Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cusack v Valsamis [2019] NSWCATAP 98 Hearing dates: 9 April 2019 Date of orders: 23 April 2019 Decision date: 23 April 2019 Jurisdiction: Appeal Panel Before: D Cowdroy QC ADCJ, Deputy President D A C Robertson, Senior Member Decision: (1) The time for commencement of the appeal is extended to 9 January 2019. (2) Leave to appeal is refused. (3) The appeal is dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 No 2 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 Collins v Urban [2014] NSWCATAP 17 Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70 Jackson v Land and Housing Corporation [2014] NSWCATAP 22 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Temple v AMR Motors Pty Ltd [2017] NSWCATAP 221 Category: Principal judgment Parties: Sam Cusack and Ashleigh Cusack (Appellants) Gary Hibbert and Kirikoula Valsamis (Respondents) Representation: Appellants in person M Habib, managing agent (Respondents) File Number(s): AP 19/02267 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Date of Decision: 07 December 2018 Before: P French, General Member File Number(s): RT 18/36731 REASONS FOR DECISION 1. By notice of appeal filed on 9 January 2019, and by amended notice of appeal filed on 21 February 2019, the applicants appeal a decision of the Tribunal dated 7 December 2018. The appellants claim that they received notification of the decision on 12 December 2018. 2. By the decision, the appellants, who were tenants of a residential property in metropolitan Sydney, were, by order 1, ordered to pay to the respondents (the landlords) the amount of $4591.50 within 14 days of the date of the orders (7 December 2018). Further, by order 2, the Rental Bond Services was ordered to pay to the respondents the whole of the rental bond which had been paid by the appellants which was to be credited against the order for payment as set out in order 1. Such payment represented the cost of damage sustained to the residential property leased by the appellants which did not represent fair wear and tear. The appeal 1. The grounds as set out in the Notice of Appeal are as follows: (1) Decision was influenced on verbal evidences by Applicants (2) Excessive money allocated without considering evidence and real cost (3) Evidences at hand not considered (4) Common sense not prevailed (5) Professional knowledge was not applied 1. The orders sought in the Notice of Appeal are as follows: (1) Dismissal of excessive claim (2) Reduce the judgment (3) Instead of paying money to landlord or applicants allow respondents to carry and complete all work 1. The appellants state that a grant of leave is not sought. However, it is obvious from the grounds of appeal that no question of law arises on this appeal: rather, the appellants seek to re-litigate the findings of the Tribunal. 2. The appellants acknowledged that an extension of time is required to bring the appeal as it is out of time. The appellants state that because of restricted hours of the Tribunal during the holiday period; because they were unable to get advice as to the appeal; and because they were unable to obtain quotes for the appeal, they could not comply with the time limits. On 18 February 2019 the appellants wrote to the Tribunal asserting these reasons for delay. 3. The appellants have attached documents to the notice of appeal which address issues which were considered at the hearing, being the landlords' claim for damage arising out of cleaning, pest control, lawn, kitchen benchtop, bedroom door and kitchen blinds in the leased residence. In addition, a statement dated 4 January 2019 has been provided by a neighbour which effectively disputes some of the factual findings made by the Tribunal. It appears that all such material is relied upon at the appeal. Reply 1. The landlords filed a reply to the original notice of appeal on 29 January 2019. The reply states that the landlords believe that their claim for damage of $11,342.50 was justified. Nevertheless, they accept the decision of the Tribunal. 2. The landlords state that all material relevant to the claim was put forward or supported by independent quotations of accredited tradespeople. The landlords state that the appellants require leave to appeal and that the appellants were given every opportunity to put their case before the Tribunal. The landlords also stated they do not accept that the appeal was lodged within time but do not object to the tribunal extending the time for lodging the appeal. Is a grant of leave required? 1. This appeal is an internal appeal as provided for in Division 2 Part 6 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW), hereafter referred to as "the Act". Section 80 (2) provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (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. It is apparent from the grounds of appeal that no questions of law are raised, but rather, the appellants seek to attack the Tribunal's findings on evidentiary grounds. What constitutes a question of law has been considered in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, especially at [13]. The appellants claim that "evidence is at hand not considered"; and that "common sense not prevailed"; and that "professional knowledge was not applied". Such assertions do not, in the Appeal Panel's consideration, constitute questions of law but are no more than challenges to the factual findings of the Tribunal. 2. In these circumstances, the Appeal Panel considers that no appeal as of right arises: rather, a grant of leave is required to bring the appeal: see section 80 (2) (b). 3. To obtain a grant of leave to bring the appeal, the requirements of Part 6 of Schedule 4 to the Act must be satisfied. Clause 12 (1) of such part relevantly provides: 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 principles governing the application of clause 12 have been clearly summarised in Collins v Urban [2014] NSWCATAP 17. To satisfy the requirements of clause 12 (1) the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable; was against the weight of evidence; or significant new evidence has arisen, being evidence which was not reasonably available at the time the proceedings under appeal were being dealt with. Was there a substantial miscarriage of justice? 