Fathulla v Mansell

A-Civil Aust Pty Ltd v Rose [2025] NSWSC 1505

Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Azzopardi v Tasman QEB (1985) 4 NSWLR 139

Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184

BHP Billiton Ltd v Dunning [2013] NSWCA 421

Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734

Chalik v Chalik [2025] NSWCA 136

Collins v Urban [2014] NSWCATAP 17

Cominos v Di Rico [2016] NSWCATAP 5

Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51

Donohoe v Alburario [2025] NSWSC 9

Hu v Roggeveen [2022] NSWCATAP 295

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390

Makowska v St George Community Housing Ltd [2021] NSWSC 287

McNeill v Clarence Valley Council [2025] NSWCATAP 184

Pholi v Wearne [2014] NSWCATAP 78

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Redmyre Group Pty Ltd v Stockman [2023] NSWCATAP 305

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

Roberts v NSW Land and Housing Corporation [2017] NSWCATAP 9

Ros v Commissioner of Police [2020] NSWCATAP 70

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416

Thomas and Naaz [2023] NSWCA 40

TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178

Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

Williams v Wang [2025] NSWCATAP 314

Lin v Westerman [2025] NSWCATAP 319

Anforth and Christensen, Residential Tenancies Law and Practice 4th edition.

1. This is an appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) from a decision of the Tribunal dated 5 September 2025 under the Residential Tenancies Act 2010 (NSW) (RT Act) to award a tenant $2,000 in compensation, but dismiss other claims by the tenant.
2. In this decision, any reference to "the tenant" is a reference to the appellant, and any reference to "the respondent" is a reference to the landlord.
3. At the appeal hearing, the tenant appeared self-represented. The landlord was represented by Mr Rajmal, Solicitor. On 10 October 2025, Blake PM had made a consent order at the Call Over of the appeal that the landlord be granted leave to be legally represented in the appeal proceedings under s 45 of the NCAT Act, on the condition that the landlord would not seek legal costs if the tenant was unsuccessful in the appeal proceedings.
4. The landlord had also been granted leave to be legally represented in the Tribunal proceedings. Mr Rajmal Solicitor appeared for the landlord at the Tribunal hearing on 4 September 2025.

1. In October 2022, the parties entered into a residential tenancy agreement. The tenant was one of two co-tenants, but during the course of the tenancy the other co-tenant moved out. The premises were let in a fully furnished state.
2. For a period of time during the early stages of the tenancy, the landlord had a managing agent. It is unclear when that management ceased. The landlord is a 92-year-old man, who lived in a different part of the same residence.
3. On 2 May 2025, the tenant filed Tribunal proceedings. The tenant sought various orders, including repairs under s 65 of the RT Act; a notice to terminate be declared invalid as retaliatory under s 115 of the RT Act; compensation for breach of quiet enjoyment under s 50(2) of the RT Act; and a rent reduction under s 44(1)(b) of the RT Act.
4. The rent reduction was identified as being sought due to the landlord's failure to repair "water leaks" in the premises.
5. The matter was listed for a Conciliation and Group List hearing at the Tribunal on 26 May 2025. It was listed for a final hearing on 4 September 2025.
6. On 30 April 2025, the landlord served the tenant with a document titled "Notice to Quit".
7. Prior to the hearing, the tenant had filed a bundle of documents on about 11 June 2025.
8. Those documents relevantly included a statement from the tenant dated 11 June 2025; photographic evidence; correspondence between the tenant and the landlord; rainfall records; and a "noise abatement log".
9. The tenant's statement of 11 June 2025 identifies a claim for compensation in the amount of $4,000 for "distress and disruption of peaceful enjoyment of the premises".
10. The statement identifies the separate rent reduction claim under s 44(1)(b) of the RT Act as follows:

"From 20 February 2024: $200 per week for loss of use of the lounge room and adjacent bedroom due to leaks until full repairs are conducted. Rainfall records show approximately 230 rainy days or 33 weeks from 20 February 2024 to 4 June 2025 (33 weeks x $200=$6,600).

From 29 April 2025 (date of light fitting explosion); an additional $50 per week until full lighting is installed".

1. On 28 June 2025, the tenant served a notice to terminate, asserting it was a notice under s 97 of the RT Act.
2. The landlord (by his Solicitors) had also filed documents.
3. The landlord filed a "Points of Defence" document that responded to the tenant's documents of 11 June 2025.
4. The landlord conceded various issues, including that the "Notice to Quit" was not a valid notice to terminate under the RT Act. The landlord denied it had breached the tenant's quiet enjoyment by reason of the actions of the landlord, or tradespersons attending the premises. The landlord denied the vacuum cleaner supplied did not work effectively. The landlord denied the tenant was entitled to compensation or a rent reduction.
5. The Points of Defence include the following:

"...

8. (a) The Respondent acknowledges the Applicant's alleged report of dampness in the wall adjoining the shower area.

