Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McGinn v Barilla [2018] NSWCATAP 85 Hearing dates: 19 March 2018 Date of orders: 10 April 2018 Decision date: 10 April 2018 Jurisdiction: Appeal Panel Before: R C Titterton, Principal Member Dr J Lucy, Senior Member Decision: 1. The appeal is allowed in part, and order 1 made in application RT 17/50841 is set aside. 2. In lieu thereof, the Appeal Panel makes the following orders: (a) The appellant is directed to return the Commonwealth Bank of Australia cheque no 384541 dated 13 June 2014 to the respondent; (b) Upon receipt of the bank cheque, the respondent is to pay the appellant the sum of $250 within 7 days; 3. To effect order 2(a) the Tribunal directs the Registrar to deliver up the bank cheque to the respondent immediately. 4. Save as provided above the appeal is dismissed, and leave to appeal refused. 5. If either party seeks an order as to costs, that party is to provide submissions in support to the Tribunal and the other party within 14 days of the date of these reasons. 6. If a party applies for costs, the other party is to provide a response to the party seeking costs and the Tribunal within a further 14 days. 7. The parties are to address in their submissions whether the issue of costs should be determined on the papers. Catchwords: LANDLORD AND TENANT – residential tenancy agreement – return of bond – whether Tribunal has jurisdiction where bond provided to landlord not lodged with Rental Bond Board in breach of the Residential Tenancies Act 2010 Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Interpretation Act 1987 Residential Tenancies Act 2010 Residential Tenancies Regulation 2010 Cases Cited: Al Adwan v He and Cai [2011] NSWCTTT 155 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154 Buckland v Goodwin [2009] NSWCTTT 685.Pholi v Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 Collins v Urban [2014] NSWCATAP 17 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 Pate v Chan [2010] NSWCTTT 221 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 Taylor v Owners — Strata Plan No 11564 (2014) 253 CLR 531 Wentworth Securities Ltd v Jones [1980] AC 74 Texts Cited: Anforth, Christensen and Adkins, Residential Tenancies Law and Practice New South Wales, 7th Edition, Federation Press, 2017 Category: Principal judgment Parties: Sophia McGinn (Appellant) Pasquale Barilla (Respondent) Representation: Each party was self-represented File Number(s): AP 17/53461 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 18 December 2017 Before: J Levingston, General Member File Number(s): RT 17/50841 REASONS FOR DECISION Introduction 1. For convenience and ease of understanding, in the following reasons we will refer to the appellant (who was the tenant in proceedings RT 17/50841 in the Consumer and Commercial Division of the Tribunal) as the landlord, and the respondent (who was the applicant in the proceedings in the Tribunal) as the tenant. 2. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 18 December 2017. The Tribunal, constituted by Member Mr J Levingston, ordered the landlord to pay the tenant $3,150.00. This amount represented the bond of $3,400 paid by the tenant in respect of residential premises in Ashfield, less an amount of $250 conceded by him in respect of cleaning. 3. The principal issue on appeal is whether or not the Tribunal had jurisdiction to make the order. The landlord claims that Tribunal had no power to do so because the bond had never been lodged with the Secretary (that is, the Commissioner for Fair Trading, Department of Finance, Services and Innovation). It is common ground that, at the commencement of the tenancy, in June 2014, the tenant sent a bank cheque (made out to the Rental Bond Board) to the landlord's then agent in the sum of $3,400. This amount represented four weeks' rent, and was the rental bond, that is, the amount of money paid or payable by the tenant as security against any failure by the tenant to comply with the terms of the residential tenancy agreement. 4. The agent ceased to act for the landlord, and upon termination of its retainer provided the landlord with its file for the landlord's property, which included the bank cheque. The agent had not lodged the bond with the Secretary as it was required to do under s 162 of the Residential Tenancies Act 2010 (the Act). Nor did the landlord lodge the bond with the Secretary after the agent provided her with the tenancy file (including the cheque), as she was required to do under s 162 of the Act. The bank cheque subsequently became stale. 5. For the reasons that follow, we have decided to allow the appeal, in so far as landlord seeks to set aside the order of the Tribunal that she pay the tenant $3,150. In so far as the appeal relates to other matters, we have decided to dismiss the appeal, and otherwise refuse the landlord leave to appeal. The tenant will have to pay the landlord the $250 in respect of cleaning which he conceded at the Tribunal hearing. The bank cheque, which is presently held by the Registry, is to be returned to the tenant. Background 1. On 29 November 2017, the tenant lodged application RT 17/50841 in the Consumer and Commercial Division of the Tribunal. The tenant sought orders that the rent payable was excessive (s 44(1)(b) of the Act), and an order regarding the payment of the rental bond (relying on s 175). The claim for excessive rent related to a non-functioning washing machine, fridge and dishwasher. However, the tenant did not pursue this claim at the hearing. 2. In relation to the bond, the tenant stated in his application: "The bond was never lodged, and the bank cheque we used has since expired (bank cheques are only valid for 18 months according to CBA). The landlord is still in possession of the bank cheque, and is asking that we pay any repair costs before she surrenders the cheque back. I have attempted to organise with the landlord a fair price for what she considers repairs required for the property, however our negotiations have broken down. I don't have any guarantees that the bank will actually buy back the expired bank cheque. As we cannot come to an agreement, I would like the tribunal to order the landlord to submit the bond to the bond board, or surrender the bank cheque back to me. I am happy to pay a fair price for whatever maintenance may be required that is not considered usual wear and tear. However I am uncomfortable with the manner in which the landlord would like us to pay that amount. I would prefer those payments come out of the bond, because that's what the bond is for. I would also like the tribunal to order the landlord to pay any additional processing fees that the bank may impose by having them buy back an expired bank cheque." 