Martin v Hancock

1. The dispute involves a two-bedroom cabin which is a secondary dwelling or "granny flat" on a block of land which also houses the landlord's residence (the premises).
2. In early 2024 the parties entered an oral agreement for the rental of the premises. It was agreed that the rent payable would be $500 per week and that a bond of $1000 would be paid in advance. There was no written agreement. The tenants moved into the premises in March 2024.
3. In May 2024 a dispute arose regarding liability for electricity costs, which resulted in the landlord disconnecting the electricity supply to the premises on or about 22 July 2024.
4. The tenants commenced proceedings in the Tribunal on 23 July 2024. The history of the proceedings is set out in some detail later in these reasons. In short, by the time the matter came before the Tribunal for a final hearing in December 2024, the tenants had moved out of the premises and the nature of the relief they sought had changed.

1. To succeed in an appeal, the landlord must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
2. The grounds of appeal are as follows:

(1) Whether the Tribunal lacked jurisdiction under the Act to make the orders sought;

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

(3) Whether there was no evidence to found findings of fact.

1. The principles applicable to determining whether a ground of appeal raises an error on a question of law were summarised in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204. Applying those principles, we are satisfied that the above grounds involve errors on questions of law for which leave to appeal is not required.

1. Subrule 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules) is as follows:

(4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged -

(a) in the case where the enabling legislation specifies the period within which the appeal is to be made - within the period specified, or

(b) in the case of an internal appeal against a decision made in residential proceedings - within 14 days from the day on which the landlord was notified of the decision or given reasons for the decision (whichever is the later), or

(c) in any other case - within 28 days from the day on which the landlord was notified of the decision to be appealed or given reasons for the decision (whichever is the later).

1. These are residential proceedings and therefore the appeal was required to be lodged within 14 days from the day on which the landlord was notified of the decision.
2. The Tribunal file reflects that a copy of the notice of order (which included reasons for decision) was emailed to the parties on 30 January 2025. If the landlord was notified of the decision on that day, then the notice of appeal, which was lodged on 26 February 2025, was 13 days out of time. However, the landlord asserts that due to an internet outage in her local area, she was first notified of the decision on 6 February 2025. If that is correct, then the appeal was lodged six days out of time. Given that in either case the landlord requires an extension of time, and that the difference between the two periods of delay is sufficiently minor as to have no material effect on our decision, it is not necessary to analyse the service provisions of the Rules and their interaction with the Electronic Transactions Act 2000 (NSW) so as to reach a determinative conclusion as to the date of notification.
3. Section 41 of the NCAT Act provides the Tribunal with a discretion to extend time. Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 identifies the relevant principles at [19] - [20]. Of relevance is the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences for the parties of the grant or refusal of the extension, the prospects of the appeal and prejudice to the respondent. Before exercising the discretion to extend time, the Appeal Panel must be satisfied, on the material before it, that not to extend time would work an injustice.
4. The landlord submits in summary:

(1) There is no mobile telephone reception at her premises and due to a Telstra outage in her area, she had no internet or land line service from 23 January to 14 February 2025. This affected her ability to access the Tribunal decision and to prepare the notice of appeal.

(2) She only became aware of the decision when, on 6 February 2025, she accessed her email account using internet services available at a local library.

(3) She mistakenly believed after speaking with an NCAT staff member that she had 28 days in which to lodge her appeal. It was only after her internet connection was restored and she consulted the NCAT website, that she became aware that the time frame was 14 days for residential proceedings. She then took steps to lodge the appeal as promptly as possible.

