Lin v Westerman

Bannister v Chueng [2014] NSWCATCD 105

Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734

Boreland v Brewis [2024] NSWCATAP 140

Chalik v Chalik [2025] NSWCA 136

Collins v Urban [2014] NSWCATAP 17

Cominos v Di Rico [2016] NSWCATAP 5

Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51

Donohoe v Alburario [2025] NSWSC 9

Ellery v Commissioner of Police, NSW Police Force [2023] NSWCATAP 237

Higgins v Commissioner of Police NSW Police Force [2025] NSWCATAP 31

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32

McNeill v Clarence Valley Council [2025] NSWCATAP 184

Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Orr v Cobar Management Pty Ltd [2020] NSWCCA 220

Pholi v Wearne [2014] NSWCATAP 78

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

Roberts v Aboriginal Housing Office [2017] NSWCATAP 9

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

Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31

Starr v Johnson [2023] NSWCATAP 190

Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416

Thomas and Naaz [2023] NSWCA 40

TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178

Touma v Colantuono [2021] NSWCATAP 152

Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204

Wollondilly Shire Council v Styles [2024] NSWCATAP 104

Yang v NSW Land and Housing Corporation [2016] NSWCATCD 37

Young v Chief Executive Officer (Housing) (2023) 278 CLR 208; [2023] HCA 31

1. This is an appeal from a decision of the Tribunal dated 27 February 2025 involving a dispute under the Residential Tenancies Act 2010 (NSW) (RT Act).
2. In this appeal, any reference to "the landlord" is a reference to the appellant. Any reference to "the tenant" is a reference to the respondent.
3. The tenant brought proceedings against the landlord seeking compensation under s 187(1) of the RT Act by reason of the condition of the premises. The critical issue was mould in the premises that caused damage to the tenant's goods and belongings.
4. The tenant also brought separate proceedings in respect of the period of notice she had given to the landlord to move out of the premises.
5. The parties entered into a residential tenancy agreement in November 2023. The premises is a dual occupancy free standing house. The rent payable was $650 pw.
6. The tenant's Tribunal proceedings filed on 30 August 2024 alleged a "significant mould infestation" at the residence, which had not been repaired despite requests by the tenant. The tenant alleged that she and her family had been "forced to leave" the residence due to mould and were staying at a motel. The tenant alleged that mould had caused significant damage to her personal belongings and had deleteriously affected her health and the health of her son. The tenant sought compensation of over $26,000.
7. After a procedural history it is unnecessary to detail, the proceedings were set down for a special fixture hearing on 25 February 2025.
8. The hearing proceeded on 25 February 2025. The landlord made repeated unsuccessful applications to have the hearing adjourned. The landlord also made repeated asserts that she had not been served documentary evidence by the tenant. The Senior Member did not accept the landlord's assertion that she had not been served with the documents of the landlord.
9. The Tribunal dealt with the issue of the notice period provided by the tenant first and then moved onto the claim by the tenant for damages or compensation due to mould damaged goods and belongings.
10. The landlord has not appealed the orders of the Tribunal regarding the finding about the period of notice to vacate the premises given by the tenant. Her appeal is in respect of the order that she pay the tenant $15,000.

