Mortley v Sankla

Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165

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

Collins v Urban [2014] NSWCATAP 17

Cominos v Di Rico [2016] NSWCATAP 5

Dokas v Gallagher [2024] NSWCATAP 129

Donohoe v Alburario [2025] NSWSC 9

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Kordas v Ahmed [2024] NSWCATAP 64

NSW Land and Housing Corporation v Orr [2019] NSWCA 231 (2019) 100 NSWLR 578

Pan v Shanehsazzadeh [2024] NSWCATAP 23

Pholi v Wearne [2014] NSWCATAP 78

Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

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

Sengos v Hassan [2022] NSWCATAP 366

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

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

Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123

1. This is an appeal from a decision of the Tribunal dismissing an application by tenants under the Residential Tenancies Act 2010 (NSW) (RT Act).
2. Mr Mortley and Ms Mortley are co-tenants and are both parties to the appeal as they were applicants in the proceedings below. In this decision, any reference to "the tenant" is a reference to Mr Mortley, who corresponded with the landlord's agents on behalf of both co-tenants; appeared at the Tribunal hearing; and appeared at the appeal hearing.
3. The appellant is a tenant, and the respondent is a landlord.
4. The tenancy commenced at a date that is unclear from the Tribunal evidence, but according to the tenant at the appeal hearing he and Ms Mortley moved into the premises in about 2017. Since that time, there have been periods where there was a fixed term agreement; and other periods where the tenancy became a periodic tenancy.
5. The tenant asserted at the appeal hearing that he had no issues with the original agent. It was after the landlord changed agencies that he asserted there were difficulties. In particular, there were difficulties when the landlord's agent moved to a system where documents (including a proposed fixed term residential tenancy agreement) were sent by way of an attachment to a text message.
6. On 6 September 2024 (by way of an application dated 23 August 2024) the tenant filed proceedings in the Consumer And Commercial Division of the Tribunal.
7. The orders sought were as follows:

"Section 187(1)(h) contract renewal process including new contract.

Section 44(1)(a) each year the increase is proposed at $100".

1. In the section of the Tribunal application "why are you applying to NCAT," the tenant stated that the landlord's agent had "issued new contracts two years in a row." The agent sent an SMS Link with a 7-day time limit to accept. The notice of rent increase "is always soon after the link." There was no "download option" and "after negotiations conclude, and updated contract is not provided despite requests."
2. The application contains various assertions about the "integrity" and "tactics" of the landlord's agent.
3. In December 2021, the parties had entered into a written residential tenancy agreement for a fixed term commencing on 22 January 2022 and ending on 20 January 2023. The rental premises is a freestanding house, with a double garage. The rent payable under the terms of the written residential tenancy agreement commencing 22 January 2022 was $670 per week.
4. On 23 May 2023, the landlord sent a Notice Of Rent Increase under s 41 of the RT Act asserting the rent payable would increase to $770 per week from 29 July 2023. However, in circumstances that are not clear from the documents, the rent was increased from $670 to $750, and the tenant was paying $750 from late July 2023.
5. On 27 June 2024, the landlord's agent sent a fresh Notice of Rent Increase under s 41 of the RT Act stating that rent would increase from $750 per week to $850 per week, commencing 31 August 2024.
6. The Notice of Rent Increase dated 27 June 2024 was emailed to the tenant, with following covering email:

"...

As the managing agent for the property, we need to ensure that we are maintaining the rental return achieved by the landlord.

As such, please be advised that the rent of the above-mentioned property in which you reside will be increased to $850 as per the landlord's request.

In accordance with the Residential Tenancies Act, we hereby issue the required notice for a rent increase, which is effective from 31 August 2024.

Please ensure that you update your rental payments effective from this date.

Please reply or contact our office as soon as possible to advise if you would like to sign a new fixed term (6 or 12 months) lease agreement.

..."

