Corcoran v Far

[2019] NSWSC 1284

Supreme Court

New South Wales

Medium Neutral Citation:	Corcoran v Far [2019] NSWSC 1284
Hearing dates:	20 November 2018
Decision date:	25 September 2019
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	The summons for leave to appeal is dismissed.
Catchwords:	JUDICIAL REVIEW – decision of Appeal Panel of Civil and Administrative Tribunal – dispute between tenant and subtenant as to the use of a shower – subtenant seeking compensation after being wrongfully locked out premises – where claims rejected largely on factual findings – no question of law arising such as to warrant a grant of leave to appeal
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 82, 83 Civil Liability Act 2002 (NSW), s 3B(1)(a) Civil Procedure Act 2005 (NSW), s 56 Residential Tenancies Act 2010 (NSW), ss 10, 85, 90, 187 Residential Tenancies Regulation 2010, cl 23 Uniform Civil Procedure Rules 2005 (NSW), rr 50.12(4), 50.23(4)
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Davis v NSW Land and Housing Corporation [2016] NSWCA 325; 18 BPR 36,459 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2017] NSWSC 1322 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 The Owners - Strata Plan No 73943 v Gazebo Penthouse Pty Ltd [2014] NSWSC 1536; (2014) 17 BPR 33,621 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175
Texts Cited:	A Anforth, P Christensen and S Bentwood, Residential Tenancies Law and Practice New South Wales (6th ed, 2014)
Category:	Principal judgment
Parties:	Aaron Corcoran (plaintiff) Peter Far (defendant)
Representation:	Plaintiff self-represented Defendant self-represented
File Number(s):	2019/38799
Publication restriction:	None
Decision under appeal	Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Appeal panel Citation: [2018] NSWCATAP 13 Date of Decision: 8 January 2018 Before: Appeal Panel (M Harrowell & R Titterton) File Number(s): AP 17/26430

Judgment

1. HER HONOUR: Aaron Corcoran shared a flat with Peter Far for nine and a half weeks. The tenancy was spectacularly unsuccessful, largely due to a dispute over the use of a shower. Mr Corcoran and Mr Far each brought proceedings against the other in the Civil and Administrative Tribunal of New South Wales. Mr Far applied for an order terminating Mr Corcoran’s tenancy but later resorted to changing the locks. Mr Corcoran then sought compensation on various grounds in the sum of $17,589 “or higher”. A protracted dispute followed. Mr Corcoran ultimately succeeded in recovering $615 but is dissatisfied with that result. He seeks leave to appeal from the decision of the Appeal Panel determining his claim.

2. The appeal is brought pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW). That section provides for an appeal from the Appeal Panel to this Court on a question of law but only with the leave of the Court. I have concluded that leave to appeal should be refused, for the following reasons.

Circumstances in which the dispute arose

3. The relevant facts are adequately stated in the reasons for decision of the Tribunal from which the appeal to the Appeal Panel was brought: Corcoran v Far [2017] NSWCATCD 40. For present purposes, they may be summarised as follows.

4. Mr Far was the tenant of a two-level, three-bedroom strata unit. Mr Corcoran responded to his advertisement on Gumtree for a housemate to occupy one of the bedrooms as subtenant.

5. After Mr Corcoran had seen the room, an agreement was reached through an exchange of text messages and payment by Mr Corcoran of “4 weeks deposit and 2 weeks rent”. The rent was $290 per week “plus bills”. Mr Corcoran moved in on 24 March 2016. He contends that the room was advertised on the basis that he would have exclusive use of a bathroom on the same floor as his bedroom. There was a bathroom of sorts on that level (Mr Far describes it as a laundry) but at the time Mr Corcoran moved in it was in an obvious state of disrepair. The shower recess was not waterproof because some of the tiles had been displaced. Mr Far denies that Mr Corcoran was ever promised the use of that space or the exclusive use of a bathroom. There was a fully functional bathroom on the lower floor but that was shared by Mr Far and the third tenant. Mr Far contends that use of the shower on Mr Corcoran’s floor was dangerous due to the water seepage and the risk of its coming into contact with electrical wiring. Each party’s position was intractable. Mr Corcoran insisted on using the shower while Mr Far persisted in his attempts to make him stop.

6. Mr Far ultimately decided to terminate Mr Corcoran’s tenancy. He purported to give two weeks’ notice by text message on 17 May 2016. The Tribunal ultimately found, in Mr Corcoran’s favour, that notice was not given in accordance with the requirements of s 85 of the Residential Tenancies Act2010 (NSW).

Claims before the Tribunal

7. On 25 May 2016, Mr Far lodged an application with the Civil and Administrative Tribunal seeking a termination order under s 90 of the Residential Tenancies Act. That section permits a landlord to seek a termination order on the grounds that a tenant has intentionally or recklessly caused or permitted serious damage to the residential premises. The basis for Mr Far’s application was Mr Corcoran’s persistent use of the shower, which Mr Far alleged was causing damage to the premises and posing “a risk of fire or electrocution to nearby lighting”.

8. Mr Far’s application came before the Tribunal on 30 May 2016 for conciliation and hearing. An issue was noted that day as to whether the Tribunal had jurisdiction (the issue evidently being whether there was a written residential tenancy agreement). The parties are in dispute as to whether that was a point taken against Mr Far by Mr Corcoran – the transcript suggests that it was not, but the member noted that it did not matter what position the parties took and that jurisdiction might be an issue. Mr Far contends that he left the Tribunal that day with the understanding that it did not have jurisdiction to grant the termination order sought by him. It was then that he determined to change the locks, citing safety concerns.

9. The Tribunal’s reasons for decision record that the parties gave different accounts as to what happened after that but it is common ground that Mr Far did change the locks with a view to excluding Mr Corcoran. Mr Far gave evidence that, after the Tribunal hearing, Mr Corcoran agreed to move out but that, when he (Mr Far) calculated end of tenancy payments allegedly due, Mr Corcoran changed his mind and refused to leave. The locks were changed that evening (still 30 May 2016). Mr Far contends he took that step on the basis that he had given Mr Corcoran two weeks’ notice in accordance with the agreement they had reached at the outset of the tenancy.

