Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Yang v Webster [2018] NSWCATAP 293 Hearing dates: 11 October 2018 Date of orders: 07 December 2018 Decision date: 07 December 2018 Jurisdiction: Appeal Panel Before: G K Burton SC, Senior Member D A C Robertson, Senior Member Decision: (1) Application for leave to appeal refused. (2) Appeal dismissed. Catchwords: LEASES AND TENANCIES – Residential Tenancies – liability of landlord and agent for loss of property consequent on open inspection – Residential Tenancies Act s 61(2) – onus of proof Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 House v The King (1936) 55 CLR 499 Texts Cited: Nil Category: Principal judgment Parties: Mi Roo Yang and Eddie Park (Appellants) Isabelle Webster (Respondent) Representation: E Park (Self Represented) (Appellants) B Webster (Respondent) File Number(s): AP18/31288 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: N/A Date of Decision: 29 June 2018 Before: J Ringrose, General Member File Number(s): RT 17/47482 REASONS FOR DECISION 1. The Appellants, Eddie Park and Mi Roo Yang, are respectively the managing agent and landlord of residential premises in Redfern. 2. The respondent, Isabelle Webster, was a tenant of the property along with two other tenants. 3. In July 2017 the tenants gave notice of intention to vacate the premises and Mr Park gave the tenants notice of his intention to hold an open inspection for the purpose of re-letting the property. 4. The inspection took place on 5 August 2017. By that date the tenants other than Ms Webster had, "for all practical purposes", moved out. Ms Webster had packed up her possessions in readiness to vacate the premises but those possessions remained on the premises when Ms Webster left at about midday on Friday, 4 August 2017. 5. Mr Park conducted the open inspection between 9.50 and 10.10 am on 5 August 2017. Two prospective tenants attended the open inspection. 6. Ms Webster returned to the property at about 2.30 pm on 5 August 2017. She noticed that some of her possessions, notably a pink suitcase which she had left on the premises, were missing. She also observed that the rear door to the premises was ajar with the deadbolt activated. There was no sign of forced entry. 7. Ms Webster reported the theft of her possessions to the Police at 2.52 pm that day. 8. Ms Webster brought a claim in the Tribunal against Mr Park and Ms Yang seeking compensation in the amount of $10,865 which she asserted was the current value of the items she had lost. 9. Ms Webster brought her claim pursuant to the provisions of s 61(2) of the Residential Tenancies Act 2010 (NSW) which provides: (2) The Tribunal may, on application by a tenant, order the landlord or the landlord's agent to pay compensation to the tenant for damage to or loss of the tenant's goods caused by any person in the exercise of a power of the landlord or landlord's agent to enter residential premises under this Act or the residential tenancy agreement. 1. The Member found that Ms Webster's possessions had been stolen after the inspection and that the theft occurred by reason of the inspection. The Member found that Mr Park had found the rear door ajar when he arrived for the inspection and that Mr Park left it ajar when he left after the inspection. Mr Park had given evidence to that effect. 2. The Member found that the robbery had occurred after the inspection. The basis upon which the Member so found was set out in paragraphs [44] and [47] of the Member's decision: 44 The Tribunal is further satisfied on the probabilities that the robbery occurred after the open for inspection period. The first reason for accepting this position is the fact that Mr Park could not confirm that the room had been moved around at the time of his inspection and he was not able to confirm that property had been moved about as noted in the police report. Further, if the robbery had occurred during the previous night then one would have expected that the use of credit cards which were stolen would have also been apparent late on the night of 4 August or early on the morning of 5 August. 47 But for the inspection which, it is noted was outside the period authorised for inspections under the Act on a property to be vacated, the person or persons the Tribunal finds to be most likely responsible for the robbery would not have been aware of the goods being conveniently packed in the property and of the access being possible through a door which was ajar and which apparently was not locked at the time when the parties carrying out the inspection were leaving. 1. The Member, on a basis which was not made clear in the decision or evidence, apportioned responsibility for the robbery 50% to Ms Webster and 50% to Mr Park and Ms Yang and awarded Ms Webster $5,432.50 being half the value of the goods which she had lost, in which respect the Member accepted Ms Webster's assessment of value. The Notice of Appeal 1. By their Notice of Appeal, dated 13 July 2018, the appellants seek to appeal on numerous grounds which can be conveniently summarised as: 1. That the appellants were denied procedural fairness: 1. Because Ms Webster was permitted to be represented by her father, who was a solicitor; 2. Because the Member did not permit Mr Yang separate representation on the second day of the hearing; and 3. Because Mr Park was refused permission to ask further questions of Ms Webster. 