Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hsueh v Alldis & Cox (Coogee) Pty Ltd [2019] NSWCATAP 11 Hearing dates: On the papers Date of orders: 07 January 2019 Decision date: 07 January 2019 Jurisdiction: Appeal Panel Before: F Corsaro SC, Senior Member D A C Robertson, Senior Member Decision: (1) Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) the time for the commencement of the appeal be extended to 29 September 2017; (2) Leave to appeal on grounds other than a question of law is refused. (3) The appeal is dismissed. Catchwords: APPEAL – No question of law – no issue of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Property, Stock and Business Agents Act 2002 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Jade Hsueh (Appellant) Alldis & Cox (Coogee) Pty Ltd (Respondent) Representation: J Hsueh (Self Represented) (Appellant) S Parrelli (Property Manager) (Respondent) File Number(s): AP17/43126 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 27 July 2017 Before: P Boyce, Senior Member File Number(s): COM 17/14771 REASONS FOR DECISION 1. The Appellant, Ms Hsueh, owns a strata title unit in Chatswood. Ms Hsueh appointed the Respondent ("the Agent") as her exclusive agent to let and manage her unit. The terms of that arrangement were set out in a written Management Agency Agreement made on 26 or 27 June 2011 ("the Agreement"). 2. Exercising the authority granted to the Agent under the Agreement, the Agent let the unit for Ms Hsueh under the terms of a Residential Tenancy Agreement which commenced on 29 August 2011. The tenant vacated the premises on 5 February 2016. 3. In December 2015, Ms Hsueh terminated the Agreement with the Agent with effect from 31 December 2015. 4. On 28 May 2017 Ms Hsueh commenced proceedings in the Consumer and Commercial Division of the Tribunal seeking compensation against the Agent for the Agent's alleged breach of the Agreement pursuant to ss 32 and 36 of the Property, Stock and Business Agents Act 2002 (NSW). She claimed: 1. the amount of $8,611 plus interest by way of a refund of the management fees paid to the Agent under the Agreement on the alleged grounds that the Agent had failed to collect rent from the tenant on time and had failed to carry out periodic inspections of the unit during the period of the lease; 2. the amount of $670 and interest which the Agent had charged Ms Hsueh to replace a gas cook top in the unit. Ms Hsueh claimed that she had been charged and paid for something which was not done; 3. the amount of $1,700 paid by Ms Hsueh to replace water damaged carpet and to paint water damage resulting from a leak in the unit's courtyard which the Agent failed to detect and repair; and 4. the amount of $374 which the Agent had charged Ms Hsueh for the cost of repairing the unit's back steps. 1. Ms Hsueh also claimed that the Agent failed to properly identify an ongoing leak in a tap within the vanity cabinet and as a result the vanity eventually become water logged and damaged by rot. Ms Hsueh also made a similar complaint about the Agent's failure to properly inspect the unit to detect and act to prevent a white stain on the courtyard. Finally, Ms Hsueh complained that the Agent's inaction in detecting and repairing problems in the unit meant that the standard of the unit fell with a consequent loss of opportunity in Ms Hsueh being unable to increase the rent to a level that would have truly reflected the value of the premises unaffected by these issues. 2. Ms Hsueh appeals the Tribunal's decision made on 27 July 2017 dismissing Ms Hsueh's claims. The Tribunal found: 1. Ms Hsueh had not established any breach by the Agent of its obligations under the Agreement and that, in any event, Ms Hsueh had not established that she had sustained any loss through non-payment of rent; 2. the tenant had complained to the Agent about the condition of the vanity and that the Agent had, in turn, reported that matter to Ms Hsueh, and that Ms Hsueh had made a decision not to carry out repairs to the vanity after being informed about the problem; 3. the cooktop had been replaced and the Agent had correctly charged Ms Hsueh for the replacement cost; 4. Ms Hsueh had not established any basis which made the Agent liable for the cost of replacing the carpet. 5. the water leak which Ms Hsueh maintained as the source of water damage to the unit was from a defect in the common property of the relevant strata plan, which had been rectified by the Owners Corporation having the obligation to repair and maintain the common property; 6. the Agent had caused repairs to the unit's back step to be carried out in accordance with its obligations under the Agreement; 7. the stain in the courtyard which Ms Hsueh maintained was due to the Agent's failure to make proper periodic inspections of the unit was a result of efflorescence in masonry and tiles and did not involve any breach of the Agreement; and 8. Ms Hsueh had failed to establish that the level of rent to be expected from the unit had not been maintained at a level which was in accordance with unit's market value. 