(b) The Respondent's initial assessment was that there was no dampness from the shower and that a hole in the hallway wall was caused by the Applicant's actions (e.g. moving furniture).

(c) The Respondent admits that a recent building inspection report, obtained subsequent to the Applicant's NCAT application, had identified moisture issues in the living area, which will be addressed as part of overall rectification works following the Applicant's vacation of the premises.

Property Inspection Report prepared by Michael Dickinson of Resicert dated 2 July 2025.

(c) The Respondent denies the quantum of the rent reduction and compensation sought by the Applicant.

(d) While acknowledging the building inspector's report confirming moisture issues, the Respondent submits that the Applicant's calculations for rent reduction ($200 per week plus an additional $50 per week) and compensation ($4,000 for distress) are excessive and not adequately substantiated.

(e) The Applicant's calculations are based on their (sic) allegations of extensive and continuous unhabitable conditions, which the Respondent disputes in severity and duration.

(f) The Applicant has not provided objective evidence to quantify the "loss of use" of specific rooms or the extent of "distress and disruption" to justify the quantum of the compensation sought.

(g) The Respondent otherwise denies that the Applicants (sic) are entitled to the relief sought or at all.

1. The Points of Defence do not identify that the landlord disputes the tenant's rent reduction claim because the tenant has failed to identify, or provide evidence of, the amount of rent payable under the residential tenancy agreement between the parties.
2. The report of Mr Dickinson of Resicert Property Inspection dated 2 July 2025 was served by the landlord in the Tribunal proceedings, and was contained the landlord's appeal documents.
3. That report relevantly includes the following:

"Interior Areas

There is evidence of dampness/excessive moisture/moisture stains in the walls. Recommend consulting a qualified tradesperson for evaluation and rectify where required.

Ceiling Condition

...

Extensive water damage to various areas of ceiling and timber beams.

Present/visible leaking noted at the time of the inspection.

The thermal camera showed moisture penetrations/leaking in various locations.

Wood decay/moisture damage/excessive moisture present to various timber beams noted.

The inspector was not able to gain access to the deck/balcony above the affected areas for a more comprehensive evaluation.

Buckets noted for water leaks.

Recommend consulting a qualified tradesperson for evaluation of ceiling/timber beams and the above deck/balcony and rectify where required."

1. By the date of the hearing, the tenant had moved out and the tenancy had ended. The tenant vacated on or about 20 July 2025.

1. The landlord's appeal documents include a transcript of the hearing.
2. The tenant appeared self-represented. Mr Rajmal, Solicitor, represented the landlord. The landlord also attended the hearing. Ms Cameron, a family member of the landlord also attended the hearing. At a point in the hearing, Ms Cameron gave evidence that was critical of the tenant.
3. The tenant clearly stated at the hearing that there was water ingress into the residence, and that she had notified the landlord and sought repairs. The tenant stated as follows: (T:4/9/25:[48]-[50]):

"...So every time it rains um consistently for 15 minutes to half an hour there would be 5 leaks and it would increase to 11 depending on the consistency of the rain and the heaviness. And finally, and he I (sic). He didn't ever respond to any of the correspondence around the leaks. And finally, we had like a good solid few, four weeks of consistent rain and when my light fitting started to explode, and he refused to OK an electrician to come and see what was going on. That was when I just. Went to the Tribunal..."

1. The tenant stated that the water leaks and reduced the amenity of the premises.
2. The tenant gave evidence that she had arranged for an electrician to repair the light fitting. The tenant also asserted she was without "main lights" for a period of time. The tenant gave evidence about her alleged loss of quiet enjoyment, which included noise from the landlord's radio, and allegedly abusive letters. There was also brief evidence about issues with the deck and repairs to the deck. According to the tenant, water leaks continued after the deck was repaired.
3. The tenant made clear that part of her claim was a rent reduction. At [152]-[153] of the transcript, the Solicitor for the landlord referred to the Appeal Panel decision in Roberts v NSW Land and Housing Corporation [2017] NSWCATAP 9 (Roberts), which is a leading authority in respect of s 44(1)(b) of the RT Act.
4. The landlord's Solicitor submitted that the tenant had not provided "independent third-party evidence" to support the rent reduction claim, and it was based upon "self-serving letters, notices and hearsay."
5. At the end of the hearing, the Member raised with the parties that neither party had provided a copy of the written residential tenancy agreement in evidence. The Member stated at [211] "It's not in dispute that there was. No one saying there wasn't a tenancy agreement, otherwise you wouldn't be here." However, the Member did not state, at any point in the hearing, that the tenant had not provided any evidence of the rent payable for the premises. The landlord's Solicitor did not raise this as an issue at the hearing, beyond the submission that the tenant bore the onus of proof and there was no "independent third-party evidence" to support the rent reduction claim.
6. As the tenancy was over, the orders for repairs under s 65 of the RT Act and to declare a termination notice as retaliatory under s 115 of the RT Act were not pressed.

