Donato v Mehta

1. By their application dated 7 March 2025, the appellants sought orders:

(1) setting aside a termination notice for being retaliatory;

(2) for a rent reduction because the rent was excessive having regard to a reduction or withdrawal by the landlords of goods, services, or facilities;

(3) for an abatement of rent because the Premises became wholly or partly uninhabitable; and

(4) for compensation for out of pocket expenses and non-economic loss.

1. The primary member summarised the dispute in the following way:

There were several aspects to the claim but all related to the defective ceiling.

The tenant claimed that a 90-day Notice be deemed retaliatory and several heads of monetary compensation.

The tenants went into possession in December 2020. The dwelling was a single storey brick veneer cottage with a two-car garage. The garage was fully stocked with personal possessions of the tenant and a 1970s Falcon sedan said to be a valuable classic.

In January 2025 the tenants complained of an unsafe ceiling in the garage. The plasterboard ceiling seems to have been weakened by a roof leak. According to the tenants it was in danger of collapsing. They complained to the managing agent who commissioned an inspection.

From that point on there is a divergence of recollections about what happened but the final works were completed in early March 2025, some 8 weeks after the first report. There was some delay in commencement of the work. One reason was because the owner wanted to get several quotes in the light of the size of the job and secondly (although the details are disputed) because the tenant was slow to organise the removal of the contents of the garage. This was necessary because a full replacement of the ceiling was required.

On 24 February the landlord instructed the agent to issue a 90 day Notice. Miss Nudd put to me that this was because the landlord had decided to retake possession to organise a general upgrade of the house.

1. There is no challenge to the primary member's summary of the dispute.
2. The primary member rejected the appellants' retaliatory termination notice claim, allowed a compensation claim of $516.00 for the cost of hiring a storage unit to store items that had been kept in the garage for two weeks whilst repairs were performed, and noted that a rent abatement of $100.00 per week for two weeks whilst repairs were performed would have been ordered, but had already been allowed for by the respondents.
3. In the result, the Tribunal ordered the respondents to pay the appellants $516.00 and otherwise dismissed the application.
4. The appellants filed their Notice of Appeal on 22 May 2025 which was within the time required by cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules).
5. The Notice of Appeal challenged the Tribunal's orders in respect of the rejection of:

(1) the retaliatory termination notice claim;

(2) the rent abatement claim, and

(3) the compensation claim in so far as it sought more than $516.00 for out-of-pocket storage costs.

1. The Notice of Appeal (including the attached 7 pages of additional information) asserted that the Decision was not fair and equitable and was against the weight of evidence. The appellants further sought to rely on new evidence that was said to support claims of retaliatory conduct, economic loss, non-economic loss and procedural unfairness.
2. On 4 June 2025 an application for a stay of the Tribunal's orders made on 12 May 2025 was withdrawn and dismissed and orders were made for the parties to lodge with the Appeals Registry and give to the other party evidence provided to the Tribunal at first instance that was intended to be relied on, any evidence not provided to the Tribunal at first instance that was intended to be relied on, any response to an intention to rely on any additional material, written submissions, and if what happened at the hearing at first instance was relied on, a typed transcript of the relevant parts of the hearing and a sound recording of the hearing.
3. The appellants relied on a bundle of documents lodged with the Appeals Registry on 15 July 2025 (AB1). The first appellant, Mrs Donato, also provided a chronological list of medical appointments.
4. The respondents relied on a bundle of documents lodged on 5 August 2025 (RB1).
5. Mindful that the appellants are self-represented, it appears from the documents filed by the appellants that they also contended that there was a denial of procedural fairness because a sound recording of the hearing: included a discussion between the primary member and the respondents' agent before the appellants appeared by telephone; the fact that the primary member questioned the first appellant as to why she was not able to appear in person, and because the decision was given shortly after the hearing.
6. The evidence that was not before the Tribunal at first instance which the appellants sought now to rely on included:

(1) Updated medical and psychological reports;

(2) Evidence of an injury by one of the tenants shortly after the Decision which was said to have been caused by the emotional strain of 2 weeks' notice to vacate;

(3) An invoice for Acrow props noting that the Tribunal rejected the claim for the cost of Acrow props, in part, because an invoice had not been provided;

(4) Evidence of costs related to the appeal;

(5) A copy of flight details of Mr and Mrs Donatos' son.

