Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rahmany v Zhu [2019] NSWCATAP 13 Hearing dates: 28 November 2008 8 Date of orders: 08 January 2019 Decision date: 08 January 2019 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member T Simon, Senior Member Decision: (1) The time to file the appeal is extended to 6 September 2018. (2) Leave to appeal is granted and the appeal is allowed in part. (3) The respondent (Yijie Zhu) is to pay the appellants (Siamak Rahmany and Sally Mollaian) the sum of $334.95 being a refund of part of the bond paid to the respondent pursuant to order 2 made 14 August 2018 in application RT 18/22443, such amount to be paid to the appellants within 14 days from the date of these orders. (4) Save as provided above the appeal is dismissed. Catchwords: APPEALS – Leave to appeal – miscalculation of award – challenge to findings concerning breach of residential tenancy agreement and assessment of loss. Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: Nil Category: Principal judgment Parties: Siamak Rahmany (First Appellant) Sallian Mollaian (Second Appellant) Yijie Zhu (Respondent) Representation: S Rahmany (Self Represented) (First Appellant) S Mollaian (Self Represented) (Second Appellant) A Tinsley (Agent) (Respondent) File Number(s): AP18/38862 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 14 August 2018 Before: D Ash, General Member File Number(s): RT18/22443 reasons for decision Introduction 1. The respondent, who we will refer to as the landlord, was the applicant in proceedings RT 18/22443. The landlord made various claims against the appellants, who we will refer to as the tenants, for unpaid rent, damage to the premises and cleaning costs following the end of a residential tenancy agreement. 2. On 14 August 2018, the Tribunal made an order that the landlord was entitled to receive an amount of $4566.00, being part of a bond lodged in respect of residential premises at Bondi Junction (premises). The total bond was $4660.00. 3. The Tribunal provided written reasons for decision (Reasons). Those reasons record that the amount awarded by the Tribunal consisted of the following items: 1. Unpaid rent of $132.70; 2. Carpet replacement $3626.00; 3. Wall repair $440.00; 4. Cleaning $250.00. 1. These items total $4448.70, not $4566.00. That is, there is a mathematical error and the amount of the award is overstated by $117.30 having regard to the amounts the Tribunal found the respondent was entitled to receive as compensation. 2. As is evident from the Reasons, the tenants did not appear at the hearing on 14 August 2018 and orders were made in their absence. They filed application RT 18/35525 on 14 August 2018 and applied to set aside the Tribunal's decision. The reason for this application was that the first appellant said he was "extremely sick and unwell and could not get out of bed" and his wife was recovering from surgery unable to attend on their behalf. The application to set aside was dismissed on 5 September 2018. The reason for this is that the tenants were said to have failed to provide their evidence as directed by the Tribunal and had failed to provide appropriate medical evidence as to why they could not attend the hearing on 14 August 2018. Notice of Appeal and history of the appeal 1. On 6 September 2018, the tenants filed a Notice of Appeal challenging the orders made. The tenants sought to challenge each of the amounts which were awarded in respect of rent, damage and cleaning. 2. The landlord filed a Reply to Appeal. In the reply, the landlord indicated that the Tribunal had before it various documents which the tenants had sent to the landlord in the proceedings at first instance and that the Tribunal had considered those documents. 3. Directions were made by the Appeal Panel for the parties to file and serve evidence. The evidence consisted of document handed to the Tribunal in the proceedings at first instance and new evidence in the form of an apparent insurance claim by the landlord in connection with the premises. We were not provided with the sound recording of the original hearing and many of the photographs provided by the tenants said to depict the state of the premises were illegible. 4. Despite that, we were provided with clear copies of the photographs in the form of the landlord's evidence from the proceedings at first instance. 5. Each of the parties provided written submissions. In addition the parties made oral submissions to the Appeal Panel at the hearing on 28 November 2018. 6. At the hearing of the appeal, the first appellant appeared on behalf of both the tenants. Mr Tinsley, agent, appeared for the landlord. 7. The following documents became exhibits in the Appeal: 1. Exhibit A – tenants' bundle from original hearing 2. Exhibit 1 – landlord's bundle 1 from original hearing; 3. Exhibit 2 – landlord's bundle 2 from original hearing Consideration 1. There is a right of appeal on a question of law, otherwise leave to appeal is required: see s 80(2)(b) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act). 2. In the present case, the issues raised by the tenants require leave to appeal. In order to obtain leave, Sch 4 cl 12 of the NCAT Act is applicable. The tenants must demonstrate they may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, against the weight of evidence or there is significant new evidence that was not reasonably available. The principles concerning the grant of leave are set out in Collins v Urban [2014] NSWCATAP 17. 