1. The Tribunal's relevant findings of fact appear at pars [6] to [16] of its decision which we set out below. "6 The parties entered into a residential tenancy agreement made on 13/10/16 for a fixed term of 12 months with a commencing weekly rent of $850 increasing to $900 from 13/10/16 and a Bond of $3,400 (the Bond) to be paid by the tenant (the Agreement) for premises at [address redacted, Ashfield] (the Premises). 7 The Agreement was not in evidence but was apparently prepared by a managing agent for the landlord, and l infer that it was in the standard form set out in the Regulations schedule 1. 8 The tenant paid the Bond by a bank cheque delivered to the managing agent. 9 About one month after making the Agreement (July 2014), the landlord discontinued with the services of the managing agent who thereafter delivered the papers to the landlord. Included in the papers was the said bank cheque for the Bond. 10 The landlord has thereafter failed to lodge the bank cheque with the Rental Bond Services, and continues to hold the bank cheque. 11 On 16/11/17 the tenant gave vacant possession and claimed return of his Bond. 12 The landlord has failed and refused to return the Bond as she contends she has claims against the Bond, but she has not filed any application. 13 The bank cheque is now stale and cannot be lodged with the Rental Bond Services and must be returned to the issuing bank for a refund of the monies. 14 At the hearing today the landlord attended without any evidence in support of her claims against the Bond. The Notice of Conciliation and Hearing (Group List) has on its reverse the following relevant notation under the heading "Hearing (Group List)": "… If conciliation is unsuccessful . . . the case proceeds to a hearing". As this is a first hearing, you are not required to bring witnesses. However, you should bring with you all documents or materials to support your case". 15 Relevantly, the landlord did not bring the ingoing condition report of outgoing condition report, there were no tax invoices to support any of the items (although the tenant conceded $250 for cleaning), and she did not bring the bank cheque. 16 The landlord has brought no evidence today to support her contention that she has incurred costs and expenses in returning the Premises to good repair, fair wear and tear excepted. The tenant concedes $250 for cleaning." 1. We note that the landlord makes no challenge to any of the factual findings of the Tribunal. 2. Against that background, the Tribunal relied on ss 175, 187(1)(c) and 188(c) of the Act as giving it the power to deal with the bond. We will refer to those provisions below. The Tribunal also noted the obligation of landlords to deposit bonds with the Secretary (through the Rental Bond Board) and found that the landlord had not explained why she did not deposit the bank cheque after she received the papers from her former managing agent. The Tribunal commented that the importance of the requirement to deposit the bond was emphasised in s 162(4) of the Act which provides that contravention of s 162 is an offence carrying a maximum penalty of 20 penalty units (that is $2,200). The Tribunal concluded: "27. The bond monies are monies which belong to the tenant and have been provided for any future claims which the landlord may be able to prove against that security. 28. The tenant is prima facie entitled to a return of the bond and the landlord carries the onus of proving any claim against the bond: see [Residential Tenancies Regulation Schedule 1 (Standard Form Agreement) cl 37 (Rental Bond)]. 29. In this matter, the landlord attended the Tribunal without any evidence to support her claim against the bond. She has failed to discharge her onus of proof. In my opinion it is untenable that in those circumstances, together with her failure to file any application against the tenant, that the tenant he further delayed in recovering his bond." Notice of Appeal and landlord's submissions 1. The grounds of appeal are stated as follows: "Whether the tribunal has the power to order a payment (when the bond is not lodged) under s 175 and s 187 is a question of law. Mr Levingston's claim that he has the power order payment (when the bond is not lodged) under s 175 and s 187 is false, because s175 only applies when the bond is lodged with the rental bond authority, but the bond has not been lodged, no payment can be ordered. Mr Levingston knew that s187 relates to 'the amount in dispute' (Attachment 1 at 4) and the disputed amount is damages not bond. Mr Levingston's statement that 'I find that the Tribunal has jurisdiction to determine the tenant's application because it would be a grave injustice' if not, constitutes an admission that he knew he has no power to make the order under any of the provisions. Accordingly, the order should be set aside, the landlord seeks a cost order pursuant to s 60(3)(c) of NCAT Act." 1. These are the only grounds stated in the notice of appeal. In support of the landlord's grounds of appeal the landlord provided five pages of written submissions. She states that there are three issues to be determined by the Appeal Panel. These are: 1. Whether the Tribunal had the power to order payment of a bond when it was not lodged with the rental bond authority? 2. Whether a money order can be made when the bond cheque was not banked and the landlord had not filed an application for compensation (that is, a cross claim against the tenant)? 3. Whether leave should be granted to appeal the amount of damages? 1. In relation to the first issue, the landlord submits, in substance, that: * s 187 of the Act alone does not give the Tribunal power to order payment of the rental bond; * a pre-condition for an order for payment under s 175 of the Act is the bond being lodged with the rental bond authority. 