Khan v Kallias [2026] NSWCATAP 120;

FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127

GTK v NSW Treasury [2025] NSWCATAP 174

Koompahtoo Local Aboriginal Land Council v Sanpine PL (2007) 233 CLR 115, [2007] HCA 61

Laurinda PL v Capalaba Park Shopping Centre PL (1989) 166 CLR 623, [1989] HCA 23

McNeill v Clarence Valley Council [2025] NSWCATAP 184

Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

Owners SP 21563 v Rutherford [2023] NSWCATAP 326

Pholi v Wearne [2014] NSWCATAP 78

Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9

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

Schwan v Reachclad Pty Ltd [2025] NSWCATAP 308

Soulemezis v Dudley (Holdings) PL (1987) 10 NSWLR 247 (CA)

Starr v Johnson [2023] NSWCATAP 190

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62

YHY v YHZ [2024] NSWCATAP 117

1. We have decided, for the reasons below, to refuse leave to appeal and dismiss the appeal.

1. The appellant tenant (who was the applicant in the primary proceedings) with his co-tenant and the respondent landlord on 6 May 2025 signed a written residential tenancy agreement in respect of a new-build house in Bexley, an inner south-western suburb in Sydney, NSW. The tenancy term was 18 months commencing 15 May 2025 and ending 14 November 2026 at a rent of $2,650pw. The tenant had paid two weeks' rent in advance totalling $5,300 on 29 April 2025 and the $10,600 rental bond. Following completion of purchase of the premises by the landlord on or very shortly before 15 May 2025, the tenant obtained the keys on 15 May 2025. He and his family did not move into the premises.
2. Rather, in a series of communications throughout 15 May 2025 the tenant demanded immediate repair of the items said to render the premises uninhabitable "by close of business tomorrow" and added in his communication at 5.04pm "with updates from the morning" and at 5.22pm "I look forward to hearing from you in the morning with an update". The managing agent had responded with explanations on some matters at 4.45pm and responded on the laundry facilities at 9.50pm. At 9.56pm the tenant responded that he had worked out that some holes needed to be drilled between the cabinets in the laundry for the hoses to connect to the taps and for the power cable to connect.
3. On the morning of 16 May 2025 at 6.01am the tenant by email terminated the tenancy and said that he would return the keys and remotes to the managing agent's office that morning, which he did at about 8.30am. In his termination email the tenant relied upon ss 104 and 107 of the Residential Tenancies Act 2010 (RTA), common law repudiation and ss 18 and 60 of the Australian Consumer Law NSW. He raised the following issues on habitability: no safe, electronically igniting cooking facilities; no functioning laundry facilities; non-functional and loud heating and cooling systems; loud and faulty pool pump; missing blinds causing sleep disruption and privacy issues; gas fireplace overheating the cabinetry above and causing a fire hazard; gaps in front door and non-functioning alarm and security system; only one gate opener provided when there were two tenants; spiders and pests in the garage; chemical odour from items left in basement storeroom, no heat lamp in downstairs bathroom.
4. The tenant filed on 30 May 2025 an application in the Tribunal. He sought the following: termination of tenancy, repayment of bond, refund of rent paid in advance, compensation for stress from the breaches of $2,500, interest and the filing fee and recognition that no break fee was payable. These were sought on the basis that he was entitled to terminate the tenancy for uninhabitability under s 52 with RTA s 63, that there was "common law repudiation" and breach of ACL ss 18 (misleading conduct) and 60 (consumer guarantee to supply services with due care and skill). The tenant said that RTA s 104, which permitted termination on hardship grounds, extended beyond hardship that was financial and covered his circumstances - his wife was pregnant, his father was gravely ill and there were the needs of a toddler. RTA s 103, which permitted termination for landlord breach, required one to look at the state of the premises at the start of the tenancy without a focus on repairs, which was such that they were not habitable in breach of s 52.
5. In a written primary decision on 25 September 2025 the primary member found that the tenant's complaints about the condition of the premises did not establish a breach by the landlord justifying termination by the tenant. The bond was ordered to be paid, as to two weeks' rent amount, to the landlord who credited the rent in advance against the other two weeks of break fee under RTA s 107(4)(a). The balance of the bond, being $5,300, was ordered to be paid to the tenant. This was said to reflect the landlords' open offer.
6. A stay application was not pressed on 30 September 2025 since the bond was released. At the directions hearing for setting stay directions on 26 September 2025 the appeal had been dismissed for non-appearance by the tenant but his reason was accepted and the proceedings were reinstated after his application on 3 October 2025.
7. On 22 October 2025 the landlord by consent was given leave to be represented by the managing agent.
8. At the appeal hearing the tenant did not pursue compensation for alleged stress and anxiety. It was accepted that his claim for compensation for alleged misleading conduct by the landlord led to the same relief in this case as the claims for the landlord's alleged breaches of the tenancy agreement.
9. The tenant said that he visited the premises after collecting the keys, on 15 May 2025. He reported his complaint to the managing agency after hours the same evening, being to the effect that the essential services did not function and should have been fixed before the tenancy began. The washing machine was not plumbed in, the stove was not connected and the airconditioning was not functioning; among other matters (mentioned above) the blinds did not block out and give privacy. He suggested a delayed start to the tenancy so that these items could be rectified. When he got no prompt response and no timeline he considered that he was not taken seriously, didn't want to risk his aged father (who required easy bathroom access) and family so took another tenancy. The landlord knew that the premises were not, as allegedly advertised, "perfect and ready".
10. The tenant said that he had not been accorded procedural fairness in the primary hearing because he was not given much opportunity to speak and explain and the primary member just accepted the landlord's side.
11. The landlords denied that the advertisement for the tenancy was misleading. The landlords said that the premises were fit for habitation, had been inspected by the tenant before signing the tenancy agreement, the stove and airconditioning had operated properly subsequently and any required remediation was minor and not urgent. The stove simply needed plugging in. There was a need for a hole to be correctly drilled for piping from the washing machine to the laundry sink but the washing machine was operable from a temporary location. The airconditioning was new and had been tested by the builder and certifier; it was simply not given sufficient time by the tenant to run in and could not have disrupted sleep because the tenant and his family did not move in. The fireplace surrounds, which had been reported as excessively hot, had been certified as safe. The tenant had an emergency plumber's number. The landlord was willing to share the cost of a chairlift for the father of the tenant. The blinds to the tenant's knowledge were booked for installation at the landlords' cost, having been custom made. The medical certificate was provided by the tenant's medical practice and there was no relevant hardship shown. Photographs, maintenance records and inspection reports did not show issues with noise from the pool pump or airconditioner or security records. The incoming condition report was not provided late.
12. The landlord also said that any (if any) issues were quickly able to be investigated and remediable and the landlord was not given any opportunity to investigate and remediate before the tenant unilaterally decided not to move in and to go elsewhere. The tenant had done so without a required Tribunal order terminating the tenancy on a statutory ground in the RTA. The landlords were accordingly entitled to the four weeks' break fee of $10,600 and one day's occupancy of $378.57.
13. In reply the tenant said that no one from the managing agency attended while he was present. The absence of an electric ignition for the stove was not temporarily fixable by using a lighter because of the fumes which would affect his father and pregnant wife. A hole was needed before the stove could be plugged in. The neglectful way in which his complaint was handled led him to believe that he could not wait longer for resolution.
14. There was no evidence that the tenant had issued a notice to rectify defects under RTA s 98. When asked the tenant repeated his reliance upon ss 103, 103A, 104 and s 26.

