Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bardic v Okere [2019] NSWCATAP 9 Hearing dates: 28 November 2018 Date of orders: 07 January 2019 Decision date: 07 January 2019 Jurisdiction: Appeal Panel Before: G K Burton SC, Senior Member M Anderson, Senior Member Decision: (1) The application for leave to appeal is dismissed. (2) The application filed 3 September 2018 is dismissed. (3) No order as to costs. Catchwords: Residential tenancy – disposal of tenant's goods by landlord - no error of law - no basis for leave. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 House v The King (1936) 55 CLR 499 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: Gazman Bardic (Appellant) Promise Chimezie Okere (Respondent) Representation: Advocates: S Stanisavljevic (Agent) (Appellant) P Okere (Self Represented) (Respondent) File Number(s): AP18/38284 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 16 August 2018 amended 17 September 2018 Before: C Marzilli, General Member File Number(s): RT 18/27038 & RT 18/32447 REASONS FOR DECISION Introduction 1. The parties entered into a standard form residential tenancy agreement on 4 February 2016 and ending on 5 August 2016 in relation to premises owned by the appellant. The tenant remained in the premises pursuant to the lease on a periodic tenancy after the term of the lease expired and in accordance with the lease. The tenant left the premises and returned the keys to the premises on 18 May 2018. The rent was last paid in advance on 16 May 2018. Some of the tenant's goods remained in the unlocked garage connected to the premises after 18 May 2018. 2. The tenant sought an order in the Tribunal below that the landlord pay for his goods left at the premises. The landlord claimed that some repairs, replacements and cleaning were required and the reasonable cost of the same was claimed. The Tribunal Member allowed both claims and as a result the nett amount to be awarded to the tenant was recorded in the orders made. 3. The landlord Mr Bardic, through his agent Mr Stanisavljevic, seeks leave to appeal from the decision originally given on 16 August 2018, which was then corrected on 17 September 2018 to include the correct sum of money to be paid by the landlord to the tenant, and to add a phrase obviously missing from the reasons for decision. The amendments were made pursuant to section 63 of the Civil and Administrative Tribunal Act 2013 (NSW). The amendments corrected obvious typographical errors and an error arising from an accidental slip or omission. 4. The grant of leave to appeal, and if leave is granted, the appeal, is opposed by the tenant Mr Promise Chimezie Okere. 5. The appeal and an application for a stay of the orders were filed on 3 September 2018. The order challenged on appeal required the payment of $1,375 by the landlord to the tenant immediately. The amended reasons and orders dated 17 September 2018 amended that amount to the correct arithmetical amount of $1,365. 6. The stay application was ultimately refused by Deputy President S Westgarth on 25 September 2018. Prior to the refusal by the Deputy President a stay was granted on 5 September 2018 by Principal Member A Britton. The original stay was granted on that date in order to allow further evidence to be filed in relation to the stay application and the application for stay was ultimately then listed on 25 September 2018. 7. For the reasons which are set out below we consider that there should be no grant of leave to appeal, that the application should be dismissed and the orders as amended should stand. Grounds of Appeal and Leave to Appeal 1. The parties were not legally represented. As a result of listening to the argument and reading the papers provided for the purpose of the appeal hearing, the 5 identified grounds of appeal in summary form shall be referred to by the following categories. This approach is consistent with that taken in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. Ground 1 1. The only order challenged is Order 1. That is the order which requires the landlord to pay to the tenant the amount of $1,375 immediately. As referred to previously, that amount was amended to the correct amount of $1,365. 2. The ground of appeal which refers to the arithmetical error in Order 1 appears to have been superseded now by the amended order and reasons. Ground 2 1. The landlord claims that the Tribunal Member erred by treating the tenant's goods left at the premises after he vacated as goods which required a disposal notice. The landlord claims that the goods which were left by the tenant were "perishable goods" and therefore section 128 of the Residential Tenancies Act 2010 (NSW) applied. Section 129 of that Act requires the landlord to store the non-perishable goods in a safe place pending disposal or collection by the tenant after the landlord removes them from the premises. Ground 3 1. The landlord claims that the Tribunal Member erred in accepting the tenant's evidence of value of the goods which remained at the residential premises. This is a ground concerning whether the evidence was capable of supporting the findings and whether irrelevant evidence was taken into account. Ground 4 1. Related to the claim about the value of the goods, the landlord claims that the Tribunal Member had insufficient evidence to come to the conclusion of value of the goods that the Member recorded in the reasons in the Tribunal below. This is a ground referring to the sufficiency or weight of the evidence. Ground 5 1. The landlord also claimed that the landlord's agent and the landlord were not treated appropriately by the Tribunal Member because the member "never made eye contact with [them]" and asked questions which were (asserted to be) irrelevant and the answers to which were then included in the reasons. One example is provided in relation to a question as to the age of the premises and the last time the premises were painted in paragraph [20] of the Reasons. This ground is interpreted to mean that it is asserted there was a denial of procedural fairness and there was not a fair hearing. Applicable legal principles 1. This is an internal appeal from a final decision of the Consumer and Commercial Division of the Tribunal. 