Anderson v McClenaghan

1. The landlord owns a property at Thalgarrah, New South Wales, which has a cottage situated upon it. In 2008, Nancy Harrigan, the landlord's mother, began occupying the cottage.
2. In March 2013, Mrs Harrigan married the tenant and changed her surname to Anderson. From March 2013, Mrs Anderson and the tenant began to remodel the cottage. In its written reasons dated 7 March 2025, the Tribunal recorded as an "agreed fact", at [9], "There was no contractual requirement to do works ...".
3. Mrs Anderson and the tenant paid no rent to the landlord. There was no written agreement between Mrs Anderson and the tenant and the landlord relating to the occupation of the cottage. Mrs Anderson and the tenant commenced occupying the cottage in November 2013.
4. The tenant requested that a document be made providing for him to have permanent residency of the cottage. No document was provided by the landlord.
5. In 2021, white ant activity was detected in the cottage. Evidence of white ant activity in the cottage was present in November 2024.
6. In or about January 2022, Mrs Anderson and the tenant separated. They both continued to reside in the cottage.
7. On 7 November 2024, the landlord issued a termination notice to Mrs Anderson and the tenant, seeking their vacation from the cottage "as soon as possible." The termination notice relied upon s 109 of the Residential Tenancies Act 2010 (NSW) ("the RTA") which provides:

109 Agreement frustrated - destruction of, or uninhabitable, premises

(1) This section applies if residential premises under a residential tenancy agreement are, otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable or cease to be lawfully usable as a residence or are appropriated or acquired by any authority by compulsory process.

(2) The landlord or the tenant may give the other party a termination notice.

(3) The termination notice may end the residential tenancy agreement on the date that the notice is given.

(4) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement.

(5) The Tribunal may, on application by a landlord or tenant, make a termination order if it is satisfied that a termination notice was given in accordance with this section and that this section applies to the residential premises.

1. The termination notice asserted that the cottage was "destroyed partly uninhabitable/cease to be useable as a residence ..." The termination notice also included a handwritten annotation:

"To undertake necessary work to repair serious structural damage due to white ant erosion. Including beams + joists - damage to floor - risk of collapse + harm to persons and or further damage to building. Under section 63."

1. Mrs Anderson vacated the cottage on 21 November 2024. The tenant remained in possession of the cottage.

1. On 21 November 2024, the landlord filed an application in the Tribunal seeking an order for termination and possession of the cottage, under s 109 of the RTA.
2. The hearing of the application took place on 25 February 2025. The landlord appeared for herself at the hearing. Mr Yang represented the tenant.
3. On 25 February 2025, the Tribunal made orders:

"1. The Tribunal makes an order under section 109 of the Residential Tenancies Act 2010, terminating the tenancy immediately, where the agreement is frustrated, because the premises have been destroyed or are uninhabitable.

2. The Tribunal orders the Residential Tenancy Agreement is terminated immediately and vacant possession is to be given to the landlord on the date of termination. Under s. 114(2) of the Residential Tenancies Act 2010, that the order for possession is suspended until 7 March 2025."

1. The orders appear to have been provided to the parties on 3 March 2025. Reasons for the orders made on 25 February 2025 were provided to the parties on 7 March 2025. The Tribunal's reasons stated that "a technical issue on the day" had meant that the reasons had not been produced with the orders.
2. In the reasons for decision, in recording what were described by the Tribunal as "the agreed facts", the Tribunal stated (at [8]):

"In or about March 2013 it was agreed between the applicant and Mr and Mrs Anderson that they would occupy the cottage in return for maintaining the premises."

