation that she would suffer an injustice if the rules were strictly complied with. 7. The tenant did not have a fairly arguable case and time ought not be extended for the filing of leave to appeal. 8. Relevant authority was referred to as to when leave to appeal should be granted. 9. It was disputed that the decision was not fair and equitable and was against the weight of evidence. 10. It was submitted that the approach for the Tribunal to take was to ask whether the additional evidence was fresh, that is evidence which the tenant was unaware of and could not have been obtained with reasonable diligence. 11. The affidavit of the tenant was not fresh evidence and should be considered new evidence. The appeal panel should not receive the tenant's affidavit dated 14 August 2017. 12. Annexure P to the tenant's affidavit was not fresh evidence and could have been obtained with reasonable diligence. At its highest annexure P only established the fact that the female occupant was not aware of the inspection and that she refused access to the Council as she was unaware of the inspection on 16 December 2016. 13. The Tribunal member found that the unannounced visit by the Council worker interfered with the tenant's right to quiet enjoyment of the premises. 14. The dismissal of this ground because it was out of time was correct. The appeal panel should not receive annexure P. Response to landlord's submissions 1. On 6 November 2017 the tenant filed submissions in response to the landlord's submissions dated 17 October 2017. 2. The tenant's response submissions comprise 13 pages. They repeat many of the submissions which were made in the submissions dated 26 September 2017. 3. They make many allegations of fact for which there is no evidence. 4. They argue again that the affidavit of the tenant dated 14 August 2017 can be considered fresh evidence given it was held that no evidence was available. It was submitted that as such, this evidence is fresh evidence which likely would have resulted in a different outcome, pursuant to clause 12 (1) (c) Schedule 4 of the NCAT Act. 5. Although the tenant may not have suffered economic loss, this did not mean that the illegality of the dwelling and the breach of the legislation which was in place for a reason and for the protection of tenants, should be dismissed purely because she did not suffer economic loss. There was a significant risk of injury given that the dwelling had not been deemed safe and failed to comply with fire standards. 6. The property was rented at market value and the Tribunal member erred in holding that the tenant got what she bargained for. The rent should have been reduced to an amount below market value. 7. There would be no unjust enrichment should the tenant be compensated for the breaches. The landlord had significantly benefited from renting the dwelling at market value despite having knowledge that the premises were unauthorised and not deemed safe especially given the high risk rating. 8. Whilst no fire did in fact affect the subject dwelling, the risk was a real and serious one. 9. Even if the landlord only became aware of the legal impediment from 4 April 2016, he should have notified the tenant of that impediment. 10. It was submitted that annexure P of the affidavit of the tenant dated 14 August 2017, constitutes fresh evidence as it clearly demonstrates that the tenant was unaware of the Council's inspection on 16 December 2016 by refusing access to the property "at first instance". 11. Part of annexure P is set out in pars 71 and 72 above. The emails deal with events which occurred on 16 December 2016 in which the tenant was a participant. 12. The Appeal Panel is unable to see how these 2 emails are significant new evidence which has arisen, which is evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. In our view the conclusion to be drawn from annexure P is that on 16 December 2016 the tenant went to the door of the flat because of the knocking on the door by someone. That person would have introduced himself as a Council officer and told the tenant that he was there to conduct an inspection. The tenant denied him access stating that she was unaware that an inspection was to take place. The emails show that the tenant was aware from the conversation that an inspection by the Council was to have taken place. Alleged breaches of the Act Section 47 of the Act 1. Before a landlord can commit a breach of s 47 the tenant must have paid to the landlord an amount which the tenant was not required to pay under the Act or the residential tenancy agreement. There is no evidence in this case that the tenant paid the landlord either of such amounts. 2. The notice of appeal did not include a ground of appeal that alleged a breach of s 47. The Tribunal member's reasons record that: The tenant's application for a refund of all rent paid throughout the tenancy pursuant to s 47 is made on the grounds the landlord did not have the necessary approvals from the local Council authorising the dwelling to be used as residential accommodation, and various breaches of the Act flowing from that non-approval. 