Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jin v Jupiter St James Pty Ltd [2019] NSWCATAP 210 Hearing dates: 30 April 2019 Date of orders: 19 August 2019 Decision date: 19 August 2019 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member J McAteer, Senior Member Decision: (1) The application for leave to appeal on grounds other than question of law is refused. (2) The appeal is dismissed. (3) The stay on the operation of order (10) made on 15 January 2019 is lifted. Catchwords: APPEAL – residential tenancy - termination notice based on frustration of agreement - landlord's claim for break fee – tenant's claim for abatement of rent Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2010 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Collins v Urban [2014] NSWCATAP 17Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 Vashisht & Sharma v Edwards [2016] NSWCATCD 86 Texts Cited: Nil Category: Principal judgment Parties: Jia Jin (Appellant) Jupiter St James Pty Ltd (Respondent) Representation: Solicitor: Appellant (Self Represented) L Cipollone (Respondent) (Agent) File Number(s): AP 19/04371 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Nil Date of Decision: 15 January 2019 Before: P French, General Member File Number(s): RT 18/40740, RT18/41690 reasons for decision Introduction 1. This internal appeal is from a decision in the Consumer and Commercial Division of the Tribunal determining competing claims brought by the landlord and the tenant relating to the termination of a residential tenancy agreement for residential premises in Potts Point NSW. 2. In proceedings RT 18/40740 lodged on 20 September 2018 Jupiter St James Pty Ltd (the landlord) sought an order under s 106 of the Residential Tenancies Act 2010 (the RT Act) that Mr Jia Jin (the tenant) had abandoned the premises on 30 August 2018, and that it was entitled to payment of a break fee equivalent to six weeks rent. 3. In proceedings RT 18/41690 lodged on 26 September 2018 the tenant sought an order under s 109 of the RT Act that the residential tenancy agreement terminated on the ground that the premises had become uninhabitable, an order that the landlord repay rent paid in advance, an order under s 45 of the RT Act that the rent be abated by 50% for the period 16 July 2018 to 30 August 2018, and an order that the landlord pay compensation for the cost of a hotel room occupied between 15 to 29 August 2018. The tenant also sought an order for costs thrown away by the vacation of a special fixture hearing on 21 November 2018 due to the landlord's failure to file and serve evidence in accordance with Tribunal directions. 4. Whilst the Tribunal did not find in favour of the tenant's main claim, the Tribunal found that the physical problems with the premises in the period 17 July 2018 to 30 August 2018 (when he eventually left the premises), amounted to a breach of the tenant's right to quiet enjoyment of the premises. The Tribunal found that the loss equated to 25% of the value of the tenancy and ordered compensation for him to that amount for the relevant six week period. The tenant was entitled to a refund of rent paid in advance. A claim for other costs arising from the claim (such as costs of hotel accommodation) was rejected. 5. The Tribunal found that the tenant did not have grounds to issue a termination notice in reliance on s 109 of the RT Act, and in any event the water leak and mould present in the premises was not so serious as to render the premises wholly or partly uninhabitable, and ordered the tenant to pay to the landlord a break fee of six weeks rent. 6. The Tribunal ordered the landlord to pay the tenant's costs of the hearing on 21 November 2018. Background to the dispute 1. The appellant was the tenant in strata residential premises under a residential tenancy agreement that commenced in 2016 initially for a fixed term, then continuing on the basis of a periodic agreement. On 21 June 2018 the parties entered into a further fixed term agreement of 12 months duration, expressed to commence on 16 July 2018 and end on 15 July 2019. The residential premises had two bedrooms, the main bedroom with ensuite, and a second bedroom and bathroom and a combined lounge and dining area. 2. On 16 July 2018 the tenant noticed an area of carpet in the main bedroom near the ensuite was wet, and he contacted the agent by email, stating that his mother had left Sydney on 5 July and he hardly went into the main bedroom. The agent arranged for a plumber to attend on 17 July, however he was unable to detect the source of the water leak. The strata manager arranged for another plumber to attend on 18 July 2018, and he identified the source of the leak and repaired it the following day, 19 July 2018. Two separate 2 x 1 metre sized pieces of carpet were water damaged and removed and the area cleaned later on 19 July 2018. On 25 July 2018 after an insurance assessment and inspection the day prior, the area was sanitised and deodorised and the carpet tack strips were replaced. Arrangements were subsequently made to replace the missing carpet sections. 