Cernaianu v Residential Tenancies Tribunal

[1999] NSWSC 295

CITATION:	Cernaianu v Residential Tenancies Tribunal [1999] NSWSC 295
CURRENT JURISDICTION:	Administrative Law Division
FILE NUMBER(S):	30014/99
HEARING DATE(S):	1 April 1999
JUDGMENT DATE:	1 April 1999
PARTIES :	Liliana Cernaianu (Plaintiff) Residential Tenancies Tribunal (First Defendant) Christiano & Giacinta Bagnara (Second & Third Defendants/Applicants)
JUDGMENT OF:	Dunford J

COUNSEL :	No counsel
SOLICITORS:	Plaintiff in person Mr Glass (Second and Third Defendants/Applicants)
CATCHWORDS:	ADMINISTRATIVE TRIBUNAL - Application to set aside orders of Residential Tenancies Tribunal.
ACTS CITED:	Residential Tenancies Act 1987
DECISION:	See paras 24 & 25

THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION
DUNFORD J
1 APRIL 1999
30014/99 - Liliana CERNAIANU v Residential Tenancies Tribunal & Ors
JUDGMENT

1 HIS HONOUR: This is an application by the second and third defendants for summary dismissal of the proceedings brought in this Court by the plaintiff pursuant to the Supreme Court Rules, Part 13, rule 5(1).
2 The background to the matter is that the plaintiff and, it appears her husband also, were tenants of the second and third defendants of premises at 2/5 Bowman Street, Richmond pursuant to a residential tenancy agreement.
3 In late 1998 the plaintiff and her husband made an application for an order that the rent was excessive from April 1995 to September 1998 because a service, namely the hot water service, provided with the premises had been reduced. They sought compensation for economic loss in the sum of $1307.18 and compensation for non-economic loss in the sum of $1000 as a result thereof.
4 As the application was made more than thirty days after they first became aware of the breach, they also sought an extension of time for bringing the application pursuant to s 16 of the Residential Tenancies Act 1987 (the Act). That application was determined on 6 January 1999 and the reasons of the Tribunal are before me as Ex 1. The Tribunal's orders were that the application be dismissed.
5 These proceedings were commenced on 2 February this year by Summons and the plaintiff is seeking an order to set aside the order made by the Tribunal on 6 January 1999 and an order that the Tribunal had denied her natural justice. The Summons was supported by an affidavit of the plaintiff claiming she had been denied natural justice by the Tribunal; that the Tribunal had failed to consider all the orders sought by her and her husband and did not give them an opportunity to fully present their claims.
6 In the meantime the second and third defendants had caused to be served on the plaintiff and her husband a Notice of Termination on the grounds of arrears of rent and on 11 January 1999 the landlords made an application to the Tribunal for an order for possession pursuant to such Notice of Termination.
7 On 23 February 1999 that application was adjourned, but interim orders were made directing the payment of arrears of rent of $520, and that the current rent be paid as it fell due. On 10 March an Amended Summons was filed, but this merely added the second and third defendants as parties to the previous summons only naming the Tribunal.
8 Meanwhile on 8 March a Notice of Motion was filed in Court and a further Notice of Motion filed in Registry on 10 March both seeking an order to set aside the "final orders" by the Tribunal of the 23 February 1999, and an order that the Tribunal had denied the tenants natural justice. The reasons of the Tribunal dated 23 February 1999 are before me as Ex 2.
9 There is further affidavit evidence, namely an affidavit of the plaintiff of 9 March saying that she was denied natural justice because the Tribunal did not call all the evidence presented to it and it erred because it did not give the applicants the opportunity to fully present their case and a further affidavit sworn 23 March going into the facts of the matter in some detail.
10 I turn first to the orders made on 23 February 1999 and note that these proceedings related to the alleged failure of the hot water system. The Tribunal, in effect, found that no complaint had been made about the hot water system until September 1998, and that it was then promptly repaired.
11 The Tribunal also found that as the direct evidence given by the tenants was that the hot water system has been defective since the commencement of tenancy, there was no evidence of progressive deterioration of the service and so there could not have been a withdrawal by the landlords of any goods, services or facilities such as would justify a rent reduction based on s 47(1) of the Act.
12 Accordingly the Tribunal found that this was not an appropriate case for an extension of time to permit the claim for compensation for breach of the tenancy agreement and that, as there had been no withdrawal of goods, services or facilities, the claim for reduction of rent failed.
