Chan v NSW Land and Housing Corporation

(1) The Respondent was to file and serve its Reply to Appeal by 13 June 2025;

(2) The Appellant was to file and serve her evidence and submissions, and if relevant to her appeal, a transcript and oral recording of the hearing, by 11 July 2025;

(3) The Respondent was to file and serve its evidence and submissions, and if relevant to its appeal, a transcript and oral recording of the hearing, by 22 August 2025;

(4) The Appellant was to file and serve any submissions in reply by 5 September 2025;

(5) The appeal was listed for hearing on 10 September 2025; and

(6) The application for a stay was dismissed.

1. At the Appeal before us, Ms Y H Kwang acted as Cantonese interpreter for the Appellant. The Appellant was accompanied by support worker Ms M van der Needen.

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either:

(1) An error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or

(2) That permission (or "leave") to appeal should be granted to bring the appeal: s 80(2) Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

What is a question of law for the purposes of s 80(2) of the NCAT Act?

1. The Appeal Panel has recently confirmed that a question of law in the context of s 80(2)(b) of the NCAT Act should be interpreted similarly to "a question of law alone" or a "pure question of law". It excludes questions of mixed fact and law and, of course, questions of fact (at least unless they are facts of a jurisdictional nature): see Wollondilly Shire Council v Styles [2024] NSWCATAP 104; Samchris Pty Ltd v Keogh [2024] NSWCATAP 125; FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127; Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134. We will proceed on that basis.

1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(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. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 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. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

"(a) issues of principle;

(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;

(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. In deciding the appeal, we have had regard to the following:

(1) The Notice of Appeal;

(2) A USB lodged by the Appellant;

(3) The Respondent's Reply to Appeal;

(4) The oral submissions made by and on behalf of the parties at the appeal hearing.

1. The Respondent did not provide written submissions.
2. Neither party provided a recording or transcript of the hearing under appeal, nor did either party lodge or seek to rely on any evidence given at first instance.

1. In the Notice of Appeal the Appellant identified the following grounds for which leave to appeal is required:

(1) The decision is not fair and equitable because the Tribunal did not allow the Appellant the opportunity to play a "...new video..." (underlining as in the Notice of Appeal) which recorded events that occurred in April 2025.

(2) The decision was against the weight of evidence. The Appellant provided 97 pages and stated "I don't have opportunity provide (sic) the new/ update evidences (sic)." The Tribunal should have given more weight to the "video, photo, email, phone text, letter etc."

(3) Significant new evidence is available that was not reasonably available at the time of the hearing, being "documents and video & photos".

1. In relation to Ground 3, the Notice of Appeal states the reason the evidence was not available at the hearing was because "The NCAT Tribunal Member did not give me the opportunity." As we understand it, Ground 3 in substance repeats Grounds 1 and 2, and does not, in fact, identify significant new evidence available only after the hearing.
2. The Respondent supports the decision under appeal, for the reasons set out in the decision. In particular, the Respondent agrees with the decision not to admit the 'new' video recording since it depicts events which occurred more than seven months after those that form the subject of the original application.

1. At all relevant times, the Act provided relevantly as follows:

50 Tenant's right to quiet enjoyment

(1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord.

...

(3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises.

(4) This section is a term of every residential tenancy agreement.

1. The 'new' video which was not admitted into evidence by the Tribunal contains, according to the Appellant's submissions during the appeal, video footage of exchanges between herself and other residents of the block where the Premises are located that occurred around Easter 2025 (that is to say, shortly before the original hearing).
2. Paragraph [23] of the Tribunal's decision states:

"The evidence of the incidents over Easter and the AVO have not been filed as evidence in this application, and the submissions on that conduct has (sic) not been allowed for consideration."

1. The parties' oral submissions at the appeal indicate that during the Tribunal hearing the Appellant argued the 'new' video should be admitted into evidence. This was refused during the hearing.
2. The Appellant did not provide a transcript or sound recording of the hearing.
3. An Appeal Panel must know what the Tribunal's reasons for a decision were in order to determine whether there was some error in those reasons.
4. The Appellant was directed by order 2(d) made by the Appeal Panel on 30 May 2025 to lodge with the Tribunal and serve on the Respondent 'a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing' by 11 July 2025.
5. In the absence of the Appellant lodging the sound recording or transcript, we are not able to determine whether the Tribunal's decision to not admit the 'new' video into evidence was not fair and equitable.
6. The Appeal Panel has adopted this approach in circumstances where the sound recording or transcript of the hearing at first instance has not been supplied on an appeal: Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [22]- [26]; Geracitano v Cloughessy [2021] NSWCATAP 329 at [23]- [27]; Lazaris v Kale [2022] NSWCATAP 36 at [23]- [28].
7. Even if we are wrong in this regard, we would not exercise our discretion in relation to any of the categories in Collins v Urban.
8. For these reasons this ground of appeal is not made out.