1. From [16] onwards of the primary reasons (PR) the primary member referred to relevant provisions of the RTA: s 26 (prohibiting a landlord from inducing a tenant to take a tenancy by any statement, representation or promise that the landlord knows to be false, misleading or deceptive or by knowingly concealing a material fact); s 52 (a landlord must provide the premises in a reasonable state of cleanliness and fit for habitation by the tenant), with reference to case law on failure to repair potentially amounting to a reduction or withdrawal of services and general amenity being a facility, and entitlement to a break fee under s 107(4)(a).
2. At PR [24]-[26] the primary member said that the tenant was unable to challenge the landlord's evidence (described above) "given they abandoned the Premises within 24 hours, and did not give the respondent a chance to attend the Premises and demonstrate both [stove and airconditioning] were in working order". The same comment about inability to contradict the landlord's evidence applied to the other alleged breaches.
3. At PR [27] the primary member said that the existence of any defect in the premises did not, as the tenant sought, lead to the conclusion that the landlord knowingly misled the tenant to enter the tenancy in breach of RTA s 26, which was a penalty provision. The member concluded that there was no evidence to support a finding of breach.
4. At PR [30]-[32] the primary member found as follows:

"30. The [tenant] did not seek to engage with the [landlords] in deferring their commencement date until these additional issues were investigated and resolved, nor did [he] seek a rent-free period as compensation, both of which the [landlords were] amenable to provide.

