Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lin v Munro [2019] NSWCATAP 127 Hearing dates: 14 May 2019 Date of orders: 20 May 2019 Decision date: 20 May 2019 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President A Suthers, Principal Member Decision: (1) Leave to appeal is refused; (2) Appeal dismissed; (3) The stay on the operation of the order made on 5 March 2019 directing that the bond be paid to the tenant is lifted and modified in terms of Order 4 below; (4) As the bond is currently held by the Tribunal, the Registrar is directed to pay the whole of the bond to the tenant (the respondent to this appeal) Catchwords: Appellant's obligation to provide evidence in support of grounds under clause 12 of schedule 4 of the Civil and Administrative Tribunal Act 2013 Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Cases Cited: Not applicable Texts Cited: Not applicable Category: Principal judgment Parties: Xiao Hong Lin (Appellant) Arielle Munro (Respondent) Representation: Not applicable File Number(s): AP 19/11916 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 05 March 2019 Before: D Barnetson, General Member File Number(s): RT 18/51177 REASONS FOR DECISION Background 1. This appeal arises out of a residential tenancy agreement dated 9 February 2018 in respect of "rear house, XX Carrol Road..." for a period of six months commencing on 9 February 2018 and ending on 9 August 2018. Under that agreement the appellant was the landlord and the respondent to this appeal the tenant. We shall refer to each of the parties as the landlord and the tenant. 2. The tenant brought an application to the Tribunal for compensation and for return of the rental bond ($1,560.00). On 8 February 2019 the Tribunal ordered that Rental Bond Services is directed to pay the tenant the whole of the bond. In addition, the record discloses that the Tribunal found the tenant owed the landlord the sum of $780.00 for rent arrears from 31 August 2018 to 14 September 2018. The Tribunal also found that an amount of compensation was payable to the tenant by reason of breaches of the agreement by the landlord. The two claims cancelled each other out. The record discloses that reasons were given orally. 3. On 5 March 2019 the Tribunal (constituted by the same Member) set aside the orders made on 8 February 2019. Instead the landlord was ordered to pay to the tenant the bond of $1,560.00. The record discloses brief reasons, namely that the landlord had not lodged the bond with the Rental Bond Board and had retained the bond. Notice of Appeal 1. The landlord lodged a Notice of Appeal on 11 March 2019. At a directions hearing the Appeal Panel has stayed the operation of the order made on 5 March 2019 on the condition that on or before 22 March 2019 the landlord pays to the Tribunal the amount of the bond. The landlord has done so. The Grounds of Appeal 1. In the form of the Notice of Appeal the appellant is required to identify the orders challenged on appeal. In this case, the landlord has stated that the Tribunal has refused the landlord's claim for water usage, refused the landlord's claim for cleaning fees and refused the landlord's claim for rent up until 21 September 2019. 2. Under the heading "Ground of Appeal" the landlord has stated that the landlord appeared by telephone. The landlord also states that she has water reading meter photos which could not be shown to the Tribunal because she appeared by telephone. The form also states that the landlord has a cleaning invoice which similarly could not be shown to the Tribunal and a rent ledger. 3. In substance, the landlord claims an order that the tenant pay water usage charges totalling $1,113.19, cleaning charges of $700.00 and rent to 21 September 2019 totalling $1,225.71. As the rent was $390.00 per week this claim appears to be for slightly in excess of three weeks rent. Reply to Appeal 1. The tenant has filed a Reply to Appeal which, in summary states: 1. The landlord did not provide any evidence to support the claims being made. The landlord did not give notice under s 165 of the Residential Tenancies Act, 2010 (the RT Act); 2. The landlord was unable to show documents to the Member at the hearing because she failed to provide copies in advance of the hearing as directed by the Tribunal; 3. The property is not separately metered and thus the landlord was not entitled to pass on the water charge; 4. The landlord failed to provide any evidence that the property required cleaning after the tenant vacated, failed to provide an ingoing/outgoing condition report and failed to provide an itemised invoice to justify the amounts claimed; and 5. Leave to appeal should not be granted. 