Craig v Shallita

Background, primary decision, procedural matters in appeal

1. The proceedings concern a house in Baulkham Hills, in the north west of Sydney, NSW. The appellants were the tenants and the respondent to the appeal was the landlord under a written residential tenancy agreement dated 3 September 2020 at $450pw for a fixed term beginning 7 September 2020 and ending 7 September 2021 with a rental bond of $1,800. The tenancy after that became periodic.
2. In earlier primary proceedings RT 22/43128 filed 26 September 2022 the tenants had sought relief from alleged invalid and excessive rent increases for $30pw dated 11 March 2022 which was withdrawn before determination and $50pw dated 29 August 2022 effective 29 October 2022, reimbursement for repairs that they had sought to be done but said in absence of timely response they had done themselves, compensation for a solar panel inverter that was said never to have worked, and a further rent reduction until the landlord completed repairs agreed by the parties in March 2022.
3. Orders were made in those previous proceedings on 10 November 2022: Mr Craig was joined as co-applicant because he was a co-tenant; a bundle of documents that was served outside timetable directions by the tenants was admitted into evidence; rent was not to exceed $450pw from 29 October 2022 to 28 April 2023 because the notified rent increase was found to be excessive; by consent, the landlord was to carry out specified works on or before 11 December 2022 that did not include the solar inverter; the balance of the application was dismissed on the basis that the tenants had not discharged their onus of proof; the tenants' application to amend to add a list of repairs was refused as they were too late and would need to be the subject of a new application. The Member pointed out to the tenants that the inverter compensation claim was out of time and in any event was included within the rent reduction claim which the tenants chose to pursue, seeking a reduction of a further $30pw below $450pw. This was refused for absence of proof of the value of the rebate if the inverter was working; the decision said at [27] that "It is open to the tenants to seek an order that the inverter be repaired". The landlord said that the ordered works were carried out by the due date.
4. The landlord issued a 90-day "no grounds" notice to vacate on 3 August 2023 for the tenants to vacate by 1 November 2023, under s 85 of the Residential Tenancies Act 2010 (NSW) (RTA). The landlord said that she was getting married, currently lived with her parents while the premises were tenanted, required the premises as the matrimonial home and explained this to Mrs Craig, who was the active tenant (Mr Craig was 75 and invalid).
5. In the present proceedings filed 1 September 2023 Mrs Craig sought to have the notice set aside as a retaliatory eviction under RTA s 115 for the repairs previously ordered and ongoing requests for further repairs with associated claims for compensation. The landlord denied the notice was retaliatory and said that the repair and compensation claims were either out of time or related to repairs already undertaken.
6. On 26 February 2024, after a hearing on 7 December 2023, the primary decision made orders for specified investigation of and if necessary repairs to the roof for leaks and/or mould and to the loungeroom ceiling and repair or replacement of the external door lock, all by 18 March 2024. All other claims in the application, primarily a claim again concerning the solar inverter, were dismissed. The no-grounds termination notice was found not to be retaliatory.
7. The Member who gave the primary decision provided the following written reasons (summarised by us) for the decision: 1. The items on which he adjudicated apart from the solar inverter were not part of the orders on 10 November 2022 in the earlier proceedings. 2. The inverter claim was addressed in the earlier proceedings and was in any event, and as there said, out of time under RTA s 190(1) (with Residential Tenancies Regulation 2019 (NSW) reg 39(9)) since it was brought more than three months after the tenants became aware of the alleged breach. 3. Each of the ordered repairs was within time as an ongoing breach of RTA s 52 (we add with ss 60, 63 and 65), citing Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9, and sufficiently established. 4. None of the three situations in s 115(2) as a triggering motive for the eviction to be found to be retaliatory existed, being the tenants' previous application for Tribunal orders, action by the tenants to enforce legal rights and the Tribunal order in force between the parties. 5. The Tribunal accepted the landlord's expressed motive (described earlier) and pointed to the inference to be drawn from the fact that a much earlier notice after the earlier orders would be more consistent with a retaliatory motive: Gandangarra Local Aboriginal Land Council v Thatcher [2012] NSWCTTT 468. There was accordingly no need to exercise the discretion whether or not to grant relief under s 115 because the threshold of finding a retaliatory eviction was not reached.
8. A stay of the primary orders was refused. The tenants were in the process of moving out of the premises at date of hearing.
9. On 20 May 2024, the day before the final hearing of the appeal, the tenants applied by email for a hearing on the papers, citing their move and ill health and pressure. The landlord opposed the application, citing its lateness and the discretionary choice for a date for moving as shown by the tenants' evidence. We granted both parties leave to appear by AVL or telephone. The tenants appeared by telephone; the landlord chose to appear in person by her managing agent's leasing manager.
10. We granted leave without objection to adding Mr Craig as co-appellant because he was co-tenant, a position regularised as in the earlier proceedings.
11. Since both parties were in appearance in person or by telephone, we saw no need further to deal with the tenants' papers application, all the more so as that effectively became the way the case was conducted by both parties, each of whom was content to rely on their documents filed on the appeal which included submissions. Those documents were voluminous relative to the claim.
12. We asked Mrs Craig, who represented the tenants, about the utility and benefit of the appeal against the refusal of a finding of retaliatory eviction on a no-grounds termination notice because such a notice did not indicate any adverse conduct of or breaches by the tenants. We deal with this further below.
13. The tenants sought to raise some matters beyond the appeal scope as set out below, including a new claim concerning electricity usage. That was refused as inappropriate on an appeal or as matters and evidence which could have been raised at the primary hearing.