1. Mrs Donato appeared for the appellants. The respondents were represented by their managing agent.

1. 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: s 80 (2) of the NCAT Act.
2. An appeal to the Tribunal's Appeal Panel does not provide an unsuccessful party with the opportunity to run its case again, nor is it sufficient for an appellant to disagree with the outcome and to contend there should have been a different outcome: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
3. To succeed in an appeal from a decision of the Consumer and Commercial Division, an appellant must demonstrate either an error by the Tribunal on a question of law, which may be argued as of right; or that leave (permission) be granted to bring the appeal for a reason under clause 12(1) of Schedule 4 of the NCAT Act (which is expanded on below).
4. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') the Appeal Panel set out at [13] a non-exclusive list of questions of law. A question of law can include whether a party was denied procedural fairness.
5. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204, the Appeal Panel, at [25] provided further guidance in relation to what is a question of law. In summary:

(1) A question of law should be articulated with precision;

(2) Absent leave to appeal, a question of law is the proper subject of the appeal;

(3) A question of law means a "pure question of law" which is not dependent on facts not found and is not dependent on the answer to the question;

(4) A party contending that a question of law was wrongly decided must identify the question in abstract terms;

(5) A mixed question of fact and law is not a question of law, and a question of law must not be hypothetical or arid;

(6) A question of law must be capable of affecting orders the subject of the appeal, not purely the reasons, and

(7) There may be disclosed an error of law but this of itself does not necessarily raise a question of law.

1. An error on a question of law is an appeal as of right (if established) and does not require leave.
2. Where the grounds of appeal do not raise a question of law, an appellant may seek leave to appeal.
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division of this Tribunal under s 80(2)(b) of the NCAT Act are limited to those set out in cl 12 (1) of Sch 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) Para 12(1)(a) - the decision of the Tribunal under appeal was not fair and equitable; or

(2) Para 12(1)(b) - the decision of the Tribunal under appeal was against the weight of evidence; or

(3) Para 12(1)(c) - 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 principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. As explained in Collins v Urban at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there is a bona fide challenge to an issue of fact.
2. In Collins v Urban, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12 (1) of Sch 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. Consistent with the practice that procedural fairness challenges as a question of law are to be considered before any other challenges (YHY v YHZ [2024] NSWCATAP 117 at [54] and Boreland v Brewis [2024] NSWCATAP 140), we first consider what appears to be a procedural fairness challenge on the basis that the Tribunal engaged with the respondents' representative before Mrs Donato appeared by telephone, the short time between the finalisation of the hearing and the issuing of the Decision and the manner of the Tribunal member's communication with Mrs Donato.
2. We will then consider the evidence to be relied on that was not before the Tribunal and then the appellants' challenge to the Tribunal's findings and orders in respect of the retaliatory conduct, rent abatement, and compensation claims.

1. The appellant's provided a transcript at AB1 pp 22 to 31.
2. Relevantly:

(1) The first 35 lines include a general discussion about the case with the respondents' representative before Mrs Donato appeared by telephone. It includes a general discussion about the existence of a claim of retaliatory conduct and for compensation.

(2) The transcript also identifies that, following Mrs Donato's appearance, a discussion between the Tribunal and Mrs Donato occurred in which Mrs Donato identified the orders sought by the appellants and the basis for the orders sought. During this discussion the primary member also queried Mrs Donato about why she was unable to attend in person, noting

... "having to do this well, not audio visual, but just over the phone makes it difficult for everyone. And it's much better if all the parties are here in person in the hearing room. Sometimes we can settle the matter by all the parties being here together, who knows?".

1. Principles relevant to a lack of procedural fairness ground of appeal were summarised by the Appeal Panel at [59] to [67] in Boreland v Brewis [2024] NSWCATAP 140 (with references to authorities removed):

59 In determining proceedings before it, the Tribunal is under a duty to afford procedural fairness to the parties. .... Procedural fairness requires that the Tribunal give the parties a fair hearing, and that it be free from actual or apprehended bias. The term "procedural fairness" is synonymous with natural justice (the latter term is used in s 38(2) of the NCAT Act).