1. The issue the Tribunal first considered was whether a life tenancy had been created. The Tribunal held, at [22], that it was not satisfied that a life estate had been created because there was no "contemporaneous documentary evidence to support an inference that a life tenancy was created" and "all other evidence is insufficient".
2. The second issue the Tribunal considered, at [23]-[39], was whether the arrangements between the parties constituted a residential tenancy agreement or merely a family arrangement.
3. The Tribunal quoted or referred to the definitions of "landlord", "periodic agreement", "rent" and "tenant" in s 3 of the RTA, and ss 6, 9 and 13 of the RTA. Relevantly, those sections provide:

(a) the person who grants the right to occupy residential premises under a residential tenancy agreement, or

(b) a successor in title to the residential premises whose interest is subject to the interest of the tenant, or

(c) a tenant who has granted the right to occupy residential premises to a sub-tenant,

periodic agreement means a residential tenancy agreement that is not a fixed term agreement.

(a) the person who has the right to occupy residential premises under a residential tenancy agreement, or

(b) the person to whom such a right passes by transfer or operation of the law, or

6 Act applies to existing and future residential tenancy agreements

This Act applies to residential tenancy agreements in respect of residential premises whether made before or after the commencement of this section.

(1) An agreement or arrangement under which a person is given the right to occupy premises for the purpose of a residence in return for, or as part of remuneration for, carrying out work in connection with the premises or the person's employment is taken to be a residential tenancy agreement.

13 Agreements that are residential tenancy agreements

(1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence.

(2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing.

1. The Tribunal referred to a passage from A Anforth, P Christensen and C Adkins, Residential Tenancies Law and Practice New South Wales (8th ed, 2022, The Federation Press), as to the essential terms of a tenancy agreement "at common law."
2. In considering, at [33], whether a residential tenancy agreement existed, the Tribunal stated:

"The respondent gives evidence at Paragraph 11 of his affidavit the that he recalls the arrangement to be:

'That Nancy and I would be allowed to move in for as long as we wished, without the need to pay rent.'"

1. The Tribunal stated that a contractual term that a person can occupy land for "as long as you wish to stay" was sufficiently certain to be contractually valid and cited legal authority for that proposition.
2. As to "rent", the Tribunal cited authority to support the proposition that providing services, payment of water rates, rates, land tax and a promise to keep a property in a good state or repair could all constitute "value" for the purposes of s 13 of the RTA.
3. The Tribunal then stated (at [37]):

"I am therefore satisfied that s. 9(1) of the Act as to caretaker arrangements applies in that the respondent was give possession of the premises rent free in return for the renovations. The promise to do works to the premises also constitutes 'value' under s. 13(1). Although the respondent asserts that he spent $160,000 on the premises, there is no professional assessment/valuation of this work. Further the exact amount is unable to be determined due to a lack of detail in many receipts relied upon by the respondent. Occupying rent free for 12-13 years may well equal or exceed this amount in value."

"I am satisfied the applicant has established that the essential terms of a residential tenancy agreement exist and there was an intention to create legal relations. Accordingly, there is a residential tenancy agreement within the meaning of Section 9 and 13 of the Act."

1. The Tribunal found, at [40], that the premises "are badly damaged by white ant attack." That finding was made on the basis of a report dated 20 November 2024 that had been tendered by the landlord. The Tribunal stated that, although the report "has some contradictions in its text", it was the best evidence available to the Tribunal. The Tribunal found that the premises were uninhabitable and dangerous to occupants and that the termination notice was validly given under s 109 of the RTA "due to the landlord's obligations under s 63 of the [RTA] to maintain the premises".

1. The tenant filed his Notice of Appeal and Application for a Stay on 6 March 2025.
2. The landlord filed a Reply to Appeal on 19 March 2025.
3. On 21 March 2025 the Appeal Panel, differently constituted, stayed orders 1 and 2:

"until further order of the Tribunal or finalisation of the appeal, whichever is the earlier in time on the following conditions:

(1) the Appellant resides in his caravan located on the property;

(2) the Appellant deposits all keys to the residential premises that are in his possession with New England and Western Tenants' Advice and Advocacy Service and notifies the Respondent of their deposit by 28 March 2025."

1. We understand that, in compliance with the first condition, the tenant is currently living in a caravan located, as we understand it, near the cottage.
2. We note that, also on 21 March 2025, leave was given to the landlord to be legally represented on condition that no legal costs may be recovered by that party in the appeal.