1. In the period from late June 2024 until early September 2024, there was a significant amount of email correspondence between the tenant and the agent regarding the rent increase. The tenant did not agree with the rent increase and asserted it was excessive.
2. None of the documents the parties provided in their respective documents to the Appeal Panel contained a copy of a proposed fixed term agreement with a rent of $850 pw. However, emails between the parties in early to mid-August 2024 refer to a proposed fixed term lease being sent, but not signed. The tenant complained that there had been a "renewal contract" sent (and one had been sent the previous year) that had not been signed because the agent had acted in an inappropriate manner in sending the "renewal contract" and then sending the Notice of Rent Increase. The tenant also complained that the rent increase was unjustified and had occurred in a context where the agency now represented most landlords in the street where the premises is located.
3. The landlord's agent responded in an email of 12 August 2024 by asserting that the landlord and agent had acted in a manner consistent with the RT Act, and that the tenants were on a periodic agreement from 20 January 2023, when the previous fixed term agreement expired. The agent stated that the tenants had 3 options. One was to sign a "renew lease agreement" which would commence on 31 August 2024 with rent at $850 pw. Option 2 was to "put in an offer for the rent and if the landlords agrees (sic) you can renew the lease for another 12 months". Option 3 was to "put in an offer and if the landlord agrees you can stay on a periodic agreement".
4. On 6 September 2024, the tenant emailed the agent stating that although the tenant had paid the rent amount of $850 pw the landlord had not responded with a "different amount from the landlord" and the tenant requested an "updated contract to be signed".
5. On 11 September 2024, there was an exchange of emails between the tenant and the agent. The landlord's agent asserted that the tenant had not made any offers in respect of the proposed rent increase. The tenant responded that the current rent of $750 per week was appropriate. The landlord's agent stated that landlord was prepared to reduce the rent increase. The tenant responded with an email as follows:

"Still an increase of $70. As I have no confidence that it has been a directive from the landlord not encouraged or aided by yourselves, I am still moving forward with the case especially when I'm concerned by the rent increase tactics been employed."

1. The landlord's agent responded to that email by stating:

"The landlord has come back to me and is happy to reduced rent increase to $820 per week, this has been backdated from the 31 August 2024".

1. No fresh fixed term written tenancy agreement was signed by the parties, with the previous fixed term agreement expiring on 20 January 2023.
2. The matter proceeded to hearing at the Tribunal on 26 November 2024. The tenant's application was dismissed, with written reasons.

1. The Tribunal identified the issues for determination as follows: -

"This was an application by a tenant questioning the landlord's procedures for fixing a new rent and seeking an order that the present rent was excessive. The property in question was a five bedroom two story dwelling built in 2017".

1. The Tribunal stated that in 2023, near the expiry of the fixed term, the landlord sought a rent increase of $100. The rent for 2024 was $750 pw. The landlord had sort a further increase of $100 which would cause the rent to be $850 pw week. The tenants negotiated with the agent and it was agreed the rent should be $820 pw.
2. According to the Tribunal's reasons, the landlord's agent had offered the tenant a 12-month lease at $810 per week "from the bar table which was not accepted".
3. The Tribunal stated that the tenant had "agitated two complaints." The first was that "proper negotiations have been frustrated because (the tenant) had been sent all paperwork including a new tenancy agreement by email so there had been no personal interaction."
4. The second was that the rent increase is excessive, and had "been calculated by or on behalf the landlord on false premises (sic)."
5. The Tribunal's reasons refer to both parties having provided evidence of rental amounts for comparable properties, but the documents of the parties are not clearly identified in the reasons. However, it is clear from the documents that were provided with the appeal that both parties had provided advertisements of properties which they respectively asserted were comparable.
6. Although we were not provided with a sound recording or transcript of the hearing (or any part of the hearing) by the parties in the appeal, it is clear from the submissions of the parties in the appeal that there was a dispute between the parties as to whether the comparable properties relied upon by the landlord had comparable facilities to the residential property the subject of the proceedings. The tenant also argued in the appeal that the landlord's agent did not have a proper system for calculating proposed rent increases based on comparison to other properties, and that another agent who he spoke to could clearly explain how rent increases were calculated in respect of the properties that agent managed.
7. The Tribunal found as follows:

(1) The landlord's agent providing documents by email did not affect the tenant's rights adversely. It was open to the tenant to request a hard copy of any documents from the landlord's agent.