1. The landlord also submits that the statement at [20] of the Tribunal's reasons that it "would be a grave injustice if a landlord were able to defeat the Tribunal's jurisdiction by failing to deposit a bond" and that the Tribunal therefore has jurisdiction is an "admission" that Mr Levingston "knew" that the Tribunal had no power to make the order. 2. In relation to the second issue, the landlord submits that it is a principle of natural justice that a party is entitled to cross-claim, that the fact that the tenant conceded $250 means that the landlord has "the right to claim", and therefore that she is entitled to claim without a separate application. 3. As to the third issue, the landlord submits that: * The Tribunal's decision was not fair and reasonable – in that the Tribunal determined the amount of damages of $250 in the absence of the landlord. The landlord said at the appeal hearing that, although she was present at the Tribunal hearing, the member made a verbal order that she pay the tenant $3,400 and only made the order about the $250 in writing, after the parties had left the hearing room. This meant that the Tribunal did not consider her other cross claims; * The Tribunal's decision was against the weight of the evidence – here the landlord submits that she attended the Tribunal without any evidence to support her claim on the bond. She says that she provided submissions with "itemised damages and amount" which should be sufficient for s 166(1)(a) of the Act, which gives her an entitlement to claim "the reasonable cost of repairs". 1. The landlord also provided submissions in reply to the tenant's submissions. It is not necessary to reproduce those reply submissions. In summary, these submissions refute the tenant's submissions on the basis that they are false, irrelevant and, in one instance, "a bare faced lie". Appeal on a question of law 1. Where an appellant is not legally represented, it is appropriate for the Appeal Panel to consider whether the grounds of appeal raise a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. In Prendergast, the Appeal Panel set out a non-exhaustive list of questions of law that might arise from Tribunal decisions. Here the landlord has identified an arguable error of law, being the lack of jurisdiction of power to make the order for the landlord to repay the $3,150.00 to the tenant (being the bond of $3,400 less the $250 for cleaning expenses). Jurisdiction to make orders in respect of rental bond 1. A useful explanation of the role of rental bonds and the practice and procedure relating to their return to tenants appears in Anforth, Christensen and Adkins, Residential Tenancies Law and Practice New South Wales, 7th Edition, Federation Press, 2017 at [2.157.1]: "A bond is money that belongs to the tenant. It is only paid into the Rental Bond Board as a security for any obligations that may arise on the tenant's part. Absent such contingencies the bond is repaid to the tenant at the end of the tenancy. … In the simplest and most fundamental terms a rental bond which is actually paid to a landlord or his or her representative in respect of residential premises (unless expressly excluded under the provisions of the Landlord and Tenant (Rental Bonds) Act) must be paid into the Rental Bond Board. The agreement entered into by the landlord and tenants in this case was not one which was expressly excluded and thus this Act applies to the circumstances and arrangements between the parties. The bond is securely held by a neutral third party ie the Board until dealt with under the provisions of the Act. The bond monies lodged are the property of the tenant(s) and in the normal course, will be returned to the tenant(s) unless and until the landlord establishes a right to receive some or all of the bond money. The Act provides for a number of ways in which this can occur. If the parties cannot agree how the bond money is to be distributed (usually at the end of a tenancy), one way to deal with the matter is for a party to bring an application to the Tribunal. When this occurs, the Tribunal is obliged to deal with the application on the evidence presented. Logically, as the bond money was the tenants' money, it should be returned to the tenants unless and until the landlord can establish a right to some or all of the bond money by proving loss or damage. The landlord has the onus of providing such proof. In Al Adwan v He and Cai (2011) [[2011] NSWCTTT 155] the Tribunal reiterated that a bond is the tenant's property until ordered otherwise (see also Georgiades v Sayer (2001) [2001] NSWCTTT 36). The Tribunal ordered the last landlord in a chain of landlords to refund the equivalent of the bond to the tenants, despite that landlord asserting neither he nor the Rental Bonds Board held the bond." 1. In Al Adwan, the bond was lost. Rental Bond Services had no record of receiving it. The Tribunal (also constituted by Mr Levingston), in brief reasons, ordered the landlord to return the bond. However, the decision does not refer to any relevant authority or statutory provision empowering the Tribunal to do so. 2. As noted, the Tribunal identified three sections of the Act as founding jurisdiction to make the order in relation to the bond. These were ss 175, 187(1)(c) and 188(c). Section 175 1. Section 175 sets out the powers of the Tribunal in relation to rental bonds. It provides: "175 Powers of Tribunal (1) The Tribunal may, on application by a landlord or tenant or any other person (including a former co-tenant) who has an interest in the payment of a rental bond, make an order as to the payment of the amount of the rental bond. (2) The Tribunal may make an order whether or not the amount of a rental bond has been paid by the Secretary. (3) An application for an order must be made within the period prescribed by the regulations." 1. This power is not expressed to be limited in any way, including in the manner suggested by the landlord, that is, that it only operates when the rental bond has been paid to the Secretary. A "rental bond" is defined in s 157 of the Act as: "an amount of money paid or payable by the tenant or another person as security against any failure by a tenant to comply with the terms of a residential tenancy agreement." 