Lemba v Nguyen

1. The Tribunal proceedings were listed for formal hearing on 12 September 2025. Both parties attended that hearing.
2. The decision of the Tribunal dated 12 September 2025 was as follows:

(1) In Order 1 the Tribunal dismissed the tenant's claim by way of defence to the landlord's termination application for a declaration under 115 of the RT Act that the notice of termination was invalid on the ground that it was retaliatory;

(2) In Orders 2-4, the Tribunal granted the landlord's application and made an order terminating the tenancy agreement under s 85 of the RT Act and an order for vacant possession which was suspended until 10 October 2025;

(3) In Order 5, the Tribunal ordered the tenant to pay a daily occupation fee until the date of vacant possession.

1. The decision records that oral reasons were given.
2. The transcript of the hearing provided by the tenant records that the tenant sought to press claims for compensation and rent reduction, which claims were refused to be determined by the Tribunal.

1. The Notice of Appeal was filed by the tenant on 25 September 2025, which was within the prescribed period of 14 days: rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. The Notice of Appeal challenged all Orders made on 12 September 2025 as well as the Tribunal's refusal to determine the tenant's claims at the same hearing. However, by the time of the hearing of the appeal, the tenant had vacated the leased premises and the tenant confirmed that the termination and ancillary orders were no longer the subject of the appeal.
3. The tenant confirmed that it was the Tribunal's refusal or failure to determine the tenant's compensation and rent reduction claims at the hearing on 12 September 2025 which is the sole issue upon which the tenant now makes this appeal.
4. The tenant contended that the failure to determine the tenant's claims was on technical and erroneous grounds and was a denial of procedural fairness.
5. The landlord has a filed a Reply to the Notice of Appeal and supports the decision of the Tribunal.

1. The parties entered into a residential tenancy agreement on 18 December 2013.
2. The landlord issued a notice of termination for end of periodic tenancy dated 25 March 2025 which required vacant possession by 2 July 2025.
3. As the tenant had not vacated the premises in accordance with the notice of termination the landlord filed the Tribunal proceedings on 3 July 2025 to obtain a termination order under s 85 of the RT Act (as then in force) and an order for vacant possession.
4. The Tribunal proceedings were first listed for a group list and conciliation hearing on 21 July 2025. The disputes between the parties did not settle at the conciliation and in the usual course directions were made on that day to prepare the proceedings for hearing.
5. On the basis that the tenant informed the Tribunal that he sought to make a claim against the landlord, the Tribunal also made following directions for the tenant's claims and for both matters to be listed together. The tenant's claim was referred to as a "cross claim application" in the directions.
6. Specifically, for the tenant's claims the Tribunal made orders:

[3] Cross claim application and a copy of this order is to be lodged with the registry and given to the other party by 04 August 2025.

[4] The respondent is to advise the registry the related proceeding file number and date listed.

[5] The Tribunal directs the related proceedings to be listed together.

1. On 1 August 2025 the tenant lodged a bundle of documents at the Tribunal Registry which comprised:

(1) a copy of the Tribunal's directions made on 21 July 2025 at the front of the bundle;

(2) a 4 page document titled "Part 1: Cover letter" dated 27 July 2025;

(3) a 5 page document titled Part 2 "Tenancy and Social Housing Application" setting out the tenant's claims and orders sought;

(4) a 27 page document titled 'Part 3 Cross Claim Statement"; and

(5) a 3 page document titled "Part 4 Evidence Index and Timeline Events".

1. The above documents set out the orders that the tenant sought for the Tribunal to make against the landlord - a rent reduction order, compensation order and repair order, all being remedies under the RT Act.
2. The Tribunal proceedings were listed for formal hearing on 12 September 2025 and both parties attended. The landlord was represented by his agent.
3. At the beginning of the hearing the Tribunal member asked the tenant if he were pressing compensation and rent reduction claims (T 00:40:45).
4. The transcript records (at T 00:41:40) that the Tribunal member refused to determine the tenant's rent reduction and compensation claims because there was no separate application form filed by the tenant (T 00:40:56).
5. The Tribunal member proceeded to determine the landlord's claim and made orders which finalised the Tribunal proceedings.
6. The tenant has not filed any new proceedings, other than this Appeal.

