John v Taleb

Application for extension of time

1. Unless the Tribunal grants an extension under s 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act), an internal appeal such as this one must be lodged, as stated above, within 14-days from the day on which the Appellant was notified of the decision to be appealed or given reasons for the decision (which ever is the later): see NCAT Rules , R 25(4)(b).
2. The relevant principles which generally inform the exercise of our discretion to extend time were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. Relevant factors to consider include length of the delay, the reasons for the delay, whether the Appellant has a fairly arguable case and the extent of any prejudice suffered by the Respondent.
3. In Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 at 459 F-G (col 1), McHugh J stated: When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospect of the applicant succeeding in the appeal.
4. On the other hand, as noted in Jackamarra v Krakouer (1998) 195 CLR 516, the assessment of such prospects are necessarily undertaken on a constrained basis: Brennan CJ and McHugh J at [3], referring to Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Metha [1975] 1 WLR 1087 at 1091; see also Kirby J at [66], paragraph 4.
5. In Gallo v Dawson McHugh J stated at 459E, column 2: A case would need to be exceptional before a Court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved.
6. We note that the landlord did not make any submissions as to any specific prejudice being suffered if we were to grant an extension of time.
7. The tenants put forward as the reason for the delay the fact that because they were not legal professionals and could not obtain legal advice given their resources, they had to research the issues and 'go through the entire determination' and try 'to interpret and understand the possible questions of law and errors of law and other factual errors'.
8. The tenants also referred to the fact of having to still conduct day-to-day chores and responsibilities and that the female tenant was unwell and her health impacted at this time while they were attempting to research the issues involved in their appeal.
9. We now consider the prospects of success of the grounds of appeal.
10. In this regard we note that Jackson at [22] (4) stated: It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
11. We will deal with the grounds of appeal by the categories of claims as dealt with by the Tribunal below.

Tenants claim for rent reduction due to withdrawal of goods, services or facilities by the landlord

1. The tenants claimed $8510 by way of rent reduction due to the landlord's failure to undertake repairs and maintain the premises.

Non-functioning air conditioners

1. The tenants allege that the two air conditioners in the premises did not work. They claim the main air conditioner in the lounge room vibrated excessively and no longer worked. They asserted the second air conditioner in the bedroom leaked badly and saturated the carpet.
2. The tenants sought a rent reduction of $1040 being $20 per week for 52 weeks.
3. The conclusion of the Tribunal at [61] - [64] was as follows: 61 The Landlord contended the airconditioners were repaired and working on 25 July 2020 when Nabi Taleb ("Nabi") attended the property to carry out various repairs. He serviced the airconditioners and replaced fan blades. He eliminated the vibration by placing a foam strip behind the airconditioning unit. When Nabi completed the maintenance the airconditioners, they were in good working order. 62 The Tribunal is satisfied on the evidence that the airconditioners were repaired within a reasonable time and continue to perform satisfactorily. 63 The Tribunal is not satisfied that the Landlord has breached his obligation to repair or maintain the property or there has been a withdrawal or reduction of services or facilities warranting an award of compensation. 64 The Tenants have not discharged the onus placed upon them in respect of this item and the claim is dismissed.
4. The substance of the grounds of appeal in this regard is that the evidence did not support the Tribunal's conclusion that the air conditioners were working satisfactorily after repair and, in particular, that there was no evidence that the fans had been replaced.
5. Having reviewed the evidence before the Tribunal, our assessment is that the tenants' prospects of making out this grounds of appeal are poor. There was evidence before the Tribunal that repairs had been made to the air conditioner units and that they worked adequately subsequently to those repairs.

Water supply issues

1. The premises were not connected to a town water mains supply. The availability of water was dependent on rainfall in the area to fill the water tanks and the creek. The tenants claim there were continual issues with the submersible pump in the creek which required them to use drinking water from the water tank to flush toilets and provide water to the yard.
2. The tenants claim $1,120 being 14 weeks of $20 per week by way of rent reduction.
3. The Tribunal dealt with this claim at [69] - [73] as follows: 69 The Tribunal is satisfied that the Landlord provided a water tank that was able to supply to the premises hot and cold water for drinking and ablution and cleaning activities. The Tribunal finds there was no breach of the obligation under section 52(1A) of the Act by the Landlord. 70 The water from the creek was a secondary source of water supply for the flushing of the toilet and water to the yard. The Tenants' evidence is that they used tank water to flush the toilet whilst the pump was not working properly. 71 Whilst there was some inconvenience to the Tenants, it was minor. The Tenants still had use of the facilities. 72 On the evidence the Tribunal is not satisfied that there was a breach of the obligation to repair or a withdrawal or reduction of services or facilities which entitles the Tenants to compensation. 73 The claim for this item is dismissed.
4. The substance of the submissions and the grounds of appeal were in this regard that the Tribunal overlooked certain evidence and the 'balance of weight of the evidence' supported the tenants' contention.
5. Having regard to the evidence filed before the Tribunal, we are satisfied that the tenants' prospects of success on the grounds of appeal are poor.