1. The landlord's principal argument was that the Tribunal did not have power to "make an order as to the payment of the amount of the rental bond" under s 175(1) of the Act. This was because no bond had been paid to the Secretary (that is, the Commissioner for Fair Trading, Department of Finance, Services and Innovation; see Act, ss 3(1) (definition of "Secretary") and 162). 2. The landlord's argument that s 175 only applies if a bond has been paid to the Secretary gains some support from the structure of Part 8 of the Act ("Rental Bonds") and the location of s 175 within that structure. Part 8 provides relevantly for the payment and deposit of rental bonds (Div 2), the release of rental bonds (Div 3) and for financial matters (Div 6). Section 175 is located in Division 3. 3. Pursuant to s 162(1), in Division 2 of the Act, a landlord who receives a rental bond must deposit it with the Secretary "within the deposit period." Where, as in this case, the bond is paid to an agent, the bond must be deposited 10 working days after the end of the month in which the bond is paid (s 162(3)(b)). Failure to deposit the bond as required is an offence punishable by 20 penalty units (s 162(4)). 4. All bonds paid to the Secretary are to be paid into a Rental Bond Account (Act, s 185(1)(a) in Div 6). There is to be paid from the Rental Bond Account the amount of any rental bonds payable under the Act (Act, s 185(2)(a)). 5. Division 3 of Part 8 deals with the release of rental bonds. Pursuant to s 163(1), a claim may be made to the Secretary for the payment of a rental bond by a tenant, landlord or agent. The Secretary must then give written notice of the claim to the other parties, stating that the Secretary will pay the claim unless notified in writing by a party within 14 days that the claim is the subject of proceedings before the Tribunal or a court (s 164(2), (5)). The Secretary must pay the amount of the claim if, in essence, there is no dispute about it (s 167). If the Secretary is notified that the claim is the subject of proceedings before the Tribunal or a court, the Secretary may only pay the claim in certain circumstances, including if ordered to do so by the Tribunal or a court (s 168(1), (2)). 6. The Tribunal's powers in relation to rental bonds are contained in s 175, the penultimate provision in Div 3. The terms of that provision are set out above. The other provisions in Div 3 are mainly concerned with the release of rental bonds which have been paid to the Secretary. They provide for a claim for the bond to be made to the Secretary and the payment of that claim by the Secretary, depending upon whether it is disputed or not. The final provision of Div 3, s 176, provides for proof of the deposit of the bond with the Secretary by way of a certificate. All of these provisions are concerned with payment of the bond in circumstances where it is held by the Secretary (or, in the case of s 176, where the question of whether it is so held is in issue). The heading of the Division, "Release of rental bonds," may also (implicitly) support a construction of the Division as being concerned with release of a bond from the Rental Bond Account, which is managed by or on behalf of the Secretary. 7. The references to the Tribunal elsewhere in Div 3 (including in s 164(5), 168(2) and (3) and 169) contemplate the Tribunal having a role in determining disputes concerning rental bonds held by the Secretary. 8. The tenant submitted that accepting the landlord's construction of s 175 would mean that a landlord would not be subject to the Tribunal's order-making powers concerning the bond money, where a landlord takes the money and fails to lodge the bond. We do not accept that this is the case. The Tribunal has ample powers elsewhere in the Act to make relevant orders. Section 187, for example, in Part 8 of the Act ("General Powers of Tribunal"), provides that the Tribunal may, on application by a landlord or tenant or other person under the Act, or in any proceedings under the Act, make an order that requires an action in performance of a residential tenancy agreement and an order for the payment of an amount of money (s 187(1)(b) and (c)). The landlord accepted that s 187 would empower the Tribunal to make orders concerning the bank cheque paid as a bond in this case (and not banked) and the amount of that bank cheque if, as she submitted, s 175 did not apply. 9. All of these factors support the landlord's construction of s 175. We accept that it is a construction which is open. However, we do not think it is the better construction of the provision, for the reasons which follow. Reading words in 1. The construction contended for by the landlord requires the Tribunal to "read words in" to s 175 of the Act; that is, to read it as if it contained additional words. Those words would limit the operation of the provision to circumstances where a rental bond has been lodged with the Secretary. In Wentworth Securities Ltd v Jones [1980] AC 74 at 105–106, Lord Diplock made the following comments about the circumstances in which it is permissible to depart from a literal construction by reading additional words into a provision: "My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts." 1. This passage was cited by the New South Wales Court of Appeal with approval in Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154 at [68] (Spigelman CJ, McColl JA and Handley AJA agreeing) and was given qualified support by French CJ, Crennan and Bell JJ in Taylor v Owners — Strata Plan No 11564 (2014) 253 CLR 531 at 549. 2. In our view, the application of the literal meaning of s 175 does not lead to results which would "clearly defeat the purposes of the Act". Whilst the purpose of Div 3 of Part 8 appears (from the other provisions) to be principally concerned with the release of rental bonds held by the Secretary, this is not exclusively so (see ss 174 and 176). The three "conditions" identified by Lord Diplock do not appear to us to lead inexorably to the conclusion that any words should be read into s 175. It is not possible to determine precisely the mischief which Div 3 is designed to remedy (the first condition); whilst it may be the fair resolution of disputes about rental bonds held by the Secretary, it could also be broader than this. We do not consider that the draftsman has overlooked a matter required to be dealt with for "the purpose of the Act" to be achieved (the second condition). The broader construction of s 175 is consistent with the Act's apparent purpose. Thirdly, the words which have been allegedly omitted have to be capable of being stated with certainty; this condition is probably satisfied if the landlord's construction is accepted. The words would be, following the first "rental bond" in s 175(1), "which has been deposited with the Secretary." 