2. Section 80(2) of the Civil and Administrative Tribunal Act provides: … (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance--with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance--as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. … 1. The provisions of Schedule 4 Clause 12 of the Civil and Administrative Tribunal Act are as follows: 12 LIMITATIONS ON INTERNAL APPEALS AGAINST DIVISION DECISIONS (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only 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. The expression "Division decision" in clause12(1) is defined in clause 1 of Schedule 4 and includes a decision of the Consumer and Commercial Division when it is exercising functions under the Residential Tenancies Act by virtue of the definitions of "the Division" and "Division function" in clause 1 and the provisions of clause 3(1) of Schedule 4. The Tribunal Member was exercising those functions and therefore the decision is one which falls within the requirement for leave unless the appeal is in relation to a question of law. 2. The circumstances justifying the grant of leave have to be established by the appellant. In this regard the relevant provision is Schedule 4 Clause 12 of the Civil and Administrative Tribunal Act, referred to in the previous paragraphs, and the decision of Collins v Urban [2014] NSWCATAP 17 which sets out the principles applicable to the grant of leave. 3. The form commencing this appeal asks the appellant to specify whether it is asking for leave to appeal. The form in this matter has the box checked for "Yes". The appellant landlord is therefore seeking leave to appeal. This is opposed by the respondent. It is possible, however, that Ground 2 raises a question of law which would enable an appeal as of right even though the landlord now seeks leave to appeal: see section 80(2)(b) of the Civil and Administrative Tribunal Act. An absence of procedural fairness can also constitute an error of law. We focus first on Ground 2. Is there a question of law in relation to the need for a disposal notice (Ground 2)? 1. It is possible that there is a question of law which arises from the interpretation of section 126 of the Residential Tenancies Act and the meaning of "perishable goods" as set out in Ground 2 in paragraph [11] of these reasons. However, the evidence which was before the Tribunal Member concerning the goods which were left at the premises and which are referred to at paragraph [5] of the Reasons for Decision do not clearly fall within the definition or concept of "perishable goods". The ordinary dictionary definition of "perishable" refers specifically to something which is likely to decay or go bad quickly, such as foodstuffs. There were no such items listed in paragraph [5] of the Reasons for Decision. The items which were listed were a double stroller, a water dispenser, four Cisco Routers, a cooler, a barbecue maker (sic), bread maker, two baby car seats, and a PC computer. None of these items could be properly described as perishable as a matter of fact. 2. It is recorded in the Reasons for Decision at [8] that the tenant found some of his goods (as identified in paragraph [5] of the Reasons) on the street in front of the premises in a damaged and unusable state. The finding of the Tribunal Member in relation to the tenant's goods left in the garage was that the landlord "removed them to the street verge" and "removed what he perceived to be rubbish" at Reasons for Decision paragraphs [6.e] and [21.a]. It is also inferred from the evidence and submissions that the landlord placed those items in that position. 3. The Tribunal Member also observed that the landlord did not seek the direction of the Tribunal as to the disposal or removal of the goods which action was open to the landlord in the event of some doubt as to a course of action pursuant to section 133 of the Residential Tenancies Act at Reasons for Decision paragraph [12]. 4. It is our determination that the Tribunal Member was correct to treat the goods in question as ones which required a disposal notice pursuant to section 127 of the Residential Tenancies Act and that the landlord was required to store them in a safe place pending disposal or collection if they were removed from the premises. This is because the goods were not perishable. It was therefore open for the tenant to apply for compensation for the loss of those goods, as occurred in this matter. Therefore Ground 2 does not properly raise a question of law and there is no basis for an appeal as of right on a question of law. 5. Accordingly, and leaving aside for the present the alleged absence of procedural fairness in Ground 5, it arises for decision now whether the other bases in Schedule 4 clause 12 of the Civil and Administrative Tribunal Act can be established by the landlord to enable the discretion in relation to leave to appeal to be considered. Leave to Appeal 1. In Collins v Urban the Appeal Panel stated at [76]-[79]: [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. [77] As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. [78] If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. [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. The Appeal Panel in Collins v Urban also stated at [81] that: "…even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12 of Schedule 4 to the Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b)." 