10. Mr Corcoran contended before the Tribunal that, in changing the locks, Mr Far had acted with contumelious disregard for the Tribunal’s process because the presiding member at the conciliation hearing had warned Mr Far to “refrain from any lockout”. That overstates what the member said – he stated that it might be a breach of the Act to do so.

11. The Tribunal rejected Mr Corcoran’s contention, saying at [54]:

“However, I am not persuaded that there was any contumely for the Tribunal’s process. Both parties agree that the police were called to the premises at about 10.00 pm on 30 May 2016. I am satisfied that there was some discussion with the police present including an offer of the respondent for the applicant to stay one night and then move out the following day. I am further satisfied that when the applicant refused the offer, referring to his (mistaken) belief that he had a fixed term tenancy with the respondent, the police asked the applicant to leave the premises. The evidence establishes that after the police left the applicant decided to attempt to gain entry to the premises by using a deck chair to raise himself to the window of the upstairs bathroom. At about 11.00 pm, the respondent became aware of the applicant’s attempt to enter through the window and there was a physical struggle between the applicant and the respondent. The applicant was not successful in gaining entry through the window. There is evidence that both parties sustained personal injuries during their struggle. The police arrived about 10 minutes later. The applicant admits that the police took the view that he was the one causing the trouble and told him to leave the premises immediately (see paragraph 19 of the applicant’s affidavit sworn 15 July 2016).”

12. On 3 June 2016, Mr Far wrote to the Tribunal seeking to discontinue his application for a termination order. The application was formally dismissed on 7 June 2016.

13. On 9 June 2016, Mr Corcoran lodged an application seeking repayment of his rental bond of $1,160 together with compensation under a variety of heads.

14. The Tribunal initially found that it had no jurisdiction to determine that claim because the agreement between the two men was not a written residential tenancy agreement within the meaning of s 10 of the Residential Tenancies Act (the point Mr Far says was taken against him by Mr Corcoran in response to his application for a termination order). Mr Corcoran successfully appealed to the Appeal Panel against that ruling and the matter was remitted for determination of the claim. Mr Far did not participate in the proceedings throughout those stages but appeared at the final hearing of the remitted proceedings.

15. The amount of compensation sought by Mr Corcoran was $17,589 “or higher”, made up as follows:

Damages for breach of quiet enjoyment pre-30 May 2016:	$4,000.00
Compensation for reduction in services – shower in upstairs bathroom:	$475.00
Compensation for reduction in services – internet services for the period from 19 May to 30 May:	$60.00
Compensation for loss of bargain damages	$400.00
Compensation for property damaged or taken – food and power adaptor ($129); mug and cutlery ($100):	$229.00
Compensation for “illegal” eviction – non-economic loss, general damages for “lockout and aggravated damages”:	$12,000.00 or higher
Moving costs:	$80.00
Temporary accommodation and food:	$345.00

16. The fact that the claim exceeded $15,000 potentially raised an issue as to the proper construction of the Residential Tenancies Regulation. It may be accepted that the construction of the Regulation raises a question of law. Section 187 of the Residential Tenancies Act limits the Tribunal’s jurisdiction to the amount prescribed by the Regulation. Clause 23 of the Regulation provides:

23 Monetary limit of jurisdiction of Tribunal: s 187 (4) (a) of Act

The amount prescribed for the purposes of section 187 (4) (a) of the Act is—

(a)     if the order is with respect to a rental bond, $30,000, or

(b)     in any other case, $15,000.

17. The Tribunal noted in its reasons that the text, A Anforth, P Christensen and S Bentwood, Residential Tenancies Law and Practice New South Wales (6th ed, 2014) poses a question as to the proper construction of that clause. In my respectful opinion, however the clause operates, it clearly imposed a cap of $15,000 on Mr Corcoran’s claims listed above. However, as it transpired, it was not necessary for the Tribunal to determine that issue because it rejected all of Mr Corcoran’s claims for damages, principally on the basis that it accepted Mr Far’s evidence rather than Mr Corcoran’s.

18. The Tribunal did accept that Mr Corcoran’s eviction from the premises on 30 May 2016 was effected without valid notice under the Act. The Tribunal evidently recognised that, in that circumstance and in the absence of a termination order, the power to award damages for breach of quiet enjoyment was enlivened: s 187(1)(d) of the Act. However, the Tribunal took the view that it had a discretion not to award damages and declined to do so: at [86]. In the result, the Tribunal found that Mr Corcoran was entitled to a refund of his bond but otherwise dismissed the claim.

Appeal to the Appeal Panel

19. Mr Corcoran appealed from that decision to the Appeal Panel. The Appeal Panel noted at [56] that the Tribunal had not made a finding as to how the tenancy came to an end and that it was necessary to make such a finding because the relief claimed by Mr Corcoran would depend on that determination. The Appeal Panel posited three possibilities: that the residential tenancy agreement was abandoned by both parties; that the premises were abandoned by Mr Corcoran or that there was a repudiation of the residential tenancy agreement by Mr Far which Mr Corcoran accepted. The Appeal Panel found that, not having given the notice required under the Act or obtained a termination order, Mr Far wrongly excluded Mr Corcoran from the premises on 30 May 2016 and that this amounted to a repudiation of the residential tenancy agreement. The Appeal Panel further found that Mr Corcoran elected to accept the repudiation, bringing the tenancy to an end: at [56]-[61].

20. On that basis, the Appeal Panel found that the Tribunal had erred in law in failing to determine what loss was suffered in consequence of Mr Far’s repudiatory conduct and in declining to make any order for the damage suffered as a result. The Appeal Panel assessed the amount of general damages to be $500 including an allowance for any moving and ancillary costs and the inconvenience arising from the need to move early. The Appeal Panel also allowed an amount of $115 which it found Mr Corcoran had paid for accommodation in a youth hostel until 5 June 2016, after which (the Panel determined) he found alternative accommodation at a cost not greater than the rent payable under his residential tenancy agreement with Mr Far. Accordingly, the Appeal Panel allowed the appeal in part and ordered Mr Far to pay Mr Corcoran the sum of $615. The appeal was otherwise dismissed: [2018] NSWCATAP 13.

