Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cook v Mintus Properties Pty Ltd [2019] NSWCATAP 179 Hearing dates: 22 May 2019 Date of orders: 17 July 2019 Decision date: 17 July 2019 Jurisdiction: Appeal Panel Before: A Bell, SC, Senior Member K Ransome, Senior Member Decision: We make the following orders: a) Grant leave to appeal; b) Appeal allowed; c) Order 1 made by the Tribunal on 21 February 2019 is discharged; d) Order that the respondent Mintus Properties Pty Ltd is to pay the applicant Ms Heather Cook the sum of $1,000 within 28 days of the date of this order. Catchwords: APPEAL – residential tenancy – whether tribunal decided claim under wrong section – no error as tribunal took most favourable approach to claimant - whether significant new evidence has arisen – whether decision against the weight of the evidence – failure to take uncontradicted evidence into account Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Cases Cited: Al-Daouk v Mr Pine Pty Ltd [2015] NSWCATAP 111 Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 Category: Principal judgment Parties: Heather Cook (Appellant) Mintus Properties Pty Ltd (Respondent) Representation: H Cook (Appellant in person) Ray White Jervis Bay (Agent for the respondent) File Number(s): AP 19/11649 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 21 February 2019 Before: J Levingston, Member File Number(s): RT 18/49362 reasons for decision Introduction 1. The appellant, Ms Heather Cook (Ms Cook), was the tenant of residential premises at Vincentia in New South Wales (the premises). The respondent, Mintus Properties Pty Ltd (Mintus) is the landlord of the premises. 2. Ms Cook rented the premises under a residential tenancy agreement made on 27 October 2018 from that date until 2 March 2019 when, by agreement with Mintus, the tenancy was terminated before its fixed term. The rental was $320 per week. 3. Ms Cook made an application to the Tribunal dated 19 November 2018 for orders under section 45 of the Residential Tenancies Act 2010 (the Act) reducing the rent payable on the grounds that the rent had abated under section 43(2) of the Act. Ms Cook also sought orders under section 65 (1)(a) of the Act that the landlord carry out certain repairs. 4. On 11 December 2018 the Tribunal made interim orders for inspection and repair of smoke alarms and electrical power outlets. 5. Ms Cook's claim was heard by the Tribunal on 21 February 2019. The Tribunal ordered Mintus to pay compensation to Ms Cook of $100 for fence disrepair and ordered Mintus to carry out repairs to the boundary fence. All other claims by Ms Cook were dismissed. 6. Ms Cook has sought leave to appeal from those orders on the grounds that the decision was not fair and equitable, was against the weight of evidence and that significant new evidence has arisen which was not reasonably available at the time of the hearing before the Tribunal. 7. Ms Cook represented herself at the hearing of the appeal. Mintus was represented by Ms L. Nelson from Ray White Jervis Bay, the managing agent, with the assistance of Ms K. Bigges from that agency. The decision of the Tribunal 1. Ms Cook's application to the Tribunal made a number of complaints about the state of the premises relating to the: 1. veranda; 2. boundary fence; 3. grass; 4. alleged filthy condition of the premises; 5. pest control; 6. power points and smoke alarms; 7. broken window; 8. mould; and 9. timeliness of repairs. 1. In addition, a few days before the hearing, Ms Cook sought to amend her claim to allege the presence of asbestos in the building wet areas. The Tribunal refused to permit this amendment and rejected the tender of evidence by Ms Cook relating to asbestos. The Tribunal's reasons for taking this course were stated at [13] to be because Ms Cook's evidence had not been served in accordance with the Tribunal orders for service of evidence; the evidence was served a few days before the hearing; it would be unfair to the landlord which did not have time to investigate the allegations; and the evidence was weak and of no probative value (being something Ms Cook said she had been told by a tradesman, namely that asbestos could be present). The Tribunal stated that to allow the evidence of asbestos would have required an adjournment of the hearing to permit the landlord to investigate the allegation so that it was not unduly prejudiced, which might have caused an undue waste of time and resources. The Tribunal took into account the guiding principle identified in section 36 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 2. Although Ms Cook's claims were made under section 45 of the Act, the Tribunal stated at [1] that her claims could also be considered as claims arising from breaches of the landlord's general duty under section 63 of the Act to provide and maintain the premises in a reasonable state of repair, with a remedy in compensation under section 187 (1)(d) of the Act. 3. The Tribunal found at [5] that the premises were two storey residential premises constructed in the 1960s and now about 50 years old. The premises are located approximately 100 m from the beach. 4. The Tribunal stated at [31] that the principal issue at the hearing was the condition of the front veranda, which Ms Cook alleged was in such a state of disrepair as to be unsafe. 5. The Tribunal found at [6] that the veranda at the front of the premises on the first floor was made of timber. The veranda had a handrail at waist height and a second rail at about half the height. 6. The Tribunal held at [32] that there was no evidence of a danger and no sufficient evidence to establish the allegation that the front veranda was unsafe. It was held that the veranda was showing signs of wear consistent with its age and locality but that there was no evidence of a danger. 