1. The tenant's reference to the property not being separately metered is presumably intended to draw attention to the provisions of s 39 of the RT Act. That section provides: 39 Water usage charges payable by tenant (1) A tenant must pay the water usage charges for the residential premises, but only if: (a) the premises are separately metered or the premises are not connected to a water supply service and water is delivered to the premises by vehicle, and (b) the premises contain water efficiency measures prescribed by the regulations for the purposes of this section, and (c) the charges do not exceed the amount payable by the landlord for water used by the tenant. (2) A tenant is not required to pay the water usage charges unless the landlord gives the tenant a copy of the part of the water supply authority's bill setting out the charges, or other evidence of the cost of water used by the tenant. (3) A landlord must give the tenant not less than 21 days to pay the water usage charges. (4) A tenant is not required to pay the water usage charges if the landlord fails to request payment from the tenant within 3 months of the issue of the bill for those charges by the water supply authority. (5) Subsection (4) does not prevent a landlord from taking action to recover an amount of water usage charges later than 3 months after the issue of a bill for those charges, if the landlord first sought payment of the amount within 3 months after the issue of the bill. (6) A landlord must ensure that the tenant receives the benefit of, or an amount equivalent to, any rebate received by the landlord in respect of any water usage charges payable or paid by the tenant. Note. Tenants under social housing tenancy agreements may be subject to different provisions in relation to the payment of charges for water usage (see Division 3 of Part 7). (7) This section is a term of every residential tenancy agreement. Landlord's Submissions 1. The landlord has provided a statement as to the history of the dispute. The following is a summary of the statement insofar it is relevant to this appeal: 1. The tenant rented the granny flat at the rear of the property. The tenant paid rent to 30 August 2018 but the key was not returned until 21 September 2018; 2. Rent was left outstanding in the sum of $1,225.71 for the period from 31 August to 21 September 2018; 3. The amount of compensation which the Tribunal awarded the tenant (totalling $780.00) concerned the tenant's requirement for certain repairs to be undertaken. The landlord says that she attempted to undertake those repairs but her contractor was denied access to the property; 4. There was evidence of the property being clean at the commencement of the tenancy but at the end of the tenancy, the landlord was required to spend money cleaning and removing rubbish; 5. The landlord claims to have installed an "internal water meter" for meter reading and claims to have requested the tenant to pay $1,113.19 for water; and 6. The landlord has also provided some photographs. Tenant's Submissions 1. The Appeal Panel made directions for the tenant to provide submissions by 26 April 2019. No submissions have been provided. The tenant's position is as outlined in the Reply to Appeal. The First Instance Hearing 1. Although the Appeal Panel directed the sound recording of the first instance hearing to be provided, we were not given a copy of the sound recording. We note that the record discloses that oral reasons were given. We have obtained the first instance Tribunal file and note the following: 1. The proceedings were commenced by application filed by the tenant on or about 22 November 2018; 2. There was a directions hearing on 18 December 2018 at which both parties were present. Directions were made for the landlord to file evidence in January 2019. The landlord filed evidence on 15 January 2019; 3. The hearing occurred on 8 February 2019. The tenant appeared in person and the landlord by telephone; 4. The Rental Bond Board sent an email to the Tribunal on 11 February 2019 advising that it did not hold the bond; 5. The proceedings were listed again on 5 March 2019 and both parties were present in person; and 6. Orders were made on 5 March 2019 setting aside the earlier order of 8 February 2019 and in its place ordering the bond to by paid by the landlord to the tenant. Hearing of the Appeal 1. At the hearing of the appeal, the landlord appeared in person with a Mandarin interpreter. The tenant appeared by telephone. 2. In respect of the claim for outstanding rent, the landlord submitted that the Member had made the wrong calculation and that further rent of $1,225.75 was owed. Both parties informed the Appeal Panel that the Member was required to consider conflicting evidence concerning the date possession of the premises was provided by the tenant. 3. In respect of the claim for compensation for cleaning charges, the landlord acknowledged that there was a discussion at the hearing concerning the documents the landlord had provided, but claimed that at one point the Member said that she could not find an invoice. 4. In respect of the claim for water usage, the landlord explained that a meter had been installed so that the volume of water used by the tenant could be calculated and distinguished from the volume of water used by the front premises. The landlord then calculated the amount to be charged based upon splitting the volume proportionally to the total billed. The landlord stated that efficiency measures had been installed and she had a letter from a plumber confirming that the water efficiency requirements were complied with. That letter has not been provided to the Tribunal. 