1. The landlord has provided documentary evidence in relation to the internet outage, including a screen shot of a Telstra notification referencing a "home internet outage" which commenced 23 January, screen shots of text messages from Telstra dated 14 February referring to restoration of service, and screen shots from a Facebook chat group dated 10 February 2025 in which members of the chat group discuss an internet outage.
2. The tenants contend that there is no evidence of any injustice to the landlord should strict compliance with the time limitation be enforced, and that therefore the discretion to extend time does not arise. They say in any event the discretion should not be exercised in favour of the landlord as the landlord's reason for the delay is inadequately explained, and her prospects of success on appeal are poor. The tenants concede that the length of the delay is not substantial. Other than referring to the vested right of a successful party to retain the benefit of the orders subject to any extension of time (Gallo v Dawson [1990] HCA 30 at [2]), the tenants have identified no prejudice to them resulting from the delay.
3. For the reasons that follow we are satisfied that strict compliance with the rules will work an injustice against the landlord. Even assuming the notice of appeal was lodged 13 days out of time, the delay is not significant. This is acknowledged by the tenants. Further, having considered the various documents relied upon by the landlord in the appeal, we accept that the landlord's premises were affected by a local area internet outage between 23 January and 6 February 2025, and that this affected her ability to access the Tribunal's decision, and to prepare her notice of appeal.
4. We also accept the landlord's explanation that she initially misunderstood the applicable time frame for lodging the appeal and that once she became aware of the error, she took steps to lodge the appeal reasonably promptly. In circumstances where the landlord is unrepresented, we are satisfied that she has provided a reasonable explanation for the delay.
5. On balance, since the delay is relatively insignificant and reasonably explained, no relevant prejudice has been claimed, and the appeal cannot be said to have no prospects, we have decided to extend time to lodge the appeal until 26 February 2025.
6. We turn now to the grounds of appeal.

Did the Tribunal have jurisdiction under the Residential Tenancies Act 2010 (NSW)?

1. The landlord argues that the Tribunal lacked jurisdiction to hear and determine the matter, and that it erred by making an order under s 11 declaring that the parties' arrangement was a residential tenancy agreement for the purposes of the Act. She says, in essence, that there was no residential tenancy agreement governed by the Act because the parties' arrangement was an "informal" or "private" agreement and that the parties had agreed not to be bound by the Act. She also says that the Act applies only to companies and government bodies, and not to individuals.
2. The landlord's submissions are misconceived for the reasons explained below.

1. The Act largely codifies the law relating to residential tenancies in New South Wales. It contains a comprehensive legal framework for residential tenancy arrangements in the state. The relevant provisions of the Act are as follows.
2. Pursuant to s 6, the Act applies to "residential tenancy agreements" in respect of "residential premises".
3. Section 13 defines what is a residential tenancy agreement. It is in the following terms:

13 Agreements that are residential tenancy agreements

(1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence.

(2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing.

(3) An agreement may be a residential tenancy agreement for the purposes of this Act even though:

(a) it does not grant a right of exclusive occupation, or

(b) it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities.

Note. See section 8 for agreements that are not covered by this Act. Section 7 sets out premises not covered by this Act.

1. The term "person" is not defined in the Act but, pursuant to s 21(1) of the Interpretation Act 1987 (NSW), "person" includes an individual, a corporation and a body corporate or politic. The Interpretation Act applies to all Acts and instruments unless the contrary intention appears in the Interpretation Act or in the Act or instrument concerned: s 5(1)-(2).
2. Section 3 of the Act defines residential premises as follows:

residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence.

1. There are a number of exceptions and carve-outs to these definitions in Division 2 of Part 1 of the Act. Section 7 lists premises to which the Act does not apply. Section 8 lists agreements to which the Act does not apply. Section 10 provides that in certain situations, occupants in shared households are not tenants for the purposes of the Act. Subsection 9(3) contains a limited carve-out for certain employment arrangements.
2. Under s 219 of the Act it is an offence, carrying a maximum penalty of 20 penalty units, to attempt to contract out of the Act. Pursuant to s 219(1) a term of any residential tenancy agreement, contract or other agreement is void to the extent that it purports to exclude, limit or modify the operation of the Act or the regulations or has the effect of excluding, limiting or modifying the operation of this Act or the regulations. Subsection 219(2) prohibits a person from entering into any contract or other agreement, with the intention, either directly or indirectly, of defeating, evading or preventing the operation of the Act or the regulations.
3. The Act gives the Tribunal a broad range of order-making powers in connection with residential tenancy agreements, including, relevantly the power to make: money orders (s 187(1)(c)); orders for compensation for breach (s 187(1)(d) and s 187(2)); and orders for payment of rental bonds (s 175).
4. Section 11 of the Act empowers the Tribunal to make an order declaring that a specified agreement is, or is not, a residential tenancy agreement to which the Act applies or that specified premises are, or are not, premises to which the Act applies.