1. That, in finding that the robbery occurred after the inspection, the Member failed to correctly apply the onus of proof. 2. That the finding that the robbery occurred after the inspection was against the weight of evidence. 3. That Ms Webster had not produced sufficient evidence to establish that she had owned the items stolen and their value. 1. The appellants' rights to appeal against the Member's decision are limited by s 80(2)(b) of the NCAT Act which provides that an appeal against a decision other than an interlocutory decision of the Tribunal may be made: "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds." 1. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act, leave may only be granted under s 80(2)(b): "if the Appeal Panel 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)." 1. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at [71] and [79] as follows: "[71] [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred… [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 . . . 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." 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are set out in the decision of the Appeal Panel in Collins v Urban at [84]: "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." 1. Grounds 1 and 2 would, if established, constitute errors of law in respect of which the appellants would not require leave to appeal. 2. Ground 3 does not raise a question of law and the appellants require the leave of the Appeal Panel to rely upon it. 3. Ground 4 may raise a question of law, we will consider that issue further when we deal with Ground 4. Ground 1 - Procedural fairness (a) Allowing Mr Webster to represent the applicant 1. Mr Park, who represented both the appellants at the appeal, did not suggest that the appellants had not been aware in advance of the hearing of Mr Webster's application to represent Ms Webster. The appellants did not suggest that they had been denied the opportunity to have their own representation. It cannot be said the appellants were denied an opportunity to be heard. 2. The decision to permit Ms Webster to be represented by her father was a discretionary decision which is subject to review on appeal only the bases set out in House v The King (1936) 55 CLR 499 at 504-505: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 1. The appellant has not demonstrated that the decision to permit representation was founded upon a wrong principle, irrelevant considerations, a failure to take into account relevant considerations or an erroneous view of the facts, or was unreasonable or plainly unjust. We do not find that there was error, in the sense outlined in House v The King, in the Member's decision to permit Mr Webster to represent his daughter. Nor do we find that that decision involved a denial of procedural fairness. (b) The refusal of permission for Mr Segal to represent Mr Yang on the second day of hearing 1. The hearing before the Member did not conclude on the allocated day and continued into a second day. At the commencement of the second day's hearing Mr Segal appeared and sought to be heard on behalf of Ms Yang. The Member declined to permit Mr Segal to speak on behalf of Ms Yang. 2. As a separate party Ms Yang would have been entitled to represent herself, however, by virtue of s 45 of the Civil and Administrative Tribunal Act, Mr Segal required the leave of the Tribunal to represent Ms Yang. Ordinarily in residential tenancy matters, a landlord's agent would be given leave to represent the landlord and, in circumstances where the agent was itself a party to the proceeding, the landlord would be permitted to be represented separately from the agent. However the Tribunal was entitled, in the interests of the efficient conduct of the hearing, to require Ms Yang to be represented by one individual. It is apparent that Mr Park maintained at the commencement of the second day's hearing that he was continuing to appear for the landlord. In those circumstances the Member had no obligation to permit Mr Segal also to speak on behalf of Ms Yang. 3. We find there was no denial of procedural fairness to Ms Yang through the Member refusing to permit Mr Segal to speak on her behalf. (c) Refusal of permission for Mr Park to ask further questions 1. It appears from the typed extracts of the recording of the hearing included in the appeal papers provided by the parties that in the course of the hearing, after Mr Park had asked questions of Ms Webster, Mr Park stated that he had completed his questioning of Ms Webster. 