Zheng v NSW Land and Housing Corporation

[2013] NSWSC 214

Supreme Court

New South Wales

Medium Neutral Citation:

Zheng v NSW Land and Housing Corporation [2013] NSWSC 214

Hearing dates:

20/03/2013

Decision date:

20 March 2013

Before:

Fullerton J

Decision:

1. The 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

Category:

Principal judgment

Parties:

Xiao Yan Zheng (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):

2012/213888

 Decision under appeal 

Date of Decision:

2012-05-22 00:00:00

Before:

Consumer Trader and Tenancy Tribunal

File Number(s):

SH 11/45385

Judgment

1. HER HONOUR: By summons dated 10 July 2012 the applicant appeals the decision of the Consumer Trader and Tenancy Tribunal (the Tribunal) of 16 January 2012 dismissing her claim for $8000 compensation for the installation of a security system and for private legal costs incurred in the Local Court. She claimed these costs were incurred as a consequence of breaches by the NSW Land and Housing Corporation (the first defendant) of the residential tenancies agreement under which she occupied social housing premises, including what was said to be the first defendant's failure to prevent interference with her right to quiet enjoyment of the premises as a tenant by failing in some unspecified way to deal with a grievance she had with an occupant of a neighbouring unit.

1. The applicant had the assistance of a friend (Mr Hussein) in pressing her claim for compensation 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. (I note Mr Hussein's application for compensation for the costs of installing a security system was also refused by the Tribunal and the subject of an unsuccessful appeal to this Court [2013] NSWSC 213.)

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. The Tribunal dismissed the claim for compensation on the principal basis that the applicant failed to produce sufficient substantiating evidence as to the amounts claimed. (He did however express grave doubts as to whether he had jurisdiction to order that the defendant pay the costs the applicant incurred in seeking a noise abatement order and an apprehended violence order in the Local Court.) The Tribunal member also held that even had the applicant produced evidence supporting the purchase and installation of the security equipment, she had failed to establish that the defendant was in breach of the tenancy agreement and that she incurred the costs in those circumstances. In that regard he noted that the applicant did not take any action for 12 months after taking occupation of the unit to draw attention to the issue with her neighbour despite her claim that the conflict persisted over that 12 month period; that when the matter came to a head attracting a police report on 27 September 2010 police apparently accepted it was the result of mutual grievances such that, in the result, no charges were laid and that the defendant, who confirmed that the animosity existed also based on mutual complaints, had taken reasonable steps to address the complaint in accordance with its obligations as a public landlord. In addition, the Tribunal member observed that the objective evidence in the proceedings going to the basis upon which apprehended violence orders were issued, including video evidence, was not compelling.

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 summons commencing the proceedings asserted a failure on the part of the Tribunal to afford her natural justice and, for that reason, it had exceeded its statutory jurisdiction. The additional ground, to the effect that the Tribunal had "failed to understand her claim or to consider relevant matters" was not further particularised and no further particulars were provided in the course of the hearing before me. In any event, I was not addressed as to how, in this case, a failure to consider relevant matters constituted jurisdictional error of the kind to which a right of appeal attaches under s 65 (2) of the Act.

1. In the course of developing oral submissions on the applicant's behalf Mr Hussein essentially complained that the Tribunal member should have been persuaded by the evidence of the applicant's right to compensation and that he should have looked more closely at the evidence in the Local Court proceedings before determining the claim against her. At one time he faintly asserted that the Tribunal member did not pay sufficient attention to the applicant's infacility with the English language although this was not developed or pressed as a particular of the complaint that she was denied procedural fairness. I note in that regard that the applicant gave evidence before the Tribunal member in English and, whilst it is clear that English is not her first language, her evidence was nonetheless comprehensible and her answers responsive.

1. It was also submitted on her behalf that the Tribunal member ought to have taken the time to review in closer detail the video recording from the variously placed surveillance cameras in the applicant's apartment in order to appreciate that the basis of her claim was that she needed to purchase the cameras in order to deflect and/or protect herself against ongoing harassment from her neighbour. I do not accept that submission. 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. In any event, it is clear from the transcript of proceedings that the Tribunal member did not regard the video imaging of various rooms inside the applicant's apartment (including her child's bedroom) as bearing relevantly upon any issue he had to decide relative to her claim for compensation. Furthermore, the complaint that the video evidence was not referred to and the receipts for the installation of the security system (such as they were) were not given adequate weight is not a submission bearing upon whether or not the applicant was afforded procedural fairness, but a submission to the effect that the evidence should have compelled a different conclusion. A submission of that kind does not enliven a right of appeal under the Act.

1. After carefully considering the transcript of proceedings, and after affording the applicant the opportunity to refer me to any material exchanges between with the Tribunal member recorded in the transcript, I am not satisfied that there is any support for the claim that she was refused the opportunity to present her case (whether on her own behalf or through Mr Hussein) or that she was in any way denied procedural fairness in seeking to press her claim for compensation.

1. I am not satisfied 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 summons is dismissed.

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

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Decision last updated: 25 March 2013