1. The first stage is to determine whether leave to appeal can be considered on the basis that the landlord suffered a substantial miscarriage of justice because the decision was not "fair and equitable", against the weight of evidence, or whether there is significant new evidence that was not reasonably available at the time of the hearing: see Schedule 4 clause 12(1)(a), (b) and (c) of the Civil and Administrative Tribunal Act. If the landlord does not satisfy the Appeal Panel that there was a substantial miscarriage of justice, then there is no requirement to consider whether the discretion to grant leave to appeal should be exercised as referred to in Collins v Urban at [81]. Decision "fair and equitable" 1. The landlord claims that the member never made eye contact with the landlord or his agent and that they were both treated very differently from the other party. There is no transcript provided of the hearing by the landlord. There was no identified application for the Tribunal Member to recuse himself from further hearing the matter according to the materials and submissions placed before the Appeal Panel. 2. The landlord relied upon the error which was later corrected by the Tribunal Member as a basis for asserting that the decision was not "fair and equitable". 3. The landlord also claimed the tenant "never provided any evidence of any photos or invoices" for the goods which were claimed by the tenant. This is partially correct. There were no invoices provided by the tenant. For the reasons which we state in relation to the weight of evidence issues raised by the landlord, it is clear that there were photos and some evidence of value before the Tribunal Member, and the Tribunal Member made a determination of value based upon the evidence. 4. The contentions raised by the landlord as to eye contact and treatment by the Tribunal Member are totally unsupported by any materials upon which the Appeal Panel could make a determination in the absence of transcript and are unsupported by other evidence or by the content of the Reasons for Decision. Consequentially, no basis for error of law in terms of denial of procedural fairness is demonstrated. 5. The Reasons for Decision clearly show that the Tribunal Member allowed the claims of both parties: see Reasons for Decision at [25] for the costs allowed for the landlord's claims. The landlord tendered 80 colour photographs of the premises to support his claim. The landlord tendered invoices for work performed by a handyman to repair the premises. Except for 5 items the Tribunal Member accepted the landlord's reasonable cost of repairs. It is just not possible to maintain the submissions which were advanced that there was some favouritism exhibited by the Tribunal Member to the tenant in light of the even-handed outcome shown in the Reasons for Decision. 6. The Reasons for Decision (as amended) at paragraph [20] and [21.e] referred to the fact that the premises were 40 years old, last painted 6 years ago and that the tenant was the third tenant since the repainting occurred. The landlord asserted before the Appeal Panel that it made no sense for the question to be asked. On the contrary, it was a perfectly sensible question to ask when considering whether to allow the cost of repairs of the premises claimed by the landlord and whether there were any expenses for which the tenant should be held responsible. The previous paragraph in the Reasons for Decision at [19] refers to the handyman invoices tendered by the landlord. In that context, the question was perfectly sensible. The Tribunal Member determined that some of the items claimed were maintenance expenses for a 40-year-old unit rather than repairs: see Reasons for Decision at [21]. The Tribunal Member did not accept the tenant's submissions recorded at [22] of the Reasons for Decision. The Tribunal Member found that the tenant breached the tenancy agreement at [24] and [25] of the Reasons for Decision. 7. None of the bases asserted by the landlord for contending that the decision was not fair and equitable has been made out. In those circumstances Grounds 2 and 5 have to fail. Weight of the evidence 1. Grounds 3 and 4 as formulated earlier in these reasons refer to the weight of evidence issues raised by the landlord. 2. During the course of submissions, the landlord's agent sought to argue that the Tribunal Member impermissibly accepted the tenant's evidence of value of the goods which were left in the garage attached to the premises. There was evidence relied upon by the tenant as to the value of second-hand goods and photographs of some of the items which were found on the verge. The Tribunal accepted the tenant's evidence as to the goods and the reasonable second-hand value as contained in that evidence which was Exhibit T1. It is clear that Exhibit T1 contained the particulars of claim filed by the tenant on 16 July 2017. The hearing took place on 16 August 2018. 3. The Tribunal was faced with competing contentions of fact. In the end, the Tribunal accepted the tenant's version of the evidence as to the items which were left in the garage by him. There was no competing particularised evidence from the landlord. It was open to the Tribunal to prefer one party's version of the facts and evidence to the other. This is not an unusual process in primary fact finding and there is evidence that the Tribunal Member found facts in favour of the landlord in relation to other factual matters. 