Hamed v Hawach

1. The appellant was the landlord of a house in Parramatta, NSW. The appellant was a former tenant with an original written residential tenancy agreement dated 30 September 2021 for a fixed term of six months beginning on 2 October 2021 and ending on 1 April 2022, with a periodic tenancy thereafter, an original rent of $650pw and a bond lodged for $2,600. From 17 July 2023 the rent increased by negotiation (after a notified higher increase to take effect in September 2023) to $700pw. The appellant vacated the premises on 27 or 28 June 2024 and the landlord on vacation conducted an inspection with the managing agent. The landlord said that the premises had been repainted shortly before the tenant occupied the premises on 29 September 2021. The current managing agent had taken up that role only in January 2023.
2. In the primary proceedings 2024/00255741 filed 11 July 2024 the former tenant (whom we shall call the tenant) claimed the entire rental bond and other compensation on the basis that she could make habitable use of only 40% of the premises. In 2024/00315240 filed 22 August 2024 the landlord claimed compensation (towards which the entire bond was claimed) totalling $6,075 for repairs comprising painting damaged doors, archetraves and walls $3,250, replacing damaged flyscreen $800, replacing broken plantation blind slats $1,200 and light globe replacement $275 together with cleaning $550.
3. The primary member at final hearing on 20 December 2024 in a decision at the end of the hearing dismissed the tenant's application and on the landlord's application reduced the compensation from the amount claimed to an award of $4,025 payable immediately, with the bond to be paid to the landlord and credited against the money order for compensation. The total reduction of $2,050 or about one-third was made up as follows: painting at $2,250 was reduced by $1,000; flyscreen door at $400 was reduced by $400; slats at $800 were reduced by $400; globes at $275 were the same; cleaning at $300 was reduced by $250. When the entire bond plus interest was credited, the money order reduced to $1,425.
4. The appeal was filed on 3 January 2025, in time.
5. The tenant did not formally request written reasons under s 62 of the NCAT Act and did not provide a sound recording or transcript of the primary hearing; the landlord's representative told us that the tenant had said that she didn't get the recording in time. The landlord produced a transcript from a copy of the sound recording. The Appeal Panel on 29 January 2025 had made the usual directions that any party seeking to rely upon what occurred at the primary hearing was to provide the sound recording and a transcription of the parts of the recording relied upon.
6. The tenant, in her written submissions on reasons for a stay filed 17 January 2025, said "I would like to request that NCAT Sydney provides written reasoning in order to make my appeal". This was filed on the last day for requesting written reasons under s 62(2) of the NCAT Act. It was made in the course of a submission to the Appeal Panel for a stay of the primary orders, not to the Division whose member had made the order and given oral reasons. It was not responded to, one can infer because it was not a proper request that came properly to the attention of the correct part of the Tribunal.
7. The informal request for oral reasons was repeated, significantly out of time, in the tenant's documents for final hearing. There was no indication that the tenant had chased up the first informal request mentioned earlier in these reasons.
8. On 29 January 2025 the Appeal Panel dismissed an application filed 3 January 2025 by the tenant to stay the primary orders. The Appeal Panel had on 13 January 2025 refused an ex parte application for an interim stay as there was then no evidence of any attempted enforcement of the primary orders before the stay application was heard.
9. Although the tenant formally nominated only the primary proceedings that she had filed as the subject of appeal, it was clear that her appeal related to primary orders made in both proceedings and we have determined the appeal on that basis.
10. At 8.55am on the day of the final hearing of the appeal, the tenant emailed the Appeals Registry to say that she was not appearing in person but not requesting an adjournment. Rather, on the grounds of her mental health, she wanted the appeal resolved on her filed documents, and if she still was under orders to pay money, then she sought to defer payment until she again had an income since she presently was not working. She said that she had no further evidence to provide.
11. When the hearing began at 10.15am, we read to the landlord's representative the tenant's email and stated our provisional view that, although a court would require a party to present the case at hearing unless there were exceptional circumstances, the Tribunal's power over its own procedure under s 38(1) of the NCAT Act plus the other provisions of that section including that the Tribunal was not bound by the rules of evidence in s 38(2) meant that, in circumstances such as the present, it could dispense with one party presenting that party's case in person and look at that party's documents in making its decision, albeit that would not be the usual course. The landlord did not oppose that course and we proceeded on that basis.
12. We are reinforced in that view in the circumstance of this hearing by the following matters: the tenant relied on ongoing medical grounds for her request (noting that the documentation provided pre-dated the hearing date by a period of weeks but appeared to envisage ongoing management); the tenant had filed voluminous documents including detailed written submissions; procedural fairness could be accorded to both parties by looking at that material against the landlord's documents; one could with the landlord's assistance (under a party's duty of co-operation in s 36(3) of the NCAT Act) work out what was and was not before the primary member; the tenant, by the nature of what she said in her email, was unlikely to have the appeal reinstated if it was dismissed for non-appearance under s 55(1)(c) of the NCAT Act and therefore had in practice no other opportunity to present her case on appeal.
13. We then went through both parties' documents and excluded from our consideration on the appeal evidence that was reasonably available at time of primary hearing, which on the tenant's part included some documents concerning pest infestation and on the landlord's part some documents that were responsive to tenant allegations concerning pest infestation and the alarm system.
14. The tenant appeared in her contentions to raise a new allegation that she was not given an opportunity to comment on the incoming condition report dated 30 September 2021 (icr). She had not received the icr "within the timeframe" required under RTA s 29 and the redaction of the inspection date of 30 September 2024 on each page except the last compromised its integrity.
15. This was clearly an argument available at time of the primary hearing and we do not grant leave for it to be considered on appeal. If it had been raised in a timely fashion the landlord may well have relied on further material and submissions, including that it was not said that the tenant did not receive the icr at all and could have commented on it when it was received and also that the obscuring of the complete date was due to a hole punch on copies of the document, which is a reasonable inference when one inspects the document.