3. It is convenient to deal with each of the items awarded by the Tribunal in turn to consider whether or not leave should be granted and, if so, what orders should be made. 4. Prior to doing so, we should deal with the fact that the appeal was lodged out of time. Extension of time to appeal 1. The Notice of Appeal did not seek an extension of time. However, the tenants were given leave to amend the Notice of Appeal to seek an extension of time at the hearing of the appeal on 28 November 2018. 2. The Appeal Panel has a discretion to extend the time to lodge the Notice of Appeal pursuant to s 41 of the NCAT Act. The principles applicable to the exercise of discretion were dealt with by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. 3. The time to lodge the present appeal was 14 days after 14 August 2018, namely 28 August 2018. This time is specified in r 25(4)(b) of the Civil and Administrative Tribunal Rules, 2014 (NSW). 4. The appeal was lodged on 6 September 2018, 9 days out of time. While the period of time is relatively significant when considered against the 14 day time limit applicable to residential proceedings, the appeal was lodged immediately after an application to set aside had been refused. 5. At the hearing of the appeal, the appellants made submissions indicating they were unable to call the Tribunal before the original hearing and confirmed that there was no medical evidence about the various medical conditions explaining why neither of the appellants could attend the original hearing 6. The lateness of lodging the appeal counts against the grant of an extension of time. However, having regard to the views we have formed concerning the substantive issues, we are satisfied time should be extended in the present case in respect of the award made concerning the rent and carpet and because, as we indicated above, there was a mathematical error made by the Tribunal in order for payment of the bond Rent of $132.70 1. In relation to the rent of $132.70, the tenants agreed the sum of $132.70 represented one days rent which had not been paid. This rent was charged because the tenants returned the keys to the premises to the landlord's agent on 5 May 2018, rather than 4 May 2018. 2. The tenants deny they owed this money. They say that when they called regarding returning the keys on 4 May 2018, they were told by the receptionist at the agent's office that they could do so the next morning. 3. The landlord's agent accepted that if there was some evidence of the relevant conversation then this amount should be deducted from the order made in favour of the landlord. 4. Exhibit A contained some evidence of the conversation with the receptionist of the landlord's agent regarding return of the key. We were not referred to any evidence to contradict this material. 5. The Tribunal allowed the sum of $132.70 having had regard to "the status report and the tenancy agreement". However, no reference is made to the evidence of an agreement to return the keys on Saturday to which we have referred. 6. In our view, a relevant error has been demonstrated, to the extent necessary leave to appeal should be granted and the amount of the claim should be reduced by $132.70. Carpet replacement $3626.00 1. Each of the parties provided submissions concerning photographic evidence and what that evidence depicted. 2. It was an agreed fact that, at the commencement of the residential tenancy agreement, there were boot marks at the door entrance and that attempts to clean those marks and remove the staining had been unsuccessful. This marking is shown in photograph 327 of Exhibit 1 3. In the case of the tenants, they said that there was also pre-existing damage to the carpet when the tenancy commenced, in the lounge area. 4. They referred to the areas of the premises which were carpeted and said that the award was inappropriate, effectively allowing damages for replacement of the whole carpet. While they acknowledge there was some staining, they submitted that localised repair was all that was required and that the evidence did not disclose it was necessary to replace the carpet throughout the whole of the premises. 5. The tenant also relied on the fact that a carpet company had suggested that an area of 14 m² could be replaced, rather than carpet throughout the premises. 6. In reply, the landlord submitted that the premises were, effectively, new at the commencement of the residential tenancy agreement which was for a short period of 12 months only. While the landlord agreed there was some pre-existing damage in the front door area, the landlord submitted this was only approximately 1 m² against a total carpeted area of 70 m². 7. The landlord referred to various photographic evidence showing the before and after position of the carpet in the lounge area, bedroom 1 and bedroom 2. This material is in the Exhibit 1 and included the following: 1. Bedroom 1 (including a wardrobe area) Condition at commencement of tenancy: p 59-photographs 18, 19 and 20; Condition at end of tenancy: p 157-photographs 6 and 7. 1. Bedroom 2 Condition at commencement of tenancy: p 89-photograph 135; Condition at end of tenancy: p 160-photographs 17-19. 1. These photographs clearly show extensive staining throughout the whole of the premises. This does not appear to be fair wear and tear. In reaching this view we have had regard to the floor plan at p 227 of Exhibit 1 showing the lounge area, the entrance area and the bedrooms and walk-in wardrobe which were all carpeted. 2. Having regard to this material, we do not accept the tenants' submission that the extent of the staining and damage to the carpet was as limited as they assert. 