1. The Tribunal published written reasons on 5 September 2025.
2. At [14]-[16] the reasons state:

"The issue in dispute between the parties was the applicant's compensation claim. The applicant was also seeking a rent reduction.

The applicant sought compensation in the amount of $4,000 for her loss of quiet enjoyment in the property and sought a rent reduction of $200 per week for loss of use of the lounge room and adjacent bedroom due to leaks (33 weeks at $200=$6,600.

Additionally, the applicant sought an additional rent reduction of $50 per week from 29 April 2025 until such time as lighting was restored."

1. The Tribunal referred to the evidence of the parties, including the expert report of Mr Dickinson of Resicert Property Inspections dated 2 July 2025.
2. The Tribunal found at [38] that the landlord had breached his duty to keep the premises in a reasonable state of repair under s 63 of the RT Act.
3. At [39]-[40], the Tribunal was satisfied that the actions of the landlord making unreasonable noise and sending inappropriate letters to the tenant was a breach of quiet enjoyment under s 50(2) of the RT Act.
4. At [41]-[48] the Tribunal dealt with the rent reduction claim. The reasons state as follows:

"[41] The applicant sought a rent reduction in the total amount of $6,600 for the period of 20 February 2024 for 33 weeks due to loss of use of the lounge room and adjacent bedroom because of water leaks. Further, the applicant sought a rent reduction of an additional $50 per week from 29 April 2025 until the lighting was restored.

[42] Unfortunately, nowhere in the tenant's evidence was the amount of rent currently (sic) payable set out or disclosed. This makes it difficult to assess the appropriateness of any amount or rent reduction as sought.

[43] Further, it was not clear the basis on which this rent reduction was sought.

[44] It may be that the tenant was reliant on section 43, which provides that the rent payable under a residential tenancy agreement abates if the residential premises are destroyed, or become wholly or partially uninhabitable., otherwise than as a result of a breach of an agreement (emphasis added).

[45] In the present matter it appears that the conditions that were said to give rise to the inhabitability of part of the premises were due to the breach of the residential tenancy agreement by the landlord. This is the allegation that was put by the tenant. Section 43 therefore does not apply.

[46] Accordingly, this portion of the claim is dismissed.

[47] In relation to the claim for a rent reduction due to the withdrawal of any goods, services, or facilities, it appears that this portion of the claim may also be misconceived. It appears that the premises were the same from the beginning of the tenancy and that no goods, services, or facilities were withdrawn during the course of the tenancy. The issue with the vacuum cleaner is also misconceived. The landlord did not remove the vacuum cleaner, but rather the allegation is that the landlord failed to repair it. There is no evidence that the vacuum cleaner was in fact in a state of disrepair such that it could not be used at all (such as evidence from a vacuum or appliance repairer).

[48] Accordingly, this portion of the claim is also dismissed."

1. At [49]-[64] of the reasons, the Tribunal deals with the issue of remedy, having found that the landlord breached his obligations under s 50(2) and 63 of the RT Act. The Tribunal referred at [50] to the power to award compensation under s 187 of the RT Act.
2. At [52] the Tribunal found the tenant had "mitigated" (sic) her losses.
3. At [53]-[56] and [61]-[62] the Tribunal briefly referred to "comparable verdicts" based on summaries of decision of the predecessor Tribunal referred to in Anforth and Christensen, Residential Tenancies Law and Practice 4th edition (Anforth).
4. At [58]-[59] the Tribunal referred to damages for distress, disappointment and anxiety being a type of damage that is recoverable for breaches of quiet enjoyment and failure to repair, and that s 16 of the Civil Liability Act 2002 (NSW) does not apply.
5. In respect of compensation for loss of quiet enjoyment, the Tribunal found at [57]:

"Similarly, doing the best it can the Tribunal considers that an amount of $800 is fair and reasonable compensation for the landlord's breach in the current matter in relation to the issue of loss of quiet enjoyment".

1. In respect of compensation for failure to repair, the Tribunal found at [63]:

"In the present matter the Tribunal considers that an amount of $1,200 is fair and reasonable compensation for the landlord's breach of the agreement with respect to the issue of the water leaking into the property."

1. On 17 September 2025, the tenant filed a Notice of Appeal. The appeal was filed within the applicable time period in r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules).
2. The Notice of Appeal identifies that the tenant's grounds of appeal (including seeking leave to appeal) were as follows:

(1) The decision was not fair and equitable. The Tribunal dismissed the tenant's claim for a rent reduction on the "technicality" that the tenant had not provided evidence of the amount of rent payable under the residential tenancy agreement. Had the Tribunal raised this as an issue at the hearing, the tenant would have given evidence that the rent payable was $425 pw. The Tribunal did not consider the merits of the tenant's application.

(2) The decision incorrectly referred to the tenant's claim for a rent reduction being under s 43 of the NCAT Act.

(3) The decision was against the weight of evidence. There was clear photographic evidence of water ingress and the landlord's own expert referred to water ingress issues.