Appeal to this Court

21. The appeal to this Court is confined to the decision of the Appeal Panel rather than that of the Tribunal: ss 82 and 83 of the Civil and Administrative Tribunal Act; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [10] per Basten JA; Gleeson and Leeming JJA agreeing [37] and [61] respectively.

Requirement for leave

22. As noted at the outset of this judgment, the right conferred under the Act is “to appeal on a question of law” subject to the requirement for leave. The question of leave was addressed separately in ground (1) of Mr Corcoran’s summons, as follows:

“A grant of leave to appeal is warranted by the fact that: (i) several clear errors appear in the decision below; (ii) the case involves issues of principle and (iii) the circumstances raise matters of general importance.”

23. Mr Corcoran endeavoured to expand upon those very general contentions at the outset of the hearing. While listening to those submissions, I formed the view that it would be more efficient to hear Mr Corcoran as to his substantive grounds and to determine the question of leave having regard (among other relevant considerations) to the merits of those grounds.

24. Mr Corcoran accepted that he has the burden of establishing a basis for granting leave in accordance with the principles stated in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[39] (per Basten JA, Tobias AJA agreeing at [44]). It is recognised that those principles should be applied to applications of the present kind: The Owners - Strata Plan No 73943 v Gazebo Penthouse Pty Ltd [2014] NSWSC 1536; (2014) 17 BPR 33,621 at [18] (Hamill J); followed in Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2017] NSWSC 1322 at [30] (Walton J). In accordance with those principles, Mr Corcoran must demonstrate something more than that the decision of the Appeal Panel was arguably wrong. Ordinarily it is appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] (per Campbell JA, Young and Meagher JJA agreeing); approved in Be Financial at [33].

25. The summons specified alleged errors of law in the Appeal Panel’s reasons but did not specify any question of law for the purpose of determining whether leave to appeal should be granted. Instead, Mr Corcoran took the approach of attempting to identify the questions of law in his written submissions. In the opening paragraph of those submissions, he sought to justify that course by reference to r 50.12(4) of the Uniform Civil Procedure Rules 2005 (NSW), which provides that a summons for leave to appeal must set out “briefly but specifically the grounds relied on in support of the appeal including, in particular, any grounds on which it is contended that there is an error of law in the decision of the court below”. In a footnote to the submissions, Mr Corcoran contended that the requirement to identify questions of law in the originating process applies only to victims’ support proceedings, citing r 50.23(4).

26. It is true that r 50.12(4) does not, in terms, state a requirement to specify questions of law in an application for leave to appeal to a division of the Court. That is presumably because the rule applies to a broad range of statutory rights of appeal facing a requirement for leave, not all of which are confined in the terms of s 83 of the Civil and Administrative Tribunal Act. It is nonetheless clear that the proper approach when bringing an application under s 83 is to identify the questions of law on which leave to appeal is sought. That should be done in the summons seeking leave to appeal.

27. In Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223, the Court of Appeal (Meagher, Payne and White JJA) said at [13] (citations omitted):

“Although an appeal to the Supreme Court only lay as of right on a question of law, the respondent did not identify the questions of law that were the subject matter of the appeal, but rather asserted the magistrate erred in law in various ways. This was wrong. As Leeming JA said in [Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378] at [6]:

‘Obviously, it is not possible, merely by the device of asking whether the Tribunal erred in law in doing something or failing to do something, to circumvent the statutory limitation on the scope of the appeal.’”

28. See also Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [33] (per French CJ) and also Basten JA’s discussion of the formulation of questions of law in Bronze Wing at [6] to [32].

29. The formulation of a question of law on which the appeal is brought is important because it critically informs the determination whether there should be a grant of leave to appeal. That is because “the existence of a question of law is not merely a qualifying condition to the right of appeal, but the question of law alone is the subject matter of the appeal”: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 at 178 per Gummow J; approved in Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21] per French CJ, Gummow and Bell JJ and in Davis v NSW Land and Housing Corporation [2016] NSWCA 325; 18 BPR 36,459 per McColl JA at [77] (an appeal under s 83 of the Civil and Administrative Tribunal Act).

28. Mr Corcoran’s approach of attempting to identify the questions of law which would (if leave were granted) be the subject matter of his appeal only in the written submissions rather than subjecting himself to the discipline of setting them out in the summons raised an additional difficulty in the present case. The written submissions extended to some 59 pages of closely-typed contentions supported by 110 footnotes with numerous references to legislation and authority (some more relevant than others). The submissions included many whimsical journeys into interesting questions of law which it was conceded do not arise in the present case. The task of trawling through that material with a view to discerning whether any point falling within the Jaycar principles is identified has been a considerable burden.

29. The written submissions were served late and were objected to by Mr Far. Both parties were self-represented at the hearing. Mr Corcoran informed me that he has a law degree but does not practise as a lawyer (at the Tribunal hearing, Mr Corcoran refused to answer those or any other questions seeking personal information on the basis that he considered Mr Far to be “a lunatic”). Mr Far does not have any legal qualifications.

30. In those circumstances, in order to conduct the hearing in a manner that was fair to Mr Far, I required Mr Corcoran to address his grounds of appeal orally without resting on the contents of the written submissions so that Mr Far could follow the argument. However, in the course of preparing this judgment, I have found it necessary to consider the written submissions in order to understand the points raised and determine whether there is any question of law that warrants a grant of leave. Had I been inclined to reach a different conclusion as to the outcome of the application for leave, it would have been necessary to afford Mr Far an opportunity to address any issue beyond those addressed orally at the hearing but the occasion for that has not arisen.

Ground 2: error of law by failing to identify legal error in the fact-finding of the original decision maker

33. The summons identified 13 alleged errors of law (grounds 2 to 14). Most of the hearing time was occupied by Mr Corcoran’s submissions in support of ground 2, which is:

“Error of law by failing to identify legal error in the fact finding of the original decision maker, including making findings based on no evidence or on facts which did not exist, drawing inferences that were not open on the evidence, otherwise making findings that were illogical or unreasonable, failing to inquire into material facts and evidence, failing to make material findings, and failing to engage with and respond to evidence.”