3. The tenant complained about the smell of damp and mould throughout this period and the communication between him and the landlord's agent increased as issues with other items in the premises, being the vanity unit and skirting board, were identified. By 30 July 2018 the insurance claim covered the damaged timber cupboard of the vanity in the ensuite. Repairs occurred in the period up to 15 August 2018. After that time the tenant took up temporary accommodation in a hotel. 4. The tenant complained to the agent about the mould smell, and on 5 August 2018 requested her to arrange a mould eradication specialist to deal with the mould issue. He stated he had been experiencing itchy eyes and sore throat. On 8 August 2018 the tenant provided a medical certificate stating that the tenant was unable to work. On 14 August 2018 the tenant emailed the agent to say his health was getting worse, and he proposed going back to a periodic agreement, with him to give three weeks notice. The agent's record of telephone calls, which was not disputed, was that she said that the agreement remained a fixed term agreement. On 13 or 14 August 2018 the tenant had applied to rent another apartment in the same residential complex. On 15 August 2018 the tenant left the premises and moved to a CBD hotel. An inspection by a mould cleaning agent occurred on 16 August 2018 and a report was written concerning treatment. The tenant's mother returned from overseas and occupied the premises from 21 August until 29 August 2018, when she and the tenant moved out and the tenant advised the agent the next day that he had terminated the lease. 5. The tenant moved out of the premises on 29 August 2018. On 30 August 2018 he obtained a medical certificate stating that he had developed an allergic reaction to both his eyes, symptoms occurring since early August 2018, and he notified the agent by email he was terminating the tenancy agreement immediately on the ground the premises were uninhabitable due to a significant health risk. The tenant hand delivered to the agent the keys, and a termination notice terminating the tenancy immediately. The decision under appeal 1. The Tribunal recorded the procedural history of the applications, noting that both parties had been given leave to be legally represented. The Tribunal noted the documentary evidence provided by the parties, and gave reasons for the decision to allow the admission of certain documents provided during the course of the hearing on 11 December 2018, and not to grant leave for the tenant to file additional material being an unsigned statement from his mother, provided after the hearing. The Tribunal recorded that the landlord was represented at the hearing by its agent, and the tenant by his solicitor. 2. After recording the factual and procedural background, including the amendment of the name of the landlord, the Tribunal considered its jurisdiction under the RT Act. At [63]-[72] the Tribunal held that: 1. Section 81 of the RT At sets out the circumstances in which a residential tenancy agreement is terminated, relevantly if a landlord or tenant gives a termination notice in accordance with the RT Act and the tenant gives vacant possession (s 81(2)), or if the tenant abandons the residential premises (s 81(4)(d)): and while there was an issue whether the tenancy terminated in accordance with s 81(2) or s 81(4)(d), in either case the tenancy terminated on 30 August 2018; 2. The tenant's application to the Tribunal for an order under s 109 or s 104 terminating the tenancy agreement either on the ground the agreement was frustrated or on the ground of hardship was misconceived, as the tenancy agreement terminated on 30 August 2018 and the Tribunal had no power to terminate a tenancy agreement that had already terminated; 3. The tenant's claim for repayment of rent paid in advance as at 30 August 2018 should be dealt with in accordance with s 47 of the RT Act; the tenant's application for repayment was made in time; and the Tribunal could deal with that element of the claim; 4. The element of the tenant's claim in which he sought an order under s 45 of the RT Act that would determine that the rent be abated by 50% for the period 16 July 2018 to 30 August 2018 on the basis the premises had become uninhabitable should be dealt with under ss 50 and 190 of the RT Act: while the matter was not beyond doubt, the tenant did not have standing to make an application for an order under s 45 of the RT Act on the date his application was made, as such an application could only be made by a tenant and by that date he had returned possession of the premises to the landlord; 5. The tenant's claim for compensation for other damage and loss he contended had occurred due to the landlord's breach of the agreement was made within time; and 6. The landlord's application pursuant to s 107(1) of the RT Act for payment of a break fee equivalent to six weeks rent was made within time; that claim depended on first establishing an entitlement to an order under s111 of the RT Act that the termination notice given by the tenant on 30 August 2018 was not given in accordance with the RT Act, and an order pursuant to s 106 that the premises were instead abandoned by the tenant on 30 August 2018. 