13 It is important to bear in mind that the only appeal to this Court from a decision of the Tribunal is one in relation to a matter of law: s 107. I have read the Reasons of the Tribunal for its decision of 6 January 1999 and I can find no evidence of any error of law or of any denial of natural justice.
14 In particular Mrs Cernaianu referred to a thirteen page submission which she claimed the Tribunal member apparently had not read although he adjourned the hearing for some time for the purpose of reading it. At the top of p 4 of the Reasons the Tribunal expressly says that those submissions were taken into account.
15 In relation to the proceedings of 23 February 1999 - there was reference to the failure of the Tribunal to examine a video alleged to relate to the damage to the hot water system but I note in the Reasons at p 5 the Tribunal sets out a finding favourable to the tenants of the state of the hot water system as at that time, including water on the floor and electrical wires immersed in water. It is difficult to see what further material matter could have been disclosed by the video.
16 In relation to the proceedings on 23 February 1999, in those proceedings the landlords sought an order terminating the tenancy agreement, giving possession to the landlords and consequential orders. I have examined the Reasons of the Tribunal and once again I can find no error of law or denial of natural justice.
17 It is convenient, however, that I refer to a couple of particular issues raised by Mrs Cernaianu. At p 4 of the Reasons of 23 February 1999 it is noted that it was agreed between the parties that, when the Notice of Termination was served on 7 December, the rent was eighteen days in arrears and, at the foot of the same page, the Tribunal explained to the parties that the issues of termination and possession (s 64(4)) and the issue of retaliation (s 65(2)) would have to be determined on another occasion and further witnesses could be called on behalf of the tenants on that occasion to prove their case.
18 There was an argument as to waiver of the requirement for the rent to be paid weekly, but the Reasons disclose that the relevant correspondence was taken into account and once again I can see no error of law.
19 The only orders made by the Tribunal on that occasion were that the landlords were entitled to issue a Notice of Termination pursuant to s 57 of the Act, that the issue of retaliation was adjourned to another day and, in the meantime, the tenant was ordered to pay the rent arrears of $520 by 5 March 1999. In view of what was said at p 4, referred to above, I also understand that it was intended the issues of termination and possession were also stood over for another day.
20 Once again Mrs Cernaianu had drawn my attention to a number of alleged defects in the proceedings but, as I say, I can see no error of law or denial of natural justice flowing from the Reasons. One claim is that the Tribunal miscalculated the rent arrears which, it is said, were only $500 not $520. That was a matter of fact within the jurisdiction of the Tribunal to determine.
21 A Romanian/French interpreter was furnished whom the tenants had requested not be supplied, but there is no satisfactory evidence before me that the use of that interpreter significantly prejudiced the plaintiff and her husband even though the assertion is made.
22 As I say the perusal of the Reasons discloses no error of law or denial of natural justice. It has been suggested that the Reasons do not correctly represent what transpired at the hearing but no justification has been shown for me to go behind those Reasons.
23 It is said that the main thrust of the submissions on behalf of the plaintiff is that the Tribunal did not take into account various parts of the evidence which were available but, when the submission is analysed closely, it appears to amount to no more than a submission that the Tribunal came to the wrong decision.
24 As I say, there is no appeal on matters of fact and I can see no error of law. All the submissions of Mrs Cernaianu before me have been recorded in the transcript and will be available if required. I therefore am satisfied that the present second and third defendants are entitled to summary judgment.
25 I make an order under SCR Part 13, rule 5 that the proceedings be dismissed, and I order the plaintiff to pay the second and third defendants' costs of the proceedings.

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Consent orders filed in the Court of Appeal.

The Court orders that by consent:

1. The appellant be granted leave to appeal;
2. The appeal be allowed save as to costs.
3. The orders of Dunford J in the Court below be set aside.
4. The orders of the Residential Tribunal in proceedings numbers 98/36546 and 98/31791 be set aside.
5. Each party pay its own costs in the Court of Appeal and in the proceedings below.

Ordered: 14 September 2000
Entered: 14 September 2000

Last Modified: 01/15/2002