Grounds of appeal

1. The notice of appeal was filed, 11 days out of time, on 22 March 2024. The tenants described their health and the pressures they were under as the reasons for the late filing.
2. The grounds for the appellant's challenge were, in summary, as follows, as discerned from the notice of appeal (which had apparently been prepared by the tenants without legal assistance) in conjunction with the tenants' oral submissions at final hearing. Discerning the grounds of appeal in this manner was in accordance with the approach outlined in John Prendergast and Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [12]: 1. The primary member erred in law, or erred in fact justifying a grant of leave, by giving inadequate reasons and findings for not ordering a refund of the excess water charges totalling $189 caused (the tenants said) by a large tree crushing the water service. In particular, there was no evidence to support the finding at primary reasons (PR) [22] that the plumber's report that the leak was repaired but the tenants did not allow the handyman to inspect the leak. 2. The primary member erred in law, or erred in fact justifying a grant of leave, in not recognising that the inverter breach as alleged was a continuing breach like the breaches that were found, with the result that investigations into the alleged breach could delay proceedings until they were out of time, and was addressed in the earlier proceedings. 3. The primary member erred in fact, justifying a grant of leave, by not finding the motive (as part at least of the landlord's motive) that would justify relief for a retaliatory eviction by giving proper weight to the tenants' evidence compared with the landlord's unsigned and undated statement, in particular receipt of a notice dated 29 February 2024 (being new evidence not reasonably available at the hearing) offering a further tenancy with a 33.33% rent increase. (A "no grounds" eviction can be established to be retaliatory: see, eg, Williams v Gerringong Aboriginal Housing Corp [2022] NSWCATAP 144 at [43]-[54]). 4. The primary member erred in fact, justifying a grant of leave, by not finding that the cracks in the concrete footpath were a breach.