1. We have set out earlier the primary orders and the position with respect to the sound recording, transcript and request for oral reasons.
2. The most that can be discerned from the details of the money order set out within the order is that the primary member did not allow the full amount claimed by the landlord for any item except replacement of light globes and reduced the other items by about 30-50%.
3. However, the oral reasons recorded in the transcript, prepared by the landlord and part of the landlord's served documents on appeal, were detailed, after extensive canvassing with the parties of the competing evidence on each issue and with detailed reference to the competing evidence in the course of the reasons:

(1) The reasons recorded confirmation of the primary member's view expressed during the hearing that the tenant's compensation claims were out of time, that an extension of time under s 40 of the NCAT Act was not appropriate and they would not be further considered "save to the extent that they impact on the claim for compensation and bond lodged by the landlord". This was not challenged by the tenant in her appeal.

(2) The applicable legal principles were in substance set out and again were not challenged by the tenant in her appeal.

(3) The evidence of the tenant as to pre-existing damage to doors and walls was not accepted; the outcome of a comparison between the icr and the outgoing condition report dated (ocr) was preferred, together with the landlord's time-stamped photographs and painting quotation. In relation to re-painting and related work, it was noted that some marks were also apparent on the tenant's photographs. Most appeared to go beyond fair wear and tear. The quoted amount was reduced for three years' depreciation and proportionality, in respect of the amount now required to refresh or replace the original painting rather than as a deduction against the total original amount which would lessen the deduction against the required re-work (as the landlord submitted).

(4) The screen door was reduced by 50% to take account of the broken lock not having been fixed by the landlord and depreciation, since the age of the door was not established in the evidence but appeared older than the 2021 re-paint. The icr and ocr were compared.

(5) The broken blind slats were reduced by one-third for depreciation. The icr and ocr were compared.

(6) The cleaning was reduced by nearly 50% for a combination of deficiencies in cleaning at the start of the tenancy, pest infestation and the possibility that some cleaning cost included the residue of other work.

