Makowska v St George Community Housing Limited

1. [1]

   By amended summons filed on 23 February 2024 the plaintiff, Zofia Makowska, seeks leave to appeal on questions of law from the decision of the Appeal Panel (“the Panel”) of the NSW Civil and Administrative Tribunal (“NCAT”) on 1 November 2023 (“the Appeal Panel Decision”). That decision is not published on Caselaw. The defendant, St George Community Housing Limited (“the landlord”) is the landlord of her social housing pursuant to an arrangement with the owner, the NSW Land and Housing Corporation (“LAHC”). [1] From 1 April 2019, the landlord effectively took over management of Ms Makowska’s building from the LAHC.

2. [2]

   Ms Makowska has been residing in a two-bedroom unit on the second floor of the apartment block (“the property”) on the lower North Shore since 1991. There are 24 units spread over three sections. The property backs onto the North Shore train line.

3. [3]

   Ms Makowska clearly takes a keen interest in the general maintenance of the property and, in particular, the lawns and garden. She has brought a number of proceedings in NCAT since 2018 against the landlord (and LAHC before that) and, when unsuccessful, has either appealed or sought judicial review of the NCAT decisions in this Court. Some of that history is relevant to the grounds of appeal she now brings, and I will briefly set it out before turning to consider her most recent complaints.

4. [4]

   On 7 May 2018, Ms Makowska commenced proceedings in the Consumer and Commercial Division of NCAT against the previous landlord, the LAHC (SH18/20556). The proceedings were finalised by consent orders being made on 18 July 2018 requiring LAHC to comply with s 50(3) of the Residential Tenancies Act 2010 (NSW) (“the RTA”) by taking reasonable steps to ensure that neighbours did not interfere with Ms Makowska’s reasonable peace, comfort, or privacy in using the residential premises. A claim for compensation was dismissed.

5. [5]

   On 19 September 2018, Ms Makowska sought an order under s 187(1)(b) of the RTA and an order for payment of compensation under s 187(1)(d). She contended that the landlord had breached the consent orders. She relied on a number of specified breaches. Her application was dismissed on 7 January 2019. She appealed against that decision.

6. [6]

   On 14 January 2019, Ms Makowska filed a further application seeking identical orders but relying on additional specified breaches said to have occurred between 3 December 2018 and 14 January 2019. That application was summarily dismissed on 14 February 2019. She appealed against that decision as well.

7. [7]

   As stated above, from 1 April 2019 the landlord took over from LAHC.

8. [8]

   Both of Ms Makowska’s pending appeals were heard on 3 April 2019 by the Panel. The first appeal was dismissed but Ms Makowska was successful on the second appeal and that matter was remitted to a tribunal member on 7 June 2019: Makowska v NSW Land and Housing Corporation [2019] NSWCATAP 105.

9. [9]

   Meanwhile, on 29 May 2019, Ms Makowska had commenced further proceedings in NCAT seeking compensation from the landlord for breach of her right to quiet enjoyment under the lease pursuant to s 50 of the RTA. She alleged that the landlord had failed to repair drains in the common area which resulted in stormwater blocking convenient access to the car park and the lawn in a recreational area (which she helped to maintain and enjoyed) to be destroyed.

10. [10]

    At a directions hearing on 12 August 2019 of the remitted proceedings, LAHC was removed as the respondent to that application and the landlord was joined instead. The landlord did not attend the subsequent hearing due to an administrative error. The hearing proceeded in its absence and on 30 October 2019 the landlord was ordered to pay Ms Makowska the sum of $2,402.64 by way of compensation for breach of the obligation to give quiet enjoyment of the premises.

11. [11]

    On 22 November 2019, the landlord made an application to NCAT to set aside or vary that decision. On 18 December 2019, NCAT made an order setting aside the order made on 30 October 2019. The proceedings were re-enlivened and given another number (SH 19/56856).

12. [12]

    On 13 February 2020, Ms Makowska’s claim was upheld in part (Makowska v St George Community Housing Ltd (New South Wales Civil and Administrative Tribunal Appeal Panel, 13 February 2020, unrep) in that an order was made under s 44(3) of the RTA to reduce her rent from 1 April 2019 to 31 March 2020. Her application was otherwise dismissed. Her complaint on that occasion concerned a blocked stormwater drain leading to, inter alia, the destruction of the lawn in the recreational area near the car park.