34. The formulation of that ground was unhelpful in identifying any question of law such as might warrant a grant of leave to appeal. As explained by the Court of Appeal in Schwartz, a question of law is not formulated or properly identified merely by asserting that the decision-maker erred in various ways. It may be accepted that the question whether there was any evidence on which the Tribunal could make particular findings is a question of law: Kostas at [33] (French CJ); [69] (Hayne, Heydon, Crennan and Kiefel JJ). However, ground 2 as framed is once removed from that question; it complains of the Appeal Panel’s alleged failure to identify such legal error in the fact-finding of the Tribunal. In the absence of any articulation of the findings or inferences referred to, the strength of that ground is impossible to judge.

35. As already noted, Mr Corcoran asserted that the questions of law raised by his grounds of appeal were identified in his written submissions. In an appendix to those submissions, Mr Corcoran discussed a number of “background concepts in the Residential Tenancies Act and the General Law” which he submitted formed “an integral part of this application which adds colour and body to specific appeal grounds”. He argued that:

“the Tribunal adopted a fundamentally wrong view of the case, not understanding the significance of the allegation of damage and its place in the legal setting of the issues. Earlier proceedings have been a feasting of amateurs in which key evidence has been overlooked, important arguments disregarded, binding law and principle passed over, leading to a conspicuous failure to hold a party accountable for wrongdoing, together with an assessment of damages that is grossly inadequate.”

36. Mr Corcoran submitted that an appreciation of the “wear and tear” exclusion, the statutory repair obligation, strata legislation, mitigation of loss principles, duty of care case law and the doctrine of “waste” would put a very different complexion on the case than seemed to have prevailed in the Tribunal. To the extent that those submissions sought to recast the case, it is not appropriate to consider them.

Special damage finding

37. The written submissions identified five findings as “the most significant findings for this appeal”. Mr Corcoran challenges those findings on the basis of an alleged absence of any probative evidence to support them and alternatively on the basis of legal unreasonableness.

38. The first was the finding that he caused “serious damage” to the premises. The Tribunal identified, as one of the issues for its determination, the following:

“Whether [Mr Corcoran] was responsible for serious damage to the premises during the period of his tenancy.”

39. It is not clear why the Tribunal thought it necessary to consider whether Mr Corcoran was responsible for “serious damage”, as opposed to any damage. The term “serious damage” appears in s 90(1)(a) of the Residential Tenancies Act, where it is one of the elements to be proved in an application for a termination order. As already noted, Mr Far made an application under that section but that application was withdrawn after he effectively evicted Mr Corcoran by changing the locks.

40. In any event, the Tribunal found that Mr Corcoran’s conduct was causing serious damage to the premises, saying at [57]:

“The applicant also submitted that the respondent was motivated by malice and a determination to remove the applicant from the premises irrespective of the consequences. The applicant argued that the steps which the respondent had taken in May 2016 to terminate the tenancy by his application to the Tribunal (File No RT 16/245678) were vexatious and intended to harass him. I reject that submission. I am satisfied that bringing the proceeding against the applicant and seeking orders for termination and possession was a step reasonably taken by the respondent, because the applicant was continuing to use the leaking shower in the upstairs bathroom. I am further satisfied that the applicant’s action in using the leaking shower was in complete disregard of the respondent’s direction that the applicant refrain from doing so and also that the applicant’s action was causing serious damage to the walls of the premises and the 240v fluorescent light on the ceiling of the foyer in the level below. In this regard I accept the evidence contained in the statement of the electrician dated 28 May 2016.”

41. It may be noted that, notwithstanding that finding, Mr Corcoran was successful in obtaining an order for repayment of the whole of his rental bond because Mr Far failed to prove any claim for compensation.

42. Mr Corcoran submitted that the finding of serious damage bears on “the ‘reduction in services’ quantum, the application of the statutory repair obligation, and the legal analysis of the termination/repudiation”. A footnote to that submission set out a lengthy argument travelling well beyond the issues before the Appeal Panel as to alternative findings that might have been made on the repudiation issue. Separately, it was submitted that there was “some interaction” between the finding on serious damage and the matters raised in the appendix to the written submissions.

43. There is no merit in the argument that the serious damage finding had any bearing on the claim for reduction in services. That claim was rejected by the Tribunal for the simple reason that it did not accept Mr Corcoran’s case that the tenancy agreement allowed him the exclusive use of his own bathroom. The Appeal Panel upheld that finding on the same basis: at [84]. The finding as to serious damage was not material in the Appeal Panel’s determination of that ground.

44. As to the legal analysis of the determination or repudiation of the tenancy agreement, as already explained, the Appeal Panel did address that issue. It noted that the Tribunal had not made a finding as to how the agreement came to an end. The Appeal Panel proceeded to determine that issue itself, finding (in favour of Mr Corcoran) that Mr Far did repudiate the residential tenancy agreement. That finding opened the path for Mr Corcoran to obtain an award of damages.

45. The matters discussed in the appendix to Mr Corcoran’s written submissions do not assist him. The appendix presents a series of detailed, convoluted arguments as to why Mr Corcoran was not liable for any damage resulting from his use of the shower. All of those arguments proceed in one way or another from the premise, contrary to the Tribunal’s findings, that the shower was a space Mr Corcoran was entitled to enjoy under the terms of his tenancy agreement. So much may be gleaned from the opening paragraph of the appendix, which states:

“The events at issue in this case took place in a setting impacted by a variety of legislative and common law concepts that received little attention in the case. Briefly, even if it were possible as a matter of fact to identify some sort of damage to the building for which the plaintiff was responsible (which is not admitted), that damage would be excused (or excluded from liability) by the “wear and tear” concept, by mitigation of loss principles, by contributory negligence, by estoppel, or by the doctrine of waste. The fact that there was a defective shower presenting an active danger to tenants involved a breach of a duty of care owed to tenants, as well as, more obviously, a breach of the obligation to repair. Additionally, it seems almost certain that the damage alleged was to “common property” in the strata building, in respect of which the defendant was not the proper complainant, for he suffered no loss. In short, there are a raft of legal considerations that impugn the defendant and highlight his defaults and failure, while absolving the plaintiff from wrongdoing or some other sort of moral responsibility.”