1. In this appeal it is not in dispute that there was an oral agreement between the parties, all of whom are individuals, pursuant to which the landlord granted to the tenants, for value, a right of occupation of premises used or intended to be used as a residence. Thus, the parties' arrangement fell within the definition in s 13 of the Act.
2. The only remaining issue is whether the Act does not apply to the parties' agreement because any of the exceptions in Division 2 of Part 1 of the Act applied to the agreement or to the premises.
3. In its reasons for decision the Tribunal relevantly found at [53] that:

(1) The premises were stand-alone and separate from any other building on the property.

(2) There were no other boarders or lodgers at the premises.

(3) There were no shared facilities such as a communal living room, bathroom, kitchen or laundry.

(4) There were no rules dictating how these facilities ought to be shared.

(5) The private kitchen and bathroom facilities were only for use by the tenants.

(6) The tenants had sole possession of the premises.

(7) There were rules relating to driving on gravel areas and playing of loud music but these only related to enjoyment of the two distinct premises on the property - there were no "house rules" applying to the premises.

1. None of these findings have been challenged in the appeal. Although not expressly stated by the Tribunal in its reasons for decision, we understand the Tribunal to have made these findings for the purposes of determining whether s 8(1)(c) applied to the agreement. Pursuant to s 8(1)(c) the Act does not apply to "an agreement under which a person boards or lodges with another person".
2. For an occupant to be a boarder or lodger the owner "must remain in possession and retain his quality as master of the house, reserving to himself the general control and dominion over the whole, although he may have agreed to give to the other exclusive enjoyment of the occupation of part": Pupuke v Stratford [2016] NSWCATAP 7 at [23]; Shapkin v The University of Sydney [2023] NSWCATAP 2 at [90].
3. The facts found by the Tribunal are inconsistent with a finding that the owner of the premises remained in possession and retained the quality of "master of the house". Indeed, nothing in the materials which have been provided to the Appeal Panel would support such a finding. Thus, the exception in s 8(1)(c) did not apply to the parties' arrangement. There was no evidence before the Tribunal, and the landlord did not suggest, that any of the other carve-outs in s 8 applied to the parties' agreement, that any of the carve-outs in s 7 applied to the premises, or that s 9 or 10 of the Act were applicable.
4. Whether or not the parties intended to be bound by the Act is irrelevant. To the extent that the parties purported to exclude, limit or modify the provisions of the Act, any such term was void: s 219.
5. For these reasons we see no error in the Tribunal's conclusion that the oral agreement between the parties was a residential tenancy agreement governed by the Act, or in its decision to make a declaration to this effect under s 11 of the Act. The Tribunal had jurisdiction to hear and determine the tenants' claim.
6. Accordingly, this ground of appeal fails.

Was there a failure to afford procedural fairness?

1. It is helpful to set out an overview of what happened prior to and during the Tribunal hearing on 16 December 2024.
2. On 23 July 2024 the tenants commenced proceedings in the Tribunal seeking an "order to restore electricity to my house, and explore the possibility of reimbursement as the electricity has been purposely switched off for over 24 hours".
3. At a conciliation and group list hearing on 6 August 2024, the Tribunal adjourned the matter to be heard at a future time, and made procedural directions for the filing and serving of evidence and submissions. By that time the tenants had vacated the premises and therefore no longer sought a specific performance order regarding the electricity connection. The directions made by the Tribunal on that date included a requirement that the tenants file and serve their evidence by 21 August 2024, and that the landlord file and serve her evidence by 4 September 2024. The Tribunal also made the following order:

The tenants' application is amended to allege a breach of a residential tenancy agreement by RTA s50 right to quiet enjoyment as the tenants have turned off the power to the premises on 22/7/24 and have not reconnected the power to date.