31. Instead, the [tenant] decided that the [landlords were] unreasonable in not immediately (ie same day) arranging and effecting repairs of the alleged defects, and did not afford the [landlords] any opportunity to arrange to investigate the issues and assist in resolving them in a timely manner, or at all.

32. As it happens, the [tenant] had also placed a deposit on another house in Bardwell Park at the same time, and proceeded with that lease instead. The [landlords] submitted that the [tenant] in fact never intended to proceed with this lease. I make no findings in this regard."

1. At PR [33]-[40], the primary member found: there was no evidence adduced that the landlords had misled the tenant to enter into the tenancy or that the landlords had breached their obligation to effect urgent repairs; the tenant did not behave reasonably by seeking deferral of tenancy commencement, a rent-free period, and/or allowing sufficient time for any required repairs; the identified defects did not render the premises uninhabitable and were not proven to be genuine defects; the tenant had not established that the landlords were responsible for the tenant's stress or any justification for the amount claimed; there was no basis for costs or interest. The primary member noted the landlords' offer to refund the two weeks' rent in advance.

Principles governing appeals from the Consumer and Commercial Division

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. Paragraph 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 generally be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel.
3. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]- [40] esp at [30]-[32], the Appeal Panel revisited non-exclusive instances of errors on questions of law. At [33] the Appeal Panel that the categories of questions of law are "not closed" and at [37] stated:

37. 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.

1. In the course of analysis and by reference to extensive authority, the Appeal Panel in Cusumano referred to the following examples, among others, which constituted questions of law of potential relevance to this appeal: whether a wrong principle of law or a wrong construction of a contract had been stated; whether there was a failure to provide adequate reasons; whether there was a failure to take into account relevant considerations or a taking into account of irrelevant considerations that were integral in a proper exercise of jurisdiction; whether there was a failure to afford procedural fairness.
2. A pure question of law can be decided without any reference to the facts or may proceed by reference to assumed facts. Pure questions of law must be questions whose character as a question of law can be recognised on the face of the question and which do not depend upon the answer given to the question but does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts: Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 at [48] and [109].
3. The interpretation of a statute or contract is directed to ascertaining the document's actual and true meaning; there can be only one correct meaning on a proper construction, so the proper construction of a statute or contract is in itself a question of law. In contrast, a question of mixed fact and law, such as an alleged error in applying correct legal principle or contractual construction to the facts, is generally not a question of law: Crystele Designer Homes PL v Wood [2023] NSWCATAP 242 at [41]- [43]; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11] and authority cited in those decisions; Cusumano, especially at [32]; FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127 at [83]- [84].
4. However, as noted by Basten AJ in Donohoe v Albulario [2025] NSWSC 9 at [33], this does not stand in the way of an Appeal Panel making necessary findings of fact about the composition of the primary tribunal or conduct of the primary hearing when the question of law concerns a denial of procedural fairness.
5. 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, 100 NSWLR 578 at [65]- [77] esp at [77]. In relation to adequacy of reasons, it is essential to expose the reasons for resolving a point critical to the contest between the parties: Soulemezis v Dudley (Holdings) PL (1987) 10 NSWLR 247 (CA) at 259, 270-272, 280-281; Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at [40]; Wainohu v NSW (2011) 243 CLR 181 at [58]; NCAT Act s 62(3).
6. It is not settled whether there is a duty on the Tribunal to provide a written statement of reasons which meets the requirements of s 62(3) of the NCAT Act where - as here - there was no evidence of any written request under s 62 to provide such reasons: see GTK v NSW Treasury [2025] NSWCATAP 174 at [26]- [37]; McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [135]- [139]; Schwan v Reachclad PL t/as Ace Trailers [2025] NSWCATAP 308 at [16]- [25]. As acknowledged in McNeill, it is arguable that adequacy of reasons arises as a question of law if written reasons are provided without need for a request under s 62, which appears consonant with what was said by Bell P (as Bell CJ then was) in Orr at [55], but see also Ward JA (as Ward P then was) at [110]-[114]. As further acknowledged in the authority just discussed, inadequacy of reasons may represent a failure to consider key evidence and submissions and therefore constitute an error on a question of law in the form of a denial of procedural fairness (see s 38(2) of the NCAT Act) or a constructive failure to exercise jurisdiction.
7. In any event, a ground of appeal that the Tribunal failed to provide proper reasons will rarely involve the consideration of a question of law alone, in which case an appellant may still be able to obtain leave to appeal under s 80(2)(b) of the NCAT Act: see Starr v Johnson [2023] NSWCATAP 190 at [37]- [48].
8. 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 set out above, 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 para 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 para 12(1)(c) of Sch 4 to the NCAT Act was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. There 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. The parties were not legally represented at the appeal hearing and there was no grant of leave for legal representation. In respect of a self-represented non-legally trained appellant, grounds of appeal may be considered generally to determine whether a question of law has been raised: Cominos v Di Rico [2016] NSWCATAP 5 at [13].
2. The appeal grounds must be reasonably discernible from the material before an Appeal Panel rather than the result of an artificial construct imposed on the material by the Panel: at Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 at [45]. The Appeal Panel is not required "to analyse lengthy, unstructured assertions and misconceptions to ensure that a self-represented party has not missed an arguable point": McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [185], [188]-[189].
3. In light of the foregoing principles, we have primarily focused on the grounds specified in the notice of appeal itself (which was not amended), not additional matters raised in the appellant's submissions.
4. In the notice of appeal the tenant alleged the following matters. If made out, these constituted errors on questions of law:

(1) Misinterpreting RTA s 104 by finding that financial hardship only was included, which excluded consideration on the basis of the tenant's father's grave illness, his wife's pregnancy and their toddler's needs.

(2) Misinterpreting RTA s 103 by not applying it to the uninhabitable state of the premises at commencement of the tenancy and focusing on repairs.

(3) Misinterpreting RTA s 26 by requiring "knowing deception" to be established and failure to consider a relevant matter being misleading advertising and pre-tenancy representations that the property was ready for occupation when the managing agency had handled both sale and renting of the premises "and knew the true state of the property" which was imputed to the landlord.

(4) Misapplying RTA s 107(4) when there was a lawful termination; the tenant described this as an error of law. In submissions the tenant altered the argument effectively to submit, first, that a break fee under s 107 should not be ordered when termination was "arguable under ss 103, 104 and 52" and, secondly, that s 107 could not apply if the tenant did not take possession, which the tenant argued that he had not done, having taken the keys only for brief inspection of the premises.

(5) Procedural unfairness by failing to consider the non-financial hardship evidence and unequal treatment of the tenant's and the landlord's evidence.

(6) In excusing the lack of connection in the laundry until "tested" by the tenant, the primary member "improperly shifted the burden to the tenant to discover and allow repairs, contrary to law ... Landlords must ensure facilities are functional at commencement under s 52".

(7) In criticising the (less than) 24 hours for repairs, the primary member "wrongly shifted the statutory obligation from landlord to tenant. Tenants are not required to grant time after commencement; landlords must deliver a habitable property at the outset".

1. In the notice of appeal the tenant alleged the following matters which, if made out, required leave to raise:

(1) The tenant's evidence of photos, videos and emails was given insufficient weight as against "the landlord's bare oral claims".

(2) Focusing on whether repairs could be made within 24 hours rather than whether the premises were habitable at commencement of the tenancy: "The landlord had at least 5 weeks between exchange and settlement to prepare the property. The obligation under the [RTA] is proactive, not reactive".

(3) Giving insufficient weight to "serious safety and habitability issues".