1. At [73]-[80] the Tribunal gave reasons for amendments to both applications made pursuant to s 53 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), having given notice of the proposed amendments to the parties during the hearing. The amendments to the tenant's claim were to amend the claim under s 45 to be a claim for breach of the residential tenancy agreement; and to include an order under s 47(5) for repayment of rent paid in advance. The amendment to the landlord's claim was to include a claim for a declaration under s 111 in relation to the validity of the termination notice, and to include a claim for an order under s 107 of the RT Act. 2. The Tribunal then set out at [81]-[92] the applicable law, including that relating to the tenant's right to quiet enjoyment of the premises (s 50); the landlord's obligation to maintain residential premises in a reasonable state of repair (s 63); the remedies available to a landlord when residential premises are abandoned (ss 106, 107); the remedies available to a tenant or landlord when a residential tenancy agreement is frustrated, including the test for "habitability" (s 109); an order in relation to a dispute about validity of a termination notice (s 111); and the applicable onus of proof. 3. The Tribunal at [94]-[111] gave reasons for concluding that the tenant's contention that he was entitled to issue a termination notice on 30 August 2018 in reliance on s 109 failed, and that the landlord was entitled to an order declaring that the termination notice was not given in accordance with the RT Act. Those reasons included findings that the water leak that was the source of the water damage and mould was not the result of any breach of the agreement by the landlord or tenant; that it did not render the premises wholly or partly uninhabitable, as the tenant continued in occupation and the landlord's agent set about arranging for repair; that the tenant's assertion that there had been an unreasonable delay in carrying out repairs and treat mould, constituted an allegation that the landlord was in breach of the obligation under s 63 to maintain the premises in a reasonable state of repair; and that the evidence did not establish that the water damage and mould present during the period 16 August to 30 August 2018 was so serious as to render the premises uninhabitable on health grounds. The loss of the use of the ensuite bathroom in circumstances where there was another bathroom available for use could not have the effect of rendering the premises wholly or partly uninhabitable. The Tribunal considered the two medical certificates provided by the tenant; and noted that the tenant's mother had occupied the premises between 21 to 29 August 2018. 4. At [113]-[115] the Tribunal addressed the landlord's claim for a break fee, concluding that the landlord had satisfied the necessary preconditions and there was no sufficient basis on which it could be deprived of that right. 5. At [116]-[117] the Tribunal gave reasons for the order that the landlord repay the amount of $2,902.86 being rent paid in advance. 6. At [118]-[126] the Tribunal found that the water damage and disruption caused by the water leak resulted in a substantial interference with the tenant's right to quiet enjoyment of the premises between 17 July to 30 August 2018. The Tribunal assessed the loss of value as a result of that breach at 25%, having regard to the area of the premises affected and the intensity of the disruption suffered by the tenant, and gave reasons for rejecting the tenant's argument that the loss of value should be assessed at 50% of the rent payable. The Tribunal noted that even if satisfied that it was reasonable for the tenant to relocate from the premises, he had an obligation to mitigate any loss suffered, and that compensation would have been the cost of short term accommodation closer to the daily rate payable under the residential tenancy agreement rather the cost of the CBD hotel. 7. The Tribunal concluded: 136 For the foregoing reasons, the landlord has established on its evidence that the tenant abandoned the residential premises on 20 August 2018 and that, as a consequence, it is entitled to the payment of a break fee equivalent to six weeks rent in the amount of $7,620.00. The tenant has established on his evidence that he suffered a substantial interference with his quiet enjoyment of the premises during the period 16 July 2018 to 30 August 2018. I have assessed his loss of consideration to be 25% of the rent he paid during this period, which entitles him to an order for compensation in the amount of $2,041.00. The tenant has also established on his evidence that on 30 August 2018, when he returned possession of the premises to the landlord, he had paid rent in advance for the period 31 August 2018 to 15 September 2018 inclusive in the amount of $2,902.86. The landlord has no entitlement to retain this amount and consequently an order has been made requiring the landlord to account to the tenant for this amount. The remainder of the tenant's claims have been dismissed, save as to costs. Setting off these orders against each other, the final result of the proceedings is that the tenant must pay the landlord the sum of $2,676.00. 