4. In particular the landlord argues that there were no invoices and receipts provided by the tenant to prove the value of the goods. The Tribunal Member asked the tenant whether there were invoices and receipts and apparently received an answer from the tenant to the effect that the invoices and receipts were misplaced. In the absence of those documents the Tribunal Member determined whether to accept evidence which was available and particularised prior to the hearing by the tenant. The existence of the goods was partially corroborated by the landlord. An opportunity was available for the landlord to test the evidence relied upon by the tenant at the hearing and that evidence was so tested. The evidence was capable of supporting the findings and no identified irrelevant evidence was taken into account. 5. The landlord submitted factual matters which should have been given more weight in the application for leave to appeal form. Those matters are matters which the Tribunal Member took into account. The finder of fact was entitled to accept evidence which was more persuasive than other evidence. The Tribunal Member was in the position of being able to observe the witnesses giving evidence which is an advantage that the Appeal Panel does not have. We were not persuaded in submissions that insufficient weight was given to those matters identified by the landlord in submissions and in the form commencing proceedings. We are not persuaded that the decision of the Tribunal under appeal was against the weight of evidence. 6. Grounds 3 and 4 as formulated earlier in these reasons therefore do not succeed in establishing that the landlord may have suffered a substantial miscarriage of justice. New Evidence 1. The landlord also asserted in the form commencing the proceedings in the Appeal Panel that significant new evidence is now available that was not reasonably available at the time of the hearing. The evidence identified by the landlord is that the tenant moved to a property only 4 minutes' drive away from the previous premises the subject of these proceedings. 2. The tenant gave evidence in the Tribunal that due to mechanical issues with his car he could not finish moving all of his belongings. When the tenant was able to fix his car on 19 May 2018, he returned to the property to collect his goods which were placed by him in the unlocked garage. The tenant immediately called the police and the property manager. The landlord had disposed of the goods according to the landlord's agent and a final inspection of the unit had already been completed. 3. The landlord asserts that the tenant could have taken the goods in the property because he did not move out of the area. This is not evidence which could not have been obtained with reasonable diligence at the time of the hearing. Indeed, the tenant was able to be orally questioned about this matter in the Tribunal hearing if it was relevant. The appellant landlord has not provided the transcript of the hearing to support his contentions. There is nothing in the submissions made by the landlord which persuades the Appeal Panel that the new evidence is significant and could have made a difference to the decision. 4. In those circumstances, the Appeal Panel is not satisfied the appellant may have suffered a substantial miscarriage of justice in accordance with the provisions of Schedule 4 Clause 12 of the Civil and Administrative Tribunal Act due to any new evidence which is now available. Outcome of the appeal 1. Since the Appeal Panel is not satisfied that the appellant may have suffered a substantial miscarriage of justice in accordance with the relevant legislation and the authorities, the application for leave to appeal must be dismissed. 2. If the appellant had been able to establish a substantial miscarriage of justice the Appeal Panel would be required to consider whether to exercise its discretion and grant leave to appeal. 3. The decision in Collins v Urban referred at paragraph [84] to the principles which are relevant to the exercise of that discretion as follows: "[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, 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. There is nothing which the Appeal Panel has been directed to by the landlord which would justify the grant of leave to appeal in the event that the appellant may have suffered a substantial miscarriage of justice. 2. In those circumstances the application for leave to appeal and the appeal filed on 3 September 2018 are dismissed. Costs 1. The costs provisions of the Civil and Administrative Tribunal Rules 2014 (NSW) as they relate to costs in the Appeal Panel for internal appeals provide: 38A COSTS IN INTERNAL APPEALS (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the "first instance costs provisions") differed from those set out in section 60 of the Act because of the operation of: (a) enabling legislation, or (b) the Division Schedule for the Division of the Tribunal concerned, or (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. 1. The costs provisions of the Civil and Administrative Tribunal Rules 2014 (NSW) as they relate to costs in the Consumer and Commercial Division of the Tribunal specify: 38 COSTS IN CONSUMER AND COMMERCIAL DIVISION OF THE TRIBUNAL (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000. 1. The amounts claimed in the dispute are less than $10,000. Therefore section 60(3) of the Civil and Administrative Tribunal Act requires special circumstances to be established for an award of costs and sets out examples of what may constitute special circumstances. Nothing before us indicated special circumstances. There was no application for costs by the respondent who was not legally represented and the appellant was also not legally represented. 2. Therefore, there will be no order as to costs. Orders 1. The Appeal Panel orders: 1. The application for leave to appeal is dismissed. 2. The application filed 3 September 2018 is dismissed. 3. No order as to costs. ********** 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 January 2019