Claim for Reduced Use of Paddocks

1. The tenants claimed $2,600 for a reduction in the usable size of the paddocks due to the failure of the sewerage management system and the installation of fencing around the affected area.
2. The tenants' claim for compensation was for a period of 52 weeks calculated at $50 per week.
3. The Tribunal dealt with this claim at [75] - [101] as follows: 75 In their evidence the Tenants referred to a conversation with a neighbour who stated: "there had always been issues with the septic tank and that her partner had dug a trench and installed a PVC pipe to take excess water into the paddock, rather than empty the septic tank". The neighbour's statement is hearsay and of no probative value. 76 In her statement Ms Nelson stated at paragraphs 45 and 46 that she observed a PVC pipe attached to the overflow sewer pit which flowed into a paddock. She submitted there is no grey wastewater system in place and is non­ compliant with council requirements. 77 The Tenants relied on correspondence from Goulburn Mulwaree Council. On 19 October 2020 the Council advised the Landlord of its intention to undertake an inspection of the On-Site Sewage Management Facilities on 2 November 2020. 78 The Tenants contacted the Council and had the inspection rescheduled to 30 November 2020. 79 On 23 December 2020 Council served a letter on the Landlord which stated: The On-Site Sewage Management System installed on the abovementioned property has been identified as potentially not operating in compliance with the NSW Local Government Act 1993, and in turn fails to meet the performance standards of Clause 44 of the Local Government (General) Regulation 2005. During the inspection the following non compliances were noted: Failing Absorption Area The septic area is no longer absorbing adequately absorbing the wastewater from the septic tank. This is resulting in the pooling of untreated effluent on the surface of the absorption area, which may pose risk to human health and the environment. 80 The Council required the remedial works to be completed by 4 March 2021. 81 The Tenants stated they erected a fence around the affected area to keep sheep off it. The Tenants submitted their sheep were placed in quarantine and sought compensation for their sheep. They did not particularise the amount of compensation sought as part of the claim. 82 The Landlord asserted that upon receipt of the notice, he contacted Council. He was advised to obtain an environmental report from a Geotech Engineer. 83 The Landlord tendered a report headed "Wastewater Management : Site and Soil Evaluation and Disposal System Design" dated 15 March 2021 prepared by Ciaran Bromhead. The cost of the report was $2326.50. 84 The Landlord stated he continually kept the Tenants informed of progress. The Tenants were given an opportunity to terminate the tenancy agreement without penalty but declined the offer. 85 There was a delay in implementing the recommendations in the report because Council required the Landlord submit a Development Application. 86 On 24 August 2021 Council gave development approval. 87 The Landlord instructed Scott Reid Plumbing to undertake the septic system upgrade. The Landlord contended that on 4 March 2022 he notified the Tenants by email that Scott Reid Plumbing would carry out the work on the septic system and rebuild the trench. He provided the telephone number for Scott Reid and requested the Tenants to confirm an appropriate time to commence the works. 88 There was a flow of email correspondence between the Landlord, Tenants and Scott Reid Plumbing between February and May 2022 which satisfied the Tribunal that the Landlord made arrangements for the upgrade of the septic system but there were difficulties with the plumber gaining access to the property to undertake the work. 89 On 21 February 2022 Scott Reid sent an email to the Tenants which relevantly stated: Thank you for your email confirming that we are no longer able to access the property to complete the required work, You and I did have the discussion in regards to notifications and access to the property to complete the septic system upgrade, as required by Goulburn Mulwaree Council and the owner. We did arrange a date that was acceptable to you and allowed you ample time to remove the rose garden from around the septic tank as you wanted to relocate them. You also requested time to allow you to prepare your son for the noise of machinery and trucks that are required to do the work, as you informed me he had some disabilities. 90 In a further email on 9 March 2022, Scott Reid wrote: After some discussion on the weekend, we have decided that we will not be attending the property to upgrade the septic system as required by council, until the issues between the owners and yourselves have been resolved. I have informed council of this today. 91 The Tenants informed Scott Reid that any date after 18 March 2022 was suitable to carry out the work. 92 In an email to the Landlord dated 31 March 2022, Michelle Grossbach, an Environmental Health Project Officer with GouIburn Mulwaree Council, advised: Reference is made to the required rectification works to the septic system at 740 Middle Arm Road. Council is aware of the current situation you are in with your tenant at 740 Middle Arm Road and the difficulties that is presenting with getting access to the site to complete the rectification works. As such, Council has determined to hold the septic matter in abeyance until your matter with the tenant is resolved. 