46. In any event, there does not appear to be any merit in the contention that the “serious damage” finding is affected by legal error in the fact-finding process. Mr Corcoran contends that there was no evidence to support the finding and that it was only supported by the assertion of a conclusion.

47. The passage of transcript cited to support that submission records evidence given by Mr Far to the Tribunal to the effect that, when Mr Corcoran used the shower, the water was “falling on top of a light in a corridor”. On my reading of the whole of the relevant passage of the evidence, it was plainly open to the Tribunal to find that, as a result of Mr Corcoran’s use of the shower, water was leaking through the walls. It was open to the Tribunal to accept Mr Far’s evidence and to regard the water seepage as “serious damage” in the circumstances.

Term of the residential tenancy agreement

48. The second specific finding of fact identified by Mr Corcoran for the purposes of ground 2 was the finding as to the term of the agreement. Mr Corcoran claimed “loss of bargain” damages on the basis of his contention that he had a residential tenancy agreement for a fixed term of 4 months. The Tribunal rejected that claim, saying at [42]:

“I am not satisfied that there was a residential tenancy agreement between the parties for a fixed term of four (4) months. I accept the respondent’s evidence that his only conversations with the applicant on or about 24 March 2016 were in respect of giving each other two (2) weeks’ notice. To the extent there are differences between the applicant’s recollection and the respondent’s recollection of material conversations in or about March 2016, I prefer the respondent’s evidence. The respondent’s evidence is consistent with the contemporaneous documents (i.e. the text messages) which referred to 2 weeks’ notice but make no reference to a fixed term.”

49. The Appeal Panel rejected Mr Corcoran’s appeal against that finding: [41]-[44] and [87]. It was right to do so. Mr Far’s evidence was plainly capable of supporting the finding. Mr Corcoran submits that, on the strength of an analysis of Mr Far’s credibility, it can be concluded that he has told a number of lies and accordingly that it would be appropriate for this Court to put his evidence to one side altogether. On that approach, so the submission went, there would remain no evidence to support the finding rejecting the four-month term.

50. The submission invites the Court to take a wrong approach. It is a transparent attack upon the merits of the Tribunal’s findings of fact. No error is demonstrated in the Appeal Panel’s approach to the ground challenging those findings.

Unreasonable force

51. The third specific finding of fact identified by Mr Corcoran for the purposes of ground 2 is the Tribunal’s finding concerning the use of unreasonable force on the part of Mr Far. The Tribunal said at [55]:

“The evidence does not support any allegation of assault or the use of unnecessary or unreasonable force on the respondent’s part. The police took no action other than requiring the applicant to leave the premises on the evening of 30 May 2016. No criminal charges were laid.”

52. The Appeal Panel found no reason to displace that finding. Mr Corcoran submitted that the finding raises a question of law because it is relevant to an issue he seeks to raise under s 3B(1)(a) of the Civil Liability Act 2002 (NSW). However, on the findings made by the Tribunal and affirmed by the Appeal Panel, no such legal question arises.

53. Mr Corcoran further submitted that the finding as to unreasonable force was relevant to the claim for aggravated damages. He submitted that it was not a question of there being authority to use “unnecessary” or “unreasonable” force; Mr Far was not authorised to use any force. So much may be accepted. The submissions on this issue tended to assume the correctness of Mr Corcoran’s version of the facts. The Tribunal did not accept that version. This is an issue of fact raising no question of law.

Whether Mr Far acted reasonably and in good faith

54. The fourth specific finding of fact identified by Mr Corcoran for the purposes of ground 2 is the finding at [58] of the Tribunal’s reasons that Mr Far acted “reasonably and in good faith”. The full finding is in the following terms:

“I am satisfied that the respondent at all material times acted reasonably and in good faith and only withdrew his application to terminate the tenancy because of his genuine (albeit mistaken) belief that the Tribunal did not have the jurisdiction to hear and determine the application for termination of the tenancy under section 90 of the Residential Tenancies Act.”

55. Mr Corcoran’s written submissions addressed this issue by reference to the decision of the Tribunal. It is not clear what complaint, if any, is made on this issue as to the decision of the Appeal Panel. I am not persuaded that any question of law such as to warrant granting leave to appeal has been identified.

Contumely

56. Finally, Mr Corcoran challenges the Tribunal’s finding at [54] rejecting Mr Corcoran’s submission that Mr Far acted with contumelious disregard for the Tribunal’s process when he changed the locks on the evening of 30 May 2016. Again, however, it is not clear what complaint, if any, is made as to the decision of the Appeal Panel on that issue. The submissions are transparently fact-based. For example, Mr Corcoran submitted as to all of the five specific findings: “these findings are integral elements of the factual structure underlying the particular issues, and their overturning would lead to a materially different disposition of the issues concerned (and hence different orders)”. The submission effectively acknowledges that Mr Corcoran’s true complaint is that, if the facts had been decided more in his favour, he might have enjoyed greater success.

Missing findings

57. Separately, Mr Corcoran’s submissions addressed “missing findings”, that is, issues as to which he led evidence and put submissions but concerning which the Tribunal made no finding. He said:

“It is submitted that the Court can make specific findings in respect of [the matters identified], or alternatively, exclude the whole of the defendant’s evidence (accepted by the Tribunal without notice to the plaintiff and also in breach of filing rules) and make simple findings based on the plaintiff's main affidavit (which is clear and straightforward), without needing to resolve any conflicts in the evidence.”