5. The tenant stated that at the first instance hearing there was a dispute and discussion concerning the claim for cleaning charges and that she understood that the claim for water had been dismissed because the Member decided that the premises were not separately metered. Consideration 1. The Civil and Administrative Tribunal Act 2013 (NCAT Act) regulates appeals from decisions of the Consumer and Commercial Division through the provisions of s 80 and cl 12 of Sch 4. An appeal as of right lies on any question of law, or with leave only on the grounds stipulated in cl 12 of Sch 4. 2. No questions of law have been identified and nor do we discern that there are any. We are of the understanding that the landlord's appeal relies upon cl 12 of Sch 4 of the NCAT Act. It provides: Part 6 Appeals 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). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if: (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. Clause 12 makes it clear that new evidence cannot be considered on an appeal unless that evidence was not reasonably available at the first hearing. In this case, directions were made by the Tribunal for the provision of evidence to be filed and served. The landlord had an opportunity to provide evidence and did so. The landlord participated in the hearing in February 2019 by telephone. As we have not been provided with a transcript of the hearing, we cannot determine what the Tribunal's reasons were. However, we note that the record states "detailed oral reasons were given". 2. We refer to the Grounds of Appeal summarised earlier. There, the landlord states that photos of the water meter could not be shown to the Tribunal because the landlord was on the telephone. We note that photographs were received by the Tribunal on 4 March 2019. It is not clear why those photographs were not included in the material supplied on 15 January 2019. We also note that the landlord states that a cleaning invoice could not be shown because the landlord was appearing by telephone. However, the material provided on 15 January 2019 includes a cleaning invoice. Finally, the Grounds of Appeal refer to a rent ledger. That too was included in the material provided on 15 January 2019. 3. In these circumstances, it appears that the landlord's statement that material could not be considered because she appeared by telephone is inaccurate, in that, although the landlord did appear by telephone, the material was already with the Tribunal (except in the case of the water meter photos which were before the Tribunal at the second hearing). 4. Without the sound recording or a transcript of the reasons provided orally, it is not possible to form an opinion as to whether any of the grounds set out in cl 12 of Sch 4 of the NCAT Act are available to the landlord. In our view, the landlord has had a reasonable opportunity to provide evidence of the Tribunal's reasons at first instance in support of her appeal, but has not done so. 5. In short, we are not satisfied that the provisions of cl 12 of Sch 4 of the NCAT Act are engaged in the context of this appeal. 6. Although issues of procedural fairness were not raised by the landlord, we have formed the opinion that the landlord has not suffered any procedural unfairness. Directions were made for the provision of evidence and those directions were largely complied with. Both parties appear to confirm that the Member was aware of and had considered the evidence. 7. The result is that there is no evidence in support of the landlord's contentions such that we should give leave to appeal by reason of being satisfied that the landlord has suffered a substantial miscarriage of justice. 8. In addition, in respect of the water claim, we have reservations as to whether that claim would have been successful. We are not satisfied that the provisions of s 39 of the RT Act have been complied with. The premises are arguably not separately metered (a requirement under s 39(1)(a)) because the meter only disclosed the volume of water used and not the cost of that water, there was no evidence that water efficiency measures have been installed (s 39(1)(b)) or that the claim does not exceed the amount permitted under s 39(4). Furthermore, how the amount claimed has been calculated is not clear on the evidence. 9. We propose to order that leave to appeal be refused. The Bond 1. The Appeal Panel has previously ordered a stay on the operation of the order requiring the landlord to pay the bond to the tenant. That stay was given on the condition that the landlord paid the bond to the Tribunal. We understand that the Tribunal currently holds the bond. Accordingly, it will be necessary to lift the stay and to direct the Registrar to pay the bond to the tenant. Orders will be made appropriately. 2. The Appeal Panel makes the following orders: 1. Leave to appeal is refused; 2. Appeal dismissed; 3. The stay on the operation of the order made on 5 March 2019 directing that the bond be paid to the tenant is lifted and modified in terms of Order 4 below; 4. As the bond is currently held by the Tribunal, the Registrar is directed to pay the whole of the bond to the tenant (the respondent to this appeal). 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: 20 May 2019