93 The Landlord disputed the Tenants' claims. The Landlord asserted he was unaware of any contamination on the land and took steps to fix the problem. He relied on enquiries undertaken at the time he purchased the property in November 2019 which showed the land was not contaminated, and Council had not issued any notices or work orders. 94 The Landlord stated he engaged 2 local licensed plumbers Gary Suddle and Scott Reid to fix the septic tank issues. He submitted that the Tenants obstructed the plumbers and repeatedly refused access which contributed to the delays in complying with Council's orders. Eventually Gary Suddle was given access. 95 The Tribunal is satisfied that at the commencement of the tenancy, the Landlord did not know there was a problem with the septic system. The Landlord first became aware of the issue when he received the notice from the Council on or about 23 December 2020. There is no evidence of any problem with the septic system at the beginning of the tenancy. 96 The Tribunal is satisfied the Landlord acted with reasonable diligence to repair the septic system after receiving the notice from the Council. There were delays in upgrading the septic system but these are in part attributable to the requirements of Goulburn Mulwaree Council, COVID Protocols and difficulties gaining access to the property by plumbers engaged by the Landlord. The Tenants unreasonably obstructed access to the plumbers. 97 The total area of the property is approximately 35 acres. The area adversely affected by the contamination was relatively small in comparison to the total area of the property. 98 The Tenants did not provide in their evidence a proper basis for calculating compensation. 99 The Tribunal is satisfied that although there was some reduction in the use of the land, that reduction was minor and does not warrant a rent reduction. 100 The Tribunal is not satisfied that the Landlord breached his obligations under section 63 of the Act. 101 The claim for compensation and rent reduction for this item are dismissed.
4. The tenants in their submissions in this ground of appeal made many complaints in respect of these paragraphs in the Decision. They complained about paragraph [84] and disputed that the landlord continually kept the tenants informed of progress.
5. They also disputed the statement in this paragraph that the tenants were given the opportunity to terminate the tenancy agreement without penalty but declined the offer.
6. In our view, these matters do not have a significant bearing on the ultimate conclusion of the Tribunal in respect of the claim in question.
7. In respect of paragraph [81], complaint was made about the statement that the tenants failed to particularise the amount of compensation sought as part of the claim dealing with the tenants' sheep. The complaint was made that nowhere in the tenants' evidence did they state they were seeking compensation for their sheep. We note, this does not have any direct bearing on the ultimate determination of the claim in question.
8. In respect of paragraphs [87] and [89], the tenants contended that the Tribunal ought to have found, consistent with the tenants' evidence, that they were not 'formally informed' as to who the landlord engaged to come to the property to complete the works.
9. Having regard to the evidence before the Tribunal, in our view the tenants' prospects of success in respect of these grounds of appeal are poor.
10. In respect of paragraphs [88] - [90] of the Decision, the substance of the complaint was that the Tribunal should have given more weight to all of the tenants' evidence and in particular the email dated 20 February 2022.
11. On our review of the evidence, we are satisfied that the tenants' prospects of success of these grounds of appeal are poor. The essence of the tenants case is that their evidence should have been preferred over the landlord's evidence. In our view the findings of fact made by the tribunal were open on the evidence.
12. The tenants nextly took issue with paragraph [95]. The assertion was that the factual evidence submitted in the tenants' evidence should have demonstrated that the landlord texted the tenants the letter in question on 23 December 2020 and the landlord received the first notification from the Council in a letter dated 19 October 2020. Reference was made to various parts of the evidence.
13. On our review of this evidence, we are of the view that the tenants' prospects of success in regard to these grounds of appeal are poor.
14. Similar complaint was made about paragraph [94] of the Decision. The substance of the complaint is that the landlord's 'factually unsubstantiated evidence' was relied upon, and the tenants' evidence was not taken into consideration.
15. On our review of this evidence, we are of the view that the tenants enjoy poor prospects of success on these grounds of appeal.
16. Nextly, the tenants took issue with paragraph [96] of the Decision. The tenants submit that the finding that 'we unreasonably obstructed access to the plumbers' was a factual error that was unreasonably arrived at and clearly mistaken thus making the decision not fair and equitable and against the weight of the evidence in the first instance.
17. On our review of the evidence, we are of the opinion that the tenants' prospects of success on these grounds of appeal are poor.