(2) In respect of the rent increase being excessive, the documentary material in evidence "on actual market value of the premises in question was limited to about five comparable two story five bedroom houses (in the same suburb), 3 to 7 years old".

(3) The Tribunal found that the rents for such properties were between $1,250 and $900 per week, with an average of $1,050 per week. Although the Tribunal accepted that the tenant had pointed out that the rental property the subject of the dispute had 2.5 bathrooms and was approximately two years older than the advertisements for comparable properties relied upon by the landlord, the Tribunal was "comfortably satisfied that the current rent was less than the market value."

(4) The Tribunal did not accept the tenants submission that the landlord's agent had misinterpreted the market, and that the rental market faced an imminent downturn.

Commencement of the Appeal and the Appeal Proceedings

1. The tenant filed a Notice of Appeal and a Stay application on 2 January 2025.
2. The appeal has been filed outside the relevant time period for filing an appeal to the Appeal Panel of the Tribunal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act); and r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules).
3. Rule 25 of the NCAT Rules relevantly states:

25 External and internal appeals

(1) An external or internal appeal (including, where required, an application for leave to appeal) may be made by lodging a notice of appeal.

(2) The notice of appeal must be -

(a) in or to the effect of the approved form, and

(b) duly completed, and

(c) lodged at the Registry, and

(d) accompanied by the applicable fee (if any) for the appeal.

(3) A notice of appeal need not specify the Division of the Tribunal (if any) to which the function of determining the appeal is allocated by the Act. However, if the appropriate Division is not specified or an incorrect Division is specified, a registrar may complete or alter the notice form accordingly.

(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 appellant 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 appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later).

(4A) For the purposes of subrule (4), the day on which reasons are given is the day on which reasons are first given, whether orally or in writing.

...

1. We are satisfied that the appellant was notified of the decision and reasons of the Tribunal on 26 November 2024. Accordingly, the appeal has been filed out of time, subject to an extension being granted under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Applicable principles for an extension of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].
2. The Notice to Appeal attached a large bundle of documents, including a "statement of issues" which, we accept, was part of the tenants' documents at the Tribunal hearing. Other documents include the written residential tenancy agreement between the parties dated 4 December 2022 (commencing on 22 January 2022); email correspondence between the tenant and the landlord's agent; and advertisements for rental properties in the same suburb, or in close proximity, to the rental premises the subject of this dispute.
3. The tenant also filed a bundle of documents in the appeal on 20 January 2025. Those documents include the documents that were before the Tribunal in regard to what the tenant asserted were comparable properties.
4. The landlord filed a bundle of documents appeal on 20 January 2025. Those documents relevantly included the email correspondence between the parties; the written residential tenancy agreement commencing on 22 January 2022; a rent ledger; and the advertisements for comparable properties (which came from the agent's listing information and advertisements) that the landlord relied upon respect of rents for comparable properties.
5. The landlord also filed a Reply to Appeal on 13 March 2025.
6. The appeal was listed for a call over at the Appeal Panel on 21 January 2025; and the Stay application was listed for hearing.
7. The appeal was dismissed on 21 January 2025, as the tenant had failed to appear at the call over. However, the tenant had a reasonable explanation failing to appear, and the appeal was subsequently reinstated under s 55(2) of the NCAT Act on 2 April 2025. The Appeal Panel made further procedural directions for preparation of the appeal on 2 April 2025. The stay application was dismissed by consent.

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 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. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') the Appeal Panel set out at [13] a non-exclusive list of questions of law. What is an error on a question of law was further 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:

What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.

1. 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.
2. 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]).

(2) A constructive failure to exercise jurisdiction, in the sense of 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]).