1. The Tribunal awarded the tenant compensation of $15,000. $15,000 is the relevant maximum jurisdictional amount, exclusive of any bond order (s 190 RT Act and Regulation 40 of the Residential Tenancies Regulation 2019 (NSW) (RT Regulation). The Member's reasons stated the tenant agreed to limit her claim to the amount of $15,000.
2. The Senior Member noted the proceedings had an "extensive pre-trial history," with a hearing adjourned on 26 September 2024 and "detailed orders for the filing and service of evidence". The procedural directions made on 26 September 2024 were subsequently extended.
3. The Senior Member stated that the tenant had "complied with the orders of the Tribunal for the filing and serving her evidence on the (sic) 15 October 2024.
4. The landlord did not serve any evidence by 29 October 2024. That procedural timetable was extended to 28 January 2025. The landlord did not comply with that procedural timetable obligation.
5. At 4.00 pm on Friday 14 February 2025, the landlord sent an email to the Tribunal containing documentary evidence. That was followed by three further emails on Sunday 16 February 2025. The Senior Member stated that notwithstanding the documents of the landlord were filed and served late (and in very close proximity to the hearing), those documents were admitted into evidence.
6. The landlord did not obtain an expert report. The tenant's evidence contained an expert report by Mr Oliver, which the Senior Member described as a "mould report." The landlord sought an adjournment to obtain an expert report. The Tribunal refused that adjournment application. According to the Senior Member, oral reasons were given for the refusal of the adjournment application.
7. The Senior Member stated that the hearing proceeded; both parties gave evidence and both parties were able to question or be questioned by the other party.
8. The reasons state that the evidence the tenant was relying upon included the report of Mr Oliver. Mr Oliver's report "showed among other things, the cause of the mould was inadequate sub-floor ventilation."
9. The Senior Member referred to other evidence of the tenant. Photographic evidence was provided of mould in the premises and mould damage to property of the tenant. The tenant also provided "a list of items and prices on marketplace."
10. The Senior Member stated that the landlord did not take issue with the costings of the tenant in respect of the property of the tenant that was mould damaged. Rather, the position of the landlord was: (a) there was extensive rain during the period of the tenancy; (b) the windows of the premises were large and there should have been adequate ventilation; and (c) the previous and subsequent tenants of the landlord had not complained of mould.
11. The Senior Member found that rain was not the cause of the mould. Rather, it was caused by inadequate sub-floor ventilation. The lack of complaints by former and subsequent tenants "did not advance" the landlord's case because their evidence was brief and they were not available for cross examination.
12. The Senior Member found that no actions of the tenant caused the mould and repeated the finding that the cause was "inadequate sub-floor ventilation." The Senior Member accepted the evidence of the tenant on the damaged personal goods and belongings, having stated the tenant provided "comparable prices for damaged items." The Senior Member found that the "value of those items exceeds the jurisdictional limit," but awarded the tenant the jurisdictional limit amount of $15,000.
13. The tenant had made clear in the Tribunal proceedings that she did not seek to have the matter transferred to the Local Court, and acceded to the monetary jurisdiction of the Tribunal.

1. The landlord filed a Notice of Appeal on 7 March 2025. The appeal has been filed within the requisite time period under Reg. 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. No application for a Stay of the Tribunal money order was made by the landlord.
3. The Appeal Call Over occurred on 2 April 2025. The appeal was set down for hearing, with procedural directions made.

1. The Notice of Appeal identifies the grounds as follows:

"1. We (sic) have not received the documents of (the tenant) before hearing.

2. (The tenant) did not request $15,000. She said whatever amounts.

3. The mould issue due to weather, and this property had no mould issues in over 20 years.

4. Tenants are responsible for maintaining the property, which includes ensuring windows are opened regularly for ventilation.

5. The furniture with mould should be cleaned rather than discarded unnecessarily.

6. We(sic) do not agree to make the payment, as advised by Fair Trading.

7. Member didn't consider situation, just easily made order $15,000. What is this money for? Why he agree tenants through (sic) away furniture and ask Landlord to pay? Why furniture can't be cleaned? Member didn't work fairly."

1. The Notice of Appeal also seeks leave to appeal. The landlord assert the decision was not fair and equitable, because there was heavy rain; the landlord inspected the property in August 2024 and only saw mould behind a bookcase; the premises had been renovated before the tenants moved in; previous tenants had not complained of mould; and current tenants are "very happy" with the premises.
2. The landlord asserts the decision was "against the weight of evidence" because the tenant had filed two separate proceedings in the Tribunal, which caused "confusion."
3. The landlord asserted the Tribunal did not give sufficient weight to the evidence of the "previous tenants who loved the house for 15 years" and an email from the current tenant who stated she was "happy". The landlord asserts the Tribunal did not consider her evidence, which was sent late because she was overseas. The landlord refers to alleged health issues of the landlord. The landlord claimed she had not been served documentary evidence from the tenant.
4. In respect of fresh evidence that was not put before the Tribunal, the landlord refers to "mould inspection reports;" "feedback from new tenants;" "statements from previous tenants" and "advice from Fair Trading.

