Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jusayan v Ang [2018] NSWCATAP 103 Hearing dates: 24 April 2018 Date of orders: 01 May 2018 Decision date: 01 May 2018 Jurisdiction: Appeal Panel Before: The Hon F Marks Principal Member G Sarginson Senior Member Decision: 1. Appeal dismissed Catchwords: Appeal-grounds of appeal not particularised-no error identified in Decision under appeal-leave to appeal not made out-leave to appeal refused-appeal dismissed Legislation Cited: Residential Tenancies Act 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules Cases Cited: Collins v Urban [2014] NSWCATAP 17 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Category: Principal judgment Parties: Christine Joy Jusayan appellant Kooi Gan Ang respondent Representation: T Wootten for appellant Respondent no appearance File Number(s): AP 18/10019 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 12 February 2018 Before: J Smith Senior Member File Number(s): RT 17/36403 reasons for decision Introduction 1. The appellant Christine Joy Jusayan leased residential premises from the respondent Kooi Gan Ang. She commenced proceedings in this Tribunal seeking a number of orders under 10 specified sections of the Residential Tenancies Act ("the Act"). In essence, the appellant complained that there were many defects in the leased property which required rectification, many had not been attended to despite the agent having been given notice of them, some had been rectified by her partner Tristan Wootten who resided with her in the premises, and that overall the value of the tenancy had been reduced. She claimed a rent reduction and monies for reimbursement of rectification expenses. It appears that the tenancy had come to an end, at least when the proceedings came on for hearing before a Senior Member of this Tribunal. The appellant was awarded compensation and allowances totalling $2422.65. There was deducted from that amount the sum of $1657.14 which the appellant owed in rent, leaving a net amount payable to her of $761.51. The appellant has sought leave to appeal from that decision. 2. Mr Wootten appeared at the hearing with the appellant before the Senior Member and during the proceedings in the Appeal Panel. He stated that the appellant had a brain injury. There was no appearance by the respondent at the Appeal Panel hearing. Mr Wootten had been granted leave to represent the appellant under section 45 of the Civil and Administrative Tribunal Act 2015 in the Appeal Panel proceedings at a directions hearing on 13 March 2018. The original application made by the appellant 1. The form of the application brought by the appellant created some difficulties for the Senior Member who heard it. We note the following matters referred to in that document; 1. an order was sought under section 44 (1) (b) of the Act seeking a reduction in rent because of reduction or withdrawal of goods, services or facilities. The reasons given was that "The property has so many faults that need fixing and we requested so many times to the real estate by phone, SMS, photos, emails and 90% of the work has still not been fixed or done….. The house was not up to the standard as per the rental agreement we signed on when we moved in." No hint is given identifying the goods, services or facilities which were reduced or withdrawn. 2. an order was sought under section 47 of the Act for repayment of rent. The reasons given again referred to the property having "so many faults that need fixing and we requested so many times to the real estate by phone, SMS, photos, emails and 90% of the work has still not been fixed or done…. I had to get other qualified people to carry out some repairs. The house was not up to the standard as per the rental agreement we signed on when we moved in." Again, none of the faults has been identified. 3. an order was sought under section 65 (1) (b) of the Act for reimbursement for urgent repairs in the sum of $995. The reasons given are in almost identical terms with that referred to in (2) above, and again lacked any detail. 4. the same general observations may be made about the orders sought under sections 73 (a) and (c) of the Act and for "termination orders" under five different sections of the Act. 1. In all the circumstances, the failure of the applicant to identify, at the least, the particular items which required repair or replacement or other attention in connection with what remedies she was seeking made the task of the Senior Member a very difficult one. Nevertheless, the Senior Member produced reasons which could only have been reached by looking very carefully at the documents filed by the appellant and listening attentively to what was said during the course of the hearing. The decision under appeal 1. The Senior Member delivered reasons for decision dated 12 February 2018 in which he; • disallowed the respondent landlord's claim for water usage charges • rejected a claim by the appellant for reduction of rent for leaking taps because they did not constitute a withdrawal of services • rejected a claim for expenses for repairing a toilet hose because it was carried out by the appellant's partner and the appellant made no personal payment for those services • accepted a claim that as a result of a problem with a back toilet that the rent should be reduced on the basis of withdrawal of services and ordered that the respondent pay $700 to compensate for the cost of urgent repairs • rejected a claim for withdrawal of services based on general poor state of repair, especially regarding cupboards, drawers and door locks because these problems existed when the tenancy commenced and the appellant should have pursued a claim at the time based on a failure of the respondent to provide a reasonable state of cleanliness and fitness for habitation • accepted a claim for reduction of rent for withdrawal of services as a result of the oven/cooktop and the range hood not functioning properly • rejected the claim for withdrawal of services based on the presence of mould because this was present when the tenancy commenced and should have been the subject of a claim against the respondent at the time, and rejected any claim for urgent repairs associated with the removal of the mould • rejected the claim that the presence of cockroaches constituted a withdrawal of goods and services • rejected the claim that notice of termination was served by the respondent as a retaliatory action, based on lack of evidence • noted that the respondent had agreed to reimburse the appellant for the cost of replacement of various door locks • rejected the claim for lawn repair, rubbish removal and gutter cleaning because they were present at the time of the commencement of the tenancy and did not constitute a withdrawal or reduction of facilities and services • rejected other items claimed for the cost of repairs allegedly carried out by the appellant's partner on the basis of authorisation given by the agent of the respondent because there was no "clear evidence that authorisation had been given" and the appellant had not herself incurred any cost • accepted that the respondent should refund $46.15 for water usage paid by the appellant 1. In the upshot, the Senior Member ordered that the respondent allow the appellant the sum of $2422.65, but deducted from that amount $1657.14 for arrears of rent, leaving a balance in favour of the appellant of $765.51. The appeal 1. The appeal was filed within the time period in cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014. 