1. The Tribunal ordered the landlord to pay the costs of the hearing on 21 November 2018. The appeal 1. An internal appeal may be made as of right on a question of law, and otherwise with the leave of the Appeal Panel: s 80(2) of the NCAT Act. 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. The Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (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. Even if the appellant has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. The appeal was commenced by Notice of Appeal filed 29 January 2019. The appeal was filed in time, the appellant having received notice of the decision on 15 January 2019. 3. A stay of operation of the order requiring the tenant to pay the landlord the sum of $2,676.00 was granted on 5 February 2019, until further order of the Tribunal. Material on the appeal 1. The tenant provided written and oral submissions. The documents included a copy of a folder of material filed in the proceedings before the Tribunal, comprising 252 pages. A copy of the transcript was also provided by the appellant in accordance with directions made on 5 February 2019. The landlord's agent accepted the accuracy of the transcript provided by the tenant. 2. The landlord, represented by its agent at the appeal, did not file any documents in the appeal other than a Reply to Appeal. 3. The Tribunal was assisted by an interpreter in the Mandarin language. Grounds of appeal 1. The grounds of appeal, as amplified by a detailed explanation in the Notice of Appeal, were in summary as follows: 1. The Tribunal made errors in applying the law: the RT Act only requires the premises to be partly uninhabitable to terminate the lease, and the Tribunal relied on irrelevant factors to reach the conclusion that the premises was inhabitable, namely his continued occupation, and reporting of specific defects; 2. The Tribunal failed to understand the evidence specifically the grounds of terminating the lease under s 109 of the RT Act: the Tribunal focused on the delay in repair rather than damage to one part of the premises making them uninhabitable and therefore misunderstood the s 109 claim; 3. The Tribunal made mistakes in understanding the material facts: the reasons did not accurately refer to the evidence, and made mistakes as to the nature of the evidence; 4. The Tribunal failed to give appropriate weight to important evidence: some evidence was only partly considered; the Tribunal failed to understand the evidence concerning the mould infestation; the Tribunal made findings on the evidence not open to it, and should have given more weight to other aspects of the evidence; the Tribunal was in error to accept the landlord's criticisms of the findings of the mould report bearing in mind that they themselves nominated the report provider; and the Tribunal failed to properly consider the medical evidence and link the symptoms and treatment of the appellant to the mould; 5. The Tribunal failed to consider evidence of the appellant's mother (submitted after the hearing but on the same day as the hearing): the Tribunal failed to ask the appellant at the hearing which room in the property his mother stayed, and as a result the Tribunal did not have all of the evidence before it and made assumptions about aspects of the evidence. The appellant seeks to introduce fresh evidence on this ground; 6. The Tribunal failed to consider the extension of time request: the Tribunal did not consider a formal request to extend time so that his claim for rent abatement could be considered under s 45 of the RT Act, and the reasons did not address a written request by his former solicitor; 7. The Tribunal made false and adverse assertions against the tenant in the decision: namely the reference in the reasons at [102] that the tenant 'has a propensity for serious exaggeration'; the appellant seeks to have this reference removed from the reasons; and 8. There were other problems with the decision: there were issues with the catchwords, and technical issues such the proper description of representatives in the written reasons and inaccurate recording of the appellant's motivations for the mitigation action he took. 1. The tenant sought leave to appeal on all three grounds in cl 12 (1) of Sch 4: 1. The decision was not fair and equitable: the appellant relies on the 8 grounds detailed in the attachment to the Notice of Appeal; 2. The decision was against the weight of evidence: the Tribunal should have given more weight to the mould report , his medical certificates, and to the photographs provided at pp 90-138 of his evidence bundle; and 3. Significant new evidence is now