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states that an appeal to the Appeal Panel may be made "as of right on any question of law, or with leave of the Appeal Panel, on any other grounds".
2. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and _Cusumano a_t [32]. However, the categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:

"37 What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.

38 For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly [Shire Council v Styles [2024] NSWCATAP 104] at [28]- [32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A); see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]- [54], [109]-[114].

39 Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required."

1. Clause 12 of Sch 4 of the NCAT Act provides that the Appeal Panel may grant leave to appeal a decision from the Consumer and Commercial division (CCD) pursuant to s 80(2)(b) of the NCAT Act, only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(1) the decision of the Tribunal under appeal was not fair and equitable; or

(2) the decision of the Tribunal under appeal was against the weight of evidence; or

(3) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of Sch 4 of the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76], stating that a substantial miscarriage of justice may have been suffered:

"... where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."

1. The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban the Appeal Panel concluded at [84] that:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal, only in matters that involve:

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; or

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. It is important to note that an appeal is not an opportunity for the losing party to rerun their case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

1. The tenant filed written submissions in support of the appeal on 28 April 2025, 37 paragraphs in length. With those written submissions the tenant filed a bundle of documents
2. The landlord filed written submissions, 51 paragraphs in length, on 29 May 2025, together with a bundle of documents.
3. The bundles of documents filed by the parties included copies of evidence given to the Tribunal at first instance. We understand that those bundles included all of the evidence before the Tribunal at first instance.
4. Although a recording of the hearing at first instance and a transcript of some isolated parts of the hearing were provided to the Appeal Panel, we were not provided with a full transcript of the hearing.
5. Neither party sought to draw the Appeal Panel's attention to any part of the recording and we have not listened to it.
6. At the hearing before the Appeal Panel, Mr Yang appeared for the tenant and Mr Burton appeared for the landlord.

1. As the Notice of Appeal was filed before the Tribunal's reasons were provided to the parties, the grounds set out in the Notice of Appeal are generic:

"1. The Tribunal failed to give adequate reasons for its decision.

2. The Tribunal failed to satisfy itself of the the necessary jurisdiction.

4. The Tribunal's decision was against the weight of evidence."

1. The tenant expanded his grounds of appeal in his written submissions and also sought leave to rely upon a further ground of appeal. At the hearing before the Appeal Panel, the tenant's grounds of appeal were distilled to:

(1) The Tribunal failed to give adequate reasons for its finding that there was a "residential tenancy agreement" for the purposes of the RTA;

(2) The Tribunal's finding that there was a "residential tenancy agreement" for the purposes of the RTA was not fair and equitable and leave to appeal ought to be granted by the Appeal Panel in relation to the finding;

(3) The Tribunal, having referred to "contradictions" in the pest report tendered before it, failed to give adequate reasons for its finding that the relevant premises were "otherwise than as a result of a breach of an agreement", "uninhabitable" and "dangerous to occupants" for the purposes of s 109(1) of the RTA;

(4) The Tribunal did not correctly apply s 109(5) of the RTA in that the word "may" appears in this legislative sub-section, meaning that a discretion exists, and the Tribunal did not give consideration to whether or not it should make an order for termination of any residential tenancy agreement.

(5) The tenant also submitted that it was not an agreed fact, as stated in [8] of the Tribunal's decision that "In or about March 2013 it was agreed between the applicant and Mr and Mrs Anderson that they would occupy the cottage in return for maintaining the premises", and that finding was against the weight of evidence.

1. The tenant did not challenge the Tribunal's finding that no life interest was created.
2. We note that, of those grounds of appeal, only (1), (3) and (4) might raise a question of law.