3. Fulfilment of Lord Diplock's conditions is not, in any event, determinative, the Tribunal's task being to construe the words the legislature has enacted: Taylor v Owners — Strata Plan No 11564 (2014) 253 CLR 531 at 549 [39]. The task of statutory construction must begin with a consideration of the text itself (see, for example, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47] per Hayne, Heydon, Crennan and Kiefel JJ). The text of the Act, including the broad definition of "rental bond," indicates, in our view, that the legislature intended the Tribunal to have broad powers in relation to rental bonds, whether or not they have been paid to the Secretary. The term "rental bond" includes an amount which is "payable." Preferring a construction which would promote the purpose of the Act (Interpretation Act 1987, s 33) supports the tenant's interpretation of s 175, as this allows the Tribunal to make orders, under that provision, where a landlord or landlord's agent has failed to comply with the obligation to lodge the bond money. 4. On balance, we consider that there is insufficient justification for adding the words into s 175 which would be necessary to achieve the construction contended for by the landlord. While there are some indications that Div 3 of Pt 8 is principally concerned with the release of rental bonds which have been deposited with the Secretary, the landlord's construction cannot be justified on purposive grounds, and departs from the language chosen by the legislature. It is not sufficient that the reading is "reasonably open having regard to the statutory scheme": Taylor v Owners — Strata Plan No 11564 (2014) 253 CLR 531 at 549 [39]. 5. As indicated above, we consider that the tenant's interpretation of s 175 best achieves the legislature's purpose. To take a simple example, let us assume that a tenant pays the landlord a bond in cash. The landlord does not pay the bond to the Rental Bond Board on behalf of the Secretary, but instead spends it. When the residential tenancy agreement terminates, can it be seriously suggested that, because the landlord did not lodge the bond with Rental Bond Services as required, the Tribunal cannot order the landlord to return the bond (which was provided to them) to the tenant under s 175? We think not; in our view s 175(1) empowers the Tribunal to do so. 6. Our view is fortified by s 175(2) which provides that the Tribunal may make an order whether or not the amount of a rental bond has been paid by the Secretary. In other words, even if the Secretary (through the Rental Bond Board) has released a bond, the Tribunal may still make an order. This puts beyond doubt that the Tribunal's powers are not limited to making orders directed at funds held by the Secretary. 7. Accordingly, we find that s 175 empowers the Tribunal to make orders as to the payment of a rental bond, whether or not that bond has been deposited with the Secretary. Section 187 1. In case we are wrong, we also consider that s 187 of the Act empowers the Tribunal to make the orders it did concerning the rental bond. Section 187(1)(c) relevantly provides that the Tribunal, on application by a landlord or tenant or some other person under the Act, or in any proceedings under the Act, may make an order for the payment of an amount of money. Further, under s 187(1)(e), the Tribunal may make an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement. Section 188(c), on which the Tribunal relied, allows the Tribunal to make ancillary orders. 2. The landlord submitted that orders under s 187 in respect of the bond money could only be made if the nature of the claim were advised to her in advance. She said that the Tribunal may be able to make orders concerning the bank cheque if it were alleged that she had breached the residential tenancy agreement by failing to lodge that cheque. However, she argued that it would be a breach of procedural fairness for the Tribunal to make such orders without the case against her being put first. Had it been alleged that she had breached the residential tenancy agreement, she says she would have sought to join her former real estate agent to the proceedings (the agent apparently not having lodged the cheque for the bond when it was provided to the agent). She also said that she did not lodge a claim against the bond because there was (in her view) no bond; if the tenant's claim was about breaches of the residential tenancy agreement, she had counter claims she wished to make. 3. We consider that the landlord was sufficiently on notice of the tenant's claim, which was for refund of the bond, as an entitlement at the end of the residential tenancy agreement. As the tenant submitted, the rental bond was his money, provided to the landlord as security. Whilst the landlord did not receive the money (only the cheque, being a promise by the bank to pay), the tenant paid the bank for the cheque and the bank took the tenant's funds. The landlord and her agent were required by the Act to deposit the cheque with the Secretary and failed to do so. There was no breach of procedural fairness in the Tribunal making orders about the payment of the amount of the rental bond under s 187(1)(c) in these circumstances. The landlord could have applied for the agent to be joined to the proceedings, but did not do so. She made counter claims, although she did not provide evidence in support of them, but had an opportunity to do so. We do not consider that there was any error in the Tribunal making an order under s 187 in respect of the rental bond, or the cheque paid as a rental bond, assuming s 175 to be inapplicable. We note that it relied upon both provisions. Landlord's claims in respect of the bond 1. As indicated above, the landlord contended that the Tribunal should have dealt with her claims in respect of the bond and failed to do so. The landlord disputed that the tenant was entitled to the return of the whole of the bond and provided submissions to the Tribunal claiming amounts for cleaning, $250; painting, $400; electrician (down lights), $308; replacement of a showerhead, $150; stove and dishwasher, $170; and the rail of a sliding door, $100. This was a total of $1,478, of which the $250 for cleaning was conceded by the tenant (see par [16] of the reasons for decision). 