1. We deal with each of the grounds of appeal in turn, although there is some overlap in what is required in considering them.
2. The tenant provided no authority, to us or it seems to the primary member, to support his argument that hardship within RTA s 104 extended beyond financial hardship, despite his general reference to "case law". It is not clear from the generalised reference whether that case law related to s 104 specifically or to other contexts where hardship is used in a statutory provision. There is accordingly no submitted basis for the tenant's contention and it fails.
3. In relation to the alleged misinterpretation of RTA s 103, the tenant alleged in his application but not in his grounds of appeal that the landlord's conduct amounted to general law repudiation of the tenancy which he accepted. This was not further developed but appears to rely on the same conduct of the landlord as the alleged breach of habitability and urgent repair requirements.
4. The relevant form of repudiation, in the form of renunciation, must convey the objective impression that the landlord no longer intended to perform the contract: Laurinda PL v Capalaba Park Shopping Centre PL (1989) 166 CLR 623, [1989] HCA 23 at [15]- [17]; Koompahtoo Local Aboriginal Land Council v Sanpine PL (2007) 233 CLR 115, [2007] HCA 61 esp at [43]-[56], [60], [68]-[71]. In our view the evidence did not support such a basis for exercise of termination under s 103, if that was what was alleged (which is not clear). Rather, it demonstrated a willingness on the part of the landlord to investigate alleged non-compliance with his contractual obligations, to remediate where required and to explain why remediation was not required or was minor.
5. The alleged breach of habitability requirements at the start of the tenancy under RTA s 52, and any alleged breach of the obligation to undertake urgent repairs in s 63, is within the scope of s 103, which applies to any breach so long as it is "in the circumstances of the case, sufficient to justify termination of the agreement", including potential consideration of the matters in s 103(2) and (3). The primary member did consider at least the matters in s 103(2)(a), (c) and (d), and considered the opportunity to investigate and repair in that context.
6. Further, the primary member did not shift the burden to discover an alleged breach, or to give a period of notice, to the tenant. Discovery of an alleged breach was simply the trigger for a requirement, always placed on the person alleging a breach of habitability or any other term of the tenancy agreement, to prove the alleged breach and to prove that it justified termination without notice under RTA s 103: "(1) The Tribunal may, on application by a tenant, make an order if it is satisfied that - (a) the landlord has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement".
7. The primary member expressly considered the issue of knowledge which is an express requirement in RTA s 26 for the characterisation of the alleged false, misleading or deceptive statement "that the landlord or agent knows to be false". There was no linkage established on the evidence between a found defect and the agent's knowledge that such was a defect. To the extent that ss 18 and 60 of the ACL NSW were relied upon, there was insufficient factual basis to satisfy the onus to prove the alleged misleading conduct or breach of consumer guarantee.
8. Contrary to one of the tenant's submissions, RTA s 107 does not depend for its applicability on termination being arguable, nor on taking possession when a tenancy agreement has been entered into.
9. There was no procedural unfairness in the primary member's consideration of the tenant's arguments and evidence. They were clearly considered and found not to establish the tenant's right to terminate without notice or for hardship. Those findings are subject to specific criticism by the tenant and have been addressed on that specific criticism.
10. Turning to the grounds requiring leave to appeal, the tenant's weight of evidence complaint turned on the primary member's finding at PR [35] that "the defects identified by [the tenant], did not render the Premises [un]inhabitable, and were by no means even proven to be genuine defects". This was said to be an acceptance of the landlord's "oral assurances" without "independent corroborating evidence" over the tenant's "documented proof" in the form of "contemporaneous evidence (emails, photos, videos) on 15 May 2025".
11. The difficulty with this argument is that the tenant's evidence did not substantially change the character of what the landlord described as the issues raised. The primary member's characterisation of the issues (described earlier in these reasons) as not established to be defects and in any event not rendering the premises uninhabitable were conclusions able to be drawn from both the landlord's and the tenant's evidence, irrespective of which was given more weight.
12. Further, the primary member did not give insufficient weight to "serious safety and habitability issues" because he found that such a characterisation of the issues had not been established.
13. The primary member's findings about notice were in the context of the foregoing findings. The nature of the breaches being considered combined with the absence of opportunity for the landlord, once the matters had been alleged, to investigate and explain and, if found to be required, remedy, meant that the Tribunal was not satisfied that either requirement in RTA s 103(1) (set out above) was established by the tenant so as to justify a termination order, let alone without notice and the consequent opportunity for the landlord.
14. Finally, in respect of new evidence sought to be led on appeal, the tenant raised the sad evidence that his father had died, it appeared since the primary hearing. While this would satisfy the requirement of not being reasonably available at time of hearing, there was no basis to grant leave without establishing that such non-financial evidence both was relevant to hardship under RTA s 104 and that the later death, of itself as a fact, assisted in establishing hardship more than did the father's serious illness. Neither matter was established.
15. The other new evidence sought to be led on appeal related to clear intention to move in (presumably in relation to the comment in the primary reasons about a deposit on other premises, in a passage set out above) and further evidence on the matters in the grounds of appeal. All of this material was reasonably available at the time of the primary hearing. Part of it was said to have been prompted by the landlord's submission, recorded in PR [32] set out earlier in these reasons. The primary member expressly made no findings in that respect, which rendered irrelevant any further evidence sought to be led on the topic. We have not had regard to the further evidence.
16. We note that in submissions the tenant complained about delivery of the incoming condition report after signing of the tenancy agreement in contravention of RTA s 29 and which allegedly showed items functioning that were alleged not to be so. This does not add to the proof of the complaints sought to be established by the tenant as the basis for termination.
17. The tenant's challenge to the primary orders accordingly is not made out. Leave to appeal, to the extent leave is required, is to be refused and the appeal is to be dismissed.

(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 New South Wales Civil and Administrative Tribunal.

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.