Note: the tenants have moved away from the premises as there is no power to the premises and they have a young baby aged about 3 months.

1. On 20 August 2024 the tenants made an application to the Tribunal for an extension of time for the filing and serving of their evidence. On 22 August 2024 the Tribunal issued an order refusing the tenants' request for an extension of time on the ground that no corroborating medical evidence in support of the request had been provided.
2. On 28 August 2024 the landlord commenced separate proceedings in the Tribunal (2024/00317945) seeking orders that the tenants reimburse the landlord for electricity costs. For convenience we will refer to those proceedings as the "landlord's proceedings" and to the proceedings the subject of this appeal as the "tenants' proceedings".
3. The tenants had also filed a separate application (2024/00297593) on 13 August 2024 in which they sought access to the premises. On 19 August 2024 that matter came before the Tribunal for an expedited hearing and the Tribunal made access orders by consent, finalising that matter.
4. The landlord filed and served a bundle of documents in the tenants' proceedings on or about 9 September 2024.
5. On 15 October 2024 the landlord's proceedings came before the Tribunal for a group list and conciliation hearing. The Tribunal made orders requiring the landlord to file and serve her evidence in those proceedings by 25 October 2024, and the tenants to file and serve their evidence by 4 November 2024. The proceedings were adjourned to be heard together with the tenants' proceedings.
6. Despite the Tribunal having explicitly refused the respondent's request for an extension of time in the tenants' proceedings, on 11 November 2024 the tenants filed and served documents in the tenants' proceedings, almost three months out of time. There is a dispute as to whether the documents filed and served on 11 November included a document entitled "points of claim", but it is not in dispute that the tenants' bundle included, and that the landlord received, a document which the parties referred to in the appeal as "Annexure J". Annexure J is a statement of the first respondent, Mr Hancock, and attaches a series of photographs depicting personal belongs of the tenants as well as copies of receipts and online listings for various household items.
7. No further evidence was filed and served by the landlord.
8. Both proceedings came before Tribunal for final hearing on 16 December 2024.
9. On the same day the Tribunal made an order dismissing the landlord's proceedings on the ground that the landlord had withdrawn her application.
10. The Tribunal published its orders and reasons for decision in the tenants' proceedings on 30 January 2025.
11. At the hearing on 16 December 2024 the parties were both self-represented, with Mr Hancock appearing on behalf of himself and Ms Cohen.
12. The tenants have provided a transcript of what occurred at the hearing.
13. At the commencement of the hearing the Tribunal member, after welcoming the parties to the hearing, noted that he had looked at the two applications and that "they largely seem to be interrelated in that the cross application is seeking electricity costs and other utility costs, which have been put in issue by the tenants in their originating application".
14. The member then went on to explain the hearing process, stating that the tenant would speak first, that at the end of the tenant's evidence the landlord would have an opportunity to give her evidence, and that at the end of both parties' evidence, the parties would be given an opportunity to sum up and make closing submissions.
15. After the landlord and Mr Hancock were sworn in, the member noted that he had documents that had come in for both matters, and sought confirmation from the parties that they had both filed and served those documents on each other.
16. Mr Hancock proceeded to give evidence about various matters including the formation of the residential tenancy agreement, the dispute that arose regarding liability for electricity costs, and the cutting off of the electricity supply on 22 July 2024. He then gave oral evidence that when the tenants returned to the premises on 27 July, the premises had a smell of mould, a leak in the master bedroom had occurred, water had leaked on the bed, mould was growing on the bed and crib and other items, and the electricity had not been restored. Mr Hancock also gave oral evidence that when he returned to collect his goods several days later many had been moved to a partially enclosed external shed and that many items were damaged.
17. After a discussion about the methodology for calculating the replacement price of the damaged goods, the Tribunal member asked Mr Hancock to confirm that the total he was seeking in relation to damage to goods was $5,599. Mr Hancock replied that this was correct.
18. The Tribunal member proceeded to confirm with Mr Hancock the other heads of the tenants' claim (being $496.50 for the storage fee, $395.87 for the removalist and $1,000 for the bond). The member and Mr Hancock then had the following exchange:

Tribunal member: Is there anything else?