1. The parties have provided to the Appeal Panel documents which they relied on for the hearing on 12 September 2025.
2. Both parties have also provided submissions and materials for the appeal.
3. The tenant has included with his materials a transcript of parts of the hearing on 12 September 2025. The landlord has not provided a transcript of any part of the hearing. The landlord states in its written submission lodged 25 November 2025 that the excerpts on the tenant's transcript are selective and incomplete and do not accurately represent the full exchange.
4. However, the landlord's agent at the hearing of the appeal agreed that the words recorded by the tenant under the column "Verbatim Quote" on the tenant's transcript was an accurate record of those parts of the hearing.

1. The tenant contends that the Tribunal failed to afford him procedural fairness by failing to determine his rent reduction and compensation claims at the same time as hearing and determining the landlord's termination application, in circumstances where:

(1) The tenant's claims were clearly before the Tribunal in his documents filed on 1 August 2025 and 4 August 2025;

(2) The tenant's claims had been filed by the tenant by the due date ordered in the directions dated 21 July 2025 and as such he had effectively filed his application and it was an error on the part of the Registry not to seek payment of the filing fee;

(3) The directions dated 21 July 2025 provided that the related proceedings would be heard together.

1. The tenant also contends that the Tribunal erred by taking a purely technical approach to his application in deciding not to determine it because it was not on the correct form and the application fee had not been paid.
2. A short summary of the landlord's main submissions:

(1) The decision made by the Tribunal was correct as the tenant had not filed a valid claim;

(2) No formal claim or evidence was filed by the tenant for his claims; nor was the filing fee paid; there was no separate cross claim number;

(3) The Tribunal can not treat informal documents as a formal application where mandatory filing steps have not been completed;

(4) It was the tenant's responsibility to know the Tribunal's procedures;

(5) There was only one set of proceedings before the Tribunal which was the landlord's proceedings;

(6) The Tribunal's refusal was based entirely on jurisdiction;

(7) The Tribunal conducted the hearing fairly;

(8) The Tribunal did not deny the tenant procedural fairness by refusing to determine the tenant's claims at the same time as the landlord's application.

1. An appeal is not an opportunity for the party who was unsuccessful before the Tribunal to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80 (2) of the NCAT Act
3. What is an error on a question of law was extensively discussed by the Appeal Panel in Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. An error on a question of law is an appeal as of right (if established) and does not require leave.
4. Whether there has been a breach of procedural fairness will generally raise a question of law: see YHY v YHZ [2024] NSWCATAP 117 at [23].
5. If there is no error on a question of law, the circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl. 12(1) of Sch. 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

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

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

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

1. The principles regarding leave to appeal a Consumer and Commercial Division decision are set out in Collins v Urban [2014] NSWCATAP.
2. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and subject to natural justice, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided on the appeal and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: see Cominos v Di Rico [2016] NSWCATAP 5 at [13]. This is also consistent with the approach taken by the Appeal Panel in Cusumano at [[27] to [28].

1. The issue on appeal is whether the Tribunal's determination and finalisation of the landlord's termination proceedings without also determining the tenant's compensation and rent reduction claims was an error either on a question of law or for some other reason for which leave is required as set out in cl 12(1) of Sch 4 of the NCAT Act.
2. The tenant's contention is that by refusing to determine his application as lodged on 1 August 2025 he was denied procedural fairness and that the Tribunal's refusal on technical grounds (because the tenant had not filed the correct form nor paid the filing fee) was an error on a question of law.
3. Although the Notice of Appeal seeks leave to appeal, the Appeal Panel considers that the central issue on the appeal raises a question of law and therefore whether leave to appeal should be granted for a reason under cl 12(1) of Sch 4 does not need to be considered, because the appeal is allowed based on an error on a question of law.
4. The tenant's bundle of documents lodged with the Tribunal Registry on 1 August 2025 had a cover page which was a copy of the directions dated 21 July 2025 in the Tribunal proceedings. As noted above, these directions included a direction for the filing of the cross application by the tenant and that the "related proceedings" would be "listed together". This covering document bears the Tribunal stamp to show it (and documents attached to it) were received at the Tribunal's Liverpool Registry on 1 August 2025.
5. The documents contained in the tenant's bundle of documents filed on 1 August 2025 refer to "cross application" in multiple places - in Part 1 which is the cover letter dated 27 July 2025, in Part 2 which is the "Tenancy and social housing application" and in Part 3 which is the "Cross Claim Statement" setting out full particulars of the tenant's claims and reasons.
6. The following claims are included in these documents:

(1) Rent reduction of 25% for loss of amenity from 14 April 2024 to date due to blocking of bath tap;

(2) Rent reduction of 10% from January 2022 to April 2024 for the cracked shower base;

(3) Rent reduction of 10% from 2018 to date for loss of garage space and outdoor area;

(4) Compensation for loss of quiet enjoyment for the period from 14 April 2024 to 12 September 2025 based on the landlord's alleged breaches of s 52 and 63 of the NCAT Act;

(5) Repair order to restore full water access to the bathroom and repair cracked shower base.