58. The submission misconceives the nature of an appeal on a question of law. As already noted, the basis on which it was contended that the Court could “exclude the whole of [Mr Far’s] evidence” was the contention that his evidence was not credible. Mr Corcoran’s written submissions relied on the decision in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 to support the submission that “credibility is not an impregnable prism” and that “appeal judges are not bound by findings based, explicitly or implicitly, on credibility.” At the same time, Mr Corcoran claimed to recognise that the present appeal is a “legality review”, not a full rehearing on the evidence. However, he submitted that the Appeal Panel was required to consider the evidence so far as necessary for its legality review and to respond to his contentions on “no evidence” and “unreasonableness” grounds.

59. The arguments made as to Mr Far’s credibility plainly invite the Court into impermissible merits review. Mr Corcoran submitted that the Court should bear in mind the maxim falsus in uno, falsus in omnibus (false in one thing, false in all). He submitted that provable lies had been told by Mr Far that were easy to detect. Even if that were so, the maxim does not reflect the law. Juries are frequently directed to the opposite effect, that is, that it is open to them to reject one part of a witness’s evidence but to accept other parts. That is the basis on which the Tribunal was entitled to proceed. Mr Corcoran’s appeal to the Appeal Panel, while ostensibly based on errors of law, in truth crossed the line into factual challenge in many respects. The Tribunal was right not to embark upon that process.

60. I am not persuaded that ground 2 identifies any question of law that warrants a grant of leave to appeal.

Ground 3: failure to engage with the argument; failure to give adequate reasons

61. Ground 3 asserts:

“Error of law by failing to engage with and respond to the plaintiff’s arguments and submissions, and failing to provide adequate reasons.”

62. The submissions in support of this ground are tendentious, proceeding on the assumption that everything put by Mr Corcoran was right and therefore it is impossible to understand how the Appeal Panel could have failed to uphold his claims.

63. Mr Corcoran submitted that the question whether the Appeal Panel was required to address and dispose of a written submission or oral argument put to it is a question of law, citing the decision of the High Court in Dranichnikovv Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088. In that case, the High Court held that the failure of the Refugee Review Tribunal “to respond to a substantial, clearly articulated argument” represented a constructive failure to exercise jurisdiction such that the applicant was entitled to prerogative relief. The decision turned on the fact that, as it was put by Hayne J at [95], the Tribunal “did not consider the claim which the applicant was then making, and had earlier made, for protection” because it misapprehended the particular social group to which he claimed to belong, which was the core basis of the claim for protection. Mr Corcoran has not established any such error here.

62. The decision in Dranichnikov is not authority for the proposition that a Tribunal will fall into legal error if it fails to refer to and engage with every argument put (whether clearly articulated or otherwise). Some discernment is required. The present case provides a good illustration as to why that must be so. Mr Corcoran’s written submissions are littered with lengthy legal arguments that are simply irrelevant to the task for this Court. It is not necessary to engage with every point and indeed to do so would be inimical to the overriding purpose stated in s 56 of the Civil Procedure Act 2005 (NSW).

63. Mr Corcoran’s submissions have not persuaded me that there is merit in the contention that the Appeal Panel failed to engage with any substantial, clearly articulated argument or that its reasons were inadequate. Leave to appeal on ground 3 should be refused.

Ground 4: error of law by failing to identify breaches of quiet enjoyment

66. Ground 4 asserts that the decision of the Appeal Panel entailed:

“Error of law by failing to identify breaches of quiet enjoyment (entailing identifying the wrong issue, overlooking evidence and endorsing findings that were not open) and make an award of damages accordingly.”

67. Mr Corcoran submitted that this ground is “supplementary to ground 2”. He noted that the Appeal Panel addressed his claim for compensation for breach of the covenant for quiet enjoyment at [82] and [83] of its reasons. He submitted that, in those paragraphs, the Appeal Panel misconceived the claim, focusing on the issues of the shower, access to the internet and the lockout. He asserted that his written submissions to the Tribunal in respect of quiet enjoyment were focussed on earlier events in the period leading up to 30 May which were addressed in detailed submissions not considered by the Appeal Panel. Mr Corcoran said “at least the primary decision maker focused his attention on the right issue at [64] to [66]”.

68. In the passage from the Tribunal’s decision referred to, the Tribunal said at [65]:

“I am not satisfied that the allegations of breach are made out on the evidence. I accept the respondent’s evidence and the evidence contained I the written statement of Mr Dixon, the other occupier of the premises at all relevant times. There is no other evidence (eg police reports) to substantiate the applicant’s assertions. No criminal charges (eg assault, or malicious damage to property) were laid against the respondent.”

69. Mr Corcoran submitted that the Appeal Panel’s alleged failure to engage with the issue raised by his grounds of appeal in respect of that finding amounts to legal error and entitles this Court to intervene and identify breaches of quiet enjoyment and then proceed to make an award of damages accordingly. As with a number of Mr Corcoran’s other grounds, that was a transparent invitation to this Court to undertake review of the merits of the decision rather than raising any question of law.

Ground 5: injury and loss caused by the lockout

70. Ground 5 asserts that the decision of the Appeal Panel entailed:

“Error of law by failing to identify the injury and loss sustained by the plaintiff in consequence of the lock-out and determine damages accordingly.”

71. Mr Corcoran acknowledges that the Appeal Panel found error in the Tribunal’s decision in that the Tribunal purported to exercise a discretion not to award compensation notwithstanding the finding that the tenancy agreement had been repudiated by Mr Far. However, he submits that, in then proceeding to make its own assessment of damages, the Appeal Panel fell into the same error in that it failed to determine what loss was suffered.

72. Once again, this ground invited review of the merits under the guise of asserted legal error. Mr Corcoran submitted:

“As will be explained below, it is submitted that the Panel failed to identify the injury or loss sustained by the plaintiff and thereby mistook the facts in a way that caused its discretion to miscarry”.

73. Upon analysis, the submissions that follow complain of the Appeal Panel’s evaluation of the evidence working from the premise that every contention made by Mr Corcoran ought to have been accepted and regarded as establishing an entitlement to significant damages. No question of law warranting a grant of leave is identified in Mr Corcoran’s complaints about that assessment.

Ground 6: section 3B(1)(a) of the Civil Liability Act

74. Ground 6 asserts that the decision of the Appeal Panel entailed:

“Error of law by failing to apply section 3B(1)(a) of the Civil Liability Act 2002 and determine damages accordingly.”

