Galea and Galea as the Trustees for the Galea Consulting Trust trading as Sanctuary in The Pocket v Falloon

1. The tenant and the landlord had been good friends.
2. In March 2023, the tenant moved to a caravan on a property owned by the landlord. There was an arrangement between the tenant and the landlord that the tenant would work at the landlord's property, by providing cleaning services, and in return, the tenant would have the right to occupy the caravan. There was no written or signed residential tenancy agreement.
3. About a month after the tenant had moved to the caravan, the tenant made an agreement with the landlord that she would arrange for a deck to be constructed appurtenant to the caravan. The agreement was made orally.
4. The tenant claimed that the initial terms of the agreement were that the tenant would be responsible for the cost of the materials and the labour used to build the deck. The landlord claimed that the agreement was that it would pay for the cost of the building materials used for the deck but the tenant would pay for the labour used to construct the deck.
5. The deck was constructed by a builder who was assisted in that task by the then domestic partner of the tenant. The deck that was built is a permanent fixture, constructed from merbau hardwood timber and set on footings. It was built in the period 28 May 2023 to 16 June 2023.
6. Whatever might have been the terms of the initial agreement, the evidence showed that the landlord paid approximately $10,000.00 for the building materials that were used to construct the deck.
7. The landlord's case was that the tenant then asked for a roof to be built to cover the deck. The landlord said that it agreed that the tenant could build a roof, but on the basis that the landlord was not obliged to contribute to any of the cost of the roof.
8. The builder who built the deck also built the roof.
9. The tenant had a budget of around $6,000.00 for the labour cost. The tenant did not obtain a quotation from the builder or make a written agreement with him. The tenant ended-up paying about $10,000.00 for labour costs.
10. The tenant also paid $2,005.00 for building materials. The landlord's case was that this amount represented the building materials used for the roof, that being an amount to which the landlord had not agreed to contribute.
11. In May 2024, the tenant was injured. She was unable to do further work for the landlord. There was a dispute between the parties as to whether there was an agreement such that the tenant could then stay in the caravan rent free (contended for by the tenant) or was still obliged to pay rent, but did not have to pay any rent while she recovered from her injury (contended for by the landlord).
12. In August or September 2024 the tenant vacated the caravan. She asked the landlord to reimburse her $6,000.00. The landlord refused. The tenant sought to have the deck and roof removed. The landlord intervened and prevented her from doing so.
13. On or about 27 August 2024, the tenant lodged proceedings in the Tribunal.

1. As mentioned, on or about 27 August 2024 the tenant lodged an application with the Tribunal. The tenant sought orders for the removal of the deck, or in the alternative, a money order for $6,000.00 as reimbursement from the landlord.
2. The tenant's application was heard on 10 February 2025. The tenant represented herself on that occasion.
3. No transcript of the hearing was provided to the Appeal Panel. Mr Galea, who appeared for the landlord at the hearing before the Appeal Panel, explained that he had obtained a copy of the recording of the hearing but the recording was faint and there were difficulties in obtaining the transcription. Accordingly, the Appeal Panel has had to rely upon what the parties have told us about how the hearing proceeded at first instance.
4. Following the hearing, the Tribunal made an order by consent (order 1) on 10 February 2025 amending the name of the landlord, and then made an order (order 2):

(1) The Tribunal orders that the respondent The Trustee For The Galea Consulting Trust Trading As Sanctuary In The Pocket, is to pay the applicant Rosemarie Falloon, the sum of $2,005.00, immediately.

1. Cost of Materials to construct deck $2,005.00.

1. The Tribunal gave written reasons for the decision.
2. The written reasons showed that the evidence before the Tribunal included a statement from the builder who had built the deck and the roof to the deck.
3. In the written reasons, the Tribunal set out some of the factual background. The Tribunal found that it had jurisdiction to determine the dispute because the agreement between the landlord and the tenant was a "residential tenancy agreement" under s. 9(1) of the Residential Tenancies Act 2010 (NSW) (RTA). The Tribunal found that the agreement was varied in that the landlord and tenant agreed that a deck would be built and there would be a joint contribution whereby the tenant would pay the labour costs of construction and the landlord would pay for the building materials to construct the deck.
4. The Tribunal found that the deck was a permanent fixture. It had not been built to be dismantled or removed and was a joint expense. The tenant was not entitled to dismantle the deck.
5. The Tribunal found that, if the tenant paid more for the labour costs for the construction of the deck than she had anticipated, that was a matter between her and the builder and it was not the responsibility of the landlord to compensate her for the additional cost of labour over what she had anticipated.
6. The Tribunal discussed the evidence of the tenant and the builder about the cost of building materials. The Tribunal preferred the evidence of the builder. The Tribunal found that the amount that the tenant had paid for building materials was $2,005.00.
7. The Tribunal then stated:

"I find Rosemarie paid $2,005 towards the building materials for the deck and as the agreement was that the building materials were to be paid by the Galea's. This would include the building materials paid for by Rosemarie.