2. The Member then asked Ms Webster some questions. After those questions Mr Park sought to ask further questions of Ms Webster and was not permitted to do so. Mr Park does not suggest that the further questions arose out of questions asked by the Member. 3. The Member was entitled to control proceedings in the Tribunal. Sections 36 and 38 of the Civil and Administrative Tribunal Act set out the guiding principle to be applied to the practice and procedure of the Tribunal and provide for the procedure of the Tribunal generally. 4. Section 38(1) specifically provides: "The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision". 1. Section 38(4) provides: "The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." 1. Section 38(6) provides: (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.​ 1. The Member was entitled to hold Mr Park to his statement that he had concluded his questioning. We find no error of principle and no denial of procedural fairness in the conduct of the Member in not permitting Mr Park to ask further questions after he had stated that he had concluded his questioning. Ground 2 – That the Member failed correctly to apply the onus of proof 1. There was no dispute that ultimately the question of liability hinged upon whether the robbery took place before or after the open inspection. It was also, on the evidence, not in dispute that Mr Park left the back door unlocked and unlatched after the open inspection. Mr Park did not dispute that, if the robbery occurred after the inspection, both the agent and the landlord were liable pursuant to s 61(2) of the Residential Tenancies Act for the loss sustained by Ms Webster. 2. In his submissions Mr Park submitted that the Member ignored "the presumption of innocence". To the extent that this submission suggests more than that the applicant, Ms Webster, bore the onus of proof, it appears to confuse the criminal onus of proof beyond reasonable doubt with the civil onus applicable in the Tribunal, that is, on the balance of probabilities. 3. In our view the Member clearly understood and applied the principle that the onus lay on the applicant, Ms Webster, to prove her case on the balance of probabilities. There was no error of law in the way the Member applied the onus of proof. Ground 3 – That the finding that the robbery occurred after the inspection was against the weight of evidence 1. The Member determined that Ms Webster had satisfied her onus of proof. We have set out at [11] above the Member's reasons for so finding. Mr Park submits that the evidence relied upon by the Member had no weight. 2. In respect of the use of the credit card Mr Park submitted that, whether the robbery occurred on the Friday evening or during the day on Saturday, the fact that the credit card was not used until the Sunday evening was not logically probative of the time of the robbery. We consider there is substance in that submission. 3. We also agree that the fact that Mr Park did not recall whether he saw suitcases or whether anything had been disturbed is not affirmative evidence that the robbery took place after the inspection. It is also equivocal. 4. However, we accept that the fact that a number of people were admitted to the premises during the inspection and were able to observe the state of the property and Ms Webster's possessions was a fact that made it more likely that the robbery took place after the inspection. 5. We are not persuaded that there was any evidence that those attending the inspection would have been made aware that the rear door would be left open as it was not suggested in the evidence that any of them were present when Mr Park left the premises. However they were able to observe the deserted stated of the premises and, presumably, Ms Webster's possessions. 6. There is thus some evidence that the robbery was more likely to have taken place after the inspection than before. We cannot in those circumstances say that the Member's decision was against the weight of the evidence, as the only other "evidence" was the fact that the door was unlatched before the inspection and that the premises had been empty overnight. 7. Mr Park pointed to a photograph of the exterior of the premises which he submitted showed that anyone entering the premises during daylight was likely to be observed. We do not accept that the photograph does establish that fact. In any event, the Member made the decision on the balance of probabilities on the basis of some evidence and that decision cannot be said to be against the weight of evidence. It is not relevant that a different trier of fact might have reached a different conclusion. The Member's decision was not irrational. 8. Mr Webster submitted that the Member erred in finding that the door was unlatched before the inspection and that therefore the evidence favouring the proposition that the robbery occurred after the inspection was of greater weight than the Member had found. The Member's finding in that regard was also a finding of fact made on an assessment of the evidence including an observation of Mr Park and Ms Webster during their oral evidence. We are not persuaded that that finding was erroneous or against the weight of evidence. 