1. The landlord filed a Reply to Appeal on 9 October 2025. The Reply to Appeal attached submissions. The landlord asserted that:

(1) The tenant had not provided any evidence of the amount of rent payable, and the tenant "bore the onus of proving the rent payable and the calculation of any rent reduction." Even if the amount of rent payable was established "no evidence was led to show that the rent was "excessive" or that any proper basis for abatement existed under the RT Act."

(2) The Tribunal "correctly" found s 43 of the NCAT Act did not apply.

(3) The appeal is an attempt by the tenant to re-litigate matters upon which the tenant was unsuccessful. The tenant could have provided evidence in respect of the rent amount, but failed to do so.

1. The submissions also imprecisely refer to the absence of evidence from the tenant permitting the Tribunal to draw an "adverse inference" under Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 principles. Rules of evidence do not apply to this type of Tribunal proceedings (ss 38(2) and (3) of the NCAT Act). However, common law evidentiary principles may be relevant to the procedurally fair conduct of adversarial litigation (Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184 at [129]- [133] and the authorities cited therein).
2. If the inference is drawn because of the unexplained failure to call evidence (and it may only be drawn in certain "appropriate circumstances"), the inference is that the uncalled evidence would not have assisted the party's case. It is not an "adverse inference" that the missing evidence would have damaged the party's case (see the discussion by Schmidt AJ in A-Civil Aust Pty Ltd v Rose [2025] NSWSC 1505 at [48]- [48] for a summary of the applicable principles when the inference can be drawn; and if it is drawn, how it affects the assessment of evidence and also the discussion in Redmyre Group Pty Ltd v Stockman [2023] NSWCATAP 305 at [76] and [93]-[96]).
3. The tenant filed her documents and submissions in the appeal on 19 November 2025. Those documents included the documents she had relied upon in the Tribunal proceedings; and additional bank statement documents evidencing that the rent payable for the residential premises was $425 pw.
4. The landlord filed a bundle of appeal documents on 7 November 2025. The index to the bundle is dated 4 November 2025. There were 156 pages referred to in the index.
5. The landlord also filed written submissions on 5 December 2025.
6. The landlord's written submissions of 5 December 2025 submit that there was no denial of procedural fairness; and that leave to appeal should not be granted.
7. In summary, the landlord submits that the tenant had not provided sufficient evidence for the Tribunal to assess a rent reduction, including the failure to provide evidence of the rent payable and the matters identified in s 44(5) of the NCAT Act. Accordingly, the tenant's rent reduction claim was doomed to fail.
8. The landlord submits the tenant had ample opportunity to adduce evidence; and that at the end of the hearing the Tribunal asked the parties "Anyone got any questions" and the tenant did not raise with the Tribunal whether the absence of evidence regarding rent payable would be critical to her case.
9. During oral submissions at the appeal hearing, Mr Rajmal also submitted that there was no evidence of any "withdrawal" of goods, services, or facilities by the landlord, which was dealt with at [47] of the Tribunal's reasons.

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 is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
3. What is an error on a question of law was extensively discussed by the Appeal Panel in Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. An error on a question of law (if established) is an appeal made as of right and does not require leave. A mixed error of fact and law (if established) requires leave to appeal.
4. In Cusumano at [33], the Appeal Panel stated the categories of questions of law are "not closed"; and at [37] stated:
5. "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."
6. It is unnecessary for the purpose of this decision to set out all the examples of an error on a question of law that were discussed in Cusumano.
7. However, an error on a question of law may arise in the circumstances including the following:

(1) Failure to provide procedural fairness at the hearing (Donohoe v Alburario [2025] NSWSC 9 at [36]- [39] Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [41] (Gleeson CJ), [142] (Kirby J) and [170] (Hayne J)).

(2) No jurisdictional power to make an order (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57; at [163] (Hayne J)

(3) A constructive failure to exercise jurisdiction, in the sense of a failure to consider a "substantial, clearly articulated argument relying upon established facts" that was within the jurisdiction of the Tribunal to determine (see e.g. Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [6]- [12] and [413]; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [1] and [9]).

(4) Applying the wrong legal principle (in isolation to the factual findings) which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]- [53] (Bimson)). However, the wrong application of the correct legal principles to the facts is an error of mixed fact and law for which leave to appeal is required under s 80(2)(b) of the NCAT Act (TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178 at [42]- [43] and the authorities cited therein).

(5) Making a factual finding where there was no evidence at all to substantiate the factual finding: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [91] per Hayne, Heydon, Crennan and Kiefel JJ. However, a wrong finding of fact does not amount to an error of law: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 per Brennan J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at [83]-[89]. An erroneous finding of fact, including the drawing of an inference or the erroneous failure to find a fact or failure to draw an inference, which is perverse in the sense that it is contrary to the overwhelming weight of the evidence, is not an error of law: Azzopardi v Tasman QEB (1985) 4 NSWLR 139 at 155 per Glass JA.