13. [13]

    On 26 February 2020, Ms Makowska appealed against this decision to the Appeal Panel. On 29 July 2020, the Panel delivered its decision, dismissing the appeal: Makowska v St George Community Housing Ltd [2020] NSWCATAP 159.

14. [14]

    On 9 July 2020, an order was made, with brief reasons, in proceedings SH 19/56856 (see [11] above) that Ms Makowska’s application to rejoin the LAHC be refused (despite the fact that the landlord was not a party to the proceedings in which the 18 July 2018 orders were made and was not bound by them).

15. [15]

    Ms Makowska appealed to the Panel against the refusal to join the landlord. That appeal was heard on 22 February 2021, and she was partially successful: that decision, Makowska v St George Community Housing Ltd [2021] NSWCATAP 198, was published on 30 June 2022.

16. [16]

    On 2 October 2020, Ms Makowska filed a summons seeking judicial review of Makowska v St George Community Housing Ltd [2020] NSWCATAP 159 (see [13] above). On 17 March 2021, the matter was heard by Basten JA, sitting at first instance in the Common Law Division.

17. [17]

    On 26 March 2021, Basten JA dismissed the summons: Makowska v St George Community Housing Ltd [2021] NSWSC 287. Ms Makowska’s subsequent application for leave to appeal against that decision was dismissed by Leeming and Payne JJA on 18 October 2021: Makowska v St George Community Housing Ltd [2021] NSWCA 249.

18. [18]

    Ms Makowska also sought judicial review of the decision of Makowska v St George Community Housing Ltd [2021] NSWCATAP 198 (see [15] above). Although those proceedings were commenced in the Common Law Division of this Court, on 31 January 2022, an order was made under s 51 of the Supreme Court Act 1970 (NSW) transferring the matter to the Court of Appeal because Judge Cole was one of the members of the relevant appeal panel. The matter was listed for oral hearing on 3 February 2022, but Ms Makowska made an application for the matter to be determined on the papers. The landlord did not oppose that order. The summons was dismissed with costs on 7 February 2022: Makowska v St George Community Housing Ltd [2022] NSWCA 5.

19. [19]

    Meanwhile, on 24 November 2021, Ms Makowska brought fresh proceedings before NCAT seeking a rent reduction of 10% from 1 April 2020 to 31 March 2021 pursuant to s 44(1)(b) of the RTA, as well as an order pursuant to s 187(1)(b) of the RTA that the lawns that form part of the common property of the premises be remediated.

20. [20]

    On 5 April 2022, Member George granted Ms Makowska’s application and made orders, inter alia, reducing Ms Makowska’s rent and requiring the landlord to remediate the lawn in the common area of the premises in a proper and workmanlike manner on or before 3 June 2022: Makowska v St George Community Housing [2022] NSWCATCD 69.

21. [21]

    On 19 April 2022, Ms Makowska filed an application seeking a rental reduction pursuant to s 44(1)(b) of the RTA of 10% from 1 April 2021 until 31 March 2022, being a total of $1,768.18, to be paid as a money order.

22. [22]

    The application was heard before Member Eftimiou on 12 July 2022. Ms Makowska did not seek another remediation order pursuant to s 187(1)(b) of the RTA and at the hearing it was conceded that the order made by Member George for the landlord to remediate the lawn on or before 3 June 2022 had been complied with. The landlord furnished the tribunal with a horticulturalist report which satisfied Member Eftimiou that it had complied with its obligations to maintain and repair the common property garden areas.

23. [23]

    On 12 July 2022, Member Eftimiou made orders reducing Ms Makowska’s rent on the basis that the diminished use of the common area was a reduction of facilities provided with the premises. The tribunal found that the rent was excessive for the period of 1 April 2021 until 25 June 2021, and for the period of 11 October 2021 to 31 March 2022. Between 25 June 2021 and 11 October 2021, the landlord was prohibited by a NSW Public Health Order from carrying out non-essential works such that the tribunal found there was not a withdrawal of facilities during this period. The tribunal found a total of 257 days when the rent was excessive due to a reduction of facilities provided with the premises and awarded a money order to Ms Makowska comprising a 10% reduction for the relevant days.