Scope and nature of internal appeals

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states, in respect of Division decisions: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
2. Clause 12 of Schedule 4 to the NCAT Act states: "An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."
3. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
4. In summary, internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel
5. In John Prendergast and Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons where they are required; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
6. Taking into account an irrelevant consideration or not taking into account a relevant consideration includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
7. The "no evidence" ground must identify that there is no, or substantially inadequate, evidence to support a "critical" or an "ultimate" fact in order to constitute a jurisdictional error (a form of error of law): AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 at [81]; Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 at [52]-[56].
8. A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, under s 38(6)(a) of the NCAT Act the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
9. The conclusion that a decision is vitiated for legal unreasonableness can be reached if the Appeal Panel comes to the view that no reasonable tribunal could have reached the primary decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364 [68]). A failure properly to exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: Li (2013) 249 CLR 332 at 367 [76]); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [18], [20], [26], [30]-[32], [43]-[45], [48]-[49], [55]-[56], [85]-[87], [127]-[128], [153]-[155]. There is an analogy with the principle expressed in House v The King (1936) 55 CLR 499 at 505 that an appellate court may infer that there has been a failure properly to exercise a discretion "if upon the facts [the result] is unreasonable or plainly unjust" and legal unreasonableness is a ground of judicial review: Li at 367 [76].
10. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by cl 12(1) of Sch 4 to the NCAT Act. In such cases, as already set out 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).
11. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] and [79] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 to the NCAT Act may have been suffered where: "[76] …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. … [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]."
12. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 to the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b): Pholi v Wearne [2014] NSWCATAP 78 at [32]. 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."
13. Turning to the specific grounds in cl 12(1)(a) and (b) of Sch 4 to the NCAT Act, in Collins the Appeal Panel said: "[77] As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]."
14. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with under the ground in cl 12(1)(c) to the NCAT Act was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37]-[39]: "37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'"
15. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."

Extension of time to appeal

1. Section 41 (1) of the NCAT Act provides: "The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation."
2. In Jackson v Land and Housing Corporation [2014] NSWCATAP 22 esp at [22], the Appeal Panel stated that the relevant considerations on exercise of discretion to grant an extension of time were: the length of the delay; the reason for the delay; the appellant's prospects of success, that is, whether there is a fairly arguable case; and the extent of any prejudice suffered by the respondent to the appeal. If the explanation for delay is less than satisfactory or if the opponent is substantially prejudiced, it may be appropriate to investigate if the party seeking the extension can show greater merit than a fairly arguable case.
3. Here the explanation for the delay was the tenants' long-running and chronic health issues and age, together with the stress of the litigation and its associated preparation. While not fully documented there was no real contest on the health position and age.
4. The delay was 11 days. The tenants had by email on the date of the primary decision told the Tribunal and the landlord that they intended to file an appeal "within the required time of 28 days", which they did. Their obvious mistake as to the shorter length of appeal period for residential tenancy proceedings (14 days) was not drawn to their attention on the documents in evidence before us.
5. The landlord pointed to no prejudice beyond the usual of having further to litigate the matter plus the delay in the delivery of the primary decision - the latter is understood but in itself is not relevant to the question of extension of time to appeal. Further, in this case the appeal was not keeping the landlord from enforcing the primary decision because a stay was refused, and this in itself with the tenants' resulting vacation has narrowed the issues now to be determined on appeal.
6. The sole factor against, which presumably informed the refusal of a stay pending appeal, was an assessment of difficulties in the way of the tenants' succeeding on appeal in whole or part. It could not however be said that the tenants' contentions on appeal were unarguable.
7. Weighing the number of matters in favour of granting the extension against the sole factor against, we grant the extension of time for filing the appeal to and including 22 March 2024.