available that was not reasonably available at the time of the hearing: the appellant seeks to rely on two pieces of new evidence, being his statement as to his mother's stay in the property (dated 11 December 2018), and a declaration from his mother (21 January 2019), on the basis that he had not provided evidence about his mother's stay between 21-29 August 2018 in his evidence folder provided on 26 October 2018 because he did not think his mother was relevant to the case, that the question of where his mother stayed arose at the hearing, and the Tribunal's assumption that his mother occupied the main bedroom and ensuite was incorrect. Reply to appeal 1. The landlord supported the orders made by the Tribunal, and opposed what it asserted was a change in the appellant's evidence as to where his mother stayed. The property was never uninhabitable, and the tenant had wished to vacate the property due to another cheaper property becoming available. The landlord opposed leave, stating that the grounds are unmeritorious. Hearing of the appeal Appellant's submissions 1. The appellant submitted that the Tribunal Member made a finding of fact at [102] which is contrary to the evidence, namely that he has a propensity for serious exaggeration. In that paragraph the Tribunal addressed the tenant's contention that there was a serious damp and mould odour in the premises, commenting that while it could be accepted that there was some odour, there was no evidence that this was so noxious as to render the premises wholly or partly uninhabitable. The tenant submitted that the error relates to that finding being based on his oral evidence, and he did not give oral evidence before the Tribunal. 2. The appellant took issue with the Tribunal Member's approach to the facts surrounding when his mother came and stayed at the premises. The appellant submitted that the statement at [28] of the reasons that the tenant's mother stayed at the premises on a temporary basis and that it appeared that she occupied the main bedroom and ensuite, was incorrect. The appellant submitted that his mother did not occupy the main bedroom and ensuite but rather slept in the living room (which also had a bed) in the period 21 August 2018 – 29 August 2018. However the appellant also submitted that during the visits by his mother, sometimes his father also came with his mother as well. 3. The appellant took issue with the key finding at [105] of the reasons whereby the Tribunal found that the mould was localised to one small area of the under surface of the ensuite bathroom vanity cabinet, that it was untenable to suggest that this small infestation would make the entire premises wholly or partial uninhabitable on health and safety grounds, and that the spores from such a (small) infestation would be unlikely to permeate the entire premises, so as to cause illness, and the Member's statement that the appellant had not provided any evidence to the contrary. 4. The appellant raised a number of other matters relating to the use of 'catchwords' in the coversheet of the decision and their accuracy; and his concern that an order under s 64 of the NCAT Act was not made limiting the publication or broadcast of his identity. The appellant submitted that he wanted his first name removed as he believed the matters from the case would be prejudicial in any dealings with future landlords. Respondent's submissions 1. The respondent referred the Appeal Panel to the mould report and suggested that the 'fogging' method of treatment was a proposal. The respondent submitted that the order sought by the appellant under s 45 of the RT Act was not available as the tenancy had ended by the time of the hearing. Consideration 1. The following were agreed facts in the appeal: 1. The appellant had vacated the premises, and returned the keys on 30 August 2018; and 2. There was present in part of the premises mould and evidence of water damage during the period July - August 2018. Whether the Tribunal erred on a question of law 1. While the tenant was legally represented at the Tribunal hearing, it appears that he drafted the Grounds of Appeal, and the supporting annexure, without legal assistance. The Appeal Panel should determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]. Ground 1: the Tribunal made errors in applying the law 1. Possible questions of law would be whether the Tribunal identified the wrong issue or asked the wrong question, or applied a wrong principle of law: Prendergast at [12](2), (3). 2. The Tribunal rejected the tenant's argument for a reduction in rent under s 45 of the RT Act on the ground that he did not have standing to make the application. The Tribunal relied on the requirement that any application be made by the tenant which is defined at s 3 of the RT Act, which defines a "tenant" as someone occupying premises or holding a right to occupy the premises. There was no error in the Tribunal's finding that as the tenancy had terminated and the application was made four weeks after the tenancy had ceased, the appellant was no longer occupying the premises or holding any right to occupy the premises, and thus was not a "tenant" as defined. The appellant submits that the Tribunal did not entertain his lawyer's application to extend time to make the claim, however in our view the order sought by this request was not available due to the provisions of s 3 and s 45. 