King v Dabcevic [2019] NSWCATAP 181

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: King v Dabcevic [2019] NSWCATAP 181 Hearing dates: 7 February 2019 Date of orders: 17 July 2019 Decision date: 17 July 2019 Jurisdiction: Appeal Panel Before: R L Hamilton SC, Senior Member K Ransome, Senior Member Decision: 1. Leave to appeal refused. 2. Appeal dismissed. Catchwords: APPEAL - no question of law - leave to appeal on a ground other than a question of law – whether Tribunal's decision fair and equitable – whether Tribunal's decision against the weight of evidence – whether significant new evidence had arisen since the hearing below Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Elizabeth King (Appellant) Egon Dabcevic (Respondent) Representation: E King (Appellant in person) Ms Mees (Agent for the Respondent) File Number(s): AP18/47452 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 19 October 2018 Before: J Levingston, Member File Number(s): RT18/34503

REASONS FOR DECISION 1. The dispute underlying this appeal concerns the presence of mould in leased residential premises in Mosman, New South Wales. 2. The decision of the Tribunal the subject of the appeal was made on 19 October 2018 and dismissed the tenant's claim for a reduction of rent on the basis that she had failed to prove the presence of mould during the relevant period. In particular she had failed to prove that an anti-mould "fogging treatment was [in] sufficient to remove the mould and mould spores" [at par 16]. The decision was made under the Residential Tenancies Act 2010. 3. The Appeal Panel gets its jurisdiction from s 80 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) which provides in relevant part: (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. Note: Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a)…: 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. The appellant stated in her Amended Notice of Appeal that the Tribunal had made three errors of law: 1. that the Tribunal had failed to consider a report of the presence of mould during the relevant period; 2. that the Tribunal had failed to consider a claim for loss of amenity due to misrepresentation of the property for the term of the tenancy; and 3. that there was now a toxicology report available which was not available at the time of the hearing which demonstrates the presence of mould. 1. The appellant also seeks leave to appeal on two grounds: 1. that the Tribunal decision did not accept evidence of a report which established that mould was present during the relevant period. The inspection report related to a date preceding the relevant period; 2. that the Tribunal decision did not address the claim for loss of amenity due to misrepresentation of the property considering the intended use of the property. 1. The appellant also seeks to rely in the appeal on new evidence which was not before the Tribunal when it made its decision.