9. In any event there is no reason to revisit findings of fact adverse to Ms Webster. We understand that Mr Webster's submission may have been directed to the Member's conclusion that Ms Webster was 50% responsible for the loss. However, Ms Webster did not file a Notice of Appeal and accordingly we do not need to consider whether the Member's decision to apportion responsibility and reduce the damages awarded to Ms Webster was correct. 10. It is necessary to note that Mr Park submitted that the Member's finding left all real estate agents exposed to liability every time they conducted an open inspection. We do not accept that this consequence follows. Mr Park left the rear door unlocked. He submitted that it was not appropriate to lock doors found unlocked, but it was not clear from his submissions why that should be the case. 11. In any event, the evidence disclosed that Mr Park had Ms Webster's telephone details and could have contacted her to warn her that the rear door was unlocked or to get her agreement to locking the door. Ground 4 - The Quantification of Loss 1. Mr Park submitted that Ms Webster had provided insufficient evidence to establish that she had owned the items which she claimed had been stolen or their value. Making a finding without evidence would be an error of law but we did not understand Mr Park to submit that there was no evidence, only that the evidence submitted was insufficient. Accordingly the appellants require leave to rely upon this ground of appeal. 2. The evidence tendered by Ms Webster consisted of a signed statement of evidence, which she verified at the hearing on oath or affirmation, together with quotes and screenshots from internet sites recording the replacement cost for various items, and receipts for the purchase of some replacement items which Ms Webster had actually replaced. 3. Mr Park submitted that Ms Webster had claimed to have lost a Nikon camera which was not referred to in the police report of the theft and thus must not have been included among the items Ms Webster reported to police as having been stolen. Mr Park submitted that this demonstrated that Ms Webster's evidence was unreliable. However, it does not appear that Mr Park put any questions concerning this issue, beyond the following exchange: Mr Park: How do we know all of these items were in the suitcase? If it is based on your memory then. Because the list of items are different from the police report. Member: Please answer the first question first. How do we know all of those items were in suitcase? Can you answer that please? Ms Webster: I don't know. 1. The appellants' submissions suggest that this was one issue upon which Mr Park may have asked further questions, if permitted to reopen his cross-examination. However the Member did not permit Mr Park to ask further questions and we have not found that the Member erred in that respect. 2. The Member did not address the discrepancy between Ms Webster's list and the police report. We do not consider that it was necessary that he do so. As far as the appeal papers disclose, the issue was not squarely raised either in cross-examination of Ms Webster or in submissions. Some discrepancy between a list produced shortly after the discovery of a robbery and a list completed with the benefit of time to reflect is not surprising. 3. Mr Park objected that Ms Webster had not produced the original receipts for most of the items she claimed had been stolen. Mr Park acknowledged that he had not sought by way of informal request or summons issued pursuant to s 48(3)(b) of the Civil and Administrative Tribunal Act to have Ms Webster produce the relevant receipts. Had he done so and no receipts been produced that might have added force to his submission that Ms Webster's evidence should not be accepted. 4. We do not accept that the Member's finding, that the items Ms Webster claimed were stolen had been stolen and had the values Ms Webster attributed to them, was not fair and equitable or was against the weight of evidence. Ms Webster's evidence was tested by cross examination. The Member accepted that evidence. 5. There is no rule that, in order to establish ownership of items that have been stolen, it is necessary to produce receipts. Receipts are a convenient and persuasive method of proof but the ultimate question is whether the facts of ownership, loss and value have been proved on the balance of probabilities. The Member accepted that Ms Webster's evidence, which was not inherently unlikely, was credible. He was entitled to do so and we are not persuaded there was any error in the way he did so or that his conclusion was against the weight of evidence. Orders 1. Accordingly our orders will be: 1. Application for leave to appeal refused. 2. Appeal 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: 07 December 2018