1. There was no similar submission made in the tenant's submissions dated 26 September or 31 October 2017. In the tenant's submissions dated 26 September 2017 there is a heading 'Breaches of the Residential Tenancies Act 2010 NSW ("RTA") '. Thereafter the submissions referred to ss 26, 49, 50, 52, 57 and 109 of the Act, but not to s 47. If this claim based on s 47 has not been abandoned, it is dismissed. Section 52 (3) of the Act 1. For present purposes we will assume that the landlord had an obligation not to commence, by himself or by his tenant, occupation or use of the flat unless an occupation certificate had been issued (see s109M of the EPA Act). 2. We will also assume that that obligation was an obligation relating to safety of the flat. 3. However we are of the view that those facts alone do not result in the landlord being required to pay to the tenant a sum of money. 4. Section 52(4) makes s 52 a term of every residential tenancy agreement. Thus breach of s 52 is a breach of the residential tenancy agreement and in our view, for breach of that agreement, no money would be payable to the tenant unless it were shown that the tenant had suffered a loss or damage. We are of the view that the tenant has not shown that she has suffered a loss or damage. The claim based on s 52 (3) is therefore dismissed. (See pars 137 – 139 below for further on loss or damage.) Section 26 of the Act 1. The Tribunal member dealt with the tenant's claim based on s26. The member's reasons were as follows: 41 The tenant submits the landlord was in breach of s 26 by not disclosing there was no occupation certificate issued by the local Council for the premises, at the commencement of the tenancy. 42 There is no evidence the landlord or his agent falsely or deceptively or knowingly concealed any information from the tenant at the commencement of the tenancy. The first notice received by the landlord from the Council, was a letter dated 01. 04.16 . 43 The landlord was not cross-examination (sic) on his affidavit. 44 The tenant has not put any evidence before the Tribunal to support a finding being made that she was induced to enter into the agreement by any statement, representation or promise made by either the landlord or the agent. 45 The tenant bears the onus of proving there was a breach of s 46. 46 There is no evidence from the tenant in relation to any statement, representation or promise being made to her by either the landlord or his agent. 47 The tenant has not put before the Tribunal any evidence as to the nature of the misleading or deceptive representation, statement or promise. Nor has she put any evidence as to how the misleading or deceptive statement or promise interfered with her exclusive possession and quiet enjoyment of the premises throughout the tenancy. 48 For all of the above reasons I decline to make a money order for the landlord to refund all rent paid throughout the tenancy. 1. In par 7 of his affidavit the landlord stated that on or about 5 April 2016 he became aware that there was no approval given by the Hills Shire Council for the Studio. The landlord was not cross examined on his affidavit. There was no evidence that the landlord induced the tenant to enter into the residential tenancy agreement. The Tribunal member may have made a mistake about the date the landlord received the letter. There was evidence in the landlord's affidavit which may have indicated that the letter was received on 5 April 2017. However what is significant is that it was received after the entering into of the residential tenancy agreement. 2. As the tenant did not place the amended submissions before the Appeal Panel nor attempt to tender them on the hearing of the appeal, we are of the view that the tenant has failed to show that the Tribunal member erred in making the above findings. The tenant's affidavit dated 14 August 2017 was not new evidence that had arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). We see no reason why leave to appeal should be granted on this issue. This issue does not satisfy any of the principles referred to in Collins v Urban. We are of the view that this claim should be dismissed. Section 187 of the Act 1. We are of the view that to obtain an order pursuant to s 187 (1) (c) or (d) it is necessary for a landlord or tenant to show why they are entitled to such an order. In other words they have to show that they have a right to obtain such an order. Section 187 (2) (b) gives an illustration of one situation where an order can be made. 2. How is a tenant to be compensated for a breach of s 52 (3) which is a contractual term (see s 52 (4) of the Act). In our view a tenant can only obtain a relevant order for the payment of money or compensation if the tenant demonstrates that they have suffered a loss or damage as a result of that breach. 3. Here the tenant was given possession pursuant to the residential tenancy agreement. Leaving aside what occurred on 16 December 2016, that possession was not interfered with by the fact that the flat was not approved by the Council. In our view the tenant has not shown that she suffered any loss or damage as a result of the Council having not approved the flat. She has not shown that, because the flat was not approved, she was worse off than she would have been had the flat been approved. She has not shown that she suffered any loss or damage as a result of any breach of s 52 (3) of the Act. Claim for interference on 16 December 2016 – sections 50 and 187 of the Act 1. The claim by the tenant for an order for payment of an amount of money or compensation based upon the interference with the tenant's quiet enjoyment of the premises on 16 December 2016 is referred to in paragraphs 22 – 24 above. We agree with the reasoning