24. [24]

    On 15 August 2022, Ms Makowska filed a renewal of proceedings application seeking to renew the orders of Member George requiring a rent reduction to $159.24 for the period of 1 April 2020 to 3 January 2021 and to $301.52 for the period of 4 January 2021 to 31 March 2021, and a remediation of the lawn in the common area on or before 3 June 2022.

25. [25]

    On 21 September 2022, the hearing was adjourned to a date to be fixed by the Registrar. Ms Makowska sought orders that the rent reduction be paid as a rent refund and not a rent credit on the basis that her rent was paid as a Centrelink deduction and so she did not have the benefit of the rent reduction order. The landlord informed the tribunal that it had complied with all of the relevant orders.

26. [26]

    On 22 November 2022, the renewal application was withdrawn at the request of Ms Makowska. The reasons for withdrawal, as stated by Member Kennedy, indicated that the matter was withdrawn pursuant to a private agreement between the parties which involved a transfer of rental credit from the landlord to Ms Makowska. The reasons for withdrawal did not include any reference to the remediation order.

27. [27]

    On 4 April 2023, Ms Makowska applied to the tribunal for a further rent reduction pursuant to s 44(1)(b) of the RTA of 10% of the rent between 1 April 2022 to 31 March 2023 as well as an order pursuant to s 187(1)(b) of the RTA that the lawns that form part of the common property of the premises be remediated.

28. [28]

    The application was heard before Member De Jersey on 2 August 2023. In addition to Ms Makowska’s written application, the material before Member De Jersey comprised a horticultural report by “Vision Landscapes” dated 27 May 2022, relied upon by the landlord, and a number of photographs depicting the back area of the residential premises, dated 29 May 2023.

29. [29]

    On 10 August 2023 Member De Jersey dismissed Ms Makowska’s application for a rent reduction and remediation of the garden on the basis that she was not satisfied on the material before her that the landlord had withdrawn amenities or facilities from the tenant.

30. [30]

    That decision is not published on Caselaw.

The decision of the Member De Jersey on 10 August 2023

1. [31]

   In her reasons, Member De Jersey set out the parties’ details and described the property. She then made the following factual findings.

2. [32]

   Ms Makowska claimed that the common property gardens had deteriorated over the years and some of the grassy areas were now either bare or weedy. Accordingly, she sought a rental reduction of 10% for the maximum period of 12 months from 1 April 2022 to 31 March 2023 and a work order that the landlord rehabilitate the lawns of the common property areas.

3. [33]

   Member De Jersey noted that the landlord had adduced evidence that it had a fortnightly garden maintenance program, and that the grass areas were mowed on a fortnightly basis. It was accepted that the trees have grown over the years and are about 20 to 30 metres tall, but that they cannot be trimmed without council’s approval and a number of them are not on the landlord’s land. The landlord has made requests to NSW Transport to have those trees trimmed.

4. [34]

   Member De Jersey also noted the evidence that the shadow from the tall trees means that some of the grass does not grow but the trees provide shade and a noise buffer from the nearby train line. The back grassy area was re-turfed in 2022. There has been consultation with residents about the garden and seating area.

5. [35]

   It was noted that Ms Makowska considers the garden area a place where she can heal and relax by undertaking maintenance such as raking the lawn.

6. [36]

   Member De Jersey then made the following findings:

7. [37]

   On 7 September 2023, Ms Makowska appealed to the Panel against the decision of Member De Jersey under s 80 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) (“the NCAT Act”) which is in these terms:

8. [38]

   The relevant sub-section which governed the landlord’s internal appeal was sub-s (2)(b). The circumstances in which the Appeal Panel may grant leave to appeal on a ground other than a question of law are set out in Sch 4 Pt 6 cl 12 of the NCAT Act which is in these terms:

9. [39]

   Ms Makowska relied upon two grounds of appeal:

   1. (1)

      That the learned member acted so unreasonably in dismissing the rent reduction claim that no reasonable decision maker would have made that decision; and

   2. (2)

      That the learned member misunderstood or misapplied s 187(1)(b) or (e) of the RTA.

10. [40]

    The appeal was set down for hearing on 1 November 2023 before the Appeal Panel constituted by Senior Member Wilson and Senior Member Boxall.