I find that when Rosemarie requested reimbursement of $6,000 in August 2024 this included the $2,005 being for the building materials she had paid for and when she did ask for the reimbursement in and around August 2024 and the Galea's refused, it was at that point in time I find that the Galea's were in breach of the agreement to pay for the building materials that they had an obligation to do pursuant to the agreement."

1. The Tribunal then dealt with the landlord's argument that it had a counter-claim against the tenant for unpaid rent and post-termination expenses. The Tribunal rejected the counter-claim. The Tribunal stated that no claim had been filed by the landlord, it was not in dispute that the parties agreed that the tenant could stay in the caravan rent free from May 2024 until she vacated the premises in August 2024 and there was no evidence about the condition of the caravan at the commencement or end of the tenancy. The Tribunal found that the landlord had no offsetting claim against the tenant.

Documents on the appeal, grounds of appeal and submissions

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

(1) The Notice of Appeal lodged 25 February 2025, with documents attached.

(2) The Reply to Appeal lodged on 7 March 2025, with documents attached.

(3) Appellants' submissions lodged on 25 March 2025.

(4) Documents lodged by the respondent on 3 April 2025.

(5) Copy of the original orders and the reasons supporting those orders appealed against.

(6) Copy of the original application lodged by the tenant.

(7) Orders of the Appeal Panel which include an order dated 14 April 2025 staying the operation of order 2 of the Tribunal's orders dated 10 February 2025.

1. As mentioned above, when questioned by the Appeal Panel, the landlord explained that he had not submitted a transcript of the Tribunal proceedings on 10 February 2025.
2. The landlord, before the Appeal Panel, did not dispute that the agreement between the landlord and the tenant was a "residential tenancy agreement" for the purposes of the RTA_._ Notwithstanding that the landlord had raised a number of grounds of appeal in its Notice of Appeal, when the landlord was before the Appeal Panel two grounds of appeal about errors said to have been made by the Tribunal were pressed by the landlord.
3. First, the landlord submitted that, in the Tribunal making its finding about the payment of the $2,005.00 by the tenant, the Tribunal had ignored the distinction between the deck and the roof. Secondly, the Tribunal's finding about the tenant living rent free from May 2024 had been in dispute and there was no basis for the Tribunal to have found that there was no dispute about whether or not the tenant was living rent free after May 2024.
4. The tenant submitted in response that the agreement she had made with the landlord had been about both a deck and a roof to the deck. Those two items were not separate items as it was always the case that the deck would be covered. It was not correct that there was a later agreement dealing with the roof.
5. In the course of the submissions before the Appeal Panel, the tenant acknowledged that the landlord had submitted at the hearing that the deck and the roof were separate items.
6. On the question of rent from May 2024, the tenant submitted that she and Mrs. Galea had had a conversation about rent after the tenant's injury and that Mrs. Galea had agreed that no rent was payable because of the contribution which the tenant had made in the form of the deck.
7. In the course of submissions before the Appeal Panel, the tenant acknowledged that the landlord had disputed at the hearing what the tenant said was the agreed position with regards to rent from May 2024 following her injury.

1. The basis upon which appeals from decisions of the Tribunal may be brought are identified in s. 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Section 80 of the NCAT Act states that an appeal may be made 'as of right on any question of law, or with leave of the Appeal Panel, on any other grounds' (s. 80(2)(b) of the NCAT Act). Where an appeal is not available as of right, the Appeal Panel must be satisfied that the requirements set out in cl 12 sch 4 of the Civil and Administrative Tribunal Act are established before granting leave to appeal.
2. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and _Cusumano a_t [32]. However, the categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:

"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.

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

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

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

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

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

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

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

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

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

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

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

(a) Issues of principle; or

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

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

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

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

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

1. The Notice of Appeal was lodged on 25 February 2025. Under cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the Rules) the application should have been lodged within 14 days of the tenant receiving the Tribunal's decision.
2. The Notice of Appeal states the tenant received the decision on 10 February January 2025.
3. The Reply to Appeal states that the tenant accepts that the appeal was lodged within time.