Was the decision against the weight of evidence?

1. A decision can be against the weight of the evidence if the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that it was not one a reasonable Tribunal member could have reached (Collins v Urban at [77]).
2. Before the Appeal Panel, the Appellant submitted the Tribunal did not properly consider evidence including emails, pictures, photographs, and file reports showing the Respondent's negligence in responding to her concerns.
3. The challenge for the Appellant is that the evidence given to the Tribunal at the hearing is not before the Appeal Panel.
4. At the callover on 30 May 2025 the Appeal Panel ordered the Appellant to lodge with the Registry all the evidence given to the Tribunal at first instance on which she intended to rely at the appeal.
5. At the appeal hearing, the Appeal Panel asked the Appellant whether she sought an adjournment to allow her to submit all the material that she put before the Tribunal at first instance. The Appellant declined and informed the Appeal Panel that she wished to proceed with the appeal.
6. Without the evidence the Tribunal considered at first instance, we are not able to assess whether the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that it was not one a reasonable Tribunal member could have reached.
7. Further, the Appellant said she submitted a medical report about the impact of the alleged breach on her health, but this was not considered by the Tribunal.

1. What is evident is that the Tribunal did consider the medical evidence submitted by the Appellant.
2. In its reasons at paragraph [26] the Tribunal said:

"The medical evidence refers to the Tenant's heart condition, psychiatric condition and a skin condition".

1. The reasons also state at paragraphs [28] and [29] as follows:

"There is no direct reference, link or finding that the medical conditions have a direct or any connection to the events experienced by the Tenant at the premises.

As the medical evidence does not indicate that there is a connection between the neighbours [sic] conduct and the interference to the Tenant's enjoyment of the premises the Tribunal does not find on the evidence a physical or mental wellbeing harm as claimed by the Tenant Applicant".

1. As noted, the Appeal Panel does not have before it either the medical evidence provided at first instance or a transcript of those proceedings. The Appellant has thus provided the Appeal Panel with no basis, other than her unsupported assertions, to question either the reasoning process undertaken or the conclusions reached by the Tribunal at first instance concerning the medical evidence.
2. It is, however, clear from the reasons for decision that:

(1) Not only did the Tribunal consider the medical evidence, as is demonstrated by paragraph [26] of the reasons; but also

(2) It considered the content of that evidence and its probative utility in relation to the Appellant's claim and reached a conclusion that was one of those potentially available to it.

1. For these reasons this ground of appeal is not made out.

The Tribunal's consideration of section 50 of the Act

1. Section 50 of the Act has relevantly three limbs:

(1) In sub-section (1), a declaratory statement that a tenant is "entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord"; there is no suggestion either in the reasons at first instance or in the Appellant's or the Respondent's respective submissions that there is any dispute concerning the Appellant's entitlement under the Agreement to quiet enjoyment of the Premises;

(2) In sub-section (2), a prohibition on the landlord or its agents interfering with or causing or permitting ".. any interference with, the reasonable peace, comfort or privacy of the tenant in using.." the Premises; there is no suggestion that either the Respondent or its agents have so interfered; rather the question, which leads to consideration of the next sub-section, appears to be whether the Respondent or its agents have permitted an such interference; and

(3) In sub-section (3), a positive obligation on the Respondent to "... take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises"; whether the Respondent had complied with this obligation was the real issue, to adopt the words of section 36 of the Civil and Administrative Tribunal Act 2013, of which the Tribunal was required by that section to facilitate the resolution.

(1) Found at paragraph [18] that the Respondent had on three occasions during the month of September 2024 engaged with the Appellant's neighbours with a view to investigating the Appellant's concerns, counselling them and resolving the concerns; and

(2) At paragraph [32] that nothing in the evidence demonstrated any relevant failure by the Respondent "... to take reasonable steps to ensure that he landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises"'.

1. In her oral submissions during the appeal hearing, the Respondent's representative referred to these findings and noted that they showed a correct interpretation and application by the Tribunal at first instance of the Respondent's duties as landlord under section 50 of the Act.
2. The Appellant has provided nothing to challenge the correctness of the conclusion at first instance.

1. Since neither of the two grounds requiring leave have been established, it is not necessary to consider whether the discretion to grant leave to appeal should be exercised in favour of the Appellant.
2. For all these reasons we are refusing to grant leave to appeal and are dismissing the appeal.

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

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.