11. [41]

    Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2015 (NSW) (“the NCAT Rules”) provides:

12. [42]

    The relevant principles to be applied when determining whether to extend the time for lodging an appeal were discussed by Wright J in Jackson v NSW Land and Housing [2014] NSWCATAP 22 (“Jackson”) at [22] as follows:

13. [43]

    Thus, the time limit for lodging an appeal to the Appeal Panel from a decision of a single member is 14 days. Ms Makowska did not lodge her appeal until 7 September 2023 (28 days from the date of the decision).

14. [44]

    Relevant to Ms Makowska’s first ground of appeal in this Court, the transcript of the proceedings before the Panel reflects that the Members clearly had difficulty in getting Ms Makowska to respond to questions asked, including when she was asked to identify her appeal grounds in order to properly understand whether they concerned questions of law, mixed fact and law, or solely fact.

15. [45]

    On a number of times, Ms Makowska was asked to clarify her grounds and was not able to do so. By way of example, the following exchange occurred:

16. [46]

    In further discussion between Senior Member Wilson and Ms Makowska, it emerged that the substance of Ms Makowska’s complaint was that Member De Jersey had “misconceived [the tribunal’s] function and the facts”, because Ms Makowska had been seeking to enforce the orders made in previous tribunal decisions, a purpose of the appeal which remained unfulfilled.

17. [47]

    Ms Makowska alleged that the landlord had still failed to fulfill the order of Member George to remediate the property. Senior Member Wilson confirmed that Ms Makowska did not lodge a renewal application in relation to the remediation order. The Senior Member noted that Ms Makowska had also conceded in the proceedings before Member Eftimiou that the remediation order made by Member George had been complied with (see above at [22]).

18. [48]

    Ms Makowska then attempted to tender fresh evidence in the form of recent pictures of the garden area before the Panel. The following exchange occurred:

19. [49]

    The following exchange also occurred in relation to the extension of time:

The Appeal Panel Decision

1. [50]

   The reasons were delivered on 10 August 2023.

2. [51]

   The reasons commenced with the Panel noting some confusion as to the nature of the grounds of appeal. The Panel observed that before the question of any amended grounds of appeal could be considered the question of the extension of time fell for determination.

3. [52]

   It was noted that under r 25(4)(b) of the NCAT Rules, unless the Panel grants an extension of time, an internal appeal must be lodged within 14 days from when Ms Makowska was notified of the decision or given reasons. The decision was made on 10 August 2023. In her notice of appeal, Ms Makowska stated that she did not receive notice of the decision until 14 August 2023 but at the hearing in front of the Panel she agreed that she received the orders on 10 August 2023. The Panel held that she required a 12-day extension on the basis that her application was not filed until 6 September 2023. [2]

4. [53]

   The four principles generally relevant to the consideration of whether to grant an extension of time enumerated in Jackson were referred to and considered by the Panel in turn.

5. [54]

   The Panel was not satisfied that proof of strict compliance with the time limit would work an injustice on Ms Makowska as the prospects of success were “very weak or nil”.

6. [55]

   Secondly, it was noted that the respondent has a decision in its favour and a vested right to the benefit of that decision after time to appeal has lapsed.

7. [56]

   As for the length and reason for the delay, the Panel observed that Ms Makowska’s explanation for the delay was that she thought she had 28 days rather than 14 days. It was noted that she had been the appellant in a number of appeals thus the Panel considered this a “weak explanation” given her previous experience. It was accepted that there was no evidence of any proof of prejudice to the respondent, but it was observed that the appellant does not have prospects of success.

8. [57]

   The fourth principle from Jackson was noted, namely, that it may be appropriate to go further into the merits of an appeal when either the explanation for the delay is less than satisfactory or the respondent has a substantial case of prejudice. In such cases, it may be relevant whether the appellant seeking an extension of time can show that her case has more substantial merit than merely being fairly arguable. The Panel observed: “We find that the appeal is not only not fairly arguable but lacks merit and we say that for these reasons”.

9. [58]

   The Panel then provided reasons for the conclusion that the appeal lacked merit.

10. [59]

    As for the first ground of appeal (unreasonableness), the Panel observed that Member De Jersey considered the evidence before her and made the finding of fact extracted above at [36].

11. [60]

    The Panel observed that because Member De Jersey found that there was no withdrawal of facilities provided, she could not exercise her discretion to make an order that the rent payable was excessive. It was noted that the Panel was not taken to evidence that showed that the Member acted unreasonably in making that finding of fact and it was not accepted that the Member acted unreasonably in reaching that factual conclusion.