(7) There was no record that the tenant applied to vary the indicated order for immediate payment.

1. The tenant's grounds of appeal were as follows:

"I don't feel that my evidence was considered appropriately.

I felt that in the tribunal my voice was [not?] heard, and was not advised I could have a representative.

The following day after the hearing the agent called me in a rude manner asking why the money had not been paid and threatened with garnishing my wages. Followed by an intimidating email stating that I had declined to pay and other unwarranted comments.

I decided to not respond to contact as my mental health is not well due to being charged for damages I didn't cause and false evidence used in the hearing, which the member disregarded.

I have a history of mental health and this matter has caused a great decline. I have also had ankle surgery and the court should have taken this into consideration when demanding I pay the full amount immediately.

I had to seek support from the tenancy advocacy centre to obtain appeal and rights information."

1. In addition, in other sections of the notice of appeal there appeared material which could be taken to be grounds of appeal against the decision:

I feel this order is unjust, there is evidence to show that damages were existing and many reported, never fixed. Consistent issue throughout my tenancy.

Ultimately if NCAT decides I am still liable, my personal financial situation should be considered this time.

The decision was not fair and equitable and was against the weight of evidence; ... my evidence was not considered fairly; ... the other party's evidence had false JP declarations and invoices; ... [the Tribunal should have given more weight to] my complete report, perfect ledger, photos of maintenance and history of inspections. Initially the home was leased to me by a different agent, they were not present at the hearing and evidence given was incorrect and untrue since initial agent was not present.

I was not given the opportunity to negotiate a time to pay period considering it is holiday season."

1. In her contentions for the appeal filed 13 March 2025 the tenant also sought to rely on further evidence and to raise alleged errors of fact. The tenant contended, in summary, "My evidence directly highlights that most of the damages were either pre-existing, inconclusive, general wear-and-tear or falsified".
2. We have assumed that the tenant's notice of appeal was prepared without legal assistance.
3. Given the absence of formal legal representation, we have sought to determine the grounds of appeal in substance in accordance with the approach outlined in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [12], also taking into account oral submissions at final hearing. We have grouped the identified grounds as follows:

(1) The primary member erred in law, or erred in fact justifying a grant of leave, by not according procedural fairness, in particular in not allowing the landlord a reasonable opportunity to present her case.

(2) The primary member erred in law by not taking into account relevant considerations.

(3) The primary member erred in law by giving inadequate reasons for his decision to explain the bases for conclusions reached.

(4) The primary member erred in fact, justifying a grant of leave, by not giving proper weight to the evidence that would have led to a contrary finding and not coming to a fair and equitable decision on the evidence before him.

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states, in respect of Division decisions:

(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."

1. Clause 12 of Schedule 4 to the NCAT Act states:

An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:

(a) the decision of the Tribunal under appeal was not fair and equitable, or

(b) the decision of the Tribunal under appeal was against the weight of evidence, or

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

1. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
2. In summary, internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel
3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, more recently revisited in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]- [40], the Appeal Panel set out at [13] a non-exclusive list of questions of law:

(1) Whether there has been a failure to provide proper reasons where they are required;

(2) Whether the Tribunal identified the wrong issue or asked the wrong question;

(3) Whether a wrong principle of law had been applied;

(4) Whether there was a failure to afford procedural fairness;

(5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations;

(6) Whether the Tribunal took into account an irrelevant consideration;

(7) Whether there was no evidence to support a finding of fact; and

(8) Whether the decision is so unreasonable that no reasonable decision-maker would make it.

1. A question of mixed fact and law, such as an alleged error in applying legal principle to the facts, is not a question of law unless the facts are jurisdictional in nature: FTB v Children's Guardian [2024] NSWCATAP 174 at [8]; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].
2. Taking into account an irrelevant consideration or not taking into account a relevant consideration includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd [2000] FCA 1343; (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179.
3. Adequacy of reasons will vary according to the nature of the determination and of the determining body: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 esp at [77].
4. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by para 12(1) of Sch 4 to the NCAT Act. In such cases, as already set out the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

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

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

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

1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] and [79] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 to the NCAT Act may have been suffered where:

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

[79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]."