7. The Tribunal held at [34]-[36] that whilst there was an obvious fall risk from the veranda by contemporary community standards, there was no evidence that the current building code applied to the veranda or that there was a requirement to upgrade the hand rails to the standard in the current building code so as to provide a conforming safety barrier. 8. The Tribunal held at [37] that there was no evidence that the veranda was not safe for Ms Cook's purpose of using it as a veranda. The Tribunal also held that there was no evidence that Mintus had not exercised reasonable care and skill in making the veranda available for Ms Cook's use arising from non-conformance with current building code requirements. 9. The Tribunal held at [39] that the veranda was in a reasonable state of repair having regard to the matters set out in section 63 of the Act and that the claim for compensation failed. 10. In relation to the boundary fence, the Tribunal found at [7] that the boundary fence of the premises was timber post and rail with palings, showing weathering consistent with a timber fence about 50 years old. The Tribunal found that the fence was serviceable and in good condition for its age but that some railings were coming out of the posts and some palings were missing. 11. The Tribunal held at [40] that the fence was in a state of minor disrepair and should have been fixed by replacing missing palings and with suitable remedial work to stabilise the fence where the rails were worn and coming away from the posts. The Tribunal held at [50] – [51] that the fencing disrepair claim had a seriousness of 2 on a scale of 1 to 10 and awarded compensation of $100. 12. The Tribunal dismissed all of Ms Cook's other claims for compensation. In summary: 1. there was no evidence that the grass was unduly longer than might be expected in late October during the growing season (at [41]); 2. photographs tendered in evidence did not support the allegation that the premises were filthy. The premises had been professionally cleaned prior to the commencement of the tenancy (at [42]); 3. the level of infestation by cockroaches and silverfish was not more than what might be expected in premises of that age and location (at [ 43]); 4. Ms Cook's evidence that the smoke alarms had not been fixed was not accepted. The Tribunal preferred the evidence by Mintus that it had sent trades to fix the smoke alarms (at [45]); 5. a broken window was fixed in a reasonable time having regard to the fact that it occurred immediately before Christmas (at [46]); 6. Ms Cook's claims about mould were not accepted and were in any event trivial (at [47]); and 7. except in relation to the boundary fence, Mintus had attended to Ms Cook's requests for repair in a generally timely manner (at [48]). Submissions on appeal 1. Mrs Cook submitted that she should be given leave to appeal because new evidence had come to light since the Tribunal's decision, principally in relation to the issue of asbestos. Ms Cook stated that after she had received the orders of the Tribunal she commissioned a report by Environment & Natural Resource Solutions (ENRS). ENRS reported on 1 March 2019 that it had conducted a site inspection on 28 February 2019, which identified material forming the bathroom sub-floor and the ceiling of the ground floor garage to be of a fibrous nature characteristic of asbestos-containing material. The report stated that the area should be subject to an exclusion zone until a clearance certificate was issued. Ms Cook stated that she was advised by Singleton Shire Council on 10 April that its testing confirmed that the material contained asbestos and that the Council had issued a cease use order on the property. 2. Ms Cook submitted that the Tribunal should have adjourned the hearing so that further evidence in relation to the asbestos issue could be gathered. 3. Ms Cook submitted that since receiving the orders of the Tribunal further significant new evidence was that she had been told on 10 April 2019 that the Council had issued a rectification order for the veranda. 4. Ms Cook also submitted that she should be granted leave to appeal because the decision was not fair and equitable and was against the weight of evidence. In support of this submission, Ms Cook referred to evidence in the form of photographs, quotes from licensed builders and other tradesmen and emails which had been tendered in evidence before the Tribunal. In particular, Ms Cook referred to evidence in the form of photographs and quotes to repair the veranda which identified a safety risk. 5. Ms Cook submitted that the Tribunal should not have proceeded to determine the matter under section 63 of the Act but instead should have proceeded under section 44 of the Act. Ms Cook said that she had mistakenly referred to section 45 of the Act in her application but had meant to refer to section 44. 6. Mintus submitted that it had been given only just over 24 hours' notice of Ms Cook's application to amend to include an alleged asbestos claim prior to the Tribunal hearing and submitted that the Tribunal correctly refused to allow the amendment. Furthermore, Mintus pointed to a document establishing that Shoalhaven Council had in fact issued a draft stop order on 4 April 2019 in relation to the bathroom subfloor. Mintus also pointed to a report from Asbestos Reporting South Coast dated 23 April 2019 which stated that the bathroom subfloor was non-friable asbestos in the form of compressed fibro sheeting and that hazards and/or any airborne fibre would have been present when penetrations were made many decades ago. The report recommended that the exposed edges of the penetrations and delamination at the underside of the compressed fibro flooring should be sealed with PVA or paint.The report also stated that the mere presence of asbestos in the building did not mean that the health of the occupants was in danger. Mintus referred to a subsequent clearance certificate issued by Asbestos Reporting South Coast dated 8 May 2019 after the bathroom subfloor had been encapsulated with PVA as recommended by the report dated 23 April 2019. 