75. Mr Corcoran made a claim for non-economic loss, general damages for being locked out and aggravated damages. The Tribunal noted at [82] that an award of non-economic loss for personal injury could not be made unless Mr Corcoran met the threshold in the Civil Liability Act (15% of a most extreme case). Mr Corcoran conceded that he did not meet that threshold but submitted that the operation of the Civil Liability Act was excluded because the claim was made in circumstances where the injury was caused by an intentional act done by Mr Far with intent to cause injury or death. The Tribunal rejected the claim on the basis that the evidence did not support such a finding.

76. The ground of appeal from that determination to the Appeal Panel was “error of law by misconstruing s 3B(1)(a) of the Civil Liability Act 2002 and failing to confine the limitations in part 2 of that Act: (regarding ‘personal injury damages’) to cases of negligence”. Mr Corcoran said it was put to the Panel that the s 3B(1)(a) exclusion “does not turn on a simple factual determination derived from evidence but requires statutory interpretation (to determine its legal meaning) and a consideration of the cases on the point (of which there are plenty)”. He said:

“It is submitted that the Appeal Panel was bound, as a matter of law, to rule that the section 3B(1)(a) exclusion applied in this case and that consequently the Civil Liability Act did not limit the damages to be awarded. In the first place, the present is clearly not a ‘negligence’ matter, and in the second, the defendant’s violent and aggressive behaviour at the window self-evidently displayed an intent to injure”. (emphasis in original)

77. As with a number of Mr Corcoran’s previous grounds, those contentions ultimately stem from the premise that his version of events must be accepted and that it was not open to the Tribunal or the Appeal Panel to reach any different conclusion. It is merits review under the guise of a closely reasoned legal point. No question of law is identified.

Ground 7: aggravated damages

78. The seventh ground of appeal asserts that the decision of the Appeal Panel entailed:

“Error of law by failing to apply principles governing the assessment of aggravated damages and proceed to make an award of same.”

79. Mr Corcoran noted that the Appeal Panel dealt with the issue of aggravated damages in two short paragraphs. In the circumstances, no more was required. In short, the Appeal Panel’s reason for rejecting the claim for aggravated damages was that there was no wrongful act on the part of Mr Far such as to warrant such an award. Mr Corcoran supported this ground in this Court by referring back to his submissions to the Appeal Panel. There, it was submitted:

“The member mistook and/or mischaracterised the events and circumstances surrounding the lock-out, and therefore failed to perceive the aggravating features of the respondent’s conduct.”

80. The submission identifies no question of law. It is a complaint as to the Tribunal’s assessment of the facts.

Ground 8: loss of bargain

81. Ground 8 asserts that the decision of the Appeal Panel entailed:

“Error of law by failing to apply principles governing the identification of loss of bargain and award damages accordingly.”

82. This ground is entirely without merit. In the proceedings before the Tribunal, Mr Corcoran claimed $400 by way of compensation for not having a private shower in the premises to which he moved after his tenancy with Mr Far was terminated. The claim was expressly calculated by reference to the alleged “unexpired tenancy” of 8 weeks, which appeared to assume the existence of a fixed-term tenancy (page 4 of Mr Corcoran’s submissions to the Tribunal). The amount sought was $50 per week x 8 weeks. The Tribunal rejected the claim on the basis that it was not satisfied that there was a fixed-term tenancy: at [76]. Mr Corcoran challenged that finding on the basis that he had argued the claim by reference to his entitlement to 90 days’ notice so that the rejection of the fixed-term tenancy was not fatal. The Tribunal appears to have overlooked that argument (at [87]) but it does not matter, because there was also a finding that Mr Corcoran’s tenancy agreement with Mr Far did not entitle him to a private shower, so there was no loss of bargain. The argument on this issue is spurious and time-wasting.

Ground 9: obligation to repair the shower

83. Ground 9 asserts that there was:

“Error of law by failing to find that the defendant was subject to a statutory obligation to repair the shower.”

84. This ground is also without merit. It was plainly open to the Appeal Panel to reject the contention that Mr Far was under a legal obligation to repair the shower in circumstances where, as just noted, there was a finding that Mr Corcoran’s tenancy agreement with Mr Far did not entitle him to a private shower. There can have been no obligation to repair a facility to which Mr Corcoran had no contractual entitlement.

Ground 10: failure to identify reductions in services

85. Ground 10 asserts that there was:

“Error of law by failing to identify reductions in services related to the shower facility and internet access (entailing identifying the wrong issue, overlooking evidence and endorsing findings that were not open) and make an award of damages accordingly.”

86. This ground is also without merit. It transparently seeks to re-litigate factual findings made in the Tribunal. So much is clear from the introduction of this point in the written submissions at page 33, last paragraph:

“The two claims are discussed under separate headings below, but, by way of preface, the shower analysis is based on a mistake of law that there was no obligation on the defendant to repair the shower (see Ground 9 above). And the internet analysis is based solely on the defendant’s testimony, which is invalidated for lack of credibility, leaving ‘no evidence’ to support the ultimate conclusion (cf. Ground 2 above). There is also a question of overlooking evidence, as well as the duty to inquire, as the plaintiff had stated on his document list that there was a photo of the Wi-Fi error message (indicating that the internet password had changed), as well as the clear evidence in the affidavit.”

87. The argument concerning the shower was, again, spurious and time-wasting. On page 34 of his written submissions Mr Corcoran wrote:

“The primary judgment is predicated on the proposition that there was no agreement for a private bathroom, ie. the shower was not exclusive (as may be distinguished from the notion that, as a matter of contract law, the shower was excluded from the subject-matter of the lease or licence). A significant fact is that the defendant at no time asserted that the shower area was not part of the leased/licensed area covered by the agreement (which had to be so, for it was envisaged that the shower would be used by the plaintiff at some point). The logical error in the analysis is the assumption or belief that, because the shower was not exclusively assigned to the plaintiff, there would be no loss or detriment to plaintiff owing to its non-availability (due to the existence of a shower on the floor below). But that is not so: as explained in submissions [AFF 100], non-exclusive access to and use of the shower (in a unit with only 3 people, where the others had their own showers) was the functional equivalent of a private shower (since only the plaintiff would use the top floor bathroom), and therefore equally valuable. Common practice in the Sydney market is to value a private shower at $50-$60 per week (as submitted by reference to sample advertisements: see [AFF 127-136]), ie. an exclusivity premium on top of the price of arrangements with communal facilities (a non-exclusive shower), which stands to reason given the convenience and privacy benefits.”