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 to the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b): Pholi v Wearne [2014] NSWCATAP 78 at [32]. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(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. Turning to the specific grounds in cl 12(1)(a) and (b) of Sch 4 to the NCAT Act, in Collins the Appeal Panel said:

"[77] As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:

1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].

2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]."

1. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with under the ground in cl 12(1)(c) to the NCAT Act was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37]-[39]:

"37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act:

'In order to fall within this paragraph the appellant must be able to point to evidence which:

(2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.'

38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]:

'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said:

'23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud.

24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).'

39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown:

'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'"

1. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]:

"An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."

1. We have earlier dealt with our rejection of further evidence sought to be put forward on appeal by the parties.

1. The tenant contended that the premises were left clean and maintained apart from dusting the chandelier fittings (which could not be reached) and broken blind slats, that the premises were neglected by the landlord and the landlord's claim was for the consequences of pre-existing issues and pre-existing damage, that left (as mentioned earlier) the situation that only 40% of the premises could be made use of by reason of the deficiencies in the landlord's performance of obligations. In response to the icr and ocr the tenant said that she had put forward detailed photographs and narrative that contested the two condition reports by showing that the deficiencies in the ocr by comparison with the icr "stemmed from infrastructure issues and poor handymen work" that the tenant requested to be fixed, that was the landlord's obligation to fix and which were not fixed.
2. The tenant relied upon a routine inspection report dated 29 January 2024, five months before the tenant's exit, which stated "The tenant is maintaining the property well" and acknowledged that the tenant raised a number of issues, only one of which (the screen door lock) arguably raised the same area as a deficiency the subject of the primary orders.
3. The tenant said that at the final hearing she was "not asked specific questions about her evidence nor had much opportunity to convey my own perspective".
4. The landlord primarily relied on comparing the icr and ocr. The landlord provided an invoice of 2 September 2021 to support the contention, recorded in the icr, that the premises had been freshly painted before the tenant moved in, together with photographs advertising the premises prior to letting. This was compared with the state of the premises when the tenant moved out, in the ocr. The landlord's evidence was that the tenant was invited to the exit inspection and the start of the inspection was delayed in case the tenant was delayed, but the tenant did not arrive. The photographs in the ocr were time-stamped. The tenant was given the report and the statutory opportunity to comment on the items in the report but did not. Rather, the tenant responded with photographs that were not time-stamped and were accompanied by a narrative to the effect that we have described earlier.
5. The landlord did not complain about any of the reductions in amount awarded compared with the amounts claimed.
6. The landlord's evidence indicated that contacting the tenant was difficult because she had changed her mobile phone number four times during the current managing agent's tenure of just under 18 months during the tenancy. The difficulties of contact delayed access for repairs. The managing agent had conducted a routine inspection four days after being appointed and had not been obliged to conduct a full inspection as was required at the beginning and end of the tenancy.
7. The landlord contended that the tenant's evidence was not disregarded by the primary member. Rather, the tenant arrived with no documents. The member and the managing agent representing the landlord assisted her in locating documents to which she wished to refer. Those documents were assessed as part of the totality of evidence.
8. The landlord also relied upon the routine inspection reports and what was shown in the accompanying photographs to refute the tenant's contention that 40% of the premises was not occupied.
9. The email which the tenant said was threatening was dated 27 December 2024 10.02am, was attached with the tenant's notice of appeal and read as follows:

Following our phone conversation earlier today, you have indicated that you will not be paying the outstanding balance of $1,425 as per the tribunal's order.

As we discussed, your refusal to settle this debt leaves us with no alternative but to pursue legal action through the local courts, which may result in the garnishment of your wages. Please note that any additional legal fees incurred will be added to the outstanding balance.

