Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zhang v Vong [2020] NSWCATAP 43 Hearing dates: 4 March 2020 Date of orders: 13 March 2020 Decision date: 13 March 2020 Jurisdiction: Appeal Panel Before: S Thode Senior Member Dr J Lucy Senior Member Decision: (1) Appeal dismissed. (2) The stay made on 20 December 2019 is lifted. (3) The order for possession made on 4 December 2020 is varied. The order for possession is suspended until 18 March 2020. (4) The appellant shall pay the landlord an occupation fee at the rate of $65.71 per day until the date vacant possession is given to the respondent. Catchwords: APPEAL – Residential Tenancy – No error of law – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None Category: Principal judgment Parties: Guan Bo Zhang (Appellant) Koet Vong (Respondent) Representation: Applicant (Self Represented) Mr Yong (as agent on behalf of the Respondent) File Number(s): AP 19/55969 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Zhang v Vong Date of Decision: 04 December 2019 Before: J Campbell, General Member File Number(s): RT 19/44644 and RT 19/44553 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) against two decisions made in the Consumer and Commercial Division of the Tribunal on 4 December 2019 (the Decision). 2. An application to the Tribunal was brought by Mr Guan Bo Zhang (the appellant) against Mr Vong (the respondent) for damages for withdrawal of services pursuant to s45 of the Residential Tenancies Act 2010. More specifically, the appellant alleges the respondent landlord failed to take reasonable steps to eradicate a cockroach infestation thereby rendering the residential premises uninhabitable. The appellant sought a rent reduction to "$0" from July to December 2019. The respondent brought a separate application seeking termination and possession for non-payment of rent pursuant to s 87 of the Act. The respondent's application was successful. The Tribunal terminated the tenancy and dismissed the appellant's application for compensation and rent reduction. The appellant lodged an appeal against both decisions on 16 December 2019. 3. For the reasons set out below, we have decided to dismiss the appeal. Tribunal proceedings and decision 1. Both applications were listed for hearing before the Tribunal on 4 December 2019. 2. The Tribunal described the particulars of the appellant's claim in the proceedings as follows: the appellant filed an application dated 2 October 2019 (RT 19/44554) seeking orders for a rent reduction pursuant to s 45 of the Act, where premises are unusable or uninhabitable specifically to reduce the rent to $0 until a cockroach infestation was resolved. In addition the appellant sought orders pursuant to s 46 for repayment of rent paid, being an amount of $4665.71 from 1 July 2019 to 10 September 2019. The tenant sought repayment of other payments, in particular $140 for a pest inspection report by Sydney Premium Pest Management dated 1 July 2019. 3. In the proceedings below the appellant relied on a bundle of material containing 14 pages. These consisted of emails, various photographs dated 1 July, 2 July, 30 September and 28 October 2019 as well as a pest report of 1 July 2019 and the associated invoice. The Tribunal noted that the pest inspection report dated 1 July 2019 stated the following: …No cockroach harbourage (sic) is noticed on site… Upon inspection, no cockroach infestation has been identified inside 30/70 Wayne Street Surrey Hill (sic). Live cockroaches are seen in the stairwell and in front of the neighbouring unit 79, which is likely source of the cockroach infestation that have (sic) impacted unit 70." 1. The Tribunal made particular reference to an email sent by Andrew Yong, the respondent's real estate agent (the agent), to the appellant dated 17 September 2019: "the strata manager managed (sic) common areas while we are only managing your unit, both Strata & us have no authority to enter any other premises. Strata will take action only if there is a breach to Strata by-law". 2. A further email dated 17 September 2019 from the strata manager to the respondent's agent stated that the owners corporation controls the common areas and that the common areas are regularly treated for pests. The Tribunal made particular reference to a number of photographs taken at different dates showing a total of approximately six cockroaches outside the residential premises, as well as inside, notably on the kitchen sink, on the bed, next to the windowsill and in the bedroom. Importantly the Tribunal concluded that the photographs were taken on different days and "do not demonstrate a situation that could be categorised on the balance of probabilities as an infestation." 