Claim relating to Window Locks / Security

1. The tenants claim the landlord did not provide window locks to provide a safe and secure home, flyscreens in the lounge room and front door and handrail to the back veranda. The tenants requested a rent reduction of $27.50 per week for 52 weeks being a total claim of $1,430.
2. The Tribunal dealt with this claim at [119] - [128] as follows: 119 The Landlord contended the Tenants were aware of the situation at the commencement of the tenancy and raised no concerns except for the replacement of the front door lock. That lock was replaced by Bob Taleb early in the tenancy. 120 The landlord's obligations in respect of security and safety of premises are set out in Division 7 of Part 3 of the Act. Relevantly section 70(1) of the Act provides: A landlord must provide and maintain the locks or other security devices necessary to ensure that the residential premises are reasonably secure. 121 The obligations imposed by section 70 are a term of every residential tenancy agreement. 122 Section 191 of the Act provides: 191 MATTERS FOR CONSIDERATION BY TRIBUNAL IN APPLICATIONS RELATING TO SECURITY BREACHES (1) This section applies to proceedings before the Tribunal relating to a breach of Division 7 of Part 3. (2) For the purposes of determining whether a landlord has provided residential premises that are reasonably secure, the Tribunal may consider (but is not limited to considering) the following matters- (a) the physical characteristics of the premises and adjoining areas, (b) the requirements of insurance companies for allowing the tenant to obtain insurance for property of the tenant kept at the premises, (c) the likelihood of break-ins or unlawful entry or risks to the tenant's personal safety. (3) For the purposes of determining whether compensation is payable to a tenant for a breach of the obligation to provide residential premises that are reasonably secure, the Tribunal must consider (but is not limited to considering) the actions taken, or that should reasonably have been taken, by the tenant and the landlord for the security of the premises. 123 Section 191 requires the Tribunal to consider, for the purposes of determining whether compensation is payable, the actions taken, or that should reasonably have been taken by the tenant and the landlord for the security of the premises. 124 In determining whether the Landlord provided premises which are reasonably secure, the Tribunal considered the matters set out in section 191(2) of the Act. 125 The premises are situated in a rural setting. The Landlord replaced the front door lock when requested by the Tenants. There was no evidence of the requirements of insurance companies or that there was an increased risk of break-ins or unlawful entry or other risks to the personal safety of the Tenants. 126 The Act does not impose any obligation of the Landlord to provide window locks or other security devices. The obligation under section 70 is for the Landlord to provide and maintain the locks and security devices to ensure the premises are reasonably secure. 127 If the Tenants allege the premises are not reasonably secure, they must prove that fact. They have not discharged that onus in this case. 128 The Tribunal finds the Landlord provided premises which are reasonably secure. The claim for compensation for breach of agreement and/or rent reduction is dismissed.
3. In respect of this claim, the tenants submitted that there was no evidence to justify the statement at [125] that the landlord replaced the front door lock when requested by the tenants.
4. Nextly, the tenants took issue with the Tribunal's statement of the law at [126]. They contended it contained a contradiction.
5. Again, and more generally, the tenants sought to canvas the evidence before the Tribunal at first instance and reagitate the merits of the Tribunal's findings.
6. In our view, the tenants have poor prospects of success in respect of these grounds of appeal.