12. [61]

    The Panel then went on to note that there have been a number of other proceedings brought by Ms Makowska, including the Member Eftimiou proceedings, in which both parties conceded that the earlier work order to remediate the lawn in the common area of the premises in a workmanlike manner had been complied with. It was also noted that the decision in the Member Eftimiou proceedings included a finding that Ms Makowska was satisfied that the landlord had complied with his obligations in this regard. The Panel found that this was relevant to the findings under appeal and went on to conclude that the unreasonableness ground lacked merit and was “without substance”.

13. [62]

    The second ground of appeal contended that the Member De Jersey misapplied s 187(1)(b) or (e) of the RTA. The Panel noted that Ms Makowska sought a specific performance order that the landlord rehabilitate the lawns. Such an order can be sought and made when there has a been a breach of the tenancy agreement. The Panel observed that it had invited Ms Makowska to identify the breach of the agreement which would have permitted the tribunal member to make such an order. She took the Panel to obligations imposed upon the tenant rather than the landlord. Accordingly, the Panel concluded that the member was correct in not making a specific work order.

14. [63]

    It was noted that a renewal application under cl 8 of Sch 4 of the the NCAT Act was never lodged alleging non-compliance with the previous order made by Member George in earlier proceedings.

15. [64]

    The Panel concluded that there was no basis or substance in the second ground of appeal.

16. [65]

    It was then noted that Ms Makowska had held up some colour photographs during the hearing which were not before the member. It was noted that the Panel did not propose to accept any evidence which was not before the member and that, in any event, photographs taken after the decision of the member could not be the basis of a successful appeal because there could be no error in not having regard to photographs which were not in existence at the time of the hearing.

17. [66]

    The Panel then observed the following:

18. [67]

    The Panel then made the following orders:

19. [68]

    Ms Makowska now appeals against that decision to this Court.

Relevant legislation

1. [69]

   The appeal is confined to one or more questions of law and leave is required. Section 83 of the NCAT Act provides, relevantly:

2. [70]

   The decision appealed against was delivered on 1 November 2023. On 29 November 2023, a written copy of the reasons and orders were emailed to the parties. The summons was filed on 1 December 2023. The amended summons was filed on 23 February 2024.

3. [71]

   Section 84(2) of the NCAT Act provides that an appeal under s 83 must be made:

4. [72]

   Rule 50.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) provides that a summons commencing an appeal must be filed:

5. [73]

   Although strictly the last day for the commencement of these proceedings was 29 November 2023, the landlord did not oppose an extension of time as it could not identify any demonstrable prejudice.

6. [74]

   Relevant to Ground 1, s 38 of the NCAT Act provides:

7. [75]

   Section 44 of the RTA relevantly provides:

8. [76]

   Section 62 of the RTA provides:

9. [77]

   Section 187(1) of the RTA relevantly provides:

The Grounds

1. [78]

   The following grounds of appeal are raised in the amended summons:

   1. (1)

      The tribunal below at first instance failed to comply with parliament’s command pursuant to s 38(4) of the NCAT Act in circumstances where it had regard to technicalities or legal forms in place of the assessment of the substantial merits of the plaintiff’s case.

   2. (2)

      The tribunal below breached the rule against bias in the impartial assessment of the plaintiff’s case pursuant to s 36(1) of the NCAT Act in circumstances where it failed to apprehend the real issues in the proceedings and was hostile to the plaintiff’s prosecution of her case.

   3. (3)

      The tribunal below suffered an error of law when it ignored the plaintiff’s relevant evidence in related proceedings with file numbers 19/24933; 21/48098 and 22/16790.

   4. (4)

      The tribunal below made a decision so unreasonable, that no reasonable decision maker would make it.

2. [79]

   In her written submissions filed on 2 September 2024, Ms Makowska did not press Ground 2 and that was confirmed at the hearing.

3. [80]

   In her written submissions filed on 2 September 2024, Ms Makowska set out the relevant legislation and then recounted the factual history of fresh complaints about the common property. She addressed her grounds of appeal as follows.