3. The Tribunal rejected the appellant's contention that the premises were "destroyed" or had become "wholly or partly uninhabitable" in accordance with section 45 of the Act. Nor did the Tribunal accept that the appellant's evidence demonstrated that there was an "infestation". The Tribunal concluded that this assertion was not supported by the pest inspection report of 1 July 2019 or the photographs of "a few dead cockroaches from time to time". 4. The Tribunal concluded that the tenant had failed to make out his claim under section 47 for a refund of rent paid. The Tribunal found that the tenant had failed to make out any claim that would merit a refund of rent paid to 5 December 2019, or a reduction in rent to "$0". The Tribunal further concluded even if there had been a preventable pest issue, this did not amount to a breach of the residential tenancy agreement as the appellant's own report stated that the pests he complains of "come from the common areas or a neighbouring unit outside of the landlord's control". The landlord's application. 1. The landlord filed application RT 19/44644 seeking orders for termination and possession for non-payment of rent. The Tribunal terminated the tenancy in accordance with s 87 of the Act, as the tenant had failed to pay rent in accordance with the agreement and importantly the Tribunal was satisfied in accordance with s 89(5) of the Act that the tenant had frequently failed to pay rent. The Tribunal found that the 30 September 2019 termination notice was validly issued as rent had not been paid according to the residential tenancy agreement. 2. The Tribunal reviewed the tenant trust ledger report dated 3 December 2019 and was satisfied that the tenant engaged in conduct that could be characterised as a "rent strike" from 21 June 2019. The Tribunal was satisfied that a review of the trust ledger showed that the tenant had failed to pay rent in accordance with previous orders and that the tenant had failed to comply with his obligation to pay rent of $460 per week from 12 September 2019 until 23 October 2019. The Tribunal concluded that there was a validly issued termination notice dated 30 September 2019 and terminated the tenancy effective on 5 December 2019 but suspending the order for possession until Saturday, 14 December 2019. 3. As set out above the tenant filed an appeal dated 16 December 2019 appealing both decisions. The stay orders 1. At a call over on 16 December 2019 the Appeal Panel suspended the order for possession until 20 December 2019. The stay was conditional upon the appellant paying rent as and when it became due and payable under the residential tenancy agreement. In the event the appellant failed to comply with the requirement to pay rent the landlord was granted leave to apply to have the stay lifted immediately. 2. The matter was listed for a further call over on 31 December 2019. On this occasion the Appeal Panel refused to lift the stay and ordered the respondent or his agent to provide statutory declarations concerning the timing and amount of any payments made by the appellant to the respondent since 23 December 2019 and to provide evidence for any amount outstanding for the occupation fee. 3. The matter was listed a third time for call over on 6 January 2020 and on this occasion the stay order was continued conditional upon the appellant paying the respondent $920 by 9 January 2020 and on making regular fortnightly payments of $920 thereafter. It was the agreed position at the hearing that the appellant was paid up to date and that no further occupation fee was outstanding as at 4 March 2020. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. 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. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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 Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division 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. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Submissions and evidence 1. In deciding the appeal, we have had regard to the following: * The Notice of Appeal filed and served on 16 December 2020, attaching two bundles of evidence (the "first and second bundle"). * The Reply to Appeal filed and served on 18 December 2020. * Appellant's correspondence dated 3 January 2020 appellant's correspondence filed 28 January 2020 attaching a statutory declaration of Ai Minh Zhang dated 14 January 2020 (the 3rd bundle). * Statutory declaration of Sam Karatasas dated 3 January 2020 filed on behalf of the respondent. Notice of Appeal 1. The Notice of Appeal was lodged on 16 December 2019, which is within the 14 day time period specified in cl 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules). 