60 It is well established that the Tribunal must conduct a hearing that gives procedural fairness to both parties, even taking into account the less formal nature of Tribunal proceedings (s 38(4) and subs (5) of the NCAT Act). What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case so as to avoid practical injustice ....

62 Where there has been a breach of the requirement to afford the appellant procedural fairness, the question arises whether that error was material to the Tribunal's decision. A breach of procedural fairness will constitute jurisdictional error, if the error is material to the Tribunal's decision: .... Materiality is established if the procedural unfairness deprived the appellant of a realistic possibility of a different outcome on the application lodged in the Consumer and Commercial Division.

63 If the appellant succeeds on his ground of appeal which asserts a denial of procedural fairness, it is unnecessary to consider any other issues raised in the grounds of appeal as to whether they can be formulated in substance to identify any other error on a question of law (or if not, whether leave to appeal should be granted under s 80(2)(b) and bearing in mind the limitations set out in cl 12 of Sch 4 to the NCAT Act with respect to internal appeals from decisions made by the Consumer and Commercial Division).

64 As recently noted in the Appeal Panel decision in YHY v YHZ [2024] NSWCATAP 117 at [54], authority dictates that we hear and determine a procedural unfairness challenge prior to any other challenges and that "whenever a matter is remitted for a retrial, it is preferable that the appellate court restrict its assessment of the evidence to matters necessary to the finding of error": ...

Consideration

65 Procedural fairness requires that parties have an adequate opportunity to put their case and test the case against them. By s 38(5)(c) of the NCAT Act, the Tribunal is required to take "reasonably practicable measures" "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".

66 As Justice Basten stated in Italiano v Carbone & Ors [2005] NSWCA 177 at [88]:

"An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment," as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]:

'"A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." at [37].'"

67 If it is established that there was a denial of procedural fairness, it must then be considered whether there exists a realistic possibility that the outcome of the decision could have been different had the error not been made .... Finding that a properly conducted application would have inevitably produced the same result is not done lightly: ....

1. The discussion with the respondent's agent before Mrs Donato appeared by telephone is nothing more than a general discussion identifying the claims made. In our view there is nothing in the conversation that suggests that the Tribunal had predetermined the matter, or that there is reason to be concerned in respect of any actual or apprehended bias, or that the Tribunal did not otherwise give the appellants a fair hearing.
2. Having regard to the transcript, we are also not satisfied that the questioning of Mrs Donato to why she had not attended the hearing in person gives rise to a denial of procedural fairness. The questioning went no further than the primary member informing himself as to why the appellants were appearing by telephone and informing the parties of what can be the benefit of both parties appearing in person.
3. Further, mindful that the parties were given the opportunity of lodging documents with the Tribunal before the hearing and that, as noted by the primary member, "Both parties filed various items of evidence...", and the discussion that took place with Mrs Donato in respect of the appellants' claims, we do not see anything procedurally unfair with the Tribunal giving its decision, with reasons, on the afternoon of the hearing, even if the Tribunal had informed the parties, as the transcript records, that if the case could not settle the primary member did not propose making a finding that afternoon and that the Tribunal would look through the evidence and publish short reasons in the next few days.
4. Further, the giving of the decision on the same day is consistent with the requirement of the Tribunal to give effect to the guiding principle provided for at s 36 of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in dispute.
5. We are therefore not satisfied that the appellants were denied procedural fairness. To the extent that the appeal relies on the ground of a breach of procedural fairness, it is rejected.

Documents the appellants seek to rely on that were not before the Tribunal

(1) 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 -

...

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

1. We amplify and deal with the new evidence sought to be relied on by the appellants in the following paragraphs.
2. Firstly was a tax invoice dated 5 March 2025 from Michael Donato for the attention of McGrath Estate Agents Northwest for the cost of the hire of Acrow props to hold the garage up (AB1 p 42-43). Because it predated the hearing and was in that light clearly available to the appellants before the hearing, and was issued by Michael Donato to the respondents' agent, it was not significant new evidence that was not reasonably available to the appellants at the hearing.
3. Secondly, a page dated 18 December 2024 at AB1 p 49 identified flights in the United States for Mr and Mrs Donato's son in February 2025. Because it predated the hearing, did not identify the name of the passenger and otherwise could have little relevance to the issues, it was not significant new evidence that was not reasonably available to the appellants at the hearing.
4. Thirdly, there were various medical and disability records, a claim for the costs of the Appeal and an emailed advice from the Western Sydney Tenancy Advice Service at AB1 75 to 78. Although the respondents agreed to the appellants being able to rely on the documents, we do not see that they are relevant to or capable of having any bearing on the substantive matters the Tribunal was required to determine or the determination of the appeal except (for some) questions of costs.