1. The Appeal Panel notes that the decision of the Tribunal under appeal extends for 43 pages. It records that there were attempts to conciliate the dispute when it came before the Tribunal on 19 September 2018. Both parties were represented at that time. The dispute could not be resolved and accordingly the Tribunal adjourned the application to a special fixture hearing and gave directions to the parties for the filing and exchange of documentary evidence upon which they intended to rely at the hearing. 2. The decision records that both parties complied with the Tribunal's direction for the filing and exchange of evidence. At the hearing an agent represented the landlords. The first named appellant appeared on behalf of both tenants. He provided evidence and other witnesses were called by both parties. 3. The Tribunal member noted that the tenancy was recorded in writing, being made on 13 May 2016 and was for a 12 month duration expressed to commence on 24 May 2016 and to conclude on 23 May 2017. The Tribunal member addressed the relevant law before dealing in detail with the claims brought by the landlords against the respondents. The issues related to the question of pest control and fumigation for the residential premises; replacement of an irrigation system and lawn restoration; repairs to a kitchen benchtop; replacement of the garage door lock; damage to bedroom number two door; damage to the dining room wall; cleaning of and damage to kitchen blinds; damage to a window in bedroom three; and replacement of a front porch pillar. 4. The Tribunal member did not accept all the claims made by the landlords against the tenants (appellants). An examination of the decision in respect of the specific items referred to above shows that the Tribunal Member considered the claim made by the landlords in respect of each item, accepted some claims, rejected other claims and, where appropriate, discounted some claims. The Appeal Panel considers that the adjustments made by the Tribunal member, working with the material available to him, were appropriate. 5. Significantly, the appellants placed no material before the Tribunal Member to rebut the claims made against them. The Tribunal Member's decision suggests that a bundle of material was provided. That bundle is not before the Appeal Panel. However, the appellants informed the Appeal Panel that there were no quotations provided to challenge the quotations upon which the landlords relied at the hearing before the Tribunal Member. 6. The decision made it plain that not all the landlords' claims were established. However the Tribunal was satisfied that the amount of $4591 represented the cost of damage and loss incurred by the landlords as a result of breaches by the appellants of their tenancy obligations. Specifically, the Tribunal Member made significant reductions to the major items claimed, namely reinstatement of the lawn and the kitchen benchtops. 7. In respect of the claim for the lawn reinstatement, the Member rejected the landlords' claim for $5,863 for lawn restoration and irrigation system repair. Because the irrigation system had not been referred to in the start of tenancy condition report, no allowance was made for that item. As to replacement of the lawn, the Tribunal Member carefully itemised amounts which the Tribunal considered to be appropriate, arriving at an amount of $1,724. The Tribunal's reasoning is clearly stated in paragraph [69] of its decision. 8. In calculating an amount for the cost of repairing the lawn, the Member made a number of assumptions as to the costs of materials and labour. The appellants' challenge to that calculation was founded upon evidence they had now obtained as to the prices at which the materials could be acquired. That evidence would have been available at the time of the hearing and was not put before the Tribunal. 9. In respect of the kitchen benchtop, a claim of $3,500 was made. The Tribunal substantially reduced the claimed amount, allowing $2,000. The reasoning for that reduction is clearly set out in paragraph [78] of the original decision. 10. In calculating the appropriate compensation for the damage to the benchtop, the Tribunal Member accepted a quotation tendered by the landlords for the installation of a new benchtop and made adjustments to allow for inflation, depreciation and the fact that it was not necessary to replace the whole benchtop. The appellants challenged that calculation on the basis of quotations obtained, subsequent to the hearing, which they suggested indicated that the starting point for the calculation, that is the quotation tendered by the landlords, was excessive. Again, that evidence would have been available at the time of the hearing and was not put before the Tribunal. 11. The remaining items allowed by the Tribunal Member which are challenged by the appellants were relatively small and supported by appropriate quotations. Observations 1. The Appeal Panel notes that the evidence upon which the parties sought to rely before the Tribunal had been provided prior to the hearing as directed by the Tribunal. Further, the appellants gave oral evidence at the hearing. It does not appear from the decision under review that the appellants were under any disability preventing them from providing all the evidence upon which they wished to rely. 2. The appellants informed the Appeal Panel that they did not appreciate that it was necessary to provide evidence to rebut claims of the landlord at the hearing before the Tribunal Member. It appears that they did not appreciate that the evidence which had been supplied to them, at least by the time of the conciliation conference, required rebuttal or that their views, presented by way of submission, as to the correctness or otherwise of the landlords' evidence, was not adequate evidence to meet the claims of the landlord 3. The evidence or material upon which the appellants now seek to rely was reasonably available at the time of the hearing. It does not constitute evidence of the kind referred to in clause 12 (1) (c) of Part 6 of Schedule 4. 4. The question of whether, in an internal appeal, an Appeal Panel has power to grant leave to allow fresh evidence, or should grant such an application, was considered in the matter of Building Professionals Board v Hans (GD) [2008] NSWADTAP 13. At [54], it was held that the Appeal Panel must be "affirmatively satisfied" that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the original hearing, "was likely to have produced a different result". Significantly, it was held that it was not enough "merely to show that the further evidence is "useful" or that its admission would have given rise to a "real chance that the Tribunal would have reached a different decision". 