3. In the Reasons, the Tribunal accepted the landlord's evidence that the cost of replacing the carpet was $4085.00. The Tribunal reduce this amount by 10% to allow for depreciation applicable to the one-year period of the tenancy: Reasons at [5]. The Tribunal allowed $3626.00, this appearing to be a miscalculation of 90% of $4085.00 which is $3676.50. 4. In any event, as those reasons reveal, no allowance was made for the pre-existing damage agreed to be present at the front door. 5. This damage was clearly disclosed on the evidence provided by the landlord to the Tribunal at the hearing on 14 August 2018. 6. In discussions with the parties at the hearing, while the landlord maintained no allowance should be made because the whole of the carpet needed to be replaced, the landlord submitted that $150 should be allowed if the Appeal Panel determined this was appropriate. 7. In our view some allowance should have been made for defect to an area of carpet said to be approximately 1 m² of a total carpeted area of 70 m². Quite clearly, this area was not capable of being cleaned and needed to be replaced in any event. In our view this allowance should be $150 as submitted by the respondent. 8. Ordinarily, we may not have granted leave in respect of this sum on the basis there was no substantial miscarriage of justice. However, circumstances where there is a mathematical error, and where the Tribunal did not deal with this particular evidence which was always in dispute, we have formed the view in this case that leave should be granted and an adjustment made. 9. Accordingly, leave to appeal should be granted on this ground and the award made by the Tribunal of $3626.00 should be reduced as follows. 10. The Tribunal found that the cost to replace the carpet was $4085.00. From this should be deducted an amount of $150.00 for the replacement cost of the carpet here the front door. The cost of replacing the remaining carpet in the premises would therefore be $3935.00 ($4085.00 - $150.00). This sum should be reduced by 10%, being the depreciation allowance as determined by the Tribunal at first instance. 11. Consequently, the correct award which the Tribunal should have made is $3541.05. Wall repair $440 1. This claim relates to marks left on the walls following removal of wall hangings and make good by the tenants. 2. The tenants challenge the conclusion that there were any marks on the walls and referred to various photographs found in Exhibit A pp 10-15. However, these photos were largely illegible.They also refer to photograph 99, p 180 of Exhibit 1. 3. The landlord refers to the "before" position of the wall as depicted in photographs 273, 275 and 276 of Exhibit 1 p 1 to 3-1 to 4, and the "after" position depicted in photographs 93-104 of Exhibit 1 pp 179-181 and Exhibit 2 p 13. 4. In our view, some of the legible photographs show unevenness in the finish of the walls. Prior to the commencement of the tenancy, the premises had been newly painted. The Tribunal reduce the landlord's claim by twenty percent. 5. In these circumstances, there was some evidence before the Tribunal on which its finding of liability and the award of damages could be based. Consequently, no error is shown, leave is refused and this ground of appeal is dismissed. Cleaning $250.00 1. The tenants assert they cleaned the premises at its conclusion. They refer to an invoice found in Exhibit A at p 2 of the work which was undertaken by Coreen Cleaning. 2. On the other hand, the landlord says any cleaning was insufficient. Here, reference is made to various photographs including the kitchen (Exhibit 1 photographs 25 and 41, pp 162 and 166) and the laundry (Exhibit 1 image 114 p 184). Items of inadequate cleaning include brown marks under the bench which appear to have been left by cans which have rusted on the base. 3. In the Reasons, the Tribunal referred to the outgoing inspection report and the information recorded therein a demonstrating inadequate cleaning. 4. In our view, taken as a whole, there was evidence to indicate the cleaning of the premises was not sufficient and, accordingly, this ground of appeal is dismissed. Orders 1. The Tribunal made an award in favour of the landlord in the sum of $4566.00. There is no dispute that this amount has been received by the landlord in accordance with the direction made for payment of the bond. 2. Having regard to our reasons, including the mathematical errors and our adjustments to the award made by the Tribunal at first instance, the landlord has been overpaid the bond. 3. In accordance with our reasons, the landlord was entitled to the following amounts only: 1. Carpet replacement –$3541.05 2. Wall repairs – $440.00; and 3. Cleaning – $250.00 4. Total – $4231.05 1. As the bond has been paid out, there is no utility in varying order 2 made 14 August 2018 in application RT 18/22443. Rather, we should make an order that the landlord repays to the tenants the sum of $334.95. This is the difference between the amount received by the landlord of 4566.00 and the amount of $4231.05, which we have found was properly payable. 2. Accordingly, we make the following orders: 1. The time to file the appeal is extended to 6 September 2018. 2. Leave to appeal is granted and the appeal is allowed in part. 3. The respondent (Yijie Zhu) is to pay the appellants (Siamak Rahmany and Sally Mollaian) the sum of $334.95 being a refund of part of the bond paid to the respondent pursuant to order 2 made 14 August 2018 in application RT 18/22443, such amount to be paid to the appellants within 14 days from the date of these orders. 4. Save as provided above 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: 08 January 2019