2. These submissions were clearly considered by the Tribunal, as the sound recording records the Member making comments about the effect of wear and tear on the stove and the dishwasher. No doubt the Tribunal had in mind s 166(1)(a) of the Act ("matters that may be subject of rental bond claim") which provides that a landlord is entitled to claim from the rental bond for the residential tenancy agreement the reasonable cost of repairs to, or the restoration of, the residential premises or goods leased with the premises, as a result of damage other than fair wear and tear caused by the tenant, an occupant or an invitee of the tenant. 3. It is tolerably clear from the sound recording that, despite the landlord not having filed her own application in respect of those matters, the Tribunal would have considered the landlord's claims had the landlord brought along evidence to support her claims. This would have been consistent with the Tribunal's duty pursuant to s 36 of the Civil and Administrative Tribunal Act 2013 (NCAT Act), namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 4. At par [14] of his reasons, the Member refers to the landlord's claims against the bond. However, that paragraph, and pars [15] and [16], note the landlord brought no evidence of her claims, including the ingoing and outgoing condition reports or tax invoices. In the circumstances, the Tribunal did not make any orders in respect of the landlord's claims, save for the amount sought in respect of cleaning which the tenant conceded. The Tribunal considered that as the landlord was still in time to bring her own claim in respect of those matters, the landlord having six months from the termination of the residential tenancy agreement to do so, she would not be prejudiced by it ordering her to return the bond. 5. The landlord said at the appeal hearing that the Tribunal's decision was made at a "group listing" (that is, the first return date where the Tribunal hears or makes directions in a number of matters in a single time slot). She said that the material sent to her by the Tribunal stated that she did not have to provide witnesses for a group listing. She also said that she expected a hearing to occur later, and to provide evidence on the hearing day. When asked, however, whether she wished to add a ground relating to the Tribunal's failure to adjourn the hearing or a lack of procedural fairness, she said she did not, and that her other grounds were sufficient. 6. We do not consider that the landlord has demonstrated any error in respect of the way the Tribunal dealt with her claims on the bond. Conclusion 1. We consider that the Tribunal had the power to make the orders it made. However, our view is that the better order for the Tribunal to have made was an order requiring the landlord to return the bank cheque to the tenant. 2. The Tribunal actively discussed with the landlord a number of possibilities to resolve the conundrum. The first was that she returned the bank cheque to the tenant, and for her to then make her own claim. The sound recording reveals that the landlord strongly resisted that course, indicating that she would not return the bank cheque. The Member suggested that the landlord would have to return the cheque if he made an order requiring her to do so. The landlord indicated that the Member could make any order he liked, but she would lodge an appeal. The tenant's submissions recorded the following exchange taken from the sound recording: "Landlord: Okay, If you think its relevant put it in your order, I'll take it further. Mr Levingston: You're entitled to appeal." 1. and later: "Landlord: Mr Levingston. You are – you have the liberty to put whatever order you believe, that is not a surprise, in the final order, I will appeal it." 1. The implication that the landlord would not have obeyed an order of the Tribunal to return the bank cheque to the tenant is clear. 2. The second course discussed by the Tribunal with the landlord was that she endorse the bank cheque to the tenant. The transcript shows the landlord saying to the Tribunal that as she had not made her own claim she would not endorse the cheque. 3. The third outcome discussed with the tenant was that she personally pay the tenant the amount of the bond (which was the order that was ultimately made). Here the landlord stated that she did not have the money to pay the bond to the tenant. Again, the landlord said that she would appeal. 4. If one listens to the sound recording, as we have done, one observes that the atmosphere in the Tribunal room was at times heated, with the landlord regularly interrupting the member and rejecting his statements of law and suggestions. It is perhaps understandable that the order ultimately made by the Tribunal was not the most appropriate one. 5. Subject to our determination of the other issues below, our preliminary view is that the appeal should be allowed to the extent that the order requiring the landlord to pay the tenant $3,150 should be set aside, and in lieu thereof the order that the Tribunal's Registrar, who now holds the bank cheque, return the bank cheque to the tenant. We were told during the appeal hearing by the tenant that he understood that his bank would reimburse him the funds expended in acquiring the bank cheque. 