With all due respect, I am having difficulty understanding how you can disregard a legally binding tribunal order in such a manner.

We kindly request the prompt settlement of the balance.

1. Matters such as the email just quoted and applications for staged payment are not the subject of this appeal since they post-date the appeal hearing and the orders appealed against. However, the email is instructive since its tone is, contrary to the tenant's contention, not threatening but, rather, a statement of the landlord's legal rights if the tenant does not comply with the existing orders, and urges the tenant to comply so as to avoid that prospect.
2. The tenant bears the burden of making out such an asserted error of law and the basis for a grant of leave to challenge and make out an asserted basis of fact. In our view, the tenant has not discharged that burden. Normally, that burden could not be discharged at all without the reasons for the challenged primary decision and (if procedural fairness is in issue) the transcript of the hearing or (in some cases) its relevant parts. Here the oral reasons in the transcript of the hearing are the available proxy for what the tenant did not obtain.
3. The transcript shows that each issue was discussed by the primary member exhaustively with each party in turn and without complaint that a party was shut out from making that party's case. In our view the hearing was procedurally fair.
4. The transcript also shows detailed reasons that deal with each issue by reference to the parties' evidence and the primary member's assessment of the evidence and application of stated legal principles to reach his conclusion. There were clearly adequate reasons which took into account relevant considerations.
5. Accordingly, no error of law is made out.
6. Turning to alleged errors of fact that are claimed to have produced a decision against the weight of evidence, the tenant's photographs before us were colour versions of the black and white photographs before the primary member. Even if one accepted the coloured versions which show more graphically the matters about which the tenant complained (particularly the garage and pest infestation), the central problem for the tenant is that the matters of which she complained were almost entirely not the subject of claim by the landlord on the bond and for compensation. To the limited extent that they were relevant to the items in the landlord's bond and compensation claims (primarily the cleaning claim), the recorded reasons show they were taken into account in assessing the evidence and reaching a conclusion.
7. Further, the recorded reasons show that the relevant evidence from both parties was taken into account in assessing the reductions of items within the landlord's claims. The tenant has not demonstrated that the weight of evidence favoured a different outcome, in a process that assessed the tenant's photographic and narrative evidence against the icr and ocr and the landlord's invoices and narrative evidence.
8. To illustrate further with the exit cleaning claim: the tenant contended that the landlord's failures to provide clean premises and maintain and repair them (with resulting chronic and severe pest infestation and mould damage) meant that the cleaning she had done left the premises cleaner than when she had received them and lived in them. On the reasoning in the transcript there is insufficient to conclude that the primary member's reduction by almost 50% of the landlord's claim for that item constituted an error of fact by being against the weight of evidence. Even if a differently-constituted Tribunal may have set that percentage reduction higher or lower, or disallowed the cleaning claim entirely, the primary member's reduction was in the range of reasonable outcomes in assessing the weight of evidence.
9. In that circumstance there was no basis to reach the second and third requirements to be met to justify a grant of leave to appeal on an alleged error of fact and no basis for an appeal to succeed on an error of fact.
10. The tenant challenged in her contentions the reasonableness of the landlord's claimed costs but did not provide counter-evidence to seek to demonstrate that the landlord's documented costs were unreasonable.
11. The tenant's complaints concerning absence of repairs during the tenancy were a matter that was not relevant in terms of a specific performance order once the tenancy ended and were not the subject of evidence about a basis for and amount of ongoing compensation, even if they had been brought within time.
12. That the tenant was not made aware at the final hearing that she could be legally represented is not the basis for a finding of error in relation to procedural fairness or otherwise. The Tribunal's procedures, including in respect of seeking leave for legal representation, are set out on the Tribunal website. It is not up to the Tribunal member conducting the final hearing to explore a party's knowledge on that topic.
13. As already said, there was no application by the tenant for a deferred payment regime.
14. For the foregoing reasons leave to appeal is refused and the appeal is dismissed.

1. It follows from the above that these orders should be made:

(1) Leave to appeal is 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.