4. [81]

   In relation to Ground 1, Ms Makowska submitted that the Panel had used a legal technicality as a reason to refuse to make the work order. She submitted that the Panel did not consider her sole question of law ground in their reasons for decision on the basis of a technicality, and that this failure was inconsistent with the so-called good conscience clause of s 38(4) of the NCAT Act which provides that “the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”

5. [82]

   In relation to Ground 3, Ms Makowska submitted that the Panel erred when it ignored her relevant evidence in related proceedings. She also submitted that the reference in the Panel’s decision to Ms Makowska having never lodged a renewal application under cl 8 of Sch 4 of the NCAT Act alleging non-compliance with order 4 made by Member George in April 2022 was wrong.

6. [83]

   In relation to Ground 4, Ms Makowska submitted that the Panel’s decision was manifestly unreasonable on the basis that no reasonable decision-maker would equate the “good conscience” or equitable provision of the clause with the non-fulfilment of the order made by Member George on 5 April 2022.

7. [84]

   Ms Makowska expanded on her written submissions at the hearing. In response to questions by me she clarified the basis of her three grounds of appeal as follows.

8. [85]

   She submitted that the majority of the residential premises common area lawns have seen no rehabilitation or remediation work, including the extensive courtyard lawn, the front yard lawn of Milner Crescent and the lawn strip from Nurse's Lane.

9. [86]

   She also made a submission relating to the definition of “residential premises” under s 62 of the RTA. She submitted that residential premises include everything provided with the premises for use by the tenant. She submitted that the common areas, including the lawn, are provided with the premises for use by the tenant. This means that the landlord has a general obligation to maintain the lawn in a reasonable state of repair.

10. [87]

    Ms Makowska conceded that NCAT was permitted to decline to make the orders sought but submitted that it was not permitted to use “technicality of jurisdiction” as a reason to decline to make the order. She submitted that this overly technical interpretation was inconsistent with the “good conscience clause” being s 38(4) of the NCAT Act.

11. [88]

    Ms Makowska also submitted that NCAT was dissuaded from making the order because of the landlord’s “provocation to litigation over the same cause of action so as to trick or confuse the tenant on legal technicality and deny legitimate claim.” She submitted that the matter has “dragged on” for three and a half years since first commencing in NCAT.

12. [89]

    It was further submitted that the Panel erred in not entering upon the appeal grounds before them in their reasons, as they are required to do pursuant to s 62(3) of the NCAT Act. She submitted that the reasons did not expose the Panel’s understanding of the Act’s applicable law and did not otherwise dispose of the grounds. She also made a submission that the Panel was by implication “in agreement with the tribunal in its use of the term ‘leased premises’” because it did not engage with the definition of leased premises as proffered by her, nor give reasons for not doing so.

13. [90]

    I clarified with Ms Makowska that in establishing an error of law, the decision appealed against was a discretionary one and I took her to the landlord’s submissions where the nature of House v The King [3] error was explained for her. I also confirmed that her submissions directed at the merits should be read as submissions that the Panel erred in law in finding that the appeal had no merit.

14. [91]

    Ms Makowska also made the following submissions at the hearing, indicative of her passion for the lawns the subject of the tribunal proceedings:

15. [92]

    The landlord addressed the relevant principles in relation to appeals of this nature and submitted that the primary issue for determination was whether any House v The King type error arose in respect of the Panel’s decision. The landlord submitted that there was no wrong principle, question of law or discernible error such that I would allow this appeal.

16. [93]

    At the hearing, the landlord clarified some factual matters, including whether or not a renewal application of Member George’s order had in fact been lodged (as Ms Makowska contended). The landlord confirmed that a renewal application was in fact lodged by Ms Makowska on 15 August 2022, but it was subsequently withdrawn by consent. On this basis, it was submitted that any misstatement about this by the Panel could not be material.

17. [94]

    The landlord also clarified which photos were before the Panel.

18. [95]

    The landlord submitted that the Panel had regard to factors other than merits in their determination including the length of delay and “prospects” but nonetheless still determined that leave should not be granted.

19. [96]

    The landlord further submitted that the Panel made a positive finding that even if leave was granted the plaintiff’s case would not have succeeded. Accordingly, it was submitted that even if I did find the discretion miscarried, this would be immaterial given the tribunal’s positive finding on the merits of the substantive case.

Consideration

1. [97]

   There are limitations on an appellant’s right of appeal to this Court from a decision of the Panel. Not only must a ground of appeal raise a question of law, but leave is also required.