6. That has the result that the landlord has not received the $250 the tenant conceded at the hearing. The tenant should therefore pay the landlord that amount within seven days of receiving these reasons. Orders made in absence of landlord 1. We have set out above the landlord's assertion that the Tribunal determined the amount of damages of $250 in her absence. If a tribunal makes a decision in the absence of a party, this may amount to an error of law. However, the landlord's submission is misconceived. The landlord did attend the hearing. Paragraph [29] of the reasons for decision actually notes that the landlord attended the Tribunal hearing. In the landlord's written submissions (before the Tribunal) the landlord claimed $250 for cleaning of the premises. At 3:11 of the sound recording the tenant agreed that the cleaning had been completed, and that she had a tax invoice which could be provided. However, she did not have the tax invoice at the hearing. The tenant indicated that, on presentation of a receipt or tax invoice, he would pay the amount. The landlord stated in her submissions that this amount had been agreed to by the tenant. Despite the lack of evidence, the tenant agreed that this amount could be paid from the bond monies to the landlord. True it is that the Tribunal indicated at 22:01 that the order the Tribunal would make was that the landlord should pay the tenant $3,400, being the whole of the bond and the parties left then the hearing room. We assume that, at the conclusion of a contentious exchange between landlord and Tribunal, the Tribunal inadvertently overlooked, in the heat of the moment, that the tenant had made a concession about the $250 cleaning. In any event, this was the whole of the amount claimed by the landlord for cleaning. As the Tribunal gave the landlord credit for this, allowing the appeal on this ground has no utility. Appeal on other grounds 1. We note that at the directions hearing before Principal Member Harrowell on 16 January 2018, the Principal Member made a direction that the issue of whether or not the Appeal Panel should give leave to appeal on grounds other than a question of law should be determined at the appeal hearing. 2. Appeals on grounds other than a question of law may be brought only by a grant of leave: see s 80(2) of the NCAT Act. Clause 12 of Sch 4 to the Act provides that, in appeals from the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: * the decision of the Tribunal under appeal was not fair and equitable; or * the decision of the Tribunal under appeal was against the weight of evidence; or * significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel concluded that in order to be granted leave to appeal, the landlord must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. As was explained in Pholi v Wearne [2014] NSWCATAP 78 at [31], ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle; questions of public importance; an injustice which is reasonably clear, an error that is plain; a factual error that was unreasonably arrived at and clearly mistaken; or the Tribunal went 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. 2. The landlord says she ought to be granted leave to appeal, and addresses the Collins v Urban issues in her submissions. She relies on four matters: * the Tribunal determining the amount of damages as $250 in her absence; * the Tribunal failing to consider all the submissions provided by the landlord; * the Tribunal's expressed view that the landlord could recover under s 175(3) and cl 22(8) of the Residential Tenancies Regulation 2010 being "a factual error and clearly mistaken"; * the Tribunal going about the fact-finding process in an unorthodox manner by concluding that the landlord allowed the bank cheque to go stale by failing to deposit it, when it was her agent that failed to do so. 1. In our view, these submissions should be rejected, and leave to appeal refused. We do not accept that any of these matters when considered individually, or when considered cumulatively, warrants a grant of leave. 2. We have already referred to the issue of the $250 being decided in the absence of the landlord. It was a concession made by the tenant at the Tribunal hearing, it was a concession in the landlord's favour, and she did not otherwise have to prove, any entitlement to monies for cleaning of the premises. This factor does not favour the grant of leave. 3. The submission that the Tribunal failed to consider all the submissions provided by the landlord must be rejected. This factor does not favour the grant of leave. 4. First of all, the landlord's appeal submissions do not particularise which submissions she claims the Tribunal overlooked. But secondly, her written submissions principally related to s 175 of the Act and her claim for damage to the premises. Both these matters were referred to by the Tribunal in its written reasons. In so far as the written submissions refer to the bank cheque, the landlord submits that her agent had the responsibility to lodge the bank cheque, and rather remarkably suggests that the tenant should claim damages from the landlord's former agent. As Member Levingston told the landlord during the hearing, the principles of agency mean that she is responsible for her agent's acts, and, in any event, the landlord bore a personal obligation of lodging the bond with the Secretary once the cheque had been returned to her by her agent. 5. Finally, the landlord said in her submissions that the tenant failed to present any evidence on the reasonableness of the amount of damages claimed by the landlord. This submission is entirely misconceived. A respondent never has an obligation, in the absence of evidence from a plaintiff, to provide evidence of the reasonableness of the plaintiff's claim. The landlord made this submission again on appeal. For the benefit of the landlord, a court or tribunal is informed and persuaded only by the presentation of evidence. Evidence is material which tends to persuade the court or tribunal of the truth or probability of the facts being alleged. Evidence may be photographic, documentary or testimonial. But it will only succeed in persuading the tribunal if it appears as being truthful, reliable and cogent. The uncorroborated say so of a party that work has been undertaken poorly or that a loss has been suffered in a particular amount is rarely, if ever, sufficient proof of the poor work or the loss being suffered: Pate v Chan [2010] NSWCTTT 221; Buckland v Goodwin [2009] NSWCTTT 685. Further, cl 37 of the standard residential tenancy agreement provides that where the landlord applies to the Tribunal for payment of a rental bond, he or she must provide the tenant with details of the amount claimed and with copies of any quotations, accounts and receipts that are relevant to the claim and a copy of a completed condition report about the residential premises at the end of the residential tenancy agreement. 