Claim for Reimbursement for 3 Loads of Drinking Water

1. The tenants sought reimbursement of $960.00 for the cost of 3 loads of water purchased by them. The tenants tendered an invoice for the loads of water.
2. The Tribunal dealt with this claim at paragraph [130] - [135] as follows: 130 The Tenants submitted the Landlord was responsible for the payment of the invoice because there was a leak in the pipe and non- potable water was not available. 131 The Landlord argued that it was the Tenants responsibility to pay for water to fill the water tanks. 132 Relevantly section 39(1)(a) of the Act provides that a tenant must pay for water usage charges for the residential premises where the premises are not connected to a water supply service, water is delivered to the premises by vehicle and the premises contain water efficiency measures prescribed by the Regulations. 133 The Tribunal finds the rented premises were not connected to a water supply service and water was delivered to the premises by vehicle. There is no evidence that the rented premises did not contain water efficiency measures. 134 The Tribunal rejects the Tenants' submissions regarding the leaking pipe the absence of non-potable water. There was no evidence there was any significant impact on the use of the drinking water which justifies an order the Landlord reimburse the Tenants for this cost. The claim is dismissed.
3. Again, the tenants sought to reagitate the merits of the claim and the evidence before the Tribunal. For example, they claim the Tribunal failed to consider their evidence and, in particular, an email dated 30 March 2021, where the landlord was informed that there was a slow leak in the pipe and the tenants were losing water from the water tanks.
4. In our opinion, the tenants' prospects of success on those grounds of appeal are poor.

Tenants' claim for non-economic loss

1. The tenants claim $3,510 for non-economic loss. They allege the landlord, his family and Mr Bob Taleb have 'continually caused our family, when dealing with issues past and at hand, undue stress, anxiety, threats and harassment and intimidation upon us'.
2. The tenants submitted the landlord's behaviour has caused them to expend their own funds on repairs. They asserted the landlord constantly breached his obligations to maintain the property and their right to quiet enjoyment.
3. The Tribunal dealt with the claim at [141] - [148]: 141 In Morgan v Barker [2022] NSWCATAP194 the Appeal Panel stated at [59]­[61]: 59 In Torpey v Stewart [2021] NSWCATAP 248 (Torpey) at [24]-[27] the Appeal Panel made the following observations regarding damages for distress recoverable under the RT Act by a tenant caused by breach by the landlord of the covenant for quiet enjoyment: "[24] It is clear that recovery of damages in respect of matters identified by the Tribunal in awarding the sum of $2,500.00 is available for breach of the landlord's obligation concerning quiet enjoyment in accordance with the approach to the recovery of such damages in Baltic Shipping Co v Diffon (1993) 176 CLR 344; [1993] HCA 4 (Baltic Shipping) and that limitations of recovery in Part 2 of the Civil Liability Act2002 (NSW) (CLA) are not applicable to such a claim: Moore v Scenic Tours Pty Ltd {2000) 268 CLR 326; [2020] HCA 17; (Moore's case); Makowska v St George Community Housing Ltd [2020] NSWCATAP 159. [25] It is also clear that damages for mental distress fall within the same category of recoverable damage. In Moore's case, the plurality of the High Court (at [56]-[57]) approved of the following statement by Spigelman CJ in New South Wates v lbbett [2005] NSWCA 445; (2005) 65 NSWLR 168 at [21]; (2005] NSWCA 445: "The concept of 'personal injury' ... has rarely, if ever, been used to refer to harm to reputation, deprivation of liberty, or to injured feelings such as outrage, humiliation. indignity and insult or to mental suffering, such as grief, anxiety and distress. not involving a recognised psychological condition. (See. for example, Baltic Shipping Co v Oiffon [1993] HCA 4; (1993) 176 CLR 344 at 359-363.)" [26] The plurality in Moore's case said that this statement reflected a correct appreciation of the effect of the decision in Baltic Shipping that a claim of the kind made by Mr Moore stood separately and apart from a claim for damages for disappointment and distress associated with physical injury. [27] Hence, mental distress unassociated with physical injury of the kind referred to in these cases is not a "personal injury" within the meaning of Part 2 of the CLA." 60 In Moore v Scenic Tours Ply Limited (No 2) [2017] NSWSC 733 (Moore (No 2)) at [912]-[916] Garling J set out the approach to the assessment of damages for distress and disappointment for breach of a contract: "[912] Damages for distress and disappointment are able to be assessed at large.... [913] Each case must be assessed according to the distress and disappointment which a person has suffered.and having regard to all of the facts and circumstances which are proved for that individual. [914] It does not seem to be correct to award only a token or nominal sum for such damages.... [915] ... In Planet Fisheries, the High Court rejected a submission, in a case concerned with excessiveness of an award of general damages, that the Court should seek out a norm or standard from other decisions by which the award under challenge could be identified as disproportionate ... [916] ... An assessment of the sum of damages is still one undertaken ..., by an evaluative process applying a sense of fairness and justice." 61 Recently in assessing damages for distress and disappointment for breach of a contract Garling J reaffirmed the principles in Moore (No 2) at [912]­ [916]: Moore v Scenic Tours Pty Ltd (No 4) [2022] NSWSC 270 (Moore (No 4)) at [116]-[117]. 142 The Tenants submitted they had been inconvenienced and frustrated by the Landlord's actions which limited their use of the residential premises. As noted in Moore (No 2) referred to above "each case must be assessed according to the distress and disappointment which a person has suffered, and having regard to all of the facts and circumstances which are proved for that individual." 143 In evaluating the Tenants' claim, the Tribunal applied a sense of fairness and justice. The Tribunal rejected the majority of the Tenants' claims for rent reduction and compensation. The Tribunal was satisfied the Landlord addressed the Tenants' claims appropriately in most cases. 144 The majority of matters complained about by the Tenants are historical and date back to 2019/2020. The Tenants did not commence proceedings for the Landlord's breach of the residential tenancy agreement within the time limits set out in the Act and Regulations and they are out of time. 145 The Tenants have a duty to mitigate their loss. The failure of the Tenants to act appropriately to mitigate their loss adversely impacts on their claim for non­economic loss. 146 As the Tribunal observed earlier, the Tenants' actions contributed to the delays in having repairs done by the Landlord and tradespersons. 147 In the circumstances it would be unfair and unjust to award the Tenants damages for non-economic loss. The claim for non-economic loss is dismissed. 148 The Tenants alternative claim for damages for breach of the covenant of quiet enjoyment is dismissed. The Tribunal is not satisfied the Landlord breached his obligations under section 50 of the Act.
4. The tenants in their grounds of appeal and submissions took issue with paragraph [144] and disputed the lawful basis for the contention that the tenants did not commence proceedings for the landlord's breach of the residential tenancy agreement within the time limits set out in the RTA.
5. The tenants also took issue with the manner in which the Tribunal referred to the cases of Shailer v Serisier [2016] NSWCATAP 131; Kork v Merheb [2021] NSWCATAP 349 and Morgan v Barker [2022] NSWCATAP 194.
6. Nextly, the tenants complained about the Tribunal's finding that the tenants had failed to act appropriately to mitigate their loss: see [145].
7. The tenants sought to reagitate the evidence relied upon before the Tribunal at first instance.
8. Similarly, the tenants complained about the findings of fact at [146] and [148] contending that the factual evidence did not support the findings and the tenants 'would like this reviewed please'.
9. On our review of the evidence, it is our opinion that the tenants' prospects of success on these grounds of appeal are poor.

