Greenacre v Mayer [2018] NSWCATAP 222

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Greenacre v Mayer [2018] NSWCATAP 222 Hearing dates: 3 May 2018 Date of orders: 19 September 2018 Decision date: 19 September 2018 Jurisdiction: Appeal Panel Before: S Higgins, Senior Member G Burton SC, FCIArb, Senior Member Decision: (1) Application for leave to appeal refused. (2) The appeal is otherwise dismissed. Catchwords: Residential tenancy – compensation for damage Legislation Cited: Residential Tenancies Act 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Julia Greenacre (Appellant) David Mayer and Yvonne Sanatriusova (Respondents) Representation: Appellant in person Respondents in person File Number(s): AP17/46865; AP18/07072 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Commercial and Consumer Division Date of Decision: 19 October 2017 Before: D Ziegler, General Member File Number(s): RT17/32688, RT17/35610, RT17/36358

Reasons for decision 1. The appellant and her partner were tenants of residential premises, at Lilli Pilli, in NSW. The premises are owned by the respondents, who entered into a 12 month written tenancy agreement with the appellant and her partner with the term commencing on 26 August 2016. On 25 July 2017, the respondents commenced proceedings against the appellant and her partner seeking orders, under the Residential Tenancies Act 2010 (NSW) (RT Act), for the payment of money, compensation and termination of the tenancy agreement (Tribunal file no RT 17/32688). 2. On 7 August 2017, the Tribunal, in the Consumer and Commercial Division, made consent orders terminating the tenancy agreement and restored possession of the premises to the respondents with a daily occupation fee until that occurred. The respondents' application for compensation and damages was withdrawn with the respondents reserving the right to file a new application after the outgoing inspection scheduled for 8 August 2017. 3. Subsequently, the respondents again commenced proceedings against the appellant and her partner seeking compensation for property damage allegedly caused by the appellant and her partner and an order that the rental bond to be paid to them (Tribunal file no RT 17/35610). The appellant and her partner also commenced proceedings against the respondents seeking an order that the rental bond be paid to them and not the respondents (Tribunal file no RT 17/36358). 4. On 19 October 2017, following a hearing, the Tribunal, in the Consumer and Commercial Division, made the following orders: "1. The tenant, JULIA GREENACRE and MATHEW SMITH, …, is to pay the landlord, DAVID MAYER and YVONNE SANTARIOUSOVA, …, the sum of $5,225.00 immediately. Reasons: - Repairs to driveway $4,235.00 - Repairs to cracked window $990.00 2. The Rental Bond Services is directed to pay the landlord, DAVID MAYER and YVONNE SANTARIUSOVA, …, the whole bond plus interest of Rental Bond number …. Any amount received is to be credited against the money order. 3. The balance of the landlord's claim, being a claim for: - a daily occupation for the period 9-10 August 2017; - compensation for damage to blinds; and - compensation for damage to the garage walls, is dismissed 4. The tenant's claim for the bond is dismissed. 5. Reasons for decision: Detailed reasons for decision delivered orally at the hearing." 1. On 2 November 2017, the appellant lodged an appeal from the abovementioned decision of the Tribunal numbered AP17/46765. This was dismissed for non-appearance by the appellant at the hearing on 8 February 2018. The current appeal arises from a successful application for reinstatement under s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW). One of the current members hearing the reinstated appeal was a member of the Appeal Panel who dismissed the appeal on 8 February 2018. That member did not hear or make a final decision on the merits on that occasion and was not involved in hearing the reinstatement application. 2. In her Notice of Appeal, the appellant said she was challenging the following order made by the Tribunal: "- Repairs to driveway totalling a 50% compensation of $4235 to be paid. Member has ordered a 50% compensation of a new driveway for several oil stains when only one was in dispute. - Repairs to cracked glass $990.00 – Owner has confirmed in hearing that the house moves." 1. The appellant said that the order sought on appeal was an order that the bond amount of $2,500.00 be returned to her and her partner. The appellant went on to say: "We are happy to pay for the cleaning of one oil stain with a 1 square metre area which has been quoted $400.00." 2. The decision of the Tribunal is an internally appealable decision and an appeal can be made from that decision as of right on a question of law, or with the leave of the Appeal Panel on any other grounds: see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(1) and (2)(b). 3. In this appeal, the appellant has not raised a question of law but seeks leave to appeal the decision on other grounds. In their Reply to Appeal, the respondents opposed granting the appellant leave to appeal. 4. As the decision is a decision of the Tribunal in the Consumer and Commercial Division, the Appeal Panel may only grant leave to appeal where it is satisfied the appellant may have suffered a substantial miscarriage of justice because: "(a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). (see NCAT Act, Sch 4, cl 12) 1. In her Notice of Appeal, the appellant addressed each of the abovementioned matters. For the reasons set out below, we have decided, on the material before us, that the appellant has failed to establish that the Tribunal below erred in its fact finding and that she and her partner may have suffered a substantial miscarriage of justice. Hence we have refused leave to appeal.