Consideration and conclusion on appeal

1. By the end of the hearing the appeal ground pressed by the tenant was in respect of the water usage charge of $189, being the figure given by Mrs Craig during the hearing (a slightly higher figure of $214.84 was referred to in one of the written submissions).
2. In particular, the tenants after considering the matters mentioned earlier, did not press their appeal in respect of retaliatory eviction. The same reasoning - that the tenants had left the premises - supported the absence of utility in pressing orders for repair of the inverter as envisaged in the earlier Tribunal decision and some other repairs.
3. Some of the tenants' submissions addressed aspects of matters on which the tenants had succeeded in the primary decision and complained that work ordered had not been done. If the tenants had remained in possession under the tenancy, those may have been a matter for complaint on a renewal application.
4. It is clear on the face of the reasons that the water usage compensation claim, which was said to stem from leaking in the front garden, was not expressly dealt with in the primary decision.
5. The water usage charge was said by the tenants to have been a matter not directly addressed by the primary decision at PR [20]-[26] because it was conflated with the findings (in the tenants' favour) on a roof leak.
6. Rather, the alleged cause of the charge, being a water leak at the front of the property caused by a large tree affecting a pipe in about early September 2023 reported in emails of 25 August and 1 September 2023, appears to have been considered, along with other matters such as alleged refusal of access by the tenants unless there was an order in place and interaction with rent reduction, as factors in the primary decision ordering roof repairs.
7. Failure to consider and determine a claim for compensation that was expressed as a claim in the application is an error of law for which leave to appeal is not required.
8. Section 81 of the NCAT Act gives the Appeal Panel a broad range of relief in determining an internal appeal such as the present. The Appeal Panel "may make such orders as it considers appropriate in light of its decision on the appeal", including but not limited to dismissing the appeal.
9. We have decided that the appeal should be dismissed despite the error of law, for lack of utility. In our view the state of the existing evidence, even if it had been the subject of determination by the primary member, would not have resulted in the grant of the relief sought by the tenants. It would be unjust and contrary to proper use of the Tribunal's and the parties' resources, including the disruption to other litigants having their cases heard and determined, to allow the parties to re-litigate the narrow remaining issue for the small amount involved when the error is one, not of correcting a finding or reasoning in the primary decision, but rather of determining the issue for the first time. To permit re-litigation would seem inconsistent with giving effect to the guiding principle in s 36(1) and (2) of the NCAT Act.
10. The alternative would be to allow the appeal, exercise under s 80(3) of the NCAT Act the powers of the Tribunal at first instance to determine the issue on the existing evidence (not allowing further evidence for the reasons just given) and to reach the same adverse conclusion to the appellants.
11. We understand that we have been given all the evidence that was before the primary member.
12. The difficulty for the appellants is that the compensation claim did not appear as a clearly articulated claim before the primary member in a form that was supported by the evidence necessary to establish each aspect of the claim.
13. Claim 4c in the tenants' application particularised the claim as follows: "The property failed the NSW watersafe standard. A leaking tap in the front of the house obscured by the extensive vegetation described at paragraph 24 of NCAT Order dated 10 November 2022, caused the tenants to pay more for water. The tap was repaired however a further notice of a leak was reported by the tenant on 25 August 2023 and then another on 1 September 2023."
14. There was a reference, in an email dated 29 May 2023, from the tenants to the new managing agent (appointed in February 2023) reporting a leaking tap in the front garden and stating that this explained the higher water bills for the preceding two quarters. A plumber attended the premises on 1 June and replaced the tap. There was no evidence that the landlord knew of the leak before the tenants' email and the leak was then promptly attended to.
15. The tenants reported the second leak, as said earlier, by emails on 25 August 2023 and 1 September 2023. The landlord's plumber effected emergency repairs on 2 September 2023 and final repairs on 4 September 2023. There was no evidence that the landlord knew of the leak before the tenants' email and the leak was then promptly attended to.