3. These matters were put to the appellant by the Tribunal (at transcript time counter 1:54 - 2:01): the Tribunal heard the appellant on this point, and having considered the argument rejected it, by deciding the matter at [68] of the reasons. This does not amount to any error by the Tribunal. 4. In respect of the claim for abatement of rent because the premises were uninhabitable, the Tribunal having found that the appellant did not have standing to make the s 109 claim as the tenancy was already terminated, proceeded to amend the application to give effect to the substance of the claim, namely a claim for compensation for loss of quiet enjoyment. The Tribunal clearly at [76] set out the basis for this amendment and his conclusion that unless the amendment were made the tenant would be deprived of a remedy. In our view what the Tribunal did was both in the interests of justice, and to the appellant's benefit. A similar approach was taken in respect of the appellant's request for repayment of the rent paid in advance, substituting s 187 (1) (c) of the RT Act for the claim based on s 47 (5). 5. In deciding this aspect of the claim, the Tribunal was required to determine whether the residential tenancy agreement had become frustrated by events. In particular the Tribunal was required to decide whether it had become wholly or partly uninhabitable. The Tribunal examined the law on this issue at [88] – [91] and then set out the questions requiring consideration concerning the period 16 July 2018 – 30 August 2018. The Tribunal found that the water leak occurred spontaneously and not by any direct action, that is, breach, by either landlord or tenant. The Tribunal noted that the appellant remained in occupation of the premises until the time that he abandoned them and issued the termination notice. The Tribunal's reasoning on the evidence as to the basis for the conclusion that it was the delay in repairs and disruption that constituted a breach of the landlord's obligation under s 63 to maintain the premises in a reasonable state of repair, was comprehensive. There was no error in the conclusion that that finding meant that s 109 of the RT Act, which requires that the premises become uninhabitable otherwise than as a result of a breach, could not apply. 6. We can see no error in this approach on the evidence and material that was before the Tribunal. Grounds 2, 3, and 4 1. Grounds 2, 3 and 4 take issue with the Tribunal's evaluation of the evidence, in particular in dealing with the claim that the premises were wholly or partly uninhabitable. It is an error of law for a decision-maker to make a finding of fact for which there is no evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 138; see Prendergast at [12](7). 2. In the decision under appeal the Tribunal considered all the evidence as to the seriousness of the defects asserted by the tenant and whether they could be assessed as making the premises uninhabitable. The Tribunal reviewed the evidence and noted that in the communications the appellant's evidence indicated that the odour associated with the wet carpet was 80% gone by 24 July 2018 with the carpet piece removal. Whilst there was some evidence that the smell partially returned in August, the Tribunal found on the evidence before it that the odour was localised to the ensuite bathroom and to a lesser extent the adjoining bedroom. The Tribunal noted that the appellant did not claim to the landlord at the relevant time that the odour permeated the entire premises. The Tribunal concluded that even if the effect of the mould and the odour was greater than the contemporaneous evidence indicated, various simple steps could have been taken to mitigate the issue. The Tribunal found that the evidence did not establish that the premises had been rendered wholly or partly uninhabitable. As the premises had two bathrooms, closing the door on one was an available interim approach, as gleaned from the appellant's own evidence on the matter. 3. As part of the consideration of the tenant's claim that the premises were wholly or partly uninhabitable, the Tribunal considered the evidence as to appellant's health and his mother's occupation of the premises. The Tribunal gave reasons at [108]-[110] for the conclusion that the medical certificates did not support the tenant's claim as to the premises being uninhabitable on health grounds. The appellant takes issue with some references as to what room the Tribunal said that his mother occupied. As concluded above, the Tribunal was entitled to reject the tenant's claim based on s 109, and doing what it could in the interests of justice, to amend the application before it. In this regard it becomes immaterial as to which room or rooms the appellant's mother occupied, as the claim proceeded on the basis that the tenancy was already terminated and that termination was as a result of a breach by the landlord of the obligation under s 63 to maintain the premises in a reasonable state of repair. 