Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chandra v RB & RK Real Estate t/as Starr Partners Fairfield [2018] NSWCATAP 122 Hearing dates: 14 March 2018 Date of orders: 22 May 2018 Decision date: 22 May 2018 Jurisdiction: Appeal Panel Before: A P Coleman SC, Senior Member S Higgins, Senior Member Decision: 1. Leave to appeal refused. 2. Appeal dismissed. Catchwords: APPEAL - Tribunal held applicant had failed to prove loss - Whether Tribunal erred in so concluding - No question of principle. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Mitry v Zoom Relocations Group Pty Ltd [2018] NSWCATAP 88 Pholi v Wearne [2014] NSWCATAP 78 Category: Principal judgment Parties: Ramesh Chandra (Appellant) RB & RK Real Estate Pty Ltd T/AS Starr Partners Fairfield (Respondent) Representation: Counsel: Solicitors: N/A R Chandra (Appellant in person) R Bhandari (Respondent director) File Number(s): AP 18/00048 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: N/A Date of Decision: 11 December 2017 Before: J Smith - Member File Number(s): GEN 17/31151 Reasons for decision Background 1. This is an internal appeal from a decision of the Consumer and Commercial Division of the Tribunal made on 11 December 2017. 2. At that time the Tribunal dismissed the application made by the present appellant for damages for breach of contract and negligence said to be payable by the respondent. 3. The appellant now seeks to have that order set aside and, in lieu thereof, seeks an order that the respondent pay to him the sum of $7,500.00. 4. For the reasons that follow, leave to appeal is required and we would refuse leave. We would dismiss the appeal. The Proceedings below 1. The proceedings below concerned an application by the appellant for damages arising from an alleged breach of contract, or negligence, by the respondent. 2. The respondent is a real estate agent in the Fairfield area of Sydney. It entered into an agency agreement with the appellant to act as his managing agent with respect to four properties owned by him. 3. The appellant alleged that the respondent was in breach of the terms of the agency agreement by failing to inspect the properties three times per year as was specified in the agreement. By reason of the alleged breach of contract, the appellant said he had suffered a $4,000.00 loss. 4. The respondent did not deny it had not carried out inspections of each of the properties as required by the agreement. The Tribunal therefore held, in light of that admission, that the respondent was in breach of the agency agreement. However, the Tribunal held that there was no causal nexus between the breach and the amount of $4,000.00 claimed by the appellant for breach of contract. It noted that the appellant had conceded that that sum was arbitrary and was settled on only because it was a bit more than 50% of the total management fees paid by the applicant over a two and a half year period. 5. The Tribunal held that there was therefore no evidence of any loss suffered by the appellant by reason of the breach of contract and therefore made no award of compensation on that issue. 6. The appellant also alleged that the respondent was negligent in the performance of its duties under the agreement in that it did not alert him to damage being caused by a tenant to one of the properties he owned and failed to take steps to terminate that tenancy at an earlier time. The appellant alleged that this negligence caused him loss of $3,394.00. 7. The Tribunal held that the sum of $3,394.00 was not referenced to any specific loss, rather, the appellant's general complaint was that he had, in separate proceedings, been awarded $4,000.00 against the tenant but had been unable to enforce that order against the tenant, whose whereabouts were unknown. 8. The Tribunal held that it was not possible, on the material placed before it by the appellant, to identify what was damage to the common property, how much, if any, was damage caused by the tenant to the appellant's property, how much had been recovered by the appellant from the Rental Bond Board and how much had already been the subject of orders against the tenant. The Tribunal was not satisfied on the evidence before it that the respondent was negligent in failing to terminate the tenancy earlier than it did and, even if it was negligent, that the evidence did not support a finding that the appellant had suffered a loss of $3,394.00. 9. There were two additional, but more minor, claims made by the appellant below dealing with unauthorised payments ($130) and errors in rental statements ($57). The Tribunal found that the payment of $130 had been authorised and, even if it had not, the appellant had not demonstrated he had suffered any loss. It also found that the appellant failed to demonstrate from the rental statements, that there had been an error of $57. 10. Accordingly, as it held that the appellant had not discharged his burden of proof in proving loss for any of the amounts claimed, the Tribunal dismissed his application. The Notice of Appeal – Leave is Required 1. By Notice of Appeal filed 5 January 2018 the appellant challenges the orders made by the Tribunal. The Notice of Appeal is somewhat prolix and the grounds of appeal are not as clear as they could be. This is not unusual for litigants in person and we do not say this as a criticism of the appellant. 2. It is clear, however, both from what is written in the Notice of Appeal and also from listening to the appellant at the hearing of the appeal, that he challenges the Tribunal's findings that he had not discharged the onus to prove that the loss he was claiming actually flowed from the breach of the management agreement and the alleged negligence of the respondent in not taking steps to terminate the tenancy at the premises where damage occurred. The appellant has placed before us all of the evidence that was before the Tribunal. He made submissions that this evidence contained the necessary proof such that the Tribunal ought to have found in his favour. Indeed, on several occasions during the hearing of the appeal, the appellant asked (we took it not rhetorically) what additional evidence could he have put before the Tribunal to prove that the losses he alleged had flowed from the impugned conduct of the respondent. 3. The authorities indicate that we are to do the best we can to distil and understand from what the appellant has written in his Notice of Appeal, and what he explained to us at the hearing, to ascertain whether or not the appeal raises a question of law (see John and Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69). It seems to us that no question of law arises. Rather, what the appellant was submitting was that the decision of the Tribunal was against the weight of the evidence before it. As such, although the appellant claimed in his Notice of Appeal that he was not asking for leave to appeal, as no question of law arises on his grounds of appeal, leave to appeal is required: see Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b) and cl 12, Sch 4 as this is an appeal from a decision of the Consumer and Commercial Division. 