(3) 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 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 ( at - 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 should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised (Prendergast at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13]).
4. Extension of time principles under s 41 of the NCAT Act are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] as follows:

The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:

(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];

(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

(a)The length of the delay;

(b)The reason for the delay;

(c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d)The extent of any prejudice suffered by the respondent (to the appeal),

- Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and

(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].

1. The explanation given by the tenant for the delay in filing the appeal was his communication with the Tribunal Registry and technical difficulties with the online filing and payment of the filing fee. According to the tenant, he had indicated to the landlord's agent that he would appeal approximately 1 week after the decision of the Tribunal was delivered.
2. We are satisfied the explanation for the delay is reasonable. The delay period is relatively short. The landlord at the hearing did not oppose or state any objection to the extension of time being granted. There is no demonstrable prejudice to the respondent landlord by reason of the delay.
3. Although the merits of the appeal are meagre, we are not satisfied the appeal is unarguable.
4. Accordingly, time to file the appeal is extended.
5. However, for reasons set out below, we refuse leave to appeal and dismiss the appeal.

1. Unfortunately, the Notice of Appeal and the appeal submissions, do not clearly articulate any error on a question of law.
2. The grounds of appeal identified in the Notice of Appeal complain about the conduct of the landlord's agent, including the tenant's perception that he was not being treated respectfully. The grounds of appeal include the following:

"...The issue with electronic is the contract sent via SMS with no ability to save or print for later reference...I don't like doing contracts on the phone and prefer to having it sent by email...We discussed the market review and I highlighted that the plans the real estate agent supplied were wrong, the property was not the same as the other 5x3x2 however the agents continue to treat it as equal...I was not seeking a rent decrease but to establish legal clarification as to the agent's conduct in accordance with the legislation...Under the Property Stock Agents Act 2002 Part 3 Division 5 Advertising I can attest to breaches relating to the conduct towards me..."

1. In respect of leave to appeal, the Notice of Appeal seeks leave, but states that whether the decision was fair and equitable is "not the appropriate question." In respect of whether the decision was against the weight of evidence, the tenant asserts that the agent "stumbled over key elements" and the Member "should have given more weight to the mandatory obligations" and not the agent's opinions.
2. Leave to appeal is not sought on grounds of their being significant new evidence now available that was not reasonably available at the date of the hearing.

Has Any Error on a Question of Law or Grounds for Leave to Appeal Been Established?

1. Under s 14(1) of the RT Act, a landlord must ensure that a residential tenancy agreement is in writing at the commencement of the tenancy. However, this does not affect the enforceability of a residential tenancy agreement that is not in writing or only partly in writing (s 14(2)(b) RT Act).
2. Under s 16 of the RT Act, the Tribunal may order a written residential tenancy agreement be entered into by the parties. Section 16 states as follows:

16 Written residential tenancy agreements - Tribunal orders

(1) The Tribunal may, on application by a tenant, order the landlord to prepare and enter into a written residential tenancy agreement.

(2) The order may -

(a) specify the terms of the agreement, and

(b) specify a commencement date for the agreement that occurred before the order was made.

(3) The Tribunal may make an order under this section only if it is satisfied that the landlord and tenant are subject to an existing residential tenancy agreement that is not in writing or is only partly in writing and that the tenant is not holding over under a previous written fixed term agreement.

1. Section 16(3) of the RT Act refers to a tenant "holding over under a previous written fixed term agreement. Section 18 of the RT Act states as follows:

18 Fixed term agreements to continue as periodic agreements after end of fixed term

A fixed term agreement that continues after the day on which the fixed term ends continues to apply -

(a) as if the term of the agreement were replaced by a periodic agreement, and

(b) on the same terms as immediately before the end of the fixed term.

Note.

A landlord and tenant may also enter a further agreement for a further fixed term tenancy.