4. There was evidence to support the Tribunal's conclusions, and thus no error of law has been established. Ground 5 1. Ground 5 contends that the Tribunal erred in the findings about the visit and stay by appellant's mother. The transcript confirms that the issue of whether the tenant's mother stayed was discussed at the hearing, including (at time counter 1.20.00). The tenant's evidence was that his mother's English is not good, that she is familiar with the Potts Point neighbourhood, and that she preferred to stay in the unit because after a few days they would move out; and that he stayed at the hotel and his mother stayed in the property. 2. The Tribunal declined to receive further submissions and material from the appellant after the hearing. The Tribunal set out the basis for this ruling and gave reasons at [15] – [20], concluding that there were no exceptional circumstances which would warrant a grant of leave to the appellant to file submissions and evidence after the conclusion of the oral hearing. The Tribunal set out the applicable legal principles, and gave detailed reasons on this issue. It is not sufficient for the appellant to submit that he disagrees with these conclusions. The appellant must point to an error of law arising from this aspect of the decision, and in our view no such error is evident. On that basis this ground of appeal also falls away. 3. The appellant sought leave to then file this evidence before the appeal panel. However, as we have decided to dismiss the appeal we decline to receive that evidence. There is nothing before us to indicate that it could not have reasonably been provided before the Tribunal (at the appropriate time before the matter was reserved) exercising reasonable diligence. In our view the evidence would be unlikely to result in a different outcome even if the appeal was upheld on some other ground, and the matter remitted with the further evidence. The issue of what room the appellant's mother occupied is in our view immaterial to the findings that the Tribunal made and the basis of the findings. At its highest the evidence was that during part of the period that the appellant relocated to temporary hotel accommodation, and his mother lived in the premises. The main thrust of the Tribunal's reasons on this point are that the appellant did not use the master bedroom or ensuite, there is evidence that his mother stayed in the premises during the later period for which the claim arises, and that there was a finding to the requisite standard that there was no evidence that the mould had impacted on the other bedroom and bathroom. The finding of the Tribunal was in our view, open to it to make. Ground 6 1. Ground 6 concerns the extension of time request concerning the claim made under s 45 of the RT Act. The Tribunal determined that the appellant did not have standing to make that application as he was no longer a tenant and as a result was unable to entertain such an application. 2. From an examination of the transcript (time counter: 1:56:27 – 2:01:16), it is clear that the extension of time submission had moved to a statutory interpretation submission, whereby the appellant's lawyer asked the Tribunal to consider that a former tenant should be considered a tenant and therefore grounding jurisdiction to a s 45 claim after the end of the residential tenancy. The tenant's representative referred the Tribunal to the decision in Vashisht & Sharma v Edwards [2016] NSWCATCD 86. The Tribunal acknowledged at [67] of the reasons that the matter was not beyond doubt. Whether or not the Tribunal's conclusion that the claim under s 45 was not open was correct, for the reasons given at [76] the Tribunal determined that the preferable course was to amend the tenant's claim to include a claim for compensation for breach of the residential tenancy agreement to achieve the same substantive outcome as that sought in the claim under s 45. The Tribunal noted that the parties were on notice of the amendment, the Tribunal was satisfied that there was no unfairness to the landlord arising from the amendment, and that the change to the legal form of that element of the claim did not have any impact on the evidentiary burden borne by either party. We therefore find no error of law arising from this ground. Ground 7 1. In Ground 7 the appellant contends that the Tribunal made false and inappropriate accusations against him. Unless this ground is in substance an argument that the Tribunal took into account an irrelevant consideration, there is no question of law raised. As recorded in the transcript (time counter 00.27.49) the tenant gave sworn oral evidence during the course of the hearing. When the comment in [102] to which the tenant takes objection is read in context, it was open to the Tribunal