7. Mintus submitted that the decision of the Tribunal was fair and equitable and that all of the findings were supported by evidence. Mintus also pointed out that it had agreed to release Ms Cook from the remainder of her fixed term lease which was due to end on 26 April 2019 and that Ms Cook had vacated the premises on 2 March 2019. Consideration 1. Although Ms Cook has sought leave to appeal, it is appropriate that we consider first her submission that the Tribunal proceeded to consider her claim under the wrong section of the Act. That is because if this submission is correct, this would amount to an error of law by the Tribunal in respect of which Ms Cook would not require leave to appeal. 2. In our opinion there was no error by the Tribunal in declining to consider Ms Cook's claim under section 45 of the Act, as she had nominated in her application, and instead considering Ms Cook's claim as one for breach of the landlord's duty to provide and maintain the premises in a reasonable state of repair under section 63 of the Act. On the contrary, Ms Cook was bound to fail in her claim under section 45 because that section only applies where the rent has abated in the circumstances set out in section 43 (2) of the Act. None of those circumstances were applicable to Ms Cook. Furthermore, there is no indication in the Tribunal's reasons that Ms Cook at any stage indicated that she was making an application under section 44 of the Act. An application under section 44 would also have almost inevitably failed as there was no evidence led by Ms Cook as to the general market level of rents for comparable premises in the locality. We consider that the Tribunal took the most favourable approach to Ms Cook by dealing with her claim as one to be considered under section 63 of the Act. 3. The remaining contentions made by Ms Cook in relation to the Tribunal's decision do require leave to appeal. In the case of an application for leave to appeal from a decision of the Consumer and Commercial Division of the Tribunal, under clause 12 (1) of Schedule 4 of the NCAT Act the Appeal Panel only has a discretion to grant leave to appeal if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. 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 relation to the asbestos issue, in our opinion for the reasons given by the Tribunal in its decision, there was no miscarriage of justice in the Tribunal's decision to refuse the amendment raising this issue and to refuse to permit the tender of evidence relating to it. In our opinion, in the circumstances which existed at the time there was no unfairness in the Tribunal declining to adjourn the hearing at the last minute to enable the issue to be raised. 2. Furthermore, in our opinion the evidence which Ms Cook has now sought to advance on the asbestos issue was neither significant nor evidence which was not reasonably available at the time of the Tribunal hearing within the meaning of the established legal test. 3. In our opinion the evidence was not significant because it did not establish that any asbestos present at the premises was a safety risk. Indeed, the material referred to by Mintus satisfies us that there was no safety risk to Ms Cook by reason of asbestos. 4. In Al-Daouk v Mr Pine Pty Ltd [2015] NSWCATAP 111 at [23]-[25] the Appeal Panel explained that the test of whether evidence is reasonably available within the meaning of clause 12 (1)(c) is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained it. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused to leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. 5. In our opinion the evidence which Ms Cook now points to concerning asbestos is evidence which could have been obtained with reasonable diligence prior to the hearing in the Tribunal and indeed at a time when raising the issue would not have disrupted the hearing. 6. In relation to the veranda, in our opinion the Tribunal was in error in concluding at [32] that there was no evidence of a danger and no sufficient evidence that the structure was unsafe. Ms Cook had tendered a quotation dated 9 November 2018 from Mr Anthony Norton of Wood & I which included the statement: "I highly recommend taking steps to repair these balconies as they are in poor condition and a safety risk to all concerned ". 1. Whilst the other repair quotations tendered in evidence did not identify a safety risk, there was no evidence contradicting the conclusion expressed by Mr Norton. 2. In these circumstances, in our opinion the conclusion by the Tribunal that there was no sufficient evidence that the veranda was unsafe was against the weight of evidence. Furthermore, in our opinion Ms Cook suffered a substantial miscarriage of justice because of the Tribunal's failure to take Mr Norton's uncontradicted opinion into account. 3. We consider that we are in a position to make an award of damages under section 63 of the Act in respect of the failure of the landlord to maintain the veranda in a reasonable state of repair. In our opinion it is relevant that the premises had ocean views from the front veranda, which was plainly an important component of Ms Cook's enjoyment of the premises. Ms Cook was a tenant at the premises for 18 weeks. Doing the best that we can, we assess that Ms Cook should be awarded damages of $900 for the landlord's failure to maintain the veranda in a reasonable state of repair so that Ms Cook was able to enjoy the use of the veranda whilst she was a tenant. 4. In our opinion, all the other complaints made by Ms Cook in relation to the state of the premises were not made out, for the reasons given by the Tribunal in its decision. Orders 1. We make the following orders: 1. Grant leave to appeal; 2. Appeal allowed; 3. Order 1 made by the Tribunal on 21 February 2019 is discharged; 4. Order that the respondent Mintus Properties Pty Ltd is to pay the applicant Ms Heather Cook the sum of $1,000 within 28 days of the date of this order. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 17 July 2019