1. The Tribunal's reasons for rejecting the appellants' claim that the termination notice was retaliatory were:

The tenants wanted the 90 day Notice set aside as retaliatory. The only issue cited in support of this contention was the proximity in time between the complaint and the service of the Notice.

I note that the landlord evinced no animus against the tenant at the time of the complaint and gave instructions for quotes to be sought the same day.

Early in the tenancy (4 years+ previously) the tenants had commenced proceedings in the tribunal complaining of the state of the premises. Works were done in response to this and nothing was put to me to show any ill feeling since that time. I gather from this that even at the commencement of the tenancy the house was at least 30 years old and far from pristine with the most modern fittings.

So all things considered I cannot be satisfied from the material put to me by the tenant (who bear the burden of proof) that their case for retaliation has been made out.

...

I dismiss the claim that the termination notice was retaliatory...

1. At Item 1 of the Grounds of Appeal (AB1 p 5) and submissions regarding whether the termination notice was retaliatory, the appellants do not identify any error by the primary member but effectively repeat their contention that, having regard to the timing of a complaint made to the respondents' agent and receipt of the termination notice, the respondents' conduct in issuing the termination notice was clearly retaliatory.
2. The primary member gave a reasoned decision for not being satisfied that the termination notice was retaliatory in which he identified the appellants' contentions for arguing that it was retaliatory and the reasons that he was not satisfied that the respondents' conduct in issuing the termination notice was retaliatory.
3. In our view, it was open to the primary member to find that he was not satisfied that the termination notice was retaliatory for the reasons that he expressed.
4. We are therefore not satisfied that any error has been demonstrated in respect of the Tribunal's finding that it was not satisfied that the termination notice was retaliatory or that the appellant may have suffered a substantial miscarriage of justice for a reason set out in clause 12(1)(a) or (b) of Sch 4_._
5. Leave to appeal in respect of whether the termination notice was retaliatory is therefore refused.

1. The Tribunal's reasons for finding in favour of the appellants for $516.00 but otherwise rejecting their claims for compensation were:

The Monetary claims

Storage Units

The tenants claim $516 being the cost to hire 2 mobile storage units (Taxi Boxes). These were used to store the contents of the garage while the repairs were carried out. This took about a week but the storage units could only be rented on a monthly basis.

There could be an issue of a failure by the tenants to mitigate their loss by finding more appropriate storage arrangements.

Acrow props

On becoming aware of the danger from the ceiling in mid January the tenants procured a number of Acrow props to secure the ceiling. They were seeking $400 for the hire of those items but no invoices or receipts were produced. The managing agent protested about this and indicated that the tenants were involved with the construction industry and it was likely that the props were obtained at no charge. As a result of there being no supporting evidence I will not make an\y compensation order with respect to the Acrow props.

I also observe that once the props were in place the question of imminent danger of collapse of the ceiling evaporated. Indeed, it was put to me for the landlord and I have no reason to doubt it that with the props in place the tenants continued to use the garages as normal. The photos on file provide some corroboration.

...

I dismiss the claim that the termination notice was retaliatory and the Acrow prop aspect of the compensation claim.