to form a view as to whether to accept the tenant's evidence as to the seriousness of the damp and mould odour. While it may not have been appropriate to express that view in those terms, to do so does not amount to an error of law. Ground 8 1. The tenant took issue with some aspects of the Tribunal's reasons. We note that the choice of catchwords on the coversheet do not form part of the reasons for decision, but are a publishing research tool to enable the identification of decisions that raise particular issues. Discrepancies and concerns about how parties' representatives are referred to in the coversheet for written reasons, or the parties themselves, does not amount to an error of law. 2. In our view it was open to the Tribunal was to reach the conclusions on the overall proceedings that it did, and no error of law has been established. There has been no specific claim or dispute in this appeal concerning the amendment of the applications, and the Tribunal found in any event that it was in the interest of justice to do so. Whether leave to appeal on other grounds should be granted 1. In order to establish that leave to appeal on grounds other than questions of law should be granted, the Appeal Panel would need to be satisfied that the tenant may have suffered a substantial miscarriage of justice because of one or more of the three grounds in cl 12(1) of Sch 4 to the NCAT Act. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarised at [71] and [79] as follows: [71] …[I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred… [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result … it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred. 1. The tenant has not made out any of the grounds 1 to 8 on which he relies to establish that the decision was not fair and equitable. There was evidence on which the Tribunal based its findings and conclusions, and it could not be said that the "evidence in its totality so strongly preponderates against the conclusion found by the Tribunal" so as to establish that the decision was against the weight of evidence: Collins v Urban at [77]. As to the contention that there is significant new evidence, the statements on which the tenant sought to rely at the appeal were reasonably available to him at the time of the Tribunal hearing. The test in cl 12(1)(c) is an objective test, and requires that the evidence be unavailable because no person could reasonably have obtained it, and it is not sufficient that the appellant did not think to obtain it: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. 2. Leave to appeal on grounds other than a question of law should be refused. Matter arising 1. The appellant sought an order under s 64 of the NCAT Act to restrict the publication or broadcast of his name in any decision in this appeal. The request was made orally at the end of the appeal hearing. In support of his request the appellant stated that having his name identified with a tenancy matter in the Tribunal (or the Appeal Panel) would be prejudicial in his relationship with future landlords. 2. We do not agree with that submission having regard to the principles of open justice and the Procedural Directions and policies of the Tribunal. 3. This is an appeal arising from the Consumer and Commercial Division of NCAT. As explained to the tenant at the hearing of the appeal, not all decisions of that Division are published. As to publication of decisions of the Appeal Panel, NCAT Policy No 2 states at [28] –[29]: Appeal Panel 28. The usual practice of the Appeal Panel is to publish its written reasons for decision, unless the presiding Member has made an order prohibiting or restricting publication. These decisions can be viewed on the Caselaw website. 29. The restrictions and prohibitions on publication which applied in the Division in which the original decision was made will generally be continued in any relevant reasons for decision of the Appeal Panel in relation to that decision. 1. In our view there is no clear need to depart from this policy. The matters assigned to the Consumer and Commercial Division are not matters that could be classified as a protective jurisdiction, in that the applicable legislation dealt with in that Division meets such a definition. Nor is this a matter in which a confidentiality order was sought and granted in the first instance hearing. The appellant has not identified any particular prejudice likely to arise on publication of his name in a decision in a residential tenancy matter. 2. We therefore decline to make any order under s 64 of the NCAT Act. Orders 1. The Appeal Panel makes the following orders: 1. The application for leave to appeal on grounds other than question of law is refused. 2. The appeal is dismissed. 3. The stay on the operation of order (10) made on 15 January 2019 is lifted. ********** 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 Amendments 19 September 2019 - Paragraph 30(7) amended. [107] corrected to [102]. 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: 19 September 2019