Mr Hancock: Well, I was advised not to bring emotional damages into it, though I was at one of the most traumatic experiences I've gone through in my life. To be honest, the birth was very difficult, but then becoming displaced in the middle of winter with a three-month-old was, yeah, very, very, very, very difficult.

...

Tribunal member: Is there anything else you want to say before I go on to the landlord's case?

Mr Hancock: Just that this has been a ... it's been an extremely difficult and very traumatising event for my wife and I. And yeah, again, we haven't raised emotional damages because we didn't know ... we don't know that much about law and I wanted to think the things that are objectively ...

Tribunal member: Emotional damages is often expressed as what's called non-economic loss.

Mr Hancock: Yes.

Tribunal member: Are you making any claim for non-economic loss or not?

Mr Hancock: I've been advised by the tenant's advocacy board not to, to try and shorten the proceeding. I have seen a similar precedent where a man was awarded over $1000 for having electricity turned off for two days in Sydney. For our ... based on rights to the right of quiet enjoyment. If you would consider non-economic loss, then I would think probably ... we've spent about $500 on psychologists so far. I would think maybe $2000 for non-economic loss. But again, that's not my priority because I wanted to keep things objective to make it easy for everyone to have things go quickly.

1. Following this exchange the Tribunal member proceeded to ask the landlord to take him through her case. Initially, the landlord provided oral evidence and submissions about the allegations regarding damaged goods. She then went on to make submissions and give oral evidence as to why she was of the view that the Tribunal did not have jurisdiction to hear and determine the tenants' claims, and to address her own claim for electricity expenses. Part-way through her submissions the landlord informed the Tribunal that she had decided to withdraw her claim for electricity expenses.
2. Both parties were given an opportunity to make closing submissions.
3. During the presentation of the tenants' submissions and evidence the member made reference to documents which were before him. Although it is not entirely clear from the materials before us what those materials were, we have inferred that the Tribunal was referring to the witness statement and attachments contained in Annexure J.
4. The Tribunal issued its decision on 30 January 2025. It was satisfied that the arrangement between the parties was a residential tenancy agreement pursuant to which the Act applies, and made a declaration to that effect under s 11 of the Act. The Tribunal was also satisfied that the landlord had breached the Act by failing to provide premises that were fit for habitation, and by breaching the covenant of quiet enjoyment of the premises. The Tribunal awarded the tenants:

(1) $5599 for damage to goods;

(2) $496.50 for storage costs;

(3) $5000 for non-economic loss; and

(4) $500 for partial return of the bond.

1. From the total sum the Tribunal deducted $140 which the Tribunal found the tenants owed the landlord for bottled gas expenses.
2. In its reasons for decision the Tribunal referred to various documents submitted by the tenants. We have inferred that the tenants' documents referenced by the Tribunal in the decision are the documents contained in Annexure J.

1. The denial of procedural fairness asserted by the landlord involves:

(1) Considering the tenants' evidence served out of time in circumstances where the Tribunal had previously refused the tenants' request for an extension of time, thereby conveying to the parties that the Tribunal would not admit or consider any documents filed and served late.

(2) Entertaining the tenants' claim for compensation for damage to goods in circumstances where the Tribunal had not given the tenants leave to amend their claim to include damage to goods.

(3) Awarding the tenants $5000 for non-economic loss even though this hadn't been claimed by the tenants.