1. In the cover letter dated 27 July 2025 (also contained in the tenant's documents filed on 1 August 2025) the tenant writes in the final paragraphs:

I respectfully request that this cross claim be formally accepted and listed together with the original proceedings, as directed by the Tribunal at the last hearing.

Please do not hesitate to contact me if further information is required.

1. The transcript before the Appeal Panel records the Tribunal member asked the tenant if he had filed a claim and then the member states that there was no application from the tenant before the Tribunal. At T:00:40:45 the Tribunal member said:

Mr Lemba, are you seeking compensation, rent reduction and costs? Yes. You haven't even filed a claim. You provided material in response to their termination application ....I have no application from you seeking compensation or rent reduction in any way, shape or form. So I am certainly not considering any rent reduction, compensation, costs arguments in relation to your situation.

1. The next entry on the transcript at T:00:15:26 records the tenant saying that he lodged his claim with the Registry but was not asked to make a payment. The tenant said:

So the day I came to submit my cross claim, I asked the registry if I have to pay. They didn't say to me anything. That's why I just gave everything. That hasn't happened. So it's because I don't have legal representation. So, when I came to lodge my claim, cross claims, I was also ready to make payment, but they just received a file

1. The tenant's transcript is not a complete transcript. Nor does the transcript include the Tribunal member's oral reasons for the termination orders. However, as noted above the landlord's agent confirmed the text of the tenant's transcript to be accurate. The landlord has not lodged for this appeal any transcript for other matters that might have been said at the hearing by the member or either party on this issue.
2. There is no issue that the Tribunal declined to hear and determine the tenant's compensation and rent reduction claims at the hearing on 12 September 2025 for the reason that the tenant had not made his application on the standard form nor paid the prescribed fee and for these reasons there was no separate proceeding filed by the tenant before the Tribunal.
3. The guiding principle of the Tribunal is set out in s 36 of the NCAT Act:

36 Guiding principle to be applied to practice and procedure

(1) The

"guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it--

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal--

(a) a party to proceedings in the Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

(emphasis added)

1. Section 38 of the NCAT Act sets out the provisions of how the Tribunal may determine its own procedures:

38 Procedure of Tribunal generally

(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

..........

(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(5) The Tribunal is to take such measures as are reasonably practicable--

(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b) if requested to do so--to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

1. The tenant contends that the Tribunal erred by refusing to determine the tenant's claims as set out in the documents lodged on 1 August 2025 for technical reasons. The landlord contends that there was no jurisdiction for the Tribunal to determine the tenant's claims when a separate application had not been filed by the tenant on the correct form with payment of the filing fee to generate a new proceeding number.
2. On 1 August 2025 the tenant had provided a form of application in the document titled "Part 2 Tenancy and social housing application" which set out the orders being sought by the tenant were - a rent reduction order, a compensation order, a repair order for water access to be restored, a repair order for a cracked shower base to be repaired.
3. The document headed "Part 3 Cross-claim statement" filed on 1 August 2025 was a detailed 27 page statement, organised into headings, sub-headings and paragraph numbers setting out the details and reasons for a rent reduction order, compensation order and repair orders. The tenant also sets out written submissions in support of the claims, including references to case authorities.
4. Further, In the tenant's document filed on 4 August 2025 being an "Addendum to Cross Claim Statement" the tenant refers to a claim for compensation arising from a reduction in amenity and enjoyment of the premises due to the landlord's construction of a granny flat in the back garden.
5. Both sets of documents filed on 1 August 2025 and 4 August 2025 were filed by the due date of Order 3 dated 21 July 2025, which was 4 August 2025. Order 3 also required a copy of the Orders dated 21 July 2025 to be lodged with the claim, which the tenant complied with.
6. The transcript establishes at T 00:40:46 that the Tribunal member was of the view that no claim had been filed for compensation or rent reduction in "any way, shape or form" and the member said "so, I'm certainly not considering any rent reduction, compensation cost arguments in relation to your situation".
7. The Appeal Panel considers that this finding was not open to the Tribunal as the tenant had filed extensive documents on 1 August 2025 which constituted a form of cross application for rent reduction and compensation orders. The document titled "Part 2 Tenancy and social housing application" in particular sets out the standard information on the prescribed form - place of dispute, type of tenancy, applicant type (tenant), respondent type (landlord), orders and reasons, request for an interpreter (box ticked for French interpreter) and signed by the applicant.
8. The Appeal Panel considers there was substantial compliance by the tenant with Order 3 dated 21 July 2025, and accepts that as the tenant was self-represented this was the reason he was not aware that he would need to pay a filing fee and lodge the application on the standard form in order to generate a proceeding number, which would then be listed with the landlord's proceedings. The directions had not included this information.
9. The Appeal Panel considers that the Tribunal failed to give effect to the guiding principle as set out in s 36(1) of the NCAT Act. It was clear that the rent reduction and compensation claims were real issues in dispute between the parties which had been lodged by the tenant in the proceedings. The Tribunal's refusal to accept the tenant's 1 August 2025 documents as an application, not only meant that the claims were not given a means for determination and resolution but further, the tenant's right to seek these remedies at a future date was prejudiced (as explained below).
10. The Appeal Panel also considers that the Tribunal's refusal to accept the tenant's claims as an application was a failure to act in accordance with 38(4) of the NCAT Act.
11. The Appeal Panel considers the following circumstances of this case are relevant for purpose of s 38(4):

