Hussein v NSW Land and Housing Corporation

[2013] NSWSC 213

Supreme Court

New South Wales

Medium Neutral Citation:

Hussein v NSW Land and Housing Corporation [2013] NSWSC 213

Hearing dates:

20/03/2013

Decision date:

20 March 2013

Before:

Fullerton J

Decision:

1. The amended summons is dismissed.

2. The applicant is to pay the first defendant's costs.

Catchwords:

Appeal from decision of the Consumer Trader and Tenancy Tribunal

Legislation Cited:

Consumer, Trader and Tenancy Tribunal Act 2001

Cases Cited:

Guo v CTTT [2007] NSWSC 1335
Milstern Retirement v Carton [2007] NSWSC 772

Category:

Principal judgment

Parties:

Motahar Hussein (Applicant)
NSW Land and Housing Corporation (1st Defendant)
Consumer Trade and Tenancy Tribunal (2nd Defendant)

Representation:

Counsel:
In person (Applicant)
V McWilliam (1st Defendant)
Solicitors:
In person (Applicant)
Crown Solicitor (1st Defendant)

File Number(s):

2012/191784

 Decision under appeal 

Date of Decision:

2012-05-22 00:00:00

Before:

Consumer Trade and Tenancy Tribunal

File Number(s):

SH 12/02097

Judgment

1. HER HONOUR: By an amended summons dated 9 November 2012 the applicant appeals the decision of the Consumer Trader and Tenancy Tribunal (the Tribunal) of 22 May 2012 dismissing his claim for compensation for what he contended were breaches by the NSW Land and Housing Corporation (the first defendant) of the residential tenancies agreement under which he occupied social housing premises in Waterloo, including what were said to be the defendant's failure to carry out repair works on the premises and interference with the applicant's right to quiet enjoyment of the premises as a tenant.

1. The applicant appeared on his own behalf before the Tribunal and in the proceedings in this Court. Counsel appeared for the first defendant. The Tribunal (the second defendant) filed a submitting appearance.

1. The applicant seeks an order quashing the decision of the Tribunal on the basis that it was made in excess of jurisdiction and an order directing the Tribunal to redetermine the application for compensation according to law.

1. In the proceedings before the Tribunal the applicant claimed a total of $9,500 in compensation (which he rounded to $10,000) based on the following asserted breaches by the first defendant of its obligations to him:

a. $2,000 for the cost of ventilation and ducting;

b. $3,000 for the installation of a security system;

c. $700 for a stolen bicycle;

d. $3000 for expenses incurred in leaving the premises;

e. $300 for legal fees associated with Local Court proceedings in respect of applications for Apprehended Violence Order;

f. $300 for phone and fax communication expenses; and

g. $200 for travelling expenses.

1. The Tribunal dismissed the claim to compensation on the basis that:

a. There was no supporting evidence for the ventilation and ducting costs, the security system, the stolen bicycle, expenses in leaving the premises, legal fees, phone/fax communication expenses or travelling expenses;

b. The ducting work and installation of a security system was undertaken without permission; and

c. There was no causal connection between the theft of the bicycle and any breach of the residential tenancy.

1. In addition, the Tribunal determined that there was no conduct on the part of the first defendant that caused the losses the applicant claimed he was entitled to be compensated for, nor was there sufficient evidence to substantiate his claim that the actions or inactions of the first defendant disturbed his right to quiet enjoyment of the property.

1. The applicant's right of appeal to this Court arises pursuant to s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the Act) relevantly as follows:

65 Review by prerogative writ etc generally excluded

(1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of:

(a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or

(b) ...

(c) ...

in respect of any matter that has been heard and determined ...by the Tribunal in accordance with this Act....

(2) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the jurisdiction of the Tribunal to determine the matter was disputed if the ground on which the relief or remedy is sought is that:

(a) the Tribunal gave an erroneous ruling as to its jurisdiction, or

(b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed.

(3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that:

(a) the Tribunal had no jurisdiction to make the order, or

(b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness.

1. The applicant's grounds of appeal condense to a complaint that in the course of the hearing he was denied procedural fairness on a number of interrelated bases relating to his wish to place before the Tribunal additional material bearing upon his claim for compensation and what he contended was the Tribunal's failure to permit him an opportunity to augment his claim with further evidence. He also complains that during the course of the hearing, what he described as "secret documents regarding case management" were provided to the Tribunal and not disclosed to him.

1. The grounds of appeal, which contend that the Tribunal was in error in determining the claim because of what is said to be a failure to take into account evidence before it or failing to give sufficient weight to that evidence, exceed the right of appeal under s 65 of the Act. To the extent that the applicant's oral submissions were advanced in support of those grounds of appeal they are disregarded.

1. The applicant relied upon the Tribunal member's reasons for decision and the transcript of proceedings in support of the claim for relief.

1. The scheme of the Act provides that the Tribunal may determine its own procedure and inform itself on any matter it thinks fit subject to the overriding rules of procedural fairness. Those rules dictate that the Tribunal must ensure that each party in the proceeding is given a reasonable opportunity to call or give evidence or otherwise present its case and to make submissions in relation to the issues in the proceedings.

1. The duty to ensure that a hearing is conducted according to established principles of fairness does not extend to the Tribunal ensuring that an applicant or respondent present its best possible case (see Guo v CTTT [2007] NSWSC 1335, per Harrison AsJ at [29]; Milstern Retirement v Carton [2007] NSWSC 772 at [43]).

1. After a careful consideration of the transcript of proceedings, and after affording the applicant the opportunity to refer me to any material exchanges between himself and the Tribunal member recorded in the transcript, I am not satisfied that there is any support for the claim that he was refused the opportunity to present his case or that the Tribunal was provided with, or referred to, documents relevantly bearing upon the claim which were not disclosed to him. It is wholly immaterial to the orders sought in the amended summons that were he to have had more documents available to tender before the Tribunal the decision dismissing his claim for compensation might have been different, in circumstances where he did not seek to have the proceedings adjourned to obtain the documents nor identify for the attention of the Tribunal member what additional documents he might have been able to provide.

1. I am not satisfied that the applicant was denied procedural fairness or that the decision is otherwise infected by jurisdictional error of the kind with which s 65 is concerned.

1. Accordingly, the orders I make are as follows:

1. The amended summons is dismissed.

2. The applicant is to pay the first defendant's costs.

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Decision last updated: 25 March 2013