1. The landlord says that as a result of these breaches she was denied the opportunity to put forward adequate evidence and submissions to defend the tenants' claims.
2. The tenants submit, in summary:

(1) The landlord received the tenants' documents (including at least Annexure J) on 11 November 2024 and was therefore on notice of the changes to the tenants' case, and of their evidence.

(2) By the time the matter came before the Tribunal for a final hearing both parties were on notice of their respective positions.

(3) The Tribunal implicitly extended time for the tenants to file and serve their evidence.

(4) The transcript reveals that the landlord was afforded an opportunity to address the Tribunal and adduce such evidence as she considered appropriate.

(5) The reasons for decision reflect that the Tribunal considered the procedural irregularity concerning the absence of an order extending time for the tenants to file and serve evidence regarding their changed case and having so considered this issue the Tribunal allowed the tenants' evidence to be tendered.

(6) It was open to the tenants to claim for non-economic loss and as long as the Tribunal was satisfied that the landlord had disconnected the power supply to the premises - which the landlord conceded - it was then open to the Tribunal to make a finding that as a matter of law she had contravened the Act, and then determine a quantum of compensation. The landlord was afforded procedural fairness and was given an opportunity to provide evidence about whether she had turned off the power supply to the premises. Once she conceded that she had turned off the power, it was open to the Tribunal to make the findings it did.

1. In Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Kirby J [35] said:

It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law....

1. These principles apply to the Tribunal. It has a duty to conduct its hearings in a procedurally fair manner and to take such measures that are reasonably practical to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s 38(2) and s38(5)(c) of the NCAT Act).
2. What is 'a reasonable opportunity to be heard' will vary from case to case. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

1. Basten JA addressed the same issue in Italiano v Carbone & Ors [2005] NSWCA 177 at [88]:

An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment," as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]:

"A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." at [37].

1. A failure to provide procedural fairness ordinarily means that there has been an erroneous decision which should, under s 81 of the NCAT Act, be set aside or quashed, with the appeal allowed, save in rare circumstances, such as where the breach would have made no difference to the outcome of the case: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at [28]; Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [40]- [44].
2. In Jeray v Blue Mountains City Council [2024] NSWCATAP 66 the Appeal Panel considered the obligation to assist a self-represented party. It relevantly said at [14] - [15]:

Procedural fairness includes a duty to provide assistance to a self-represented party in certain circumstances: Lee v Cha [2008] NSWCA 13 at [49]. In Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 at [55] the Full Court gave the following examples of the kinds of practical assistance that may be appropriate:

[55] In practical terms, the Court may find it appropriate to provide the following kinds of assistance to a litigant-in-person:

(a) Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: Hamod [311]. For example, failing to explain the difference between formal sworn testimony and statements made from the bar table, and the significance of failing to file an affidavit, to enable a litigant-in-person to choose whether or not to give oral evidence, may amount to a denial of procedural fairness: SZRUR [39]. Additionally, failing to explain the risks in not leading evidence where adverse inferences might be drawn may also constitute a denial of procedural fairness: Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193; (2014) 46 VR 283.

(b) Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: MacPherson, 534. For example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness: AMF15, 50 [47].

(c) Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: Rajski.