Documents and Submission of the Landlord in the Appeal

1. The landlord filed a bundle of documents and submissions on 29 May 2025.
2. The landlord's documents included a "submission" and a "statement" by her which also contained submissions (i.e. her argument in support of the appeal).
3. The landlord submitted that:

(1) She had not been served with the tenant's documents and did not have sufficient time at the commencement of the hearing to read and comprehend them.

(2) The landlord had "repeatedly" requested an adjournment.

(3) The landlord was "confused" by (a) the tenant having two sets of proceedings; and (b) the landlord's medical conditions.

(4) The tenant "relied on a report from Inspecta Homes Building Consultants" which reported "mould in one bedroom behind a bookcase." The landlord inspected the premises on 22 August 2024 and did not see any other mould than the mould behind the bookcase. The bookcase had "blocked airflow."

(5) The premises was freshly painted and had a new kitchen before the tenant moved in.

(6) The landlord had obtained fresh reports. One report was by "Mould Men" dated 13 March 2025. The second report was from Mr Nour, a building inspector of "Building Inspection Services" dated 26 May 2025.

1. The landlord's appeal documents also included brief statements from the tenants who had moved into the property in October 2024; an extract from the Bureau of Meteorology for rainfall; a copy of the written residential tenancy agreement with the tenant; a transcript of the hearing on 25 February 2025; a sound recording of the hearing; and various medical reports and medical certificates in respect of the landlord.

Documents and Submissions of the Tenant in the Appeal

1. The tenant filed and served a 6-page written submission on 9 July 2025.
2. The tenant submitted that the tenant has served her documentary evidence on the landlord in accordance with Tribunal directions; the landlord had served late evidence; the Tribunal made no error in refusing the landlord's adjournment application; and the landlord had a reasonable opportunity to present her case at the hearing.
3. According to the tenant, she had served an expert report of Mr Oliver that showed there was "structural issues" with the house. She has provided photographic evidence of mould in the premises. The mould was significant, and had damaged the tenant's goods and belongings. The tenant has properly ventilated the premises. The tenant's mould damaged property included "mattresses, lounges and soft furnishings" which could not be salvaged and had to be disposed of. The tenant opposed the landlord's fresh evidence, which the landlord had the opportunity to obtain and submit prior to the Tribunal hearing.
4. The tenant did not provide a copy of the documents she relied upon at the hearing in the appeal. Direction 2(a) of the Appeal Panel dated 2 April 2025 at the appeal Call Over makes clear that the tenant was to provide in the appeal the documentary evidence that was provided to the Tribunal. Irrespective of whether or not the tenant understood that obligation, the upshot is that we were not provided with the documentary evidence of the tenant at the Tribunal hearing, including the expert report of Mr Oliver and any reports of mould by the tenant to the landlord during the course of the tenancy.

1. Both parties appeared at the appeal hearing and made submissions. An interpreter assisted the landlord.

1. 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 Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
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. A mixed error of fact and law (if established) requires leave to appeal.
4. In Cusumano at [33], the Appeal Panel stated the categories of questions of law are "not closed"; and at [37] stated:
5. 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.
6. It is unnecessary for the purpose of this decision to set out all of the examples of an error on a question of law that were discussed in Cusumano.
7. However, a question of law may arise in the circumstances including the following:

(1) Failure to provide procedural fairness at the hearing (Donohoe v Alburario [2025] NSWSC 9 at [36]- [39]; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [41] (Gleeson CJ), [142] (Kirby J) and [170] (Hayne J).).

(2) No evidence at all to support a factual finding (Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32).

(3) Absence of the jurisdictional power to make an order (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57; at [163] (Hayne J))

(4) A constructive failure to exercise jurisdiction, including a failure to consider a "substantial, clearly articulated argument relying upon established facts" that was within the jurisdiction of the Tribunal to determine (see e.g. Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]- [12] and [413]; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [1] and [9]).