16. It is not clear if the compensation for alleged excess water charges related to the pre-May or the September reported leak and, if to both, in what amounts for each. The closest was an email from the tenants to the managing agent on 25 August 2023 3.40pm "As you know the last water leak caused an increase to our water bill of over $40 per quarter - this occurred in two quarterly bills". The primary hearing apparently discussed means of calculating the alleged increase by reference to average usage but the outcome of that in a formalised and documented methodology did not emerge.
17. In any event, there also was no clear evidence showing the causal link between the alleged breach (failure to repair leaking taps) and increased water usage of any material amount that excluded other causes (such as higher tenant usage).
18. Finally, in our view there was no relevant breach in relation to either incident. The landlord's duty and liability is not strict to maintain and repair as with an owners corporation in a strata scheme. It depends on reasonable diligence once the landlord ought reasonably to have been aware of the need to repair: see, eg, Roberts at [115]-[121]. If the relevant habitability and other requirements under RTA s 52 are not present at the outset of the tenancy then different obligations arise and may inform the level of required repair: see, eg, Roberts, ibid; Murphy v Lewkovitz [2021] NSWDC 361 at [144]-[147]. The defect in question may affect quiet enjoyment: see, eg, Worrall v ACT Housing Commr [2002] FCAFC 127 at [68]-[76]. There was insufficient evidence to establish either of those alternatives.
19. Equally, if there was sufficient factual material to make some findings (such as the dates of leaks and that there were higher usage charges) and not doing so constituted an error of fact, then we decline to grant leave because the matters described in preceding paragraphs meant that any findings would not lead to a grant of relief, so there was no substantial miscarriage of justice and no basis for exercise of discretion to grant leave on the principles described earlier in these reasons.
20. A claim based on earlier water bills than the leaking tap reported in May 2023 was out of time (three months since tenants' awareness) under RTA s 190 with reg 39(9) unless the tenants established that it was a continuing breach until not earlier than three months before filing the present proceedings on 1 September 2023. The evidence was to the contrary, given that the landlord's plumber replaced the tap two days after the leak was notified.
21. The tenants raised that s 41 of the NCAT Act entitled and empowered the Tribunal to extend the times limited in RTA s 190 with reg 39(9). There is Appeal Panel authority that s 41 applies to entitle and empower the Tribunal to extend the non-jurisdictional limitation period under s 106(5) and (6) of the Strata Titles Management Act 2015 (NSW) (whether s 106(6) itself is non-jurisdictional is controversial): Hua Nan Trading PL v Owners SP 32396 [2023] NSWCATAP 66 at [47]-[110]; Boutenko v Owners SP 77480 [2022] NSWCATCD 166 at [109] citing S&G Homes PL t/as Pavilion Homes v Owen [2015] NSWCATAP 190 at [50]-[53]. That authority establishes however that s 41 cannot be used to extend the Tribunal's jurisdiction.
22. In Tuckwell v Ientile [2022] NSWCATCD 124 at [67] it was concluded that s 41 of the NCAT Act could be used to extend the limitation. There was no discussion of authority or exposure of reasoning on the point but it must be assumed that the implicit reasoning was that limitation provisions were an exercise of power within the Tribunal's jurisdiction over residential tenancy agreements generally rather than a matter of jurisdiction. That has force, given the prohibition on contracting out of the RTA in s 219 of that Act, the conferral of wide powers on the Tribunal under the RTA, the fact that s 190 appears in Pt 9 of the RTA headed "Powers of the Tribunal" and the contrast between express conferral of jurisdiction within s 48K of the Home Building Act 1989 (NSW) (HBA) and the general conferral of jurisdiction in residential tenancy by the operation of s 29(1) of the NCAT Act. Consistent with the wording of the grant of jurisdiction in s 29(1), the RTA "enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation [the RTA] in respect of that matter" - that is, jurisdiction is conferred distinct from but co-existent with the powers and functions conferred on the Tribunal by the RTA.
23. Assuming that RTA s 190 with reg 39(9) was found to be non-jurisdictional and therefore subject to s 41, an extension would be unlikely to be granted on the Jackson principles described earlier because of the evidentiary and causal weaknesses we have described above.
24. Accordingly, on the remaining ground pressed at the appeal hearing, no basis for grant of leave to appeal was made out, nor any error of law. It follows that leave to appeal must be refused and the appeal must be dismissed.

Orders

1. We make the following orders: 1. Vincent Desmond Craig is added as an appellant. 2. The time for filing the Notice of Appeal is extended to 22 March 2024. 3. Leave to appeal is refused and the appeal is otherwise 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2024