1. Applying those principles, we are satisfied that the hearing was not conducted fairly. Whilst the Tribunal gave each of the parties adequate and equal opportunity to speak and put forward their arguments (and in that sense the hearing was procedurally fair), it is our view that several procedural irregularities resulted in a denial of procedural fairness.
2. Firstly, the Tribunal's decision on 22 August 2024 to refuse the tenants' request for an extension of time for the filing and serving of evidence clearly conveyed that the tenants would not be permitted to rely on any documents filed and served out of time. Nonetheless, although the tenants' evidence was filed and served almost three months late, the Tribunal allowed the tenants to rely on that evidence, and took it into account when making its decision. In so doing the Tribunal appears to have impliedly extended time for the filing and serving of the tenant's evidence (in conflict with the order made on 22 August), without explicitly informing the parties that it was doing so, and without hearing from the landlord on the matter.
3. Whilst a represented litigant might have been expected to ascertain what was transpiring, and to raise an objection during the hearing, the same cannot be said for an unrepresented litigant. For an unrepresented litigant the situation would have been confusing. As mentioned, the Tribunal had previously explicitly refused the tenants' request for an extension of time, thus creating the impression that any evidence filed late would not be accepted by the Tribunal. At the hearing the Tribunal referred to some of the tenants' documents but did not make it clear that it was in effect overriding the previous order of the Tribunal and extending time for the filing and serving of the tenants' evidence. Moreover, it would not have been clearly apparent to the unrepresented landlord that it was within her rights to object to the tenants relying on materials filed and served out of time, or to request an adjournment to allow additional time to file and serve her own evidence in response.
4. The lack of clarity was compounded by the fact that at the commencement of the hearing the Tribunal confirmed that the parties had filed and served documents on each other, but didn't clarify what those documents were.
5. Secondly, the Tribunal awarded the tenants $5000 for non-economic loss even though the tenants had not made such a claim. We accept the tenants' submission that the order made by the Tribunal on 6 August 2025 (amending the tenants' claim to include breach of the covenant of quiet enjoyment) implicitly encompassed a claim for damages arising out of such breach, including damages for non-economic loss. However, there is nothing in the order of 6 August, or any of the other materials provided to the Appeal Panel, which would have put the landlord on notice that the tenants were claiming $5000 for non-economic loss. Moreover, at the hearing, when asked whether the tenants were claiming damages for non-economic loss, Mr Hancock's equivocal response could have been interpreted to mean that the tenants were in fact abandoning this part of their claim. Alternatively, taken at its highest, his response communicated that, if a claim for non-economic loss was able to be made without jeopardising his other claims, then he did wish to make it, but was capping the claim at $2000.
6. Despite this the Tribunal awarded the tenants $5000 for non-economic loss.
7. We recognise that the Tribunal's procedures are intended to be flexible, and that s 38 of the NCAT Act permits the Tribunal to determine its own procedures. However, in our view, the above shortcomings meant that the unrepresented landlord was denied a fair opportunity to present her case and that there exists a realistic possibility that the outcome could have been different had those errors not been made. In particular, the landlord could have objected to the Tribunal accepting the tenants' evidence out of time, sought an adjournment to allow herself an opportunity to file and serve documentary evidence in response, and addressed the $5000 claim for non-economic loss.
8. For these reasons we are allowing the appeal on this ground and it is not necessary to consider the other procedural fairness issues raised by the landlord, or the third ground of appeal.

1. We have decided to uphold the appeal in part and to set aside order 2 made by the Tribunal on 1 May 2024.
2. In light of the procedural issues we have identified we are not satisfied that, in accordance with s 81(1)(d) of the NCAT Act, we can fairly determine the dispute on the basis of the materials before the Appeal Panel. Therefore, pursuant to s 81(1)(e) of the NCAT Act, we are remitting the matter to the Consumer and Commercial Division for redetermination, by a differently constituted Tribunal, of the tenants' claims for compensation.
3. We note that the grounds of appeal, and the landlord's submissions in the appeal, did not include any objection to the Tribunal's decision to order the landlord to partially refund the bond (in the sum of $500) to the tenants. Accordingly, it will not be necessary for that issue to be redetermined and we are making an order that the landlord pay that sum to the tenants immediately.
4. For these reasons we are making the following orders:

(1) Time for filing the appeal is extended to 26 February 2025.

(2) The appeal is allowed in part.

(3) Order 2 made by the Tribunal on 30 January 2025 is set aside.

(4) The proceedings are remitted to the Consumer and Commercial Division of the Tribunal, differently constituted, for reconsideration of the respondents' claims for compensation, with leave for the parties to adduce such further evidence as the Tribunal thinks fit.

(5) The appellant is to pay the respondents $500, being for partial refund of the bond, immediately.

(6) The appeal is otherwise dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.