(5) Applying the wrong legal principle (in isolation to the factual findings) which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 (Bimson) at [38]-[53]). However, the wrong application of the correct legal principles to the facts is an error of mixed fact and law for which leave to appeal is required under s 80(2)(b) of the NCAT Act (TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178 at [42]- [43] and the authorities cited therein).

1. 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:

(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 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of Cl. 12(1) of Sch. 4 may have been suffered where:

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

1. Even if the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (Pholi v Wearne [2014] NSWCATAP 78 at [32]).
2. Ordinarily it is only appropriate to grant leave in matters involving issues of principle or questions of public importance which might have general application, 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 (Collins v Urban at [84]).
3. 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]). This, however, is subject to procedural fairness considerations to the other appeal parties to ensure the appeal hearing is conducted fairly (Chalik v Chalik [2025] NSWCA 136 at [66]- [72]; McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [185]- [188]). Further, the Appeal Panel is not required to "second guess the question of law the appellant is endeavouring to raise" (YJC v NSW Trustee and Guardian [2025] NSWCATAP 224 at [22]).

1. In the Notice of Appeal, the landlord identifies as a ground of appeal that she did not understand why the Tribunal awarded the tenant $15,000.
2. In our view, having regard to the written reasons of the Tribunal, this raises a ground of appeal that the reasons were inadequate.
3. Whether reasons are sufficient at law may, or may not, raise a question of law. Question of fact and, generally, mixed questions fact and law do not constitute questions of law: Wollondilly Shire Council v Styles [2024] NSWCATAP 104 (Styles) at [23]. A question of law does not depend on facts not found by the decision-maker whose decision is the subject of the appeal: Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 at [48], [109].
4. Depending on the particular circumstances of the appeal, inadequate reasons may, or may not, constitute an error on a question of law giving an appeal as of right, or constitute an error of mixed fact and law that requires leave to appeal (Styles at [31]-[32]; Higgins v Commissioner of Police NSW Police Force [2025] NSWCATAP 31 at [15]; Ellery v Commissioner of Police, NSW Police Force [2023] NSWCATAP 237 at [17]; Starr v Johnson [2023] NSWCATAP 190 at [48]).
5. In this matter, the reasons provided by the Tribunal do not meet the "minimum characteristics" for sufficiency identified in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [65]- [77].
6. The reasons of the Tribunal make the following relevant findings:

(1) There was mould in the premises during the course of the tenancy.

(2) The cause of the mould was inadequate sub-floor ventilation.

(3) The actions or inactions of the tenant did not cause the mould.

(4) The mould damages the tenant's goods and belongings.

(5) The tenant had sufficiently proved the value of the damaged goods and belongings to establish a loss of $15,000.