1. In this matter, the most recent fixed term written tenancy agreement between the parties expired on 22 January 2022. The tenancy then became a periodic tenancy under s 18 of the RT Act. Neither party was obliged to enter into a further fixed term agreement, and a further fixed term agreement would have involved both parties agreeing to the essential terms, including the period of the fixed agreement and the rent amount.
2. As at the date of the issue of the Notice of Rent Increase was issued by the landlord's agent on 27 June 2024, s 41 of the RT Act stated as follows:

41 Rent increases

(1) The rent payable under a residential tenancy agreement may be increased only if -

(a) the tenant is given a written notice by the landlord or the landlord's agent specifying the increased rent and the day from which it is payable, and

(b) the notice is given at least 60 days before the increased rent is payable.

(1A) Subsection (1) does not apply to a fixed term agreement for a fixed term of less than 2 years that specifies the date on which, and the amount by which, the rent payable under that agreement will be increased. This subsection does not affect the operation of subsection (2) in relation to the renewal of a fixed term agreement.

(1B) The rent payable under a periodic agreement may not be increased more than once in any period of 12 months.

(2) This section extends to an increase in the rent payable under a residential tenancy agreement on renewal of the agreement as if the increase were an increase during the term of the agreement.

Note -

Notice of a rent increase on renewal is required under subsection (1) before the lease is renewed.

(3) A rent increase is not payable by a tenant unless the rent is increased in accordance with this section or the rent is increased by the Tribunal.

(4) The residential tenancy agreement is varied to specify the increased rent from the date the rent is increased in accordance with this section.

(5) Notice of a rent increase must be given by a landlord or landlord's agent in accordance with this section even if details of the rent increase are set out in the residential tenancy agreement.

(6) Notice of a rent increase may be cancelled or varied (so as to reduce the increase) by a subsequent written notice given to the tenant by or on behalf of the landlord. Any such later notice takes effect from the date on which the earlier notice was to take effect.

(7) Notice of a rent increase is not required to be given by a landlord or landlord's agent if the increase arises because of the end of, or a reduction in, a rent reduction.

(8) Subsections (1)-(7) are terms of every residential tenancy agreement.

(9) A landlord or landlord's agent must not contravene this section.

Maximum penalty - 20 penalty units.

(10) The Tribunal must not make an order that a rent increase is not payable because this section has not been complied with unless the application for the order is made not later than 12 months after the rent is increased. If an application has not been made within that 12-month period, the rent increase is taken to comply with this section.

1. Section 42 of the RT Act dealt with rent increases under fixed term agreements. However, as discussed previously, when the s 41 Notice of Rent Increase was issued by the landlord, the tenancy was a periodic tenancy.
2. Section 44 of the RT Act stated as follows:

44 Tenant's remedies for excessive rent

(1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders -

(a) an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount,

(b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount.

(2) Time limit for excessive rent increase applications An application for an order that a rent increase is excessive must be made within the period prescribed by the regulations after notice of the increase is given.

(3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement.

(4) Determination of excessive rent For the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent.

(5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive -

(a) the general market level of rents for comparable premises in the locality or a similar locality,

(b) the landlord's outgoings under the residential tenancy agreement or proposed agreement,

(c) any fittings, appliances or other goods, services or facilities provided with the residential premises,

(d) the state of repair of the residential premises,

(e) the accommodation and amenities provided in the residential premises,

(f) any work done to the residential premises by or on behalf of the tenant,

(g) when the last increase occurred,

(h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent).

(6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent -

(a) has effect for the period (of not more than 12 months) specified by the Tribunal, and

(b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable.

Note -

A tenant under a social housing tenancy agreement may also apply for an order that rent is excessive if a rent rebate is cancelled (see section 141(1)).