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 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) The decision of the Tribunal under appeal was not fair and equitable (Cl 12(1)(a) of Sch 4); or

(2) The decision of the Tribunal under appeal was against the weight of evidence; (Cl. 12(1)(b) of Sch 4); 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)-Cl. 12(1)(c) of Sch 4.

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 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 the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19]; Pholi v Wearne [2014] NSWCATAP 78 at [32]).
2. The discretion to grant leave to appeal was discussed by the Appeal Panel in Collins v Urban at [82]-[84]. It is usually appropriate to grant leave only in those matters that involve issues of principle; questions of general public importance; an injustice which is reasonably clear, in the sense of going beyond what is merely arguable; or the Tribunal has 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, it would be in the interests of justice for it to be reviewed.
3. In respect of a self-represented non-legally trained appellant, grounds of appeal may be considered generally (subject to procedural fairness considerations and the issues discussed in McNeill v Clarence Valley Council [ 2025] NSWCATAP 184 at [185]- [188]) to determine whether a question of law has been raised (Cominos v Di Rico [2016] NSWCATAP 5 at [13]).
4. In this matter, the tenant's grounds of appeal refer to leave to appeal under Cl. 12 of Sch 4 of the NCAT Act. However, when looked fairly, the substance of the grounds of appeal also raise a constructive failure to exercise jurisdiction, on the basis that the tenant submits the Tribunal did not consider her claim under s 44(1)(b) of the RT Act brought on the basis that the landlord's failure to repair the water ingress issues constituted a reduction of goods, services or facilities, which affected her use and amenity of the premises. A constructive failure to exercise jurisdiction may be an error on a question of law, as distinct from an error of mixed fact and law requiring leave to appeal.

1. The tenant relies on fresh evidence in the appeal, being bank statements to demonstrate that the rent amount was $425 pw.
2. The Appeal Panel is not satisfied that the grounds of appeal warrant a fresh hearing under s 80(3) of the NCAT Act. Appeal hearings under s 80(1) of the NCAT Act involve the same evidence that was before the Tribunal.
3. However, in addition to conducting an appeal hearing as a fresh hearing under s 80(3) of the NCAT Act, the Appeal Panel has a discretion in an appeal hearing conducted under s 80(1) of the NCAT Act to admit evidence in the appeal that was not before the Tribunal if it is in the interests of justice to do so: Ros v Commissioner of Police [2020] NSWCATAP 70 at [29]- [35].
4. Leave is granted to the tenant to rely upon her bank statements, and that evidence is admitted in the appeal. It is necessary to understand the amount of rent payable for the premises, which is relevant to determination of the appeal grounds. No prejudice or unfairness is caused to the landlord by admitting the evidence.

1. Section 44 of the RT Act relevantly states as follows:

44 Tenant's remedies for excessive rent

(1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders -

...

(b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount.

...

(3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement.

(4) Determination of excessive rent For the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent.

(5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive -

(a) the general market level of rents for comparable premises in the locality or a similar locality,

(b) the landlord's outgoings under the residential tenancy agreement or proposed agreement,

(c) any fittings, appliances or other goods, services or facilities provided with the residential premises,

(d) the state of repair of the residential premises,

(e) the accommodation and amenities provided in the residential premises,

(f) any work done to the residential premises by or on behalf of the tenant,

(g) when the last increase occurred,

(h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent).

(6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent -

(a) has effect for the period (of not more than 12 months) specified by the Tribunal, and

(b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable.

Note.

A tenant under a social housing tenancy agreement may also apply for an order that rent is excessive if a rent rebate is cancelled (see section 141(1)).

1. The principles regarding an "excessive rent order" (which is often colloquially referred to as a "rent reduction" order) under ss 44(1)(b) and 44(6) of the RT Act, and how that interacts with orders for compensation due to a landlord's breach of its obligation to keep premises in a reasonable state of repair having regard to the age of the premises; rent payable for the premises; and the expected life of the premises were recently summarised by the Appeal Panel in Williams v Wang [2025] NSWCATAP 314 at [45]- [51]. They have otherwise been dealt with by the Appeal Panel on many occasions, with particular reference to Roberts.
2. In particular:

(1) The Tribunal has jurisdiction to make an order under s 44(6) of the RT Act if the proceedings were commenced prior to the end of the tenancy, even if the tenant has moved out, subject to the temporal limitation in s 44(6) (a) of the RT Act.

(2) A landlord's failure to repair and maintain may constitute a "reduction" of goods, services or facilities provided with the residential premises.

(3) The assessment of the rent reduction involves the exercise of discretion based on the particular evidence of the case, with loss of amenity an important consideration.

(4) If a tenant is awarded compensation under s 187(1) (d) of the RT Act for the landlord's breach of its duty to repair or the habitability of the premises (ss 52,63 and 65 of the RT Act) and also a rent reduction under ss 44(1)(b) and 44(6) of the RT Act , the Tribunal must be careful not to "double compensate" the tenant.