1. The landlord submitted that there was adequate and sufficient evidence to support the Tribunal's finding that a "residential tenancy agreement" had been made, in that there was sufficient evidence to support the finding that the tenant was granted possession of the relevant premises in exchange for non-monetary consideration.
2. The landlord submitted that it was open to the Tribunal to rely upon the pest report dated 20 November 2024. The Tribunal acknowledged that there were contradictions in the report, but it was entitled to afford the report weight in circumstances where there was no report from the tenant contradicting it and there was no cross-examination of the author of the pest report. The landlord submitted that the Tribunal's findings at [40] and [41] (outlined at [27] above) meant that it was satisfied that all statutory preconditions for the operation of s 109 of the RTA had been met and that the Tribunal did appropriately exercise its discretion under s 109(5) of the RTA.
3. In the course of the hearing before the Appeal Panel, the landlord also submitted that she should be granted leave to rely upon a building expert's report which the landlord had sought to rely upon at first instance, but which had been rejected by the Tribunal. The Appeal Panel raised with the landlord's legal representative the circumstance that the landlord had supported the Tribunal's orders and reasons in her Reply to the Appeal. The landlord did not maintain the application for leave to rely upon the building expert's report.
4. The parties' oral submissions canvassed the contradictions in the pest report relied upon by the Tribunal to reach the finding that the cottage was "uninhabitable" and how those contradictions could be resolved as a matter of construction of the pest report.

1. We are satisfied that the reasons given by the Tribunal for the finding that the agreement between the parties was a residential tenancy agreement were not adequate.
2. We note the comment by the Appeal Panel in Cusumano at [38] concerning whether the adequacy of reasons is a question of law. In the circumstances of this case, we are satisfied that the question whether the reasons provided by the Tribunal for its decision that the arrangement between the parties was a residential tenancy are adequate is a question of law. In this regard we refer to Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 (Nu-Stone), per Wright J at [58]-[59], see also Hockley-Brown v Metford Road Pty Ltd t/as Morpeth Gardens Village [2023] NSWCATAP 151 at [43] and Commissioner of Police, NSW Police Force v Hogan [2024] NSWCATAP 77 at [20]- [21].
3. The adequacy of reasons must be assessed by reference to the "minimum acceptable standard rather than the optimal level of detail": Sinha v NSW Land and Housing Corporation [2024] NSWCATAP 130, at [92], citing NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [66].
4. Reasons must set out the relevant findings on material questions of fact, a statement of the applicable law and, most importantly for present purposes "the reasoning processes that [led] the Tribunal to the conclusions it made": Nu-Stone at [59] referring to s 62(3) of the NCAT Act.
5. In Nu-Stone, at [63], Wright J set out "relevant, more general principles concerning the adequacy of reasons", including:

"(1) One of the functions of reasons for decisions is to explain to the losing party why that party lost: Welsh v Carnival Plc trading as Carnival Australia [2014] NSWCA 430 (Welsh) at [5] (McColl JA, Sackville AJA agreeing), [61] (Adamson J, Sackville AJA agreeing); [and]

(2) Reasons should be read fairly and as a whole to determine whether they are adequate: Welsh at [61];"

1. We have set out s 13 of the RTA at [20] above.
2. In our view, the Tribunal's decision does not furnish adequate reasons why, whatever the arrangement was between the landlord and the tenant, that arrangement involved the grant of a right of occupation "for value", as required by s 13(1) of the RTA.
3. It is difficult to understand how the Tribunal reached the conclusion at [37] that:

"[Section] 9(1) of the Act as to caretaker arrangements applies in that the respondent was give possession of the premises rent free in return for the renovations. The promise to do works to the premises also constitutes 'value' under s. 13(1)."

1. As the Tribunal had noted at [9], it was an agreed fact that "There was no contractual requirement to do works" when the tenant and Mrs Anderson began to remodel the cottage from March 2013 and occupied the cottage from November 2013. In our view, the finding at [37] directly contradicts the agreed fact noted at [9]. The Tribunal's reasons are not sufficient to explain this apparent contradiction.
2. Moreover, it is not clear to us how the Tribunal reasoned that it was an agreed fact that the tenant occupied the cottage "in return for maintaining the premises". Although there is no complete transcript of the hearing at first instance before us, we are satisfied, given the evidence of the tenant quoted at [22] above, that the tenant did not suggest that he occupied the cottage "in return for maintaining the premises".
3. Therefore, the appeal should be allowed, as of right.
4. Orders 1 and 2 made on 25 February 2025 should be set aside, as both orders, and the Tribunal's jurisdiction to make those orders, depended on the finding that the arrangements between the landlord and the tenant constituted a "residential tenancy agreement" for the purposes of the RTA.