1. Ms Hsueh lodged her appeal with the Tribunal on 29 September 2017. Pursuant to r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW). Ms Hsueh was required to lodge her appeal within 28 days of receiving notice of the decision. Ms Hsueh asserted that she had received notice of the decision on 2 August 2017. Accordingly, Ms Hsueh's appeal was required to be lodged by 30 August 2017 and was lodged 30 days late. Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"), the Appeal Panel has power to extend the time for the lodgement of the appeal. 2. Ms Hsueh applied for an appropriate extension of time to file her appeal. To explain the delay, Ms Hsueh informed the Appeal Panel that, upon receiving notice of the decision, she engaged in correspondence with the Tribunal seeking to have the decision changed, that she was also seeking legal advice and that she experienced personal issues. In the final analysis, the Agent did not point to any prejudice suffered by reason of the late lodgement of the appeal, and did not oppose the grant of an extension of time for lodgement of the appeal. 3. Although it is relevant for the Appeal Panel to observe that the matters raised by Ms Hsueh would not ordinarily be considered to be sufficient justification for the Tribunal to extend time for an appeal, in the present circumstances the period of the delay was relatively short, and the Agent did not oppose the grant of an extension on the grounds that the Agent suffered real prejudice. Accordingly, the Appeal Panel considers that an order extending the time for the filing of the Notice of Appeal be extended to the date on which it was filed, and the Appeal Panel makes that order. 4. The Appellant's rights of appeal 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 ground." 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." Grounds of Appeal 1. We now turn to consider the five specific grounds of appeal advanced by Ms Hsueh in her Notice of Appeal. The specific grounds do not raise a question of law. Rather, the Notice of Appeal challenges the correctness of the Tribunal's first instance findings in relation to: 1. the cost charged for the replacement of the cooktop; 2. the Agent's alleged failure to collect rent from the tenant; 3. the failure to detect the leaking tap within the vanity unit; 4. the cost of the replacement of the carpet; and 5. the cost of rectifying damage to the unit's back step. 1. Further, Ms Hsueh also sought leave to appeal on the basis that the decision was not fair and equitable, and that the decision was against the weight of evidence. As the Notice of Appeal does not identify any questions of law, Ms Hsueh can only succeed if she is able to establish one of those grounds for the grant of leave to appeal. 2. It was not entirely clear from the papers filed by the parties whether all the material filed in the appeal had been before the Senior Member at first instance. As this appeal was, by consent of the parties, determined on the papers without a hearing, we were not able to seek clarification of that issue. We have proceeded on the basis that all the material filed by both parties was before the Senior Member. Consideration Cooktop 1. At the initial hearing, the Agent tendered photographs to establish that it had correctly charged Ms Hsueh for the cost of replacing the cooktop. Ms Hsueh's submission was that although the photographs on which the Agent relied did show a cooktop, they were not photographs of the unit's cooktop. 2. The photographs were not the only evidence relevant to this issue. The Agent also tendered: 1. an invoice for supply and installation of a cooktop which on its face identified the cooktop as being provided to Ms Hsueh's unit; and 2. an email from the tenant of the premises confirming that the cooktop was replaced during the tenancy. 1. Having considered the whole of that material at the hearing, the Senior Member found on the balance of probabilities that the cooktop of Ms Hsueh's unit had been replaced and Ms Hsueh correctly charged for that work. We do not consider that this conclusion was either against the weight of evidence, or not fair and equitable. Accordingly, we are not satisfied that there are any grounds to disturb the Tribunal's first instance findings, and Ms Hsueh's challenge to this aspect of the Tribunal's decision must fail. Collection of Rent 1. In relation to the collection of rent, the Senior Member found that, although at the time of termination of the Agreement the tenant was two days in arrears in the payment of rent, that was not the result of any fault on the part of the Agent nor a breach of the Agreement by the Agent. The Tribunal found that: 1. it would not have been practicable for the Agent to have carried out enforcement procedures prior to the termination of the Agreement; and 2. Ms Hsueh had recovered the tenant's arrears in rent from the rental bond and, accordingly, had suffered no loss. 1. Ms Hsueh did not point to any acceptable basis upon which the Appeal Panel should conclude these findings were in error. We do not find the Tribunal's factual findings either against the weight of evidence or not otherwise fair and equitable. Accordingly, we find that Ms Hsueh's challenge to this aspect of the Tribunal's decision must fail. Vanity 1. When it came to the challenge to the Tribunal's findings relevant to the damage to the vanity unit, Ms Hsueh submitted that: "the vanity was not simply water logged but rotten very badly and the water tap underneath the vanity was leaking heavily when the tenant moved out which left the property in an untenantable condition". 