6. In civil cases the standard or proof depends on the balance (or preponderance) of probabilities. This simply means that a party must prove that their case is more likely than not to be true. If the scales tip in favour of the party, however slight, they have proved their case. But if the probabilities are equal, they have failed to prove their case. 7. As to the Tribunal being mistaken that the landlord could recover under ss 175(3) of the Act and cl 22(8) of the Residential Tenancies Regulation 2010, this matter does not favour the grant of leave. All the Tribunal was indicating was that the landlord had time available to make her own claim in respect of the subject premises. 8. Finally, as to the final matter in support of leave being granted (that is the Tribunal going about the fact-finding process in an unorthodox manner by concluding that the landlord allowed the bank cheque to go stale by failing to deposit it, when it fact it was her agent that failed to do so), we do not consider that this matter warrants a grant of leave. The landlord was under an obligation to deposit the bond with the Secretary and received the bank cheque from her agent about a month after the residential tenancy agreement was entered into. Further, as we have noted above, according to the principles of the laws of agency, she is responsible for the acts and omissions of her agent. 9. For the above reasons, leave to appeal is refused. Other 1. There are two final matters to mention. 2. First, in par [39] of her submissions the landlord states that Member Levingston displayed actual bias when he knew he had no power under s 175. Actual bias is a most serious allegation to make against a person who is "in substance" a judge: Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 at [328]. We asked the landlord at the appeal hearing whether she pursued that submission. She said, somewhat reluctantly, that she did not. The submission/allegation of actual basis ought not to have been made, and it is rejected. 3. Secondly, during the appeal hearing, the landlord appeared to want to amend her notice of appeal to claim a further ground of appeal, that being that the Tribunal refused her application to adjourn the hearing. On enquiry, the tenant claimed that that application had never been made at the hearing. In the circumstances, we declined to entertain this additional ground of appeal. We note that, having now listened to the sound recording, we accept that the landlord made no such application at the hearing. On the contrary, the landlord urged the Tribunal to make a decision quickly, so that she could then appeal. We are satisfied that the landlord also decided that she did not wish to raise, at the appeal hearing, a procedural fairness ground, for reasons given above. Costs 1. The landlord has been partially successful; at least to the extent she has persuaded us to set aside the order of the Tribunal. In her notice of appeal, she sought an order for costs were she successful. In order to do so, she would need to persuade us that special circumstances warrant an award of costs: see s 60 of the NCAT Act; r 38A(2) of the Civil and Administrative Tribunal Rules 2014. Section 60 provides that the Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. Section 60(3) lists a number of non-exhaustive factors that the Tribunal may have regard to in determining whether there are special circumstances warranting an award of costs. 2. We note that the tenant was also partially successful. He indicated at the hearing that he too sought his costs. We indicated that he would need to demonstrate special circumstances, and further noted that costs were limited to the legal costs of a party: costs are not awarded to compensate a litigant who is not a lawyer for time spent in preparing and conducting the appeal: see eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [50]; Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [107]- [108]; Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 405; and, more recently, Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41. 3. Our preliminary view is that there should be no order as to costs. However, should either party seek an order as to costs, that party may provide submissions to the Tribunal and the other party within 14 days of the receipt of these reasons. The other party may respond (to the party seeking costs and the Tribunal) within a further 14 days. 4. Our preliminary view is that the question of costs should be determined "on the papers", and without a further hearing. However, if either party considers it appropriate for a hearing to be held on the issue of costs, their submissions should address that issue. 5. However, we remind the parties that costs are not awarded to compensate a litigant who is not a lawyer for time spent in preparing and conducting the appeal. Orders 1. For the above reasons, we make the following orders: 1. The appeal is allowed in part, and order 1 made in application RT 17/50841 order is set aside. 2. In lieu thereof, the Appeal Panel makes the following orders: 1. the appellant is directed to return the Commonwealth Bank of Australia cheque no 384541 dated 13 June 2014 to the respondent; 2. upon receipt of the bank cheque, the respondent is to pay the appellant the sum of $250 within 7 days. 1. To effect order 2(a) the Tribunal directs the Registrar to deliver up the bank cheque to the respondent immediately. 2. Save as provided above the appeal is dismissed, and leave to appeal refused. 3. If either party seeks an order as to costs, that party is to provide submissions in support to the Tribunal and the other party within 14 days of the date of these reasons. 4. If a party applies for costs, the other party is to provide a response to the party seeking costs and the Tribunal within a further 14 days. 5. The parties are to address in their submissions whether the issue of costs should be determined on the papers. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 April 2018