2. The appellant's Notice of Appeal purports to set out two grounds of appeal as follows: The decision and orders made by NCAT on 4 December 2019 was wrong based on the following reasons: 1.Lease termination and repossession orders are not fair and equitable for the following reasons: a.Rent has been paid up to date with no arrears at the time of the hearing b.late payment in the past was due to the property being in an unhealthy and uninhabitable condition due to pest infestation Not caused by the tenant rent (sic) 2. Reduction and refund applications are unfairly dismissed for the following reasons: a. Professional pest report dated 1st July provided to support the impact of the property due to pest infestation. (Sic) b. Overwhelming amount of photos (12) taken over an extended period of time indicating cockroaches inside home. c. Multiple follow-up emails to the landlord to request resolution of the issue "To support the above claim, a 2nd professional pest inspection report is completed on 5 December 2019 following the unfair decision and claim that there was no pest infestation or impact to my home. The 2nd pest inspection report further confirmed the impact of cockroaches to my home. The sources of the cockroaches and photos showing the cockroaches inside and outside my home…" 1. Appeal grounds (1)(a) and (1)(b) do not affect or cause us to doubt the correctness of the Tribunal's conclusion in this regard. The Tribunal concluded that the notice of termination dated 30 September 2019 was valid and that the tenant was in arrears more than two weeks prior to the issue of the notice. The fact that rent had been paid up to date "at the time of the hearing" or that "late payment in the past was due to the property being in an unhealthy and uninhabitable condition" is not relevant for our consideration. A Tribunal may make an order for termination even if the tenant pays all the rent owing, if the Tribunal is satisfied that the tenant has frequently failed to pay rent in accordance with s 89(5) of the Act. 2. The critical finding that the tenant was more than 14 days in arrears at the time of service of the notice was not in contention. The correctness of this finding or the finding that the tenant had frequently failed to pay rent was not under appeal. The appellant suggested the Tribunal's decision was not fair and equitable and against the weight of the evidence before the Tribunal. 3. We note this is a challenge to findings of fact and requires leave to appeal. In the absence of reference to evidence said to be before the Tribunal which was overlooked or ignored or not given proper weight, we are unable to uphold this ground. Accordingly, we decline to grant leave to appeal. 4. In respect of ground (2) for the reasons that follow we dismiss that ground of appeal also. 5. We note the conclusion and finding of the Tribunal, at paragraph 15(b) that the critical pest report of 1 July 2010 could not identify a cockroach infestation inside the residential premises. It was the appellant's contention that the pest report was misunderstood and had been taken out of context. It was submitted that the meaning to be inferred was that an infestation was present but that the residential premises were not the cause of or did not harbour the nest of the infestation. To support this contention the appellant sought to tender two further reports prepared after the hearing, dated 5 December 2019 and 14 January 2020 respectively accompanied by additional photographs. 6. In effect, the appellant now wishes to adduce fresh evidence of two different reports which he describes as the correct reports. Based upon the evidence before the Tribunal, there was no error of law. It was clearly open to the Tribunal on the evidence before it to reach the finding that there was no infestation. The question which arises is whether the appellant may, by reason of cl12(1)(c) of Sch 4 of the NCAT Act introduce new evidence. That provision permits fresh evidence which was not "reasonably available" at the time the proceedings under appeal were being dealt with. There was no evidence or submission made by the appellant why the second and third pest reports were not available, other than to state they clarified the content of the first report. We are not of the view that "clarification" is justified or permissible under the circumstances as the first report speaks for itself. Accordingly, the application to adduce fresh evidence on appeal is rejected. 7. Ground (2) is a challenge to a finding of fact and requires leave to appeal. In the absence of reference to specific evidence said to be before the Tribunal and overlooked or ignored or not given proper weight, we are unable to uphold this ground of appeal. CONCLUSION 1. For the above reasons, the Appeal shall be dismissed and leave to appeal is refused. ORDERS The Orders of the Appeal Panel are as follows: 1. Appeal dismissed. 2. The stay made on 20 December 2019 is lifted. 3. The order for possession made on 4 December 2020 is varied. The order for possession is suspended until 18 March 2020. 4. The appellant shall pay the landlord an occupation fee at the rate of $65.71 per day until the date vacant possession is given to the respondent. ********** 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: 13 March 2020