2. The Notice of Appeal filed by the appellant creates the same difficulties that were caused to the Senior Member because of the way in which the original application was framed. In essence, the Appeal document complained that the Senior Member stated that he did not have enough time to read all of the evidence, she was only given three hours in which to present her case, the Senior Member did not listen to or read all the full evidence, and the Senior Member did not accept the evidence of Mr Wootten about the work that he had performed. The Notice of Appeal asked that we "read through all 72 points raised in our evidence and recalculate a more suitable dollar figure….." 3. Written submissions provided to us by the appellant for the purpose of the appeal emphasised that the Senior Member indicated towards the beginning of the hearing that he had not read through all of the documents and looked at all of the photographs. Those documents and those photographs form part of the appeal papers. They are voluminous and it is difficult to understand precisely what the appellant was complaining about in terms of defective items and the remedies which she sought. However, as the appellant conceded, the Senior Member asked to be taken to the relevant parts of the claim made by the appellant. The appellant complained that, in some way, the Senior Member should have read through all of the papers for himself. This approach shows that the appellant failed to come to grips with the need for her to explain the matters about which she was complaining, and the remedies that she sought. 4. The Notice of Appeal does not specify the manner in which the Senior Member fell into error in his reasons for decision. There are broad allegations that the Senior Member did not have enough time to read all of the evidence, and that there were only had three hours to hear the case. There is a complaint that the Senior Member did not consider "all the 72 points raised about this property". It may be assumed that these 72 points refer to a detailed list provided by the appellant. Many of the items on this list are matters which refer to receipts for payment of rent, underlying documentation concerning the rental agreement, copies of medical certificates, correspondence between the appellant and the respondent's agent and the like. Only a small part of this list of 72 points contains material which is relevant to the resolution of the appellant's claim. 5. The Notice of Appeal seeks that this Tribunal on appeal read through all of the "72 points" and recalculate "a more suitable dollar figure" having regard to all of the evidentiary material. In particular, the appellant seeks a review of claims made by her partner against the agent of the respondent totalling approximately $1300 for work which she said was carried out on the property with the agent's consent. There does not appear to be any evidence to sustain any claim that the partner was authorised by the agent to carry out the work. In any event, this claim must be between the partner and the respondent's agent, and no basis has been established entitling the appellant to claim these monies from the respondent. 6. The appellant must understand that these are appeal proceedings. It is not part of the appeal process to rehear her original case. It is necessary if the appeal is to succeed that the appellant make it clear that in some way the Senior Member made an error of law in the way in which the case was decided or that the Senior Member made an error in considering specific items in a manner that constituted a substantial miscarriage of justice under cl 12 sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) for which leave to appeal should be granted. It is not enough merely to be unhappy with the result, as is the situation in these proceedings (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]). The appellant has not established that the Senior Member fell into error by considering matters which he should not have, by failing to consider other matters which he should have, or that he came to an incorrect conclusion based on the evidence before him. Leave to appeal 1. As we tried to explain to the appellant's partner, Mr Wootten who represented her in the appeal proceedings, in the absence of an error of law we could only consider the appeal if we decided to grant leave to appeal. That is, because we cannot see that any error of law has been raised in the appeal, there is no appeal as of right, and the appellant needs to show us that she may have suffered a substantial miscarriage of justice because the decision of the Senior Member "was not fair and equitable" or "was against the weight of evidence" or significant new evidence is arisen which was not reasonably available at the time of the original hearing. These are matters which are required under section 80 (2) (b) of the Civil and Administrative Tribunal Act. 2. The general principles which apply to decisions of the Appeal Panel of this Tribunal in deciding whether leave to appeal should be granted are summarised in Collins v Urban [2014] NSWCATAP17 ('Collins v Urban'). At [84] the Tribunal said: The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 1. Having regard to the approach of the Appeal Panel in Collins v Urban, which we adopt as being correct, we note that there is no issue of principle that arises in this appeal, there are no questions of public importance or matters of administration or policy which might have general application, and for the reasons which we have given there is no reasonably clear injustice which has been visited upon the appellant. Neither is there any question of any factual error unreasonably arrived at or clearly mistaken. The Senior Member went to extraordinary lengths to seek to find out the details of the appellant's claim. There can be no question of any concern about his fact-finding process. On this basis, and applying these principles, there can be no justification in granting leave to appeal. 2. Furthermore, there is no question of any new evidence being raised in the appeal. In addition, we cannot see how the decision of the Senior Member can be described as being not fair or equitable given the information which he had before him, and his detailed consideration of each of the items which he was able to identify as being part of the appellant's claim before him. Whether and to what extent a reduction in rent is to be ordered because of a finding of withdrawal of services is a matter of impression and involves the exercise of discretion, based upon the particular facts and circumstances. The reductions awarded by the Senior Member appear prima facie to be consistent with the rental of $580 per week fixed at the time of the commencement of the tenancy on 19 November, 2016. In the same way we do not understand that the decision of the Senior Member was against the weight of the evidence, in that it was substantially inconsistent with evidence given in the proceedings. There is no evidence that the Senior Member did not pay proper attention to the claim of the appellant. Conclusion and Order 1. In these circumstances there is no merit in the appeal. It follows that leave to appeal should be declined and the appeal dismissed and we so order. ********** 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: 01 May 2018