1. However, the reasons do not identify any findings that the landlord had breached its obligation to provide premises fit for habitation (s 52 of the RT Act); or maintain premises in a reasonable state of repair having regard to the age of the premises, expected life of the premises and rent payable for the premises (s 63 of the RT Act). In respect of the duty to repair, the landlord is not in breach unless the Tribunal is satisfied that the landlord was, or should reasonably have been, on notice of the need to repair, and had failed to act with reasonable diligence to conduct the repairs (s 65(3)(b) and (3A) of the RT Act).
2. The reasons also fail to address the applicable limitation period to commence proceedings in the Tribunal. If a claim for damages or compensation is made under ss 187(1) and 190 of the RT Act, that claim is subject to applicable limitation provisions in Reg 39(9) of the Residential Tenancy Regulation 2019 (NSW) (RT Regulation). That limitation period can be extended under s 41 of the NCAT Act.
3. It is well established that mould in residential premises can constitute a breach of the obligation to provide premises which are fit for habitation under s 52, and additionally the obligation to repair under ss 63 and 65 of the RT Act (Bannister v Chueng [2014] NSWCATCD 105 at [10]- [21]; Roberts v Aboriginal Housing Office [2017] NSWCATAP 9 (Roberts) at [115]- [119]; Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361 at [144]- [153]; [170]; [187]).
4. However, the mere existence at any point in time of mould in premises does not give rise to liability of the landlord (Roberts at [119]). The obligation to repair under ss 63 and 65 does not involve identical considerations as to whether the premises are fit for habitation under s 52 of the RT Act (Mulcair v Callum [2024) NSWCATAP 30 at [34]). Separately to the obligations under ss 52 and 63 of the RT Act, the existence of mould may give rise to a breach of the duty to provide quite enjoyment under s 50 of the RT Act (Roberts at [120]).
5. In this matter, the tenant gave oral evidence at the hearing that there was significant mould in the premises that affected her health; the health of her son; and damaged her goods and belongings sufficiently that she disposed of them. The oral evidence of the landlord was that she had inspected the premises on one occasion, and only saw mould behind a bookcase. There was no clear oral evidence as to when the tenant complained to the landlord about mould or sought repairs. As discussed previously, we do not have the documents before us in the appeal that the tenant relied upon at the Tribunal hearing.
6. In the absence of any findings by the Tribunal that the landlord had breached her obligations under the RT Act (in particular, the provisions of, ss 52, 63 and 65 of the RT Act) and a finding that the proceedings have been brought within time under s 190 of the RT Act and Regulation 39(9) of the RT Regulation (or that time has been extended under s 41 of the RT Act) the finding that the landlord is liable to pay the tenant damages or compensation under s 187(1) of the RT Act for breach of the agreement lacks a foundational basis.
7. In Alexandria Landfill, Basten JA stated at [6]:

"The premise underlying a "constructive" failure to exercise jurisdiction is that there has been an apparent exercise of the jurisdiction of the court, but one that has failed in a way which can only be teased out by reference to the underlying issues and the materials presented to the court. It may then be demonstrated that a material issue presented for determination has not been resolved. By contrast, a failure to give adequate reasons implies that the relevant issues have been identified, addressed and resolved, but the reasons for reaching the conclusion have not been adequately expressed."

1. The failure to make critical legal findings that the landlord had breached her legal obligations to the tenant is a constructive failure to exercise jurisdiction. In simple terms, the Tribunal made findings regarding assessment of compensation for breach of the landlord's duty, but no findings (either explicit or implied) that the landlord was in breach of her duties under the RT Act. Nor were there any findings that the proceedings had been brought within the applicable limitation period, or that the limitation period should be extended.
2. An error on a question of law is established and the appeal is allowed in part.
3. The error on a question of law is limited to whether the proceedings were within time, and whether the landlord was in breach of her duties under the RT Act. As an error of law has been established, it is unnecessary to deal with grounds requiring leave to appeal.
4. However, no other grounds of appeal are established.
5. We are not satisfied that there was any denial of procedural fairness to the landlord (Boreland v Brewis [2024] NSWCATAP 140 at [59]- [64]). We are not satisfied that there was any error on a question of law in respect of the Tribunal refusing the landlord's adjournment application (Touma v Colantuono [2021] NSWCATAP 152 at [56]- [58]).
6. The landlord had a reasonable opportunity to put documentary evidence before the Tribunal. In the appeal, she has provided an expert report on the condition of the premises. In the remitted matter, it will be for the Tribunal to determine whether or not she is granted leave to rely on this report.
7. We are not satisfied it is appropriate that the landlord have a further opportunity to challenge findings on the existence of mould in the premises; that the mould caused damage to the tenant's goods and belongings; or that the quantum of the tenant's damages or compensation is $15,000.
8. No error is established in respect of the Tribunal's finding that the landlord was served with the tenant's documentary evidence.
9. No error is established in respect of the quantification of loss. That was based on the documentary evidence of the tenant. The tenant had provided documentary evidence to establish the cost of equivalent replacement goods. Although the reasons of the Tribunal are brief, the landlord provided no documentary evidence to challenge the tenant's evidence. The Tribunal found that the landlord did not "take issue" with the evidence of comparable replacement cost of goods and belongings at the hearing.
10. In respect of assessment of damages for breach of contract, if there is sufficient evidence to establish loss (beyond a mere guess, or where no rational foundation has been established) a Court or Tribunal must do its best to make a reliable assessment of damages even if is difficult to do so and a party has not provided the best evidence (Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 at [41]- [42] and the authorities referred to therein). Principles applicable to mould or water damaged items, including depreciated values, were discussed in Yang v NSW Land and Housing Corporation [2016] NSWCATCD 37 at [58]- [71].
11. Section 187 of the RT Act states:

187 Orders that may be made by Tribunal

(1) The Tribunal may, on application by a landlord or tenant or other person under this Act, make one or more of the following orders-

...

(c) an order for the payment of an amount of money,

(d) an order as to compensation

...

(2) Without limiting the Tribunal's power to make an order for compensation, the Tribunal may order compensation to be paid for the following:

(a) loss of rent,

(b) any other breach of a residential tenancy agreement,

...

1. In Young v Chief Executive Officer (Housing) (2023) 278 CLR 208; [2023] HCA 31, Kiefel CJ, Gageler and Gleeson JJ stated in the context of the power to order "compensation for loss or damage" due to failure to comply with the agreement or the Act in s 122 of the Residential Tenancies Act 1999 (NT) at [24]-[25]:

**"**It is consonant with the legislative objective of ensuring that landlords and tenants are provided with suitable mechanisms for enforcing their rights under tenancy agreements to recognise that s 122 leaves such remedies as may be available to landlords and tenants at common law or in equity untouched and provides an additional mechanism by which landlords and tenants can obtain from the Tribunal statutory compensation the measure of which is provided by the Act itself. Double recovery is avoided by the requirement of s 122(3)(c) that any money that may have been recovered by way of compensation must be taken into account by the Tribunal in determining whether to order compensation under s 122(1).

The language and structure of s 122(1)(a) provides no basis for differentiating in principle between the evaluative judgment to be made by the Tribunal in determining the existence and extent of compensable loss or damage suffered by an applicant because the other party has failed to comply with an obligation imposed as a term of a tenancy agreement, on the one hand, and the evaluative judgment to be made by the Tribunal in determining the existence and extent of compensable loss or damage suffered by an applicant because the other party has failed to comply with an obligation imposed directly by force of the Act in relation to a tenancy agreement, on the other hand. To adapt language drawn from judicial descriptions of the evaluative judgments required to be made in determining statutory compensation in other statutory contexts , the task of the Tribunal in each case is to arrive at a measure of compensation which conforms to the purposes of the Act and to the justice and equity of the case, having regard to the nature and purpose of the particular obligation with which there has been failure to comply and taking into account each of the mandatory considerations specified in s 122(3)."

1. In this matter, on the evidence available it was open to the Tribunal to assess the compensation payable to the tenant as $15,000. We regard it as inappropriate in the circumstances of this appeal for the remitted matter to include redetermining the amount of compensation to the tenant. Rather, the remitted proceedings are limited to the following issues:

(1) Whether the proceedings have been brought within the limitation period in s 190 of the RT Act and Reg. 39(9) of the RT Regulation, and if not, whether the time period to commence Tribunal proceedings should be extended under s 41 of the NCAT Act; and

(2) If proceedings are within time whether the landlord has breached any of her obligations under the RT Act that have caused mould in the premises.

1. If the answer to questions 1 and 2 are "yes", then the tenant is to be awarded $15,000. If the answer to either question 1 or 2 is "No" then the tenant's claim must be dismissed.

(2) Order 1 of the Tribunal dated 27 February 2025 is set aside.

(3) The proceedings are remitted to the Tribunal to determine the issues set out in paragraphs [78]-[79] of the Appeal Panel's reasons, on the basis of the same documentary evidence that was before the Tribunal or any fresh documentary evidence that the Tribunal grants leave to rely upon.

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.