(1) Once the tenancy was terminated by the Tribunal on the landlord's application, there was no jurisdiction for the Tribunal to determine a new claim filed by the tenant for a rent reduction order for withdrawal of services and facilities under s 44(1)(b) of the RT Act, as s 44(3) of the RT Act requires such a claim to be filed before the end of the tenancy. Therefore the tenant lost the right to bring a rent reduction claim once the tenancy was terminated.

(2) A compensation claim may be filed after the tenancy has terminated, but it is subject to a time period:

S 190(1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations.

(3) The prescribed time limit is 3 months: reg 39(9) of the Residential Tenancies Regulation 2010);

(4) By refusing to accept the tenant's application, the tenant's remedy would be to file a new application, however this delay (from 1 August 2025 to 12 September 2025) is likely to have had some impact on the remedy available to him;

(5) Although a party may seek leave to extend the time for filing under s 41 of the NCAT Act, whether an extension is granted or not is discretionary and depends upon a number of principles (Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22).

1. The Appeal Panel is satisfied that the Tribunal breached its statutory obligations set out in ss 36(1) and 38(4) by refusing to accept the tenant's claims in the documents lodged on 1 August 2025 as an application to be heard with the landlord's application. These breaches were errors on a question of law.
2. The Appeal Panel considers that these errors were material to the Tribunal's decision, in the sense that there is a realistic possibility that the outcome could have been different for the tenant if the error shad not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT) at [6]-[7].
3. If the Tribunal had acted in accordance with the guiding principle set out in s 36(1) and with less formality as required by s 38(4) by accepting the documents which the tenant had lodged on 1 August 2025 as an application, then the decision could have been different because the Tribunal would not have finalised the proceedings before accepting the tenant's claims as an application.
4. Examples of other procedural options which were available to the Tribunal were:

(1) The Tribunal could have accepted the documents lodged on 1 August 2025 as an application and granted a short adjournment to allow time for the tenant to pay the filing fee at the counter of the Registry. The Tribunal could have then proceeded to hear the tenant's application with the landlord's termination application.

(2) Alternatively, if the Tribunal considered that there was insufficient time to also hear the tenant's application, the Tribunal could have accepted the documents lodged on 1 August 2025 as the tenant's application, made a direction for payment of the filing fee within a specified period and adjourned the tenant's application to a further date for hearing, but still determined the landlord's termination application on 12 September 2025.

1. Either of these options would have preserved the tenant's right to seek a rent reduction claim under s 44(1)(b) and also preserved the time period for filing the compensation claim as set out in s190 of the RT Act.
2. The Appeal Panel is satisfied that the appeal should be allowed in part. The balance of the appeal with respect to Orders 1-5 was withdrawn.
3. The Appeal Panel orders:

(1) Appeal allowed in part.

(2) Proceedings 2025/00252965 are remitted to the Consumer and Commercial Division of the Tribunal for determination of the appellant's claims for a rent reduction order and compensation order as if lodged on 1 August 2025 with such further or other evidence as the Tribunal grants leave to rely upon and provided that the appellant pays the prescribed filing fee for a residential tenancy application within 21 days of the date of these orders.

(3) The balance of the appeal with respect to Orders 1-5 dated 12 September 2025 in proceedings 2025/00252965 is dismissed under s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) as it was withdrawn.

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.