1. In respect of assessment of a rent reduction, the Appeal Panel stated in A L Lindsay & Co Pty Ltd v Stickel [2023] NSWCATAP 195 (Stickel) at [103]-[108]:

"[103] The matters identified in s 44 (5) of the Act are wide, and discretionary, with the legislature identifying that the Tribunal "may" have regard to those matters. The breadth of the provision and the Tribunal's discretion is emphasised by the legislature adopting the phrase to "any other matter it considers relevant..." in s 44 (5) (h).

[104] In Roberts, the Appeal Panel stated at [124]:

"124 As to what constitutes a reduction, in our view this means the goods, services or facilities are of a qualitative or quantitative standard which is less than what a landlord is required to provide under a residential tenancy agreement. On the other hand, a withdrawal suggests there must be a removal or inability to use the particular goods, services or facilities. That is, the goods services or facilities or part of them are no longer available to a tenant."

[105] In Hu v Roggeveen [2022] NSWCATAP 295 ('Hu v Roggeveen'), the Appeal Panel stated at [59] that "The focus of the assessment of the appropriate level of rent reduction is the rental value of the premises after the reduction or withdrawal of the services or facilities" and distinguished between a rent reduction under s 44 (1) (b) and damages for non-economic loss due to a landlord failing to keep premises in a reasonable state of repair, failing to provide quiet enjoyment where part of methodology of assessment is loss of amenity.

[106] However, the Appeal Panel in Hu v Roggeveen did not state that loss of amenity could not be considered in determining whether a rent reduction was appropriate, or the amount of the rent reduction. This issue (and the issue of 'double compensation' where claims are brought for a rent reduction under s 44 (1) (b) and damages under ss 187 and 190 of the Act in the same proceedings) was referred to in Makowska v St George Community Housing Ltd [2021] NSWSC 287 at [46]:

Thirdly, it is of course possible that conduct of a landlord may constitute a breach of the tenant's right to quiet enjoyment and a reduction or withdrawal of facilities. However, in the present case, where the only loss is non-economic loss, such as inconvenience or loss of amenity, it would be inappropriate to award damages by way of compensation and provide a reduction of rent. [21] Accordingly, had there been a legal error in failing to provide compensation for breach of quiet enjoyment with respect to the deterioration of the lawn, no further relief would have been appropriate and, accordingly, as a discretionary matter, relief by way of judicial review would have been refused.

[107] Ultimately, what the Tribunal is determining is whether rent is excessive during the relevant period by reason of a withdrawal or reduction in goods, services or facilities by the landlord. That issue is assessed objectively, not merely on the basis of subjective assertions of the tenant and the landlord that the rent is, or is not, excessive. If the breach arises from a landlord failing to keep the residential premises in a reasonable state of repair constituting a withdrawal or reduction in facilities, the loss of amenity caused by the breach is a relevant matter to be taken into account.

[108] The loss of amenity will depend upon the particular facts and circumstances of the case in the context of determining whether the residential premises with reduced amenity correlates into a finding that rent is excessive (and the amount by which rent is excessive). There is no simple mathematical formula that applies to every case."

1. The tenant did not refer to the rent payable amount being $425 pw at the Tribunal hearing. However, there is no dispute that the rent payable amount was $425 pw. The landlord did not clearly identify in its Points of Defence that the tenant had failed to identify the rent payable as a basis for dismissing the claim under s 44(1)(b) of the RT Act. The Points of Defence refer to the landlord disputing the "quantum" of the claim; and that the tenant had failed to provide sufficient evidence of any loss of use or amenity of the premises; as well as a general denial that the tenant was entitled to relief.
2. However, the Points of Defence contain no specific reference to the landlord taking issue with the tenant failing to identify the amount of rent payable for the premises. The broad reference to the tenant failing to adequately "substantiate" the claim under s 44(1)(b) of the RT Act is manifestly different to the landlord specifically identifying in the Points of Defence that the tenant had failed to plead the amount of rent payable.
3. Had the landlord done so, it would have been open to the tenant to give oral evidence at the hearing to address this issue (which would not have been disputed, because the landlord has not disputed in the appeal that the amount of rent payable was $425 pw); or the Tribunal Member to enquire with the parties as to the amount of rent payable.
4. Under s 38(2) of the NCAT Act, the Tribunal had the power to ask the parties at the hearing what was the amount of rent payable for the premises. The Tribunal did not do so, which is unusual considering that it was dealing with a self-represented litigant.
5. The Appeal Panel does not find that the tenant was denied procedural fairness by the Tribunal not asking the question or raising the issue (Chalik v Chalik [2025] NSWCA 136 at [67]- [72]). However, the failure of the Tribunal to raise the issue is relevant to whether leave to appeal should be granted on the basis that the decision was not fair and equitable, in circumstances where:

(1) The tenant had clearly identified prior to the hearing that she was seeking a rent reduction under s 44(1)(b) of the RT Act;

(2) The tenant had clearly identified the amount of the rent reduction she was seeking.