4. The principles on which leave to appeal will be granted under cl 12 of Sch 4 are well known. On this issue, and in appeals where the question is whether the decision was against the weight of the evidence, the Appeal Panel, in Mitry v Zoom Relocations Group Pty Ltd [2018] NSWCATAP 88 at [16]-[18] summarised the position this way: [16] In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: ... [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. [17] In respect of whether a decision is against the weight of evidence, the test to be applied is whether the evidence so strongly preponderates in favour of the appellant that it leads to the conclusion the Senior Member either wilfully disregarded the evidence or failed to appreciate and understand the evidence: Anderson v Armitage [2014] NSWCATAP 72 at [54]-58] and the principles discussed therein. [18] In Collins v Urban, the Appeal Panel stated at [84] that 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." 1. We would also add reference to Pholi v Wearne [2014] NSWCATAP 78 where at [31] the Appeal Panel said "Even if the appellant establishes that she may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act….". The Appellant's Arguments Breach of Contract 1. It should be noted at the outset that there was no appeal by the respondent to the finding that it was in breach of the management agreement. Whilst there was some attempt by the representatives of the respondent at the hearing of the appeal to assert that the appropriate inspections had taken place, the absence of appeal from that finding means that we proceed on the basis that the respondent was in breach of contract. The issue therefore on appeal was whether the Tribunal erred in concluding that the appellant had not discharged his onus to prove that he had suffered a loss as a result of that breach and, if so, the quantum of that loss. 2. The appellant submitted that because the respondent did not inspect the relevant property three times per year in accordance with the management agreement, and the evidence established that the property was damaged, he had proven that the breach of contract had caused the damage. 3. He accepted that he had made the concession referred to by the Tribunal, namely that the sum claimed of $4,000 was "…arbitrary and was settled on only because it was a bit more than 50% of the total management fees paid by [him] over a two and a half year period". He said to us that he could not go precisely to the dollar amount caused by the breach of contract but used his "gut feeling" to arrive at that amount. 4. It was pointed out to the appellant that just because the respondent had breached the contract by failing to inspect the property in accordance with the management agreement, and that there may have been some damage to the property, it still must be established by him, on the balance of probabilities, that the failure to inspect was a cause of the damage to the property. That is, he needed to link the failure to inspect the property to the damage caused. He could not succeed just by proving that the respondent had failed to inspect the property in accordance with the agreement and that the property had been damaged. 5. The appellant took us to some of the evidence that was before the Tribunal which, he said, established this causal link. He referred to emails and made submissions to the effect that he had first become aware of the damage at the property in 2016. In March/April 2016 he had been receiving emails from the strata manager in respect to damage apparently being caused by the tenant to the common property. 6. His first contact with the respondent about the damage to the property was in November 2016 when the respondent told him about damage to his property. He told the agent to get that damage fixed. He said that by about Christmas time 2016, he knew again of damage to the property. When he found out about this he says he asked the respondent to terminate the tenancy. He says this wasn't done quickly enough. 7. The appellant submitted that if the Tribunal had properly considered the evidence he put before it, it would (and should) have inferred that if the respondent had inspected the property every 4 months as it was obliged to do, the damage to the property would not have occurred. 8. We reject the appellant's submissions on this issue. He has not demonstrated a causal link, on the balance of probabilities, between the failure of the respondent to inspect the relevant property in accordance with the terms of the agreement and any damage to the property. He cannot point to when the damage happened or that had the respondent inspected the property the damage would not have occurred in any event. 9. The appellant has not demonstrated any error on the Tribunal's part. The findings were clearly open to the Tribunal on the evidence before it. Hence, we would refuse leave on this issue. Negligence 1. The appellant's arguments on this issue were similar to those he made in respect to the breach of contract issue. He submitted that the evidence proved that for 14 months there had been damage being caused to his property by the tenant. He submitted that from at least November 2016 he had been asking the respondent to take steps to terminate the tenancy. He says the Tribunal erred in concluding that there was no link between the negligent failure of the respondent to perform its services under the agreement and the damage to his property. 2. Once again it was explained to the appellant that simply because there may have been an omission by the respondent to take steps to terminate the residential tenancy lease for the property (even if such omission amounted to negligence) and the property was damaged, this alone does not prove the causal link necessary for him to recover from the respondent the loss suffered as a result of the damage caused by the tenant. 3. As with the allegation concerning the breach of contract, the appellant has not demonstrated that the Tribunal erred in its conclusion that he had failed to prove, on the balance of probabilities, that any negligence by the respondent failing to inspect the property led to the loss he claimed. He had claimed $4,000.00 for this loss but, again, he could not link that amount to any specific damage to his property said to have been caused by the respondent's negligence. 4. Again, the findings of the Tribunal were clearly open to it on the evidence before it. Hence, we would also refuse leave on this issue. Other matters 1. As observed above, the appellant also claimed that the Tribunal erred with respect to its conclusions on the two remaining minor matters, namely the unauthorised payment of $130 to the plumber and errors in rental statements of $57. 2. Whilst the appellant did not concede that he no longer pressed these matters, he took us to no evidence that would demonstrate error by the Tribunal. We would refuse leave to appeal on these issues. Conclusion 1. In the circumstances, the appellant has not demonstrated that the Tribunal's conclusions were against the weight of evidence or that he may have otherwise suffered a substantial miscarriage of justice. Accordingly, the appropriate order is to refuse to grant the appellant leave to appeal and otherwise dismiss the appeal. Orders 1. Leave to appeal refused. 2. 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: 22 May 2018