5. Even if the material constituted "fresh evidence" in the sense that it was not reasonably available at the time of the hearing, the Tribunal is not satisfied that its admission would comply with the tests set out in the above decision. It follows that we do not grant the appellants leave to rely upon the additional material. Extension of time 1. By virtue of rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW), the notice of appeal should have been filed within 14 days of the decision, since this was a matter arising under the Residential Tenancies Act 2010 (NSW). The appellants have provided an explanation for the delay, which the Appeal Panel accepts. The Appeal Panel notes that the landlords do not object to the grant of an extension of time. 2. The principles concerning the exercise of the unfettered discretion given to the Tribunal under section 41 of the Act has been considered in Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70 at [72] to [74], and also in Jackson v Land and Housing Corporation [2014] NSWCATAP 22. In summary, the Appeal Panel is required to consider the length of the delay; the reason for the delay; and the prospects of success, namely whether the appellant's have a fairly arguable case; and the extent of any prejudice suffered by the respondent. 3. The delay in bringing the appeal is short, and the appellant's reasons for the delay are accepted. The landlords do not assert prejudice. Accordingly the Appeal Panel in the exercise of its discretion under section 41 of the Act extends to 9 January 2019 the time for commencement of the appeal. Should leave to appeal be granted? 1. The Appeal Panel must apply legal principle when determining whether a grant of leave should be granted. Such principles were clearly stated in Temple v AMR Motors Pty Ltd [2017] NSWCATAP 221 at [54] – [59] as follows: 54. We have earlier stated that the grant of leave to appeal requires the grant to be considered in a principled manner. The principles that guide the grant of leave have been usefully stated and summarised in the Appeal Panel's decisions in Collins v Urban [2014] NSWCATAP 17. Like the present appeal, the appeal considered in that case was one brought from the Consumer and Commercial Division of the Tribunal. The decision therefore necessitated the consideration of both s 81(2)(b) of the Tribunal Act as well as cl 12 of Sch 4 to the Act. As the opening word of cl 12(1) state, leave is to be granted "only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice" for one or more of the reasons set out in paragraphs (a), (b) and (c) of the subclause. 55. The Appeal Panel stated in Collins v Urban at [76] that the power to grant leave will be engaged by reference to any of the circumstances identified 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 by the appellant had the relevant circumstances in para (a) or (b) not occurred." Reference is made to the fresh evidence provision in para (c) of the subclause but that is not a circumstance that arises in the present appeal, there being no indication by the Appellants of reliance upon "fresh evidence" satisfying the provisions of that paragraph. 56. At [77] of Collins v Urban, the Appeal Panel made further observations as to the operation of cl 12(1)(a) and (b). In relation to para (a) it was observed that a denial of procedural fairness would identify a decision that was "not fair and equitable". There was not and could not be any suggestion of a denial of that kind in the present case, given the lengths to which the Member went to accommodate and consider evidence, particularly "expert" evidence, sought to be led by all parties. 57.When considering cl 12(1)(b), the Appeal Panel said this at [77]: "(2) The decision under appeal can be said to be 'against the weight of evidence'…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." 58.For reasons we have given, we do not find that the Member's decision is one against the weight of evidence as that concept is considered in Collins. While there was a contest in the evidence led by the parties, it cannot be said that "in its totality" it preponderates against the conclusion reached by the Member. The process of evaluating evidence undertaken by him was conventional and, on the material before us, does not demonstrate perversity in the findings that he made. 59. The general principles that should inform the grant of leave to appeal where the provisions of cl 12(1)(a), (b) or (c) are engaged were also considered by the Appeal Panel in Collins v Urban. As the Appeal Panel there recorded, the statutory language of s 80(2)(b) of the Act affords a discretion on the part of an Appeal Panel to grant leave to appeal such that even if the requirements of cl 12 are satisfied, the Appeal Panel must still consider whether the discretion afforded by the section should be exercised (at [80]-[81]). Conclusion 1. This appeal concerns a disagreement with the findings of the Tribunal Member. The findings he made were open to him on the evidence and the reasons provided are readily comprehensible. The Appeal Panel can find no defect or fault in the reasons. The decision was arrived at after procedural fairness had been afforded to the parties. It was not the fault of the Tribunal Member that the appellants did not provide him with appropriate evidence to challenge the landlords' claims. An appeal is not the opportunity for a litigant to have a second hearing on the same issues, supplemented by material which would have been available at the time of the first hearing. 2. The Appeal Panel is not satisfied that refusal to grant leave would result in any substantial miscarriage of justice for any of the reasons set out in clause 12(1)(a), (b) or (c) of Schedule 4 Part 6 to the Act. Accordingly leave to appeal on a ground other than a question of law is refused. 3. The orders of the Appeal Panel are: (1) The time for commencement of the appeal is extended to 9 January 2019. (2) Leave to appeal 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: 23 April 2019