88. It would be quite a wrong use of the Court’s resources to grant leave to appeal on such a point.

Ground 11: lost or damaged property, accommodation and meal expenses

89. Ground 11 asserts that there was:

“Error of law by failing to identify losses sustained by the plaintiff in the form of property taken or damages, accommodation and meal expenses, and moving costs (entailing identifying the wrong issue, overlooking evidence and endorsing findings that were not open) and make an award of damages accordingly.”

90. Mr Corcoran’s written submissions did identify a question of law arising from the Appeal Panel's treatment of the losses he claimed for lost or damaged property, accommodation and meal expenses and moving costs. The Appeal Panel made a “global” award of $500 which it was said included allowance for “moving and ancillary costs” and “inconvenience”.

91. Mr Corcoran submits that s 187(1)(d) of the Residential Tenancies Act authorises only an award of compensation for actual losses. He submits that the Appeal Panel exceeded its authority in making a global award.

92. It may be accepted that the question whether the authority under s 187(1)(d) to make “an order as to compensation” includes authority to award a global sum in lieu of specific items claimed raises a question of law. However, I do not think that warrants the grant of leave to appeal in the present case, for two reasons. First, there does not appear to be any particular basis in the text or context of the statute to think the Tribunal does not have that power. Indeed, a number of Mr Corcoran’s claims sought global amounts of compensation under different heads. The fact that he was able to provide particular receipts in support of this particular claim did not mandate the consideration of every single itemised claim. In my view, the Appeal Panel was entitled, in the face of an overly-detailed and punctilious claim, to take a global approach.

93. Secondly, there is an important question of proportionality in respect of this ground. The amount claimed for property taken or damaged, accommodation and meal expenses and moving costs was $654. The resources of the Tribunal, the Appeal Panel and the Court that have been devoted to this case are already well out of proportion to the interest at stake.

94. Ground 11 otherwise raises factual questions under the guise of errors of law. Leave to appeal on that ground should be refused.

Ground 12: monetary limit

95. Ground 12 asserts that the decision of the Appeal Panel entailed:

“Error of law by failing to decide that a monetary limit of $30,000 applied to the proceeding, being one in which an order with respect to a bond was made.”

96. This ground is without merit. In circumstances where the Appeal Panel determined to award only a small sum well beneath the monetary limit, it was not necessary to decide the point of construction raised by Mr Corcoran.

Ground 13: procedural fairness

97. Ground 13 asserts that the decision of the Appeal Panel entailed:

“Error of law by failing to identify breaches of procedural fairness in relation to the disclosure of material by the defendant.”

98. Mr Corcoran submits that the Appeal Panel did not deal with two of his grounds of appeal concerning procedural fairness, being grounds (4) and (6). Those grounds were:

“4. Error of law by failing to admit relevant evidence tendered by the applicant to the tribunal.

…

6. Error of law by characterising a reduction in services at the premises as a breach of quiet enjoyment under section 50 of the RTA.”

99. It may be accepted that the Appeal Panel does not appear to have addressed those grounds in terms.

100. In his written submissions in support of the present application, Mr Corcoran identified four matters to be assessed for procedural fairness:

1. The receipt of evidence from the defendant which the plaintiff had not seen beforehand (or otherwise been informed about);

2. The receipt of emailed material from the defendant;

3. The refusal to play or accept a CD from the defendant;

4. Failure to enquire into evidence listed in the plaintiff’s submission, being:

1. photo of mosquito net;

2. photo of Wi-Fi error message;

3. photos showing service;

4. CD recording of first call over.

101. As to the first matter, Mr Corcoran submits “the member seemed to think it was permissible to read aloud the contents of documents (not even providing photo copies to the plaintiff)”. Having regard to the particular challenge presented by these proceedings (including the level of acrimony between the parties) and his duty to conduct the hearing in a manner that was just but also quick and cheap in accordance with s 36 of the Civil and Administrative Tribunal Act, I am not persuaded that the process adopted by the Tribunal was unfair.

102. As to the emailed material, Mr Corcoran’s submissions present a garbled combination of assertions and scandalous criticism of the Tribunal member. I am unable to discern any procedural unfairness from what has been written.

103. Third, as to the CD, Mr Corcoran submitted “the CD recording established incontrovertibly that the plaintiff did not ‘deny jurisdiction’”. For the reasons already touched on, it does not matter whether Mr Corcoran denied that the Tribunal had jurisdiction to entertain Mr Far’s application for a termination order. The question whether a court does or does not have jurisdiction does not turn on the position adopted by the parties. Further, the significant finding was the Tribunal’s acceptance that Mr Far believed the Tribunal did not have jurisdiction to grant the relief he sought. There is no merit in this point.

104. Finally, as to the alleged failure to make enquiries, there was no obligation on the Tribunal to do so and no error in the Appeal Panel in failing to hold that there was.

Ground 14: costs

105. Ground 4 asserts that the decision of the Appeal Panel entailed:

“Error of law by failing to be satisfied that “special circumstances” existed for the purposes of section 60 of the Civil and Administrative Tribunal Act 2013, and proceed to make an order for costs.”

106. This ground relates to the Tribunal’s refusal to award Mr Corcoran his filing fee. The authority to make such an order turns on the Tribunal being satisfied as to the existence of “special circumstances”. That was quintessentially a judgment for the Tribunal to be determined by reference to all of the circumstances of this extraordinary case. Ground 14 raises no question of law such as to warrant a grant of leave to appeal by this court.

Conclusion

107. For those reasons, the summons for leave to appeal is dismissed.

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Decision last updated: 25 September 2019