1. Further or alternatively, the Tribunal's decision at [39] that there was a "residential tenancy agreement" for the purposes of the RTA, was not fair and equitable, given the Tribunal's factual finding, at [9], that "There was no contractual requirement to do works" when the tenant and Mrs Anderson began to remodel the cottage from March 2013 and occupied the cottage from November 2013. We are satisfied that the tenant may have suffered a substantial miscarriage of justice arising from the decision not being fair and equitable as there was a significant possibility or chance which was fairly open that a different and more favourable result would have been achieved by the tenant. If there was no "residential tenancy agreement" between the landlord and the tenant in relation to the cottage, then there was no jurisdiction for the Tribunal to make orders under the RTA. We are satisfied that leave to appeal should be granted in respect of the finding that there was a "residential tenancy agreement" between the landlord and the tenant in relation to the cottage.
2. While most of the argument on the appeal turned on the Tribunal's findings about what was the grant of a right of occupation to another person "for value" (see s 13(1) of the RTA), as the matter is going to be remitted for determination, we make some additional observations about the meaning of the word "agreement" in s 13(1) of the RTA.
3. Before it can be satisfied that it has jurisdiction under the RTA, the Tribunal must find that there is an "agreement" of the sort referred to in s 13(1) of the RTA. Finding that there is an agreement ordinarily involves identifying an offer and acceptance of the offer. An offer is constituted by conduct that a reasonable person in the position of the offeree would understand to be an expression of willingness to contract on specified terms with the intention that those terms are to become binding as soon as the offer is accepted by the offeree, or at some stipulated time. Acceptance is conduct which, to a reasonable person in the position of the offeror, is a final and unqualified assent to the terms of the offer: see JD Heydon, Heydon on Contract (2019, Thompson Reuters) at [2.10].
4. However, it is necessary to avoid the fallacy of inferring, from subsequent conduct, the conclusion that conduct actually took place because of an agreement. As McHugh JA stated in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,117:

"[I]t is an error "to suppose that merely because something has been done then there is therefore some contract in existence which has thereby been executed": Howard, "Contract, Reliance and Business Transactions", [1987] Journal of Business Law, p 127. Nevertheless, a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words: Empimal Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 . The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the essential elements of an express contract: cf Baltimore and Ohio RR Co v US [1923] USSC 81; 261 US 592 (1923); Fincke v US 675 F 2d 289 (1982). Care must also be taken not to infer anterior promises from conduct which represents no more than an adjustment of their relationship in the light of changing circumstances.

1. The court or tribunal must, in most cases, be able to answer the question 'what was the mechanism for offer and acceptance': see Heydon on Contract at [2.110] and the cases cited at footnote 102 to that paragraph.
2. The background facts, as set out above, raise a number of questions which the Tribunal would need to address before it could be satisfied that there is a "residential tenancy agreement" between the landlord and the tenant, for the purposes of the RTA. Indeed, there are some basic incidents of the arrangement between the tenant and the landlord which are not clear from the Tribunal's decision:

(1) How was the agreement made?

(2) What was the mechanism for offer and acceptance as between the landlord and the tenant?

(3) Who were the parties to any agreement relating to the occupation of the cottage?

(i) Was it just the tenant and the landlord?

(ii) Was Mrs Anderson, the landlord's mother and wife of the tenant, a party to the agreement?

(4) If Mrs Anderson was a party to the agreement, was she released from the agreement or does she remain a party to the agreement, whatever its true character, and is therefore a proper, if not necessary party to the proceedings so that she may be bound by the Tribunal's orders?