The tenants' further claims

1. The Tribunal under the above heading stated as follows at [149] - [152]: 149 The Tenants sought an order for repairs pursuant to section 65 of the Act. The Tribunal declines to make the order for repairs requested under head three of the Tenants' claim as these matters have been considered and dealt with earlier in this decision. 150 The Tribunal declines to make an order under section 65(5) of the Act for all or part of the rent payable be paid into the Tribunal until the repairs are done. There is no basis for making such an order. Orders if this kind should only be made as a last resort because of the financial impacts on the Landlord. 151 The Tribunal declines to make the access orders sought under head five of the claim. The Tribunal is not satisfied on the evidence that the grounds exist to make the order requested. 152 The Act provides the parties with remedies if there is a breach of the tenancy agreement or access provisions of the Act. The parties should make an application if there is evidence of a breach.
2. It is extremely difficult, based upon the loose language used in the grounds of appeal and the written submissions, to understand whether or not any discernible, intelligible and separate complaint is being made about the Tribunal's decision in respect of these paragraphs.
3. To the extent some complaint or grounds of appeal deal with these paragraphs, in our opinion their prospects of success are poor.
4. In our opinion, the tenants' prospects of success on appeal are poor.

Conclusion

1. In conclusion, we are not satisfied there are extraordinary grounds for extending the time for filing of the Notice of Appeal by the many months required in this case.

Decision

1. The orders of the Appeal Panel will be: 1. The application for extension of time to lodge the Notice of Appeal is refused. 2. Appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2023