1. An application under s 44(1)(a) of the RT Act that a rent increase is excessive must be brought within 30 days of the date notice is given: see s 44(2) and reg 39(1) of the Residential Tenancies Regulation 2019 (NSW) (RT Regulation). That period can be extended under s 41 of the NCAT Act (Dokas v Gallagher [2024] NSWCATAP 129 at [84]).
2. No issue appears to have been raised at first instance that the Notice of Rent Increase under s 41 of the NCAT Act was not validly served, noting the provisions of s 223 of the RT Act (which pertains to service of notices by landlords) and the Appeal Panel decisions in Kordas v Ahmed [2024] NSWCATAP 64 and Pan v Shanehsazzadeh [2024] NSWCATAP 23). As no issue was raised in the appeal that the Notice of Rent Increase was not validly served in accordance with s 223 of the RT Act, it is inappropriate to explore that issue.
3. At the appeal hearing, the tenant repeatedly stated that the appeal was "not about" the validity or amount of the rent increase, but rather the "conduct of the agent."
4. No application had been made by the tenant to the Tribunal under s 16 of the RT Act for the provision of a further written agreement fixed term residential tenancy agreement. Even if such an application had been made, it is difficult to envisage how such an order would have been made in light of s 16(3) of the RT Act. However, it is unnecessary to further explore that issue.
5. The tenant's appeal arguments focussed upon the same issues raised in the 'Statement of Issues' document he filed in the Tribunal proceedings.
6. In essence, the tenant complained that:

(1) The agent using an "electronic option for handling contracts" since 2021 was unacceptable.

(2) The landlord's agent had not provided data upon which the agent had calculated a rent increase based on comparable properties. In this regard, the agent was not complying with obligations under the Property and Stock Agents Act 2002 (NSW) and Property and Stock Agents Regulation 2019 (NSW).

(3) The tenant did not understand how the rent increase had been calculated and other tenants in the same suburb had complained to the tenant about rent increases by the same agent.

(4) The property manager of the agent who managed the property prior to the current property manager Ms Chamberlain did not communicate well with the tenant and the tenant did not feel his queries and complaints were adequately answered. However, Ms Chamberlain was much better to deal with.

1. The tenant was asked on a number of occasions at the appeal hearing to put those complaints into the context of identifying an error on a question of law by the Tribunal, or otherwise why leave to appeal should be granted from the decision. The tenant struggled to do so. This is not a criticism of the tenant, who is a self-represented litigant. Mr Mortley undoubtedly feels strongly about the conduct of the agent, although he made clear at the hearing that he is impressed by the current property manager Ms Chamberlain.
2. There are a number of difficulties in respect of the arguments raised by the tenant, separate to consideration of whether any error on a question of law is identified; or leave to appeal should be granted; and whether time to file the appeal should be extended.
3. In respect of documents being sent electronically, the tenant did not explain how this conduct was contrary to the RT Act (in particular, s 223 of the RT Act). In fact, at page 4 of 20 in the written tenancy agreement between the parties commencing 22 January 2022, the tenant ticked the box stating that he gives express consent to receiving electronic service of notices and documents from the landlord. This consent and term of the tenancy agreement has carried over to the current periodic agreement in accordance with s18 of the RT Act. The tenant referred to the failure to provide an accessible further written residential tenancy agreement. However, as discussed previously, the tenant had not sought an order of the Tribunal under s 16 of the RT Act.
4. In any event, the further fixed term agreement was subject to the parties agreeing as to the rent amount; and the duration of the fixed term. There is nothing to indicate from the contemporaneous email correspondence between the agent and the tenant that there was any agreement in respect of such matters in the relevant period. The tenant did not agree to the rent increase, and the parties were clearly negotiating.
5. The tenant's complaints focus on the conduct of the agent, rather than the landlord. However, the agent is the agent of the landlord and the provisions of the RT Act deal primarily with disputes between landlords and tenants, not disputes between tenants and agents of landlords. There is nothing to indicate the landlord did not give the agent instructions to issue the Notice of Rent Increase under s 41 of the RT Act, and the Tribunal proceedings was not a vehicle for the tenant to critique or analyse what professional advice the agent had given the landlord in respect of an appropriate rent increase.

1. The tenant has failed to establish any error on a question of law, or that otherwise leave to appeal should be granted.
2. Accordingly, leave to appeal is refused under the principles set out in Collins v Urban, and the appeal is otherwise dismissed as no error on a question of law is established.

(1) Time to file the appeal is extended to 2 January 2025.

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.