(5) What was the duration of any agreed tenancy?

(6) Was it a term of any agreement that it would endure in circumstances where Mrs Anderson and the tenant were separated?

1. As to the appellant's challenge to the Tribunal's finding that the premises were uninhabitable and dangerous to occupants and that the termination notice was validly given under s 109 of the RTA, we also find that the Tribunal's reasons for reaching that finding were not adequate.
2. The Tribunal's reasons identified that there were "some contradictions in [the pest report's] text." However, the Tribunal did not identify how the contradictions in the report were resolved by the Tribunal.
3. As to the "contradictions" in the "Property owner Termite Assessment" report, dated 20 November 2024, we note on the one hand, that at p 5 of the report, the text included:

"Evidence of serious safety hazard in relation to termite/borer damage

1. Secondly, we note on the other hand, that at p 9 of the report, there is a recommendation

"Remove floor coverings and cabinetry to damaged areas and remove and replace all termite damaged bearers and joists and floor substrate. Replacement of old timber piers is highly advisable whilst floor has been removed. NOTE: {Structural integrity of the floor to damaged areas has been compromised and advise that it is a safety risk to occupants and that occupants must vacate the dwelling until such time the repairs have been performed in full}."

1. To similar effect, on p 21 of the report there is a sub-heading dealing with "Serious safety hazards." The text there includes a statement that a serious safety hazard was observed. The safety hazard was identified as:

"The structural integrity of the termite damaged sub floor structure has been seriously compromised and is a safety risk for occupants. Occupants must vacate the dwelling until such time repairs have been fully completed."

1. However, the report, at p 24, then included the statement:

"This document is NOT a structural damage Report. We claim no expertise in building and any observations or recommendations about timber damage should not be taken as expert opinion and CANNOT be relied upon ... You should arrange for a qualified person such as a Builder, Engineer or Architect to carry out a structural assessment and to determine the full extent of the damage and the extent of repairs that may be required ..."

1. In our view, the apparently contradictory statements within the "Property owner Termite Assessment" report, that was in evidence before the Tribunal, raised issues about what conclusions should be drawn from it, as well as a question about the expertise of the report's author to provide opinion evidence about the structural integrity of the timber flooring in the cottage. The Tribunal's reasons merely recognise 'contradictions in the text of the report' but do not adequately explain how the contradictions were resolved by the Tribunal.
2. There is an additional issue with respect to the adequacy of the Tribunal's reasons regarding its findings about s 109 of the RTA in the circumstances of this case. Section 109(1) of the RTA operates, relevantly for present purposes, if residential premises under a residential tenancy agreement "become wholly or partly uninhabitable." The "Property owner Termite Assessment" report identified historical termite activity workings but no evidence of live termite activity at the time of the assessment. The Tribunal's reasons were also not adequate in explaining how the cottage had "become" wholly or partly uninhabitable, for the purposes of s 109(1) of the RTA.
3. Applying the principles that we have set out above at [54]-[57], we are satisfied that the adequacy of the reasons given by the Tribunal for its finding that the cottage was uninhabitable and dangerous to occupants and that the termination notice was validly given under s 109 of the RTA, raises a question of law.
4. Therefore, the appeal should also be allowed as of right in relation to the Tribunal's finding that the cottage was uninhabitable and dangerous to occupants and that the termination notice was validly given under s 109 of the RTA.
5. It is not necessary to deal with the matters we have identified at [46] above as grounds 4 and 5.

(1) To the extent necessary, leave to appeal is granted.

(2) The appeal is allowed.

(3) Set aside orders 1 and 2 made by the Tribunal in proceedings 2024/00433330 on 25 February 2025, issued to the parties on 3 March 2025.

(4) The proceedings are remitted to the Consumer and Commercial Division of the Tribunal for determination consistently with these reasons for decision on the evidence previously filed and such further evidence as the Tribunal may allow.

(5) There is no order as to the costs of the appeal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.