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 The respondents' application for compensation and damages was withdrawn with the respondents reserving the right to file a new application after the outgoing inspection scheduled for 8 August 2017. 3.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. Material before the Appeal Panel 1. The parties each filed and served a small bundle of documents in addition to what was attached to their respective Notice of Appeal and Reply to Appeal. 2. On 5 December 2017, the appellant made a request for the sound recording before the Tribunal below, where oral reasons for decision were given. On 11 December 2017, the appellant was informed that a sound recording could not be supplied because of an equipment malfunction. The appellant then made a request for written reasons under s 62 of the NCAT Act. That request was rejected as it had been made outside the prescribed time for making such requests. 3. At the commencement of the hearing before us, we asked the parties to identify the documents, out of the documents they had filed that were before the Tribunal below. With the exception of three documents, the parties agreed that the material filed in this appeal was material that was before the Tribunal below. 4. There was no disagreement between the parties as to the material that was before the Tribunal below and how the matter progressed at that hearing. 5. In this appeal, t\he appellant sought to rely on two further documents, a statutory declaration of her father, Steven John Greenacre, dated 27 October 2017 and an undated and unsigned document from Simply Driveways. We understand that the document from Simply Driveways is a document prepared by the appellant's father prior to the hearing before the Tribunal below. The document the appellant described as a quote/report from her father. 6. The appellant explained that she could not obtain a statutory declaration from her father at the time of the hearing before the Tribunal below because he was away. In our opinion, the evidence of the appellant's father was not new evidence, especially as he had made similar remarks in the quote/report he had made prior to the hearing. Furthermore, in the absence of the appellant being able to explain why a statutory declaration could not have been obtained from him prior to his departure, we refused to grant leave to the appellant to rely on this evidence in this appeal. 7. In regard to the undated and unsigned document (i.e. the quote/report from the appellant's father), the appellant advised that the Tribunal had rejected the tender of this document because it was "biased". In the absence of a recording of the hearing and the oral reasons that were given by the Tribunal, it is not clear whether the Tribunal rejected the tender of this document or whether little weight was given to it because, in the circumstances, the quote/report was not regarded as being sufficiently independent. Either way, the parties agreed that the Tribunal had found the quote/report of the appellant's father as not being independent. In our opinion, in the circumstances, a finding of this kind was open to the Tribunal below. 8. The respondents sought to rely on a Building Report, dated 12 November 2017. As this was a report the respondent's could have obtained prior to the hearing of their claim, leave to rely on this report was also refused. Leave to Appeal- legal principles 1. As we have noted above, cl 12 of Sch 4 of the NCAT Act does not require that the Appeal Panel must be satisfied that the appellant has actually suffered a miscarriage of justice. All that is required is that the appellant "may" have suffered a miscarriage of justice. 2. In Collins v Urban [2014] NSWCATAP 17, at [70] to [79], the Appeal Panel considered the meaning of the term "substantial miscarriage of justice". At [76], the Appeal Panel said the following: " 76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there 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." 1. At [79], the Appeal Panel concluded by saying: "79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]." 1. At [80], the Appeal Panel noted that, even where an appellant from a decision of the Consumer and Commercial Division satisfies the requirements of cl 12, the Appeal Panel must still consider whether or not it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. At [80], the Appeal Panel noted that "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". Might the appellant have suffered a substantial miscarriage of justice? 1. As we have noted, the appellant contended that each of the paragraphs in cl 12 of Sch 4 of the NCAT Act was satisfied. Decision was not fair and equitable 1. The appellant contended that the decision was not fair and equitable because there was no evidence before the Tribunal in a number of important respects, namely – no evidence of the size of the damage to the driveway, the age of the driveway, that the oil damage on the driveway could not be professionally cleaned, that the window was cracked, that the appellant and her partner had intentionally cracked the window or that the glass and film had been installed to a professional standard, the age of the window and film on the window, or the extent of the damage to the window. 2. In our opinion, based on the material before the Tribunal below, the appellant's contentions are misconceived. 3. The respondents noted that in the evidence they submitted to the Tribunal below were 13 photographs of the condition of the driveway before the commencement of the tenancy, 16 photographs of the damage to the driveway and a number of photographs of the window at the time the tenancy commenced and then after the tenancy had ended. In regard to the driveway, the respondents explained that after each tenancy they have the driveway pressure cleaned and while the driveway is not new it always comes up clean. In this case, the appellant's partner parked his work vehicle, which leaked oil, on the driveway. As he did not park the vehicle in the same spot the oil mark was extensive and they had been advised that it could not be pressure cleaned. 4. Before the Tribunal below was an email, sent on 26 May 2017, from the respondents' leasing agent to the appellant and her partner noting that "there is a large oil stain" on the driveway and "could you please keep an eye on this as it will need to be addressed when you vacate". The appellant responded to that email on the same day and said: "it will be rectified when the keys are returned". 5. The appellant did not dispute that she and her partner failed to attend to the oil stain when they left the premises. What was in dispute was whether the oil stain could be removed with chemicals rather than what had been proposed by two quotes that had been obtained by the respondents from two independent and unrelated concreting companies concerning repairs to the driveway. Both quotes were for similar amounts and were before the Tribunal below. Also before the Tribunal below were two quotes for the replacement of the cracked glass. There was a quote from O'Brien Glass and a quote from Magic Glass Pty Ltd. Both quotes indicated that the glass could not be fixed – it needed to be replaced. 6. In our opinion, on the basis of the material before the Tribunal below, it was open to the Tribunal to make the orders it made. That is, we are not satisfied that the decision of the Tribunal was not fair and equitable. Decision of the Tribunal was against the weight of evidence 1. The appellant contended that the Tribunal should have given weight to the fact that there was no evidence of the condition of the driveway prior to the commencement of the tenancy. She also contended that 50% did not reflect the size and extent of the damage. In this regard she asserted the damaged area was 1 square metre of a 45 square metre driveway. 2. We note that before the Tribunal was a condition report that was completed at the commencement of the tenancy. That report did not identify any marks on the driveway. As we have noted, the Tribunal also had before it the photographs provided by the respondents as to the condition of the driveway at the commencement of the tenancy. 3. Also before the Tribunal were the two quotes from independent and unrelated concerting companies. The respondents we note were advised by these companies that the driveway could not be professionally cleaned without causing further damage and need to be replaced. In our opinion, based on the evidence before it, it was open to the Tribunal to accept this evidence as being reflective of the costs to repair the damage caused to the driveway by the appellant and her partner. 4. Accordingly, we are not satisfied that the decision of the Tribunal was against the weight of evidence. Significant new evidence is now available that was not reasonably available at the time of the hearing 1. The significant new evidence relied on by the appellant was the statutory declaration of her father and the quote/report her father had provided to her and which she sought to submit at the hearing below and was found by the Tribunal to be "biased". 2. As we have noted above, we found that neither document (i.e. the statutory declaration and the quote/report of the appellant's father) was new evidence. Nor do we find that either document was significant given the circumstances. 3. Accordingly, we are not satisfied that there is any significant new evidence that was not reasonably available at the time of the hearing. Leave to Appeal 1. As the appellant has failed to establish any of the grounds in cl 12 of Sch 4 of the NCAT Act, it is unnecessary for us to decide whether leave to appeal should be granted. On the contrary, leave to appeal should be refused. Order 1. For the reasons set out above, we order: 1. Application for leave to appeal refused. 2. The appeal is otherwise 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: 19 September 2018