1. The Appeal Panel has decided that, pursuant to s. 41 of the Civil and Administrative Act 2013, an extension of time until 25 February 2025 should be granted to the landlord to lodge this internal appeal. The reason we have come to that decision is that the period of the delay in lodging the notice of appeal was limited to one day and the tenant has not raised any particular prejudice caused to her by reason of the one day of lateness by the landlord in bringing the appeal.
2. We are satisfied that the evidence before the Tribunal established that there was an agreement or arrangement between the landlord and the tenant under which the tenant was given a right to occupy premises (the caravan) for the purpose of a residence in return for the person's employment (services at Sanctuary in The Pocket), such that the agreement or arrangement between them is taken to be a "residential tenancy agreement" for the purposes of RTA s. 9_._ There was no suggestion in the evidence that the tenant's occupation of the caravan was an occupation agreement to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applied (see Residential Tenancies Act s. 8(1)(a)), a residence contract of the sort referred to in the Residential Tenancies Act s. 8(1)(b) or a site agreement of the sort referred to in the Residential Tenancies Act s. 8(1)(ba). We are satisfied that the Tribunal had jurisdiction to determine the tenant's application before it.
3. As to the first ground of appeal raised by the landlord, the landlord's submissions before the Tribunal included the statement "We funded building materials (~$10,000) for the deck attached to the caravan ... Labour was arranged and paid by her. She then asked to add a roof and cover for the deck. We agreed but declined to contribute." The tenant accepted that the landlord had submitted at the hearing that the deck and the roof were submitted by it to involve two separate discussions, even though she did not agree that the separation of the two items was in fact correct.
4. The Tribunal's reasons do not deal with any submission by the landlord that there was agreement relating to the deck and a separate agreement relating to the roof. If it were the case that the Tribunal had been satisfied that the meaning of the term "deck" extended to the roof over it, then the Tribunal's reasons do not explain how or why the Tribunal reached that conclusion.
5. The landlord has established an error of law in the Tribunal's decision in that there was a failure by the Tribunal to make a finding on a substantial, clearly- articulated argument relying on established facts, amounting to a failure to accord natural justice or a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24]- [25] and [95].
6. The order requiring the landlord to pay $2,005.00 to the tenant should be set aside.
7. As to the second of the landlord's grounds of appeal, the tenant's application lodged on or about 27 August 2024 included the statement "May 2024 I had serious injury (not work related) offered to pay rent but believed that rent would be deducted from deck." The tenant herself, therefore, did not suggest in her own application that there was an agreement with the landlord that rent was not payable from the time of her injury. For its part, the landlord's submission at the hearing that it had a counter-claim, including for rent, against any claim by the tenant against the landlord, suggested that it did not agree that no rent was payable from the time of the tenant's injury. Further, the tenant acknowledged that the landlord had disputed at the hearing what the tenant had said was the agreed position with regards to rent from May 2024 following her injury.
8. The Tribunal's finding that the landlord had no offsetting claim, because there was no rent outstanding as "it's not in dispute the parties agreed Rosemarie could reside rent free from May 2024 until she vacated the premises in August 2024" is also a finding that involves an error of law, in our view. The Tribunal failed to give attention to the landlord's submissions on the question of rent from May 2024. The landlord has established a second error of law in the Tribunal's decision in that there was a failure by the Tribunal to make a finding on a substantial, clearly-articulated argument relying on established facts, amounting to a failure to accord natural justice or a constructive failure to exercise jurisdiction: Dranichnikov, previously cited above, at [24]-[25] and [95].
9. We will allow the appeal on the two issues successfully raised by the landlord. None of the parties raised any appeal against any of the other findings of the Tribunal. The issue whether any money order is payable by the landlord to the tenant is the only issue that will require redetermination. The landlord did not lodge with the Tribunal any application of its own against the tenant, seeking a money order against her, as was noted by the Tribunal in its reasons for the 10 February 2025 orders. In the remitted proceeding, the landlord should be permitted to raise offsetting claims against the tenant only up to the amount of any entitlement to a money order that might be established by the tenant.

(1) Grant the appellants an extension of time until 25 February 2025 to lodge the appeal.

(2) The appeal is allowed.

(3) Set aside order 2 made by the Tribunal on 10 February 2025.

(4) The proceedings are remitted for determination by the Consumer and Commercial Division of the Tribunal, for the issue of whether a money order should be made in favour of the respondent to be determined consistently with these reasons for decision on the evidence previously filed and such further evidence as the Tribunal may allow.

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.