of the Tribunal member and with her dismissal of the claim. Section 49 of the Act 1. There was a legal impediment to the occupation of the flat as a residence (see s 109M EPA Act). The question then is whether the tenant suffered any loss or damage as a result of that impediment. In our view, for the reasons given in pars 138 – 139 concerning a claim for breach of s 52 (3), the tenant did not suffer any loss or damage and this claim must be dismissed. Section 50 of the Act 1. This claim arises out of the visit by the Council officer on 16 December 2016 which is referred to in pars 22 – 24 above. As stated there we agree with the Tribunal member's reasoning and with her dismissal of the claim. Section 57 of the Act 1. This section does not appear to advance the claim made pursuant to s 50 of the Act and we therefore say nothing further about it. Section 109 of the Act 1. In our view this section does not apply to the facts of this case. The section operates where the premises become uninhabitable after the commencement of the residential tenancy agreement. Even if the section does apply to the facts of this case the section only gives a landlord or tenant a right to give to the other a termination notice. The section does not give a tenant a right to claim compensation or damages. 4 particular claims made by the tenant 1. The tenant's submissions recorded at pars 31, 79, 66 and 78 above were to the effect that: 1. Procedural fairness had not been afforded by the orders because the orders were not fair and equitable. 2. The orders were not fair and equitable because the Tribunal member failed to consider the amended written submissions as forming evidence pursuant to clause 12 (1) (a) schedule 4 of the NCAT Act. 3. Because the Tribunal member erred in finding that the tenant's submissions were not evidence there had been a substantial miscarriage of justice. 4. The decision of the Tribunal member was against the weight of the evidence. 1. It can be seen that each of those claims namely lack of procedural fairness, the orders were not fair and equitable, a miscarriage of justice and the decision was against the weight of the evidence, is based upon a claim that the Tribunal member should have admitted into evidence the amended submissions. 2. We have concluded that the Tribunal member erred in not admitting into evidence the Council records attached to the amended submissions. However because the tenant did not place before us or tender, the submissions which were part of the amended submissions, we are of the view that the tenant has failed to show that the Tribunal member erred in rejecting the submissions comprised in the amended submissions of the tenant. We are accordingly of the view that those 4 claims of the tenant should be dismissed. Compensation claim for deceit 1. In pars 34 and 35 above we have referred to this claim made by the tenant. We agree with the Tribunal member that the claim against the agent and lawyer was misconceived. We dismiss it. 2. We agree that there was no evidence as to any loss sustained by the tenant as a result of the alleged conduct. There were also findings of fact and we do not see any reason why leave to appeal should be granted. These claims against the landlord are therefore dismissed. Claims for $1,000 and $1,500 1. In pars 32 and 33 above we have referred to these claims. We agree with the Tribunal member's reasoning for rejecting these claims. The amount claimed for the alleged urgent relocation was $1,500 – see par 37 above. The tenant's affidavit dated 14 August 2017 1. One of the questions before the Appeal Panel was whether the Tribunal member erred in rejecting the tenant's amended submissions. If the Appeal Panel were to determine that question, it was necessary for the Appeal Panel to be given (strictly speaking as an exhibit) a copy of the amended submissions. 2. The affidavit dated 14 August 2017 proved the Council documents annexed to the submissions in the amended submissions. Those parts of the affidavit which did that were admissible. However as the balance of the affidavit is not significant new evidence that has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) (clause 12 (1) (c) schedule 4 of the NCAT Act), the balance of the affidavit is not admissible. Short summary 1. The Tribunal member erred in not admitting into evidence the Council documents annexed to the tenant's amended submissions. 2. The tenant has failed to show that the Tribunal member erred in refusing to admit into evidence the submissions in the amended submissions document. 3. The tenant filed her appeal 12 days late and requires leave to extend the time for filing a notice of appeal. 4. It is appropriate in this case for the Appeal Panel to consider whether the tenant has a fairly arguable case. We are of the view that in order to succeed on the appeal the tenant would have to prove that she suffered loss or damage. However there is no evidence of any loss or damage suffered by the tenant. 5. Accordingly we are of the view that the tenant does not have a fairly arguable case and that the tenant's application to extend time for the filing of an appeal and the appeal should be dismissed. Orders 1. The Appeal Panel orders that: 1. The application for extension of time in which to appeal is dismissed. 2. The application for leave to appeal is dismissed. 3. The appeal is 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: 21 February 2018