2. [98]

   The relevant principles governing an appeal under s 83 of the NCAT Act were helpfully summarised by Griffiths AJA (sitting in the common law division) in Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 as follows at [33]:

3. [99]

   His Honour went on to summarise the relevant principles governing the grant of leave in such appeals at [34]. His Honour noted the summary by Gleeson JA (with whom Macfarlan and Payne JJA agreed) in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]:

4. [100]

   Thus, it is well settled that an applicant for leave under s 83 of the NCAT Act must demonstrate something more than that the impugned decision is “arguably wrong”. The appeal will usually need to raise a matter that involves an issue of principle, a question of general public importance or an injustice. The relevant principles were summarised by Basten JA (with whom Tobias AJA agreed) in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[37].

5. [101]

   This appeal alleges error in the exercise of the discretion to extend time to file an appeal. Accordingly, the finding of the Panel is subject to the constraints on the review of the exercise of discretionary power identified in House v The King at 504-505 (per Dixon, Evatt and McTiernan JJ) and restated in Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17. Thus, Ms Makowska must establish that the Panel acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect it, mistook the facts, failed to take into account some material consideration or that upon the facts, the decision is “unreasonable or plainly unjust”.

6. [102]

   Under Ground 1, Ms Makowska contends that the Appeal Panel took an overly technical approach to considering the decision of Member De Jersey and (as I understand her argument) the refusal to extend time. This was said to be in breach of s 38(4) of the NCAT Act. Ms Makowska was unable to establish that the Panel acted with undue formality at the hearing of her appeal, nor that it ignored the substantial merits of the case in favour of technicalities. Nor am I satisfied that this ground raises a question of law. I am satisfied that what Ms Makowska in effect contends under this ground is that the Panel should have reached a different result. Even if this ground did involve a question of law, I am not satisfied it has been established in any event. Having read the transcript of the proceedings before the Panel and its reasons, it is clear to me that the Panel took steps to assist Ms Makowska, and, at some stages, she was not assisting herself by not being responsive.

7. [103]

   The nub of Ms Makowska’s complaint before the Panel was that Member De Jersey did not understand that Ms Makowska was seeking a further remediation order because she was still not satisfied that the orders made by Member George had been complied with. There are three problems with that submission.

8. [104]

   First, Ms Makowska sought orders under s 187(1)(b) of the RTA (“an action in performance of a residential tenancy agreement”) and s 187(1)(e) of the RTA (“an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement”). Both of those orders required Ms Makowska to establish a breach on the part of the landlord to the tenancy agreement. She was not able to do so before either Member De Jersey or the Appeal Panel. The Panel tried to ascertain from Ms Makowska during the hearing of her appeal what the breach on the part of the landlord was which would permit the Member to have made the order sought and Ms Makowska was unable to provide an answer.

9. [105]

   In Ms Makowska’s submissions in this Court (but not before the Appeal Panel) she submitted that the common garden areas were part of her “leased premises” within the meaning of s 62 of the RTA and as such she could obtain an order for specific performance to maintain the gardens to a higher standard. Member De Jersey declined to make that order on the basis that the “leased premises” did not include the common property given the definition in the RTA. The Member was not satisfied that she had jurisdiction to make orders under s 187 of the RTA in relation to areas that were not part of the leased premises. But even if Member De Jersey considered that she did have such jurisdiction she had already found that on the evidence she was “not satisfied that the landlord is in breach of its duty to maintain the common property gardens”, so the result would have been the same.

10. [106]

    Secondly, to the extent that Ms Makowska now contends that what she meant to do before Member De Jersey was to seek a renewal of the remediation order made by Member George on 5 April 2022, the evidence before the court was that although she made such an application it was subsequently withdrawn.

11. [107]

    Thirdly, as the Panel observed, the reasons in the Member Eftimiou proceedings support the conclusion that Ms Makowska had previously accepted that the orders made by Member George had been complied with.

12. [108]

    Part of the complaint made under this ground and in her oral submissions is that not enough is being done to assist Ms Makowska as a self-represented litigant and that she is being taken advantage of in some unspecified way by the landlord. Having traced the long history of proceedings brought by Ms Makowska it is difficult to conclude that the landlord has acted unfairly in its conduct in any of the proceedings. It has defended the claims brought by Ms Makowska but I am unable to find that in doing so it has acted unfairly in the manner alleged by Ms Makowska. As for her complaint that the landlord is wearing her down with litigation, the difficulty is that she is the one bringing all of these proceedings.