1. We consider that the evidence before the Tribunal established on the balance of probabilities that the vanity was already subject to water damage at an early stage. An Ingoing Condition Report in August 2011 and Inspection Reports prepared by the Agent in February 2013 and March 2014 stated that the "bottom of the vanity is water logged". In 2013, after the Agent had suggested that, if Ms Hsueh wished to increase the rent, she should attend to the repairs and issues raised in the Inspection Report of February 2013, Ms Hsueh replied, "the tenant should clean it regularly and keep it dry to avoid mould to grow". 2. The Senior Member's conclusion was that, in light of these instructions by Ms Hsueh to the Agent, the Agent had no further obligation to cause the vanity to be replaced. We find that the Senior Member's conclusion was open and consistent with the weight of the evidence. We do not find that this finding was otherwise not fair and equitable. Accordingly, we find that Ms Hsueh's challenge to this aspect of the Tribunal's decision must also fail. Carpet 1. In broad terms, Ms Hsueh's claim against the agent for compensation due to the carpet's replacement and the repair of the back step required Ms Hsueh to establish that the carpet and back step were damaged by a water leak from the courtyard, and that the Agent was required, but failed, to make a claim to recover the replacement and rectification costs under Ms Hsueh's insurance policy. 2. Relevant to this part of Ms Hsueh's claim, the Tribunal's first instance findings were that: 1. the carpet became wet with water, but was rolled back to allow it to dry and then rolled back into position when dried; 2. there was no evidence of complaint thereafter by the tenant. 1. The Tribunal found that no basis existed on which the Tribunal should hold the Agent liable for this damage. Ms Hsueh did not point to any evidence inconsistent with the Senior Member's findings. We do not consider that the Senior Member's decision was against the weight of evidence or not fair and equitable, and accordingly find that the challenge to this aspect of the Tribunal's decision must also fail. Back Step 1. The Agent debited the $374 cost of carrying out repairs to the back step to Ms Hsueh's rental management account. 2. The Tribunal's reasons do not specifically address the question whether the Agent should have lodged an insurance claim for the damage to the back step. However, it is not apparent to us that that Ms Hsueh formulated this part of her claim on this basis. Further, it does not appear that Ms Hsueh put the insurance policy into evidence to demonstrate that a claim was open to be made, and would have been successful, if made. 3. In those circumstances, there was no evidence before the Tribunal to establish that the repair of the back step would have been covered by the insurance policy or that any claim would have resulted in any payment to Ms Hsueh. 4. In the final result, we are not persuaded that Tribunal erred in not awarding compensation to Ms Hsueh in respect of the repair of the back step, even if the evidence did establish the Agent should have taken steps to prevent this damage occurring. We do not consider that the Senior Member's decision in that regard was not fair and equitable or against the weight of evidence. Accordingly, we find that this challenge to the Tribunal's decision also fails. 5. As we have said, Ms Hsueh's claim against the Agent was that this cost would have been recovered under the relevant insurance policy, had the Agent made an insurance claim. It is relevant to observe that Ms Hsueh acknowledges that the insurance policy required an excess of $250 on any claim made. It follows that even if Ms Hsueh were correct, and the Agent had some obligation to make an insurance claim, then Ms Hsueh may have recovered $374, but only after having paid the excess of $250, leaving her potentially better off by $124, ignoring any potential increase in the premium payable for a subsequent year by reason of the lodgement of any claim. We are not satisfied that Ms Hsueh suffered a substantial miscarriage of justice in those circumstances. Accordingly, even if we had been persuaded that the decision in respect of the rear step was not fair and equitable or was against the weight of evidence, we would not have been minded to grant Ms Hsueh leave to appeal. Order 1. For these reasons, the Appeal Panel orders that: 1. Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) the time for the commencement of the appeal be extended to 29 September 2017; 2. Leave to appeal on grounds other than a question of law is refused. 3. 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: 07 January 2019