The storage unit claim is allowed at $516

1. At Item 3 of the Grounds of Appeal (AB1 p 6) and submissions regarding the claims for out-of-pocket expense, the appellants do not identify any error by the primary member but simply repeat their contention that, having regard to the circumstances, they should have been allowed an amount of money for the cost of the Acrow props.
2. The primary member gave a reasoned decision in respect of the "Money Claims", including his reasons for allowing $516.00 for the cost of hiring two storage units and rejecting the claim for the cost of Acrow props.
3. In our view, it was open to the primary member to make the findings that he did for the reasons that he expressed.
4. We are therefore not satisfied that any error has been demonstrated in the Tribunal's findings in respect of the compensation claim.
5. Further, and for completeness in respect of the compensation claim, although the Notice of Appeal and the papers attached to it referred to a claim for "Non economic loss/compensation" for 'prolonged disputes and safety concerns', 'retaliatory conduct by the landlord/agent', 'disrespectful conduct during the Tribunal hearing despite medical approval to appear by phone' and 'delayed outcomes', we were not taken to any part of the transcript of the proceedings at first instance where this claim was argued, including: any alleged breach (save for possibly the claim of a retaliatory termination notice which was rejected) which is said to give rise to the claim; or the evidence to establish that the medical conditions complained of could be attributed to the defective ceilings, or any error by the primary member in respect of the claim for "non-economic loss - compensation" claim of $1200.00" that is made in the Notice of Appeal and the documents attached to it.
6. We are therefore not satisfied that there has been any error established in the Tribunal's consideration of the appellant's compensation claims or that the appellant may have suffered a substantial miscarriage of justice for a reason set out in cl 12(1)(a) or (b) of Sch 4_._
7. Leave to appeal in respect of the compensation claims is therefore refused.

1. The Tribunal's reasons for rejecting the rent abatement claim were:

The tenants claimed an abatement of rent in the sum of $200 per week for 9 weeks due to the ceiling damage from a weekly rental of $700.

The basis of the claim is the non-availability of the garage being a withdrawal of services.

As I see the matter the problem for the tenants is that there is evidence on file from the contractor a Mr Tarabiya who replaced the ceiling that the conduct of the tenants delayed the repair work by some 2 weeks. I accept this evidence and am satisfied that the tenant's did not take their obligations to mitigate the loss seriously enough.

There is also an element of double counting in their claim. They want to pay no rent for garage and also to claim the cost of storage units. It was common ground that the landlord had already allowed $200 for the loss of the garage

I would allow a rent abatement of $100 per week for the loss of a garage for two weeks. This is already dealt with in the landlord's concession.

(1) That a rent reduction of $2,000.00 be awarded for the period 13th January 202 to March 2025 due to complete loss of use of the garage for 9 weeks ($1,800.00) and the complete loss of use of an enclosed pergola area for two weeks ($200.00).

(2) That on 19 February 2025 the appellants emailed [the Agent] that they had been unable to use the garage as it was too dangerous, which email was ignored.

(3) That the appellants were unable to use the garage due to safety issues from 13 January 2025 until works were completed on 11 March 2025 which, according to the appellants, meant that:

(a) the garage was unsafe and uninhabitable;

(b) there was a loss of a secure storage facility;

(c) the appellants faced exposure of personal property to risk;

(d) there was continued unresolved damage to the garage door;

(e) there was a need to alter how the appellants used and protected their property.

(4) That the appellants were unable to use a covered outdoor area for two weeks because they had to store everything from the garage that wouldn't fit in the 2 storage units. The fact of this claim appears consistent with the respondents' contention that items continued to be stored in the garage up to the time the work was performed.

1. We were not taken to any relevant parts of the transcript where this issue was dealt with or the evidence that supported a contention that the Tribunal erred in its consideration of the rent abatement claim and finding that a rent abatement of $100.00 per week would have been allowed for two weeks (being the period when the works were performed because everything had to be removed from the garage when the work was performed), but that no order would be made because the respondent had already reduced the rent by $100.00 per week for two weeks whilst the garage repair works were performed.
2. In particular, we were not taken to evidence that material was unable to be and was not stored in the garage for nine weeks or reasons that the Tribunal erred in finding that $100.00, rather than $200.00, per week ought to be the reduction allowed.
3. We are therefore not satisfied that there has been any error established in the Tribunal's consideration of the appellants' rent abatement claim or that the appellant may have suffered a substantial miscarriage of justice for a reason set out in cl 12(1)(a) or (b) of Sch 4_._
4. Leave to appeal in respect of the rent abatement claim is therefore refused.
5. Neither parties' submissions included submissions in respect of the costs of the appeal including in respect of alleged special circumstances justifying exercise of a discretion to award costs under s 60 of the NCAT Act. The appellants' evidence sought to be introduced on costs became irrelevant since the appellants have not succeeded at all in their appeal. We shall make no order as to costs of the appeal.

(1) Leave to appeal refused.

(2) Appeal 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.