13. [109]

    I am not satisfied that Ground 1 is an error of law and, in any event, it is not established.

14. [110]

    Ground 2 was not pressed.

15. [111]

    As for Ground 3, Ms Makowska complains that the Panel should have had regard to the success that she had had in other matters and taken that into account in (presumably) both extending the time to bring the appeal and in finding that her appeal did in fact have merit. The Panel did have regard to Ms Makowska’s history in order to conclude that she should have known that the time limit was 14 days rather than 28 days. It is to be accepted that the factual finding as to whether Ms Makowska’s “excuse” for the delay in bringing the appeal was one on which minds may have differed, but it was a discretionary finding open to the Panel. No House v The King error is disclosed in that finding such as to amount to an error of law.

16. [112]

    Further, it is difficult to see how having regard to the other matters brought by Ms Makowska would have assisted Ms Makowska in the manner she suggests. The previous decisions showed that the landlord has taken steps to remediate the property and that she has previously conceded as much.

17. [113]

    It may be that a differently constituted panel may have reached a different decision as to the strength of Ms Makowska’s reason for delay but an appeal of this nature is not a merits review.

18. [114]

    I am not satisfied Ground 3 is an error of law and, in any event, it is not established.

19. [115]

    Finally, as for Ground 4, Ms Makowska relied on what she described as Wednesbury unreasonableness. A claim of unreasonableness is a ground for judicial review rather than a statutory appeal such as brought by Ms Makowska. The relevant principles are to be found in more recent High Court cases including Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (“Li”).

20. [116]

    In Cameron v Woollahra Municipal Council [2024] NSWCA 216, Payne JA, with whom White JA and Price AJA agreed) recently said this of a ground of review claiming unreasonableness at [100]:

21. [117]

    In Li, French CJ said this of such a ground of review:

22. [118]

    Similarly, in Donaghy t/as GJ Donaghy & Company Solicitors v Legal Aid Commission of NSW [2022] NSWSC 626, Griffiths AJ observed this at [96]:

23. [119]

    Although these are not proceedings for judicial review, I have proceeded on the basis that what Ms Makowska is in fact submitting is that the decision not to extend her time to appeal was unreasonable and plainly unjust under the fifth limb in House v The King.

24. [120]

    To the extent that Ms Makowska’s complaint is that the decision was unreasonable because there was “no evidence” to support the finding, such a contention cannot be accepted (although it would raise a question of law): Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 at [90] per Hayne, Heydon, Crennan and Kiefel JJ and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 326 per Mason J.

25. [121]

    The difficulty for Ms Makowska is that the factual issues before the tribunal were very narrow. Based on the photos and horticultural report before her, the decision made by Member De Jersey was one well open to her. The appeal against that decision was considered by the Panel to have no merit such as to warrant an extension of time to bring the appeal. No error has been established in that finding.

26. [122]

    I have considered the photos before the Panel (which were the photos before Member De Jersey) and they support the findings of the Panel as to the lack of merit in the appeal before them. Ms Makowska tried to tender additional photos before me taken well after that hearing to show that the grass did not look as green as it does in the photos before the member, but clearly that does not go to any error on the part of the Panel.

Conclusion

1. [123]

   It is to be accepted that the Appeal Panel placed particular emphasis on the perceived weakness of the appeal brought by Ms Makowska. As the Panel noted, even if an extension of time had been granted, the appeal would have been dismissed in any event for a lack of merit. Ms Makowska did not bring any ground of appeal that the Panel placed too much weight on the weakness of the case but, even if she had, it would not have amounted to an error of law in any event.

2. [124]

   Finally, although not necessary to the resolution of this appeal, I consider it relevant to observe that Ms Makowska appeared to me to genuinely believe that the quality of the lawns and gardens of the common areas has diminished over time, and she feels a real responsibility to hold the landlord to account for this. She was very passionate in her submissions and became tearful at one stage of the hearing.

3. [125]

   The difficulty for Ms Makowska is that appeals to this Court under the NCAT Act are limited and she has not demonstrated any error of law nor any basis to grant leave to appeal to this Court.

Orders

1. [126]

   Accordingly, I make the following orders:

   1. (1)

      The summons is dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs on the ordinary basis.