(3) The landlord was legally represented in the proceedings, and had never specifically identified that it took issue with the tenant not providing evidence of the amount of rent payable for the premises.

(4) Had the issue of the amount of rent payable for the premises been raised by an enquiry by the Member at the hearing, the amount of $425 pw would have been identified and there is nothing to indicate there would have been any dispute about that amount.

1. In the appeal, both parties submissions assume the Tribunal made a finding that it was dismissing the tenant's claim under s 44(1)(b) of the RT Act on the basis that the tenant had not provided evidence of the amount of rent payable.
2. However, that is not what the Tribunal found.
3. The only reference to the absence of evidence in respect of the amount of rent payable is at [42] of the reasons. The Tribunal simply states that failure of the tenant to give evidence of the rent payable "makes it difficult for the Tribunal to assess the appropriateness of any amount of rent reduction as sought." Finding that the absence of evidence raises a "difficulty" is not the same as making a finding that the tenant's s 44(1)(b) RT Act claim was dismissed because the tenant did not satisfy the burden of proof to be awarded a rent reduction.
4. After raising the "difficulty" at [42], the Tribunal then at [43]-[45] referred to s 43 of the RT Act, and that s 43 of the RT Act was inapplicable.
5. However, it is clear from the application that was filed in the Tribunal that the landlord was making a claim under s 44(1)(b) of the RT Act on the basis of the landlord's alleged failure to repair the water leaks in the premises. It is clear from the landlord's Points of Defence; its submissions at the Tribunal hearing; and the reference by the landlord's Solicitor to Roberts that the landlord understood the basis of the claim under s 44(1)(b) was due to the landlord's alleged failure to repair the premises and the water ingress issue.
6. The Tribunal's reference at [43] to it being "unclear" as to basis on which the rent reduction was sought is not supported by the evidence and submissions made by the parties at the hearing.
7. The Appeal Panel is satisfied that the manner in which the Tribunal dealt with the tenant's claim under s 44(1)(b) of the RT Act is a constructive failure to exercise jurisdiction. In Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165, Basten JA stated as follows at [6]:

"The premise underlying a "constructive" failure to exercise jurisdiction is that there has been an apparent exercise of the jurisdiction of the court, but one that has failed in a way which can only be teased out by reference to the underlying issues and the materials presented to the court. It may then be demonstrated that a material issue presented for determination has not been resolved. By contrast, a failure to give adequate reasons implies that the relevant issues have been identified, addressed and resolved, but the reasons for reaching the conclusion have not been adequately expressed."

1. In simple terms, notwithstanding the Tribunal's reference to a "rent reduction" claim in its reasons, it did not consider a material issue for determination, being the claim under s 44(1)(b) of the RT Act.
2. A mere reference in the reasons to the absence of evidence of the amount of rent payable making it "difficult" to assess the tenant's claim, without any further consideration or findings in respect of the relevant matters for consideration under s 44(1)(b) and s 44(5) of the RT Act is insufficient.
3. The landlord submits that the tenant's rent reduction claim would have been doomed to fail in any event because:

(1) The tenant did not provide "independent" evidence beyond her own subjective experience; and

(2) The tenant did not provide evidence of the matters set out in s 44(5) of the RT Act.

1. In respect of the first issue, the loss of amenity is assessed on the basis of all of the evidence at the hearing, irrespective of whether it is the evidence of the tenant or the evidence of the landlord.
2. The tenant gave evidence that there was a significant loss of amenity by reason of the water ingress issues in the premises. The landlord's own expert, Mr Dickinson, identified significant water ingress issues in the premises. Had the Tribunal properly considered the tenant's claim for a rent reduction under s 44(1)(b) of the RT Act, there was evidence to support a rent reduction being awarded. The salient issue is whether it is inevitable the tenant's s 44(1)(b) claim would have failed on the evidence that was before the Tribunal. The answer to that question is "No."
3. The operation of s 44(5) of the RT Act was considered in Stickel. The absence of evidence regarding all of the matters in s 44(5), such as comparable rents does not mean a rent reduction could not have been awarded under s 44(1)(b) of the RT Act. The tenant gave evidence about the state of repair of the premises and the loss of amenity caused by the water ingress issues. As pointed out in Stickel, the relevance of the matters in s 44(5) and, if relevant, how they are weighed and assessed, is a matter for the Tribunal based on the evidence at the hearing.
4. The landlord submits that there was no "withdrawal" of goods, services and facilities. That is dealt with at [47] of the reasons. However, as was pointed out in Roberts at [124], there is a distinction between the "reduction" of goods, services and facilities and the "withdrawal" of goods, services and facilities. There was a constructive failure to exercise jurisdiction by the Tribunal in respect of whether there was a "reduction" under s 44(1)(b), irrespective of whether or not there was a "withdrawal".
5. The Tribunal found that the landlord had breached its duty under s 63 of the NCAT Act, and awarded the tenant $1,200 in compensation under s 187(1)(d) of the RT Act. However, the reasons of the Tribunal do not state that the amount of $1,200 includes any amount that would have been awarded as a rent reduction under s 44(1)(b) of the RT Act due to loss of use; loss of amenity; or any of the other matters relevant under s 44(1)(b) of the RT Act.
6. In Makowska v St George Community Housing Ltd [2021] NSWSC 287 (which involved compensation for loss of quiet enjoyment and a rent reduction) at [46], Basten JA referred to circumstances where it would be inappropriate to award both an award of compensation under s 187(1)(d) of the RT Act and a rent reduction under s 44(1)(b) of the RT Act, citing Roberts at [86]. The Appeal Panel stated in Roberts at [86]:

"That is not to suggest that a claim for damages for loss of quiet enjoyment and an order for the reduction of rent are mutually exclusive forms of relief. Depending on the claims made, there may be facts common to both types of claim which would need to be taken into account in order to avoid double compensation. For example if the premises (or part thereof) cannot be used in the manner intended or its use is in some way impaired by reason of a landlord's breach, it may be inappropriate to both reduce the rent and make an award of damages for loss of use."

1. Had the Tribunal properly dealt with the tenant's s 44(1)(b) RT Act claim; and then later made a finding that the amount of $1,200 for compensation under s 187(1)(d) of the RT Act for loss of use and amenity of the premises included any amount that would have been awarded for a rent reduction (and gave sufficient reasons explaining that conclusion) the claim under s 44(1)(b) of the RT Act would have been considered and there would have been no constructive failure to exercise jurisdiction, nor any basis to grant leave to appeal.
2. However, that was not the finding of the Tribunal. As discussed previously, had the Tribunal considered the tenant's claim under s 44(1)(b) of the RT Act as well as the claim under s 187(1)(d) of the RT Act due to the state of repair of the premises, there is a significant possibility that the Tribunal would have awarded a separate amount under s 44(1)(b) of the RT Act (or an amount under s 187(1)(d) of the RT Act that exceeded $1,200).
3. In Hu v Roggeveen [2022] NSWCATAP 295 the Appeal Panel stated at [66]-[68] that a brief reference to the 'comparable verdicts' table in the Anforth text without any discussion of the evidence pertaining to loss of amenity and the reasoning process as to why a rent reduction was, or was not, awarded, may fail to satisfy the threshold for adequate reasons.
4. As the tenant has not raised adequacy of reasons generally as ground of appeal (Lin v Westerman [2025] NSWCATAP 319 at [56]- [57]), nor identified a ground of appeal challenging the award under s 187(1)(d) of the RT Act, it is unnecessary to further discuss the Tribunal's reasoning process in respect of calculation of the amount of $1,200.

1. The tenant has established a constructive failure to exercise jurisdiction in respect of the dismissal of the claim under s 44(1)(b) of the RT Act. That is an error on a question of law.
2. Even if the manner in which the Tribunal dealt with the tenant's claim under s 44(1)(b) of the RT Act was construed as an error of mixed fact and law requiring leave to appeal, leave to appeal would be granted. The Appeal Panel would have been satisfied that the tenant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable; and that an injustice that is clear and readily apparent and goes beyond being merely arguable is established.
3. Accordingly, the appeal is allowed.
4. The appropriate course of action is to remit the matter back to the Tribunal for determination according to law. The grounds of appeal do not warrant a new hearing by the Appeal Panel under s 80(3) of the NCAT Act, nor is the amount of a rent reduction (if any) a matter that the Appeal Panel can determine on the materials before it in a procedurally fair way under s 81(1)(d) of the NCAT Act.
5. In respect of the remitted proceedings, the only issue to be determined is whether the tenant is entitled to a rent reduction under s 44(1)(b) of the RT Act in addition to the amount that was awarded for compensation under s 187(1)(d) of the RT Act for breach of s 63 of the RT Act ($1,200).
6. The amount of compensation for loss of quiet enjoyment due to the conduct of the landlord (noise, correspondence to tenant) is not subject to challenge in the appeal; nor is the amount of compensation for breach of s 63 of the Act. Those issues are not to be determined afresh.
7. The parties are encouraged to have further discussions, considering the modest amount in dispute. The fact that the tenant has succeeded in the appeal does not mean that the tenant will succeed in the remitted proceedings. If the tenant succeeds in the remitted proceedings, it is a matter of speculation as to what amount the tenant will be awarded to reimburse the tenant for the amount of excessive rent. If the parties are able to compromise and reach an agreement, the stress, expense, and uncertainty of litigation will be obviated.

(2) The proceedings are remitted to the Tribunal for determination of whether the appellant is entitled to a rent reduction under s 44(1)(b) of the Residential Tenancies Act 2010 (NSW) on the basis of the same documentary evidence that was before the Tribunal or any fresh documentary evidence that the Tribunal grants leave to rely upon.

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.